South Delhi Municipal Corporation v. Dhananjay Kumar Jha

SACHIN DATTA, J. (ORAL)

¶1CONT.CAS(C) 790/2020 has been filed alleging contempt of the directions contained in the order dated 06.11.2020 passed in W.P. (C) 8242/2019. CONT.CAS(C) 726/2022 has been filed alleging contempt of the directions contained in the orders dated 06.11.2020, 18.12.2020,

25.03.2022 passed in W.P. (C) 8242/2019. The said orders are reproduced here as under :- "ORDER

06.11.2020 The hearing was conducted through video conferencing. CM APPL. 28136/2020 (fresh by petitioner for seeking leave to amend the writ petition)

¶1Issue notice.

¶2The learned Standing Counsel named above accepts notice on behalf of the South Delhi Municipal Corporation ('SDMC').

¶3Reply and Rejoinder, if any, be filed within 4 weeks each, successively.

¶4List on 23.03.2021.

¶10Without prejudice to his rights and contentions, the petitioner will pay Rs.28 lacs which are stated to be arrears @ Rs.8 lacs per month, additionally the petitioner will pay enhanced amount of Rs.2 lacs per month for July, August, September and October 2020 = Rs.8 lacs and Rs. 11 lacs for this month i.e. November 2020 and onwards. In effect, the CM APPL. 28238/2020 (fresh bv petitioner for stav)

¶5Issue notice.

¶6The learned Standing Counsel named above accepts notice on behalf of SDMC.

¶7Reply and Rejoinder, if any, be filed within 4 weeks each, successively.

¶8Till the next date of hearing, there shall be a stay on the operation of the impugned order dated 29.10.2020.

¶9The petitioner will be allowed to continue to operate the parking site i.e. parking site at cluster: Jasola District Park, District Centre Jasola in front of plot nos. 3, 7, 8 and 9 and Living Style Mall, Jasola, Delhi, as he was doing earlier, subject to the provisional payment of Rs.10 lacs per month effective from July 2020, and from November 2020 onwards, the petitioner shall pay Rs.11 lacs per month, subject to final adjustments, as maybe and/or outcome of the petition.

petitioner will pay Rs.47 lacs to the Corporation by 20.11.2020. If he so desires, he may pay it in 2 equal tranches on 13.11.2020 and 20.11.2020. According to the Corporation far more monies are outstanding.

11.The Bank Guarantee/security as encashed by the Corporation shall be replenished by the petitioner within a week from today.

12.The computation of the monies paid and/or adjusted, shall be filed by the parties in 2 weeks from today.

13.List on 23.03.2021.

14.The order be uploaded on the website forthwith."

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"ORDER

18.12.2020 The hearing was conducted through video conferencing. CM APPL. 32516/2020 (exemption) In W.P.(C) 8242/2019

¶1Allowed, subject to all just exceptions.

¶2The application stands disposed-off.

the local police has verified that a parking lot is being managed in anadjacent plot for and on behalf of one Mr. Rajesh Kumar Singh, whohas been duly authorised by the SDMC vide permission dated27.07.2018. The SHO has further informed him that on the Plot CQNT.CAS(C) 790/2020 & CM APPL. 30898/2020 and W.P.C)8242/2019 & CM APPL. 29946/2020

¶3Mr. B. L. Wali, the learned counsel for Mr. Dhananjay Kumar Jha,submits that neither Mr. Dhananjay Kumar Jha nor his agent isoperating the parking lot concerned.

¶4Mr. Sanjay Poddar, the learned Senior Advocate for the Corporation,states, upon instructions, that the person at the parking site is one Mr.Pankaj Kumar Jha, who claims authority to work as an agent of Mr.Dhananjay Kumar Jha. Photographs of the parking site as on11.12.2020 have been shared by the Corporation on the computerscreen during the virtual Court proceedings. Let the saidphotographs/documents be brought on record.

¶5Mr. Kushagra, the learned counsel for the GNCTD, who is present in the virtual Court proceedings, is directed to ascertain from the SHO,Police Station Sarita Vihar, New Delhi as to who is currentlyoperating and collecting monies at the parking site at Jasola DistrictCentre, Plot Nos.3, 7, 8, and 9, Living Style Mall, Jasola, New Delhi.

¶6After the pass-over Mr. Kushagra states upon instructions that, that

Nos.3, 7, 8, and 9, there is no parking of vehicles; in other words, no suchparking lot is operation at the site.

¶7Mr. Wali submits that the petitioner in the petitioner has not operated the site from 29.10.2020 till date.

