TaxTMI 
TaxTMI 
2020 (11) TMI 1092
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..../2020 and order passed on 24.06.2020 in review petition No.107/2020. By order dated 12.06.2020, the learned Single Judge had taken up for hearing C.M.No.11093/2020 moved by MEP Infrastructure Developers Ltd. (hereinafter referred to as "MEP") for modification of order dated 02.03.2020 alongwith other miscellaneous applications to place additional facts on record, amendment of writ petition and for extension of effective date of termination of the contract and for hearing W.P.C. No. 2241/2020 and W.P.C. No.370/2020 together as well as an application moved by South Delhi Municipal Corporation (hereinafter referred to as "SDMC") seeking dismissal of the writ petition. However, no order was passed in C.M.No.11397/2020 filed by SDMC for dismissal of the writ petition and the same was adjourned till the next date. 3. The writ petition No.2241/2020 was filed mainly challenging an order dated 31.01.2020 passed by Commissioner of SDMC and a subsequent notice of termination of the contract dated 14.02.2020 served upon MEP. During the pendency of the writ petition, an amendment application was moved and said application was allowed by learned Single Judge. Now the writ petition No.2241/202....
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....nt writ petition; j. To issue a Writ order or direction in the nature of CERTIORARI and quash the Termination Notice dated 16.03.2020 and subsequent extension of termination dated issued by the respondent as being illegal; k. To issue a writ order or direction in the nature of CERTIORARI and quash the NIT dated 27.04.2020 issued by the Respondent consequent to the notice of termination dated 16.03.2020; l. During the pendency of this writ petition, pass ad interim order direction the respondent to keep in abeyance the Termination Notice dated 16.03.2020 and subsequent extension of termination date as well as NIT dated 27.04.2020 for fresh bidding for collection of tax, till the final disposal of the instant writ petition; m. Direct that the money appropriated by the Respondent by way of encashment of bank guarantee for Rs.64 crore, will be held by the respondent as a security deposit after adjusting therefrom the amount payable by the petitioner towards ECC; n. Pass such other order/orders as this hon'ble court may deem fit and proper in the facts and circumstances of this case." 4. If we go little back in history, the SDMC had issued....
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....113 (2) (g) of the Delhi Municipal Corporation Act, 1957 to the extent it contemplates payment of amount by the petitioner to the respondent no. l in excess of the toll tax actually collected by the petitioner; c. Issue a writ in the nature of mandamus directing the respondents to make a fresh assessment as to the circumstances affecting toll collection taking into account the circumstances highlighted by the petitioner and reassess and re-determine the annual/ weekly amount payable by the petitioner to the SDMC towards toll tax; d. Issue a writ in the nature of mandamus directing the respondents to take into consideration the change in circumstances make suitable downward revision in the weekly/ annual remittance commensurate with the reduction in toll tax paying commercial vehicles and taking into account the tax leakages on account of free lanes; e. Issue a writ in the nature of certiorari quashing the demand notice dated 18.11.2019 issued by the respondent to the petitioner for payment of Rs.450.6973 crores. f. Issue a writ in the nature of certiorari quashing the demand of .1 % per day that is 36.5% per annum in the demand letter dated 18/11....
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....s as raised by the petitioner. The committee on 17.10.2019 is said to have made a recommendation and approved that a sum of Rs. 18,98,54,798/- be reduced from the outstanding claim made by the respondent of Rs.446,46,55,359/-. 6. On 18.11.2019, the respondent has issued a demand notice to the petitioner asking them to deposit a sum of Rs. 450.69 crores and the penalty amount of .1% per day i.e. 36.5% per annum within a period of seven days failing which action shall be taken for revocation of the bank guarantee and post-dated cheques. 7. Learned senior counsel for the petitioner has vehemently urged as follows: (i) He has urged that as is apparent from the minutes of the meeting noted above, there has been a reduction of at least 30% in the traffic on the opening of the Eastern peripheral Expressway. This has further reduced on the opening of the Western Peripheral Expressway. Hence, he submits that the petitioner cannot be made to pay toll tax which they have not been collecting and will not be able to collect given the volume of traffic that is passing through various toll booths. (ii) It is further pleaded that on 04.06.2018, a direction was i....
