1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPEAL (LODGING) NO. 627 OF 2008 IN NOTICE OF MOTION NO. 2373 OF 2007 IN SUIT NO. 1770 OF 2007 Maharashtra State Road Development Corporation Ltd. …. Appellant. Versus M/s Urja Developers & Beautification Pvt Ltd. … Respondent. Mr. C.J. Sawant, Sr. Advocate a/w Mr. P.P. Charan i/b Mr. Nitin Dhumal for Appellant. Mr. P.K. Dhakephalkar, Sr. Advocate a/w K.S. Dewal for Respondent. CORAM: S.B.MHASE & A.A.SAYED, JJ. DATE: 31st JULY, 2009. JUDGMENT (Per: A.A. Sayed, J.) 1 The above Appeal is filed by the appellant-defendant challenging the order dated 2nd September, 2008 passed in the 2 Notice of Motion taken out by the respondent-plaintiff whereby it was held that the respondent-plaintiff had made out a prima facie case for grant of interim reliefs in terms of prayer clauses (a) to (e) of the Notice of Motion and it was further held that the respondent-plaintiff would be entitled to use three hoarding sites out of six hoarding sites which are available for advertisements or, in the alternative, respondent-plaintiff would be entitled to use 50% of the sites which are available subject to the rules and regulations of the Bombay Municipal Corporation for the use of the said sites. Aggrieved by this interim order the appellant – Maharashtra Road Development Corporation (MSRDC) has filed this appeal. 2 For the sake of convenience the respondent shall be referred to as “plaintiff” and appellant as “defendant-MSRDC”. 3 The case of the plaintiff in the suit in a nutshell is as follows: i) That, the defendant-MSRDC had invited offer for beautification/landscaping and maintenance with advertisement rights in Segments II, III and IV underneath Mahim Interchange, admeasuring 9800 square meters, (“the suit site”) vide offer document on or about 11th July, 2005. The relevant portion of the offer document reads as follows: 3 “MSRDC is now offering, as separate works/contracts, this space underneath Mahim Interchange in various segments given below and Kalanagar flyover for beautification / landscaping and maintenance thereof with display of advertisements in the corresponding segments on Design, Build, Operate and Transfer (DBOT) basis.” ii) That the plaintiff was awarded the contract in respect of the Mahim Interchange and accordingly the plaintiff and defendant-MSRDC entered into an Agreement for Lease on 25th March, 2006. By the said Lease Agreement exclusive advertisement rights for the project at the suit site was given to the plaintiff and the rent for the entire lease period of eight years was shown as Rs.27,60,000/- i.e. Rs.3,45,000/- p.a. Possession of the sites were to be handed over by defendant- MSRDC to the plaintiff upon signing of the Lease Agreement and on payment of security deposit of Rs.5,00,000/- in terms of the said Agreement. The plaintiff was to execute and implement the project in the suit site i.e. Segment Nos. II, III and IV underneath the Mahim Interchange, as per the maps annexed to the Agreement and the rights and benefits of the advertisements solely vested with the plaintiff. In accordance with the said Agreement, the plaintiff was handed over possession of the suit site on 4th April, 2006. The map 4 annexed to the Agreement clearly shows the area offered to the plaintiff was the entire Segment II, III and IV and the defendant-MSRDC has not kept any right in respect of the suit site and possession of any part thereof and the plaintiff was given exclusive rights, possession and benefits of the advertisement rights on the suit site. There were existing hoardings and hoarding structure i.e. unipole displaying advertisements which was leased prior to conceptualization of the beautification of the suit site and the lease in respect of these existing hoardings was getting over in near future. That it was represented by the defendant-MSRDC to them that after the lease period in respect of the existing hoarding i.e. unipole was over, the hoarding would be removed and plaintiff would have exclusive rights of advertisement over the suit site. iii) That, under the Lease Agreement, the entire area of 9800 square meters was given to them which included the area of existing hoarding and the plaintiff has invested more than Rs. 90,00,000/- in beautifying the suit site and they paying rent of Rs.27,60,000/- for the contractual period and they would have to spend more than Rs.2,00,000/- p.m. for maintenance, which expenses were likely to increase with time. The plaintiff was also to remove all the encroachments on the site. The plaintiff was aware that the existing hoardings were given prior to the 5 Lease Agreement and since the lease period of one of the hoarding (unipole) was getting over, the plaintiff wrote a letter dated 13.09.2006 to the defendant-MSRDC asking them that if they are not removing the