M/S Gupta Brothers v. East Delhi Municipal Corporation & Anr

RAJIV SAHAI ENDLAW, J. MARCH 08, 2016 "pp" ..

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 8th March, 2016 + W.P.(C) 2641/2015 & CM No.4733/2015 (for stay). M/S GUPTA BROTHERS .... Petitioner Through: Mr. S.N. Pandey, Adv. Versus EAST DELHI MUNICIPAL CORPORATION & ANR ..... Respondents Through: None. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition impugns the order dated 30th September, 2014 of the respondents no.1&2 East Delhi Municipal Corporation (EDMC) de-barring the petitioner from the panel of respondents EDMC for a period of five years from the date of issue of the order (less the period of four months and 21 days i.e. from 7th November, 2013 to 28th March, 2014 for which the petitioner had remained de-barred earlier). 2. The petition challenging the de-barring order was filed and re-filed on 13th February, 2015 and 13th March, 2015 respectively and came up first before this Court on 18th March, 2015 when none appeared on behalf of the petitioner and the petition was adjourned to 21st July, 2015. On 21st July, 2015, being prima facie of the view that the matter was purely contractual and entailed disputed questions of fact and that the remedy by way of a writ petition under Article 226 of the Constitution of India is not available to the petitioner, the counsel for the petitioner was heard at length and judgment reserved. None appeared for the respondents EDMC on advance notice. Though the judgment went on the back burner for long but it may be recorded that the petitioner, its counsel at no time in the interregnum mentioned the matter. 3. The petition is filed pleading (i) that the petitioner was engaged in the work of civil construction and enlisted with the respondents EDMC/its predecessor Municipal Corporation of Delhi (MCD) vide Certificate dated 11th December, 2008 has never in the past been de-barred or blacklisted; rather the work executed by the petitioner was adjudged as very good/good; (ii) the bid of the petitioner for the work of improvement of six Mother & Child Healthcare (MCH) Centres was accepted and the Work Order No.195 dated 15th February, 2013 issued by the respondents EDMC in favour of the petitioner; (iii) that of the six sites, only three sites were handed over to the petitioner; all the MCH Centres were fully functional between 9.00 a.m. to 3.00 p.m. six days of the week and the work thus could not be carried out in full swing as the work involved renovation of rooms and halls in which the MCH Dispensary was operating and the bath rooms attached thereto; the staff and doctors of the MCH Centres did not allow the work of chiseling and removal of plaster etc. to be carried out while the Dispensary was functional; (iv) that the petitioner vide letters dated 13th March, 2013, 11th April, 2013, 26th April, 2013, 7th May, 2013 and 27th May, 2013 informed the respondents EDMC of the hindrance in execution and the slow progress of the work; (v) after much persuasion, fourth site was handed over but the progress of the work still remained slow; (vi) the respondents EDMC however issued a notice dated 11th March, 2013 asking the petitioner to show cause why action under Clause-2 of the Agreement be not taken against the petitioner on account of breach of contract on the part of the petitioner in having not even started the work by then though the time for completion thereof was of nine months only; (vii) the said show cause notice was mala fide and a counterblast to the letter dated 13th March, 2013 of the petitioner complaining of the delays on the part of the respondents EDMC and as is also evident from the fact that the same was issued much prior to the stipulated date of 23rd November, 2013 of completion of the work; (viii) the petitioner vide its letter dated 1st July, 2013 replied to the show cause notice and also met the Chief Engineer on the same day and was made to sign on a blank paper on which subsequently false minutes of the meeting were fabricated; (ix) that out of the total contractual value of Rs.92,88,17