Sanjay Yadav v. North Delhi Municipal Corporation

23. The petitioner‟s legal remedy against the respondent‟s alleged illegal action of not being able to handover the tendered site to the petitioner despite accepting deposits from him, is by way of seeking specific performance of the LOI or Provisional Allotment letter dated 11.11.2021, if at all the same is still made out in law on the facts of the case, and not by way of a writ petition.

24. At this stage, it is deemed apposite to advert to the decisions in Jagdish Mandal v. State of Orissa and Others reported as (2007) 14 SCC 517, Maa Binda Express Carrier and Another (Supra), Bharat Coking Coal Limited and Others v. AMR Dev Prabha and Others reported as (2020) 16 SCC 759 and Uflex Ltd. (Supra), wherein the scope of judicial review in tender/contractual matters, while exercising extraordinary jurisdiction under Article 226 of the Constitution of India, has been indicated to be limited.

25. The principles governing the exercise of judicial review in tender/contractual matters are well-settled. A perusal of the judicial dicta on the subject would show that Court(s) in seisin of said matters are ordained to determine the following issues/questions:i) Whether the process adopted or decision made by the authority is malafide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the Court can say: “the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”; ii) Whether public interest is affected If the answers are in the negative, there should be no interference under Article 226 of the Constitution of India. However, cases involving blacklisting or imposition of penal Digitaaly consequences on a tenderer/contractor or distribution of state largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action. Further, a constitutional Court in tender/contractual matters shall be concerned only with lawfulness of a decision, and not its soundness [Refer: Jagdish Mandal (Supra), Maa Binda Express Carrier (Supra) and Bharat Coking Coal Limited (Supra)].

26. Insofar as the question of malafide is concerned, this Court does not find that the retendering by the respondent is actuated by malice or malafide intent. It is noticed that there is no sufficient pleading of malafides in the petition, barring a bald averment. Besides, issuance of an NIT for a parking site that could not have been tendered in the first place can at best be said to be an act of sloppiness on the part of the respondent but it cannot be termed as a malafide act aimed at the petitioner. Likewise, the act of retendering of the parking site by the respondent in the present case seems to be actuated by the need to rectify its original mistake. The same cannot be stretched to cast aspersions on the respondent‟s intent, in the absence of specific plea in the petition supported by credible evidence. On the other two principles laid down by the Hon‟ble Supreme Court, as referred to above, this Court does not find the actions of the respondent to be unreasonable or arbitrary so as to warrant interference, by stalling the process of retendering. This Court also does not see any public interest involved in the matter that would justify intervention.

27. On the aspect as to whether there was a concluded contract between the parties, this Court is guided by the observations made by the Supreme Court in Rishi Kiran Logistics Private Limited (Supra), wherein the right of the respondent/Port Trust to cancel the initial tender process in absence of a concluded contract was recognised and it was held:-

28. Reference may also be made to South Delhi Municipal Corporation (Supra), where the Supreme Court was in seisin of a case similar to the present case, inasmuch as the tender initially invited by the South Delhi Municipal Corporation was cancelled and a fresh tender issued. The Court observed that the decision of the Corporation to cancel the initial tender was not violative of Article 14 of the Constitution of India, as the same was not established to have been actuated by malafide in order to favour any particular bidder. Excerpt from the decision, relevant to the present case, is reproduced hereunder:- “18.6. Further, the High Court has failed to consider another important fact that the Government being guardian of public finance it has the right to refuse the lowest or any other tender bid or bids submitted by the bidders to it provided its decision is neither arbitrary nor unreasonable as it amounts to violation of Article 14 of the Constitution of India. The appellant Corporation's decision in cancelling its earlier tender is not in violation of Article 14 of the Constitution of India, as the High Court did not find any mala fide intention on the part of the appellant Corporation to favour someone in taking such decision. The appellant Corporation's decision in cancelling the earlier tender notice Digitaaly vide corrigendum dated 30-11-2012 and then issuing a subsequent tender notice dated 13-12- 2012 inviting fresh bids from eligible persons for the same works was with a bona fide intention to get better and reasonable rates from the bidders for the execution of the works and not to show favouritism in favour of any bidder. …”

29. Recently in, Bharat Coking Coal Limited and Others (Supra), it was held as under:-

30. In view of the above decisions, it is deemed expedient to not delve into determination of the question whether or not there was a concluded contract between the parties.

