Andhra Pradesh High Court - Amravati

Common Order vs Secretary To Government And ... on 21 October, 2022

 HON'BLE SRI JUSTICE VENKATESWARLU NIMMAGADDA

     WRIT PETITION Nos. 29574, 29575, 29587, 29591, 29603, 29608,
      29615, 29689, 29699, 30882, 30958, 33833, 33838, 33860, 33861,
                         33865 and 33839 of 2015

COMMON ORDER:

         Since all these writ petitions are identical in nature and as the

issues involved in these cases are also similar, this Court deems it

appropriate to dispose of all these writ petitions by way of this

common order.


2.       Heard learned counsel for the petitioners and learned

Government Pleader for Irrigation appearing for the respondents.

3. For the sake of convenience and to avoid ambiguity in the

discussion, the facts in W.P.No.29574 of 2015 are taken into

consideration as under:

i) This writ petition is filed to declare the action of respondent

Nos.2 and 3 in not considering the representation of the petitioner

dated 14.08.2015 for payment of withhold amount in respect of the

work done by the petitioner i.e., temporary protection to close the

breach on Appanna Tank, near Vedurupaka village, Gokavaram

Mandal, East Godavari District, as illegal and arbitrary.

NV,J W.P.No.29574 of 2015 & batch

ii) It is the case of the petitioner that several tanks in

Korukonda and Gokavaram Mandals of East Godavari District

were breached due to Neelam Cyclone during the year 2012. All

the minor and major irrigation tanks and canal bunds were

damaged/breached and the storage water was flowing from all the

breached/damaged tanks. Then, the respondent authorities have

identified 243 works in respect of all the tanks and canals in these

two Mandals which are to be arrested on war footing. The 2nd

respondent due to urgency and to protect the storage of water in all

the tanks entrusted works on nomination basis to close the breaches

on emergency basis. The petitioner was allotted some of the

works, one of the works is to provide temporary protection to close

the breaches to the Appanna Tank, Vedurupaka Village,

Gokavaram Mandal, East Godavari District vide agreement

No.389/2012-13 dated 22.02.2013 with an estimated cost of the

work is Rs.1,50,000/-. The petitioner had completed the work

within the stipulated time and the same was recorded in the

measurements book maintained by the Assistant Engineer,

Godavari Central Division, Dowlaiswaram. Though respondent

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Nos.2 and 3 were satisfied with the work executed by the

petitioner, the 2nd respondent withhold an amount of Rs.43,606/- on

the ground that an enquiry by the Vigilance Department is pending.

Then, the petitioner submitted a representation dated 14.08.2015 to

respondent Nos.2 and 3 seeking payment of the withhold amount

along with EMD. As there was no positive response from the

respondents, the petitioner filed the present writ petition.

iii) The 2nd respondent filed a counter affidavit admitting the

entrustment of 243 works to various contractors to close the

breaches of tanks within 45 days and the works were completed in

the year 2012 itself. It is stated that on a complaint put forth by

one Madineedi Bala Gangadhara Chowdary and others, the

Vigilance & Enforcement Department conducted a discreet enquiry

regarding 75 works out of 243 works and submitted a report stating

that some fraud was taken place and a proposal was made to

recover the amounts from the contractors. The 2nd respondent was

instructed to conduct an enquiry on the remaining 168 works for

finalising the payment of bills to the contractors. Basing on the

report of the Vigilance & Enforcement Department, the

NV,J W.P.No.29574 of 2015 & batch

Government issued a Memo dated 16.07.2014 instructing the

concerned authority to recover the amounts from the contractors.

The balance 168 works cannot be inspected at this stage and it is

highly impossible to establish whether the works were executed or

not and about the quality of works, because all the works are urgent

in nature and time bounded and subsequent to Neelam Cyclone in

the year 2012, many cyclones caused much loss to the same

irrigation sources and repairs were also carried out. In view of the

above ground position, a report was submitted to the higher

officials for further instructions/permission with regard to the

release of withhold amounts to the contractors. The orders are

awaited and soon after receipt of further instructions, action will be

taken.

4. The facts in all the writ petitions are similar and the 2 nd

respondent filed counter affidavits in all the writ petitions on

similar lines. Hence, it is not necessary to discuss again the

averments in the other writ affidavits as well as in the other counter

affidavits.

