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2018 DIGILAW 167 (JK)

Nishy Charak v. State

2018-03-19

ALOK ARADHE

body2018
JUDGMENT : 1. Petition is admitted for hearing. 2. With the consent of the learned counsel for the parties, the matter is heard finally. 3. In this writ petition, the petitioner inter alia seeks a writ of certiorari for quashing the order dated 24.08.2017, issued by respondent No. 3, by which the contract awarded to the petitioner for charging parking fee has been cancelled. The petitioner also seeks a writ of mandamus commanding the respondent Nos. 2 & 3 not to forcibly take the possession of the parking slot situated at Maheshpura Chowk, Near K. C. Theatre, Jammu from the petitioner and allow the petitioner to perform her the duties of allottee of the aforementioned parking slot as per order dated 13.12.2016, issued by respondent No. 3. The petitioner further seeks a writ of mandamus commanding the respondent Nos. 2 & 3 to handover the staff room along with its allied barrier etc to the petitioner, so that the petitioner will be in a position to perform her the duties of allottee. 4. Facts giving rise for filing of the writ petition, briefly stated are that an e-tender was issued by respondent No. 3 on behalf of the Vice-Chairman of the Jammu Development Authority for allotment of the parking slot at Maheshpura Chowk, Near. K. C. Theatre, Jammu. The petitioner responded to the aforementioned e-NIT and was found to be the highest bidder and by communication dated 09.11.2016, the petitioner was informed that she is the highest bidder. Subsequently, the contract was allotted in favour of the petitioner for collection of parking charges from matadors with effect from 14.12.2016 to 13.12.2017, i.e., for a period of one year. Accordingly, a communication dated 13.12.2016 was sent to the petitioner in that regard. However, it is the case of the petitioner that respondents did not handover the physical possession of the parking slot to the petitioner. The petitioner thereafter filed OWP No. 637/2017, which was disposed of by a Bench of this Court vide order dated 18.05.2017, with a direction to the respondent No. 2 to handover the possession of the parking slot to the petitioner within a period of one week from the date of passing of the order. In pursuance of the aforementioned order passed by a Bench of this Court, the possession of the parking slot was handed over to the petitioner vide communication dated 27.05.2017. In pursuance of the aforementioned order passed by a Bench of this Court, the possession of the parking slot was handed over to the petitioner vide communication dated 27.05.2017. However, it is the case of the petitioner that the possession of the staff room and allied barrier was not handed over to the petitioner and, therefore, it was not possible for the petitioner to operate the parking place. 5. The petitioner thereupon filed contempt petition bearing Contempt (OWP) No. 98/2017. In the meantime, a letters patent appeal was also filed by the respondent No. 4 against the judgment dated 18.05.2017, passed in OWP No. 637/2017, which was dismissed on 28.07.2017. The petitioner was served with the notice dated 21.07.2017, asking her to show cause as to why the contract awarded to her be not cancelled as she is parking buses in the matador stand. The petitioner thereupon submitted reply to the notice dated 31.07.2017 and stated that the possession of staff room, barrier etc were not handed over to her and is still with the earlier allottee, who may have got the buses parked in the parking slot in order to mislead the Jammu Development Authority. However, the respondent No. 3 vide communication dated 09.08.2017 issued a final notice to the petitioner, pointing out that the petitioner has parked buses in the parking slot allotted for parking of matadors and called the petitioner to attend the office personally or through her representative. The petitioner submitted a comprehensive reply to the final notice dated 14.08.2017 and stated that parking of buses in the parking place was the handiwork of respondent No. 6. Therefore, the petitioner approached the Divisional Commissioner, Jammu, addressing her grievance with regard to non-handing over of the staff room and barrier etc. The Divisional Commissioner vide his communication dated 23.08.2017 directed the respondent No. 2 to look into the matter and take necessary action. Thereafter, by impugned order dated 24.08.2017, the contract awarded to the petitioner has been cancelled. In the aforesaid factual background, the petitioner has approached this Court. 6. Learned counsel for the petitioner submitted that notwithstanding the fact that the contract in question was awarded to the petitioner, yet the possession was not handed over to her for a period of five months. In the aforesaid factual background, the petitioner has approached this Court. 