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....h as mentioned below. 16. 2 In the event the Contractor consider any work demanded of it as being outside the requirement of the Agreement, or disputes any record or decision given in writing by the Competent officer in any matter in connection with or arising out of the Agreement, to be unacceptable, it shall promptly within (15) days request the Competent Officer in writing to give his instructions or decision 1 in respect of the same. Thereupon, the competent Officer shall give his written instruction or decision within a period of (30) days for the receipt of the Contractor's Letter. 16.3 If the Competent Officer fails to give his instructions or decision in writing within the aforesaid period or if the Contractor is dissatisfied with the instructions or decision of the Competent Officer, the Contractor may, within (15) days of receipt of Competent Officer's instruction or decision, appeal to the Commissioner, SDMC who shall afford an opportunity to the Contractor to be heard, if the later so desires, and to offer evidence in support of its appeal. The Commissioner, SDMC shall give his decision in writing within (30) days of receipt of Contractor's....
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.... statutory requirement, so that failure to observe it means that the administrative act or decision was outside the statutory power, unjustified by law, and therefore ultra vires and void (see Wade's Administrative Law, ibid., p. 448). In India, this Court has consistently taken the view that a quasijudicial or administrative decision rendered in violation of the audi alteram partem rule, wherever it can be read as an implied requirement of the law, is null and void (e.g. Maneka Gandhi case [1964 AC 40 : (1963) 2 All ER 66 (HL)] and S.L. Kapoor v. Jagmohan [(1970) 2 WLR 1009: (1970) 2 All ER 528 (CA)]. In the facts and circumstances of the instant ease, there has been a noncompliance with such implied requirement of the audi alteram partem rule of natural justice at the pre-decisional stage. The impugned order therefore, could be struck down as invalid on that score alone. But we refrain from doing so, because the learned SolicitorGeneral in all fairness, has both orally and in his written submissions dated August 28, 1979, committed himself to the position that under Section 18-F, the Central Government in exercise of its curial functions, is bound to give the affected owner o....
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....es are given to the respondent with the same validity as was given earlier. 16. This order has been passed without prejudice to the rights and contentions of the parties. 17. With the above, the present petition stands disposed of. Pending application also stands disposed of." 5. In compliance to directions in the above order, a detailed order was passed by Commissioner, SDMC on 31.01.2020 by which certain claims of MEP were partially allowed and rest of the claims of MEP were rejected. In terms of the order dated 31.01.2020, SDMC issued a demand notice for Rs.592.67 crores alongwith penalty @ 0.1%, being Rs.163.90 crores. By way of writ petition No.2241/2020, the order dated 31.01.2020 passed by Commissioner of SDMC and the demand notice dated 14.02.2020 were challenged. While hearing the interim prayers of the MEP, i.e., the petitioner, the learned Single Judge was pleased to pass an order dated 02.03.2020, which is reproduced hereunder: "W.P.(C) 2241/2020 & CM APPL. No.7822/2020 1. Issue notice. Learned counsel for respondent accepts notice. 2. This Writ Petition is filed seeking to impugn the speaking order passed dated 31.1.2020 ....
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....he notifications refer to suspension of continuous obligation between the parties w.e.f. 19.02.2020. The petitioner had, in the first instance, invoked the said force majeure clause on 19.03.2020, therefore, at least till the said date it was not effected apropos the operation of the toll collections. The nation-wide lockdown was announced on 24.03.2020 to be effective from the next day. The force majeure period has not abated as per any government notification; free movement of traffic is being regulated even now at borders between the States. Evidently, the full operability of the contract is hindered by orders of the National and the State governments i.e. by circumstances beyond the control of the petitioner. 24. In Halliburton Offshores (supra) the essence of the dicta of the Supreme Court in Energy Watchdog (supra) regarding force majeure has been summarized as under: "..... 56. It is under this factual backdrop that the ground of Force Majeure taken in March, 2020 would have to be adjudged. The grounds taken to invoke the Force Majeure clause are that due to outbreak of COVID-19 experts from France who may be required cannot travel to India. Since the Force....
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....frustration would not apply. 58. The principles as laid down in Energy Watchdog (supra) by the Supreme Court have to be applied to the facts of the present case in order to assess as to whether the performance of the Contractor was prevented by the Force Majeure condition. Did COVID-19 prevent the Contractor from bringing the work on the three fields to completion and conclusion? If so, is the encashment of Bank Guarantees liable to be injuncted? ... .... 62. The question as to whether COVID-19 would justify nonperformance or breach of a contract has to be examined on the facts and circumstances of each case. Every breach or non-performance cannot be justified or excused merely on the invocation of COVID-19 as a Force Majeure condition. The Court would have to assess the conduct of the parties prior to the outbreak, the deadlines that were imposed in the contract, the steps that were to be taken, the various compliances that were required to be made and only then assess as to whether, genuinely, a party was prevented or is able to justify its nonperformance due to the epidemic/pandemic. 63. It is the settled position in law that a ....
