Babita Bhardwaj v. North Delhi Municipal Corporation

2 At the outset,.it i s a, b u n d contractors lad#®rei'^£ierta:irttfltf'i;micB^fia&e8i^ favour against wM.G&W;fe|lifla^ %ftC|'i[piJeal^^fed been filed. That Regular First Appeal had been disposed of by a Single Bench of this Court on 01.12.2016 (RFA No.786/2016); it was based on the consent order dated 17.11.2016 arrived inter-se the parties

3 This Court notes that these writ petitions arise out of the grievances of the petitioner who were and are still operating as contractors and doing works for the North Delhi Municipal WP(C)Nos. 10055/2015, 10008/2015, 10028/2015, 10032-33/205, 10046/2015, 10051/2016, 10053/2015, 10057-58/2015, 10060/2015, 10064/2015, 11016-17/2015,11025/2015, 11027-28/2015, 11429/2015 11446/2015, 11449/2015, 11471/2015, 11531-32/2015, 11737/2015, 11780/2015, 11784-85/2015, 11789/2015, 11792-93/2015, 11796-97/2015, 11799/2015, 11803/2015, 11805/2015, 3891/2016, 4035/2016,4061-62/2016,4079/2016, 11026/2015 Page 16of23 /yJ /decreed in their Corporation. All the petitioners are duly registered contractors registered with the respondent Corporation and have been carrying out various works of the respondent. The petitioners having completed the said works to the satisfaction of the respondent for which bills had been prepared and certified but complete payment not having been received by the petitioners had accordingly been constrained to file these petitions. Contention of 'the pptift'oners being that they are claiming only/those bills whicttad been dulyf^c^fctified for payment and for wkch'^ag-^amountr^gd^li^^^ ^ \ if • % I \

4 Th^ stand ofthe responte^l'wis that there is aspecific clause in f i u ii the agreementwhich is parties and w^ich wasto the effect that^e p4li^'erit b# subject to the femd-s'/ih:;paifeukF'hea,d;:Qf acdSun" availability of fWflsVin;pai^ituiar^"liead;0f aed'ou^t from time to time and the payments shall be"made[5].'Striefl^^^ on queue basis i.e. first the past liabilities will be cleared and after the release of payments for past bills only then the case of the petitioners would be considered; interest would also not be payable. WP(C)Nos. 10055/2015, 10008/2015. 10028/2015, 10032-33/205, 10046/2015, 10051/2016, 10053/2015, 10057-58/2015, 10060/2015, 10064/2015, 11016-17/2015,11025/2015, 11027-28/2015, 11429/2015 11446/2015, 11449/2015, 11471/2015, 11531-32/2015, 11737/2015, 11780/2015, 11784-85/2015, 11789/2015, 11792-93/2015, 11796-97/2015, 11799/2015, 11803/2015, 11805/2015, 3891/2016, 4035/2016,4061-62/2016,4079/2016, 11026/2015 Page 17of 23 i 5 The relevant extract of Clause 7 of the 'General Conditions of Contract for Municipal Corporation of Delhi Works' highlighted by the respondent Corporation is reproduced herein as under:- "The payment ofpassed bills will be subject to availability offunds in particular head ofaccountfrom time to time, in MCD. Payment ofbills shall he strictly on Queue basis i.e. first the past liabilities will he cleared and after that the release ofpaymentfor passed bills be in order ofthe demand received at HQ imderparticular head ofaccounts. No interest shall be payable to^tp,gfContfmmr-^in::ease ofdelay inpayment on account of non-availability offiindsAii^e.pprtiGulrdh^ ofaccount-ofMCD. "

6 This bdilev,fhe &nd.Qfith|^spondeni;"d#po^tion, the petition " X\ takenup f&^ir|al hearing. However, at tliis statel^S-Wpild'supra, I VAiil-ki has been%rawn to the by the Single/ilBench ofthis Court in out of decrees which had enureS4n'favo\ir?0fiSucEii'ke";6ontr&^^^ who had preferred to file civil suits instead of FiTing'wif petitions.

8 In the course of these proceedings on 07.09.2016, the additional submission of the respondent was noted which was that the payments' being asked for by the petitioner areunder 'non-planned head' andthe petitioner will have to stand in queue along with others; submission of the petitioner was that there is a mis-utilization of funds in the 'non- WP(C)Nos. 10055/2015, 10008/2015, 10028/2015, 10032-33/205, 10046/2015, 10051/2016, 10053/2015, 10057-58/2015, 10060/2015, 10064/2015, 11016-17/2015,[1] 1025/2015, 11027-28/2015, 11429/2015 11446/2015, 11449/2015, 11471/2015, 11531-32/2015, 11737/2015, 11780/2015, 11784-85/2015, 11789/2015, 11792-93/2015. 11796-97/2015, 11799/2015, 11803/2015, 11805/2015, 3891/2016, 4035/2016. 4061-62/2016,4079/2016, 11026/2015 • Pagel8of23 attention|)f this Court ii w planned head' and the money under the 'non-planned head' is being mis-used i.e. for purpose other than those purposes for which it is required to be used. The respondent had been directed to place on record an affidavit stating the amounts expended in the 'non-planned head'. This affidavit is on record and the details of money sought to be expended in the 'non-planned head' have been given.