31. The petitioner has referred to the decisions in Kusheshwar Prasad Singh (Supra) and Haryana Financial Corporation and Another (Supra) to canvass the proposition of law that the respondent cannot take advantage of its own wrong. However, in my considered view, it is not a case of the respondent taking advantage of its own wrong. Rather, it is a case of the respondent „correcting‟ its own wrong. No advantage is gained by the respondent over the petitioner‟s rights through their actions when the petitioner has not acquired any vested right in the site/area as discussed above. Besides, the petitioner has a right to take appropriate legal action against the respondent for legal injury, if any, caused to him.

32. Before parting with the issue, it may also be observed that prima facie, the respondent appears to have been under a “mistake of fact” regarding the parking area available with it at the time of inviting the initial tender, which was clarified only when the petitioner started operating at the parking site and faced resistance. For that reason, it was necessitated that Digitaaly the parking area be retendered. As such, the act of tendering and cancellation of the initial tender by the respondent, and the subsequent issuance of a corrigendum/addendum, cannot be said to have been arbitrary or unreasonable. Moreover, in case the respondent had continued with the process of allotment under the initial tender, which suffered from a deficiency/error, the same would have eventually raised questions of legality and propriety.

33. Notably, in exercise of power under Article 226 of the Constitution of India, the Court would not interfere in a tender/contractual matter even if a procedural aberration or prejudice to a tenderer is made out, as long as the award of contract and/or the tender process was carried out bonafide and in public interest. Accordingly, under writ jurisdiction, this Court is not inclined to entertain a disguised plea of specific performance. If at all, the petitioner feels aggrieved by the actions of the respondent, he is at liberty to seek appropriate remedy by way of a civil suit. It is clarified that observations made hereinabove shall not prejudice the respective rights and contentions of the parties that may arise in any legal proceedings that might be pursued before an appropriate forum.

34. At the same time, however, keeping in view the facts and circumstances of the case, this Court deems it expedient in the interest of justice to direct that in case the petitioner is desirous of participating in the retender issued by way of corrigendum/addendum dated 11.04.2022, the respondent may permit him to do so, subject to fulfilment of conditions thereof. The respondent is directed to issue an appropriate NOC, to enable the petitioner to participate in the retender, if he so desires.

35. With the above observations, the present petition is dismissed. Miscellaneous applications are disposed of as infructuous.”

4. Mr. Ajay Verma, Learned Senior Counsel on behalf of the Appellant submits that Appellant‟s bid was made on the basis of the area provided for in the NIT dated 09.10.2020, and the Appellant was the successful bidder in Digitaaly the said tender. He contends that the Respondent had made a misrepresentation in the NIT regarding the area of the parking site, and instead of rectifying the area upon conducting a survey, the Respondent Corporation decided to retender the parking site. He contends that this amounts to a violation of the fundamental rights of the Appellant. He submits that there are no reasons given for the decision to re-tender the said Parking site.

5. Mr. Verma submits that the Learned Single Judge has erred in relying on the contention of the Respondents-herein that there was no contract between the Respondent Corporation and the Petitioner. It is his submission that his bid was accepted by the Respondent, and an LOI was issued to the Appellant, which was accepted by him and an Allotment Letter was subsequently issued to the Appellant. The Appellant was given an extension of time by the Respondent Corporation regarding payment and the possession of the said parking site was also handed over, and payments were made by the Appellant towards the monthly fee payable to the Respondent Corporation, and payment towards the same were accepted even after the survey was conducted. It is his submission that all of the aforesaid acts establish that there was a contract concluded between the parties. He further submits that the NIT itself constitutes a contract between the parties.

