Aeroastral Air Services Pvt. Ltd. vs South Delhi Municipal ...
2013 Latest Caselaw 4775 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                        Order delivered on: October 12, 2013

+                         W.P. (C) No.6557/2013

       AEROASTRAL AIR SERVICES PVT. LTD.                       ..... Petitioner
                   Through   Mr.B.L. Wali, Adv.

                          versus

       SOUTH DELHI MUNICIPAL CORPORATION          ..... Respondent
                    Through  Ms.Mini Pushkarna, Adv. with
                             Ms.Yoothica Pallavi, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (ORAL)

C.M. No.14282/2013 (exemption) Exemption allowed, subject to just exceptions.

The application is disposed of.

W.P.(C) No.6557/2013 & C.M. No.14281/2013 (for interim relief)

1. Prior to the present matter, the petitioner filed the three petitions against the Municipal Corporation now known as South Delhi Municipal Corporation of Delhi in this Court praying, inter alia, issuance of an appropriate writ, order or direction to the respondent to allot alternate parking sites in lieu of car/scooter parking sites at Sanjay Gandhi, Transport Nagar, Madan Gir, Red Light to Khan Pur and Opposite Shiv Mandir, Giri Nagar, Kalkaji, New Delhi allotted to the petitioner in terms of provisional offer letter dated 19th December, 2005 as the petitioner was unable to run the parking sites.

2. All the three petitions along with the interim applications were listed before Court on 15th September, 2010. The same were disposed of directing the MCD to make allotment of alternative parking sites to the petitioner within four weeks. As per the case of the petitioner, the respondent has allotted only two alternative sites whereas third site till date has not been allotted. Despite of various requests and representation dated 29 th February, 2012 made by the petitioner to allot alternative parking site in lieu of the parking site Opposite Shiv Mandir, Giri Nagar, Kalkaji, New Delhi.

3. The petitioner on 28th January, 2013 filed the contempt petition, being Cont. Cas (C) No.74/2013 against Sh.Manish Gupta, Commissioner and Sh.Sushil Singh, Deputy Commissioner of the respondent. Notice of the said contempt petition was issued by order dated 30th January, 2013 to show cause as to why the contempt proceedings be not initiated against them. In the order it was also mentioned that it is expected that before the next date of hearing, both the orders dated 15th September, 2010 and 24th September, 2010 would be complied with by the MCD. The said order was passed in the presence of the learned counsel for the respondent. Reply in the said contempt petition has been filed by the respondent. I have been informed that next date fixed by the Court is 11th February, 2014.

4. In the meanwhile, the present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India, inter alia, praying for issuance of appropriate writ, order or direction to the respondent to withdraw the name of parking site at Sapna Cinema, East of Kailash, New Delhi, at serial No.38 from the from the list of parking sites issued by the respondent with corrigendum dated 27th September, 2013.

5. It is the case of the petitioner in the present writ petition that the respondent invited tender on 20th March, 2013 for allotment of various parking sites including parking site of Sapna Cinema, East of Kailash, New Delhi, being serial No.4 and Alaknanda, being serial No.28. When the contempt petition was listed on 10th April, 2013, the respondent vide correigendum dated 2nd April, 2013 made changes in the tender notice dated 20th March, 2013 and the name of the parking site of Sapna Cinema, East of Kailash and Alaknanda were removed from the list of parking sites. A copy of the corrigendum dated 2nd April, 2013 along with list of parking sites in terms of NIT dated 20th March, 2013 have been annexed along with the petition.

6. The contention of Mr.Wali is that in the meeting which was held by the respondent on 25th March, 2013 it was held by the respondent that two parking sites were required to be removed from the list of parking sites of NIT document i.e. Sapna Cinema being proposed as alternative in compliance with the order of High Court in parking matter and Alaknanda which has been inadvertently included in the list. Mr.Wali further states that the said minutes were approved by the Commissioner on 2 nd April, 2013. Therefore, a corrigendum was issued on 2nd April, 2013 whereby the said two parking sites were removed from the list of parking sites. The photocopies of the said documents are filed along with writ petition. Mr.Wali has also stated that the respondent had been assuring the petitioner that alternative parking site of Sapna Cinema will be allotted to the petitioner in lieu of Opposite Shiv Mandir, Giri Nagar, Kalkaji, New Delhi, and issued NIT dated 13th September, 2013 by inviting public at large for allotment of various parking sites and the name of parking site at Sapna

