Abhay Kumar Singh v. Municipal Corporation of Delhi

1. Present petition has been filed seeking quashing/declaring the etender notice for allotment of Authorized Surface Parking bearing AC/RPC/MCD/2024/D-655 dated 18th June, 2024 issued by the respondent in respect of parking site “Near Police Station Shakarpur Thana” at serial No.49 as null and void. The petitioner also seeks a direction to the respondent to act in accordance with the terms of the Tender Document bearing NIT No. 1602 dated 29th December, 2022, and to calculate the Monthly License Fee (hereinafter referred to as “MLF”) as per the new map.

2. The petitioner states that the respondent had invited tenders on 29th December, 2022, in respect of a parking site “Near Police Station Shakarpur Thana”. The said parking site was listed at item No. 39 with a minimum Monthly Reserve Price (hereinafter referred to as “MRP”) of Rs.1,89,825/- for a period of three years with a further option to extend the same for a period of two years.

3. It is stated that the petitioner was declared as the successful bidder vide the offer letter dated 3rd May, 2023. The petitioner was informed that the said parking site was allotted for a period of three years with an option to extend for a further period of two years though at the option of the respondent at the MLF of Rs.2,99,999/-. Vide the possession letter dated 23rd May, 2023, the said parking site was handed over to the petitioner on 24th May, 2023, for a period of three years.

4. It is stated that while the petitioner was continuing to perform under the terms of the tender, vide letter dated 16th April, 2024, the respondent MCD communicated to the petitioner that vide the letters dated 26th October, 2023, and 7th February, 2024, the Delhi Transco Limited had informed the respondent that a substantial portion of the parking site cannot be utilized for the said purpose on account of high tension wires running over those affected areas and thus not being available for parking purposes. It is further stated that in the very same letter, the Competent Authority had revised the MLF to Rs.1,99,999/- from the date of issuance of the said letter.

5. It is further stated by the petitioner that the respondent had issued the impugned e-tender notice dated 18th June, 2024, for the said parking site placed at serial no. 49 at a revised MLF of Rs.42,000/- while the contract of the petitioner was subsisting. It is stated that the last date for submission of bids was 10th July, 2024. Being aggrieved of the same, the petitioner is stated to have issued a communication dated 21st June, 2024, to the respondent requesting it to withdraw the e-tender dated 18th June, 2024. Finding no response, the petitioner filed the present writ petition challenging the aforesaid re-tendering. Contentions of learned senior counsel for the petitioner:-

6. Mr. Kirti Uppal, learned senior counsel appears for the petitioner and submits that the actions of the respondent are arbitrary, illegal, perverse and contrary to the principles of natural justice and fair play. He submits that despite the fact that the contract was valid and subsisting for a period of three years from the date of actual possession, i.e., 24th May, 2023, coupled with the fact that the said contract has never been terminated, retendering of the very same site is contrary to the terms of the contract itself and the impugned e-tender dated 18th June, 2024, is liable to be quashed and set aside.

7. Learned senior counsel submits that no notice of any nature whatsoever has at all been issued by the respondent to the petitioner before the unilateral and arbitrary decision to re-tender the very same parking site was issued by way of the impugned e-tender. He submits that it was the respondent itself that had not only reduced the area of operation but also had reduced the MLF to Rs.1,99,999/-, which the petitioner had willingly agreed to. This, he submits, that the petitioner was willing to accede to, despite the reduction in an area to the extent of 2/3rd leaving only 1/3rd portion of the original area of the contract. Thus, according to learned senior counsel, from the conduct of the parties, it appears that a revised contract has been worked out between them and agreed to. He submits that having regard to this, the respondent could not have issued the impugned etender dated 18th June, 2024.

8. Learned senior counsel also submits that once the petitioner is ready and willing to run the parking site with reduced area at an MLF of Rs.1,99,999/- which is substantially higher than the revised MLF of Rs.42,000/- as per the impugned revised e-tender, it would cause no loss to the exchequer, which ought to have been considered and accepted by the respondent. Thus, he submits that the re-tendering of an already re-tendered contract is neither envisaged nor permissible in law.

