Delhi High Court
V.K. Mittal vs Assistant Collector, Grade I, Dda And ... on 11 December, 2002
Equivalent citations: 2003(68)DRJ86
Author: Sanjay Kishan Kaul
Bench: Sanjay Kishan Kaul
JUDGMENT Sanjay Kishan Kaul, J.
1. Rule.
2. With the consent of learned counsel for the parties the matter is taken up for final disposal.
3. The petitioner has impugned the demands made by the respondent vide letter dated 28.5.2002 under Section 40-A of Delhi Development Act, 1957. The limited facts necessary to adjudicate the present controversy are that there was a contract entered into between the petitioner and respondent No. 2 on 3.6.1981 when the tender was accepted. As certain disputes arose, the petitioner invoked the arbitration clause. The arbitrator after entering upon reference made and published his award on 17.9.1992. It may be noticed that respondent No.2 levied compensation of Rs. 95,266.00 which also formed part of the award. In terms of the judgment in Suit No. 4122/92 decided on 20.8.2001 the award dated 17.9.92 was made rule of the court except to the extent that the consideration of the claim towards compensation by the arbitrator was beyond the purview of the arbitration and thus that claim was set aside. Respondent No. 2 made payments to the petitioner in pursuance to the award.
4. It is only on 28.5.2002 after a lapse of about 9 months that the impugned order was passed seeking to recover the said amount of Rs. 95,266/- together with interest as arrears of land revenue. Learned counsel for the petitioner contends that there is no question of the recovery of the said amount as arrears of land revenue since the mode of recovery of any such claim is prescribed in clause 29 of the terms and conditions of the contract and in view of the judgment of the Supreme Court in State of Punjab and Ors vs. S Dharam Singh(Dead) by successor Desa Singh and Ors. AIR 1985 SC 751, in case of a contract the mode prescribed in the contract for recovery has to be first implemented and the recovery should not take place in the form of arrears of land revenue.
5. Clause 29 provides that it is open to respondent No. 2 to withhold and have a lien in respect of the sums claimed and such lien would continue till the claim arising out of or under the contract is determined by the Arbitrator or by the competent court.
6. The only defense by learned counsel for respondent No. 2 is that the amount is sought to be recovered as land revenue by invoking the provisions of section 40A of the DDA Act, 1957 which prescribes that any money due to the DDA may be recovered as arrears of land revenue if the recovery thereof is not expressly provided for in any of the provisions of the said Act.
7. I have considered the submissions advanced by learned counsel for the parties.
8. It is apparent that clause 29 itself prescribes the mode of with-holding and maintaining a lien in respect of the amounts with the DDA and such amount can be retained till determination of the claim by the arbitrator or by the competent court. In the present case the claim was adjudicated by the arbitrator but subsequently in terms of the judgment of this court dated 20.8.2001 such claim was held to be outside the purview of the arbitration. Not only this after the said judgment all the amounts payable under the Award to the extent it was made rule of the court were paid by respondent No. 2. Admittedly, no adjudication has taken place in respect of this claim of respondent No. 2 by any competent court after the same was held not to be arbitrable. Since the method is provided in clause 29 of the terms and conditions of the contract itself it was not open to the respondents to have invoked the provisions of the Delhi Development Act and seek to recover the amounts as arrears of land revenue specially in view of the judgment of Supreme Court in State of Punjab's case (supra).
9. In fact, this very question was considered in another writ petition bearing No. 1604/2000 M/s Bharat Furnishing Co. (Regd.) v. The Assistant Collector Grade I & Anr. decided on 11th December 2002. The impugned order therein was quashed.
10. In view of the aforesaid the impugned order 28.5.2002 of respondent No. 1 is hereby quashed leaving the parties to bear their own costs.
11. Writ petition stands disposed of.