The Supreme Court bench comprising of Justice M.R. Shah and Justice B.V. Nagarathna has held that no Writ of Mandamus could have been issued by the Bombay High Court virtually granting the writ for specific performance/work done in a Writ Petition under Article 226 of the Constitution.

The two-judge Bench has set aside the impugned judgment and order of the Bombay High Court, Nagpur Bench.

Counsel Mr. Gaurav Agrawal appeared for the Appellant-Municipal Council while Senior Counsel Mr. R.L. Khapre appeared for the Respondents-Original Writ Petitioners before the Apex Court.

The High Court had allowed the writ petition filed by Divi Works & Suppliers, HUF & Ors (Respondents) and quashed and set aside the actions of the Municipal Council, Gondia (Appellants) in canceling the work order given to the Respondents. The Respondents were in the business of manufacturing and they were given the work order after an e-tender by the Appellant for the supply of benches, tables, and almirah for the schools run by the municipality.

The Municipality, however, had to suspend the work order due to the COVID-19 restrictions imposed by the Government of Maharashtra on non-priority expenditure like in this case. In the wake of the government directives over pandemic and further lockdown, the Chief Officer of the Appellants informed the Respondents that the Municipality was not generating any revenue and also that the schools were shut due to the lockdown, therefore the work order as agreed upon between the parties were suspended till further orders.

It was further argued by the Appellants that as per the reports of the Education Officer, the Respondents had not taken any further steps in supplying materials qua the work order. They further added that since the supply had now become non-urgent due to the lockdown, the work order was suspended.

The High Court in the impugned judgment and order quashed the actions of the Appellants and held that the Respondents were entitled to make supply pursuant to the work order dated 07.02.2020.

The Appellant aggrieved by the said order appealed before the Supreme Court, and the Counsel on their behalf argued that on a visit to the premises of the Respondent, it was found that the goods were substandard and did not meet the requirements of the word order. It was further argued that the goods did not reflect the quality as claimed by the respondent before the Apex Court.

The Apex Court observed that there was a disputed question of fact since the Respondents claimed before the HC that goods were manufactured and but it was originally found that there was no good readily available. It further observed that in absence of the evidence on record the HC erred in passing the order in favor of the Respondent and that the HC could not issue the writ of mandamus to virtually grant the writ of specific performance of the work order under Article 226 of the Constitution.

The Supreme Court also held that the HC erred on the merit as well, when it failed to recognize the reason for the said suspension of the work order and that the suspension was effected pursuant to the lockdown due to the pandemic.

The Bench set aside the impugned order and held that "The original writ petition stands dismissed. However, it is made clear that this shall not preclude the original writ petitioners in initiating appropriate proceedings before the civil court for the damages/losses, if any suffered by them, which may be considered in accordance with law and on its own merits and on the basis of the evidence to be led."

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