The Government cannot deduct an amount from a contractor's bills and security deposit to make payment to a third party without the contractor's consent, in the absence of a contractual provision authorizing such deduction.

1. - Respondent Sohan Singh, Partner of M/s Sohan Singh Manohar Singh, PWD Contractors. B-Block, Sri Ganganagar was the petitioner in the writ petition filed under Articles 226 and 227 of the Constitution of India The writ petition was filed in grievance to the decision of the PWD and Mining Departments for recovering amount from the security deposit and the outstanding bills of the petitioner respondent to be paid to Radheyshyam, appellant in D.B. Civil Special Appeal No. 665 of 1972, by way of cost of the ballast said to have been excavated by the petitioner-respondent from the area under the mining lease of Radheyshyam. The prayer was for quashing exhibits 9 and 8 dated March 24, 1970 and November 9, 1970 respectively relating to that recovery. The learned Single Judge by his order dated September 14, 1972 allowed the writ petition and quashed the aforesaid two orders. The petitioner was allowed costs from the respondents in the writ petition.

2. Dissatisfied by the aforesaid order, Radheyshyam in whose favour the recovery was ordered by the concerned department filed the Special Appeal, The State of Rajasthan and other respondents in the Writ Petition have also felt aggrieved by the aforesaid order of the learned Single Judge and preferred D.B. Civil Special Appeal No, 718 of 1972.

3. As the two appeals arise out of the same order, we propose to dispose them of by one common judgment.

4. Tenders were invited by the Government of Rajasthan in pursuance of the decision to upgrade and construct Bikaner to Delhi Road. The respondent and other approved Contractors submitted tenders. Respondent's tenders for the two portions of the road, from miles 133 to 143 and 143 to 150, were accepted and the work for the construction was given to him. Two contracts were executed for the purpose in the year 1965. The dates for the completion of the works of the two portions ware January 9, 1967 and May 5, 1967 respectively. The construction work being completed the bills for payment were passed by the Government of Rajasthan. the security amount of the respondent was lying with the Government of Rajasthan. The ballast to be used for the road construction was to be taken from the Dev Road Hills. Short term permit Ex. 1 up to September 30, 1966 was issued by the Mining Department in favour of the respondent for excavating 50.000 c. ft. ballast from Dev Road area. Vide Ex. 2 the short term permit was extended up to November 30, 1966. The respondent paid the royalty for the short term permit to the Mining Department, and obtained the clearance certificate Exs. 3 and 4 with respect to the two portions of the road to be constructed under the contracts.

5. Appellant Radheyshyam had taken a royalty collection contract for the area in which Dev Road hill fell, but for certain reasons the Government cancelled that contract. During the period respondent had taken the ballast from the Dev Road hill, the contract of Radheysham was not in existence. Later on Radheyshyam's contract was revived by the department and he raised objection before the department regarding permission to respondent contractor for excavating ballast from the area which was under his contract. As evident from the documents Exs. 8 and 9, the Government and the representatives of the PWD and Mining Departments took a decision that, from the amount to be paid to the contractor respondent under the contract, the amount payable as royalty to the State Government may be deducted and after calculating the labour charges the rest of the amount may be treated as the profit to the contractor and the same may be distributed between him and Radheyshyam @25% and 75% respectively. Letter Ex. 5 dated March 31, 970 was sent to the respondent conveying the decision of the Government of Rajasthan regarding recovery of the amount to be paid to Radheyshyam, Mining Contractor, from the miscellaneous deposits of the respondents. It was also mentioned in the letter that for the time being only 50% of