CIVIL WRIT JURISDICTION CASE No.5284 OF 2009 In the matter of an application under Article 226 of the Constitution of India. ------ THIRD EYE COMMUNICATIONS PVT. LTD. HAVING ITS REGISTERED OFFICE AT 32, VAIBHAV APARTMENT, BUDH MARG, P.S. KOTWALI, TOWN & DISTRICT PATNA THROUGH ITS DIRECTOR MANOJ KUMAR SARAF, SON OF LATE LAXMI PRASAD SARAF RESIDENT OF 510, SHANTI VIHAR APARTMENT, FRASER ROAD, P.S. KOTWALI, TOWN & DISTRICT PATNA. Versus 1. THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 2. THE DEVELOPMENT COMMISSIONER-CUM-CHAIRMAN, STATE INVESTMENT PROMOTION BOARD, GOVT. OF BIHAR, OLD SECRETARIAT, PATNA. 3. THE PRINCIPAL SECRETARY, URBAN DEVELOPMENT & HOUSING DEPARTMENT, GOVT. OF BIHAR, VIKAS BHAWAN, PATNA. 4. PATNA MUNICIPAL CORPORATION, BUDH MARG, PATNA THROUGH ITS MUNICIPAL COMMISSIONER-CUM-CHIEF EXECUTIVE OFFICER. 5. THE MUNICIPAL COMMISION-CUM-CHIEF EXECUTIVE OFFICER, PATNA MUNICIPAL CORPORATION, BUDH MARG, PATNA. ----- For the Petitioner :- Mr. Y.V. Giri, Sr. Advocate Mr. Suraj Samdarshi. For the State :- M/S. A. Amanullah, S.C.XVII & M. K. PATHAK, A.C. TO S.C. XVII For the Municipal Corporation :- Mr. P. K. Shahi, Advocate General. & Mr. Bishwa Bibhuti Kumar Singh. ------ P R E S E N T THE HON'BLE MR. JUSTICE AJAY KUMAR TRIPATHI Ajay Kumar Tripathi, J. Petitioner is a Private Limited Company and registered as such under the Indian Companies Act, 1956. They claim themselves to be specialist in outdoor advertisement plus they are also supposed to be specialist in media, corporate communication and public relation activities including marketing, promotion and Event Management. 2. Petitioner by the encouragement granted by the State of Bihar got enthusiased enough to consider entering into a Public Private 2 partnership model more directed to the Patna Municipal Corporation for dealing with the projects like creation of pedestrian foot path, lights, over head gantries, passenger shelters, illuminated and non illuminated bill boards, hoardings etc. etc. Petitioner made proposals both before the State of Bihar and the Municipal authorities of Patna. It is his stand that he was given a right in many areas to put up street lights and in lieu thereof he was given a right for advertisements to be put up on the said street lights of certain specifications. Cost for consumption of electricity or energy charges was to be borne by the petitioner and the Municipal authorities had no obligation whatsoever. Petitioner states that he made investments by initiating the work and have been completing them in municipal areas of Patna. Certain hurdles, however, came in his way because one department or the other or one authority or the other raised objections in the implementation of work and the so called right given to him by the Patna Municipal Corporation. 3. One round of litigation which came before this Court was when the District Magistrate of Patna objected to the petitioner putting up street lights around the so called Gandhi Maidan. The District Magistrate forbade him to do such a work. The petitioner filed C.W.J.C. No. 10882 of 2007 which was heard and decided by order dated 6.11.2007. The learned Single Judge came to a categorical finding that the District Magistrate was not vested with any authority under the law to restrain the functioning of the petitioner when a kind of right was conferred upon him by the Municipal authorities who were exercising power under Article 243-W and 243-X read with Schedule 12 of the Constitution. 4. The State was not satisfied with the decision and challenged the said order in appeal vide L.P.A. No. 274 of 2008 and the order passed by the Division Bench in the said L.P.A. is dated 10.2.2009 and is Annexure-13 to the writ application. The Division Bench upheld and affirmed the decision of the learned Single Judge on 3 the question. Learned Senior Counsel representing the petitioner had a few observation and submissions to make on the two decisions but the same will be dealt with in subsequent part of the order. 5. The present round of litigation initiated by the petitioner is in the background that an advertisement was placed in the daily news paper Hindustan (Hindi) dated 9.4.2009. The advertisement was inserted by the Patna Municipal Corporation which was an invitation for expression of interest from Agencies or N.G.Os. for providing civic amenities, garbage management and providing street lights in lieu of advertisement rights. The advertisement in question is Annexure-15 to the writ application and is the subject matter of challenge in the present writ application. 6. Petitioner had to file this writ application challenging the notice inviting expression of interest because the petitioner was of the considered opinion that this advertisement is going to encroach upon the right conferred upon him and it will be detrimental to his interest and investment which he had come to make on the basis of so called orders or assurances given by the municipal authorities. Writ was filed with many an averments and documents, which is being seriously contested by the respondent municipal authorities going to the root of the matter and the right of the petitioner to seek intervention or direction from this Court. 