.::->;;; :':« \:/:^ &^ ',^v^l ^•%<^t- A° IK? THE HIGH COI3RT ©F &ABHY& pRM)ESH AT JA^ .M.P. HO. / (? €?M of 1992» \ SAJ^A M^lXyAE BW^gIKA £Kj^M), BU1LDIM3 COKTRaCTGa, ^A .. • r/o pratapg-a.Bj. para, .:'\jagaalpur ©i^t.t» Basfar. M»p^ f^'^i •• PetitioBer. ^«»^^ -1rersas „ r-1. State of M.P. throagh the S^cretary p.W.D. Bh©pal. ?^ ' • ;•" .. ^ I, f:t'^4 S^ E^ecixtive EBgineer North .Ba^tar .Divisio^ •pablic Woxrks B^artmeHt Jagdalpur. Ba3tar» 3. .Additional Ta^sildar (Kaz-al) jsgdaipar' ©isttBastar frl.p. &ETITI0.K -tJa)SR.-'^TICLE;226 R/f^ ^T. 227 O? THE CQMSTITUTIOB OF IHDI-A.-- , '. . ' . • ; ' • ' • The getitioHer above najie'd begs to'sabrrd.t as un-der $<- J _ ,_r^,_^^_^^^ i.^' ;-z?: HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION No. 1004 of 1992 PETITIONER : Satya Narayan Dwarika Prasad. VERSUS RESPONDENTS : State ofM.P.& Others. PETITION UNDERARTICLE 226 R/W ART. 227 OF THE CONSTITUTION OF INDIA SB: Hon'ble Shri Satish K. Asnihotri, J. Present: Shri Prafull Bharat, Advocate for the petitioner. Shri Shashank Thakur, Panel Lawyer for the State/respondent No. lto3. ORDER(ORAL) (Passed on 30th day of June, 2010) 1. By this petition, the petitioner seeks quashing of recovery order dated 11.03.1992 (Annexure-C) issued by the responderit No. 3 without ascertaining the actual amount due and recoverable from the petitioner. 2. The indisputable facts, in brief, are that a contract between the petitioner and the respondent No. 2 for construction of 80 bedded hospital building at Jagdalpur was executed on 21.02.1979 and consequent thereupon, a work order was issued on 06.04.1979. A dispute arose between the parties. The dispute was referred by the petitioner to the Arbitration Tribunal under the provisions of section 7 of the Madhya Pradesh Madhyastam Adhiniyam^ 1983 (for short 'the Adhiniyam, 1983') wherein the Tribunal passed the award dated 21.08.1989, in favour ofthe petitioner a total sum of Rs. 93,258.00. Thereagainst, a revision was preferred by the respondent-State in the High Court of Madhya Pradesh, which was disposed of on 23.09.1994. The amount payable was modified to the tune ofRs. 64,704/B- and the payment was accordingly made to the petitioner on 11.09.1989 (Annexure B). In respect of this contract and other contract for construction of ITI ^z /' building, the impugned order was passed without ascertaining the amount. It is evident from the documents filed herein that the respondent No. 2 made a request to the Collector by letter dated 20.01.1987 (Annexure R/6) for recovery of Rs. 4,01,570.16 from the petitioner. The same was referred to the Tehsildar and on the basis of said request, the impugned recovery order was issued. Leamed counsel for the petitioner submits that no notice was issued for fixing any liability and no order was passed fixing the liability of any payment. Even if there was any dispute with regard to the payment under the provisions of Contract Act, the same ought to have been referred to the Arbitration Tribunal as provided in the Adhiniyam, 1969. In other contract as aforestated, the dispute with referred to the Tribunal whicH'was decided in favour of the petitioner and the disputes involved in the petition was neither referred to the Tribunat nor settled .nor determined before passing the order ofrecovery (Annexure-C) Shri Thakur, learned counsel appearing for the respondents State submit that there may not be determination of the amount^ however^ several notices were issued to the petitioner demanding payment of Rs. 54,405.16 p. For want of payment, a reference was made to the Collector for recovery of money. Thus, there is no irregularity in the order. Having considered the rival contentions of the parties, perused the pleadings and documents appended thereto, it is evident that the recovery ofthe amount as alleged by the respondent-State arose from a contract between the petitioner and the respondent which has to be determined and decided before making recovery by a competent authority. In case of such contract/there is a provision of maldng a , ri fe! n ; ^- ^'"""%^j ''';^. ^,/N ^ '''^:''''^'- '- v;^'"^^ vij./ '"••^^^^" reference to the Arbitration Tribunal under the provisions ofsection 7 of the Adhiniyam, 1983 for settling the dispute firstly and thereafiter, the question of recovery comes into play. It is not a case where a reference for settling the dispute can be made by only one party. The reference can be made by either party i.e. either by the State Govemment or by the other party. The respondent-State, wlthout taking recourse to the provisions ofsection7 ofthe Adhiniyam 1983, decided itself that some recovery is due and determined the quantum of recovery also unilaterally., without taking recourse to legal provisions. Thus, the recovery order (Annexure-C) suffers from illegality, as being without authorityoflaw. For the reasons stated hereinabove, the recovery order dated 11.03.1992 (Annexure-C) is quashed. However, liberty is reserved to the respondent-State to take recourse to legal provisions for determination ofthe amount, ifany. With the aforestated direction and observation, the writ petition is allowed to the above extent. 9. No order asto costs. Sd/- Satish K. Agnihotri Judge Amit