THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.64 of 2007 ORDER: The petitioner was awarded the work of investigation, soil exploration, preparation of designs, drawings etc., of Polavaram project (package No.63). On 09.03.2005, an agreement was entered into. The value of the work was around Rs.70.00 crores. As provided for under the agreement, the petitioner was paid a sum of Rs.3.64 crores towards mobilization advance for purchase of machinery and mobilization of labour, on production of relevant documents. The work was commenced and on account of certain developments, the Irrigation Department required the petitioner to stop the work through their proceedings, dated 05.05.2006. A week thereafter, the petitioner was required to furnish the particulars of work force that was mobilized by it and the machinery acquired by it. Through his proceedings dated 06.12.2006, the Superintendent Engineer of the Project, 2nd respondent herein required the petitioner to pay Rs.1.36 crores representing the balance of mobilization amount, on the ground that the petitioner did not utilize the amount for acquiring the machinery. The same is challenged in this writ petition. It is pleaded that the mobilisatin advance was paid only after verification of the invoices and machinery and on furnishing bank guarantee, so much so the recovery was also effected, after the commencement of the work from the periodical bills. The petitioner alleges that at no point of time, it was alleged much less established that it did not acquire the machinery. The respondents filed a counter affidavit stating inter alia that recovery is being effected strictly in accordance with the terms of the contract. Heard Sri E.Manohar, learned senior counsel appearing for the petitioner and the learned Government Pleader for Irrigation. A detailed contract is executed between the parties on award of the contract. Clause (49) of the contract deals with the mobilization advance. An amount representing 10% of the total value of the work is to be paid as mobilization advance, out of which half will be ustilised for mobilistaion of labour and the remaining half for purchasing the machinery. Clause (49.6.1) of the agreement provides for recovery of the mobilization advance in instalments from out of the bills payable to the contractor. The petitioner was paid the mobilization advance on a certification made by the executive engineer about the mobilistaiton of labour and acquisition of machinery. After that payment was made, the work was commenced and certain bills were also paid. The work had to be stopped on specific instructions given by the 2nd respondent through his letter, dated 05.05.2006. By that time, a sum of Rs.2,28 crores was recovered against the mobilistaion advance. The 2nd respondent addressed a letter dated 06.12.2006 requiring the petitioner to pay the balance of Rs.1.36 crores. The sole basis for this is that the petitioner did not utilize the amount for purchase of machinery. The averment made in the letter virtually begs the question. If no machinery was purchased, it is just un-understandable as to how the amount was paid. It is not in dispute that the amount was paid on physical verification of the machinery and on production of bank guarantee. Therefore, it is too late for the 2nd respondent to contend that the petitioner did not acquire the machinery worth Rs.1.36 crores. Even otherwise, the verification as to acquisition of machinery ought to have been done at the commencement of the work. The allegation as to the lapse on the part of the petitioner came six months after it was asked to stop the work. Viewed from any angle, the impugned proceedings cannot be sustained. Therefore, the writ petition is allowed as prayed for. It is however directed that the recovery of the left over amount of the mobilization advance shall await the further arrangement, that may take place between the petitioner and the respondents in the light of stoppage of the work half way through. There shall be no order as to costs. __________ 09.06.2010 JSU THE HON'BLE MR JUSTICE L.NARASIMHA REDDY Writ Petition No.64 of 2007 Date: 09.06.2010 JSU