Okhla Industrial Estate ... vs M.C.D. And Ors.
2006 Latest Caselaw 1230 Del

JUDGMENT

S. Ravindra Bhat, J.

W.P.(C) 10618/2006

Issue notice. Mr. Ajay Arora, Advocate accepts notice on behalf of respondent No. 1, Mr. B.L. Wali, learned Counsel accepts notice on behalf of respondent No. 2.

Issue notice to respondent No. 3 returnable on 11.8.2006.

The second respondent had filed its counter affidavit dated 12th July, 2006. Learned Counsel for the respondent MCD produced a compilation of documents and original records, on 20.7.2006.

CM No. 8077/2006 (exemption)

Allowed subject to just exceptions.

CM No. 8076/2006 (Stay)

1. With consent of counsel for the parties, the application for interim relief was heard on 20th July, 2006. Learned Counsel for the MCD relied upon the compilation of documents and also produced the original records. After conclusion of hearing, he made the official records available to the Court, on 24th July, 2006. The second respondent had filed counter-affidavit on 12th July, 2006.

2. The applicant/petitioner in the writ proceeding is an Association comprising of occupants/allottees of plots in the Okhla Industrial Estate, Phase-III (hereafter called "the Colony"). Most of the plots have been constructed upon and consist of industrial units engaging in manufacturing activity etc. The applicant/petitioner is aggrieved by the award of a contract to the respondent No. 2, (which is a registered parking contractor with the Municipal Corporation of Delhi (hereafter "the MCD")). The contract was apparently entered into pursuant to an offer letter dated 10.2.2006.

3. It is averred in the petition that the impugned parking contract amounts to regulation of roads by the contractor and would lead to violation of rights of members of the petitioner Association. It is claimed that if the second respondent is permitted to operate, it would amount impairing with the rights of individual plot holders to move freely, unhampered, on the internal roads of the colony besides creating obstructions in front of their premises. It is also claimed that the second respondent (hereafter "the contractor") has claimed exorbitant amounts and in one case demanded the sum of Rs. 2,50,000/- per month from the plot holder/occupant.

4. The applicant petitioner alleged that prior consent of the third respondent was necessary before awarding the contract since it entailed earmarking of individual sites on internal roads, which are primarily owned by the third respondent, Department of Industries. It is claimed that the MCD cannot convert the road network into parking site and that the impugned action is without jurisdiction and also illegal.

5. The contractor in its affidavit has relied upon the offer made on the MCD dated 10.2.2006 whereby it was invited to accept the parking site for a license fee of Rs. 4,11,000/- per annum; the contract for being a period of five years. It is also claimed that the contract was awarded, the site was indicated along with a sketch map. However, in paragraph 14 of the counter affidavit, it has been averred that there are three separate parking sites in Okhla Industrial Phase-III which were auctioned by the MCD and allotted to the contractor.

6. The contractor denies that there is any illegality in the manner of award of contract or the clubbing of the internal roads into one parking site and alleges that the MCD is within its rights to do so, to avoid traffic congestion and blockages. It has also denied that the award of the contractor impinges in any manner upon the rights of the petitioner association.

7. The MCD, in its compilation produced copies of the offer letter dated 10.2.2006, correspondence between the MCD and the contractor as well as a copy of the agreement entered into between the first two respondents on 22.12.2005. Copies of the affidavit of October 2003 filed in CWP 7301/2000 before the Court enclosing certain documents such as the parking policy formulated by the MCD and the order of the High Court in CWP 5239/2002 as well as a copy of the parking policy formulated in Delhi by the Government of NCT and filed in the Supreme Court in pending proceedings have been produced.

8. Mr. V.P. Singh, learned senior counsel for the applicant/petitioner relied upon Section 28(1)(b)(c) of the Delhi Police Act, 1978 as well as Section 29 and submitted that the power and duty to regulate traffic vests with the Commissioner of Police and that the contention of the MCD that the parking on public streets envisioned by the impugned contract letter of offer to the contractor, is beyond its jurisdiction. It was contended that even though Section 298 of the Delhi Municipal Corporation Act enacts that public streets vest in the Corporation, that declaration is only for the purposes of maintenance of such streets or roads as public streets and for no other object.

9. Learned Counsel contended that once the area or road was earmarked as a public street, its character could not be altered and the MCD ceased to have any jurisdiction to block the street or road any part of it so long as it was being used (and was in fact used) for movement of traffic and the public.

10. Learned Counsel relied upon a letter dated 5.4.2006 issued by the Secretary and Commissioner, Department of Industries, Government of NCT of Delhi, to the MCD, that allotment of the parking sites in question, to the contractor could not have been given without approval of the Government of NCT. The latter had also proceeded to require that necessary steps to resined the contract ought to be taken.

11. Learned Counsel for the MCD submitted that by virtue of Section 298 of the Act, MCD had full authority and power to deal with public streets and the petitioner Association could not claim any enforceable rights. It was submitted that the decision to award the contract was taken after inviting bids from all registered and eligible contractors and that the MCD had earmarked all the internal roads in the colony as one parking site, sometime early 2005 itself.

