IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No 16530 of 2009 M/S BRITE NEON SIGNS PRIVATE LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICER AT 201-202, KASHI PLACE, NEW DAK BUNGLOW ROAD, P.O-G.P.O, P.S-KOTWALI, PATNA-800001 THROUGH ITS DIRECTOR PRASHAN LUTHRA, S/O SRI V.K.LUTHRA, R/O - D/68, S.K.PURI, P.O & P.S- S.K.PURI, DISTT- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT DEPARTMENT 2. THE PATNA MUNICIPAL CORPORATION, BUDHA MARG, PATNA THROUGH THE MUNICIPAL COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER 3. THE MUNICIPAL COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER, PATNA MUNICIPAL CORPORATION BUDHA MARG, PATNA 4. THE ADDITIONAL MUNICIPAL COMMISSIONER, PATNA MUNICIPAL CORPORATION, BUDHA MARG, PATNA 5. THE EXECUTIVE ENGINEER, DIVISION II, PRDA (DISSOLVED), NOW WORKING UNDER PATNA MUNICIPAL CORPORATION BUDHA MARG, PATNA 6. THE DEPUTY COMMISSIONER (REVENUE) PATNA MUNICIPAL CORPORATION, BUDHA MARG, PATNA *** For the petitioner : M/s Y V Giri, Sr Advocate & Suraj Samdarshi, Advocate For the P M C : Mr Bishwa Bibhuti, Advocate For the Intervener : Mr Santosh Kumar Sinha-II, Advocate *** 3 22.12.2009 The present writ application has been filed for a direction to the respondent-Patna Municipal Corporation and its officers to cooperate and allow the petitioner to execute the work entrusted to the petitioner pursuant to agreement dated 01.08.2009 and for fulfilment thereof as between the parties. The dispute in 2 question relates to two sites at the present, one what is known as the Maurya Lok Complex within the Corporation and the other Birchand Patel Path. An intervention application, in course of hearing of this application, was filed on behalf of M/s Magadh Advertising Bureau as it apprehended that it may be prejudiced by orders which may be passed by this Court. The intervention application being I A No 8403 of 2009 was allowed and all parties were heard at length for disposal with their consent at this stage itself. It appears that in order to provide better civil amenities to the citizen coupled with beautification of the Patna Town, which was hitherto grossly lacking, certain decisions were taken by the Patna Municipal Corporation (hereinafter referred to as the “PMC” for brevity). One such civil amenity was with regard to street lighting. Earlier street lighting was provided by the Corporation at a considerable expense to the already financially starved Corporation which resulted in virtually no street lighting at all except on a very few roads. It was now decided to try out a new system whereby Organisation, other than the Corporation, was to be entrusted with the responsibility and duty of erecting lamp post, maintaining them and paying for the electricity bills in respect thereof with right to recoup their investment from letting the lamp post to be used as advertisement post as well. The said service provider was also to pay a small amount as royalty/premium to the Corporation. Thus seen, the effect of this 3 policy was that not only the Corporation was relieved from spending substantial amount on erecting, maintaining street lights and paying for its electricity, it rather started earning revenue in the same transaction while providing for better civic amenity. It appears that in 2004, the PMC permitted the Patna Electric Supply Undertaking (an undertaking of the Bihar State Electricity Board) to erect lamp post for street lighting and maintain the same itself and try and recover cost by permitting advertisements thereon. It appears, pursuant thereto, Patna Electric Supply Undertaking (hereinafter referred to as “PESU” for brevity) obtained no objection certificate from PMC and, thereafter, entered into agreement with the intervener Magadh Advertising Bureau being Agreement dated 07.02.2006 who were given franchise for advertisement rights on lamp post erected by PESU for a period of 5 years. Clause 4 (vi) of the said agreement between PESU and the intervener-respondent Magadh Advertising Bureau, inter alia, provided that the poles and street lights (erected by PESU) will be handed over to the intervener-respondent in a phased manner after deposit of security money and execution of contract agreement in that regard. It may be noted here that to this agreement, PMC was not privy or party. It is not in dispute that the intervener-respondent had not to make any capital investment but had only to maintain what was already erected and put up by PESU. It had, thus, to incur revenue expense of maintenance and pay PESU for the electricity charges at the rate of 4 Rs 200/- per month per lamp post and electricity duty at 6% of the said amount. All this revenue expense, the intervener-respondent could recoup from selling its advertising rights on the poles. The dispute inter se between the intervener-respondent and the petitioner is, for the present, only in relation to Birchand Patel Path. From the aforesaid, it would be seen that as per agreement between PESU and the intervener-respondent, the agreement was for a period of 5 years from 07.02.2006 and under the said agreement pursuant to further contracts, various specific locations were to be handed over by PESU to the intervener- respondent as and when occasion arose. It is not in dispute that so far as Birchand Patel Path is concerned, there has been no formal contract in that regard specifically as provided for as between PESU and the intervener-respondent as yet. Intervener-respondent has stated that that right has recently been handed over to it by PESU. By Constitution (74th Amendment) Act 1992, with effect from 01.06.1993, Part-IXA was introduced in the Constitution as a part of constitutional scheme