Sanjay Jain vs North Delhi Municipal ...
2013 Latest Caselaw 2249 Del

$~32.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+     W.P.(C) 392/2013
      SANJAY JAIN                                       ..... Petitioner
                         Through :   Mr.Amit S. Chadha, Sr. Adv. with
                                     Mr.B.L. Wali, Adv.

                         versus

      NORTH DELHI MUNICIPAL CORPORATION        ..... Respondent
                    Through : Ms.Mansi Gupta, Adv.

      CORAM:
      HON'BLE MR. JUSTICE G.S.SISTANI

                              ORDER

% 14.05.2013

1. Pursuant to a tender floated by the respondent for allotment of

various parking sites, the petitioner participated in the same on

11.10.2010. Tender of the petitioner was accepted on 15.12.2010 being

the highest bidder. The petitioner deposited a sum of Rs.3,55,352/-

towards one year's monthly license fee inclusive of TCS @ 2.244% on

23.12.2010 and also requested the respondent to hand over the vacant

physical possession of the site at D.C. Office, Civil Line Zone (herein after

referred to as the site). On 06.01.2011 the respondent handed over

vacant physical possession of the site and simultaneously respondent

informed the SHO Police Station Civil Lines Zone to extend full cooperation

to the contractor for operating the parking site. The petitioner thereafter

informed the respondent that vehicles belonging to MCD are parked in the

parking sites which are neither being removed nor parking charges are

being paid. Various representations were made to provide a vacant

parking site but no satisfactory response was received. On 23.06.2011 petitioner was informed by the respondent that the parking site be

demarcated by a thermo plastic yellow bond and to ensure use of hand

held device for giving receipts of parking to commuters. Petitioner was

also called upon to put several boards on the parking site displaying

various particulars. Petitioner informed the respondent that the parking

site was non-operational on account of the site being obstructed by trucks

and vehicles of MCD for which no payment was being made. Various

reminders and requests were made but there was no favourable result.

Petitioner filed a writ petition being WP(C) No.8664/2011 seeking a

direction to the respondent to allot an alternate parking site. This writ

petition was disposed of on 13.12.2011 with the consent of the parties.

MCD was directed to consider the pending representations made by the

petitioner which were to be duly examined by the OSD, R.P.Cell, MCD.

Petitioner was given liberty to seek appropriate remedies as per law if

aggrieved by the decision.

2. It is the case of the petitioner that petitioner requested the

respondent to allot a parking site at Sukha Ped, Mori Gate on 23.12.2011,

however, petitioner was informed on 14.02.2012 that his requests had

already been considered and declined on 17.10.2011 as alternate site

cannot be allotted to the petitioner as there is no such provision in this

regard in the terms and conditions of the agreement. Since no favourable

response has been received the present writ petition has been filed

seeking a direction to the respondent to grant an alternate site preferably

W.P.(C) 392/2013 2/4 behind DTC Bus Depot, Netaji Subhash Place, New Delhi in lieu of site

allotted to him on 15.12.2010.

3. The counsel for the respondent has opposed this petition on the

ground that there is no provision in the terms of the tender for allotting an

alternate site. It is also submitted that the dispute sought to be raised in

the present writ petition is primarily a commercial dispute and moreover

the petitioner has been running the parking site since the year 2010. The

petitioner was awarded a provisional offer letter of allotment on

15.12.2010. The offer was for a period of two years which was to be

renewed after the expiry of the first year with enhancement of monthly

license fee by 10% for the next year subject to satisfactory completion of

period of first year of contract. According to the provisional offer letter it

was also made clear that the parking site is being allotted on 'as is where

is' basis and the MCD would not be responsible for any decline in the

potential of the customers at the parking site or for any

extraneous/unforeseen reason whatsoever. The petitioner has agreed to

comply with the terms of the provisional offer letter.

4. There is no explanation by the learned counsel for the petitioner that

in case the site was found to be unacceptable or unusable why the

contract was extended for another period of one year. In any case, the

dispute sought to be raised by the petitioner in the present writ petition is

primarily a commercial dispute between the parties. The copies of the

orders passed in WP(C) No.2388/2011 and WP(C) No.8664/2011 annexed

W.P.(C) 392/2013 3/4 with the petition and sought to be relied upon by the counsel for the

petitioner show that either the orders were passed with the consent of the

MCD in WP(C) No.8664/2011 and WP(C) No.2388/2011 or a direction was

given to consider the request of the petitioner for an alternate site. No

grounds made out to give/issue directions to the respondent to grant

alternate site to the petitioner, as parties are governed by the terms and

conditions of letter of allotment and the disputes sought to be raised

cannot be decided in the present proceeding under Article 226 of the

Constitution of India. It would be open for the petitioner to avail all such

remedies which are available to him in accordance with law. All rights of

the petitioner are kept open.

5. Writ petition is disposed of in above terms.

CM 785/2013 (interim relief)

Since the writ petition is disposed of, instant application seeking

interim relief till disposal of the writ petition is disposed of as infructuous.

                                                                G.S.SISTANI, J
MAY      14, 2013
msr //dk

W.P.(C) 392/2013                                                              4/4