6. It is submitted by Mr. Verma that the Learned Single Judge has erred as the Appellant was not challenging the Tender of 2020 before the writ court, but was challenging the arbitrary, unfair and mala fide decision of not rectifying the area of the parking site and re-tendering the said parking site instead of reducing the Monthly License Fee payable by the Appellant. Digitaaly

7. It is further submitted by Mr. Verma that the Ld. Single Judge‟s reliance upon the decisions in South Delhi Municipal Corporation v. Ravinder Kumar & Anr., (2015) 15 SCC 545; Rishi Kiran Logistics Pvt. Ltd. v. Board of Trustees of Kandla Port Trust &Ors., (2015) 13 SCC 233; Maa Binda Express Carrier & Anr. v. North East Frontier Railway & Ors, (2014) 3 SCC 760; and Uflex Ltd. v. Govt. of Tamil Nadu & Ors, (2022) 1 SCC 165; is incorrect and the aforesaid decisions are inapplicable to the facts and circumstances of the present case.

8. Mr. Verma submits that the actions of the Respondent Corporation are arbitrary, capricious, unreasonable, unfair and violative of Article 14. He submits that the Respondent Corporation accepted payment from the Appellant, even though the Appellant was not permitted to use the entirety of the area prescribed in the NIT. He states that the Appellant has invested substantive amount of money and effort into the site. He states that the Appellant has paid a sum of Rs. 1.31 Crore in good faith to the Respondent Corporation. He contends that decision of the Respondent Corporation to retender the subject parking site, instead of rectifying the monthly fee payable by the Appellant herein is unfair and arbitrary. He states that the Appellant is being treated in this manner for no fault of his as it was the Respondent Corporation which has made an error in informing the Appellant about the area of the said parking site. He has stated that the monthly license fee payable, as set by the Respondent Corporation herein is based upon the total area of land, whereas the actual area of the parking site, transferred to the MCD by the DDA was only 5005 square metre. It is his contention that the action of the Respondent to call for bids, for an incorrect area of a parking site, transferred over an year prior to the bid and then accepting the highest Digitaaly bid of the Appellant and accepting monthly license fee payable based on that incorrectly specified area amounts to fraud played by the Respondent Corporation. He relies upon the decision in Kusheshwar Prasad Singh v. State of Bihar & Ors, (2007) 11 SCC 447; and Haryana Financial Corporation & Anr. v. Rajesh Gupta, (2010) 1 SCC 655 in support of his argument.

9. It is submitted by Mr. Verma that the conduct of the Appellant has been bona fide unlike the conduct of the Respondent Corporation. He states that the Appellant has at all times complied with the directions of MCD. The Respondent on the other hand and induced the Appellant to invest substantially in the site and pay an amount of Rs. 1.31 Crores and after rectifying the area of the parking site, it ought to have reduced the monthly license fee payable but chose not to do so.

10. It is further submitted by Mr. Verma, that the Respondent herein is trying to wish away the NIT dated 09.10.2020 and all acts done thereunder by re-tendering the said parking site, after the bid of the Appellant herein had been accepted, and the parking site allotted to him. He contends that the Ld. Single Judge cannot justify the actions of the Respondent on the ground that it was a mistake.

11. Mr. Verma submits that the actions of the Respondent is also in violation of the principles of natural justice, as no hearing was provided to the Appellant before taking any decision to its detriment, especially after the Appellant had made huge investments into the subject Parking Site.

12. Mr. Verma relies upon the judgments in Mihan India Ltd. v. GMR Airports Ltd., 2022 SCC Online SC 574; Akash Exploration Services v. ONGC, Manu/GJ/1207/2019; Sical Logistics Ltd. v. Mahanadi Coalfields Digitaaly Ltd., 2017 (II) ILR-CUT-1035 (DB); State of U.P. v. Sudhir Kumar Singh, 2020 SCC OnLine SC 847; and J.S. Luthra Academy & Anr. v. State of J&K, (2018) 18 SCC 65, in support of his submissions.

