Telangana High Court
M/S. Sri Sai Engineering Services, vs The Government Of Andhra Pradesh, Rep By ... on 13 May, 2021
Author: A.Abhishek Reddy
Bench: A.Abhishek Reddy
THE HON'BLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION Nos.30997 of 2013 and 13231 of 2016
COMMON ORDER:
Since the grievance of the petitioner in both these writ petition is similar in nature, they are taken up together and being disposed of by this common order.
W.P.No.30997 of 2013 is filed questioning the inaction of respondent No.2 in releasing the final bill amount payable to the petitioner for the works executed as per the agreement No.26/2010-11, dated 26.11.2010 in spite of the legal notice dated 20.04.2013 and representation dated 10.09.2013, as illegal and arbitrary.
W.P.No.13231 of 2016 is filed seeking to declare the inaction of the respondents in releasing the payment of Rs.15,49,609/- along with interest for the works completed by the petitioner Firm, despite the orders passed in W.P.No.32989 of 2012 and representations and the legal notices dated 20.04.2013, 19.10.2015 and 11.01.2016, as illegal and arbitrary and consequently to direct the respondents to make payment of Rs.15,49,609/- along with interest, as illegal and arbitrary.
The grievance of the petitioner in W.P.No.30997 of 2013 is that the petitioner Firm entered into agreement No.26/2010-11 dated 26.11.2010 with the respondent No.2-Paloncha Municipality for execution of works of providing all electrical installations, water supply and sanitation for new municipal office building of Paloncha Municipality with an estimated cost of Rs.44,50,000/-. As per the terms and conditions of the contract, the petitioner had executed 2 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 works as per the schedule and the same were being recorded in M-Book by the concerned authorities. As per the works carried out, the petitioner had claimed bill for an amount of Rs.13,61,559/- in the month of January, 2011, and Rs.3,27,343/- and Rs.4,73,187/- in the months of November, 2011 and the payments were also made by respondent No.2 accordingly. Thereafter, the petitioner had also completed the remaining works, as per the schedule, in the months of February and March, 2012 and the same were also recorded in M-Book and a check measurement of the bill was also prepared by the Deputy Executive Engineer for an amount of Rs.8,62,863/- (gross) and final bill was prepared for an amount of Rs.6,98,042/- (net) after deducting statutory deductions. However, even though there is no dispute with regard to execution of work done by the petitioner, the final bill amount was not paid to the petitioner. Petitioner got issued a legal notice dated 20.04.2013 and also submitted a written representation on 10.09.2013 demanding to pay the amount along with interest. However, no action has been taken thereon. Hence, the petitioner filed W.P.No.30997 of 2013.
The grievance of the petitioner in W.P.No.13231 of 2016 is that one S.Subba Reddy, a contractor, has entered into an agreement with respondent Municipality on 20.12.2007. Said Subba Reddy has entrusted the work to the petitioner Firm under the sub-contract on 18.02.2008 and the same was also ratified by the Municipality. Accordingly, the petitioner Firm had completed the works and submitted a representation on 23.07.2012 to settle the bills. Thereafter, due to inauguration of the Municipality building by the then Chief Minister of the Andhra Pradesh, the 3 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 petitioner, based on the written permission of the Special officer- cum-Revenue Divisional Officer, Paloncha, the petitioner has undertaken and completed certain urgent works. Thereafter, the petitioner has requested the authorities both orally and in writing to accord administrative sanction for an amount of Rs.20.40 lakhs and make payment to the petitioner. Questioning the inaction of the respondents, the petitioner has filed W.P.No.32989 of 2012 and the same was disposed of by this Court on 19.10.2012 directing the Special Officer-cum-Revenue Divisional Officer, Paloncha, to take necessary action on the representations given by the petitioner on 23.07.2012 and 11.10.2012 and communicate a copy of the order to the petitioner. As the said order was not complied with, the petitioner has filed Contempt Case vide C.C. No.2100 of 2012. At that stage, the Commissioner of the Municipality has filed a counter stating that as per the survey report dated 22.03.2013 the works carried out by the petitioner were assessed at Rs.5,89,519/- and as administrative approval was not obtained, the petitioner was entitled only for 60% thereof and accordingly the petitioner was paid Rs.3,53,711/-. Based on the above averments, the Contempt Case was closed leaving it open to the petitioner to pursue his remedies. In view of the same, the petitioner got issued legal notice by way of representation dated 20.04.2013 giving all the details in support of his claim for the remaining amount of Rs.15,49,601/- (Rs.9,59,601/- towards execution of Civil and electrical works and Rs.5,90,000/- for providing protocol amenities). Thereafter also, the petitioner got issued legal notice and submitted representations to the authorities. However, no action has been taken thereon. Hence, left with no other option, the petitioner has filed W.P.No.13231 of 2016.
