IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 03.09.2010 CORAM THE HONOURABLE MR.JUSTICE S. TAMILVANAN W.P. Nos.11872, 11873, 12133, 12134, 12255 of 2008, W.P.Nos. 1533, 4236 and 4406 of 2009 and W.P.No.7508 of 2010 W.P.Nos. 11872, 11873, 12133, 12134, 12255 of 2008 and 4406 of 2009 M/s. Parthee's Publicity Rep.by its Proprietrix Mrs.K.R.Indumathi 14, Annasamy Street, Choolaimedu, Chennai – 600 094. .. Petitioner in W.P.No.11872 of 2008 M/s. Chennai Digital Print Rep. by its Managing Director K.Neelamurali 21, Saraswathi Square Perambur, Chennai – 11. .. Petitioner in W.P.No.11873 of 2008 M/s. Prakash Arts Rep. by its Branch Manager M.Yogan Real Towers, No.2, 2nd Floor No.51/52, Royapettah High Road, Chennai – 600 004. .. Petitioner in W.P.No.12133 of 2008 M/s. Supra Ads Rep. by its Manager M.Yogan 39/56, P.S.Sivasamy Salai, Mylapore, Chennai – 4. .. Petitioner in W.P.No.12134 of 2008 M/s. Mohan Ads Rep. by its Proprietor Madan Mohan Agarwal 114/4, 14th Street, Nandanam Extension, Chennai – 35. .. Petitioner in W.P.No.12255 of 2008 https://hcservices.ecourts.gov.in/hcservices/ M/s. Alta Vista Rep. By its Partner A.S.Karunakaran 65, Anjugam Nagar, 3rd Street, Ashok Nagar, Chennai – 83. .. Petitioner in W.P.No.4406 of 2009 -vs- 1. The Commissioner Corporation of Chennai Chennai – 3. 2. Metropolitan Transport Corporation (Chennai) Ltd., Pallavan House, Anna Salai, Chennai – 600 002. 3. The District Collector Chennai – 600 001. .. Respondents in WP Nos.11872, 11873, 12133, 12134, 12255 of 2008 & 4406/09 (R3 impeaded as per the order, dated 09.08.2010 made in M.P.No.2 of 2010 by STJ) Prayer in WP Nos.11872, 11873, 12133, 12134, 12255 of 2008 Writ Petitions filed under Article 226 of Constitution of India, seeking orders in the nature of writ of mandamus directing the first respondent or their men or subordinates not to interfere with the advertisement displayed in the boards put up in the 41, 38, 11, 43, 5 bus stand shelters respectively by the petitioners in the City of Chennai, the detailed list is given in the annexure to the writ petition and to further direct the respondents to grant license to the petitioners for the 41, 38, 11, 43, 5 bus stand shelters respectively for a period of 12 years to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays each shelter, Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years. (Prayer amended as per the order dated 09.08.2010 made in M.P.No.3 of 2010 by STJ) Prayer in WP NO.4406 of 2009 Writ petition filed under article 226 of constitution of India to issue a writ of Mandamus or any other appropriate writ or order in the nature of writ by directing the Ist respondent or their men or their subordinates not to interfere with the advertisement displayed https://hcservices.ecourts.gov.in/hcservices/ in the boards put up at (1) Sardar Patel Road - Adyar Canal B/S - Adyar (2) Mogappair Road - Golden Flats - Mogappair put up by the petitioner in the City of Chennai and further direct the respondents to grant licence to the petitioner firm for the above 2 bus stand shelters for a period of 12 years to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq. meters within 12 months from the date of the order on condition that the petitioner shall pay Rs.30,000/- as licence fee per annum with an escalation of 10% once in every 3 years. W.P.No.1533 and 4236 of 2009 M/s. Apurva Enterprises Rep. by its Proprietrix Ashvini Ravi B-1, First Floor, R-1 Sixth Avenue Anna Nagar, Chennai – 40. .. Petitioner in W.P.No.1533 of 2009 M/s. Park & Glow Media Rep. by its Proprietor Mr.R.Ravi R-1 Sixth Avenue Anna Nagar, Chennai – 40. .. Petitioner in W.P.No.4236 of 2009 -vs- 1. The Commissioner Corporation of Chennai Chennai – 3. 2. Metropolitan Transport Corporation (Chennai) Ltd., Rep.by its Managing Director, Pallavan House, Anna Salai, Chennai – 600 002. .. Respondents in both the writ petitions Prayer in WP NO.1533 of 2009 Writ petitions filed under Article 226 of Constitution of India, seeking orders in the nature of writ of mandamus restraining the respondents, their men, agents, servants of anybody acting on their behalf from in any manner from removing the petitioner's bus shelters and the advertisements mentioned in the Annexure in view of the undertaking given before the Supreme Court in S.L.P (Civil) No.276 of 2007. Prayer in WP NO.4236 of 2009 : Writ petitions filed under Article 226 of Constitution of India, to issue a writ of Mandamus forbearing the respondents their men, https://hcservices.ecourts.gov.in/hcservices/ agents, servants of anybody acting on their behalf from in any manner from removing the bus shelters viz. 1) Annai Velankanni Road (Elliots Beach), Besant Nagar, towards Parrys and 2) Luz Church Road (Hanuman Temple), Mylapore, in view of the undertaking given before the Supreme Court in S.L.P. (Civil) No.276 of 2007. W.P.No.7508 of 2010 M/s. Apurva Enterprises Rep. by its Proprietrix Ashvini Ravi B-1, First Floor, R-1 Sixth Avenue Anna Nagar, Chennai –40. .. Petitioner -vs- 1. The State of Tamil Nadu Rep. by its Secretary to Government Transport Department, Secretariat, Chennai – 9. 