9. Mr. Uppal also invites attention to Clause 6 of Section II respecting “Instructions to Bidders” of the tender document dealing with the premature closure of the contract. He submits that even according to the said clause, assuming that the Government or any instrumentality required some area of the parking site and the respondent retained the right to cancel the license agreement, the same could only be done by giving one month’s notice in writing. Learned senior counsel vehemently submits that no such notice in terms of Clause 6 has been issued to the petitioner till date. According to him, the non-issuance of one month’s notice would be fatal to the action of re-tendering and as such, the impugned e-tender dated 18th June, 2024, is liable to be quashed and set aside.

10. Learned senior counsel also submits that the respondent had power only to reduce the area in the public interest and correspondingly adjust the MLF. According to learned senior counsel, the said area was not only reduced but even the MLF was correspondingly adjusted. That having been done, he submits that the respondent had no power to unilaterally terminate the contract. Even on this score, the respondent MCD has miserably failed to give reasons as to why then, the need for re-tendering arose. Thus, he submits that for lack of reason, the action of re-tendering was arbitrary, perverse and unconstitutional. He submits that on this ground, the impugned e-tender dated 18th June, 2024, ought to be quashed. Contentions of learned counsel for respondent:-

11. Per Contra, Mr. Manu Chaturvedi, learned counsel for the respondent submits that the said re-tendering has been conducted in accordance with the terms of the original contract itself. He relies upon Clause 10(A) of the original contract dated 29th December, 2022, respecting termination of the contract. He invites the attention of this Court, particularly to Clause B to submit that once the Delhi Transco Limited had communicated that 2/3rd of the parking site cannot be utilized for such purpose in view of the high tension wires over the said area, making it dangerous to human life, there was no option with the respondent but to reduce the area. He submits that once the area to the extent of 2/3rd was reduced, the original tender had undergone a substantial material change in specifications.

12. He further submits that having regard to the fact that the parking site itself underwent a substantial change in area from the original area as per the original tender dated 29th December, 2022, the remaining 1/3rd portion could not have been leased out at the MLF of Rs.1,99,999/-. He submits that keeping in view the substantial difference in the area on account of the letter of Delhi Transco Limited, the respondent had no choice other than to call for fresh tenders in respect of the remaining portion. He submits that the entire parking site was one single unit not divisible in three portions like the learned senior counsel for the petitioner has sought to portray, and therefore, the said area having undergone a transformation in terms of area available for parking site, the respondent did not have any choice other than to re-tender.

13. Learned counsel also submits that according to sub-Clause (b) of Clause 10(A), once the land of the parking lot is required or taken from the respondent by any Government Authority, then in that case, the Clause stipulated that the agreement would automatically stand terminated. On the strength of the aforesaid sub-clause too, learned counsel submits that the present writ petition has no merits. Analysis and Conclusion:-

14. This Court has heardthe arguments of Mr. Kirti Uppal, learned senior counsel for the petitioner as also Mr. Manu Chaturvedi, learned counsel for the respondent. We have also minutely scrutinized the tender documents placed on record by the petitioner.

15. We observe from the arguments addressed by the parties as also by the covenants in the original contract coupled with the letters/correspondences placed on record that the petitioner has neither disputed nor challenged the stand of the respondent regarding the letters issued by the Delhi Transco Limited. It is clear from the letter dated 16th April, 2024, that the petitioner was informed about the reduction in the area on cogent grounds of Delhi Transco Limited informing the respondent about the unviability of usage of 2/3rd portion of the parking site due to overhead hanging high tension electricity cables running over the said area. It is apparent that the said cables made the said area unviable and also dangerous to human life and property. The decision of the Delhi Transco Limited prohibiting the usage of said 2/3rd portion even otherwise cannot be disputed or challenged by the petitioner. Thus, there can be no quarrel that the parking site to the extent of the original area awarded vide the original e-tender dated 29th December, 2022, was drastically reduced resulting in substantial material change in the terms and condition of the original e-tender and contract thereto.