7. The Court has to now adjudicate and decide as to what is the kind of right which was conferred upon the petitioner and whether that right encompasses such a situation that an interference to Annexure- 15 is warranted. 8. Learned Senior Counsel representing the petitioner submits that deliberations were made at various levels. The petitioner was given a go ahead to execute the project given to him and when investment was made by him over a period of time, then the municipal authorities cannot dilute the interest conferred upon the petitioner by 4 calling for yet another advertisement. Though he fairly accepts that no final agreement was ever entered between the municipal authorities and the present petitioner. The petitioner’s work or investment was more based on the assurances and some orders which have come to be communicated to him from time to time, last of them being the order dated 3.7.2006, Annexure-7 to the writ application. 9. Based on the communication dated 3.7.2006 coupled with some other decisions which were taken by the so called Investment Promotion Board (Annexure-5) and a corresponding discussion reflected in the minutes dated 1.7.2006 recorded by the Patna Municipal Corporation at page 47 of the writ application to claim his right on these foundational facts. Learned Senior Counsel based on some observations made by the learned Single Judge and the Division Bench asserts that one aspect of the matter already stands adjudicated that work was assigned to the petitioner. Petitioner had gone ahead and implemented substantial part of it and he had a right to continue with that right atleast for a period of five years. According to him the period for expiry of the present arrangement will be in July, 2011. 10. Learned Advocate General representing Patna Municipal Corporation terms the claim of the petitioner as a hog wash. According to him there were materials to show that the proposal of the petitioner was being deliberated at various levels. The terms and conditions on which these concessions were to be given to the petitioner were still to be worked out and all those terms and conditions were to crystallize into an agreement but this never happened for the reasons best known to the petitioner or the erstwhile authorities at the helms of affairs of Patna Municipal Corporation. According to him, even if submissions of the petitioner are taken into consideration it only shows some kind of an adhoc decision or functioning and not a concluded contract recorded in favour of the petitioner. Ironically the learned Advocate General relies on the same annexure-5 as well as the so called 5 communication dated 3.7.2006 contained in annexure-7. He submits that in absence of any agreement there is no enforceable right which the petitioner can claim or demand. Based on the above, some kind of a tentative decision in favour of the petitioner can be presumed but the same cannot be given the status of a right which can be enforced through a writ Court. 11. Yet another submission made on his behalf is that there are many conflicts and areas of disagreement as to the actual state of affair. Whether the petitioner was actually conferred any authority or contract to carry out the work in question and that too for a period of five years on the basis of his communication contained in Annexure-7 is still the core issue which begs for an answer. He submits that keeping the rival pleadings and the documents into account no clear order or direction, muchless a writ can be issued. There is no failure on their part to perform a public duty in this regard. These are pure contractual matters and till an agreement is reached between the parties, the terms and conditions of such contract cannot be left for guess work or inferences to be drawn from the minutes and adhoc letters issued from time to time. 12. One of the last submissions on behalf of the Advocate General, which is sought to be challenged by the petitioner, is with regard to the advertisement contained in Annexure-15. According to him the petitioner is missing the woods for the trees. The expression of interest is categorical. They want Public Private Partnership to take care of disposal of garbage in certain specified areas or streets of Patna. The primary object of such an advertisement is waste and garbage management though it does talk in terms of providing opportunity to such persons to set up street lights and even award right for putting up hoardings and display in lieu thereof. In other words the advertisement may be overlapping but that itself does not make the advertisement illegal or worthy of challenge in a writ application. If certain conflicts 6 emerge that can be ironed out either by the respondents authorities or may be by yet another forum or Committee which can look into this aspect, with participation of the petitioner. The petitioner is more frightened by the prospect of a competitor and sees a ghost where none exist. 