2. The State of Tamil Nadu Rep. by its Secretary to Government Municipal Administration and Water Supply Department, Secretariat, Chennai – 9. 3. The Commissioner Corporation of Chennai Chennai – 3. 4. Metropolitan Transport Corporation (Chennai) Ltd., Pallavan House, Anna Salai, Chennai – 600 002. 5. S.S.International Limited Rep.by its Managing Director Mr.Muralidharan 31, Narasinhapuram, Mylapore, Chennai – 4. 6. AIM Associates Rep.by its Managing Director Mr.Muralidharan 6/31, First Floor, Corporation Complex, Third Cross Road, Raja Annamalaipuram, Chennai – 28. https://hcservices.ecourts.gov.in/hcservices/ 7. Metro Multi Media Private Limited Rep.by its Managing Director 16/31-A, Narasimapuram (Near Sai Baba Temple) Mylapore, Chennai – 4. .. Respondents Writ petition filed by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the third respondent to extend the benefit in Proceeding Pa. Sa. Thu. Na. Ka. No.P1/1201/2007, Commissioner Note, dated 17.02.2010 vide resolution No.123/2010, Ref.No.66 to approve the allotment of 319 bus shelters mentioned in the annexure. For Petitioner : Mr. B.S.Gnanadesikan, Senior Counsel for Mr.T.S.Venkataseshan in W.P.Nos.11872, 11873, 12133, 12134, 12255 of 2008 and 4406 of 2009 Mr.V.Manohar in W.P.Nos.1533, 4236 of 2009 and W.P.No.7508 of 2010 For Respondents: Mr.A.L.Somayaji, Senior Counsel for Mr.V.Bharathidasan for R1 (in All WP'S) (R3 in WP 7508/2010) Mr.P.S.Raman, Advocate General for the State & for Mr.Jayesh B.Dolia for R2 (in all WP's)(R4 in WP 7508/2010) NA-RR5 to 7 in WP No.7508/10 COMMON ORDER The writ petition in W.P.No.11872 of 2008 has been field by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the first respondent, the Commissioner, Corporation of Chennai, not to interfere with the advertisement displayed in the boards put up in 41 bus stand shelters by the petitioner in the City of Chennai and to direct the respondents to grant license to the petitioner's firm for the 41 bus stand shelters for a period of 12 years and to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays each shelter Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years. 2. The petitioner in W.P.No.11873 of 2008 has filed the said writ petition, seeking similar relief, in respect of 30 bus stand shelters in the City of Chennai, for which the details are given in the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 3. W.P.No.12133 of 2008 has been filed by the petitioner, seeking an order in the nature of writ of mandamus against the first respondent, in respect of 11 bus stand shelters. W.P.No.12134 of 2008 has been filed in respect of 43 bus stand shelters by the petitioner, seeking similar relief and the details are given in the writ petition. 4. W.P.No.12255 of 2008 is filed by the petitioner, seeking an order in the nature of writ of mandamus, in respect of 5 bus stand shelters in the City of Chennai, seeking similar relief and the details of the shelters are given in the writ petition. 5. W.P.No.1533 of 2009 is filed seeking an order in the nature of writ of mandamus restraining the Commissioner, Corporation of Chennai and Metropolitan Transport Corporation Ltd., the respondents 1 and 2 herein, from in any manner removing the petitioner's bus stand shelters and the advertisement made therein as shown in the annexure, in view of undertaking given before the Supreme Court in S.L.P.(Civil) No.276 of 2007. 6. W.P.No.4236 of 2009 has been filed by the petitioner, seeking an order in the nature of writ of mandamus or any other appropriate writ, forbearing the respondents from removing the petitioner's bus shelters at 1. Annai Velankanni Road (Elliots Beach), Besant Nagar and 2. Luz Church Road (Hanuman Temple), Mylapore, Chennai, in view of the undertaking given before the Supreme Court in S.L.P (Civil) No.276 of 2007. 7. W.P.No.4406 of 2009 has been field by the petitioner, under Article 226 of the Constitution of India, seeking an order in the nature of writ of mandamus, directing the first respondent, the Commissioner, Corporation of Chennai, not to interfere with the advertisement displayed in the boards put up at (1) Sardar Patel Road, Adyar Canal Bus Stop, Adyar and (2) Mogappair Road, Golden Flats, Mogappair, Chennai and to direct the respondents to grant license to the petitioner for the above 2 bus stand shelters for a period of 12 years and to convert the existing bus shelters into international standard bus shelters with advertisement space not exceeding 30 sq.meters within 12 months from the date of the order on condition that the petitioner pays for each shelter, Rs.30,000/- as license fee per annum with an escalation of 10% in every 3 years. 