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Madhya Pradesh High Court · body

2007 DIGILAW 141 (MP)

R. K. Advertisers v. Municipal

2007-02-06

A.K.PATNAIK, R.S.JHA

body2007
ORDER Patnaik, C.J. --1. On 31.1.2007, we delivered a judgment in WP No. 1326612006 holding inter alia that the procedure of inviting tenders from prospective advertisers for installing advertisement boards or hoardings on streets and open spaces of the Municipal Corporation, Jabalpur is not contrary to the provisions of the Madhya Pradesh Municipal Corporation Act, 1956 including section 366 thereof. We also disposed of Writ Appeal No. 439/2006 in terms of our aforesaid judgment delivered in WP No.13266/2006. 2. Soon after the said judgment was delivered on 31.1.2007, Mr. Sanjay Agrawal, learned counsel appearing for the appellants in the Writ Appeal No. 439/2006 did not make any oral application under Article 134A of the Constitution but made oral application for stay of our aforesaid judgment. Mr. Agrawal was told by the Court that if he is praying for stay of the judgment of the Court, he should make a written application for stay of our aforesaid judgment and if such an application is filed, the same may be considered by the Court. 3. Thereafter, an application was filed under section 151 of the Code of Civil Procedure MCC No. 404/2007 on 31.1.2007 praying for continuance of interim orders dated 31.8.2006 and 25.9.2006 passed in Writ Appeal No. 439/2006 and on being mentioned the matter was directed to be listed before the Court on the next day. Thereafter, on 2.2.2007, an application (IA No. 1667/2007) was filed for treating the application under section 151 of the Code of Civil Procedure to be under Article 134A of the Constitution of India. These two applications were heard by us on 2.2.2007. 4. Mr. A.M. Mathur, learned senior counsel for the applicants submitted that substantial questions of law of general importance arise for decision by the Supreme Court and hence the High Court should issue a certificate for appeal to the Supreme Court as provided under Article 134A read with Article 133 (1) of the Constitution. He submitted that the judgment delivered by us is contrary to the decision of Supreme Court Anil Kumar Shrivastava v. State of U.P [ (2004) 8 SCC 671 ] in which it has been held that an invitation to tender is not an offer. He submitted that the judgment delivered by us is contrary to the decision of Supreme Court Anil Kumar Shrivastava v. State of U.P [ (2004) 8 SCC 671 ] in which it has been held that an invitation to tender is not an offer. He further submitted that the oral application for a certificate under Article 134A of the Constitution could not be made soon after the judgment was delivered on 31.1.2007 because the counsel for the applicants Shri Sanjay Agrawal had not gone through the judgment that was pronounced in Court because the provisions of Chapter IX Rule 2 had not been followed before the pronouncement of the judgment. He explained that only after reading the judgment subsequently, a prayer was made for a certificate to appeal to the Supreme Court under Article 134A of the Constitution. He submitted that in any case in the application under section 151 of the Code of Civil Procedure (MCC No. 404/2007) which was filed on 31.1.2007, the substantial questions of law of general importance on which the decision of the Supreme Court is required were formulated and therefore the application under section 151 of the Code of Civil Procedure filed on 31.1.2007 is in substance an application under Article 134A of the Constitution. He submitted that unless the Court passes orders continuing the earlier interim orders passed on 30.8.2006 and 25.9.2006 passed by the Court in Writ Appeal No. 439/ 2006 for a period of four weeks as prayed in the application under section 151 of the Code of Civil Procedure, the hoardings put up by the applicants in different locations in Jabalpur may be removed and destroyed by the Municipal Corporation, Jabalpur causing immense hardship and prejudice to the applicants. 5. Mr. 5. Mr. Rajendra Tiwari, learned senior counsel appearing for the Municipal Corporation, Jabalpur, on the other hand, submitted that no oral application was made in terms of Article 134A of the Constitution immediately after passing of the judgment on behalf of the applicants for a certificate of appeal to the Supreme Court under Article 133 (1) of the Constitution and instead a written application was filed two days thereafter for converting the application under section 151 of the Code of Civil Procedure on 31.1.2007 to one under Article l34A of the Constitution and on this ground alone the prayer for a certificate under Article l34-A of the Constitution read with Article 133 (1) of the Constitution should be rejected by the Court. He further submitted that the case of the applicants all through has been that under the Madhya Pradesh Municipal Corporation Act, 1956, the Municipal Corporation, Jabalpur had no power to invite tenders from prospective advertisers for putting up hoardings and the applicants had not pleaded before the Court that the hoardings put up by the applicants should not be removed by the Jabalpur Municipal Corporation after expiry of the period for which licence is granted by the Municipal Corporation, Jabalpur and therefore at this stage the applicants cannot make a prayer to continue the interim orders dated 30.8.2006 and 25.9.2006 passed by the Court for a further period of four weeks lest the hoardings put up by them in different places at Jabalpur will be removed by the Municipal Corporation, Jabalpur. 6. Mr. Mrigendra Singh, learned counsel appearing for Sun Media Services, respondent No.3, submitted that Sun Media Services is one of the successful tenderers for installing hoardings at different places in Jabalpur City and would suffer immense loss and prejudice if the interim orders passed by the Court on 31.8.2006 and 25.9.2006 are continued by the Court for a further period of four weeks. He cited a Division Bench order of this Court in Dr. Hari Singh Gour Vishwavidyalaya. Sagar v. Pankaj Khare, Chhindwara [ 1988 JLJ 54 = 1988 MPLJ 12 ] in which it has been held that if oral application as contemplated by Article l34A of the Constitution is not made immediately after the passing of the order in the writ petition, a written application after about three months after passing of the order was not maintainable. 