IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 12TH OCTOBER 2011 / 20TH ASWINA 1933 WP(C).No. 15481 of 2006(R) -------------------------------------- PETITIONER(S): ----------------------- S.ASHRAF, MEDIA COMMUNICATIONS, OUT DOOR ADVERTISERS, 29/2307-C, POONITHURA POST, KOCHI 682 038. BY ADV. SRI.B.KRISHNA MANI RESPONDENT(S): ------------------------- THE SECRETARY, KOLLAM CORPORATION, KOLLAM. BY ADV. SRI.M.K.CHANDRAMOHAN DAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.15481/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE QUOTATION NOTICE DTD. 10.5.2005. P2:- COPY OF THE RECEIPT DTD. 31.5.2005. P3:- COPY OF THE ORDER DTD. 1.7.2005 ISSUED BY THE SECRETARY, CORPORATION OF KOLLAM. P4:- COPY OF THE RECEIPT DTD. 11.7.2005. P5:- COPY OF THE AGREEMENT DTD. 11.7.2005. P6:- COPY OF THE RECEIPT DTD. 11.7.05. P7:- COPY OF THE COMMUNICATIONS DTD. 29.8.2005 ADDRESSED BY THE PETITIONER. P8:- COPY OF THE NOTICE DTD. 9.1.2006 ISSUED BY THE SECRETARY OF THE KOLLAM CORPORATION. P9:- COPY OF THE NOTICE DTD. 1.3.2006 ISSUED BY THE SECRETARY OF THE KOLLAM CORPORATION. P10:- COPY OF THE COMMUNICATIONS DT.D 22.3.2006 SENT BY THE PETITIONER. P11:- COPY OF THE DTD. 5.12.2005 GIVEN BY THE SECRETARY OF THE KOLLAM CORPORATION. P12:- COPY OF THE COMMUNICATIONS DTD. 1.6.2006 ADDRESSED BY THE PETITIONER. P13:- COPY OF THE COMMUNICATIONS DTD. 31.10.2005 FROM THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT N.H. DIVISION. P14:- COPY OF THE ACKNOWLEDGEMENT. P15:- COPY OF THE DECISION OF THE COUNSEL DTD. 20.5.06. P16:- COPY OF THE COMMUNICATIONS DTD. 27.10.2005 ISSUED BY THE SECRETARY, KOLLAM CORPORATION. P17:- COPY OF THE NEWS ITEM IN MATHRUBHUMI IN ITS KOLLAM EDITION DTD. 18.2.2006. P18:- COPY OF THE NEWS PAPER REPORT THAT APPEARED IN THE NEWSPAPER MALAYALA MANORAMA IN KOLLAM EDITION DTD. 16.11.2007. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.A. TO JUDGE tss S. SIRI JAGAN, J. ------------------------------------------- W.P.(C) No.15481 OF 2006 ---------------------------------------------- Dated this the 12th day of October, 2011 JUDGMENT The respondent granted the petitioner a licence to install advertisement boards in 77 electrical poles belonging to the Kollam Corporation in different places within the limits of the Corporation. But, the petitioner could not use the entire 77 poles for the purpose for which the same were licensed, since 22 out of the 77 poles were not available for the petitioner to put up the advertisement boards the same having been unauthorisedly occupied by other advertisements. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “(i) Call for records leading to Ext.P15 and quash the same by a writ or certiorari or any other appropriate writ, direction or order. (ii) Declare Ext.P15 as illegal, unjust and unconstitutional. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents not to enforce Ext.P15 and further direct the respondents to renew all the unauthorised advertisements. (iv) Issue a writ of mandamus or any other appropriate writ, direction or order directing the W.P.(C)No.15481/06 2 respondents not to invite fresh quotations in the matter of Ext.P1. (v) Issue an interim direction directing the respondents not to invite fresh quotations in the matter of Ext.P1.” On 15.6.2006, this Court passed the following interim order; “Pursuant to Ext.P1 invitation of tenders, the first respondent Corporation granted to the petitioner the right to instal advertisement boards in 77 electric poles belonging to the Corporation spread over different portions within the limits of the Corporation. Ext.P5 agreement was entered into between the petitioner and the Corporation whereby the petitioner is entitled to put up the advertisement on the 77 poles. He is liable to pay an amount fixed as per Ext.P5 agreement in three instalments as stated therein. Petitioner paid the first instalment and commenced the work. This means, from the date on which Ext.P5 is issued, the petitioner is entitled to put up the advertisement boards on all the 77 poles since the nature of Ext.P5 gives the right to the petitioner to utilise the poles for such purpose during the currency of the term of Ext.P5. He is entitled to put the said poles to the use of putting up advertisement as part of his commercial activity to generate the profit he would earn by virtue of having entered into Ext.P5 contract. However, it is the situation that 22 out of the 77 poles, are not available for the petitioner to put up the advertisement boards since they are apparently unauthorisedly occupied by other advertisements. It does not need much of an argument to understand that it is for the Corporation to ensure that all the 77 poles are made available to the petitioner. This is so because, notwithstanding the nature of Ext.P5, it is the Corporation which has the statutory power to remove unauthorised hoardings and advertisements. If the hoardings or advertisements in the 22 poles are ones which are authorised by the Corporation, there is no reason why the Corporation does not have a second look regarding the amounts payable by the petitioner under Ext.P5. Either way, I find a strong prima facie case in the contention of the petitioner that the moment he is enabled to put W.P.(C)No.15481/06 3 up the boards on the remaining 22 poles, he will pay the entire amount due under Ext.P5. In such circumstances, the learned counsel for the Corporation seeks two weeks' time to place a definite stand of the Corporation in this matter. Accordingly, there will be an interim relief as prayed for, for a period of two weeks”. Thereafter, the respondent has not reported before this Court that the unauthorised advertisements in 22 poles have been removed. But, they have chosen to file a statement on 1.8.2006, wherein there is no statement that the 22 poles were actually made available to the petitioner for use to put up advertisements. Instead, they take the stand that there is delay by the petitioner in approaching this Court. 2. I am of opinion that this is not the way the statutory authority should deal with an order of this Court. This Court has specifically directed the Corporation to place on record their view in the matter in respect of the 22 poles. But, in the statement, there is no specific averment that the 22 poles were also made available for the petitioner for use to put up advertisement boards. As such, I am of opinion that the petitioner is entitled to proportionate reduction in the licence fee in respect of the 22 poles. Accordingly, I dispose of this writ petition declaring that W.P.(C)No.15481/06 4 the petitioner is liable to pay licence fee only in respect of 55 poles and the petitioner is entitled to proportionate reduction in the licence fee in respect of the balance 22 poles. Therefore, the respondent shall recover only the balance licence fee, after giving proportionate reduction in licence fee for the balance 22 poles. The petitioner shall pay the licence fees in respect of 55 poles. For the above purpose, to that extent, Ex.P15 order is quashed. Of course, the petitioner has got a contention that during the pendency of this writ petition before the expiry of the licence period, advertisement boards set up by the petitioner have been removed for non-payment of licence fee. Insofar as the petitioner has not chosen to amend the writ petition to include prayers in respect thereof, that issue is left open to be agitated by the petitioner separately. The payment as directed above would be without prejudice to the right of the petitioner to take up that issue appropriately. S. SIRI JAGAN, JUDGE acd W.P.(C)No.15481/06 5 W.P.(C)No.15481/06 6