13. Mr. Sanjay Poddar, Learned Senior Counsel appearing on behalf of the Respondent Corporation, at the outset, have submitted that the Ld. Single Judge has correctly refused to exercise its writ jurisdiction under Article 226 of the Constitution of India. He has highlighted that there exists an arbitration clause, under Clause 32 of the terms and conditions of the NIT and the Appellant herein was aware of the same, and yet chose to approach this Court by way of a writ petition, which is incorrect. He submits that the Respondent Corporation provided the Appellant full access to the terms and conditions of the NIT, and the bidders were required to peruse the same before submitting their bids for the tender. One of the conditions of the NIT was that the bidder was required to upload a signed copy of the terms and conditions of the NIT and this was done by the Appellant herein. He submits that it is clear that the Appellant has perused the terms and conditions of the NIT in entirety and is also aware of the Arbitration Clause under Clause 32 of the NIT at the time of filing of the underlying Writ Petition.

14. It is further submitted by Mr. Poddar that the Appellant‟s decision to file a writ petition, and not refer the dispute to arbitration, while being aware of the arbitration clause under the NIT amounts to a waiver of the Appellant‟s right to refer the dispute to arbitration under Section 3 and 8 of the Arbitration & Conciliation Act, 1996.

15. It is submitted by Mr. Poddar, that the Respondent Corporation, being a public body discharging public function with public funds, has not acted in a mala fide manner and has merely attempted to rectify a bona fide mistake Digitaaly by re-tendering the parking site vide the corrigendum dated 11.04.2022. The bona fide actions of the Respondent Corporation can be seen from the Respondent‟s decision to accommodate the Appellant when he was unable to pay 8 month‟s Monthly License Fee deposit by 12.10.2022 as per the Letter of Intent issued to him. The Respondent has also permitted the Appellant to continue at the parking site during pendency of the present appeal even though no interim order has been passed in favour of the Appellant herein.

16. It is further submitted by Mr. Poddar that despite the bona fide actions of the Respondent Corporation to accommodate the Appellant, the Appellant has reused to make any payment since March 2022, even at the proportionately reduced Monthly License Fee of Rs. 16,38,636/- as cited in the corrigendum dated 11.04.2022. This proportionately reduced amount was calculated on the basis of ECS recalculated by one Deepali Consulting Engineers, which participated in the joint inspection of the parking site on 05.03.2022, which included the Appellant, officials of DDA, the Respondent and an Independent Agency being Deepali Consulting Engineers.

17. Mr. Poddar has brought to the attention of the Court, the terms and conditions of the NIT regarding the payment of Fixed Deposit/Security Deposit and the Monthly License Fee. He has drawn our attention to Clause 5(a) of the terms and conditions of the NIT titled “Responsibility of tenderer before offering bid”. The said clause provides that the tenderer shall inspect the parking site which will be given on an „as is where is‟ basis and the tenderer may obtain necessary clarification if any regarding the same to his full satisfaction before offering bid for the same. It further provides that no objection shall be entertained post the award off the LOI and any dispute Digitaaly that appears later shall be the responsibility of the contractor. He therefore submits that it was the Appellant‟s responsibility to acquaint himself of all local/parking site conditions before offering the bid and the Appellant cannot be allowed to raise a dispute regarding the same now. He states that the Appellant failed to comply with mandatory provisions of the NIT and there is no agreement between the parties, which is a mandatory condition for availing the benefit under the said tender.

18. Mr. Poddar submits that even if the contention of the Appellant herein is accepted, that the Respondent Corporation has made a misrepresentation of facts, then it was open to the Appellant herein to avoid the contract, however the Appellant herein has not done so and continued to reap the benefits of operating the subject parking site and earn parking fee without paying the monthly license fee to the Respondent. Not only has the Appellant refused to pay the amount due, it is also not allowing the Respondent Corporation to re-tender the parking site.

19. Mr. Poddar further submits that the total arrears of Monthly License Fee due to the Respondent Corporation till 14.01.2023 by the Appellant is Rs. 5,22,73,174/-. The Appellant is clearly making an undue gain by operating the said parking site, in the absence of an interim order of this Court, by not paying the Monthly License Fee to the Respondent since March 2022 and not allowing the Respondent Corporation to re-tender the said parking site in a bona fide manner. Such conduct on part of the Appellant disentitles the Appellant from any discretionary relief.