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....uarantee or its likely encashment in case of default in payment, was not argued when the 2nd March order was passed because there is no reference in the order to the said facility of ready cash/monetary security to the Corporation. Had it been argued, the order would obviously have interpreted and noted the scheme of payment as has been envisaged between the parties. Clause 12(b) is an integral part of the said agreement. Therefore, insofar as monies were secured to the respondent in the form of Bank Guarantee, from which the respondent could have easily taken out the money on 09.03.2020 as well as on 16.03.2020, there cannot be a deemed default. In any case, the Corporation encashed the BG and appropriated to itself the monies due as of 16th March. There was a default of Rs.20 crores by the petitioner the subsequent week on 24.03.2020. However, prior thereto a few instances occurred as noted hereinabove: (i) The respondent Corporation itself referred to Circular dated 19.02.2020 issued by the Ministry of Road Transport Highways (MORTH) which notified that the COVID-19 pandemic was a force majeure occurrence. In effect, the force majeure clause under the agreement immediat....
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....have not been paid to the Corporation. The balance amount of Rs.77.04 crores shall be made available to the respondent within ten working days from the date of this order failing which the interim order shall stand vacated. 31. As regards the weekly payment of Rs.20 crores, the same would stand suspended in view of the force majeure clause. Nevertheless, the amounts collected by the petitioner shall be deposited into the account of the respondent Corporation after deduction of 15% towards operation and maintenance charges, subject to final adjustments. The requisite post-dated cheques shall be issued within two weeks. 32. In view of the above, CM No. 11093/2020 filed by petitioner for modification of the interim order dated 02.03.2020 is allowed and the order stands modified. Keeping in view the reliefs already sought in the writ petition, the petitioner's application being CM Nos. 11094/2020 & 11398/2020, seeking permission to place additional facts on record and amendment applications are allowed. Amended petition be filed within two weeks from today, to which reply and rejoinder be filed in four successive weeks each. CM No. 11092/2020 is not on record. The Reg....
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....diced by the force majeure condition from 19.2.2020 till 2.3.2020, as invoked by MORTH, or that its revenue/toll collection had reduced in any manner during that period because of the force majeure condition. Indeed, the petitioner itself referred to the 19.2.2020 Circular of MORTH for the first time, a full month later, on 19.3.2020. The national lockdown took effect from midnight of 24th/25th March, thereby virtually barring movement of motor vehicular traffic. It is only as a result of this bar that the revenue collection of the petitioner could be said to have been affected. Resultantly, only the recurring weekly payment after 2nd March could be said to be affected. The acknowledged outstanding amount of Rs.115.04 crores cannot be sought to be revised now, because it was not dependent on fresh revenue collection but were dues of many weeks, prior to 2nd March. If the petitioner had an any reservation apropos the same i.e. such previous amount of Rs.115.04 crores, having already been affected by force majeure disability, it could have brought the same to the notice of the court or expressed its inability to pay the same. The acknowledged dues of Rs.115.04 could have been a subje....
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....ECC amounts in gross violation of orders dated 09.10.2015 & 16.12.2015 passed by Hon'ble Supreme Court. (2) MEP ALLOWED TO WRIGGLE OUT OF ALL ITS CONTRACTUAL OBLIGATIONS IN PERPETUITY: It has been submitted on behalf of SDMC that as per clause 1 of the Contract Agreement dated 28.09.2017, MEP has agreed to pay a cumulative and lump-sum weekly remittance of Rs.23.13 crores (which is Rs.1206 crores per annum) for two years w.e.f. 01.10.2017 and Rs. 24.29 crores (which is Rs.1206 crores per annum) w.e.f. 01.10.2019 after enhancement of 5% in the awarded amount/ committed amount. As per SDMC, the Ld. Single Judge, while exercising Writ jurisdiction, has arbitrarily permitted the Contractor to wriggle out of all its past, present and future contractual obligations in the name of COVID-19, without appreciating the past conduct of MEP. Judgment of Hon'ble Supreme Court in the case of Energy Watchdog vs. Central Electricity Regulatory Commission, (2017) 14 SCC 80 has been relied, in which it is held that "Every breach or nonperformance cannot be justified or excused merely on the invocation of COVID-19 as a Force Majeure condition. The Court would have to assess the conduct of the pa....