8. W.P.No.7508 of 2010 is filed by the petitioner, seeking an order in the nature of writ of mandamus, directing the third respondent to extend the benefit in Proceeding Pa. Sa. Thu. Na. Ka. No.P1/1201/2007, Commissioner Note, dated 17.02.2010 vide resolution No.123/2010, Ref.No.66 to approve the allotment of 319 bus shelters mentioned in the annexure. 9. The question of law involved in all these writ petitions are similar, relating to bus shelters and advertisements made thereon, hence, all the writ petitions are heard together and common order is passed by this Court. https://hcservices.ecourts.gov.in/hcservices/ 10. Mr.B.S.Gnanadesikan, learned Senior Counsel and Mr.V.Manohar, learned counsel appearing for the petitioners submitted that the petitioners are similarly placed persons as that of those who are parties to a compromise memo filed by them and the second respondent herein before Hon'ble Supreme Court. Based on the compromise memo, the aforesaid persons were permitted to pay license fee for each one of the shelters at Rs.30,000/- per annum with an escalation of 10% once in every three years and contended that the petitioners herein are also ready and willing for the aforesaid terms and conditions of the compromise memo filed by others before the Hon'ble Apex Court and pleaded for passing similar orders. 11. Learned Senior Counsel appearing for the petitioner further submitted that as per Article 14 of the Constitution of India, in order to maintain equality before law and equal protection of law, guaranteed as fundamental right, the petitioners being similarly placed persons are also entitled to the same remedy, as per the order passed by the Supreme Court, based on the compromise memo, though the petitioners are not parties to compromise memo before the Hon'ble Supreme Court. In support of his contention, the learned Senior counsel relied on the following decisions : 1. Nagar Nigam vs. AL Faheem Meat Exports (P) Ltd., 2006 (13) SCC 382 2. Brihan Mumbai Electric Supply and Transport Undertaking vs. Laqshya Media (P) Ltd., 2010 (1) SCC 620 3. Sachidanand Pandey vs. State of W.B, 1987 (2) SCC 295 4. Vishundas Hundumal vs. The State of M.P and others, AIR 1981 SC 1636 5. State of Haryana vs. Gurcharan Singh , 2004 (12) SCC 540 6. State of Karnataka vs. C.Lalitha, 2006 (2) SCC 747 7. Mariappan vs. The Registrar of Co-operative Societies, 2006 (4) CTC 763 8. Hari Ram vs. State of Haryana, 2010 (3) MLJ 605 (SC) 9. Becil vs. Arraycom India Ltd., 2010 (1) SCC 139 12. In the counter filed by the first respondent, it is averred that all the bus shelters in the City of Chennai were constructed by the first respondent prior to 1993, under the provisions of the Chennai City Municipal Corporation Act (herein after referred to as CCMC Act) and in the year 1990, the State Government constituted an expert committee headed by Thiru.Thillainayagam to improve the work of the State Transport Undertaking (STU) and on the recommendation of the committee regarding providing bus bay space on Corporation roads and for construction of shelters for the passengers, the same was entrusted to STU, the Government issued an order in G.O.Ms.No.14 MA&WS Department, dated 11.01.1993. Based on the aforesaid Government Order, in the City of Chennai, the second respondent, State Transport Corporation was entrusted with the erection work and maintenance of bus shelters on the bus bays on the lands owned by the first respondent and the second respondent also allowed to engage various advertisement firms and agencies to erect the bus shelters and allowed them to exhibit advertisements and to collect Royalty amount https://hcservices.ecourts.gov.in/hcservices/ from them. The Committee had not made any recommendation, envisaging the second respondent to allow private companies to erect bus shelters. 13. When the second respondent called for tenders towards constructing bus shelters on the road margin, the same was challenged by various persons, by way of filing writ petitions and a Division Bench of this Court was pleased to allow the writ petitions, holding that only the first respondent Corporation has power to erect any shelter on the road margin and the second respondent has no jurisdiction to allow any sponsor to erect bus shelters and also issued various directions regarding the regulation of bus shelters, by an order, dated 05.09.2006. The second respondent, Transport Corporation filed a Special Leave Petition before the Hon'ble Supreme Court against the order passed by the Division Bench of this Court. In the meantime, on 14.07.2007, it was decided by the Government to hand over the bus shelters vested with the MTC, the second respondent herein to the Corporation of Chennai for the construction of modern bus shelters of international standard with all amenities, accordingly, on 29.11.2007, the second respondent handed over 416 litigation free bus shelters to Chennai Corporation. Out of the 416 bus shelters, 167 bus shelters are outside the city limit, for which the first respondent does not have any interest and the remaining 249 bus shelters within the city limit being the property of the Chennai Corporation, the first respondent invited tenders for the construction of modern bus shelters with international standards with amenities, on Built, Operate and Transfer (BOT) basis in 4 packages. 