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

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 etender 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 be issued in favour of original writ petitioner No.1. However, in view of the Covid-19 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, non-priority 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 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.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.

Reasoning:
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.