12. This, it was stated, was made known when the invitation to tender or bid, had been issued. The sites, located on the internal roads were handed over immediately after acceptance the bid upon issuance of the offer letter in February 2006. Under these circumstances, the petitioners could not claim that their private rights to park vehicles in front or or near the vicinity of their premises was affected because the underlying objective of the contract was public good.

13. Learned Counsel for the MCD also relied upon the policies submitted before the Division Bench of this Court as well as before the Supreme Court in the pending proceedings to state that Delhi has endemic traffic problems and various judicial orders have been issued from time to time requiring the corporation to formulate practical policies to de-congest traffic and ensure that parking problems are minimized.

14. Learned Counsel for the MCD relied upon the judgment of the Supreme Court reported as Municipal Board, Hapur v. Jassa Singh Civil Appeal No. 42/1980 decided on 4th September, 1996 for the proposition the primary responsibility of the corporation is to provide public amenities such as parking lots, bus stops and public conveniences.

15. Learned Counsel for the MCD lastly submitted that no interim order ought to be granted since that would result in the project being under mind.

16. Learned senior counsel for the contractor, Mr. Rajiv Shakdhar supported submissions of the MCD so far as vesting of public streets in the Corporation is concerned; he also relied upon the decision of the Supreme Court in Sodan Singh v. NDMC and contended that Municipal Corporations have the primary duty to regulate flow of movement on public streets. In furtherance of this objective, it is open to the Corporation to grant limited rights to such as Tehbazari etc. The use of a public roads for the purpose of parking would fall within that category. He also submitted that the bid of the contractor was made on 4.5.2005 and accepted in November 2005. The petitioners knew about the contract and deliberately chose to approach the Court much later.

17. It was submitted that any interim order at this stage would result hardship to the contractor since it would be deprived of the revenue and also be under an obligation to pay the entire license fee which works out to about Rs. 4.11 lakhs per annum.

18. Learned Counsel contended that the petitioners do not have any enforceable right because they do not claim and nor can they claim any legal right in respect of the roads which are admittedly public in nature.

19. I have seen the file produced by the MCD and also the compilation relied upon by its counsel. It discloses that bids were invited for the contract in question sometime in mid 2005; the contractor placed its bid on 4.5.2005 which was accepted in November 2005. An agreement was entered into immediately thereafter in December 2005. The contractor apparently approached this Court by filing a writ petition (in which it imp leaded only the MCD and the Delhi Police and not any allottee or the petitioner association) claiming that allottees and occupiers in the colony were hampering in the operation of the contract. The petition was apparently disposed of with some directions to the police authorities; later a review was filed by the petitioner which was disposed off granting liberty to them to approach this Court challenging the contract which they have done in these proceedings.

20. Section 298 of the Corporation Act, at the first blush appears to support the contention of the Corporation that all public streets vest in the MCD. However, the underlying premise of that provision is the character of the street, as a public street, which has been defined in Section 2(44). The provision, in my prima facie opinion, does not essentially deal with conferment of title upon the lands forming part of the street, as much as authorizing the MCD to maintain it as a public road or street. In other words, the rationale for vesting of roads or street in the Corporation is its use as a public street. If such is the case, the MCD is under a duty, ( in keeping with its obligations under the Act ) to ensure that all public streets retain their dominant characteristic as such while discharging its functions.

21. The materials on records prima facie suggest that the land belonged to the third respondent, which developed it and allotted the plots. In these circumstances, there is some merit in the submission of the petitioners that the public character of the roads in the colony of which the land vests in the third respondent could not have been altered without its approval. This view finds credence in the position taken by the third respondent in its letter dated 5.4.2006 where its expressed dis-approval about the contract and sought its cancellation, upon being informed by the MCD on 6.3.2006.

22. Additionally I am of the prima facie opinion that though Section 298 enacts that public street vests in the MCD, the purpose of such vesting is to fulfill the aim of maintaining the road; regulation of traffic in Delhi in my opinion falls within the jurisdiction of the Police Commissioner by virtue of the provisions of Delhi Police Act, 1978.

23. As far as the document pertaining to parking policy is concerned (submitted both before the Division Bench as well as the Supreme Court) there is nothing to suggest that the MCD ever evolved a policy whereby internal roads in colonies or localities could be en masse treated as one parking site. The consequence of such a practise appears to be startling; on the one hand it suggests parcelling out of public road, and handing them over to private contractors and on the other preventing and keeping out legitimate residents or inhabitants of the colony, their access to public spaces. I am however not expressing any final opinion on this and the observations in this order are merely for the purpose of granting interim relief.

24. For the above reasons, I am of the opinion that the impugned contract cannot be allowed to operate in a blanket manner. The sketch map/lay out of the colony filed along with the petition, at Annexure P-8 shows that there are three separate and distinct parking sites. The contractor also has supported this understanding in para 14 of the counter affidavit. In view of the above circumstances, the parking agreement contract and the letter awarding the contract dated 10.2.2006 shall be strictly operated and confined to the three parking sites earmarked in the plan produced along with the petition. The MCD is directed to give appropriate remission to the contractor in the light of the present order. It is made clear that parking contract shall not be operated upon by the second respondent, in respect of the internal roads of the colony. The order shall ensure till it is varied or modified.

25. The application is allowed in the above terms.