4 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 In W.P.No.30997 of 2013, respondent No.2 had filed a counter affidavit admitting the contract entered with the petitioner and stating that after filing of the writ petition, the respondent No.2 paid the final bill amount of Rs.5,00,042/- to the petitioner vide cheque No.01208 dated 05.02.2014 drawn in State Bank of Hyderabad, Kothagudem (Main) Branch. Hence, it is prayed to dismiss W.P.No.30997 of 2013.
Insofar as W.P.No.13231 of 2016 is concerned, the respondent No.2 had filed a counter affidavit admitting the contract entered with one Subba Reddy and execution of works by the petitioner Firm, however, disputing the quantum of amount payable to the petitioner. It is specifically stated that pursuant to the orders passed by this Court in the Contempt Case, the respondent No.2 has constituted a committee, which caused an enquiry into the matter and submitted its report arriving the value of the work done by the petitioner to the tune of Rs.5,89,519/-. Based on the said report and in view of the fact that the administrative approval was not obtained, only 60% of the said amount i.e. Rs.3,53,711/- was paid to the petitioner. It is further specifically stated as soon as the Post Facto approval is obtained, the petitioner will be paid the balance amount of Rs.2,35,808/-. Hence, it is prayed to dismiss the writ petition.
Heard the learned counsel for the petitioner, the learned Government Pleader for Municipal Administration and Urban Development, and Sri N.Praveen Kumar, the learned Standing Counsel for Municipalities. Perused the record.
5 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 Insofar as W.P.No.30997 of 2013 is concerned, it is the specific case of the respondent Municipality that as per the final bill prepared by the Deputy Executive Engineer, the amount arrived was Rs.6,98,042/- after deducting the amounts towards VAT, IT etc. In fact, the check measurement of the bill was prepared by the Deputy Executive Engineer for an amount of Rs.8,97,378/- and the final bill was prepared for an amount of Rs.5,00,042/- after deducting the statutory deductions such as VAT, IT, and advance amount of Rs.3.48 lakhs. The respondent No.2 paid the final bill amount of Rs.5,00,042/- to the petitioner vide cheque No.01208 dated 05.02.2014 drawn on State Bank of Hyderabad, Kothagudem (Main) Branch through Treasury fund of Municipal General Fund and that the respondent No.2 is not liable to pay any further amount to the petitioner, much less the amount claimed by him.
In view of the specific averments made by the respondent No.2 that the final bill amount is paid as per the bill prepared by the Deputy Executive Engineer, and the same is not denied by the petitioner by way of a reply to the counter filed by respondent No.2, this Court does not find any merit in this writ petition and the same is dismissed accordingly. However, if the petitioner is aggrieved by the quantum of bill prepared, he is free to approach the authorities concerned bringing to their notice the discrepancies in the bill amount arrived by the Deputy Executive Engineer.
