Municipal Council Gondia vs Divi Works And Suppliers Huf

Municipal Council Gondia ..Appellant (S)

VERSUS

Divi Works & Suppliers, HUF & Ors. ..Respondent (S)

JUDGMENT

M. R. Shah, J.

1. Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 05.01.2021 passed by the High

Court of Judicature at Bombay, Nagpur Bench at Nagpur

in W.P. No.1984 of 2020, by which, the High Court has

allowed the said writ petition preferred by respondent No.1

& 2 herein – original writ petitioners (hereinafter referred

Signature Not Verified to as the original writ petitioners) and has quashed and set Digitally signed by R Natarajan Date: 2022.02.28

aside the action on the part of the appellant in cancelling 16:44:52 IST Reason:

the work order and by which the High Court has held that 1 original writ petitioner No.1 is entitled to make the supply

in pursuance of the work order dated 07.02.2020 to the

appellant herein and consequent to which it will be

entitled to the payments as per the terms of the work

order, original respondent No.2 – Municipal Council,

Gondia through its Chief Officer has preferred the present

appeal.

2. The appellant – Municipal Council is running educational

institutions/schools. There was a requirement for benches,

almirahs and tables in a school run by it. Accordingly,

resolution dated 12.12.2018 came to be passed for

purchasing desks, benches, almirahs and tables. An e­

tender was issued by the appellant vide letter dated

19.09.2019 by virtue of which, bids were invited. That

original writ petitioner No.1 participated in the tender and

was declared the successful bidder and the same was

sanctioned by the Standing Committee of the Municipal

Council. Thereafter, an Agreement came to be executed

between the original writ petitioner No.1 and the appellant,

as a result of which, work order dated 07.02.2020 came to

2 be issued in favour of original writ petitioner No.1.

However, in view of the Covid­19 Pandemic and the

lockdown in force, the Government of Maharashtra

published G.R. dated 04.05.2020 by which it was provided

that owing to Covid 19 restrictions impacting government

finances, non­priority expenditure like in the present case,

should not be incurred. In pursuance of above G.R., the

President of Municipal Council, Gondia vide

communication dated 18.05.2020 informed the Chief

Officer that as the Municipal Council was not having any

income due to ongoing lockdown and most of the schools

were closed due to pandemic, no purchases should be

made and no proposal for the same should be forwarded.

In view of the above, the Chief Officer of the Municipal

Council informed the original writ petitioner No.1 that the

work order had been suspended until further orders. It is

the case on behalf of the appellant that after obtaining the

report from the Education Officer that the original writ

petitioner No.1 had not taken any further steps in regard

to supply of material as per the work order and having

found that since the supply of desks, benches etc., was not

3 urgent in nature during the time of pandemic and

considering the G.R. dated 04.05.2020, the Municipal

Council cancelled the work order till further orders.

2.1 Feeling aggrieved and dissatisfied with the action of the

Municipal Council vide letter dated 07.07.2020

suspending/cancelling the work order till further orders

respondent No.1 & 2 herein – original writ petitioners

preferred W.P. No.1984 of 2020 before the High Court. By

the impugned judgment and order the High Court has set

aside the action of the Municipal Council vide letters dated

18.05.2020 and 07.07.2020 and has held that original writ

petitioner No.1 is entitled to make the supply in pursuance

of the work order dated 07.02.2020 to the Municipal

Council and consequent to which it is entitled to the

payments as per the terms of the work order.

3. Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court, the

Municipal Council has preferred the present appeal.

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4. The present appeal was heard by this Court on

07.02.2022. It was submitted on behalf of the original writ

petitioners that in fact they have already manufactured the

goods which are customized and therefore, if the Municipal

Council is not directed to lift the customized manufactured

goods which the original writ petitioners prepared/got

prepared as per the work order, the original writ

petitioners would suffer a huge loss. This Court passed the

following order on 07.02.2022: ­

“Having heard learned counsel appearing on behalf of the respective parties and considering the fact that as such on the order being placed by the petitioner, the respondent has already manufactured the goods which are customized and during the last two years, there may be some difficulty faced by the petitioner due to COVID­19 pandemic. But, now as the schools have re­ started, we direct the official of the petitioner to visit the place where the manufactured goods are kept and identify the goods which are immediately required, at this stage which shall not be less than 25% of the total quantity manufactured and also make a schedule with respect to the balance goods manufactured and when the goods will be lifted and payment shall be made.

