Bombay High Court
Eagle Digital Scale, Nagpur Through Its ... vs Chandrapur City Municipal ... on 17 March, 2016
Author: B.P. Dharmadhikari
Bench: B.P. Dharmadhikari, P.N. Deshmukh
Judgment. wp5867.15
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO. 5867 OF 2015.
Eagle Digital Scale, A Partnership
Firm registered under the
Indian Partnership Act, 1932
having its office at 3rd Floor,
NKY Towers, Ajni Square, Nagpur,
through its partner
Mr. Ashok Singh. ..... PETITIONER.
VERSUS
Chandrapur City Municipal
Corporation, Chandrapur,
through its Commissioner. ..... RESPONDENT.
--------------------------
Shri S.P. Dharmadhikari, Senior Advocate with
Shri S.A. Dharmadhikari, Advocate for the Petitioner.
Shri M.I. Dhatrak, Advocate for Respondent.
--------------------------
CORAM : B.P. DHARMADHIKARI
& P.N. DESHMUKH
,
J J.
DATE : MARCH 17, 2016.
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Judgment. wp5867.15
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ORAL JUDGMENT : (Per : B.P. Dharmadhikari, J.)
Heard Shri S.P. Dharmadhikari, learned Senior Counsel along with Shri S.A. Dharmadhikari, learned Counsel for the petitioner and Shri M.I. Dhatrak, learned Counsel for the respondent. By their consent the Writ Petition is taken up for final hearing, by issuing Rule, making the same returnable forthwith.
2. Because of policy to curb entry of overloaded heavy motor vehicles within the Corporation limits, the petitioner has been awarded work of constructing/installing electronic weigh bridges at 5 entry points of Chandrapur Town. Accordingly an agreement was entered into between the parties. The agreement specifically stipulates that the work is to be completed within a period of 90 days, after the site is handed over, and all permission for said work are given by the competent Authority.
3. Case of petitioner is, in relation to three sites as yet ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:19:34 ::: Judgment. wp5867.15 3 necessary permissions are not given. Erection of weigh bridges at Mul road entry point and Nagpur road entry point is already over and the weigh bridges could have been made functional, and operated by it after formal inauguration in June, 2015 itself.
4. Challenge in this background is to a communication sent by the Deputy Municipal Commissioner on 12.06.2015, alleging that the petitioner has not completed work within the stipulated time and work was found going on during their visit.
Petitioner has, therefore, been called upon to stop the work.
This communication has been replied to by the petitioner. He has pointed out the work of erection of weigh bridges at Nagpur road and Mul road entry points was already over and in relation to remaining three sites, necessary permission were still awaited. This reply of the petitioner dated 15.06.2015, has been further replied to by the Municipal Corporation on 18.6.2015. It is reiterated that actual work was not complete.
It is further mentioned that the work ought to have been ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:19:34 ::: Judgment. wp5867.15 4 completed within 90 days or at least within 180 days. The P.W.D. has given permission on 09.09.2014, and hence, the work should have been completed within stipulated time from 09.09.2014.
5. The communication does not show as to how claim of petitioner that weigh bridges at Mul Naka and Nagpur Road Naka were fully erected is, incorrect. Similarly, the stand of petitioner that in relation to other three sites, necessary permission has not been received, has not been dealt with. The averments may give rise to disputed questions of facts.
6. Contract between the parties contains a clause for termination. Said Clause no.12 prescribes giving of 30 days notice and an opportunity to the petitioner, before decision to terminate is taken. This procedure has not been followed and hence facts have not been crystalized.
7. Here the impugned communication at the most ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:19:34 ::: Judgment. wp5867.15 5 suspends the work, but, does not terminate the contract. The suspension of work continues from 12.06.2015, and as no outer time limit has been mentioned it is to continue in future indefinitely.
8. Respondent has pointed out that the agreement vide Clause no.13, provides for a procedure of settlement of dispute and vide clause no.14, an arrangement for arbitration. Clause 13 requires the petitioner to complete certain formalities, if he wants to raise a dispute for consideration of the Corporation.
In that event, he has to give sufficient prior intimation and also necessary details in writing within a period of one month of the cause of such claim. Here according to the petitioner the dispute is being raised by the Municipal Corporation.
Arrangement for arbitration can be taken recourse to when such a dispute raised by the petitioner is not resolved under Clause 13. The respondent has avoided to act and terminate contract. It appears to to be satisfied with status-quo.
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9. In present situation, when the agreement has been entered into between the parties, in public interest and two of the weigh bridges have already been made functional and are lying idle since June 2015, we are not inclined to accept the contention of Shri Dhatrak, learned counsel appearing on behalf of the respondent, that this Court should not intervene in writ jurisdiction, in view of contract. The respondent Municipal Corporation has apart from suspending the work from 12.06.2015, has not proceeded to protect interest of public. The contract has not been put to an end or then no action has been taken against the petitioner. Thus, investment into two weigh bridges is going waste and what ever work which could have been undertaken on other sites in terms of the award of contract to curb entry of overloaded vehicles, within the city limits, has not been done. Thus, public revenue is made to suffer and public roads may also continue to be damaged.
10. It needs to be noted that the Municipal Corporation ::: Uploaded on - 22/03/2016 ::: Downloaded on - 31/07/2016 09:19:34 ::: Judgment. wp5867.15 7 has not pointed out that the claim of petitioner on affidavit in relation to other three sites, necessary permission has not been received till date, is incorrect or false.
11. We therefore, in the interest of general public, quash and set aside the communication dated 12.06.2015. The Municipal Corporation shall immediately proceed to take necessary steps to see that the two weigh bridges i.e. the weight bridge on Mul Road and Nagpur Road naka, can be made operational immediately.
12. Similarly, the respondent Municipal Corporation shall attempt to assist the petitioner in procuring the permission for other three sites. Writ Petition is thus, partly allowed and disposed of.
13. Rule is made absolute in the aforesaid terms, with no order as to costs.
JUDGE JUDGE
Rgd.
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