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IN THE HIGH COURT OF DELHI AT NEW DELHI
Sanjeev Sachdeva, J.
MEP Infrastructure Developers Ltd. – Petitioner
Versus
South Delhi Municipal Corporation And Ors. – Respondents
W.P.(C) 2241 of 2020, CM APPL. 7822, 11092 of 2020, 6420, 7038 of 2021
Decided On : 09-04-2021
Delhi Municipal Corporation Act, 1957 – Section 113 – Constitution of India, 1950 – Articles 14, 226 – Demand of weekly remittances – Termination – Petitioner was awarded a Contract by South Delhi Municipal Corporation for collection of Toll Tax & Environment – Petitioner has filed the subject Petition impugning, order passed by Commissioner SDMC rejecting its representation; demand notice issued by Respondent Corporation demanding weekly remittances envisaged by Contract agreement along with penalty @ 0.1% per day; termination notice; consequent notice inviting tender and encashment of its bank guarantees – Petitioner by amended Petition seeks reliefs to Issue of a writ of mandamus or any other appropriate writ and appoint an independent Adjudicator to adjudicate claims of Petitioner – Issue a declaratory writ to effect that clause 16 of agreement which provides for adjudication mechanism has been left unworkable on account of actions and inactions of SDMC Commissioner – Issue a writ of certiorari and quash order passed by Commissioner SDMC. – Quash Impugned Notice issues consequent to impugned Order during pendency of writ petition, stay Impugned Notice – Issuance a suitable writ, order and direction declaring that in guise of section 113 (2) (g) of Delhi Municipal Corporation Act, 1957 Petitioner cannot be compelled to pay to Respondent no.1 more than actual amount collected towards toll tax from commercial vehicles entering NCT, Delhi – Issue a writ in nature of mandamus directing Respondents to make a fresh assessment as to circumstances affecting toll collection taking into account circumstances highlighted by Petitioner and reassess and redetermine annual/ weekly amount payable by Petitioner to SDMC towards toll tax – Issue a writ in nature of mandamus directing Respondents to take into consideration change in circumstances make suitable downward revision in weekly/ annual remittance commensurate with reduction in toll tax paying commercial vehicles and taking into account tax leakages on account of free lanes – Issue a writ in the nature of certiorari quashing demand of 0.1 % per day that is 36.5% per annum in demand letter as being in terrorem and inequitable
Finding of the court: Conduct of parties is governed by the Contract Agreement and the law of contract. – Contractual rights cannot be tested on the anvil of Article 14 of the Constitution of India. – Parties are liable to perform their respective obligations under a contract and on failure to perform their respective obligations, suffer stipulated contractual consequences. – High Court in exercise of powers under Article 226 of Constitution of India would not intervene in same unless overwhelming public interest requires interference. – It is not even contended on behalf of Petitioner that there is any overwhelming public interest involved, requiring interference. – Respondent Corporation is alleged to have acted purely within four corners of Contract Agreement and sought to exercise its rights under Contract Agreement to enforce obligations imposed upon Petitioner. – Petitioner has remedy of enforcing its rights under Contract Agreement in terms of contract act before an appropriate Civil Forum. – Court in exercise of powers under Article 226 of Constitution of India would not go into a purely contractual dispute. – Objection raised by Respondent that Petitioner cannot invoke extraordinary Writ jurisdiction of this court under Article 226 of Constitution of India is sustained. – Writ Petition is held to be not maintainable –
Result: Writ Petition Dismissed
JUDGMENT :
SANJEEV SACHDEVA, J.
1. Consequent to a bidding process, Petitioner was awarded a Contract by the South Delhi Municipal Corporation (hereinafter referred to the SDMC), for collection of Toll Tax & Environment Compensation Charge (ECC for short) from specified commercial Vehicles at the 124 toll plazas/posts/barriers bordering Delhi.
2. Petitioner has filed the subject Petition inter alia impugning, order dated 31.01.2020, passed by the Commissioner SDMC rejecting its representation; the demand notice dated 14.02.2020 issued by the Respondent Corporation demanding the weekly remittances envisaged by the Contract agreement along with penalty @ 0.1% per day; termination notice dated 16.03.2020; consequent notice inviting tender dated 28.04.2020 and the encashment of its bank guarantees.
3. Subject Writ Petition was filed on 19.02.2020. Petition was subsequently amended because of subsequent events.
PRAYERS IN THE WRIT PETITION
4. Petitioner by the amended Petition dated 18.05.2020 seeks the following reliefs:
b. Issue a declaratory writ to the effect that clause 16 of the agreement which provides for adjudication mechanism has been left unworkable on account of actions and inactions of the SDMC Commissioner;
c. Issue a writ of certiorari and quash the order dated 31.01.2020 passed by the Commissioner SDMC.
d. Quash the Impugned Notice dated 14.02.2020 issues consequent to the impugned Order.
e. During the pendency of the writ petition, stay the Impugned Notice dated 14.02.2020;
f. Issuance a suitable writ, order and direction declaring that in the guise of section 113 (2) (g) of the Delhi Municipal Corporation Act, 1957 the Petitioner cannot be compelled to pay to the Respondent no.1 more than the actual amount collected towards toll tax from commercial vehicles entering the NCT, Delhi;
g. Issue a writ in the nature of mandamus directing the Respondents to make a fresh assessment as to the circumstances affecting toll collection taking into account the circumstances highlighted by the Petitioner and reassess and redetermine the annual/ weekly amount payable by the Petitioner to the SDMC towards toll tax;
h. Issue a writ in the nature of mandamus directing the Respondents to take into consideration the change in circumstances make suitable downward revision in the weekly/ annual remittance commensurate with the reduction in toll tax paying commercial vehicles and taking into account the tax leakages on account of free lanes;
i. Issue a writ in the nature of certiorari quashing the demand of 0.1 % per day that is 36.5% per annum in the demand letter dated 18.11.2019 as being in terrorem and inequitable.
iA. Be pleased to quash the letter of termination dated 16.03.2020 issued by the Respondent to the Petitioner.
iB. Be pleased to quash the NIT dated 28.04.2020 issued by the Respondent consequent to the notice of termination dated 16.03.2020.
iC. During the pendency of this Writ Petition, pass ad interim order directing the Respondent to keep in abeyance the Termination Notice dated 16.03.2020 as well as NIT dated 28.04.2020 for fresh bidding for collection of tax, till the final disposal of the instant writ petition.
j. To issue a Writ order or direction in the nature of CERTIORARI and quash the Termination Notice dated 16.03.2020 and subsequent extension of termination date issued by the Respondent as being illegal.
k. To issue a Writ order or direction in the nature of CERTIORARI and quash the NIT dated 27.04.2020 issued by the Respondent consequent to the notice of termination dated 16.03.2020.
l. During the pendency of this Writ Petition, pass ad interim order directing the Respondent to keep in abeyance the Termination Notice dated 16.03.2020 and subsequent extension of termination date as well as NIT dated 27.04.2020 for fresh bidding for collection of tax, till the final disposal of the insta
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