Delhi High Court
Karambir Singh Khatri vs Delhi Urban Shelter Improvement ... on 21 February, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 21 February, 2022
+ W.P.(C) 2067/2022, CM APPL. 5951/2022
KARAMBIR SINGH KHATRI
..... Petitioner
Through: Mr. Kirti Uppal, Sr. Adv. with
Mr. Arun Batta, Ms. Indira M and
Ms. Riya Gulati, Advs.
versus
DELHI URBAN SHELTER IMPROVEMENT BOARD
..... Respondent
Through: Mr. Ram Kumar, Adv.
AND
+ W.P.(C) 2068/2022, CM APPL. 5953/2022
KARAMBIR SINGH KHATRI
..... Petitioner
Through: Mr. Kirti Uppal, Sr. Adv. with
Mr. Arun Batta, Ms. Indira M and
Ms. Riya Gulati, Advs.
versus
DELHI URBAN SHELTER IMPROVEMENT BOARD
..... Respondent
Through: Mr. Ram Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
CM APPL. 5951/2022 in W.P.(C) 2067/2022
CM APPL. 5953/2022 in W.P.(C) 2068/2022
1. These applications have been filed seeking a restraint order
against the respondent from demanding/recovering the payment of
₹4,75,01,672/- (W.P.(C) 2067/2022) and ₹2,10,63,888/- (W.P.(C)
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2068/2022) from the petitioner and with a further direction that the
respondent be restrained from taking any coercive action for non-
payment of the aforesaid amounts. It is the submission of Mr. Kirti
Uppal, learned Senior Counsel for the petitioner, that the petitioner
was awarded two contracts with regard to car parking sites at
Shivaji Place, West Delhi, District Centre, Raja Garden, Delhi
(W.P.(C) 2067/2022) and G-Block, Jahangir Puri, behind Kusal
Cinema (W.P.(C) 2068/2022) on payment of licence fee of
₹13,97,108/- and ₹5,85,108/- per month, respectively. The
possession of both the sites were handed over to the petitioner on
July 27, 2019 and August 28, 2019, respectively. According to
him, formal agreements with respect to the aforesaid parking sites
were executed. Pursuant thereto, as various problems were being
faced by the petitioner at the parking sites, he made representations
for reduction of the licence fee. The said requests were rejected by
the respondent vide letters dated February 28, 2020 and December
28, 2019, respectively.
2. Mr. Uppal states that it is common knowledge that in
March, 2020, the country was hit by COVID-19 resulting
incomplete to partial lockdown which is still continuing; which
made the petitioner write to the respondent requesting it to reduce
the monthly licence fee of the parking sites and not to present for
clearance, the post-dated cheques issued by the petitioner. Mr.
Uppal by drawing my attention to Clause 18 of the contract,
submits that the request made by the petitioner for reduction of
licence fee is justified because COVID-19 is a force majeure
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condition inasmuch as the parking sites remained closed on
account of reasons beyond the petitioner's control. He states
communications were made to the respondent to treat the contract
as cancelled / frustrated / unenforceable. Unfortunately, without
considering the request, the respondent vide letters dated July 23,
2020 and July 08, 2020, demanded the post-dated cheques for the
year 2020-2021. In fact, Mr. Uppal submits that immediately
thereafter on August 04, 2020, the North Delhi Municipal
Corporation had issued an order granting relief to parking
contractors for the period starting from March 22, 2020. It is also
his submission that similar action was taken by various other
statutory bodies. The petitioner did write to the respondent stating
that without reduction of licence fee, the post-dated cheques are not
payable. He also submits that on November 23, 2020, the
Chairman of the respondent organisation had constituted a
committee to examine the applications received from various
contractors including parking contractors in relation to loss of
business due to COVID-19. In terms of deliberations of the
committee, it has been conveyed to all the concerned Area
Engineers that they were to submit a status report up to December
01, 2020 with regard to whether parking sites are in residential,
commercial or mixed areas and whether parking sites were running
during the period of lockdown.
3. According to Mr. Uppal, without following the process, the
respondent issued show cause notices to the petitioner stating that
he has breached Clauses 23, 24 and 25 of the terms and conditions
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of the contract and directed him to deposit post dated cheques of
monthly licence fee, failing which, action was threatened to be
initiated against him as per the contract, including cancellation of
parking sites, forfeiture of money, damages/blacklisting etc.
Mr. Uppal highlighted the fact that notice of a meeting was issued
to all contractors with regard to grievances relating to loss of
business on account of COVID-19 lockdown. Pursuant thereto,
minutes of meeting held on February 10, 2021 were released to all
contractors wherein it is stated that the monthly licence fee for the
months of April, 2020 to June, 2020 is kept in abeyance
temporarily till a decision is taken by the competent authority.
4. According to Mr. Uppal, the licence fee should not have
been kept in abeyance but should have been reduced during the
said period. In fact, the country was hit by the second wave of
COVID-19 resulting in the continuance of the same situation as
was prevailing during the first COVID-19 wave. He states that the
respondent, again, unmindful of various requests made by the
petitioner issued letters dated June 09, 2021 demanded payments of
₹3,91,19,024/- and ₹1,75,53,240/- respectively from the petitioner
which are double the normal licence fee, for the parking lots for the
period between March, 2020 to April, 2021 and February, 2020 to
April, 2021, respectively. According to him, these claims are made
by the respondent by stating that the request made by the petitioner
cannot be acceded to in view of the terms of the contract. Mr.
