Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 696 (DEL)

ARVINDER SINGH SETHI v. MCD

2007-03-30

S.MURALIDHAR

body2007
ORDER (OPEN COURT) 1. The challenge in this writ petition is to a Circular dated 18.3.2005 of the Municipal Corporation of Delhi (MCD) debarring the petitioner from further tendering. The action has purportedly been taken by the MCD pursuant to Clause 22.3 of the Terms and Conditions issued along with its Circular dated 7.8.2001. 2. The contentions of Ms. Ansuya Salwan, learned Counsel for the petitioner in assailing the impugned Circular are that although a show-cause notice dated 21.12.2004 was issued by the Superintending Engineer requiring the petitioner to appear for a hearing before him on 5.1.2005, in fact no such hearing took place. Secondly, the impugned order has been passed by the Engineer-in-Chief on the recommendations of the Chief Engineer whereas the show cause notice was issued by the Superintending Engineer. She submits the person who issues the show-cause notice must hear and the person who hears must decide. Thirdly, the impugned order makes no reference to the rely dated 4.1.2005 of the petitioner to the show cause notice. Fourthly, that the action under Clause 22.3 cannot be taken unless there is more than one breach of the contract and lastly, that in any event there cannot be an indefinite debarring of the petitioner. She points out that in regard to the pending contract there were two bills of an approximate sum of Rs. 9 lakh to be paid by the MCD and only one bill had been paid thus far. 3. Mr. Ajay Arora, learned Counsel for the MCD produces the records of the case. According to him, the nothings on the file indicate that the reply dated 4.1.2005 was not received by the MCD and according to them neither the petitioner nor a representative of the petitioner turned up for the hearing on 5.1.2005. Mr. Ajay Arora submits that only one bill of the contractor had been submitted as on 24.6.2004 when an agreement had been reached in respect of the payments made by the petitioner in respect of the contract of construction of a community hall at Katra Gokul Shah in Bazar Sita Ram in Sadar Paharganj Zone, New Delhi. That bill was paid on 29.7.2004. He submits that despite payment of that bill the contractor did not commence the work and therefore the MCD was justified in taking action debarring the petitioner. 4. That bill was paid on 29.7.2004. He submits that despite payment of that bill the contractor did not commence the work and therefore the MCD was justified in taking action debarring the petitioner. 4. A perusal of the record shows that the facts now explained to the Court by the MCD are not to be found in any of the notings on the file which concerns the debarring of the contractor. The impugned order dated 18.3.2005 is also extremely cryptic and does not refer to the fact of issuance of the show cause notice or to the fact that the petitioner did not either appear for the hearing or submit a reply to the show cause notice. It also does not advert to the fact of payment by the MCD towards the first bill and its present claim that there was no other bill outstanding. Also, the Court finds that there is no para-wise reply to the writ petition where the petitioner has specifically averred that he appeared for the hearing on 5.1.2005 and submitted the reply dated 4.1.2005. 5. Without entering into the correctness or otherwise of these competing claims concerning the pre-decisional hearing, the Court is of the opinion that before taking the extreme view of barring the petitioner for an indefinite time, an appropriate hearing should be afforded to the petitioner by the MCD. Accordingly, the following directions are issued. The petitioner will be at liberty to file a comprehensive reply to the show cause notice dated. 21.12.2004 within a period of two weeks from today and in any event not later than 16.4.2007. The petitioner will appear before the Superintending Engineer Project IV on 23.4.2007 at 3 pm. The Superintending Engineer may hear the petitioner on that date or on any further date as if thinks necessary, but the hearing must be completed on or before 10.5.2007. A decision on the reply of the petitioner and the submissions made during the hearing will be taken and a reasoned order passed in accordance with the law on or before 30.5.2007. 6. In that view of the matter, the impugned Circular dated 18.3.2005 is set aside and now it is open to the MCD to pass a fresh order after following the procedure as directed hereinabove. 7. The writ petition and application are disposed of with no order as to costs. 8. Order dasti. 6. In that view of the matter, the impugned Circular dated 18.3.2005 is set aside and now it is open to the MCD to pass a fresh order after following the procedure as directed hereinabove. 7. The writ petition and application are disposed of with no order as to costs. 8. Order dasti. Writ Petition and Application disposed of.