IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WA.No. 786 of 2008() -------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.2029/2008 Dated 23/01/2008 .................... APPELLANT(S): 2ND RESPONDENT ------------------------------------------------- PERUMBAVOOR MUNICIPALITY PERUMBAVOOR, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): PETITIONER/1ST RESPONDENT ---------------------------------------- 1. IDEA CELLULAR LIMITED, MERCY ESTATE M.G.ROAD, RAVIPURAM, ERNAKULAM, KOCHI-15. 2. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL ADMINISTRATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. R2 BY SR.GOVT.PLEADER SRI.BENNY GERVASIS SRI.P.SANJAY THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 29/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- W.A.No. 786 of 2008 ---------------------------------------------- Dated this the 29th day of March, 2011 JUDGMENT J.Chelameswar, CJ. Aggrieved by judgment dated 23.1.2008 in WP(C).No.2029 of 2008, the second respondent therein preferred the instant appeal. 2. The first respondent herein is an operator of mobile telephone service. The said respondent acquired by way of a lease an extent of approximately 250 sq.feet on the top of a building owned by the appellant herein for the purpose of establishing a telecommunication tower along with a room approximately measuring 175 sq.feet for accommodating its equipments connected with the said tower. Another piece of 250 sq.feet open space on the ground floor of the abovementioned building was also a part of the leasehold for the installation of a generator. The said lease is evidenced by document dated 3.6.1999, which is marked as Exhibit P1 in the Writ Petition. In terms of the said document, the first respondent deposited an amount of Rs.1,00,000/- as security as also agreed to pay a sum of Rs.3,375/- per month as rent. The original lease was valid for a period of 3 years. On expiry of the tenure of the lease, the first respondent requested the appellant for renewal of the agreement for a further period of three WA.786/08 2 years. 3. The appellant agreed to extend the lease for a further period of three years subject to condition that the first respondent makes security deposit of Rs.5,00,000/- and also enhance the monthly rent to Rs.20,000/-. 4. The first respondent challenged the illegality of the said decision of the appellant by approaching the Tribunal for Local Self Government Institutions. Full details of the litigation before such Tribunal may not be necessary for the purpose of the present order, except to state that the first respondent did not secure any relief from the Tribunal and therefore, the said respondent approached this Court by way of the abovementioned Writ Petition. By the judgment under appeal, a learned Judge of this Court disposed of the Writ Petition with the direction as follows: “Therefore, I dispose of the writ petition issuing the following directions. The petitioner is directed to invoke the arbitration clause in the agreement and shall do whatever necessary to have the issue resolved through arbitration. Proceedings will be initiated within three weeks of the petitioner receiving copy of this judgment. The Arbitrator appointed will pass his award within a period of two months of entering on reference. In the meanwhile all coercive action for enforcing the enhancement made by the Municipality pursuant to Exts.P6 & P8 will be kept in abeyance for a period of four months on condition that the petitioner pays the Municipality w.e.f. June 2005 lease rent/license fees @ Rs.7,400 per month. This arrangement will WA.786/08 3 be subject to the award to be passed by the Arbitrator in the prospective arbitration proceedings.” Hence, this appeal. 5. Learned counsel for the appellant argued that the judgment under appeal in so far as it directed the parties to settle the dispute by arbitration is unsustainable in law in view of the fact that the first respondent had already approached the statutory forum unsuccessfully for the redressal of the grievance. 6. For the purpose of the present appeal we do not propose to examine the proposition of law advanced by the appellant. We are of the opinion that ends of justice will be met in the instant case by giving the following directions: 7. Since the appellant is a public body - a statutory corporation, the ideal thing for the appellant is to offer the rights covered by the abovementioned Exhibit P1 lease by inviting open tenders from those who are interested in acquiring such rights. We, therefore, direct the appellant to invite tenders as indicated above within a period of 60 days from today. However, it is still open to the parties to arrive at a negotiated settlement in the matter. The direction given above would come into operation only on the failure of negotiated settlement. In the event the appellant is required to invite tenders, the rights over the property in question are to be transferred to the successful bidder. It is WA.786/08 4 open for the first respondent also to participate in such a process. In the event a third party becomes the successor in the abovementioned process, the first respondent shall vacate the premises and dismantle the structures erected by him within a period of 30 days when the date of the result of the tender is communicated to him. Goes without saying that in the event the first respondent becomes the successful bidder, he would continue in possession of the property for such period as may be determined in accordance with the terms of the tender notification. 8. The only other question that remains is the amount of rent payable by the first respondent for the period commencing from the date of expiry of the lease agreement between the parties, i.e., from 2.6.2005 till the date the first respondent either vacates the premises or enters into fresh agreement pursuant to the present order. We are of the opinion that half of the amount of the difference between the amount of monthly rent which is likely to fetch eventually in the tender process and the agreed sum of ` 3,375/- should be a reasonable amount of rent, in the circumstances of the case, to be paid as monthly rent for the abovementioned period by the first respondent. The amount should be determined subject to the result of the tendering process. 9. It is also brought to our notice, apart from initial deposit of WA.786/08 5 Rs.1,00,000/- in terms of the lease agreement, Exhibit P1, the first respondent made a further deposit of ` 2,00,000/- pursuant to Exhibit P4 interim order dated 13.11.2006 passed by the Tribunal for Local Self Government Institutions. Apart from that, it appears that the first respondent also paid an amount of Rs.7,400/- per month towards the provisional rent by virtue of the direction contained in the judgment under appeal. All the abovementioned amounts shall be adjusted towards the rent payable by the first respondent for the abovementioned period and the balance, if any, shall be returned to the first respondent. The Writ Appeal is disposed of as above. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs