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2008 DIGILAW 73 (DEL)

RAVI BOX INDUSTRIES v. MCD

2008-01-24

SANJIV KHANNA

body2008
ORDER 1. The petitioner was awarded car/scooter parking site at Ajmeri Gate to Lahori Gate by letter dated 20th November, 2004. The said allotment was pursuant to tender notice dated 10 September, 2004. It was specifically stated in the said letter that the Competent Authority was pleased to accept the offer given by the petitioner for a period of 5 years but the contract shall be renewed after expiry of everyone year with enhancement of monthly licence fee by 5% every year. Another term mentioned in the letter was that the Commissioner, MCD was entitled to terminate the contract at any time in public interest. An agreement dated 10th December, 2004 was also executed between the petitioner and the respondent/MCD. One of the terms and conditions mentioned in the agreement was that the MCD had right to revise parking charges during the currency of the contract and in case of revision of parking charges, licence fee paid by the contractor shall stand revised in the same proportion for the remaining period. There is also an arbitration clause in the agreement. 2. After award of the contract, the agreement was revised/renewed from year-to-year basis up to 31st December, 2006. 3. On 30.11.2006, the respondent/MCD wrote to the petitioner stating that parking charges were in process of being rationalized and likely to be increased as per rates specified. It was stated that in view of the revised rates, the petitioner would be liable to pay enhanced licence fee 50% above the existing licence fee along with service tax. The petitioner was required to give his consent. As the petitioner did not give his consent, another letter dated 12.12.2006 was written to him stating clearly that it appears that the petitioner was unwilling to accept the proposed enhanced rates and, therefore, contract shall stand terminated with effect from 15.12.2006. 4. On 26th February, 2007, the petitioner replied that he had no obligation to pay any service tax which was referred to as tax collection. He further expressed his unwillingness to accept any enhancement of parking fee stating, inter alia, that it was contrary to the agreement of 2004. 5. It is a case of the respondent/MCD that service tax is payable by the parking contractors including the petitioner. By letter dated 26th February, 2007, the petitioner was called up to pay service tax of Rs. 1,49,244/including Rs. 61,578/- for the parking in question. 5. It is a case of the respondent/MCD that service tax is payable by the parking contractors including the petitioner. By letter dated 26th February, 2007, the petitioner was called up to pay service tax of Rs. 1,49,244/including Rs. 61,578/- for the parking in question. 6. As the petitioner was not ready and willing to abide by and pay enhanced rates, the respondent invited fresh tenders. Pursuant thereto parking site has now been allotted to M/s. Techno Construction Company/respondent No.3. 7. So far as dispute between the petitioner and respondent No. 1/MCD relating to the terms and conditions of the offer letter dated 30.11.2004 and agreement dated 10.12.2004 are concerned, the same have to be adjudicated and decided in terms of the arbitration clause. These contractual disputes cannot and should not be examined and gone into by this Court in a writ petition. The petitioner has alternate remedy and I am not inclined to bypass the said alternate remedy and entertain the present writ petition. The respondent/MCD has explained its position and the reason why they sought enhanced licence fee. I do not want to refer and examine the stand of the parties on merits as this may cause prejudice. These aspects will have to be examined and gone into by the arbitrator and not by this Court. 8. So far as award of contract to respondent No.3 pursuant to fresh tender is concerned, it may be relevant to state here that the petitioner had never participated in the tender. He is aggrieved because the petitioner had continued to pay old charges and manage the parking site, till respondent No.3 took over on enhanced rates. I may note here that respondents have clarified in their counter affidavit that there is a dispute between the parking contractors and the respondent/MCD on payment of arrears of service tax. All parking contractors have taken a plea that service tax is not payable by them and the same has to be paid by the respondent/Corporation. In these circumstances, the respondent/Corporation took a decision not to reject tenders submitted by any parking contractors where the dispute pertains to service tax. In these circumstances, tenders submitted by all parking contractor were not rejected on the ground that they had not paid the service tax dues. This policy was uniformly adopted and applied by the MCD. 9. In these circumstances, the respondent/Corporation took a decision not to reject tenders submitted by any parking contractors where the dispute pertains to service tax. In these circumstances, tenders submitted by all parking contractor were not rejected on the ground that they had not paid the service tax dues. This policy was uniformly adopted and applied by the MCD. 9. Writ petition is accordingly dismissed leaving open to the petitioner to invoke arbitration clause and raise claims/ disputes in accordance with the said arbitration clause. There will be no order as to costs. Result : Writ Petition dismissed.