THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.731 of 2007 ORDER: The petitioner was awarded the contract for lining of Kavali canal of Somasila project. An agreement was entered into on 23.03.2005. The value of the work was Rs.36.60 crores. As provided for under the agreement, a sum of Rs.1.83 crores was paid towards mobilization advance for purchase of machinery and mobilization of work force. Through proceedings dated 04.01.2007, the Executive Engineer of the project, 3rd respondent herein required the petitioner to refund the mobilization amount. The ground mentioned by the 3rd respondent was that during the course of inspection of the site, it was found that three items of machinery as against 9 were not found. The petitioner challenges the said proceedings on the ground that the machinery was acquired and only on production of the same and on furnishing of bank guarantee that the mobilization advance was released. He stated that in the month of September, 2005, the respondents themselves required it to shift three items of machinery to another site, on the ground that the water is released. According to them, this would not at all enable the respondents to recover the amount. The respondents filed a detailed counter affidavit. It is stated that the writ petition is not maintainable and the petitioner has to work out its remedies by filing a suit. It is also stated that the machinery is required to be on the site through out the year, even if the work is stopped due to release of water. Heard Sri E.Manohar, learned Senior Counsel appearing for the petitioner and the learned Government Pleader for Irrigation. There is no dispute that the mobiilsation advance was released to the petitioner only on physical production of the machinery and on furnishing bank guarantee. Clause 49 of the agreement provides for mode of recovery of amount. Consequences were also provided, in case the amount is not utilized in purchase of the machinery. The only basis on which the recovery is sought to be made against the petitioner is that during the course of inspection by the Vigilance Team in the month of January 2006, three items were not found. The record discloses that in the month of September of every year, the 3rd respondent requires the petitioner to remove the machinery on the ground that the water is released. The work is resumed only after the crop season. When the Vigilance people verified from the 3rd respondent, he categorically stated that the machinery was shifted to Pulivendula to undertake another work and that no work can be undertaken on the site handed over to the petitioner due to release of water. He has also referred to various clauses in the contract. However, the Government issued directions to the 3rd respondent to recover the mobilisation advance. The lapse alleged against the petitioner, even if true does not entail in recovery of the mobilization advance. It does not at all fit into any of the sub- clauses of clause 49 of the agreement. In case, the respondents were particular that all items of machinery must be present on the site, the simplest thing for them would have been to require the petitioner to do so. By citing an instance of shifting of machinery to another site, when the execution of the work under the contract has become impossible, the respondents cannot recover the mobilization advance indiscriminately. The writ petition is accordingly allowed. There shall be no order as to costs. __________ 09.06.2010 JSU THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.731 of 2007 Date: 09.06.2010 JSU