- (1.) THIS group of four writ petitions is disposed of by this common judgment since the controversy raised therein is identical in respect of identical contracts and Tender conditions whereby the petitioners were given contracts for supply of lorries with labourers for the removal of silt, debris, household waste materials etc. as per the rates stated in the Schedule-I annexed to the contract.
(2.) FOR the sake of brevity, we intend to refer to the facts of writ petition No. 3504 of 1989. The petitioner carries on business in the name and style of M/s. Super Transport as its sole proprietor. In or about the month of September 1984, the respondents invited tenders for supply of lorries with labourers for removal of silt, debris household waste materials etc. from "a" ward of the first respondent, the petitioner responded to the said invitation for tenders and submitted tender on 16th October, 1984. By letters dated 31st October, 1984 and 10th November, 1984 addressed by the Director, Solid Waste Management Department. The petitioner was asked to take up the work of supply of lorries with labourers for removal of silt, debris household waste materials etc. from A Ward at the rate of consideration quoted by the petitioner in Schedule-I of the Tender dated 16th October, 1984. By a further letter dated 30th November, 1984, the petitioner was asked to continue the said work for a further period of one month from 1st December, 1984 to 31st December, 1984 at the same rate as quoted in Schedule 1 of the tender. By a subsequent letter dated 24th January, 1985, the petitioner was asked to carry on the work as already granted to him till finalisation of the matter by the Administrator (Standing Committee) or till 31st January, 1985 whichever was earlier. Ultimately, by a letter dated 20th February, 1985, the respondents informed the petitioner that the tender submitted by the petitioner has been accepted at the rate quoted by him in Schedule 1 of the tender for the period from 10th November, 1984 to 31st August, 1985. According to the petitioner though the tender of the petitioner was accepted only for a period ending 31st August, 1985, as per the request of the respondents the petitioner continued to carry on the said work of supply of lorries with labourers and equipments for removal of silt, debris and household waste materials etc. till September 1988. The case of the petitioner is that as per the terms of the tender accepted by the respondents in the event of the respondents directing the petitioner to divert lorries to any other dumping grounds other than the principal dumping grounds, the petitioner would be entitled to charge at the rate of Rs. 18/- per kilometer per cubic meter for removal of silt, debris household waste materials from A ward ward of the respondent No. 1. The main dumping grounds as identified by the respondents were Wadala, Deonar and Dharavi dumping grounds, but the petitioner was directed to divert lorries to Wellington Garden dumping ground and since Wellington Garden dumping ground was not a notified dumping ground, the computation of payment was required to be made at the rate per kilometer per cubic meter as provided in the tender. The petitioner has stated that by a letter dated 21st March, 1985, the petitioner was called upon to issue a consent letter for receiving payment at the principal dumping ground rate in respect of lorries which would be diverted to the G. D. Somani Marg dumping ground and J. B. Bhosale Marg dumping ground. In reply thereto the petitioner, with a view to maintain cordial relations and under protest, agreed that he would carry out the work at the rate of principal dumping ground rate subject to the condition that in the event for any similar work if payments were made on kilometer per cubic meter basis, for any other contractors in any other work, then the petitioner would also become entitled to payment on the said basis. It is averred by the petitioner that for the period from April 1984 to September 1988, the respondents, time and again, diverted the petitioners lorries to non notified dumping grounds namely Wellington, G. D. Somani, Navy Nagar and Nepean Sea Road dumping grounds which were not principal dumping grounds and though the petitioner was entitled at the rate per kilometer per cubic meter, the respondents have made payment to the petitioner at the rates of principal dumping grounds. The petitioner has set up the case that in the month of April 1989, it came to the notice of the petitioner that the respondents had been making payments in respect of H-West Ward to one Super Construction Company Municipal contractors on the basis of per kilometer per cubic meter for removal of silt, debris and household waste materials to the dumping grounds of H-West Ward other than the principal dumping grounds. In view thereof, the petitioner immediately, by his letter dated 17th April 1989, addressed to the third respondent brought on record the said facts and called upon the respondent to make payment on per kilometer per cubic meter basis. Correspondence ensued between the parties thereafter. When the petitioner was not made payment on per kilometer per cubic meter basis in respect of lorries diverted to the dumping grounds other than the principal dumping grounds, the present writ petition has been filed praying therein that the respondents be directed to release the payments due to the petitioner in accordance with the terms set out in Schedule-I of the Tender annexed and marked Exhibit "b" at the rate of Rs. 18/- per Kilometer per cubic meter in respect of the petitioners lorries diverted to dumping grounds other than the principal dumping grounds for the period from 1st April, 1985 to 30th September, 1988.
(3.) THE respondents have filed affidavit in reply of Shri Ram Prayag, Chief Engineer (SOM) in opposition to the writ petition filed by the petitioner and also affidavit of Shri Chandrakant in reply to the notice of motion. It is the case of the respondents in the affidavit in reply that the Corporation has been giving contracts to different contractors for removal of waste material or debris from different places in different wards, by vehicles of the contractors to different dumping places. These dumping places are of two categories viz. notified dumping places for particular wards and non-notified dumping places. Referring to the contracts entered into between such contractors, it is stated that such contracts are in two parts. The first part contains the rates which are fixed rates for doing the work of carrying materials and dumping them at notified dumping places. The rate in respect of the work done as per this part of the contract is on the basis of quantity of waste materials or debris removed in terms of cubic meters and it has nothing to do with the distance between the place from which the waste material is lifted or removed and the place of dumping. This is called as fixed rate. The second part contains other places viz. non-notified dumping places where the materials are being dumped and for this the rates are on cubic meter kilometer basis. These non-notified dumping places are generally nearer to the ward and the places from where the materials or debris to be removed. The distance covered in such cases are shorter than the distance upto the notified dumping places. It is stated in the affidavit in reply that as per the special request of the contractors and mainly for their convenience, to save their petrol consumption and time the Corporation agreed to give concession to them to dump materials at places of shorter distance on cubic meter basis. In the affidavit in reply, the respondents have stated that the petitioner had agreed to accept the fixed rate of the notified dumping grounds on the basis of quantity of materials removed in terms of cubic meter only without the facts of distance taken into calculation for non-notified dumping grounds as well: and accepted the payments of the fixed rate without any protest or objection. The writ petition has only been filed after one of the contractors viz. M/s. Mehta Enterprises filed a writ petition being Writ Petition No. 2130 of 1989 and the said writ petition was admitted for want of affidavit in reply filed by the present respondents. The respondents have also stated that the questions raised by the petitioner are disputed questions of fact and therefore cannot be gone into in the writ petition. The respondents have in the affidavit in reply set out detailed facts regarding various non-notified dumping grounds, namely Wellington Dumping ground, G. D. Somani Dumping ground, J. B. Bhosale Marg Dumping ground, Navy Nagar Dumping ground, Napean Sea Road Dumping ground. The respondents have thus, denied the petitioners claim.;