- (1.) PALOK Basu, J. Sajjan Lal Shah has filed this writ petition under Article 226 of the Constitution of India with the prayer that a writ of certiorari should issue quash ing two Recovery Certificates, on dated 7. 9. 1992 for recovery of a sum of Rs. 79,152/- and the other dated 4. 7. 1992 for recovery of Rs. 12,838/- issued by the Executive En gineer, Construction Division, P. W. D. , Al mora.
(2.) THE petitioner admittedly was granted contracts by the Public Works Department (P. W. D.) for making certain constructions, the tender cost of which was Rs. 46,909/- and estimated cost was Rs. 47,141/ -. THE conditions which were to govern the construction were specifically noted in State Government D. O. letter dated 9. 3. 1972. A copy of the conditions of contracts has been attached as Annexure-2 to the writ petition. According to the petitioner's claim he had completed some work and the demand raised by the respon dents is wholly illegal. It is contended that as per the terms of the agreement the best that can be said for the present is that they can go in arbitration or filed a suit for recovery of any amount or for deciding the dispute about payment claimed. THE argument is that the provisions of U. P. Public Moneys (Recovery of Dues) Act, 1972 shall not be attracted to the facts of the present case. When the writ petition was filed on 15. 1. 1993 the learned Standing Counsel was directed to file a counter affidavit which has been done to which a rejoinder affidavit also been filed. By the interim order dated 15. 1. 1993 the recovery proceedings against the petitioner were stayed subject to filing of the security. As prayed by the learned Counsel for the parties, this writ petition is being heard and finally disposed of at the admission stage. In counter affidavit sworn by Sri V. K. Sharma alleging himself to be an Assistant Engineer in the office of the Executive En gineer (Construction Division) P. W. D. , Bageshwari, Almora the factual execution of the contracts as noted above is admitted. However, it has been averred in the counter affidavit that enough materials were sup plied to the petitioner for making construc tions. A wall had fallen down. Some adjust ments were, therefore, to be made. It is again admitted that both contracts resulting in the two recovery certificate as noted above, were having the same type of agree ment as has been filed by the petitioner as exampler.
(3.) SRI Ashok Bhushan, learned Coun sel for the petitioner drew the attention of the Court to the entire proforma agreement which does not have any clause by which the parties may have agreed to permit the State Government to recover amount as arrears of land revenue. The point for considera tion, therefore, is whether Section 3 (1) (d) can be invoked by the State Government is order to issue the aforesaid recovery certifi cates to realise so called contractual money from the petitioner as arrears of land revenue or that the State Government shall have to take recourse to common law remedy of filling a suit or proceed under the Arbitration Act as envisaged under the agreement. Sri Nural Huda, learned Standing Counsel has strongly contended that since at one point of time some materials were advanced to the petitioner for making con struction, this should be interpreted as "financial assistance" so as to permit invok ing of Section-3, referred to above. While it is true that "financial assistance" has been defined in Section 2 (b) of the said Act, none of the clauses (i) to (v) as defined in the aforesaid clause (b) of Section 2 can permit the amount claimed by the State Govern ment from the petitioner to be treated as such. For ready reference Section 2 (b) as well as Section 3 (1) (d) with its sub-clauses (i), (ii) and (iii) of the said clause (d) are quoted here: "2 (b) "financial Assistance" means any financial assistance - (i) for establishing expending, modernising, renovating or running any industrial undertakings; or (ii) for purpose of vocational training; or (iii) for the development of agriculture, hor ticulture, animal husbandry or agro-industry; or (iv) for purposes of any other kind of planned development; or (v) for relief against distress;" "3. Recovery of certain dues as arrears of land revenue.- (1) Where any person is party, and re questing that such sum together with costs of the proceedings be recovered as if it were an arrears of land revenue. " The aforesaid provisions contained in Section 2 (b) and Section 3 (1) (d) would per mit the State Government to invoke the provisions of realisation as arrears of land revenue only in case of existing agreement between the State Government and the per son concerned. In the absence of such an agreement the powers to make recovery as arrears of land revenue cannot be exercised. The reason for this analysis and conclusion is that primarily arrears of land revenue shall recoverable only when some person fails to pay land revenue. But by legal fiction and by enlarging scope of certain classes of loans, dues etc, the State Government has passed the aforesaid U. P. Public Moneys (Recovery of Dues) Act, 1972. The preamble of the said Act says that it has been passed to provide for speedy recovery of "certain classes of dues payable to the State Government" and to validate certain acts done and proceeding taken in the past, and to provide for matters connected therewith (emphasis by Court ). The aforesaid objects and reasons classifies the State Government dues into two sets- normal dues and dues under "certain classes. " It is only a class of Public Money which the State has been authorised to realise as arrears of land revenue and exactly it is that class of dues which is stands delineated by Section 3 with Section 2 (b) as noted above. Any other in terpretation is likely to confer power upon the State Government to use the provisions of Public Moneys (Recovery of Dues) Act, 1972 indiscriminately without any jus tification.;