Himalayan Advertising vs Yogesh Kapur, M.D., D.T.C
2011 Latest Caselaw 4488 Del

             *IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Date of decision: 14th September, 2011
+                                    CONT.CAS(C) 616/2010

         HIMALAYAN ADVERTISING             ..... Petitioner/Relator
                    Through: Mr. Gautam Das & Mr. Santosh
                             Bebarta, Adv.
                                             Versus

         YOGESH KAPUR, M.D., D.T.C                 ..... Respondent
                     Through: Ms. Latika Chaudhary for Ms.
                                Avnish Ahlawat, Adv. for DTC.
                            AND
+                     W.P.(C) 4874/2010
         HIMALAYAN ADVERTISING               ..... Petitioner
                    Through: Mr. Gautam Das & Mr. Santosh
                               Bebarta, Adv.
                           Versus
    DELHI TRANSPORT CORPORATION & ANR .... Respondents
                 Through: Ms. Latika Chaudhary for Ms.
                           Avnish Ahlawat, Adv. for DTC.
                           Mr. Rajnish Gautam, Adv. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.       Whether reporters of Local papers may              Not necessary
         be allowed to see the judgment?

2.       To be referred to the reporter or not?                   Not necessary

3.       Whether the judgment should be reported                  Not necessary
         in the Digest?

Cont. Cas.(C)616/2010 and W.P.(C)6040/2011                                  Page 1 of 9
 RAJIV SAHAI ENDLAW, J.

1. The counsel for the petitioner/relator seeks time to file rejoinder.

The counsels for the respondents oppose contending that the

petitioner/relator is enjoying an interim stay.

2. The counsel for the petitioner/relator states that though interim

protection was granted to the petitioner but the petitioner has not had any

benefit thereof inasmuch as the respondents have constructed parallel bus

shelters and violated the order. He expresses inability to argue today.

3. In the circumstances, since the petitioner is not having any benefit of

the stay, the interim order is vacated. Rejoinder be filed within eight

weeks.

4. At this stage, the counsel for the petitioner states that he will argue

the writ petition as well as contempt petition today itself. The counsel for

the respondent no.1 DTC states that the reply filed in the contempt case

may be read in response to the writ petition also. Rather the counter

affidavit filed by the respondent no.2 Delhi Integrated Multi Modal Transit

System Ltd. (DIMTS) is also in the contempt filed. The counsels have

been heard.

5. The writ petition was filed to restrain the respondent no.1 DTC from

dismantling the Bus Queue Shelters/Time Keeping Booths (BQSs/TKBs)

with respect whereto the respondent no.1 DTC had entered into a contract

with the petitioner, valid from 10th March, 2010 to 9th March, 2012.

6. Notice of the petition was issued. Thereafter vide order dated 26 th

July, 2010 status quo was directed to be maintained. The said order has

continued till now. On 5th August, 2010, on request of the counsel for the

petitioner, DIMTS was impleaded as respondent no.2. There is no formal

order extending the interim relief to the respondent no.2 DIMTS.

7. Cont. Cas(C) 616/2010 was filed on or about 31st August, 2010

averring breach by the respondent no.1 DTC of the interim order.

8. The petitioner was, vide three separate but identical agreements,

appointed as a contractor of the respondent no.1 DTC for display of

Advertisement Boards on the BQSs/TKBs of the respondent no.1 DTC in

the Civil Lines-I, Narela (R-1) & Rohini-II, Zones for the period aforesaid.

It is the case of the petitioner in the petition that though he had been

regularly making payments under the contracts as per the bills raised by

the respondent no.1 DTC from time to time but the respondent no.1 DTC

in the month of July, 2010 arbitrarily started dismantling the BQSs in the

area subject matter of the contracts, without prior notice or intimation to

the petitioner. The petitioner pleads that he had already collected revenue

from the advertisers and if the BQSs were to be so demolished, he would

suffer irreparable loss and injury and notwithstanding his representations,

the demolition work was not stopped. Averring the work of demolition to

be in violation of the principles of natural justice, the writ petition was

filed.

