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2004 DIGILAW 703 (RAJ)

Rajasthan Advertising Company v. Rajasthan State Road Transport Corporation

2004-04-30

K.S.RATHORE

body2004
Judgment K.S. Rathore, J.-At the request of the learned Counsel for the respective parties, the matter is heard finally at this stage. 2. The petitioner M/s. Rajasthan Advertising Company is carrying on its trade and business of advertising in the State of Rajasthan mainly through display of advertising panels, boards including glow sign boards, flex boards (digital printing), wall painting, show paintings etc. 3. The Managing Director of the Rajasthan State Road Transport Corporation, vide letter dated 21.02.2004, had shown its interest of taking on hire the entire bus panels (back/side and inside) of total fleet of buses and had enquired about the terms and conditions for displaying the same. 4. Pursuant to the letter dated 21.02.2004, the Executive Director (Admn.) of the respondent Corporation had informed the petitioner company for granting space/panel for advertising on about 4200 buses of the respondent Corporation including Deluxe and CTS buses at a rate of Rs. 306/-per bus for a period of one month or more. 5. The respondent Corporation asked the petitioner company to give its consent with the advance amount of one month by way of cheque/demand draft in the name of Corporation alongwith a consent letter. 6. The petitioner company agreeding upon the terms and conditions of the respondent Corporation had written a consent letter dated 28.02.2004 to the Executive Director (Admn.) of the respondent Corporation giving its consent for hiring the bus panels of the entire fleet of buses totaling to approximately 4200 in number for a period of six weeks commencing from 15.03.2004 @ 306/-per bus desired by the respondent Corporation and out of the total amount of Rs. 19,27,800/-, panel cheque for 50% of the total amount i.e., Rs. 9,63,900/-drawn on the Urban Co-operative Bank Ltd., Jaipur favouring RSRTC was enclosed with the consent letter dated 28.02.2004. 7. After receipt of the consent letter dated 28.02.2004, the respondent Corporation had granted permission/sanction for display of advertisement panels for the period commencing from 15.03.2004 to 30.04.2004. 8. 19,27,800/-, panel cheque for 50% of the total amount i.e., Rs. 9,63,900/-drawn on the Urban Co-operative Bank Ltd., Jaipur favouring RSRTC was enclosed with the consent letter dated 28.02.2004. 7. After receipt of the consent letter dated 28.02.2004, the respondent Corporation had granted permission/sanction for display of advertisement panels for the period commencing from 15.03.2004 to 30.04.2004. 8. The petitioner company was within its right to enter into negotiations and contracts for sale of space and display of advertisement panels on the roadways buses with any party/person including a political party in exercise of its right, the petitioner entered into an agreement with Bhartiya Janata Party (BJP) for display of its publicity material on the space made available by the RSRTC in accordance with the terms and conditions negoatiated and agreed upon between the petitioner and BJP. 9. Some complaint was made to the Respondent No. 2 in regard to violation of Model Code of Conduct for the guidance of the political parties and candidates issued by the Election Commission of India and in pursuance thereof the letter was issued by the respondent No. 3 to Respondent No. 1 on 01.04.2004 and same was also endorsed to the petitioner company whereas the respondent Corporation had informed the Zila Nirvachan Adhikari that the Corporation was a commercial institution and display of advertisement was its regular work/feature which was also a source of income and it was also informed that the respondent Corporation had not made any discrimination in persons or any political party. .10. The respondent Corporation vide letter dated 05.04.2004 had enquired the petitioner company to submit information in this regard and same was submitted by the petitioner through letter dated 07.04.2004. After receiving the reply from the petitioner, the Corporation has taken a decision in view .of direction issued by the Chief Election Officer, State of Rajasthan and vide letter dated 08.04.2004 directed the petitioner company to remove its advertisement panels (belonging to BJP) from the buses of Corporation within a period of 24 hours failing which proceedings against the petitioner company were directed to be taken. 11. 11. Being aggrieved and dissatisfied with the letter dated 08.04.2004, this present writ petition is preferred by the petitioner on the ground that the action of the respondent is wholly in violation of the principle of natural justice and also in violation of the provisions of Article 19(1)(g) of the Constitution of India as the petitioner has a right to carry on trade and business of advertising. 