existing hoarding which is on the suit site then the said hoarding (i.e. material such as steel, fabrication, etc.) be handed over to the plaintiff and to permit the plaintiff to beautify the same. However, the plaintiff was shocked and surprised to receive the reply dated 21.09.2006, wherein, it was for the first time mentioned by the defendant- MSRDC that plaintiff does not have rights for advertisement on the existing hoardings. The plaintiff, accordingly informed the officers of the defendant-MSRDC and clarified that the plaintiff is not interested in existing hoarding i.e. “unipole” and that since the plaintiff had got exclusive rights of the advertisement and possession of the suit site, no new agency should be permitted to advertise on the suit site belonging to the plaintiff, after expiry of the lease period of the advertisement display on the existing hoardings. That if the existing hoardings were allotted to third party, the entire work of beautification will be destroyed during the erection of new hoarding and the plaintiff would not have control over the same. That on perusal of the map annexed to the Lease Agreement it can be clearly seen that the defendant-MSRDC 6 had permitted the plaintiff to put up hoarding structure just next to the disputed unipole hoarding and advertisement display thereon which indicates that the existing hoarding was to be removed in near future after the expiry of the lease period and unless the existing hoarding is removed the plaintiff cannot put up the hoarding since it will be blocking each others view. iv) That the plaintiff was shocked to see a ‘fresh tender notice’ wherein, in the table under the column “Name of Work” it is stated that Leasing of right to display advertisement on hoardings at the ‘suit site’. By the new tender notice the defendant-MSRDC is to assign the work on Build, Operate and Transfer basis and the scope of work involves designing, which work has already been assigned to the plaintiff. The tender notice, clearly mentions that the person winning the tender will have to construct a new pole which will not effect the beautification, which goes to show that the place in the suit site itself is not fixed for erecting pole. v) That the fresh tender notice issued by the defendant- MSRDC is breach of the Lease Agreement entered into between the plaintiff and defendant-MSRDC. That the plaintiff has exclusive rights of advertisement and benefits of 7 advertisement on the suit site. That once defendant-MSRDC has given rights and benefits of advertisement to the plaintiff, the only option available to the defendant is the removal of existing hoardings in the suit site after the expiry of the lease period. 4 The Plaintiff has therefore, filed the present suit inter-alia for a declaration that the plaintiff alone has advertisement rights and benefits on the suit site and for injunction restraining the defendant-MSRDC from creating any rights in respect of advertisement in the suit site and to direct the defendant-MSRDC to remove the existing hoardings in the suit site or to permit the plaintiff to remove the same. As stated above, in the suit, Notice of Motion being Notice of Motion No. 2373 of 2007 was taken out inter-alia seeking restraint orders including stay to the allotment of the advertisement rights in respect of the suit site pursuant to fresh tender notice issued by the defendant-MSRDC to third parties and to restrain defendant-MSRDC from displaying or creating any rights in respect of advertisement on the suit site. In the said Notice of Motion the impugned order came to be passed by the learned Single Judge which is challenged in this Appeal. 8 5 The defendant-MSRDC resisted the Motion by filing a reply stating that their company is engaged in public utility activities and is established by the State Government. According to the defendant-MSRDC, it has not committed any breach of the Lease Agreement dated 25.03.2006 which was entered into pursuant to the tender floated by them. According to the defendant-MSRDC, the plaintiff was entitled to put up advertisement of specified sizes only at the suit site as mentioned in the offer document. 6 It is the defendant-MSRDC’s case that prior to the issuance of the said beautification tender there existed in all six hoardings viz. five hoardings in segment III (including one unipole) and one separate unipole in segment IV. Out of these six hoardings, four were of size 40 x 40 ft. (back to back structure) and remaining two of size 60 x 20 ft and 40 x 20 ft. These hoardings were in existence for about five years prior to the issuance of the beautification tender which was awarded to the plaintiff and contracts in respect of these hoardings were already entered into by them with 3rd parties who are paying requisite charges for the same to them and defendant-MSRDC received about Rs.27,00,000/- per annum from this hoardings (unipole) prior to January 2006 and they were getting about Rs.92.6 lacs per annum from the said six hoardings. 