Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1538 OF 2022
Municipal Council Gondia ..Appellant (S)
VERSUS
Divi Works & Suppliers, HUF & Ors. ..Respondent (S)
J U D G M E N T
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
to as the original writ petitioners) and has quashed and set
Signature Not Verified
Digitally signed by R
Natarajan
Date: 2022.02.28
16:44:52 IST
Reason:
aside the action on the part of the appellant in cancelling
the work order and by which the High Court has held that
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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
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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
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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,
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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
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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
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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.
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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
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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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