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....ction of SDMC. NHAI directed SDMC as well as MEP vide letter dated 25.04.2018 to restrict collection of Toll through the earmarked 06 Toll lanes only. This letter has been challenged MEP before this Hon'ble Court in W.P.(C) No. 570/2020. Thus, MEP is trying to hide its own wrongs and is misleading the Court by making false statements only to avoid making payments as per terms of contract. (5) MEP NOT ENTITLED TO ANY BENEFIT FROM OPENING OF WPE & EPE: It is also case of SDMC that MEP has been misrepresenting that SDMC is not compensating for loss of traffic after opening of EPE (Eastern Periphery Expressway) and WPE (Western Periphery Expressway). This is a totally false plea. To the contrary, this issue had been addressed during the pre-bid meeting prior to receipt of tender bid and therefore, the Clause of "Surrender of Contract" was introduced in the Agreement dated 28.09.2017. Since the Agreement was on the basis of cumulative and lumpsum fixed weekly amount of Rs.23.13 crores, irrespective of actual collection, SDMC would not be entitled to claim any further amount in case the Contractor's collection increases. Also, in the same vein, SDMC would not compensate....
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....and 07.04.2020 in view of repeated defaults. MEP did not replenish the Performance Guarantee worth Rs.64 crores within 10 days in breach of the contract. Thus, the finding of the Ld. Single Judge that since the Bank Guarantee was encashed later, there was no breach of order dated 02.03.2020 is erroneous and deserves to be set aside. (9) SDMC WAS BOUND BY ORDER DATED 02.03.2020 AND COULD NOT HAVE ENCASHED BANK GUARANTEE ON 09.03.2020: It is further submitted on behalf of SDMC that the order dated 02.03.2020 had restrained it from taking any coercive steps against MEP which included encashment of BG. Accordingly, the conclusion by Ld. Single Judge that "It was a ready fund to be dipped into and appropriated by the respondent, in case of default in payments" on 09.03.2020, thereby expecting SDMC to violate the order dated 02.03.2020 and encash the BG on 9th March 2020, is a gravely wrong finding and deserves to be set aside. Significantly, it has been overlooked that a Bank Guarantee could have been invoked only if there was a default of the contractual amount and not to prevent a default. It is also submitted that MEP has itself admitted in its letter dated 19.03.2020 ....
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....ing been issued by MEP after the termination of the contract, so there was no occasion for MEP to invoke Force Majeure and in any event, notice was not issued within 5 days following such occurrence as provided in the contract. (13) ENTIRE TENDER PROCESS FOR NEW CONTRACTOR DONE WITH APPROVAL OF THE COURT: Another argument put forward by SDMC is that the entire tender process for appointing the new contractor was repeatedly approved by the Division Bench of this Hon'ble Court in W.P.(C) 2995/2020 (order dated 27.05.2020) and W.P.(C) No. 3129/2020 (order dated 15.05.2020). Also, on 20.04.2020, Ld. Single Judge in W.P.(C) 2241/2020 further approved the tender process and permitted SDMC to continue with it and also award the contract to a third party subject to handing over of sites only on 25.05.2020. This order was challenged in review by MEP but again no relief was granted to MEP on 27.04.2020. LOI was thus issued on 27.05.2020 to the successful bidder in compliance of directions of Hon'ble High Court dated 20.04.2020, which order is still valid and subsisting. (14) STATUTORY PUBLIC FUNDS BEING ILLEGALLY SIPHONED OFF BY MEP: As per SDMC, toll tax is a major s....
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..... (2000) 6 SCC 293: It is held that interpretation and implementation of a clause in a contract cannot be the subject matter of a writ petition. 6. Nabha Power Limited (Npl) Vs. Punjab State Power Corporation Limited (Pspcl) & Anr. (2018) 11 SCC 508: The contract is to be read as a whole and a particular clause should not do violence to another part of the contract. 7. Burmah Shell Oil Distributing Now Known as Bharat Petroleum Corporation Ltd. Vs. Khaja Midhat Noor & Ors. (1988) 3 SCC 44: It was held that notice must be read in the context of the facts of each particular case having regard to the situation of the parties to whom it is addressed. 8. Akash Ganga Builders & Engineers (P) Ltd. Vs. G.P. Seth HUF & Anr. 1999(50) DRJ (DB): As per this judgment, earlier communication to terminate the tenancy by end of the month and vacate the premises and hand over the possession is to be read with the subsequent letter which gave one week's more grace to the tenant and it does not render the earlier notice invalid. 9. Shipping Corporation of India Ltd. Vs. Machado Brothers & Ors. (2004) 11 SCC 168: Continuation of a suit after disappearance of the caus....