14. The first respondent has further stated that the tenders have been finalised and work orders were to be issued for 3 packages. In the mean time, the Hon'ble Supreme Court was pleased to dispose the SLP filed by the second respondent, accepting the memorandum of compromise filed by the second respondent and some of the respondents therein, permitting the Transport Corporation to retain 500 bus shelters and hand over the remaining bus shelters to the first respondent, by order, dated 30.06.2008 and also vacated the interim order granted on 30.10.2006. As per the orders passed by the Hon'ble Supreme Court, the second respondent is entitled to retain only 500 bus shelters and the remaining shelters should be entrusted to the first respondent Corporation. 15. According to the first respondent, the second respondent filed the compromise petition before the Hon'ble Apex Court, wherein they fixed the rate of advertisement charges and other criteria, for which the authority was vested with the first respondent. Mr.A.L.Somayaji, learned Senior Counsel appearing for the first respondent submitted that the Transport Department does not have power to take such financial decision regarding the bus shelters and further argued that the minimum advertisement rates are decided by the Rules and as per the Tender Transparency Act, which cannot be fixed by any a compromise memo and further NOC was not obtained from the first respondent before filing the compromise memo, hence, the same is not binding on the first respondent. Granting permission for advertisement over bus shelters is to be decided by the District https://hcservices.ecourts.gov.in/hcservices/ Collector, as the competent authority to allow such advertisements as per the Government Rules. 16. Mr.A.L.Somayaji, learned Senior Counsel appearing for the first respondent strenuously argued that the writ petitions are not legally maintainable, on the ground that the relief sought for by the petitioners against the first respondent is not legally sustainable. 17. Mr.P.S.Raman, learned Advocate-General appearing for the second and third respondents submitted that the order passed on the compromise memo, dated 05.04.2008 cannot be construed as 'ratio decidendi', hence, based on which the petitioners are not entitled to the relief sought for. According to the learned Advocate-General, on a special circumstances, only to meet the contingency, the said memo was filed in the SLP before the Hon'ble Supreme Court, hence it cannot be a precedent to be followed and the petitioners herein cannot seek any relief based on the order passed by the Hon'ble Supreme Court, based on the order, as per the compromise memo. Learned Advocate-General further contended that all these writ petitions are not legally sustainable, in view of the fact that the order in SLP was not passed on merits by the Hon'ble Apex Court and as such, the same cannot be construed as precedent and the law of land, as contemplated under Article 141 of the Constitution of India. 18. Mr.A.L.Somayaji, learned Senior Counsel and Mr.P.S.Raman, learned Advocate-General appearing for the respondents have relied on the following decisions, in support of their contentions : 1. Haji T.M Hassan Rawther vs. Kerala Financial Corpn., 1998 (1) SCC 166 2. Selvarani, S vs. The Commissioner, Karaikudi, Municipality, 2005 (1) CTC 81 3. Binny Ltd., vs. V.Sadasivan, 2005 (6) SCC 657 4. Padmavathi, K vs. Corporation of Coimbatore, 2005 (4) MLJ 11 19. Mr.A.L.Somayaji, learned Senior Counsel drew the attention of this Court to the order passed in I.A.No.2 of 2008 in the SLP filed by the second respondent herein before the Hon'ble Apex Court, wherein in paragraph number 3, it is stated as follows : 3. In order to give a quietus to the long drawn litigation, this petitioner opted to retain 500 shelters to be developed into international standards by and with the cooperation of the Petitioners in SLP (c) Nos.276 of 2007 and 852 of 2007 and had decided to release the remaining bus shelters to the Corporation of Chennai in stages. 