13. The Court would not like to comment on what had transpired in the past. Annexures 12 and 13 are there in existence which are judicial orders. On reading of the two decisions, it does lead this Court to believe that some kind of arrangement was worked out between the petitioner and the municipal authorities. Whether it was legal, illegal, adhoc or arbitrary is not an issue to be certified or adjudicated upon in the present writ application. Looking at the nature of relief which was originally sought for by the petitioner, the Court has no hesitation in recording that all does not seem to be well in the way the entire exercise has been carried out by the municipal authorities. Adhocism is writ large on the face of it. Jigsaw puzzles are missing and in that view of the matter, the final certification with regard to the right of the petitioner cannot be made by this Court. These are issues which are yet to be deliberated or crystallized by the parties to the dispute. 14. The other aspect which is challenge to annexure-15 i.e. the advertisement inviting expression of interest, the Court does record that there could be an area of apprehension on the part of the petitioner but that area of apprehension is not going to demolish the notice inviting expression of interest. Primary object of the notice inviting expression of interest is garbage and waste management and keeping streets of Patna clean rather than providing light and other facilities. To that extent there is no occasion for this Court to quash or interfere with Annexure-15. If that is the stated position then the whole writ application has been built into a mountain out of mole hill. 15. The above part of the order takes care of the challenge made to Annexure-15 of the writ application. 7 16. During pendency of the writ application some developments have taken place and such developments have compelled the petitioner to file I.A. No. 1134 of 2010. Two reliefs have been prayed for in the I.A. application which relate to the original dispute in question. The Court must fairly record that the prayer made in the I.A. application is a kind of offshoot to the main dispute about the right of the petitioner to carry out work. 17. One aspect is the so called meeting of the empowered committee of Patna Municipal Corporation and the minutes thereof dated 20.11.2008. Said minute is annexure-1 to the I.A. application. The meeting had deliberated on various issues. It has also dealt with right of the petitioner to put up hoardings on the street lights. Members raised objections and I am told that a lot of heat was generated in the said meeting over the decision of the Corporation to accord permission to the petitioner to put up street lights and allow advertisements to be placed thereon. Serious question with regard to the settlement was also made as to the kind of revenue which the Corporation was getting from them. A decision, therefore, was taken that this right of the petitioner need to be recalled. 18. Keeping in mind the orders of the High Court contained in Annexures 12 and 13, if the decision of the Empowered Committee is allowed to stay then the Court has no hesitation to record that it will be amounting to breach of the so called directions of the Court. Surely such a decision would be in the teeth of the order of the learned Single Judge or the Division Bench, which this Court cannot permit. In view of the same, the resolution dated 20.11.2008 stands quashed in so far as it relates to the present petitioner. 19. Other prayer made in the I.A. application is release of some of the seized goods like electric poles and fittings thereto which were demolished by the respondents and taken away. At this stage the 8 Court directs the concerned authority to release the same in favour of the petitioner forthwith. 20. There are certain grey areas which require deliberations and a decision. Such decision or deliberation is required with regard to the right and settlement of the petitioner vis-à-vis the Corporation. The Court would not like to adjudicate the same with the present material as to the final status of the petitioner on the issue. The Court would like to leave such matters for resolution between the parties through a negotiated settlement between the Municipal Corporation and the petitioner and may be with a wider consultation with some other State’s authorities. These are modalities which are to be worked out by the Municipal authorities and the respondent State. The Court would not like to put any fixed mechanism for the same. 21. But the State will be well advised including the Municipal authorities to be more careful in future while awarding such concession without there being any concluded contract or agreement entered between the parties. The fault lies both sides. 22. The writ application is allowed to the extent indicated above. (Ajay Kumar Tripathi, J.) Patna High Court, the 4th May, 2010. AMIN/ (N.A.F.R.)