Insofar as W.P.No.13231 of 2016 is concerned, a perusal of the record shows that the petitioner has been entrusted with the works consisting of (1) Reconstruction of collapsed compound wall on back side of new Municipal building and erected of main gates to the new Municipal office building, Paloncha, Khammam District 6 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 for an amount of Rs.14.50 Lakhs, (2) Supply and fixing of Inauguration flakes to new Municipal Office building on the occasion of building inauguration by Hon'ble chief Minister of A.P., Rs.1.95 Lakhs, (3) Providing of Tent House and other Misc., amenities in view of building inauguration by the Hon'ble Chief Minister of A.P. Rs.1.95 Lakhs, and (4) Providing of furniture, AC Unit, Steel letters, Banners, office chairs, etc., on the occasion of building inauguration by the Hon'ble Chief Minister of A.P., Rs.2.00 Lakhs. The total estimated value of the abovesaid works comes to Rs.20.40 Lakhs. Insofar as first work amounting to Rs.14.50 lakhs is concerned, the office note of the respondent No.2, which has been approved by the Municipal Assistant Engineer, Municipal Engineer, Commissioner as well as the Special Officer, shows that the petitioner was entrusted with the work of (1) providing of main entrance gate (new) with sliding type, (2) Minor repairs to the existing compound wall (without rising) and painting to the existing compound wall, (3) Construction of damaged compound wall towards South side duly dismantling the existing structure in R.D.O., Office premises with columns and Plinth Beam, (4) Laying of approach road with GSB from main entrance gate to portico, (5) Kerbing extension outside the compound wall, besides other works. Even the work requirement signed by the Municipal Engineer, Paloncha Municipality, shows that the petitioner has been entrusted with carrying out the works for the inauguration of the new Municipal office in Paloncha, by the then Hon'ble Chief Minister, on 11.08.2012. Thereafter, a detail- cum-abstract estimate of the work signed by the Municipal Assistant Engineer and Municipal Engineer also arrived at the figure of Rs.14.50 lakhs. Further, in the Resolution signed by the 7 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 Municipal Assistant Engineer, Deputy Engineer, the Commissioner as well as the Special Officer, it is clearly mentioned that as per the approval of the Special Officer, Paloncha Municipality, and as per the inspection of the then Engineer, the petitioner was entrusted with the above works and he had executed the same including some other work arrangements, as per the cited requirements and instructions. The Resolution speaks of the estimated cost of the total works at Rs.20.40 lakhs and the same was submitted for according administrative sanction on 03.08.2012. But, due to the non-availability of the Municipal Commissioner, Paloncha, during the period from 01.08.2012 to 09.08.2012, the file was not processed for further action. When the amounts due to the petitioner were not paid, he has approached this Court by way of filing a writ petition being W.P.No.32989 of 2012 for releasing the said amounts and this Court had disposed of the said writ petition directing the official respondents to consider the representation made by the petitioner for release of the amounts and pass necessary orders thereon. Pursuant to the orders passed by this Court and based on the inspection, the value of the works done by the petitioner was arrived at Rs.5,89,519/-, out of which an amount of Rs.3,53,711/- being 60% of the amount arrived, was paid to the petitioner. In the said note also, it is mentioned that three works viz., (1) Supply and fixing of Inauguration Flakes to New Municipal Office Building on the occasion of Building Inauguration by the Hon'ble chief Minister of A.P. on 09.08.2012 - Rs.1.95 Lakhs, (2) Providing Tent House and other misc. amenities in view of Building Inauguration by the Hon'ble Chief Minister of A.P. on 09.08.2012 - Rs.1.95 Lakhs, (3) Providing of Furniture, A.C. Unit, Steel Letters, Banners, etc. on the occasion of Building 8 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 Inauguration by the Hon'ble Chief Minister of A.P. on 09.08.2012 - Rs.2.00 Lakhs were sought for according Administrative Sanction. Insofar as other works amounting to Rs.5.90 lakhs is concerned, there is no denial of the fact that the petitioner has supplied necessary materials as mentioned above, for which, he has submitted a bill for Rs.5.90 lakhs. Even in the letter dated 13.04.2015, the Municipal Commissioner sought necessary sanction from the Commissioner & Director of Municipal Administration, for paying the said amount of Rs.5.90 lakhs. As seen from the record, the Municipal Council has also accorded administrative sanction for the amount of Rs.5.90 lakhs vide Resolution dated 19.01.2015. Thereafter, the Commissioner & Director of Municipal Administration vide letter dated 07.05.2015 has accorded necessary administrative sanction and directed the Municipality to pay the said amount forthwith and avoid future legal complications. Insofar this amount of Rs.5.90 lakhs is concerned, there is no dispute with regard to the quantum of amount and the same can not be clubbed with the other works, which have been entrusted to the petitioner. In view of the admitted facts that the Municipal Council has already passed a Resolution for payment of Rs.5.90 lakhs and as per the letter of the Commissioner, Paloncha Municipality, written to the Commissioner & Director of Municipal Administration, seeking administrative sanction for paying the said amount of Rs.5.90 lakhs, and for payment of which, the approval has been given, the official respondents are obligated to pay the same. Therefore, the official respondents are directed to pay the said amount of Rs.5.90 lakhs to the petitioner, forthwith.