20. According to the learned Senior Counsel, since there had been a prolonged litigation, only to give a quietus in the particular matter, that arrangement was made, whereby the second respondent herein retained 500 shelters and the remaining bus shelters were handed over the first respondent, Corporation of Chennai in stages. The compromise was arrived at between the second respondent and the parties before the Supreme Court, raising rights over the shelters https://hcservices.ecourts.gov.in/hcservices/ against the immediate control of the second respondent. It is further contended that for the aforesaid compromise memo, the first respondent was not a party and therefore, based on the compromise memo and the orders passed thereon, the petitioners herein are not legally entitled to seek similar relief against the first respondent herein, based on the order passed in the SLP by the Hon'ble Apex Court. 21. The Hon'ble Supreme Court in the decision, Becil vs. Arraycom India Ltd., reported in 2010 (1) SCC 139, has held as follows: "6. In contracts to be given by the government authorities or statutory bodies or instrumentalities of the State. Article 14 of the Constitution applies. Hence, there should be transparency by holding an open public action / tender because such contracts often involve huge amounts, of public money. Ordinarily, the lowest bidder should be given the contract, although it is not an invariable rule in all cases. In the present case, Prasar Bharti found that the appellant's bid was the lowest bid on the basis of the chart which we have quoted above." 22. In Nagar Nigam vs. AL Faheem Meat Exports (P) Ltd., reported in 2006 (13) SCC 382, it was held that public auction or tender has to be allowed by Government or any public authority, instead of private negotiation, considering various aspects and also the public interest. 23. In Sachidanand Pandey vs. State of W.B., reported in 1987 (2) SCC 295, having gone through various decisions, the Hon'ble Supreme Court has ruled as follows : "40. On a consideration of the relevant cases cited at the Bar the following propositions may be taken as well established: State-owned or public- owned property is not to be dealt with at the absolute discretion of the executive. Certain precepts and principles have to be observed. Public interest is the paramount consideration. One of the methods of securing the public interest, when it is considered necessary to dispose of a property, is to sell the property by public auction or by inviting tenders. Though that is the ordinary rule, it is not an invariable rule. There may be situations where there are compelling reasons necessitating departure from the rule but then the reasons for the departure must be rational and should not be suggestive of discrimination. Appearance of public justice is as important as doing justice. Nothing should be done which gives an appearance of bias, jobbery or nepotism." https://hcservices.ecourts.gov.in/hcservices/ 24. A Three Judge Bench of the Hon'ble Supreme Court in Brihan Mumbai Electric Supply & Transport Undertaking vs. Laqshya Media (P) Ltd., reported in 2010 (1) SCC 620, has held referring the fact that in several cases, the Supreme Court has emphasised that public property owned by the State or by any instrumentality of the State, should be generally sold by public auction or by inviting tenders. The Supreme Court has been insisting upon that rule not only to get the highest price for the property but also to ensure fairness in the activities of the State and public authorities. It has also been emphasised that the authority should justify the action assailed on the touchstone of justness, fairness, reasonableness in a reasonable prudent owner. 25. A Division Bench of this Court in Padmavathi, K vs. Corporation of Coimbatore reported in 2005 (4) MLJ 11 has held that public interest is paramount consideration and hence, the auctions of the state agencies should be legitimate and their dealings should be above abroad. Their transactions should be without aversion or affection, nothing should be suggestive of discrimination and nothing should be done by them which gives an impression of bias, favouritism or nepotism. Ordinarily, these factors would be absent, if the matter is brought to public auction. In the aforesaid Judgment, it has been further held as follows : "30. Thus, law is very clear that ordinarily all contracts by the Government or by an instrumentality of the State, namely Corporation should be granted only by public auction or by inviting tenders, after advertising the same in well known newspapers having wide circulation, so that all eligible persons will have opportunity to bid in the same." 26. In Binny Ltd., vs. Sadasivan, reported in 2005 (6) SCC 657, the Hon'ble Apex Court has held as follows : 9. The superior court’s supervisory jurisdiction of judicial review is invoked by an aggrieved party in myriad cases. High Courts in India are empowered under Article 226 of the Constitution to exercise judicial review to correct administrative