NV,J W.P.No.29574 of 2015 & batch

5. Learned counsel for the petitioners would contend that the

entire works were completed by the petitioners as per the terms of

the agreement and it was admitted by the respondent authorities.

However, the respondent authorities withhold the amounts due to

the petitioners only on the ground that an enquiry by the Vigilance

Department in respect of other works is pending. The learned

counsel would also contend that without conducting any enquiry or

inspection, the amounts payable to the petitioners cannot be

withheld for a longer period. The learned counsel would further

contend that non-payment of the withhold amounts by the

respondents even after lapse of nearly a decade after completion of

the works, is nothing but depriving the petitioners legitimate

entitlement of the balance amounts and it reveals the dereliction of

duties and negligence on the part of the respondents. The learned

counsel would also contend that such non-payment of money is

clearly arbitrary and high-handed requiring the interference of this

Court. The learned counsel relied on the judgment of a learned

Single Judge of this Court in Rayapureddy Srinivasa Rao and

others vs. Government of Andhra Pradesh, rep. by its Principal

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Secretary to Government and others and batch1 wherein it is held

that non-payment of dues is arbitrary and that such dues need to be

cleared by the respondents at the earliest. He, therefore, prays to

allow the writ petitions by awarding interest for the fault of the

respondents.

6. Learned Government Pleader for Irrigation appearing for the

respondents would submit that the respondent authorities received

complaints against the works allotted to the contractors alleging

that some works were not at all grounded and some works were

stopped in the middle. In view of the same, the 1 st respondent took

a decision to conduct an enquiry by the Vigilance and Enforcement

Department. Pursuant thereto, the Vigilance and Enforcement

Department conducted an enquiry in respect of 75 works out of 243

works. As per the enquiry report dated 30.10.2013, in respect of

some of the works, excess amounts were paid and charges were

recorded more than the actual charges and it was suggested to

recover an amount of Rs.68,68,492/- towards excess quantities of

sand bags, casuarinas poles and casuarinas beams and

2021 SCC Online AP 3084

NV,J W.P.No.29574 of 2015 & batch

Rs.12,58,810/- towards usage of earth filled bags instead of sand

filled bags from the contractors concerned. In the said report, it is

also recommended to conduct an enquiry in respect of the

remaining 168 works. Finally, the 2nd respondent addressed a letter

dated 10.11.2015 to the 3rd respondent stating that the balance 168

works cannot be inspected at this stage and it is highly impossible

to establish whether the works were executed or not and about the

quality of works, because all the works are urgent in nature and

time bounded and subsequent to Neelam Cyclone in the year 2012,

many cyclones caused much loss to the same irrigation sources and

repairs were also carried out. It is also stated that all the bills were

paid to an extent of 70% and the balance amounts of the bills were

withheld by the then Executive Engineer, Godavari Central

Division, Dowlaiswaram. Accordingly, the 2nd respondent

requested the 3rd respondent to obtain instructions from the higher

authorities and take further action to release the withheld amounts

to the respective contractors.

7. The admitted facts are that the works were entrusted by the

2nd respondent to the petitioners and to that effect, they entered into

NV,J W.P.No.29574 of 2015 & batch

agreements and the works were completed within the stipulated

period of 45 days. All the bills were paid only to an extent of 70%

and the balance amounts of the bills were withheld by the 2nd

respondent due to pendency of vigilance enquiry. Out of 243

works, in respect of 75 works, enquiry was conducted and as per

the enquiry report of the Vigilance and Enforcement Department

dated 30.10.2013, in respect of the remaining 168 works, a

recommendation was made for enquiry.

8. Further, in his letter dated 10.11.2015 addressed to the 3rd

respondent, the 2nd respondent stated that the balance 168 works

cannot be inspected and it is highly impossible to establish whether

the works were executed or not at this stage, because all the works

are urgent in nature and time bounded and subsequent to Neelam

Cyclone in the year 2012, many cyclones caused much loss to the

irrigation sources and repairs were also carried out.

9. In Rayapureddy Srinivasa Rao (1 supra), a learned Single

Judge of this Court held as under:

NV,J W.P.No.29574 of 2015 & batch

"13) The Hon‟ble Apex Court in ABL International Limited v. Export Credit Guarantee Corpn. of India Ltd ((2004) 3 SCC 553) has observed thus:

"19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769], this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact".