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....ayments thereafter would have to be guided by special equities. B. EFFECT OF 19.02.2020 BEING DATE ON WHICH FM CLAUSE COMES INTO OPERATION: B1. Even though Hon'ble Single Judge has rightly concluded vide order dated 12.06.2020 that 19.02.2020 is the effective date on which FM clause came into operation, he has erred in application of the said finding. MEP has filed LPA 167/2020 in respect of the same. B2. From a conjoint reading of paras 25, 29, 30 and 31 of the order dated 12.06.2020, the following are discernible: (i) That the Force Majeure clause between the parties came into operation with effect from 19.02.2020. "which in effect means that the amount payable by the petitioner to the respondent would have to be put into abeyance" implying thereby that MEP was not required to pay Rs.20.00 Cr/week after 19.02.2020. (ii) That this finding is contradicted in para 30, where court holds that "The interim order of 2nd March subsumed the previous directions and claims or arrears. The arrears were quantified at Rs.115.04 crores. This was payable prior to the ground reality having being altered because of global pandemic/nationwide lockd....
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....ek and letter dated 22.10.2019 to this effect was sent by the Commissioner to the Municipal Secretary. It is to be noted that the Senior advocate and ASG advising SDMC had himself held that there has been a reduction of traffic due to opening of EPE & WPE. C3. The total loss suffered by MEP on account of various FM circumstances on the basis of which MEP sought reduction in liability to pay was to the tune of Rs.2068 Cr. C4. The order dated 31.01.2020 passed by SDMC commissioner rejected the aforementioned claims without giving any reasons whatsoever. The loss on account of vehicle evading by using free lanes and opening of EPH and WPH is admitted in the own reports commissioned by SDMC and yet SDMC does not wish to treat the same as FM. It is humbly submitted that common sense dictates that both these facts have "material adverse effect" on collection and therefore concession is required. C5. It has been further humbly submitted by MEP that especially with respect to the issue of free lanes, since 17th October, 2017 MEP has been writing letters to SDMC on the issue of facing problem in collecting tolls from specified vehicles as per Toll Tax Bye La....
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.....2020, which has been extended further. Therefore, the notice of termination issued to MEP is per se bad, as rightly held to be non-est by the Hon'ble Single Judge. E5. The selection of "Sahakar" as a replacement for MEP is also bad. There have been three NITs so far: 1st dated 16.03.2020- which was withdrawn. Reserve Price of Rs.636 Cr. only. 2nd dated 06.04.2020- wherein bids were held but since only one bid came, it had to be withdrawn. Reserve Price of Rs.636 Cr. only. 3rd NIT dated 28.04.2020- where two bids came on 15.05.2020. However, only one proper bid as the other bid is much below the reserve price of Rs.636 Cr. E6. The Bid which SDMC is taking so much effort now to execute is for Rs.787 Cr. annually which is approx Rs.15 Cr/week. This sum is peanuts as compared to the sum offered by MEP. Even this amount shall be payable by Sahakar, only after the Force Majeure situation of Corona Virus is over. E7. The termination notice has been rightly cancelled by Ld. Single Judge vide his order dated 12.06.2020. F. WHETHER A RETIRED JUDGE SHOULD BE APPOINTED TO ADJUDICATE THE DISPUTES BETWEEN THE SDMC AND MEP? F1. As....
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.... & 19 of the 12th June order and the Court held: Para 18. As regards the petitioner's request for seeking appointment of a retired High Court Judge to prepare a report after hearing both sides, the Corporation contends that the same is impermissible..... Para 19. The Court agrees with the contention of the respondent in this regard, therefore, such an appointment cannot be considered. The argument for seeking such appointment is untenable and is accordingly rejected. F7. In this regard, MEP begs to submit that the aforesaid judgement is wholly inapplicable in the facts of this case. This was a case where in a writ petition, the Division Bench had appointed two Advocates as Joint Commissioners to inspect the site and to submit the report in respect of the disputed questions mentioned in the order..... F8. In the instant case, the prayer of the MEP is that since the Dispute Resolution Clause (Clause 16) of the Agreement has been rendered un-workable by the conduct of SDMC, and SDMC has violated the first principle of natural justice, therefore, a retired High Court Judge may be nominated to adjudicate the disputes between the parties. This pr....