9 7 According to the defendant-MSRDC, the plaintiff was no way concerned with the six large sized hoardings which were in existence for about five years prior to the tender and the Lease Agreement dated 25.03.2006 nowhere mentions that the plaintiff shall have advertisement rights in respect of the six existing hoardings or that six existing hoardings will be removed. Infact the tender document itself restricts the size as well as number of hoardings which plaintiff can put up in the said segments. According to the defendant-MSRDC, by issuing a fresh advertisement for inviting bids in respect of one Unipole in segment III, they have not committed any breach of the Lease Agreement dated 25.03.2006. The contract period for one Unipole in the said segment III was to expire on 31.10.2006 and accordingly fresh advertisement in respect thereof was floated in October 2006, about six months after the execution of the present Lease Agreement. The size of hoarding of the said Unipole is 40 x 40 feet which is way beyond what was permitted to the plaintiff under the contract. According to the defendant-MSRDC, the revised offer received by them in respect of the said Unipole for the period of five years is Rs.6.25 crores i.e. Rs.1.25 crores per annum. However, in view of the interim orders passed by this Court, the defendant-MSRDC had not finalized the said tender. 10 Moreover, there were contracts of other two hoardings which expired on 31.01.2008 and 29.02.2008 which also could not be opened due to the interim orders. Thus, according to the defendant-MSRDC, the plaintiff is not concerned with the tenders of the Unipole and other existing hoardings. 8 It is the further case of the defendant-MSRDC that clause 13 of the offer document – Instructions to Bidders – specifically calls upon the proposed bidder to visit the site namely, segment II, III and IV, so that the bidders will be acquainted with the site, therefore, the plaintiff has accepted the fact that six hoardings were existing on the site when the tender was floated and the tender document and Agreement nowhere provided for removal of the existing hoarding when the contract period in respect of the Unipole in segment III was coming to an end and the plaintiff by their letter dated 13.09.2006 had requested defendant-MSRDC to give the said hoarding to the plaintiff. However, the defendant-MSRDC by the reply letter dated 21.09.2006 informed the plaintiff that the existing hoardings were not covered by the Lease Agreement between the plaintiff and defendant-MSRDC. According to the defendant-MSRDC, the plaintiff has also participated in the pre-bid meeting. 11 9 According to the defendant-MSRDC, the exclusive right mentioned in the offer document/Lease Agreement indicate that the advertisement rights are given to the plaintiff only and that defendant-MSRDC will not give advertisement rights to the structure hoarding display boards, advertisement panels, kiosks, support structures etc. designed by the plaintiff to any other party; it also implies that the right is given to plaintiff alone in respect thereof and not to anyone else. According to the defendant-MSRDC, the plaintiff was fully aware that it has no right under the contract to claim the site on the unipole and other existing hoardings, and as a result of the interim order which has been passed after various proceedings taken out by the plaintiff, the fresh tender has not been finalized till date with the result that there are losses incurred to defendant- MSRDC. According to defendant-MSRDC, there is no case made out by the plaintiff in respect of the existing hoarding (unipole) and other hoardings to grant stay of the fresh tender process in respect of the display of advertisement of the Unipole and existing hoardings. 10 The Learned Senior Counsel for the appellant, (defendant-MSRDC) had taken us through the offer document, Lease Agreement and the annexures. The Learned Senior Counsel submitted that definition of “site” or “segment” was 12 provided for in the offer document – General Condition of Contract – which stated that the site or segment shall mean the specified area below Mahim Interchange meant for beautification, landscaping and leasing of right to display advertisements. The learned Senior Counsel also pointed out that under the offer document/Lease Agreement the plaintiff was to use the said site and the advertisement panels/boards/hoardings thereon only for the purpose of display advertisement of the “specified sizes”. The learned Senior Counsel submitted that it was clearly understood that the existing hoardings were not to be given under the Lease