¶8If the said petitioner wishes to operate the parking site, he may do sofrom tomorrow. Possession of the site shall be handed over to him at10:00 a.m. tomorrow, without prejudice to the rights and contentionsof the parties. In the interim, no monies from the period of 29.10.2020till today will be payable, subject to further arguments.

¶9The Delhi Police is impleaded as a party. Let an affidavit, along withphotographs, be filed by the SHO apropos the status as intimated tothe Court by the learned counsel for the Delhi Police.

10.Response to the affidavit may be filed by the parties, if so instructed. 1 l.The Amended Memo of Parties be filed in 2 weeks from today.

12.List on 23.03.2021 i.e. the date already fixed. CM APPL. 32515/2020 (by petitioner for modification of order dt.

06.11.2020) in W.P.(C) 8242/2019

13.Issue notice.

14.The learned counsel named above accept notice on behalf of the non-applicants.

15.This application seeks modification of the earlier order, directing the petitioner to pay the Corporation Rs.11 lakhs per month, to thewithout prejudice to his rights and contentions.

16.Mr. Wali submits that because of the reigning COVID-19 pandemic,the full volume of traffic has not resumed on Delhi streets and fewercars are being parked at the parking lot. Therefore, it would be fairthat the Corporation to consider reduction of the monthly emolumentsfrom Rs.11 lakhs to Rs.8 lakhs as was being paid earlier.

17.In the circumstances, till the decision in the application formodification, let the petitioner deposit an amount of Rs.9.5 lakhs permonth. The payments shall be made as per the schedule fixed. IS.Renotify on 23.03.2021 i.e. the date already fixed.

19.The order be uploaded on the website forthwith."

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"O R D E R

25.03.2022

¶1Learned counsel for the petitioner under instructions submits that without prejudice to his rights and contentions, petitioner shall surrender CM. APPLS. 13868-69/2022

the parking lot on 31.03.2022. He, however, prays that respondent be directed to reconcile the accounts of the petitioner and also grant petitioner various eligible remissions as per the resolutions of the Corporation.

¶2Learned senior counsel appearing for the Corporation submits that without prejudice to their rights and contentions, they are willing to accept the surrender of parking lot.

¶3He submits that as per his instructions all admissible remissions have already been granted and petitioner is in arrears for over three months in terms of the order dated 18.12.2020. However, for purposes of reconciliation, petitioner may visit the office of Assistant Commissioner, RP Cell, Civic Centre, Minto Road, Delhi on 28.03.2022 at 3 P.M.

¶4It is directed that on the said date, copy of the applicable resolutions as well as statement of accounts be furnished to the petitioner for the purposes of reconciliation. It is clarified that this is without prejudice to the rights and contentions of the parties. It is further clarified that surrender of parking lot on 31.03.2022 will be without prejudice to the reconciliation and not dependent on the same.

¶5List on 26.07.2022.

¶6Petitioner shall keep the bank guarantee alive during the pendency of this petition."

¶2W.P. (C) 8242/2019 has been filed by the respondent/contemnor herein i.e., Dhananjay Kumar Jha (hereinafter referred to as "the contemnor") seeking various prayers with regard to the parking site allotted to the contemnor by the MCD.

¶3The contemnor was awarded the tender for running the parking site vide an offer letter dated 28.02.2019. The said parking site was awarded to the contemnor at a monthly license fee of Rs.12,56,786/-. However, subsequently, the contemnor is stated to have started defaulted in making payment of monthly license fee to the MCD, as a result of which, there was a dispute between the parties, and it is in the aforesaid background that, W.P. (C) 8242/2019 came to be filed.

¶4Vide the aforesaid order dated 06.11.2020, certain interim reliefs were granted to the contemnor with regard to the parking site. The aforesaid order

dated 06.11.2020 was modified vide order dated 18.12.2020, in which, it was, inter alia, directed as under :- "16.Mr. Wali submits that because of the reigning COVID-19 pandemic, the full volume of traffic has not resumed on Delhi streets and fewer cars are being parked at the parking lot. Therefore, it would be fair that the Corporation to consider reduction of the monthly emoluments from Rs.11 lakhs to Rs.8 lakhs as was being paid earlier.

17.In the circumstances, till the decision in the application for modification, let the petitioner deposit an amount of Rs.9.5 lakhs per month. The payments shall be made as per the schedule fixed."

¶5Thus, in terms of the order dated 06.11.2020, the contemnor was obliged to make a provisional payment of Rs.10 Lakhs per month with effect from July, 2020 and Rs.11 Lakhs per month with effect from November, 2020.

