Andhra Pradesh High Court - Amravati

The District Collector And Chairman ... vs M/S. Soma Agencies, A Registered ... on 19 October, 2024

APHC010964202017                                                        Bench Sr.No:-6
                   IN THE HIGH COURT OF ANDHRA PRADESH
                                                                            [3483]
                                AT AMARAVATI

                        WRIT APPEAL NO: 1984 of 2017



The District Collector And Chairman Sarva Siksha Abhiyan and ...Appellant(s)
Others

     Vs.

M/s Soma Agencies, a registered partnership firm                       ...Respondent


                                     **********

Advocate(s) for Appellant(s): D. Yathindra Dev

Advocate for Respondent: -

CORAM : THE CHIEF JUSTICE DHIRAJ SINGH THAKUR SRI JUSTICE RAVI CHEEMALAPATI

DATE : 19th October 2024

PER DHIRAJ SINGH THAKUR, CJ (Oral):

The present writ appeal has been preferred against the judgment and

order, dated 11.09.2017, passed in W.P. No.19735 of 2007 whereby the writ

was allowed and directions were issued to the appellants herein to pay the

balance amount of Rs.40 lakhs to the petitioner/respondent herein along with

interest at the rate of 12.5% p.a. from 02.08.2007 till realization.

Briefly stated, the material facts are as under:

2. Bids were invited from eligible candidate by the appellants under the

Sarva Siksha Abhiyan for supply of teaching and learning equipment to 519

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new primary schools and upper primary sections in high schools in

Vizianagaram District. The petitioner was declared as L1 and thus a Work

Order was issued in favour of the petitioner requiring it to supply the said

teaching and learning equipment.

3. The claim of the petitioner is that it had supplied equipment valued at

Rs.80 lakhs. The case of the petitioner further was that orders for equipment

worth Rs.30 lakhs were also placed for which consignments were dispatched,

however, delivery was not taken without any reasonable cause of justification.

By virtue of proceedings, dated 22.09.2004, the State Project Director

suspended the orders placed for purchase with the petitioner.

4. Challenging the order of suspension of supplies, dated 22.09.2004, the

petitioner preferred the writ petition in which a mandamus was also sought to

the appellants to restore the supply as also to make the payment for the

equipment already supplied.

By virtue of the judgment and order impugned, the writ petition was

allowed with a direction to the appellants to pay the balance amount of Rs.40

lakhs representing the balance amount for the material supplied along with

interest at the rate of 12.5% per annum.

5. Learned counsel for the appellants submits that the aforementioned

judgment and order impugned is unsustainable inasmuch as the view

expressed by the learned single Judge that balance payment of Rs.40 lakhs

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was admittedly payable to the petitioner was totally without any basis, as there

was no such admission or acceptance to that extent made by the appellants.

On the other hand, it is stated that the clear case setup by the appellants

before the learned single Judge in their counter-affidavit was that money was

payable to the petitioner for supplies made subject to verification regarding

quality of the material so supplied. Reference in this regard was made to

memo, dated 16.09.2005, issued by the Government of Andhra Pradesh,

Department of Education, wherein inter alia it was observed as under:

"3. Government have examined the issue in detail and felt that having placed the orders and received the materials, it is not appropriate to stop the payment to M/s. Soma Agency, Anakapalli to the extent of material supplied to DPEP, Vizianagaram subject to the verification of quality. Accordingly, Government hereby direct the State Project Director, DPEP, Hyderabad to arrange payments of the amounts due to M/s. Soma Agencies, Anakapalli to the extent of the material already supplied to DPEP, Vizianagaram subject to the verification of the quality as per the prescribed specifications of the District Purchase Committee."

6. The case of the appellants is that pursuant to the instructions received

from the Government vide memo supra, a Committee was constituted which

verified the material, which was supplied as also the material which was

stored in the godown and concluded that an amount of Rs.9,178/- worth of

material sent to the school only tallied with the specifications as were

prescribed as against the unit value of Rs.35,014/-.

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7. It would be worthwhile to reproduce the table, which has been prepared

and reflected in the counter-affidavit, which according to the respondents,

reflects the entitlement of the petitioner.