10.12. Mr. A.K. Sharma, learned Counsel appearing on behalf of the petitioner submitted that after having granted advertising space by the respondent, the petitioner was absolutely and within his legal right to sell space to any other person or party and it was in exercise of his legal right that the petitioner has entered into an agreement with BJP for displaying the publicity material on more than 4000 buses and further submitted that the Election Commission of India does not have any plenary power to negate, nullify and over-ride the already concluded contracts between parties like the petitioner and RSRTC and the Model Code of Conduct of election cannot be extended unilaterally so as to destroy or suspend commercial transactions affecting the rights, obligations and finances of the petitioner. 113. Mr. Sharma further submitted that the respondents are bound by the doctrine of principle of promissory estoppel to extend the benefit to which the petitioner is entitled and action of the respondent is in violation of the doctrine of principle of promissory estoppel. 114. Per contra, Mr. B.C. Chirania learned Counsel appearing on behalf of respondent No. 2, the Election Commission of India, submitted that the Election Commission is supreme authority for conducting the election all over India. The Commission has been constituted under Article 324 of the Constitution of India and has been given plenary powers to ensure free and fair elections all over India. 115. The Model Code of Conduct as evolved is a code voluntarily adopted by the political parties to ensure free and fair election and level playing field between the contesting political parties and candidates as well as the party in power. 115. The Model Code of Conduct as evolved is a code voluntarily adopted by the political parties to ensure free and fair election and level playing field between the contesting political parties and candidates as well as the party in power. Such code of conduct embodies a uniform policy which applies to all the States and Union territories of Union of India and the order dated 08.04.2004 has been passed following the same uniform policy/code of conduct and it is settled preposition of law that Election Commission has wide powers of superintendence, direction and control under Article 324 of the Constitution of India for free and fair conduct of election and any step taken or order passed by the Commission in the exercise of such powers, once Model Code of Conduct for election comes into operation, then the same cannot be challenged under Article 226 of the Constitution of India. 116. Mr. Chirania further submitted that Hon’ble the Supreme Court has repeatedly stated time and again that no public property can be used by any political party during Model Code of Conduct for any type of election compaign and the commission has also issued similar directions time to time restraining all political parties including ruling party from using public property for its own use during Model Code of Conduct for the purpose of campaigning during elections. .17. Mr. Chirania relied on the case of Hon’ble Supreme Court “Election Commission of India vs. Ashok Kumar”, 2000 (8) page 216, in Para 13 wherein the Supreme Court has discussed the wide powers of the Election Commission of India under Article 324 of the Constitution of India which is reproduced hereunder:- .“Article 324 of the Constitution contemplates constitution of the Election Commission in which shall vest the superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of , all elections to Parliament and to the legislature of every State and of elections to the offices of President and Vice-President held under the Constitution. The words “superintendence, direction and control” have a wide connotation so as to conclude therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.” 118. The words “superintendence, direction and control” have a wide connotation so as to conclude therein such powers which though not specifically provided but are necessary to be exercised for effectively accomplishing the task of holding the elections to their completion.” 118. The same view has been taken by Hon’ble the Supreme Court in the Judgment titled as Union of India vs. Association for Democratic Reforms, 2002 (5) SCC page 294, in Paras 24 & 25. He also referred a Judgment rendered by Hon’ble the Supreme Court in the case of Common Cause (A Registered Society) vs. Union of India, 1996 (2) SCC 752 . 19. All these Judgment s referred by Mr. Chirania shows that Article 324 has given wide power of superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of , all elections to Parliament and to the Legislature of every State. Article 324 is a reservoir of power to act for the avowed purpose of , not divorced from. 20. The Election Commission of India declared the Schedule of Parliamentary Election on 29.02.2004 and with that declaration Model Code of Conduct came into force. 21. In the present case as the advertisement found on the public property i.e., the buses of the Corporation after Model Code of Conduct came into operation which compelled Election Commission of India to issue direction for removal of the advertisements on the buses of the Corporation as the public property is used by the party in power for campaigning. 22. Mr. Bharat Vyas who is appearing on behalf of the respondent No. 3, Chief Electoral Officer, Rajasthan, has reiterated the submissions made on behalf of respondent No. 2 and submitted that the buses run by the RSRTC are public property and the public property cannot be allowed to be used for election purpose of the political party. 