¶6Further, importantly, the bank guarantees that had been encashed by the MCD were required to be replenished by the contemnor within one week from the date of the said order dated 06.11.2020. The MCD was constrained to encash the bank guarantee/s in view of the mounting arrears of license fee which had remained unpaid by the contemnor.

¶7Vide order dated 18.12.2020, it was noticed by this Court that the contemnor had been divested of the parking site in question with effect from

29.10.2020. Resultantly therefore, the provisional payment at the rate of Rs.11 Lakhs per month was to be paid by the contemnor for the period

01.07.2020 till 29.10.2020. Further, vide para 8 of the order dated

18.12.2020, it was directed that in case the contemnor wishes to operate the parking site, he could do so.

¶8Further, in terms of para 17 of the order dated 18.12.2020, the contemnor was obligated to pay a sum of Rs.9.5 Lakhs per month, as per the schedule fixed.

¶9The contemnor, having exercised the option to operate the parking site in terms of the directions contained in the order dated 18.12.2020, was obliged to make the aforesaid payment of Rs. 9.5 lakhs per month.

¶10The parking site in question was surrendered by the contemnor on

31.03.2022. This has been recorded in the order dated 25.03.2022 passed in W.P. (C) 8242/2019.

¶11In the contempt petition filed on behalf of the MCD, it has been averred that the contemnor failed to pay even the substantially reduced amount in terms of the aforesaid order dated 18.12.2020.

¶12It is submitted that despite having operated the parking site in question till 31.03.2022, substantial amount of license fee remained unpaid to the MCD. The MCD has filed a calculation of the unpaid parking fees as Annexure P-5 in CONT.CAS(C) 726/2022. The same is as under :-

¶13Accordingly, it is submitted by the learned senior counsel for the MCD that the outstanding amount payable by the contemnor to the MCD is to the tune of Rs.1,10,09,699/- (as on 17.05.2022).

¶14It is strenuously contended that non-payment of the reduced license fee amount, amounts to flagrant violation of directions contained in the very interim order/s on the basis of which, the parking site was operated by the contemnor till 31.03.2022.

¶15Per contra, learned counsel for the contemnor refutes the calculation

of license fee filed on behalf of the MCD. He submits that proper reconciliation in terms of the order dated 06.11.2020 has not been carried out at all. According to him, if a proper reconciliation had been carried out (taking into account the alleged reduced area of the parking site that was made available to the contemnor), a substantial amount would be refundable by the MCD to the contemnor. He further submits that the present petitions are not maintainable without proper reconciliation being carried out and consequent adjustments of amounts, as contemplated in para 9 of the order dated 06.11.2020.

¶16He further submits that there has been no wilful disobedience on the part of the contemnor and pleads financial inability to pay the amounts demanded by the MCD.

¶17Respective counsel for the parties have been heard at substantial length.

¶18From the perusal of the aforesaid orders dated 06.11.2020 and

18.12.2020, it clearly transpires that (i) vide para 11 of the order dated

06.11.2020, the bank guarantee/security was required to be replenished by the contemnor; (ii) for the period commencing 18.12.2020, the contemnor was obliged to pay an amount of Rs.9.5 lakhs per month to the MCD for as long as it operated the parking site in question.

¶19It is undisputed that the parking site in question was surrendered only on 31.03.2022, as recorded in the order dated 25.03.2022 passed in W.P. (C) 8242/2019.

¶20During the course of hearing, it is not disputed that the bank guarantee/security was not replenished by the contemnor. It was also not refuted that there was an omission on the part of the contemnor to pay an

amount of Rs.9.5 lakhs per month at least for a period of four months viz. from 31.10.2021 till 29.11.2021 and from 30.12.2021 till 31.03.2022.

¶21As such, it was inquired from the learned senior counsel for the contemnor as to whether the contemnor was agreeable to deposit with the MCD or in this Court, the amount payable for the aforesaid period to show its bonafides, especially considering that the parking site in question was admittedly surrendered only on 31.03.2022, till which date, the contemnor was obligated to pay an amount of Rs.9.5 lakhs per month in terms of the order dated 18.12.2020. However, the contemnor has expressed its inability to do so.

¶22From the aforesaid narration, it is evident that the contemnor has taken the benefit of the aforesaid interim order(s) passed by this Court while paying scant regard to the conditions imposed by this Court while granting the said interim order(s).

¶23Vide order dated 18.12.2020, the parking site in question was restored to the contemnor despite having been divested from the same with effect from 29.10.2020. The pre-condition for the same was that the contemnor would continue to pay a sum of Rs.9.5 lakhs per month to the MCD.