for local self-Government in the shape of Municipalities. This Amendment, inter alia, gave a constitutional status to Municipalities authorising it to impose taxes and setting up democratic institutions for self-Government. Article-143W of the Constitution read with 12th Schedule and, in particular, Entry 17 therein, provide for the power, authority and 5 responsibility of Municipality in respect of public amenities including street lighting. Pursuant to the said constitutional amendment, the Bihar Municipal Act and Patna Municipal Corporation Act, which was then in force, was repelled and a comprehensive Bihar Municipal Act, 2007 was enacted. Inter alia, in the said Bihar Municipal Act 2007, it is provided that all public streets, by virtue of Section 232 of the Bihar Municipal Act, 2007 with all erections, implants and trees and other things provided therein shall be vested in the Municipality subject to the provisions of Chapter 21 of the said Act. Chapter 21 of the said Act authorises the Municipality to go in for private sector participation and assignment of Municipal functions. These things materially changed in relation to public streets including public street lighting which now absolutely vested in the Municipalities and it permitted no interference by any other authority. I may notice that this aspect of the matter has also received judicial recognition by way of judgment in the case of Third Eye Communications Private Limited –Versus- The State of Bihar and others being CWJC No 10882 of 2007 decided on 06.11.2007 where the District Magistrate, Patna was, in view of the said constitutional scheme, prohibited from interfering with decisions taken by the PMC by which it had permitted private organization to set up and maintain street lights. It may also be noticed that the said decision was affirmed by a Division Bench of this Court in LPA No 274 of 2008 which was dismissed by order 6 dated 10.02.2009. The Letters Patent Appeal was preferred by the State of Bihar and the District Magistrate, Patna. It appears that finding the scheme to be remunerative, the petitioner approached the Municipal Commissioner of PMC and pursuant to negotiations, petitioner first offered for installation and maintenance of street lights, welcome gates, high mast lights etc at Maurya Lok Complex in Patna on sponsorship basis. Petitioner submitted the development plan with computer generated graphics by their letter dated 27.04.2009 to the Municipal Commissioner pursuant whereto apparently deliberations were made in the Empowered Standing Committee of PMC and, inter alia, on 22.05.2009 and on 30.07.2009, an order was issued in favour of the petitioner by the Town Commissioner, PMC which is to be found at Annexure-5 to the writ petition. This related to the Maurya Lok Complex and the newly rebuilt Birchand Patel Path. It, inter alia, provided that petitioner would have the obligation to provide adequate lighting arrangements all over Maurya Lok Complex. So far as Birchand Patna Path is concerned, they were to make a green belt on the central road divider and provide for fountains at both ends thereof as a part of beautification and lighting arrangement on the two locations. One of the conditions was before establishment, they would get site plans approved by PMC. This was followed by a detailed agreement as between PMC and the petitioner dated 01.08.2009 which is Annexure-6 to the writ petition. Clauses-13 and 14 of the terms and conditions of 7 this agreement are important. Clause-13 provided that at Maurya Lok Complex and at Birchand Patel Path, petitioner was authorised to make proper arrangement for lighting and of displaying advertisement thereon for a period of 5 years on basis of build, operate, maintain (BOM) renewable for another 5 years. Clause-14 was a clear undertaking by the PMC that during the pendency of the agreement in respect of Maurya Lok Complex and Birchand Patel Path, no any other person would be permitted by PMC to display advertisements, thus, protecting right of the petitioner who were required to make investments and recoup the same from advertisement rights. Now, the first dispute with regard to Maurya Lok Complex. When the petitioners started work at the Maurya Lok Complex, the authorities of Patna Municipal Corporation were found forcibly removing lamp post etc erected by petitioner. That brought the petitioner to this Court in CWJC No 11933 of 2009 which was heard and disposed of on 12.10.2009. The order of this Court is Annexure-11 to the writ petition. It appears that the only objection PMC had was that, as provided, petitioner had not submitted the site plan for sanction before taking up the work at Maurya Lok Complex. This Court directed the Municipal Commissioner, PMC to consider the site plan submitted by the petitioner alongwith letter dated 27.04.2009 as sufficient and pass appropriate orders accordingly. Writ petition being disposed of when the authorities of PMC neither reverted to the petitioner nor 8 permitted the petitioner to proceed with the work, it gave rise to the present writ petition by the petitioner. In course of hearing, the learned counsel for PMC stated that petitioner had not submitted site plan as it was required to do. On being pointed out by this Court that this matter had been settled earlier in the earlier writ proceedings where PMC had agreed to proceed on basis of the computer generated images of the site which had been submitted to it alongwith petitioner’s letter dated 27.04.2009, learned counsel agreed that the authorities of PMC would now proceed on basis of those documents and permit petitioner to complete their work at the earliest. The counsel also did