Agreement. He pointed out that clause 13 of the tender document itself provided for site visit by the proposed bidder to get himself acquainted with the site conditions and that in the pre-bid meeting the plaintiff has never raised any issue or asked for any clarification in respect of the right to display advertisement on the existing hoarding. He pointed out conditions 19 and 20 of the Offer Document - Special Conditions of Contract, which read as under: “19 The Concessionaire shall not put any neons/hoardings and shall be permitted to display advertisements on illuminated boards/kiosk of maximum size 3’ x 2.5”. The Concessionaire shall be entitled to put hoardings/sponsorship boards i.e. 2 boards of size 6’ x 4’ 13 and 8 smaller boards of size 2’ x 10’. In respect of 8 smaller boards of size 2’ x 10”, the Concessionaire can display the names of their sponsors. The Concessionaire shall ensure that the bigger boards shall bear the name of MSRDC in lettering of not less than 6. 20 The Concessionaire shall not put any structure, which is permanent in nature.” 11 Thus, according to the learned Senior Counsel for the defendant-MSRDC, the plaintiff’s rights to display advertisement had restrictions as to the number and sizes of hoardings/boards. According to the learned Senior Counsel the existing six hoardings in Segment II, III and IV are of the much larger size viz 40’ x 40”, 60’ x 60” and 40’ x 20”, which is way beyond the permissible limits as to the size permitted to the plaintiff under special condition No.19 as afore stated. Therefore, these existing hoardings were not part of the tender and therefore by the impugned order, the learned single Judge has erred in granting 50% of the sites to the plaintiff. He reiterated that the defendant-MSRDC has received the bid in the year 2007 for a sum of Rs. 6.25 crores for a lease period of 5 years i.e. Rs. 1.25 crores per annum, however, under the impugned order, by allotting 50% of the site to the respondent, the learned single Judge has put considerable amount of public revenue in the hands of the plaintiff without any security for 14 bringing back the amount if the plaintiff ultimately fail to prove their claim. The learned Senior Counsel submited that lease is only in respect of the display of advertisement and there is no lease of the site which is given for the beautification and therefore, the learned single Judge had erred in granting relief to the plaintiff by holding that the entire area was given on lease to the plaintiff and that these hoardings form the part of the Lease Agreement. The learned Senior Counsel submitted that it was never intended to give these existing hoardings to the plaintiff and the existing hoardings including the unipole were never part of the Lease Agreement under which the plaintiff is paying only Rs.3,45,000/- per annum. The learned Senior Counsel submitted that the defendant-MSRDC is a government company engaged in development of road infrastructure in the State of Maharashtra and therefore, by giving 50% of the hoardings to the plaintiff, grave loss would be caused to the public at large. 12 The learned Senior Counsel for the defendant-MSRDC also drew our attention to the letter dated 13th September, 2006 written by the plaintiff to defendant-MSRDC wherein, it was stated that if the defendant-MSRDC was deciding to continue the same hoardings which are located in the site, they should be given to the plaintiff and that the same would 15 be erected and modified by them in a beautiful manner to add to the beauty of the area and in reply to the said letter the defendant-MSRDC wrote back to the plaintiff vide their letter dated 21.09.2006 that the existing hoardings were not covered under the Lease Agreement between the defendant-MSRDC and plaintiff. The learned Senior Counsel contended that the impugned order also does not adequately protect the defendant-MSRDC since in the event that the plaintiff is unsuccessful in the suit, it will be impossible for the defendant- MSRDC to recover the amount from the plaintiff in respect of the existing hoardings which are given to them under the impugned order and that the impugned order does not provide for adequate security, if the plaintiff’s suit is ultimately dismissed. The learned Senior Counsel therefore, urged that the impugned order is required to be set aside. 13 The learned Senior Counsel for the plaintiff, on the other hand, has drawn our attention to the clause 1 of the Lease Agreement, which reads as follows: “1. Scope of work The Concessioner shall be responsible for the beautification/landscaping and maintenance thereof with exclusive advertising rights for the project at the sites more particularly set out in Annexure-1 16 hereto, on the payment of the total lease rent of Rs. 27,60,000/- (Rupees Twenty Seven Lacs Sixty Thousand only) (“the said lease rent”) by the Concessionaire to MSRDC.” 