1. Cost of material supplied by the petitioner to school point (34 items to 220 schools) (Rs.6838 x 220 = Rs.15,04,360/- Schools) 2 Cost of Material kept in godown (34 items for 220 = Rs.59,33,240/-

schools + 36 items for 450 schools) Total cost of material (supplied to school point + kept = Rs.74,37,600/-

in godown) 3 Less: Cost of material not tallied with specifications = Rs.33,07,500/-

given in the Purchase Order (Rs.7350 x 450 units) 4 Cost of material supplied to School Point and kept in godown which was tallied with the specifications in the = Rs.41,30,100/- Purchase Order 5 Less: 23% discount on the cost of material offered by the petitioners at the time of finalization of tenders = Rs.9,49,923/- (23% on Rs.41,30,100/-) 6 Actual cost of material supplied to School point and = Rs.31,80,177/-

kept in godown by the petitioner 7 Payment already made to the petitioner towards cost of material supplied to school point and kept in = Rs.31,80,177/-

godown (34 items of chemicals and acids for 230 schools and 28 other items for 450 schools)

8. The stand of the appellants is that an amount of Rs.31,80,177/- alone

was due and payable to the petitioner, which has since been paid for the

goods which were found to be in accordance with the specifications

prescribed, and that material worth Rs.33,07,500/-, which was stored in the

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godowns and other material having not been accepted was to be taken back

by the petitioner for which no payment was due and payable.

There is no representation on behalf of the respondents in the present

case despite the fact that they had been served in these appeal proceedings.

Learned counsel for the appellants would submit that since the Writ

Petition involved disputed questions of fact, the petition ought to have been

dismissed rather than being allowed and that a liability of Rs.40 lakhs has

been created on the appellants despite the fact that the appellants were not

under any such obligation to pay.

9. On a perusal of the judgment and order impugned, it can be seen that

writ petition was allowed primarily on the ground that there was a resolution,

dated 30.09.2007, passed by the President of District Review Committee,

Vizianagram, disclosing the decision to pay an amount of Rs.16,528/- per

school aggregating to 450 schools. The said resolution has not been traced

from the record.

In any case, the resolution, dated 30.09.2007, could not have

superseded the memo issued by the Government, dated 16.09.2005, wherein

the Government had, in principle, taken a decision that the petitioner be paid

for the material supplied subject to verification of quality as per specifications.

The verification process conducted by the appellants suggests that the

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material supplied to some extent was not as per specifications and therefore,

the case of the petitioner for payment was rejected.

10. In our opinion, it would be difficult for the writ Court in exercise of writ

jurisdiction to issue writ of mandamus directing the payment of money for

material and supplies made in the face of the report of the verification

committee, which held the material supplied is not on par with the

specifications. This would also be contrary to the decision of the Government,

dated 16.09.2005.

Moreover, the specific case of the appellants in the counter-affidavit and

the additional counter-affidavit filed by them before the learned single Judge

was that an amount of Rs.31,80,177/- was payable to the petitioner and

nothing more. A direction to pay the balance amount of Rs.40 lakhs would

have been justified only if there was admission with regard to the liability of the

respondents before the writ Court to pay to the petitioner, which is

conspicuously absent in the present case.

11. In our opinion, the writ petition ought not to have been allowed for the

reason that there was no clear admission by the respondents in the Writ

Petition regarding their liability to pay in the light of the material on record. In

the ordinary course, the matter should have been relegated to a civil Court as

evidence would be required whether the material supplied was as per

specifications or not.

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It has been repeatedly reiterated that Courts should be loath in

entertaining Writ Petitions in which disputed questions of fact, which require

adducing of evidence, are involved. Reference in this regard can be made to

Punjab National Bank v. Atmanand Singh1. It was held:

"22. We restate the above position that when the petition raises questions of fact of complex nature, such as in the present case, which may for their determination require oral and documentary evidence to be produced and proved by the party concerned and also because the relief sought is merely for ordering a refund of money, the High Court should be loath in entertaining such writ petition and instead must relegate the parties to remedy of a civil suit. Had it been a case where material facts referred to in the writ petition are admitted facts or indisputable facts, the High Court may be justified in examining the claim of the writ petitioner on its own merits in accordance with law."

In M.P. Power Management Co. Ltd. v. Sky Power Southeast Solar

India (P) Ltd2 case, it was held that while there is no prohibition in the writ

Courts in deciding even disputed questions of fact, particularly when the

dispute surrounds demystifying of documents only, yet the Court may relegate

a party to avail the remedy of a civil suit where it would be first necessary to

resolve the disputed questions of fact as a prelude to the grant of relief

sought.

12. Be that as it may, for the reasons mentioned above, since disputed

questions of fact are involved in the present case, which may require oral and

documentary evidence to be adduced, it would be appropriate for the

(2020) 6 SCC 256

(2023) 2 SCC 703