9 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 Insofar as the other contention raised by the official respondents that insofar as the works done by the petitioner, an additional amount of Rs.14.50 lakhs is claimed, the official respondents have taken a stand that as per the estimates prepared, the Committee has arrived at a sum of Rs.5,89,519/-. It has been submitted by the concerned Committee that they have verified the works which were entrusted to and attended by the petitioner herein and they have arrived at Rs.5,89,519/- as the value of the work done by the petitioner. But, it is pertinent to mention that in the said report, it is clearly mentioned that "As the nominal reinforcement of steel provided in the concrete foundation, concrete basement is embedded and can't be visualized and also not possible to quantify, this item has not been reckoned for assessment." Further, in the said report, it is also stated that due to the absence of any administrative approval, technical sanction of the estimate by the competent authority, entrustment of the work to the contractor on nomination basis, as the case may be, concluding of agreement, 60% provisional payment was recommended and the responsibility was also fixed up on some of the Officer, who were working during the said period, for not following the due procedure. In the counter filed by the respondent No.2, there is absolutely no whisper as to what action has been taken against the erring officers who were working at the relevant point of time. The petitioner cannot be made a scapegoat for the lapses committed by the official respondents or their officers. The petitioner has executed the works to the satisfaction of the officials, which was entrusted to him, in a good faith, and therefore, the amounts due to him have to be paid in full without fail. The second respondent cannot take shelter under the report prepared by the Committee as the same 10 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 does not take into consideration, the other aspects and even otherwise the report does not reveal as to whether the petitioner was put on notice at the time of inspection or at the time of taking measurements. The petitioner cannot be put to loss for the laches committed by the official respondents in not taking the necessary administrative sanction or permission. Having regard to the same and also in view of the various correspondence between the petitioner and the authorities vis-à-vis the authorities to the higher authorities, this Court is of the opinion that the amounts claimed by the petitioner is a lawful one and the official respondents cannot take any umbrage under the estimate prepared by the Committee. In the counter, nothing is placed on record to show under what authority, the said Committee has been appointed and whether the petitioner was put on notice before making physical assessment of the works executed by the petitioner herein. Moreover, as stated above, in the report submitted by the Committee itself, they have clearly stated that then have not taken into consideration the steel provided in the concrete foundation basement, which has been used as reinforcement, by the petitioner. Compared to the detail- cum-abstract estimate prepared by the official respondents themselves, there is no basis for the committee for arriving at the figure of Rs.5,89,519/- as against the figure of Rs.14,50,000/- (including the tax and other charges). The official respondents cannot put the petitioner to loss and make him run from one pillar to another after the works are executed by him in good faith by taking technical objection to which the petitioner is not concerned.
11 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 In HSIDC v. HARI OM ENTERPRISES1, the Hon'ble Supreme Court at para 31 held as under:-
"It may be true that ordinarily in a matter of enforcement of a contract qua contract, a writ Court shall not exercise its jurisdiction under Article 226 of the Constitution of India. But, it is also trite that where the action of State is violative of Article 14 of the Constitution of India as being wholly unfair and unreasonable, the writ Court would not hesitate to grant relief in favour of a person, where both law and equity demand that such relief should be granted."
In ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd.2, the Hon'ble Supreme Court at para 28 held as under:-
"However, while entertaining an objection as to the maintainability of a writ petition under Article 226 of the Constitution of India, the Court should bear in mind the fact that the power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provisions of the Constitution. The High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. The Court has imposed upon itself certain restrictions in the exercise of this power. And this plenary right of the High Court to issue a prerogative writ will not normally be exercised by the Court to the exclusion of other available remedies unless such action of the State or its instrumentality is arbitrary and unreasonable so as to violate the constitutional mandate of Article 14 or for other valid and legitimate reasons, for which the Court thinks it necessary to exercise the said jurisdiction."1
(2009) 16 SCC 208) 2 (2004) 3 SCC 553) 12 AAR, J W.P.Nos.30997 of 2013 & 13231 of 2016 The denial of the payment to the petitioner is a gross abuse of the powers of the officials concerned; the non-payment of the amounts due for the works done is arbitrary and unreasonable, and therefore, this Court has to necessarily step in and exercise its power vested under Article 226 of the Constitution of India.
In view of the above mentioned facts and circumstances of the case, W.P.No.13231 of 2016 is allowed and the official respondents are directed to pay the balance amount claimed by the petitioner i.e. Rs.5.90 lakhs towards the making of protocol arrangements for the visit of the Chief Minister, and Rs.14.50 lakhs for the other works done by him, as stated supra, forthwith, duly deducting the amounts already paid and also deducting necessary taxes, as expeditiously as possible, preferably within a period of four weeks from the date of receipt of a copy of this order.
Accordingly, W.P.No.30997 of 2013 is dismissed and W.P.No.13231 of 2016 is allowed.
Miscellaneous petitions pending in these writ petitions, if any, shall stand closed. There shall be no order as to costs.
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A.ABHISHEK REDDY, J
Date : 13 -05-2021
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