State Of Andhra Pradesh, vs C.Anil Babu

  THE HON'BLE THE CHIEF JUSTICE SATISH CHANDRA SHARMA
                                     AND
             THE HON'BLE SRI JUSTICE N. TUKARAMJI


                   WRIT APPEAL No.286 of 2008


JUDGMENT:     (Per the Hon'ble the Chief Justice Satish Chandra Sharma)




      The present writ appeal has been filed by the State

Government being aggrieved by a common order dated

19.07.2005 passed in W.P.No.23806 of 2000 and batch.

      The facts of the case reveal that the writ petitioners,

who    are     registered          contractors          with       the    State

Government and who were carrying on construction

activities on account of various agreements executed by

the State Government, came up before this Court by

filing writ petitions challenging the legality and validity of

G.O.Ms.No.92, Transport, Roads and Buildings (B.I)

Department, dated 19.05.1998.

      The aforesaid Office Memorandum directed the

Engineer-in-Chief         (R&B)        (A&E)       to     issue      necessary

instructions to all concerned to ensure that 0.25% of

gross amount of bills payable to the contractors is

collected and is remitted to the Institute of Construction

Technology of India at Hyderabad for meeting the

expenditure and running the Institute.                           The learned

Single Judge, after hearing the parties at length, has
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quashed the aforesaid Government Order, as the State

Government has failed to place the source of power which

empowers the State Government to issue such a

Government Order.        The relevant portion of the order

passed by the learned Single Judge is reproduced as

under:-

           "Evidently, G.O.Ms.No.92 Transport, Road and
     Buildings (B.I) Department dated 19.05.1998 is issued
     by the Government permitting the Executive Engineers
     to conclude the supplemental agreements with the
     contractors for works under execution and to be
     entrusted in future basing on the request of Builders
     Association of India to deduct 0.25% of the gross
     amount of bills and to remit the same to the Academy.
     The Engineer-in-Chief, in unequivocal words admitted
     that neither the deduction of 0.25% from the gross
     bills nor incorporation of such a clause in the
     agreement, is traceable to any provision of law and
     such a deduction cannot be made part of the contract.
     In such circumstances, when the Government has no
     power or authority, the impugned G.O. cannot sustain.
     The contention of the learned counsel for the Academy
     i.e., the impleaded respondent that having agreed for

such deduction, are now estopped from contending that such a deduction is not legal, cannot be countenanced for more than one reason. Firstly, as observed earlier such a deduction is not traceable to any law for the time being in force and secondly perhaps the members of the Academy might have agreed for such a resolution to avoid confrontation with the Association. Therefore, this by itself does not take away the rights of the petitioners to challenge the impugned order, more particularly when the said G.O., is issued without any statutory authority.

Consequently, the impugned is liable to be set aside and is accordingly set aside and the writ petitions are allowed. This order does not, however, preclude the National Academy of Construction, Hyderabad, for collecting the contributions made voluntarily by the Members, as it has to meet expenses for the day to day activities and management.

The writ petitions are accordingly allowed. No order as to costs in any of the writ petitions."

In the considered opinion of this Court, a contractor cannot be forced to pay for construction of Institute of Construction Technology of India at Hyderabad. If the State Government wants to construct some building for the State Government, the funds are required to be paid by the State Exchequer and not by private individuals, that too in the absence of any statutory power empowering the State Government to do so. In the present case, there is no statutory provision of law which empowers the State Government to issue such kind of Government Order and direct a private person to pay for construction of a building for the State Government.

Therefore, as the Government Order was issued without any statutory authority, the same has rightly been set aside by the learned Single Judge. This Court also does not find any reason to interfere with the order passed by the learned Single Judge.

The writ appeal is accordingly dismissed. The miscellaneous applications pending, if any, shall stand closed. There shall be no order as to costs.

___________________________ SATISH CHANDRA SHARMA, CJ ___________________________ N. TUKARAMJI, J 30.12.2021 vs