Put up on 21.02.2022.”

5. Shri Gaurav Agrawal, learned counsel appearing on behalf

of the appellant – Municipal Council has submitted that

pursuant to the order passed by this Court on 07.02.2022,

5 the official of the Council visited the premises of

respondent No.1 on 10.02.2022. The officials of the

Council were asked to visit Nagpur which they did on

11.02.2022. On inspection of the goods, it was seen that

the goods do not meet the requirement of the work order

and that they were not prepared for the Council as claimed

by the original writ petitioners before this Court. It is

pointed out that even vide communication dated

18.02.2022 respondent No.1 had admitted that goods were

not available. It is therefore submitted that there are no

manufactured goods available as per the specifications and

the requirements of the Council and as per the work order

and even the manufactured goods are not available till

date, and hence there is no question of accepting any

goods as per the work order as directed by the High Court.

6. Shri R.L. Khapre, learned Senior Advocate appearing on

behalf of the original writ petitioners has tried to explain

the reasons as to why the manufactured goods are not

available. It is submitted that as more than two years have

passed and the goods manufactured with specifications

6 were dismantled for proper storage as well as maintenance

including polishing thereof and were kept in the available

space/storage at Nagpur as it was practically impossible to

store such huge quantity of material for such a long period

due to unavailability of space as well as having regard to

the their maintenance. Therefore, it is requested to grant

some time for reassembling the goods in question for

supply as early as possible.

7. We have heard the learned counsel appearing on behalf of

the respective parties at length.

8. At the outset, it is required to be noted that by the

impugned judgment and order the High Court has issued a

writ of mandamus virtually granting the relief of specific

performance of the contract/work order. From the

impugned judgment and order passed by the High Court it

appears that the High Court was made to believe that the

original writ petitioners had already manufactured the

goods which are customized and as per the specifications

and the work order. However, it is now found that there

7 are no manufactured goods readily available which can be

supplied to the appellant – Council. There are disputed

questions of fact such as whether in fact the goods were

manufactured as per the specifications or not. Nothing was

on record before the High Court that goods were in fact

and actually manufactured by the original writ petitioner

No.1, as per the specifications and the requirements of the

Council and as per the work order. In absence of any

evidence and material on record and there being disputed

questions of facts the High Court ought not to have passed

the impugned judgment and order directing the Council to

continue the work order and accept the goods from the

original writ petitioner No.1 and to make the payments as

per the work order. Even otherwise, no writ of mandamus

could have been issued virtually granting the writ for

specific performance of the contract/work order in a writ

petition under Article 226 of the Constitution of India. The

original writ petitioners ought to have been relegated to file

a civil suit for appropriate relief of losses/damages, if any,

sustained.

8 8.1 Even otherwise on merits also the High Court has erred in

setting aside the communication dated 18.05.2020 and

07.07.2020. The High Court has not at all appreciated the

reasons for suspending/cancelling the work order till

further orders. It is to be noted that the decision dated

07.07.2020 was taken pursuant to the G.R. dated

04.05.2020 which was necessitated due to Covid­19

Pandemic and there was a lockdown and the schools were

closed and that the Council had no sufficient funds. Even

the said decision was taken after calling for a report from

the Education Officer in regard to the tender/work order

issued to the original writ petitioner No.1 and the

Education Officer informed that the original writ petitioner

No.1 has not taken any further steps in regard to supply of

material as per the work order. Therefore, the High Court

has erred in quashing and setting aside the

communication dated 07.02.2020 in exercise of powers

under Article 226 of the Constitution of India.

9. In view of the above and for the reasons stated above the

present appeal succeeds. The impugned judgment and

9 order passed by the High Court in W.P. No.1984/2020 is

quashed and set aside. Consequently, the original writ

petition stands dismissed. However, it is made clear that

this shall not preclude the original writ petitioners in

initiating appropriate proceedings before the civil court for

the damages/losses, if any suffered by them, which may

be considered in accordance with law and on its own

merits and on the basis of the evidence to be led. The

present appeal is accordingly allowed to the aforesaid

extent. No costs.

…………………………………J. (M. R. SHAH)

…………………………………J. (B.V. NAGARATHNA) New Delhi, February 28, 2022.

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