¶24It is not disputed that even if the calculations of the MCD are disregarded (in terms of which the outstanding amount payable by the contemnor to the MCD is to the tune of Rs.1.1 crore), it is undeniable and not even been refuted by the contemnor that the monthly license fee at the rate of Rs.9.5 lakhs was not paid at least for the aforesaid period of four months prior to surrender of the site on 31.03.2022.

¶25Despite being given an opportunity, the contemnor has expressed its inability to pay the said amount to the MCD or even to deposit the same in

this Court subject to the final adjudication of W.P. (C) 8242/2019.

¶26As noticed above, it is also an undeniable fact that the bank guarantee/security had also not been replenished, in disregard of the directions contained in the order dated 06.11.2020.

¶27It has been held by this Court in National Agricultural Co-op. Marketing Federation of India v. Lalit Mohan 2008 (105) DRJ 507, "when a party gives an undertaking to pay money to the opposite party and obtains benefit pursuant to the said undertaking, more so when the undertaking is to the court and accepted by the court, breach of the said undertaking, subject to it being wilfull, would attract the contempt jurisdiction of the court.

¶28The contemnor has not disputed the condition as to payment of amount as directed by this Court. Thus, on the one hand, it has taken benefit of the interim order(s) for the purpose of operating the parking site, and on the other hand, it did not comply with the direction(s) to pay the monthly license fee, as quantified in the same interim order(s). The contemnor has also not made any application to the Court for modification of the condition regarding payment of monthly license fee, and continued to enjoy the benefit of the interim order(s), while ignoring and defying the stipulations/ directions as to payment of money. The appellant is thus, undoubtedly, in disobedience of the aforementioned conditions imposed by this Court while granting interim relief to the contemnor.

¶29Also, no application was filed by the contemnor seeking any exemption from replenishing the bank guarantee/security as expressly directed vide order dated 06.11.2020.

¶30In case, the contemnor was not in a position to adhere to the conditions as regards payment of Rs. 9.5 lakhs per month, it ought to have

surrendered the said parking site in question much prior to 31.03.2022. However, the contemnor chose to continue to take benefits of interim orders passed by this Court while failing to adhere to the pre-condition imposed by this Court. As such, the aforesaid disobedience on the part of the contemnor was clearly wilful.

¶31As a result of the aforesaid conduct on the part of the contemnor, the MCD is confronted with a situation where according to it, the unrealized amount of the license fee is to the tune of Rs.1.1 crores. The arrears of unpaid license fee have mounted because the contemnor did not surrender the parking site in question till 31.03.2022, and continue to retain the same by virtue of interim order/s passed by this Court. At the same time, the discretions in the said interim order/s regarding replenishment of bank guarantee/s and payment of monthly amount of Rs. 9.5 lakhs, have been disregarded with impunity.

¶32In the circumstances, in view of the wilful disobedience on the part of the contemnor with the directions contained in the aforesaid orders dated

06.11.2020 and 18.12.2020, the said contemnor is held guilty of having committed Contempt of Court under section 2(b) read with Section 10 and Section 12 of the Contempt of Courts Act, 1971.

¶33List for orders on sentencing on 18.07.2024.

¶34The respondent/contemnor is directed to remain personally present in Court on the next date of hearing.

SACHIN DATTA, J APRIL 22, 2024/ rp,dk

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 22.04.2024 + CONT.CAS(C) 790/2020 (10) SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner Through: Mr. Sanjay Poddar, Sr. Adv. alongwith Mr. Attin Shankar, Mr. Govind Kumar, Mr. Aman Kapoor and Mr. Saksham Kaushik, Advs. for MCD. versus DHANANJAY KUMAR JHA ..... Respondent Through: Mr. S. Wasim A. Qadri, Sr. Adv.along with Mr. M. M. Israily, Mr. S.I. Israily and Mr.Gaurav Raj Sharma, Advs. + CONT.CAS(C) 726/2022 & CM APPL.14418/2024 (12) SOUTH DELHI MUNICIPAL CORPORATION ..... Petitioner Through: Mr. Sanjay Poddar, Sr. Adv. alongwith Mr. Attin Shankar, Mr. Govind Kumar, Mr. Aman Kapoor and Mr. Saksham Kaushik, Advs. for MCD. versus DHANANJAY KUMAR JHA ..... Respondent Through: Mr. S. Wasim A. Qadri, Sr. Adv.along with Mr. M. M. Israily, Mr. S.I. Israily and Mr.Gaurav Raj Sharma, Advs. CORAM: HON'BLE MR. JUSTICE SACHIN DATTA