not controvert the fact that any other requirement, if any, was never communicated to the petitioner for its compliance. This, in my view, resolves the dispute so far as Maurya Lok Complex is concerned and it is hoped that there will be no hitch in relation to that location any more as between the parties. Now coming to Birchand Patel Path, the problem is not as simple. As noticed above, much prior to the Bihar Municipal Act 2007 coming into force, as Corporation was itself unable to set up and maintain public street lighting, it had permitted PESU to set up the same. Pursuant whereto PESU had entered into agreement with the intervener-respondent and intervener- respondent now asserts his right in respect of advertising rights along Birchand Patel Path though it is admitted that as contemplated under the agreement as between PESU and 9 intervener-respondent, there has been no contract specifically for the said road/location. All properties having now vested by the Municipal Act 2007 in the Municipality, PMC had now entered into a written agreement with the petitioner for, inter alia, the Birchand Patel Path, which has now been newly laid out for its lighting and beautification, petitioner took up this work. It has spent considerable amount, details whereof are given in supplementary affidavit. Spending in excess of Rs 8 lacs in preparing the green belt, installing fountains at the two ends of Birchand Patel Path and now when it wanted to put up the advertisements, it is being opposed by the intervener-respondent. Petitioner wants PMC to abide by Clauses-13 and 14 of the terms and conditions of the agreement as between PMC and the petitioner and intervener-respondent submits that it has got advertisement rights from PESU which cannot be disturbed. To reconcile the situation, certain fundamental facts are to be first noticed. First, by virtue of the constitutional amendment and the provisions of the Bihar Municipal Act 2007, the road, public lighting, which are erections on the road, now vest in the Patna Municipal Corporation. Intervener-respondent has made no investment of its own. It is only to collect advertisement revenue and pay the electricity charges. Intervener-respondent has not entered into a contract for the said road Birchand Patel Path with PESU as yet in terms of Clause-4 (vi) of the agreement between PESU and the intervener-respondent. Whereas the 10 petitioner has made substantial capital investments, details whereof have been filed by way of supplementary affidavit in excess of Rs 8 lacs on Birchand Patel Path for its beautification and is ready, willing and wanting to operate and maintain the street lights and recoup the entire cost by selling advertisement rights which it is being prevented and/or not being permitted. That is bone of contention. Having considered the matter, in my view, it is the duty and obligation of PMC to ensure that petitioner is permitted to exploit and use the agreement unhindered as between PMC and the petitioner. It is so because the property is now of PMC with obligation on PMC to provide for the civil amenities for which it has entered into the specific agreement with the petitioner in this regard. So far as the intervener-respondent is concerned, it is undisputedly not yet entered into the contract with PESU in respect of Birchand Patel Path though it may be working thereon. A specific contract was contemplated before they undertook the work and charge in terms of the agreement of intervener- respondent and PESU itself. That is lacking. They have made no fixed investments as against petitioner who spent a considerable amount. Another important aspect is that during the pendency when petitioner started and was taking up steps for the beautification of Birchand Patel Path, the intervener-respondent never protested. It permitted petitioner to complete the work at considerable cost and then raised the dispute obviously because it 11 had no financial involvement of its own. It is under these circumstances at one point of time, Court suggested for an amicable settlement between the two whereby the intervener- respondent could pay for all the beautification work done by petitioner and absolve petitioner of his rights and obligations under the agreement with PMC and take over that right because beautification obviously enhances the revenue potential from advertisement on the site. Unfortunately, intervener-respondent was not ready to compensate the petitioner for investment made and wanted to reap the harvest of beautification themselves. In such a situation, petitioner also made an offer in the Court to compensate the intervener-respondent for any cost incurred by them if they were to leave Bichand Patel Path. That was also not acceptable to the intervener-respondent. Having considered the matter, this Court is of the opinion that as the intervener-respondent has not perfected the right by specific contract as contemplated in their own agreement with PESU, they have to give way to the petitioner whose rights are crystallised in the agreement as between PMC in whom property has vested and the petitioner. That being so, I have no option but to direct PMC to act in accordance with Clause-14 of the agreement dated 01.08.2009 as between the petitioner and PMC and ensure that the petitioner is permitted to exploit the advertisement rights on the condition that it operates and maintains the street lights as well. To that extent, intervener- 12 respondent is relieved of his obligation and rights in respect of Birchand Patel Path. I order accordingly. The writ application, thus, stands disposed of with the aforesaid observations and directions. M.E.H./ (Navaniti Prasad Singh)