20. Mr. Poddar relies upon the judgments in Sudhakar Tiwari v. Delhi Development Authority, 2016 LAWPACK (Delhi) 58880; Kalabharati Advertising v. Hemant Vimalnath Narichania and Ors., (2010) 9 SCC 437; Digitaaly Thomas Cook (India) Ltd. v. Hotel Imperial & Others, 127 (2006) DLT 431; and Rajesh Kumar Singh v. South Delhi Municipal Corporation, 271 (2020) DLT 325 (DB) in support of his submissions.

21. Heard learned senior counsels appearing for the parties and perused the material on record.

22. At the outset, it is apposite to examine the Impugned Judgment of the Learned Single Judge.The following aspects emerge from a reading of the said judgment: a. The Learned Single Judge has noted that the Respondent Corporation had issued a provisional letter of allotment dated 11.11.2021 to the Appellant, indicating that the provisional allotment was subject to certain conditions, including the signing of a contract between the parties, which admittedly has not been done. b. The Learned Single Judge has observed that the Appellant‟s right to seek a redressal of his legal injury caused by the Respondent, if any, and the Respondent‟s right to re-tender the subject parking site are mutually exclusive. c. It is observed that the Respondent‟s decision to retender the parking site cannot be faulted with since the subject matter of the tender has fundamentally changed and the dynamics of the two offers will also change, therefore the terms and conditions of the offer may also change with a change in the area of the subject parking site. d. The Learned Single Judge noted that the scope of judicial review of a Court in exercise of its powers under Article 226 of the Constitution of India in tender/contractual matters is limited. Digitaaly e. Regarding the plea of mala fide made by the Appellant herein, the Learned Single Judge observed that there is no sufficient pleading of mala fides in the petition, barring a bald averment. With regard to the issuance of an NIT for a parking site that could not have been tendered in the first place can at best be an act of sloppiness made due to a mistake of fact and not mala fideas alleged by the Appellant-herein, and the act of re-tendering by the Respondent is to rectify its original mistake. f. The Learned Single Judge has relied upon the decision in Rishi Kiran Logistics Private Limited (Supra), South Delhi Municipal Corporation (Supra), and Bharat Coking Coal Limited and Others (Supra) to state that it was not expedient for the Court in exercise of its writ jurisdiction to delve into the determination of the question whether or not there was a concluded contract between the parties. g. The Learned Single Judge noted that the present case is not a case where the Respondent is taking advantage of its own wrong, as no advantage has been gained by the Respondent, bur rather it is a case of the Respondent correcting its own wrong. h. It has been observed by the Learned Single Judge that prima facie the Respondent appears to have been under a mistake of fact and has not acted in an arbitrary or unreasonable manner. i. Lastly, it has been observed by the Learned Single Judge that if the Appellant-herein is aggrieved by the actions of the Respondent, he is at liberty to seek appropriate remedy by way of a civil suit, and writ jurisdiction of the Court is not the appropriate remedy. The Appellant was permitted to participate in the re-tender, if the Appellant so desires. Digitaaly

23. At this juncture, this Court deems it appropriate to outline that the scope of interference by a Court exercising power of judicial review in respect of contract entered into on behalf of the State. It has been observed consistently by the Supreme Court in several judgments that the Court may interfere in an administrative decision, if and only if the same is arbitrary, irrational, unreasonable, mala fide or biased. The Hon‟ble Supreme Court in Tata Cellular v. Union of India, (1994) 6 SCC 651, has stated as follows:

24. The Hon‟ble Supreme Court in Central Coalfields Ltd. v. SLL-SML (Joint Venture Consortium), (2016) 8 SCC 622; relying upon Tata Cellular (supra) and Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, held that if an administrative decision is not arbitrary, irrational, unreasonable, mala fide or biased, the Courts will not judicially review the decision taken. A contract is a commercial transaction, meaning thereby that evaluating tenders and awarding contracts are essentially commercial functions and principles of equity and natural justice stay at a distance. If the decision Digitaaly relating to award of contract is bona fide and in public interest, the courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review cannot be permitted to be invoked to protect private interest at the cost of public interest or to decide contractual disputes.

