Eagle Digital Scale, Nagpur ... vs Chandrapur City Municipal ...
2016 Latest Caselaw 696 Bom

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                                            1




                                                                                 
                                                         
           IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 
                      NAGPUR BENCH, NAGPUR.




                                                        
                       WRIT PETITION NO. 5867 OF 2015.




                                            
     Eagle Digital Scale, A Partnership
     Firm registered under the 
                             
     Indian Partnership Act, 1932
     having its office at 3rd Floor, 
     NKY Towers, Ajni Square, Nagpur,
                            
     through its partner
     Mr. Ashok Singh.                                       ..... PETITIONER.
      

                                        VERSUS 
   



     Chandrapur City Municipal 
     Corporation, Chandrapur,
     through its Commissioner.                     ..... RESPONDENT.





                              --------------------------

Shri S.P. Dharmadhikari, Senior Advocate with Shri S.A. Dharmadhikari, Advocate for the Petitioner.

Shri M.I. Dhatrak, Advocate for Respondent.

--------------------------

CORAM : B.P. DHARMADHIKARI & P.N. DESHMUKH , J J.

                                   DATE         :  MARCH 17, 2016.





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ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)

Heard Shri S.P. Dharmadhikari, learned Senior

Counsel along with Shri S.A. Dharmadhikari, learned Counsel

for the petitioner and Shri M.I. Dhatrak, learned Counsel for

the respondent. By their consent the Writ Petition is taken up

for final hearing, by issuing Rule, making the same returnable

forthwith.

2. Because of policy to curb entry of overloaded heavy

motor vehicles within the Corporation limits, the petitioner has

been awarded work of constructing/installing electronic weigh

bridges at 5 entry points of Chandrapur Town. Accordingly an

agreement was entered into between the parties. The

agreement specifically stipulates that the work is to be

completed within a period of 90 days, after the site is handed

over, and all permission for said work are given by the

competent Authority.

3. Case of petitioner is, in relation to three sites as yet

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necessary permissions are not given. Erection of weigh bridges

at Mul road entry point and Nagpur road entry point is already

over and the weigh bridges could have been made functional,

and operated by it after formal inauguration in June, 2015

itself.

4.

Challenge in this background is to a communication

sent by the Deputy Municipal Commissioner on 12.06.2015,

alleging that the petitioner has not completed work within the

stipulated time and work was found going on during their visit.

Petitioner has, therefore, been called upon to stop the work.

This communication has been replied to by the petitioner. He

has pointed out the work of erection of weigh bridges at

Nagpur road and Mul road entry points was already over and

in relation to remaining three sites, necessary permission were

still awaited. This reply of the petitioner dated 15.06.2015,

has been further replied to by the Municipal Corporation on

18.6.2015. It is reiterated that actual work was not complete.

It is further mentioned that the work ought to have been

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completed within 90 days or at least within 180 days. The

P.W.D. has given permission on 09.09.2014, and hence, the

work should have been completed within stipulated time from

09.09.2014.

5. The communication does not show as to how claim

of petitioner that weigh bridges at Mul Naka and Nagpur Road

Naka were fully erected is, incorrect. Similarly, the stand of

petitioner that in relation to other three sites, necessary

permission has not been received, has not been dealt with. The

averments may give rise to disputed questions of facts.

6. Contract between the parties contains a clause for

termination. Said Clause no.12 prescribes giving of 30 days

notice and an opportunity to the petitioner, before decision to

terminate is taken. This procedure has not been followed and

hence facts have not been crystalized.

     7.              Here   the   impugned   communication     at   the   most 





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suspends the work, but, does not terminate the contract. The

suspension of work continues from 12.06.2015, and as no outer

time limit has been mentioned it is to continue in future

indefinitely.

8. Respondent has pointed out that the agreement vide

Clause no.13, provides for a procedure of settlement of dispute

and vide clause no.14, an arrangement for arbitration. Clause

13 requires the petitioner to complete certain formalities, if he

wants to raise a dispute for consideration of the Corporation.

In that event, he has to give sufficient prior intimation and also

necessary details in writing within a period of one month of the

cause of such claim. Here according to the petitioner the

dispute is being raised by the Municipal Corporation.

Arrangement for arbitration can be taken recourse to when

such a dispute raised by the petitioner is not resolved under

Clause 13. The respondent has avoided to act and terminate

contract. It appears to to be satisfied with status-quo.

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9. In present situation, when the agreement has been

entered into between the parties, in public interest and two of

the weigh bridges have already been made functional and are

lying idle since June 2015, we are not inclined to accept the

contention of Shri Dhatrak, learned counsel appearing on

behalf of the respondent, that this Court should not intervene

in writ jurisdiction, in view of contract. The respondent

Municipal Corporation has apart from suspending the work

from 12.06.2015, has not proceeded to protect interest of

public. The contract has not been put to an end or then no

action has been taken against the petitioner. Thus, investment

into two weigh bridges is going waste and what ever work

which could have been undertaken on other sites in terms of

the award of contract to curb entry of overloaded vehicles,

within the city limits, has not been done. Thus, public revenue

is made to suffer and public roads may also continue to be

damaged.

10. It needs to be noted that the Municipal Corporation

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has not pointed out that the claim of petitioner on affidavit in

relation to other three sites, necessary permission has not been

received till date, is incorrect or false.

11. We therefore, in the interest of general public, quash

and set aside the communication dated 12.06.2015. The

Municipal Corporation shall immediately proceed to take

necessary steps to see that the two weigh bridges i.e. the

weight bridge on Mul Road and Nagpur Road naka, can be

made operational immediately.

12. Similarly, the respondent Municipal Corporation

shall attempt to assist the petitioner in procuring the

permission for other three sites. Writ Petition is thus, partly

allowed and disposed of.

13. Rule is made absolute in the aforesaid terms, with

no order as to costs.

                            JUDGE                                  JUDGE
          Rgd.