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....rein are to be taken prima facie for disposal of the applications pending before the learned Single Judge without affecting the merits of the case and these interim directions/orders shall finally merge with the final order to be passed by the learned Single Judge on merits of the writ petition after giving chance to both the sides to make submissions in support of their respective stands before the learned Single Judge on the dispute in hand. We will endeavor not to express any opinion on the pending controversies before the learned Single Judge, although both the parties have made submissions beyond the scope of these appeals. 13. The order dated 02.03.2020 is basically a continuation of earlier order passed on 26.11.2019 by which MEP was directed to pay Rs.20.00 crores per week. There had been some defaults in the meantime and on 02.03.2020, the learned Single Judge quantified the said defaults in compliance with the order dated 26.11.2019 to the tune of Rs.115.04 crores and as mentioned in para 5 of the said order, this amount was directed to be paid by MEP to SDMC in three equal monthly installments; the first installment to be paid within 15 days from 02.03.2020 and the sa....
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.... the second week i.e. from 09.03.2020 to 15.03.2020, out of due payment of Rs.20.00 crores, as per SDMC, only a sum of Rs.3.00 crore was received from MEP leaving behind an unpaid amount of Rs.23.50 crores for these two weeks. Moreover, the 1/3rd payment due out of Rs.115.04 crores as quantified in the order dated 02.03.2020 was not paid. In these circumstances, SDMC served termination notice under clause 17 of the contract and MEP was directed to hand over the toll booths to SDMC by 14.04.2020. On 19.03.2020 MEP sent a letter to SDMC claiming invocation of Force Majeure. On 20.03.2020 in LPA No. 140/2020, filed by MEP against order dated 02.03.2020, the Division Bench ordered MEP to comply with the order dated 02.03.2020 by 24.03.2020. On 24.03.2020 MEP again wrote a letter to the SDMC invoking Force Majeure on the basis of Government of India's O.M. dated 19.02.2020. 15. Another incident on which MEP has based its claim for modification of order dated 02.03.2020 and for challenging the termination of the contract by SDMC on 16.03.2020 is that on 25.03.2020 a Full Bench of this Court passed an order extending all interim orders in operation as on 16.03.2020 and thereafter this ....
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....es bank guarantee encashed later on, the total sum becomes Rs.78.50 crores which is more than Rs.78.00 crores due on the said date. It seems that learned Single Judge has inadvertently missed out the amount of Environment Compensation Cess (ECC), which was to be paid over and above contractual amount and as mentioned in para 32 and 33 of C.M.No.11094/2020 moved by MEP itself, the said amount overdue amount was Rs.22.60 crores. The calculation made by MEP shows that on the date of encashment of the bank guarantee, after excluding the ECC amount, which was payable as per the directions of the Hon'ble Supreme Court and the said amount was to be collected by the MEP and to be deposited in Government exchequer, the amount liable to be adjusted against the court directed payments comes to Rs.41.40 crores out of the bank guarantee amount of Rs.64.00 crores and if we add Rs.14.50 crores said to be paid by MEP to it, the total amount available with SDMC comes to only Rs.55.90 crores. The net short fall on 16.03.2020 is Rs.22.10 crores, for which there is no explanation in the impugned order. 17. As per learned Single Judge, the nest installment of Rs.20.00 crores had fallen due on 24.03.....
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....MOF with regard to Force Majeure Condition, NHAI is directed to provide the undermentioned Force Majeure relief to the User Fee Collection Contractors/ Agencies by dividing the entire Force Majeure period in two phases, first phase during the period user fee collection was suspended and second phase due to low traffic count post resumption of the user fee collection due to COVID-19 pandemic. I. 1st Force Majeure period during suspension of tolling during complete lockdown from 26.03.2020 to 19.04.2020. (i) Waiver of the agreed remittance of the contractor for the period of suspension of user fee collection for the above period. (ii) Reimbursement of 75& of the Administrative & Toll Collection Expenses to be calculated based on the fixed annual administrative charges on lane basis as per NHAI procedure, on account of ensuring functioning of ETC systems, security and safety of fee plaza infrastructure during the suspension period. II. 2nd Force Majeure period post resumption of tolling with effect from 20.04.2020 (00:00hrs) till traffic resumes 90% of the traffic in pre-lockdown period weekly average traffic count. During this period the following ....
