P.S.Mishra, J. - (1.) The inslant appeals have arisen from ajudgment which is delivered in Writ Petition No. 26072 of 1996 and several other writ petitions. Alt the writ petitions have been heard together and disposed of by a common judgment. It is alleged, that the writ petitioners - respondents are small scale industries and engaged in manufacturing of certain electrical items. The Government of the State introduced a scheme, allegedly to help the small scale industries in the State in the matter of marketing their goods, styled as MAS and for that purpose issued G.O.Ms.No.181 (Industries and Commerce) Department, dated 9-4-1985, under which G.O. AP. Small Scale Industrial Development Corporation Ltd., was nominated as the sole selling agency. Accordingly the Order directed the Government Departments and Gram Panchayals to procure the required materials through Appellant - Corporation alone. The Government, subsequently, issued G.O.Ms.No.240, dated 22-5-1989 providing that the indenting department would pay 90 per cent of the total bill amount alongwith the indents to the Appellant - Corporation and the remaining 10 per cent amount would be settled within 60 days from the date of satisfactory delivery of the desired items by the SSI Units. The Government Order also contemplated payment of service charges to the Appellant - Corporation. According to the petitioners respondents, the Appellant -Corporation has not paid the 90 per cent of the amount, paid by Ihe indented department to it, to the units/companies immediately after the delivery of the material to the indented departments, although 90 per cent of the bill amount was received by it well in advance from the indented departments. It is also alleged that the Appellant - Corporation used to keep the amount for unauthorised purposes, diverted the said amount to other purposes, including payment of salaries to their personnel etc. Since, according to the petitioners -respondents, the Appellant - Corporation had not been implementing the terms and conditions of the scheme and defeating the very purpose for which the scheme was conceived, it caused, thus, violation of the Government Orders.
(2.) In the counter-affidavit filed by the Appellant Corporation, the above assertions are denied and it is stated that the Appellant -Corporation was not expected to release funds in favour of SSI Units until satisfactory proof was given about the delivery of material to the indenting departments.
(3.) The learned single Judge has taken note of the various G.Os. and commented upon them as follows: "Before proceeding further it will be useful to refer to the relevant G.Os. which have been relied upon in this case. G.OMs.No.181 Industries &Cdmmerce, dated 9-4-1995 A scheme called MAS has been conceived by the Government to encourage the local SSI units and to extend necessary assistance to the units in the matter of marketing their products. Under the G.O. 15 items of electrical goods have been identified, which was found commonly used by the Government departments and panchayats. The scheme prevents the Government departments and the panchayats from picking and choosing their own supplier to the detriment of SSI units. This scheme is conceived both in the public interest as well as for encouraging the SSI units. For the said purpose the corporation was nominated by the Government as the sole selling agency in respect of 15 SSI items.The scheme has to be operated in the following lines: The prices of the items shall be fixed by a committee. The Corporation would make payment of 90% of the bill amount to the supplying units against the proof of dispatch. The balance 10% would be paid after receipt of the payments from the indenting departments. All payments are paid through the Corporation only. For distributing the orders among the units, the capacity, location and past performance of the units, are considered. Nominal service charges of 1 1/2% of the value of the products is allowed to the Corporation for implementing the scheme. Only on issuance of non-availability certificate by the Corporation the purchasing departments can buy their requirements from other sources. The scheme is applicable to all the Government departments/Corporations/ Public sector undertakings/local bodies/ Z.P.P./Municipalities/ Gram Panchayats etc. in the State. G.O.Ms.No.240 Industry & Commerce, dated 22-5-1989: The Corporation has reported that payments from the Government departments, organisations etc. are not forthcoming within the normal agreed period of 30 days from the date of delivery of materials. Hence, the Corporation requested the Government for issuance of orders to the departments to make advance payment of 90% of the bill amount to the Corporation along with the indents and settle the balance of 10% within 60 days of satisfactory completion of supply. Accordingly, this G.O. has been issued directing the Departments to make advance payment of 90% alongwith indents and settle the balance of 10% within 60 days of supply. G.O.Ms.No.204 Industry & Commerce, dated 4-6-1992: Under this G.O. 5 items have been deleted from the list originally appended to G.O.Ms.No.181 and 7 more items were brought under MAS scheme. Thus, items reserved under the scheme are now applicable to 17 items. The service charges earlier granted to the Corporation was increased from 1 1/2% to 30%."After the above, learned single Judge has taken notice of the grievance of the petitioners - respondents that the Corporation had failed to implement the scheme and even after receiving the