MUNICIPAL COUNCIL GONDIA versus DIVI WORKS & SUPPLIERS, HUF & ORS.

Citation: [2022] 2 S.C.R. 426 · Decided: 28-02-2022 · Supreme Court of India · Bench: M.R. SHAH · Disposal: Appeal(s) allowed

Judgment (excerpt)

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SUPREME COURT REPORTS
[2022] 2 S.C.R.
[2022] 2 S.C.R. 426
426
MUNICIPAL COUNCIL GONDIA
v.
DIVI WORKS & SUPPLIERS, HUF & ORS.
(Civil Appeal No. 1538 of 2022)
FEBRUARY 28, 2022
[M. R. SHAH AND B. V. NAGARATHNA, JJ.]
Constitution of India: Art. 226 – Appellant-Municipal Council
is running educational institutions – A resolution was passed for
purchasing school furniture – Original writ petitioner no. 1
(respondent No.1) was declared successful bidder and work order
was issued in its favour – However, on outbreak of Covid-19
pandemic and lockdown in force, the State Government published
G.R. dated 4.5.2020 providing that owing to Covid-19 restrictions
impacting government finances, non-priority expenditure should not
be incurred – Pursuant thereto, Municipal Council informed
respondent No.1 regarding suspension of work order until further
orders – Municipal Council cancelled the work order after obtaining
report from the Education officer that respondent No.1 had not taken
any further steps in regard to supply of furniture as per the work
order and that since the supply of furniture was not urgent in nature
– On writ petition, High Court held that respondent No.1 is entitled
to make the supply in pursuance of the work order – Hence the
instant appeal – Respondent No.1 submitted that they have already
manufactured the goods which are customized and therefore, if the
Municipal Council is not directed to lift the goods prepared/got
prepared as per the work order, it would suffer a huge loss – This
Court directed on 7.2.2022 that as the schools have restarted, the
official of the appellant would 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 – On inspection of the goods, the official
found that the goods did not meet the requirement of the work order
– Even respondent No.1 had admitted that goods were not available
– Held: 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 respondent No.1, as per the
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specifications and the requirements of the Council and as per the
work order – In absence of any evidence on record and there being
disputed questions of facts, High Court ought not to have passed
the impugned judgment directing the Council to continue the work
order and accept the goods from respondent 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 Art.226 of the Constitution of India – Respondent No.1 ought
to have been relegated to file a civil suit for appropriate relief of
losses/damages, if any, sustained – Writ jurisdiction.
Allowing the appeal, the Court
HELD: By the impugned judgment, 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, 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 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,
sust

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