Cinema was removed from the list of parking sites. However, the respondent vide its fresh corrigendum dated 27th September, 2013 invited tenders for allotment of 39 parking sites including parking site at Sapna Cinema, East of Kailash, being serial No.38, for category C contractors. The petitioner thereafter made the representation dated 7th October, 2013 and brought to the notice of the respondent that action of the respondent was against the directions of the High Court in the contempt case as also contrary to orders dated 15th September, 2010 and 24th September, 2010 and asked the respondent to withdraw the site of Sapna Cinema from the corrigendum dated 27th September, 2013 in order to avoid further litigation between the parties. In view of the same, Mr.Wali is pressing for interim order thereby restraining the respondent from allotting parking site at Sapna Cinema, East of Kailash, New Delhi, at serial No.38 from the list of parking sites issued by the respondent with corrigendum dated 27th September, 2013.

7. On the other hand, learned counsel for the respondent argued that two orders dated 15th September, 2010 and 24th September, 2010 have been complied with by the respondent. Counsel states that the petitioner cannot dispute the fact that after passing of the said orders, the petitioner was given alternative site at Defence Colony Market, near Gumbad. The said parking site was allotted to the petitioner in lieu of parking site at Sanjay Gandhi Transport Nagar. With respect to two parking sites at Madangir Road, Pushpa Bhawan and Shiv Mandir, Madangir, Kalkaji, the petitioner herein was given one parking site as an alternative site at Eros Tower, Nehru Place. It may be submitted herein that the parking site at Madangir, Main Road, Pushpa Bhawan had earlier been allotted to the petitioner at monthly license fee of Rs.15000/-. Further, the petitioner had also been earlier granted a

parking site at Shiv Mandir, Madangir, Kalkaji at monthly license fee of Rs.11,000/-. In view of small size of the two parking sites, it was decided to club the aforesaid two parking sites at Madangir, Main Road, and Shiv Mandir, Madangir, Kalkaji and give one alternative parking site in lieu thereof. The parking site at Eros Tower in lieu of two parking sites on the consent of the contractor at a monthly license fee @ Rs.37,000/- pm. Thus, the petitioner herein was allotted a parking site surrounding Eros Tower, Nehru Place at a monthly license fee of Rs.15,000/- and Rs.11,000/- respectively. This was done as the aforesaid two parking sites were very small, therefore, a bigger area was allotted to the petitioner as alternative site instead of two small alternative sites.

8. Counsel for the respondent states that the said facts have already been stated in the affidavit of Mr.Sushil Singh filed in the month of May, 2013 on behalf of South Delhi Municipal Corporation. Thus, she states that both the orders have been fully complied with.

9. In answer to query raised with regard to the meeting held by respondent on 25th March, 2013 she stated that as far as the meeting as well as the minutes referred by Mr.Wali for approval on the sites i.e. Sapna Cinea, being proposed as alternative in compliance of orders of High Court is concerned, the effect of the same cannot be considered by this Court as the minutes and order of the meeting were not communicated to the petitioner. She referred to the decision of this Court in the case of MS Shoes East Ltd. and Anr. Vs. Union of India (UOI) and Anr., 165 (2009) DLT 136. In the said judgment, this court held as under :

"34. Suffice would it be to state, that the question of law which arises for consideration in both the appeals is: What is the effect of decision/notings/orders, passed/recorded in the file maintained by

the departments, but not communicated to any person? Can a mandamus be issued requiring compliance with such a note/order/direction?

10. She further argued that it is a disputed question of fact which is subjudiced in the contempt petition filed by the petitioner wherein the proper reply has already been given by the respondent and it is stated in the said affidavit that both the orders have been fully complied with. Thus, the present writ petition is pre-mature and it could not be filed unless the contempt petition is decided by this Court.

11. After having considered the overall facts and circumstances, I am of the considered view that the prayer made in the interim application as well as in the main writ petition cannot be granted in view of the pendency of the contempt petition for the same lis before this Court. Therefore, the same are disposed of, with the direction that in case, in view of Corrigendum dated 27th September, 2013 in respect of tenders invited for allotment of various parking sites, the parking site of Sapna Cinema, East of Kailash is allotted to a third party, the said allotment shall be subject to the final outcome of the contempt petition filed by the petitioner.

12. Dasti, under the signatures of the Court Master.

(MANMOHAN SINGH) JUDGE OCTOBER 12, 2013