Case: Municipal Council Gondia Vs. Divi Works &amp; Suppliers, HUF &amp; Ors

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. 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 COVID-19 pandemic. But, now as the schools have restarted, 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, 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 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 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. 8.1 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 Covid-19 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]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 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.8.1 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 Covid-19 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.