amounts to the extent of 90 per cent of the value of the goods from the indenting departments, after delivery of goods by the petitioners respondents, it did not -deliver the said amount to it and utilised the money, in some cases, for other purposes.Learned single Judge has held that the writ petitions are maintainable and stated as follows: "From a reading of the above G.Os., the aims and objects of MAS is to render, promote, poster, develop and assist the genuine small scale units. The purchasing departments being the Government departments and other undertakings are not given a free hand to purchase at any place, some-times at a higher rate than the rates available in SSI units. The Corporation being the sole selling agency, quoted on behalf of SSI units under the above scheme and got attractive offers to the units. Some-times even long term contracts are entered into with the purchasing departments through the Corporation. By virtue of the scheme the units will get not only continuous orders but also will be protected from the discrimination of pick and choose policy of the purchasing departments. But, under the scheme, the SSI units will get 90% of the amounts only after the goods are delivered. Even after the goods are delivered, if the said amount is not paid, it is but natural that the units will suffer hardship and loss. The Corporation is expected to pay the amounts immediately after proof of delivery is shown. It is not expected, to keep the deposits any longer when once the goods are delivered. It is also the duty of the Corporation, at whose instance the goods are supplied, to collect the 10% balance from the purchasing departments and pay the same within a reasonable time from the date of delivery of the goods. The uniform grievance of the petitioners appears to be that they are neither paid the 90% value of the goods nor the 10% of the remaining amount within a reasonable time. The respondent, except stating in the counter that the petitioners had not shown any proof of non-payment of these amounts, has not come forward with the books of accounts that are available with them to show that in the case of each of the petitioners the Corporation has paid all the amounts due. It could also produce evidence to show the date of indent by the purchasing department, the date of payment of 90% of the value to the Corporation, the date of the order given to the respective petitioner-units and the dale of actual delivery. It is admitted in the counter-affidavit that 90% of the total bill amount has not been paid by the Corporation to the SSI units, since no satisfactory proof has been given by the units of the delivery of the material. Instead of blaming the petitioners for not coming forward with the solid proof of the allegations, the respondent being a statutory Corporation who is expected to maintain the accounts with regard to the transactions between the Corporation and the SSI units, ought to have made attempts to satisfy the Court that the Corporation is not liable to pay any amount to the units and has not defeated the scheme and failed in its role as sole selling agency. The Corporation has also denied the allegation that its financial status is in doldrums. However, this aspect need not be gone into in these writ petitions. The petitioners had stated clearly that the Corporation has to pay Rs.l crore as arrears due under the scheme to the SSI units covered under MAS. The Corporation, except denying the allegations, did not produce the relevant records to show that it has cleared all the dues to the SSI units. Though the pelilioners have not come forward with a positive proof of their allegations, but in view of the evasive counter affidavit filed by the respondent and in view of the fact that it has not produced before the Court all the relevant books and records to dispel the allegations made by the petitioner, I am satisfied that all is not well with the Corporation. The scheme which was conceived for assisting the SSI units has not been effectively implemented by the Corporation. On the other hand it can also be said that the Corporation turned out to be the only beneficiary under the scheme. Unfortunately in all these writ petitions the Government is not made as a party for this Court to grant any proper direction with regard to proper and effective implementation of the scheme or to take a second look with regard to continuance of the scheme and either modify the above G.Os or altogether supersede them permitting the purchasing departments to make their own purchases directly from the SSI units. However, regarding the relief claimed in the writ petitions with regard to strict implementation of the scheme, this Court has no hesitation in directing the Corporation to do so.''It is urged before us that the direclion issued by the Court has denied completely to the Appellant - Corporation the right, at least, to satisfy itself by satisfactory proof furnished by the petitioners - respondents that it had made supplies of goods which fall under the scheme and that against such supplies the indenting department or Panchayat had given to the Appellant Corporation 90 per cent of the bill amount, the direction of the Court has thus, the effect of assuming of facts of supply and indent and payment of money by the concerned indenting department or the Panchayat to the Appellant - Corporation and in the absence of adjudication in respect of such facts, according to the Appellant -Corporation any payment to such units would amount to payment without proof of supply of goods.;