Roshan Lal Vohra & Sons & Anr v. East Municipal Corporation of Delhi

RAJIV SAHAI ENDLAW, J. MARCH 29, 2016 "pp/gsr"

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 29th March, 2016 + W.P.(C) 3412/2013 ROSHAN LAL VOHRA & SONS & ANR. ..... Petitioners Through: Mr. Shyam Moorjani, Adv. Versus EAST MUNICIPAL CORPORATION OF DELHI .... Respondent Through: Mr. Balendu Shekhar & Ms. Somya Rathore, Advs. with Mr. Zavvar Kazim, Asst. Engineer, EDMC. CORAM :- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The petition (i) impugns the Circular dated 6th February, 2013 of the respondent East Delhi Municipal Corporation (EDMC) notifying all concerned of Rs.6.63 lacs being due from the petitioner and calling upon all concerned to recover the said amount from the payments if any due to the petitioner; and, (ii) seeks a mandamus to the respondent EDMC to make payment of Rs.6.63 lacs which had been illegally deducted from the amounts due to the petitioner under the other running contracts/agreements, along with interest at 18% per annum. 2. The petition was entertained and pleadings have been completed On 9th July, 2015, when the matter came up for hearing, attention of the counsel for the petitioners was invited to Godavari Sugar Mills Ltd. Vs. State of Maharashtra (2011) 2 SCC 439 holding that money recovery in writ jurisdiction can be done only when accompanied with a challenge to vires of a tax or statute under which recovery has been effected and which was not the position here. On the request of the counsel for the petitioners hearing was adjourned. During the course of further hearing on 14th July, 2015 the counsel for the respondent EDMC also handed over copy of the General Conditions of Contract of MCD and drew attention to Clause 29A thereof. It was the contention of the counsel for the petitioners that the respondent EDMC having not referred thereto in the counter affidavit, could not during the hearing rely thereon. Keeping open the said objection, judgment was reserved. 3. It is the case of the petitioners (i) that petitioner no.1 of which petitioner no.2 Sh. Anil Vohra is sole proprietor is enlisted as a Class-I contractor with the Municipal Corporation of Delhi (MCD) for the last many years; (ii) upon bifurcation of the MCD, the relevant project in respect whereof the disputes subject matter of petition had arisen fell within the jurisdiction of EDMC; (iii) that MCD/EDMC invited tender bids in respect to certain works pertaining to construction of 120 bedded ward block at Swami Dayanand Hospital, Shahdara (North) vide Work Order dated 17th April, 2006; (iv) vide another Work Order also dated 17th April, 2006 bids were invited in respect of construction of additional floors of OPD Block at the same hospital; (v) that the petitioners were chosen for carrying out both Work Orders and the terms and conditions of engagement were reduced into writing; (vi) that the petitioners carried out the work subject matter of both Work Orders to the satisfaction of the respondent EDMC and certificates in that regard were issued; (vii) that even after completion of the works, no complaints were made or deficiencies reported; (viii) that after three years of the completion of the works, vide letter dated 26th September, 2012 a sum of Rs.6,63,267/- was demanded from the petitioners on the ground of the petitioners having used less cement than the quantity specified for execution of the aforesaid work and the said fact having come to light during the course of an audit; (ix) the petitioners immediately responded contending that the demand after more than three years of execution of the work was arbitrary and without jurisdiction; (x) however the respondent EDMC issued the impugned Circular dated 6th February, 2013 and in pursuance whereto the said amount was deducted out of the payments due to the petitioners in respect of another Work Order; and, (xi) that no opportunity of hearing was given to the petitioners before making the said recovery and that the said recovery had been made without following the procedure prescribed by law. 4. The respondent EDMC