Uppal states the communication also stated, that failure to deposit
the amount shall entail cancellation of parking sites, blacklisting,
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etc. Immediately thereafter, the respondent vide letter dated June
21, 2021 and September 09, 2021, called upon the petitioner to
handover the sites, which came as a surprise as it is the case of the
petitioner that he is entitled to the reduction of the licence fee. He
states the petitioner in his subsequent communications called upon
the respondent to withdraw the communications dated June 09,
2021 and June 21, 2021 and grant waiver of monthly licence fee.
Not minding the request, the respondent issued letters dated
December 14, 2021 and September 01, 2021, respectively, making
a demand of ₹4,75,01,672/- and ₹2,10,63,888/-, respectively as
licence fee for the period March, 2020 to July, 2021 and February
2020 to July, 2021, failing which, action like cancellation of
contract, blacklisting etc. would be taken. The communications
were replied to by the petitioner by asking the respondent to
withdraw the same. I must state here that during his argument, Mr.
Uppal conceded that the periods of contract with respect to both the
sites have expired. He also stated, the amounts claimed by the
respondent are overlooking the pleas made by the petitioner in his
various communications which have not been considered at all as
no response thereto has been received in writing. That apart,
amounts up to ₹41,50,000/- and ₹11,89,000/- with regard to both
the contracts are lying with the respondent, which can be adjusted
against the licence fee. He states that the respondent must be
restrained from taking any coercive action against the petitioner for
non-payment of the demands as made vide their letters dated
December 14, 2021 and September 01, 2021, respectively.
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KUMAR YADAV W.P.(C) 2067/2022 & connected matter Page 5
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5. On the other hand, Mr. Ram Kumar, learned counsel for
the respondent would submit that, as per his instructions, the
respondent shall charge licence fee as per the contract. On the issue
of handing over the sites, he states that the concerned Executive
Engineers had visited the sites to take possession, but the petitioner
did not turn up to hand over the same. He seeks the dismissal of the
applications.
6. Having heard the learned counsel for the parties at length, I
must state, at this stage, this Court is only considering the interim
applications. It is to be seen whether the petitioner has made out a
prima facie case and the balance of convenience is in favour of the
petitioner and whether irreparable loss would be caused to him if
the interim relief is not granted.
7. There is no dispute that the country was affected by
COVID-19 pandemic in March, 2020. The second wave of
COVID-19 hit the country from April to May, 2021. Clause 18 o
the contract on which much reliance has been placed by Mr. Uppal
reads as under:-
"18. In case the site is required by the DUSIB i.e.
Licensor for its own or public purposes, the Licencee
shall have to hand over the vacant possession of the
site at once. However, proportionate amount of
licence fee for the period of such disuse would be
refundable to him. In case the site is required for any
particular period for the above purpose or the
parking site remains closed on account of reasons
beyond his control during the period of contract, a
proportionate amount of licence fee for the vacant
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period may be refunded to him, as per rules, if due
or applicable."
8. His submission is that Clause 18 is a force majeure clause
and the situation that arose, i.e., the closure of the parking sites,
was due to a reason beyond the control of the petitioner, i.e.,
COVID-19. During the hearing he had relied upon a note sheet of
the respondent furnished to the petitioner under the RTI Act, 2005
to state that it is the view of the department that the stand taken by
the petitioner has merit and Clause 18 is a force majeure Clause. In
this regard he has drawn my attention to page 39 of the additional
documents filed on February 07, 2022.
9. The issue whether the petitioner was entitled to reduction
and/or waiver of the licence fee can only be decided after a counter
affidavit is filed by the respondent. But the fact remains that the
respondent has now raised a claim of ₹4,75,01,672/- and
₹2,10,63,888/-, respectively as licence fee for the period ending
July, 2021.
10. This Court is of the view that, pending consideration of this
issue, to balance the equities, appropriate shall be, the petitioner
without prejudice to his rights and contention shall deposit with the
respondent an amount of ₹1.5 crore, with regard to the contract of
Raja Garden and ₹1 crore, with regard to the contract of Jahangir
Puri within a period of four weeks from today. On such a deposit,
no coercive action shall be taken by the respondent for non-
payment of the balance amount during the pendency of the writ
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KUMAR YADAV W.P.(C) 2067/2022 & connected matter Page 7
Signing Date:21.02.2022
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petition. It is made clear that the deposit of the amounts in terms of
this order shall be subject to outcome of the petitions.
11. On the issue of handing over of the sites, appropriate shall
be, that the respondent inform the petitioner of the date and time
for taking over possession of both the sites and the petitioner shall
be available on the sites at such date and time, to hand over the
possession thereof to the respondent.
12. With the above, the applications are disposed of.
13. List the matter before the Registrar on April 12, 2022, the
date already fixed.
V. KAMESWAR RAO, J
FEBRUARY 21, 2022/ds
Signature Not Verified
Digitally Signed By:ANIL
KUMAR YADAV W.P.(C) 2067/2022 & connected matter Page 8
Signing Date:21.02.2022
19:32:09