25. Summing up the principles laid down in Tata Cellular (supra), Jagdish Mandal (supra), Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay, (1989) 3 SCC 293; and Central Coalfields (supra), the Hon‟ble Supreme Court in Afcons Infrastructure Ltd. v. Nagpur Metro Rail Corpn. Ltd., (2016) 16 SCC 818, stated:

26. In Silppi Constructions Contractors v. Union of India, (2020)16 SCC 489, the Hon‟ble Supreme Court has followed the aforesaid judgments and reiterated the principle that Courts should exercise a lot of restraint while exercising powers of judicial review in contract or commercial matters. The relevant portion of the Judgment is reproduced as under:

27. From the aforestated judgments, it is clear that the scope of interference by way of judicial review in commercial matters is extremely limited and can only be justified when a case of arbitrariness, unreasonableness, mala fide, bias or irrationality is clearly made out. In the absence of the same, the Courts should exercise restraint and not interfere even if a procedural aberration or error in assessment or prejudice to a tenderer is made out.

28. In view of the aforesaid, we do not find any merit in the submission made on behalf of the Appellant, that the Learned Single Judge has erred by relying upon the decisions in South Delhi Municipal Corporation (Supra), Digitaaly Rishi Kiran Logistics Pvt. Ltd. (Supra), Maa Binda Express Carrier &Anr. (Supra) and Uflex Ltd. (Supra). We find no infirmity in the observations made by the Learned Single Judge that the scope of interference in a tender matter or a matter pertaining to government contracts is extremely limited and that the Court should be circumspect in exercising its writ jurisdiction in such matters.

29. As per the facts of the case, the Respondent issued a provisional allotment letter dated 11.11.2021 to the Appellant herein. The provisional allotment was done on the basis of certain conditions to be fulfilled by the Appellant. Admittedly, the parties before us have not entered into an agreement as per Clause 8 of the terms and conditions of the NIT and the Appellant has been in possession of the subject parking site on the basis of the provisional allotment letter. The provisional allotment letter dated 11.11.2021 is reproduced hereinbelow for the sake of convenience: “ Provisional Allotment Letter A letter of intents was issued to you vide No. DC/RP Cell/ NDMC/2021/D-755 dated 05.10.2021 being a H-1 bidder of parking site situated at Truck Parking Timarpur, Delhi/Civil Lines Zone and as per the Terms and Conditions, you are directed to accept Letter of Intent and deposit the requisite amount within 07 days. In reference to the above said Letter of Intent, your request dated 18.10.2021 and 25.10.2021 has been received in this office wherein you are submitted that you are not in a position to immediately deposit the Security Deposit and earnest money and you are willing to deposit the quoted Monthly License Fee, if the possession is handed over to you and the balance amount will be deposited within 04-06 months with applicable charged/interest. Digitaaly You are request has been examined and Competent Authority vide his Orders dated 11.11.2021 accorded approval to run the aforesaid parking site purely on the provisional/temporary basis subject to the fulfilment of following conditions:-

1) You will deposit one month MLF of Rs.36,51,000/- + TCS within 48 hours of issuing this Provisional Allotment Letter.

2) You will deposit the Monthly License Fee on or before 05th of the every month is subsequent months failing which the possession of the site will be immediately taken over by the North DMC from the parking contractor without further communication.

3) You will deposit the entire Security Deposit i.e. Rs.2,82,63,000/- by 31.01.2022 failing which the provisional allotment will be cancelled and physical possession of the site will be taken without further communication and shall be proceeded for further allotment as per procedure decided by North DMC including etender. You are hereby directed to submit an undertaking that you will comply with the above mentioned conditions. You should deposit one Month License Fee i.e. Rs.36,51,000/- + TCS @ 2% within 48 hours of issuance of this letter and take over the possession of the parking site without fail, failing which North DMC shall be free to take further action as deemed appropriate. Sd./ Administrative officer R.P. Cell/North DMC”

30. A perusal of the aforesaid provisional letter of allotment, along with the terms and conditions of the NIT makes it clear, that the Appellant was required to deposit a Monthly License Fee with the Respondent Corporation every month, failing which the possession of the subject parking site will be resumed by the Respondent Corporation. The Appellant has admittedly Digitaaly failed to pay the Monthly License Fee to the Respondent Corporation since March 2022. At the same time, the Appellant has alleged mala fide on part of the Respondent Corporation and challenged the action of the Respondent Corporation to re-tender the subject parking site. It is pertinent to note that the Appellant had requested the Respondent Corporation to deposit the Security Deposit at a later date, when it was unable to do so at that time, and the Respondent Corporation had accordingly graciously granted time to the Appellant to make the deposit at a later date.