6. Learned counsel for the petitioner submitted that notwithstanding the fact that the contract in question was awarded to the petitioner, yet the possession was not handed over to her for a period of five months. It is further submitted that the petitioner had filed a reply to the show cause notice, however, her reply was not considered and the action of the respondents in cancellation of the contract is actuated by malafides, as the same has been done at the instance of respondent No. 6. He is responsible for parking the buses and trucks in the parking slot of the petitioner and the possession of the staff room and barrier was also not handed over to the petitioner. 7. On the other hand, Mr. Adarsh Sharma, learned counsel for the Jammu Development Authority submitted that a show cause notice was issued to the petitioner and after receipt of reply from the petitioner to the said notice, a team of the officers of the Jammu Development Authority was deputed to inspect the spot, who after conducting spot inspection submitted the report, wherein it is stated that the buses were parked in the parking slot reserved for the parking of matadors, therefore, by an impugned order dated 24.08.2017, the contract awarded to the petitioner was cancelled. 8. I have considered the submissions made by the learned counsel for the parties and have perused the records. 9. It is well settled in law that this Court in exercise of powers under Section 103 of the constitution of the State cannot determine the disputed questions of fact. (See. Himmat Singh Vs. State of Haryana and others, (2006) 9 SCC 256 & Rourkela Shramik Sangh Vs. Steel Authority of India Ltd. and another, (2003) 4 SCC 317 ). 10. The scope of judicial review in contractual matters is well delineated by catena of decisions of the Supreme Court. In case of Sanjay Kumar Shukla vs. Bharat Petroleum Corpn. Ltd., (2014) 3 SCC 493 , it has been held that Court should be vigilant against agitation of private disputes under the writ jurisdiction when there is no improper exercise of power on the part of public authority. In case of Sanjay Kumar Shukla vs. Bharat Petroleum Corpn. Ltd., (2014) 3 SCC 493 , it has been held that Court should be vigilant against agitation of private disputes under the writ jurisdiction when there is no improper exercise of power on the part of public authority. It has further been held that power of judicial review has to be exercised only when justified by public interest having due regard to the fact situation of the case. In Bakshi Security and Personnel Services (P) Ltd. vs. Dev Kishan Computed (P) Ltd., (2016) 8 SCC 446 , the Supreme Court summarized the principles with regard to interference in contractual matters and it was held that power of judicial review cannot be invoked to protect the private interest over the public interest or to decide contractual disputes. It has been further held that before exercising the power of judicial review, the court must pose to itself the questions, namely, whether process adopted or decision made is mala fide or intended to favour someone, whether process adopted or decision made is so arbitrary and irrational that no responsible authority acting reasonably in accordance with law could have reached such a decision and whether public interest is affected. In case of JSW infrastructure Ltd. vs. Kakinada Seaports Ltd (2017) 4 SCC 170 , the Supreme Court once again reiterated the principles of judicial review/interference in contractual matters and held that if decision of the authority suffers from arbitrariness or perversity, then constitutional Court can interfere with the decision making process. 11. In the backdrop of aforesaid well settled legal position, the facts of the case may be seen. In the instant petition, the petitioner was awarded the contract for charging the parking fee. The case of the petitioner is that respondent No. 6, in fact, has parked buses instead of matadors. On the other hand, respondent Nos. 1 to 5 has taken a stand that the team of officials had visited the spot and found the buses and trucks in the parking slot and therefore, the contract of the petitioner after considering the reply submitted by the petitioner has been rescinded. On the other hand, respondent Nos. 1 to 5 has taken a stand that the team of officials had visited the spot and found the buses and trucks in the parking slot and therefore, the contract of the petitioner after considering the reply submitted by the petitioner has been rescinded. The question, whether in the parking slot, the buses were parked or the matadors were parked or the buses were parked at the instance of respondent No. 6, is a disputed question of fact, which cannot be gone into in the instant writ petition, therefore, the decision to rescind the contract by the respondents, cannot be said to be arbitrary, irrational or perverse. If that be so, in the fact situation of the case, no case for interference is made out. 12. Needles to state that the petitioner shall be at liberty to take recourse to such remedy, as may be available to her under the law, and in case the petitioner resorts to such remedy, the competent Court shall deal with the controversy, which may be agitated by the petitioner without being influenced by the observation made in this order. 13. With the aforesaid liberty, writ petition is disposed of along with connected MP.