9. The respondent no.1 DTC in its reply in the contempt filed, has

stated that before awarding the contract to the petitioner, the petitioner had

been informed that Govt. of NCT of Delhi had awarded the contract to

DIMTS for modernization of 1050 BQSs for Commonwealth Games-2010

(CWG-2010); that in the offer letter in pursuance to which respondent no.1

DTC entered into agreements with the petitioner also it was clearly

mentioned that the BQS under the BOT Scheme shall be deleted from the

BQS in the zones subject matter of agreement; that any new BQS

constructed in the zone shall also be subject matter of the agreement with

the petitioner. It is further pleaded that the petitioner prior to entering into

the agreements with the respondent no.1 DTC had also submitted an

affidavit giving no objection for withdrawal of 12 BQSs from the tender

documents and that if any other BQSs are found to fall in the category of

BQS to be constructed for the purpose of CWG-2010 then the same shall

also be treated as withdrawn by DTC at any time; the petitioner in the said

affidavit had also assured the respondent no.1 DTC that it will not take up

any grievance in any forum regarding withdrawal of any BQS by the

respondent no.1 DTC.

10. The counsels for the respondents also invite attention to Clause 11

of the agreements whereunder the respondent no.1 DTC had a right to have

the BQSs demolished, dismantled or removed at any time during the

period of the contract, without notice to the petitioner and for any reason

whatsoever. It was further a term of the said clause that the petitioner shall

abide by the directions if any of the Government including through

DIMTS. Attention is also invited to Clause 17 of the agreements

whereunder the contract was terminable without assigning any reason by

giving three months notice.

11. The agreement with respect to which the writ petition had been filed

being not specifically enforceable and disputed questions of fact being

involved, it has been enquired from the counsel for the petitioner as to

how the writ remedy has been invoked. Attention in this regard is invited

to Kisan Sahkari Chini Mills Ltd. V. Vardan Linkers AIR 2008 SC 2160

laying down that the writ remedy in a contractual matter is confined only

to public law elements and not to contractual disputes. In the present

instance in view of the express clauses in the agreements it will have to be

adjudicated as to whether any BQSs which the respondent no.1 DTC could

not have demolished have been demolished. It may also be noticed that the

averments in the petition are absolutely vague in this regard save for

generally stating that DTC had started demolition of BQSs, no particulars

whatsoever have been given.

12. The only response from the counsel for the petitioner is that the

petitioner cannot be left remediless. As far as the argument of breach of

natural justice is concerned, the contract having expressly provided for the

right of the respondent no.1 DTC to demolish any BQS even without

notice to the contractor, no grievance can be heard to be made thereof.

13. The petitioner has remedies before a Civil Court or in accordance

with the arbitration clause in the agreement and thus cannot claim that he

has been left remediless.

14. The counsel for the petitioner states that the clauses aforesaid in the

agreement and/or the affidavit aforesaid are in the context of the

CWG-2010 but zones with respect to which the agreement was entered

with him were nowhere connected with the Commonwealth Games and

thus the benefit of the clauses in the agreement and the affidavit could not

have been taken.

15. The affidavit/agreement does not specify so. It thus cannot be said

that the right of the respondent no.1 DTC to demolish any BQS in the zone

subject matter of agreement with the petitioner was confined only to those

zones relevant for the Commonwealth Games.

16. There is thus no merit in the petition the same is dismissed.

17. As far as the contempt case is concerned, except for making a

general averment that inpsite of the order of status quo dismantling

continued, no particulars have been given of the BQSs which were

demolished/dismantled after the interim order dated 26th July, 2010. The

counsel for the petitioner refers to the letter dated 16 th August, 2010

annexed to the letter which mentions four BQSs which had been

dismantled. However the said letter also does not state as to when the same

were dismantled. Similarly the photographs filed by the petitioner merely

show sites wherefrom BQSs had been dismantled but cannot be said to

show as to when the demolition took place.

18. Needless to state that the respondents in their replies have denied

any violation of the interim order.

19. In the absence of any clear-cut case of violation of the order having

been made out, no case of contempt also is made out. The writ petition and

the contempt case are therefore dismissed. I refrain from imposing any

costs.

Dasti.

RAJIV SAHAI ENDLAW (JUDGE) SEPTEMBER 14 , 2011 gsr/pp..