While summing up the conclusions in the aforesaid case, the Apex Court concluded thus:

"27. From the above discussion of ours, the following legal principles emerge as to the maintainability of a writ petition:

(a) In an appropriate case, a writ petition as against a State or an instrumentality of a State arising out of a contractual obligation is maintainable.

NV,J W.P.No.29574 of 2015 & batch

(b) Merely because some disputed questions of fact arise for consideration, same cannot be a ground to refuse to entertain a writ petition in all cases as a matter of rule.

14) A Division Bench of the High Court of Telangana at Hyderabad, by following the law declared by the Apex Court in ABL International Limited and Popatrao Vyankatrao Patil (2020 SCC Online SC 291), rejected the contention of the respondents that the Writ Petition was not maintainable in contractual matters.

15) The High Court of Andhra Pradesh in Mutyala Veera Venkata Satyanarayana vs. State of Andhra Pradesh (2021 SCC Online AP 1410) at Amaravati while dealing with the batch of writ petitions filed for claiming payments for supplying materials to the Panchayat under the Mahatma Gandhi National Rural Employment Guarantee Act, 2005, this Court held as under:

"Therefore, in view of the settled law and keeping in mind the purpose for which the legislation is enacted, this Court has to hold that there is a public element involved in this and that it is not a pure case of the State entering into a commercial contract.

This Court further held that apart from this when State or State instrumentalities act in an arbitrary manner or failed to

NV,J W.P.No.29574 of 2015 & batch

act within time the Writ Court does have jurisdiction to entertain the matter."

52) In Madras Port Trust v. Hymanshu International ((1979) 4 SCC 176) , the Apex Court held:

"2. ... It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a 5 [(1979) 4 SCC 176] 41 public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable."

55) In Dilbagh Rai Jarry v. Union of India ((1974) 3 SCC 554: 1974 SCC (L&S) 89) , the Apex Court extracted with approval the following statement [from an earlier decision of the Kerala High Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of India, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ 723], AIR pp. 107-08, para 5)]: (SCC p. 562, para 25)

"25. ... „5. ... The State, under our Constitution, undertakes economic activities in a vast and widening public sector and

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inevitably gets involved in disputes with private individuals. But it must be remembered that the State is no ordinary party trying to win a case against one of its own citizens by hook or by crook; for the State's interest is to meet honest claims, vindicate a substantial defence and never to score a technical point or overreach a weaker party to avoid a just liability or secure an unfair advantage, simply because legal devices provide such an opportunity. The State is a virtuous litigant and looks with unconcern on immoral forensic successes so that if on the merits the case is weak, Government shows a willingness to settle the dispute regardless of prestige and other lesser motivations which move private parties to fight in court. The layout on litigation costs and executive time by the State and its agencies is so staggering these days because of the large amount of litigation in which it is involved that a positive and wholesome policy of cutting back on the volume of law suits by the twin methods of not being tempted into forensic showdowns where a reasonable adjustment is feasible and ever offering to extinguish a pending proceeding on just terms, giving the legal mentors of Government some initiative and authority in this behalf. I am not indulging in any judicial homily but only echoing the dynamic national policy on State litigation evolved at a Conference of Law Ministers of India way back in 1957."

56) As per the contention of the State Government, payments are not made due to pendency of vigilance enquiry against the works executed between 01.10.2018 to 31.05.2019. Though

NV,J W.P.No.29574 of 2015 & batch

the State Government Officers failed to place correct information for all these days about the status of the alleged vigilance enquiry, now it is clear by the affidavit filed by the 10th respondent (Central Government) and the statement made by the Chief Secretary, Government of Andhra Pradesh, before the Court that the said vigilance enquiry is concluded on 26.10.2020. The State Government at-least after completion of the vigilance enquiry ought to have made payments to the petitioners by clearing their bills. But, without making payments, even after filing of the writ petitions before the Court, the State Government contended that payments could not be made due to pendency of the enquiry against the petitioners."

10. In view of the above factual background and the citation

relied on by the learned counsel for the petitioners, this Court is of

the opinion that withholding of the balance amounts by the

respondents after execution of the works and after lapse of a

decade without there being any valid reasons, is illegal and

arbitrary and the remaining amounts as admitted by the

respondents shall be paid along with interest and EMD to the

petitioners and all the writ petitions are liable to be allowed.

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11. Accordingly, all the writ petitions are allowed and the

respondents are directed to release the withhold amounts to the

petitioners along with EMD and interest @ 9% p.a. from the date