14 The learned Senior Counsel for the plaintiff has also pointed out clause 5.2 of the agreement which reads as follows: “5.2 It is expressly agreed, understood and confirmed by and between the Parties hereto that the Concessionaire shall execute and implement the work of advertisement and display in Segments II, III and IV underneath Mahim Interchange under the project as per the plans enclosed in Annexure 2 hereto and all the rights and benefits of advertisement rights shall be solely vested with the concessionaire. It is hereby confirmed by the Parties hereto that the Concessionaire shall be entitled to advertising rights with respect to the said project on the said sites in the nature of advertisement media, kiosks, display boards, platforms etc., as sanctioned/permitted by authorities other than MSRDC, and shall be entitled to apply for, obtain the licenses for the same and enter into contracts and receive payments for the same.” 17 15 Thus, according to the Learned Senior Counsel for the plaintiff, the words “exclusive advertisement rights” and the words “all the rights and benefits of the advertisement rights shall be solely vested with the Concessionaire” in the above referred clauses clearly demonstrate that the sole and exclusive rights in respect of the advertisements at the suit site i.e. Segment No. II, III and IV lay with the plaintiff alone. The learned Senior Counsel has also pointed out that the definition of “work” in the offer document included leasing of the rights to display advertisement. 16 The learned Senior Counsel for the plaintiff submitted that defendant-MSRDC is a huge corporation and a government company and it is not possible to believe that if at all the defendant-MSRDC were desirous of retaining the six existing hoardings, the same would not have found a mention in the Lease Agreement. He submitted that in the face of the written contract in the form Lease Agreement it would be hazardous to make guess work of what was agreed to between the parties particularly at this interim stage. The learned Senior Counsel therefore submitted that once the lease period in respect of the hoarding/unipole has expired on 31st October, 2006, there was no question of inviting further tender in the 18 suit site and the learned Single Judge was right in allowing the Notice of Motion of the plaintiff. 17 The learned Senior Counsel has placed reliance on decision of the Hon’ble Apex Court in the case of State Bank of India and another Vs. Mula Sahakari Sakhar Karkhana Ltd. reported in 2006(6) Mh.L.J. 257 wherein it was held that the document must primarily be construed on the basis of the terms and conditions contained therein and while construing document the Court shall not supply any words which the author of the document did not use. 18 We heard the learned Senior Counsel for the parties and perused the material on record. 19 At the outset, it is to be noted that the suit site consists of Segment II, III and IV, underneath the Mahim Interchange. Insofar as the Kalanagar flyover mentioned in the offer document is concerned, the same is not the subject matter of the present suit. The case of the plaintiff in short is that they have exclusive advertisement rights in the suit site underneath the Mahim Interchange. Now, it is common ground that in the suit site there were existing hoardings even prior to the offer document and execution of the Lease Agreement between the parties and the existing hoardings were given on lease earlier 19 to third parties. In Segment III there were four existing regular hoardings and one unipole and in Segment IV there is one existing unipole. The question therefore is, insofar as existing hoardings are concerned, what is to happen to these existing hoardings when the existing lease given by the defendant- MSRDC to third parties expire – whether the existing hoardings can be given on further lease by defendant-MSRDC to 3rd parties or whether they are required to be removed by defendant-MSRDC or whether the existing hoardings are required to be given to the plaintiff by defendant-MSRDC. 20 It must be stated that proceedings were initiated by the plaintiff when the lease period of the unipole in Segment III was due to expire on 31.10.2006 and when the defendant- MSRDC had floated tender for leasing the said unipole in Segment III. The plaintiff took exception the tender being floated in respect of the said unipole claiming that since exclusive rights of advertisement display in the suit site i.e. Segment II, III and IV was given to them, the defendant-MSRDC did not have a right to call for tenders for advertisement display on the existing hoardings/unipoles in the suit site. The plaintiff on coming to know of the said tender being floated,