9 Court is ofth^vie\Y^thk|tiie!brdl!s,©ass'ed..in RFA No. 786/2016 this Court is,;;6f the"'view thatCtheielpetitions^can'also be disposed off 'I,. • •'•V, ' "• I- -* -V,. •' >5 if "v' % on the sam'e terrhs and conyitioiisVas^hBre is no dispiite'^to the fact that the case ofthese petitioner^usjsiMil^'to those who were%3arties in the I '• RFA. I 4^15 iM;,,? 10 2016 and reproduced in RF:MW>8®5^©;1-6 readC^».^V^'

(i) The appellants shaUfilefresh compilations, complete in allrespects in respect ofthe respondents and the other contractors, irrespective of whether they have filed any appeals/suits ofrecoveiy or not, so that there is a clarity about their priority in the wait list.

(ii) The appellants undertake to.strictly adhere to the timeline mentioned in the compilation,for releasingpayments to the respondents. (Hi) No payment shall be released out ofturn by the appellants. WP(C)Nos. 10055/2015, 10008/2015. 10028/2015, 10032-33/205, 10046/2015, 10051/2016, 10053/2015. 10057-58/2015, 10060/2015, 10064/2015, 11016-17/2015.11025/2015, 11027-28/2015, 11429/2015 11446/2015, 11449/2015, 11471/2015, 11531-32/2015, 11737/2015, 11780/2015, 11784-85/2015. 11789/2015, 11792-93/2015, 11796-97/2015,.11799/2015, 11803/2015, 11805/2015, 3891/2016. 4035/2016, 4061-62/2016,4079/2016, 11026/2015 Pa^e 19 of23 '-' ' i

(iv) The appellants shall ensure thai the budgetfor release ofamounts under the head of Non-Plan Expenditure is increased on aregular basis so that the release ofpayments can be expedited to the respondents and other contractors in the wait list, even prior to the dates ofpriority mentioned againsttheirnames.

(v) The appellants shall upload the compilation on their websitesfor ease ofaccess and update it regularly at the end ofeach monthfor the respondents and others to know-what their status is in the wait list. J •

(vi) Having regard to the fact that the appellants expect the respondents to stay their hands and not pursue their legal remediesfor execution ofthe impugnedjudgments and decreesfor aperiod mention0d^h'^einaflet,.j^ isdgreed^hat interest shall be payable the respondents on tJ^p-pripcipd^aiiibunf 'tk^iexpiiyoft^ree years and ninety days reckonedfrom thef^a^eH^e'^oncernedpWip^n hadpassedk^i^'ills^ofthe respondentsfor payment. In otUer vt'Bh®, acusliiSriibf'&fy^si^^^ providedto ihe Head Quarters of h^fU tUa r,r,r,Jiinv,tP^fr,v workof reietviiTg and diarising the boththe appfjlani^prcompletih^^^j^^p^e bills receivedfror^differentDivikpjns(Bni^r^pd^ingacombinedlistfor^payment and it is agreedthaffpr the saidperiod, no int^erest^sM^^ payable to the respondents. _ t. ii.

(vii) It is^pher agreed that thj^^Jp^^llalM^^ not be liable to p^ interest on the

Igments and of 90 days % principal amh udgments and

(viii) However, immediatelf^:,o^l^xpiry^fx>.thre'e'^'y§^^^ noted above, ifthe amounts remain outstandingfor any reason whatsoever, the appellants shallpay interest @ 9%, per annum on the principal amount to the respondents, for the remaining period, till realization.

(ix) It isfurther agreed that the aforesaid arrangement of payment of interest by the appellants @ 9% per annum on the outstanding principal amount to the respondents shall continue onlyfor a period of two years, reckonedfrom the end of the thirdyear as mentioned in clause (vii) hereinabove. WP(C) Nos. 10055/2015, 10008/2015, 10028/2015, 10032-33/205, 10046/2015, 10051/2016, 10053/2015, 10057-58/2015, 10060/2015, 10064/2015, 11016-17/2015,11025/2015, 11027-28/2015, 11429/2015 11446/2015, 11449/2015, 11471/2015, 11531-32/2015, 11737/2015, 11780/2015, 11784-85/2015, 11789/2015, 11792-93/2015, 11796-97/2015, 11799/2015, 11803/2015, 11805/2015, 3891/2016, 4035/2016, 4061-62/2016, 4079/2016, 11026/2015 Page 20 of23