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.... 2604700 4314400 6919100 13.02.2020 2617400 4360000 6977400 14.02.2020 2475500 4441900 6917400 15.02.2020 2258000 4324200 6582200 16.02.2020 2064800 4026000 6090800 17.02.2020 2301400 4232500 6536900 18.02.2020 2424200 4318900 6743100 19.02.2020 2451900 4374500 6826400 20.02.2020 2359900 4277900 6637800 21.02.2020 2273900 4117500 6391400 22.02.2020 2147100 3811000 5958100 23.02.2020 1897200 3683800 5581000 24.02.2020 2077300 3924300 6001600 25.02.2020 2346600 3170300 5516900 26.02.2020 2372500 3150600 5523100 27.02.2020 2479800 3285000 5764800 28.02.2020 2494100 3370900 5865000 29.02.2020 2253300 2917500 5170800 Feb-20 68322600 113819200 182141800 Date wise details of Toll Tax Collection: March-20 Date RFID Collection@ 13 toll plazas Cash Collection for all 124 toll plazas Total Collection 01.03.2020 1885700 1496198 3381898 02.03.2020 2101900 1498502 3600402 03.03.2020 2150100 1473273 3623373 04.03.2020 ....
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....05.2020, which is applicable, is para 2(C) (II) and as such with effect from the date when lockdown was declared, i.e., 26.03.2020 onwards MEP was required to remit the actual toll collection to SDMC on the basis of invocation of Force Majeure after deducting 7.5% as administrative and toll collection expenses and not 15% as claimed by them and so ordered by Ld. Single Judge, because as per OM dated 18.05.2020 only 50% of the administrative and toll collection expenses were to be reimbursed and not 100% of the same. We hold that there was no need to give notice of Force Majeure as the Government of India itself has made the said declaration to be effective from 26.03.2020 vide its OM dated 18.05.2020. It also takes care of the objection of the SDMC that MEP had given notice of invocation of Force Majeure only on 19.03.2020. 21. As far as the observation of the learned Single Judge that the notice dated 16.03.2020 by which SDMC had cancelled the contract awarded to MEP is short by one day as 15 days' period to make payment of Rs.38.00 crores was to be over only on 17.03.2020, we agree with him. Although it has been argued on behalf of SDMC that mere availability of a right to inv....
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....take place in the near future, MEP is bound to comply with the directions contained in the interim order dated 02.03.2020 of remitting Rs.20.00 crore per week from the date of reaching 90% traffic level during the pendency of the writ petition. Learned Addl. Solicitor General appearing on behalf of SDMC has vehemently argued that the writ petition itself is not maintainable for enforcement of a contract entered into by SDMC with one of its vendors and their application in this regard, being C.M.No.11397/2020, is pending disposal for the last many months. It is expected that the said application will be taken up on priority and disposed of at the earliest after affording opportunity to both sides to put forward their respective submissions. 24. It has been noticed that no progress has been made by both the parties in the main writ petition although there is no stay of proceedings ordered by this Court at any point to time. It is expected that both the parties shall complete the pleadings at the earliest and the writ petition will be disposed of as expeditiously as possible by the learned Single Judge after affording opportunity to both sides to address their arguments. The option....
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....toll collection expenses allowed to be deducted by the contractor is 50% of the agreed expenses, which comes to 7.5% and not 15% as claimed earlier by the MEP. 27. As far as the appeal of MEP being LPA No.167/2020 is concerned, we are not inclined to allow the same as it has been clearly held by learned Single Judge that no objection was raised to the due amount arrived at on 02.03.2020 in compliance of the court order dated 26.11.2019, being Rs.115.04 crores. However, both the parties may reconcile their accounts from 03.03.2020 onwards to ensure strict compliance of the order dated 02.03.2020. The MEP shall ensure that all the bank guarantees and post-dated cheques have been deposited with SDMC and the bank guarantees are kept valid during the period when the writ petition No. 2241/2020 remains pending before the learned Single Judge. The steps to extend the bank guarantees and revalidate the post-dates cheques be taken well in time by MEP to ensure that no lapse is committed in this regard. As far as the request of MEP to appoint a retired Judge to decide the dispute is concerned, we are not inclined to order the same without the consent of the other party. 28. As far as t....