Ahmedabad Municipal Transport ... vs M/S Lahar Associates
2024 Latest Caselaw 5491 Guj

Gujarat High Court

Ahmedabad Municipal Transport ... vs M/S Lahar Associates on 25 June, 2024

Author: Sunita Agarwal

Bench: Sunita Agarwal

                                                                           NEUTRAL CITATION




    C/CA/3314/2024                         ORDER DATED: 25/06/2024

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       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3314
                           of 2024
             In R/FIRST APPEAL NO. 2409 of 2024

                              With
                 R/FIRST APPEAL NO. 2409 of 2024
                              With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2024
                In R/FIRST APPEAL NO. 2409 of 2024
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      AHMEDABAD MUNICIPAL TRANSPORT SERVICES & ORS.
                         Versus
                 M/S LAHAR ASSOCIATES
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Appearance:
MR HS MUNSHAW(495) for the Applicant(s) No. 1,2,3
MR PRASHANT G DESAI, SENIOR COUNSEL WITH MR RUTUL P
DESAI(6498) for the Respondent(s) No. 1
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 CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
       SUNITA AGARWAL
       and
       HONOURABLE MR. JUSTICE PRANAV TRIVEDI

                    Date : 25/06/2024
                      ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

ORDER IN CIVIL APPLICATION (FOR CONDONATION OF DELAY) NO. 3314 of 2024

The delay of 12 days in filing the instant First Appeal is explained to the satisfaction of this Court. The delay condonation application is hereby allowed. The delay in filing the appeal is hereby condoned. Office shall allot regular number to the Appeal.

NEUTRAL CITATION

C/CA/3314/2024 ORDER DATED: 25/06/2024

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ORDER IN R/FIRST APPEAL NO. 2409 of 2024

[1] Heard Mr H. S. Munshaw, learned counsel appearing for the appellants and perused the record.

[2] This appeal under Section 37 of the Arbitration and Conciliation Act, 1996 has been filed to challenge the Arbitral Award dated 05.05.2017, wherein the only issue raised before us is about the findings returned by the arbitrator on the revised parking charges unilaterally imposed by the Corporation namely the Ahmedabad Municipal Corporation upon the contractor, on the premise of Clause 8.6.3 of the Agreement executed between the parties.

[3] We may note that the application under Section 34 of the Act, 1996 filed by the Appellant - Corporation has been dismissed vide judgment and order dated 09.04.2021.

[4] Mr H. S. Munshaw, learned advocate appearing for the appellant would contend that the original contract executed in favour of the respondent was terminated on 11.01.2011, on account of poor services provided by him. After termination of Contract, the contractor was required to remove the vehicles from the place allocated to him under the Contract. However, for a sufficient period of time, the contractor did not remove vehicles and as such, various notices were issued in the year 2011 to realise parking fee at the rate of Rs.200/- per bus per day. Clause 8.6.3 of the Contract has been placed before us to assert that Rs.01/- per day per bus for parking in the premises allocated by the

NEUTRAL CITATION

C/CA/3314/2024 ORDER DATED: 25/06/2024

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Ahmedabad Municipal Corporation was during the subsistence of the Contract. After the Contract was over, it was open for the Ahmedabad Municipal Corporation to determine the rates in view of the language of Clause 8.6.3, which reads as under:

"Clause - 8.6.3 During the term of the project, the Contractor will pay to AMC / AMTS at the rate of Rupee One (1) per day per bus for parking in the premises designated by AMC / AMTS. AMC on specific request of the Contractor provide certain services / facilities to the Contractor, the rates of which will be market rate, determined jointly by the AMC / AMTS and the Contractor, plus a reasonable margin."

[5] We may note that this contention of the learned counsel for the appellant before us has been duly examined by the arbitrator and on appreciation of the evidence, it has further noted Clause 8.2.1 and Clause 7.2.20 of the Contract, which reads as under:

"Clause - 8.2.1 AMC shall pay to the Contractor the weekly payments determined by multiplying the rate per kilometer and the kilometers travelled by every week on the Due Date and the Contractor shall pay AMTS the weekly payments for parking or other facilities provided by AMC / AMTS from time to time, the rates of which will be going market rates jointly determined by the AMC/AMTS and the Contractor, plus a reasonable margin as the case may be."

"Clause 7.2.20

NEUTRAL CITATION

C/CA/3314/2024 ORDER DATED: 25/06/2024

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At the expiry of the term of the Agreement or on termination of the Agreement, the Contractor shall vacate or cause to vacate the parking space allotted to it by AMC / AMTS for parking of vehicles. If however, the Contractor fails to vacate the parking space within 10 (TEN) days of the expiry of the term or on termination of the Agreement, AMC / AMTS shall take forcible possession of the parking space along with all the buses, tools and tackles and other property of the Contractor lying at the parking space. The Contractor shall have no claim on this confiscated property by AMC / AMTS."

[6] Considering the said clauses of the Contract, it was noted by the arbitrator that in the scheme framed under the Contract agreed by the parties, unilateral amendment of parking charges was not permitted. If at all there was any variance in the parking parking charges, which was required, the remedy was to amend the agreement itself. It has further been noted that the original contract, which was terminated on 18.01.2011 was later renewed by Order dated 19.07.2012. From the reading of Order dated 19.07.2012 of renewal of the contract, it was noted that the period of contract was extended for two years with effect from the date of completion of the tenure of the Agreement dated 26.09.2006. It was, thus, concluded that the extension was from the back-date i.e. from the date of completion of the tenure of the Agreement dated 22.09.2006.

[7] In the result, the period during which the Contract was terminated, was indirectly regularized by the extension

NEUTRAL CITATION

C/CA/3314/2024 ORDER DATED: 25/06/2024

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order, giving it a retrospective effect. With this point of view, the unilateral enhancement of rate in the parking charges from Rs.01/- per bus per day to Rs.200/- per bus per day was impermissible.

[8] Taking note of the above, we find that there is no dispute raised by learned counsel for the appellant about the fact of renewal of the Contract noticed by the arbitrator in arriving at its finding of illegality committed by the Corporation in revision of parking charges unilaterally, taking aid of Clause 8.6.3 of the Contract.

[9] We do not find any error in the said opinion drawn by the arbitrator, no illegality much less patent illegality can be found, inasmuch as, the view taken by the arbitrator as a possible view in the facts and circumstances of the case. Moreover, within the scope of limited jurisdiction under Section 37 of the Act, 1996, it is not possible for us to re-appreciate the evidence to arrive at a different conclusion. We, therefore, cannot appreciate the submissions made by learned counsel for the appellant. The appeal, accordingly, is DISMISSED being devoid of merits. Consequently, the connected civil application also stands disposed of.

(SUNITA AGARWAL, CJ )

(PRANAV TRIVEDI,J) SAHIL S. RANGER