THAKURDAS NARANG Vs. STATE OF M.P.

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the correctness, legality, propriety and validity of the Revenue Recovery Certificate for an amount of Rs. 6, 63, 553/ - and the memorandum of recovery issued by the respondent no. 2.

(2.) THE facts, in nutshell, necessary for disposal of the petition, are that the petitioner, a Government contractor, entered in a contract with the respondent for completing certain construction work. Considering that there was some breach on part of the petitioner, the Executive Engineer of the Division rescinded the contract and gave the work to another debitable agency at the risk of cost of consequences of the petitioner. The petitioner, being aggrieved by the acts of the respondents, made an application to the Executive Engineer for settlement of the claim, but the said application was rejected and thereafter the petitioners approach to the Superintending Engineer also failed, therefore, the petitioner made an application to the Superintending Engineer for referring the matter to the Arbitration under clause 4.3.29.1 of the agreement. In accordance with the terms of the agreement, the Superintending Engineer would have been obliged to refer the matter to the Arbitrator, but because of the enforcement of M. P. Madhyastham Adhikaran Adhiniyam, the Superintending Engineer asked the petitioner to lodge his claim before the Arbitration Tribunal. The petitioner filed his claim before the Arbitration Tribunal on 19.4.92, but the Tribunal dismissed the claim as barred by limitation after rejecting petitioner's application filed under Section 5 of the Indian Limitation Act. It appears that the orders passed by the Arbitration Tribunal were challenged by the petitioner in civil revisions before this Court, but nobody knows about the fate of those proceedings.

(3.) SUBMISSION of learned counsel for the petitioner is that unless the question of breach is decided by an independent agency, the respondents are not entitled to recover any money from the petitioner. In his submission unless it is decided that who committed the breach, the State and its authorities would not be entitled to recover any money from the petitioner. His further submission is that the respondent -Executive Engineer was entitled under the law to rescind the contract, but the ground leading to rescission of the contract and breach on the part of the petitioner is still to the proved by the respondent / State. In his submission, if the petitioner is required to approach the Arbitration Tribunal, that is, an independent agency, for establishment of his claim, then the State which is also a common litigant cannot be allowed to exercise its sovereign powers for recovering the money without getting the dispute decided. His submission is that even if the State has paid excess money to the debitable agency, the petitioner can be held liable only if breach is found at his end.