22. Mr. Bharat Vyas who is appearing on behalf of the respondent No. 3, Chief Electoral Officer, Rajasthan, has reiterated the submissions made on behalf of respondent No. 2 and submitted that the buses run by the RSRTC are public property and the public property cannot be allowed to be used for election purpose of the political party. The permission by the Corporation for use of its buses for election purpose of political party is against Model Code of Conduct and it violated free and fair election process, therefore, in view of the direction of respondent No. 2, the respondent No. 3 had taken action in compliance of the order issued by the Election Commission of India as the Model Code of Conduct becomes effective and during currency of the Model Code of Conduct, advertisements by political party cannot be allowed to display on buses to ensure free and fair process of election. 23. Mr. P.K. Sharma who was allowed to intervene on behalf of the applicant supported the submissions as made on behalf of Respondents No. 2 and 3. 24. Mr. Manish Bhandari who is representing respondent No. 1 RSRTC does not dispute that the contract was awarded in favour of the petitioner for the period commencing from 15.03.2004 to 30.04.2004 and also does not dispute that in pursuance of the direction issued by respondents 2 and 3, the order dated 08.04.2004 communicated to the petitioner to remove the advertisement belonging to BJP within a period of 24 hours. 25. I have given my thoughtful consideration to the submissions made on behalf of the respective parties and after carefully perusal of the Model Code of Conduct which was made effective from the date of commencement of the Parliamentary Election i.e., 29.02.2004. As Hon’ble Supreme Court in various Judgment s referred before me taken a consistent view that the Election Commission of India under Article 324 has power of superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections to Parliament and the Legislature of every State and the elections to the offices of President and Vice President held under the Constitution. 26. To ensure free and fair election the Commission may be required to cope with some situation which may not be provided for in enacted laws and rules. 27. 26. To ensure free and fair election the Commission may be required to cope with some situation which may not be provided for in enacted laws and rules. 27. The superintendence and control over the conduct of elections by the Election Commission include the scrutiny of all expenses incurred by a political party, a candidate or any other association or body of persons or by any individual in the course of the election. The expression “Conduct of election” is wide enough to include in its sweep, the power to issue directions in the process of the conduct of an election to the effect that the political parties shall submit to the election Commission, for its scrutiny, the details of the expenditure incurred or authorized by the parties in connection with the election of their respective candidates. 9.28. Thus, it is no doubt that the Election Commission has plenary power for completion of free and fair election as given under Article 324. 10.29. Now the question remains that the petitioner was awarded contract for a period commencing from 15.03.2004 to 30.04.2004 and in view of the direction issued vide letter dated 08.04.2004, the petitioner has removed the penals, boards from the RSRTC buses meaning thereby the petitioner admittedly only deprived of his business for the period from 08.04.2004 to 30.04.2004 for 22 days. The petitioner is only restrained by the respondents to display panels, boards etc., belonging to the campaigning of rulling party (BJP ). The petitioner is not restrained to display advertisement in the RSRTC buses other than political parties. 130. As discussed hereinabove, in view of the Model Code of Conduct, the Election Commission has power to restrain the person to utilise the public property for displaying boards and panels with a view to campaigning political party as the Hon’ble Supreme Court gives ample power to the Election Commission and Article 324 also given vast power to the election commission to issue such directions. 1.31. In view of these facts, I am not agree with the submissions made by the learned Counsel for the petitioner that the Election Commission cannot issue direction to remove penals, boards, advertisements etc., belonging to campaigning of ruling party (BJP) and as per the ratio decided by the Supreme Court in various Judgment s, the Election Commission has rightly issued directions to remove such penals and advertisements to ensure free and fair election. 2.32. 2.32. At the most if the petitioner is suffering any loss between the period from 08.04.2004 to 30.04.2004, the petitioner can move before the appropriate forum for the damages caused in view of the order dated 08.04.2004 though the petitioner is also well aware of Model Code of Conduct and he should not enter into agreement with the political parties which is not permitted under the Model Code of Conduct. 3.33. In view of the aforesaid discussion, nothing survives in this writ petition. The writ petition fails and is hereby dismissed with no orders as to cost.