31. In the opinion of this Court, the Appellant is attempting to blow hot and cold at the same time, when it fails to pay the monthly license fee to the Respondent, which it is required to do, while at the same time not permitting the Respondent Corporation to re-tender the subject parking site. In the absence of an agreement between the parties as per Clause 8 of the terms and conditions of the NIT, and the fact that the Appellant has not been paying the monthly license fee to the Respondent Corporation, we do not see how a right accrues in favour of the Appellant herein, to continue operating the subject parking site and prevent the Respondent Corporation from retendering the said parking site. Consequently, in the absence of such a right, the Appellant‟s cannot insist on being heard before the Respondent takes an action to re-tender the subject parking site. We, therefore, find no merit in the submissions of the Appellant that the actions of the Respondent are mala fide or suffer from arbitrariness/unreasonableness or that there has been a violation of principles of natural justice.

32. The Respondent Corporation, when it issued the initial NIT dated 09.10.2020, was under the impression that the parking site in question had an area of 38,015.62 square meters. Throughout the tender process, the Digitaaly subsequent issuance of LOI to the Appellant, the issuance of the provisional allotment letter and the possession slip, the Respondent Corporation had been proceeding on the assumption that the area of the subject parking site is 38,015.62 square meters. It is only after the Appellant had come in the possession of the subject parking site that the Respondent Corporation was informed of, and came to know that the DDA had only transferred an area of 5005 square meters to the Respondent Corporation. In such a scenario, we do not agree with the submission of the Appellant that the Respondent Corporation has made a misrepresentation regarding the area of the subject parking site. It is clear from the facts, that the Respondent Corporation was unaware of the correct area of the subject parking site, and the NIT dated 09.10.2020 had been issued under a mistake of fact. The action of the Respondent Corporation to re-tender the subject parking site has been taken to rectify this mistake of fact. The reliance of the Appellant on the decisions in Kusheshwar Prasad Singh (supra) and Haryana Financial Corporation & Anr. (supra) is wholly misplaced.

33. The Respondent Corporation has also highlighted that there exists an arbitration clause in Clause 32 of the terms and conditions of the NIT, and if the parties fail to amicably settle the dispute between them, the dispute may be referred to arbitration. Admittedly, the parties have not referred the dispute to arbitration and it is the submission of the Respondent herein that the Appellant‟s have waived their right to settle dispute amicably and refer the dispute to arbitration. This Court does not consider it expedient to determine whether such a right has been waived by the Appellant, however this Court is in agreement with the Learned Single Judge, that in respect of any injury that may been caused by the Respondent to the Appellant, a writ Digitaaly court is not the appropriate forum. The appropriate remedy for any injury caused to the Appellant by the actions of the Respondent would be before an appropriate civil forum.

34. In view of the aforesaid, we find no infirmity in the judgment passed by the Learned Single Judge, dismissing the underlying writ petition. A private party cannot be permitted to use the writ jurisdiction of this Court under Article 226 of the Constitution of India, to agitate a dispute, which is primarily commercial in nature and arises out of a contract between the parties. The Appellant has failed to show any mala fide, arbitrary or unreasonable action on behalf of the Respondent Corporation. Accordingly, the challenge to the Impugned Judgment preferred by the Appellant herein fails. The Appellant is at liberty pursue the appropriate civil remedies before an appropriate civil forum.

35. With these observations, the appeal is dismissed, along with pending application(s), if any. (SATISH CHANDRA SHARMA)

CHIEF JUSTICE

JUDGE MAY 01, 2023 Digitaaly