7. 7. In Article 134-A of the Constitution, it is provided that an oral application for certificate to appeal to the Supreme Court has to be made immediately after the passing of the judgment. There is no dispute over the fact that no oral application was made soon after the judgment was delivered by us on 31.1.2007 under Article 134A of the Constitution for a certificate under Article 133 (1) of the Constitution to appeal to the Supreme Court. In Dr. Hari Singh Gour Vishwavidyalaya. Sagar v. Pankaj Khare Chhindwara (supra), a written application was made under Article 134-A of the Constitution after about three months of the passing of the order under Article 226 of the Constitution and on these facts a Division Bench of this Court held that the written application was not maintainable. In the present case, however, a written application was made under section 151 of the Code of Civil Procedure saying that substantial questions of law of general importance arose for decision of the Supreme Court on the very day the judgment was pronounced by the Court i.e. on 31.1.2007. On these peculiar facts, we are not inclined to dismiss the prayer made under Article 134A read with Article 133 (1) of the Constitution for a certificate to appeal to the Supreme Court only on the technical ground that the same was not made orally soon after the judgment was delivered on 31.1.2007. 8. Article 133 (1) of the Constitution provides that an appeal would lie to the Supreme Court from any judgment, decree or final order in a civilroceeding of the High Court, if the High Court certifies under Article 134A of the Constitution that (a) the case involves a substantial question of law of general importance and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. Thus, the High Court will issue a certificate for appeal to the Supreme Court under Article 134A of the Constitution if both the requirements of Article 133 (l) of the Constitution are satisfied, namely that the case involves a substantial question of law of general importance and that in the opinion of the High Court the said question needs to be decided by the Supreme Court. 9. 9. The substantial questions of law of general importance as indicated in the application under section 151 of the Code of Civil Procedure (MCC No. 404/2007) are (i) interpretation of section 366 of the Municipal Corporation Act which provides for grant of licence and permission (ii) whether in view of section 366 of the Act, the licence with regard to hoardings can be auctioned by means of tenders? and (iii) whether the Municipal Corporation can invite tenders for putting hoardings on private land? 10. Question No. (iii): whether the Municipal Corporation can invite tenders by putting hoardings on private land does not arise for decision of the Supreme Court in this case because we have noted in paragraph 24 of our judgment the specific and unequivocal statement made on behalf of the respondents that the impugned proceedings do not encompass private properties and no private property has been notified in the tender notice. 11. Coming now to questions No. (i) and (ii), the contention of the applicant in the writ appeal was that the provisions of the Madhya Pradesh Municipal Corporation Act, 1956 including section 366 thereof, did not provide for inviting tenders .for the purpose of granting licence or permission for installing hoardings for advertisements. We have held in para 8 of our judgment after referring to the sections 322, 323, 335 and 366 of the Act that (a) the power to impose tax on advertisements and to regulate all activity including advertisements on Corporation land, streets and open spaces within the Corporation area and to charge rent or fee vests in the Corporation; (b) that the Corporation has the power to frame byelaws to regulate advertisements, but no byelaws have been framed in this regard by the Municipal Corporation, Jabalpur; (c) that section 366 of the Act only prescribes the general conditions of licences and permissions but does not deal with the manner in which the application shall be processed nor does it prescribe any procedure to cater for a situation like the present one where several persons apply for installing advertisement boards or hoardings at the same place and same time or the manner in which their rival claims should be considered and (d) there is no provision under the Act which expressly either permits or prohibits allotment of advertisement sites by adopting tender proceedings. We have in para 9 of the judgment referred to decisions of the Supreme Court in Dhanjibhai Ramjibhai v. State of Gujarat [ (1985) 2 SCC 5 ], K. Vinod Kumar v. S. Palanisamy and others [ (2003) 10 SCC 681 ] and Haryana Financial Corporation v. Jagdamba Oil Mills [ (2002) 3 SCC 496 ] and concluded that the procedure of calling tenders is not contrary to provisions of the Act including section 366 thereof. We are therefore of the considered opinion that even if questions No. (i) and (ii) are held to be substantial questions of law of general importance, the same do not need a decision by the Supreme Court and for this reason we are not inclined to issue a certificate to appeal to the Supreme Court under Article 134A of the Constitution. 12. The next question is whether we should continue the interim orders dated 30.8.2006 and 25.9.2006 passed by the Court in Writ Appeal No. 439/2006 for a period of four weeks to enable the applicants to prepare and file a Special Writ Petition before the Supreme Court as prayed in MCC No. 404/2007. The said interim orders of status quo were passed on 30.8.2006 and 25.9.2006 because at that stage the Court had found that the appellants had a good prima facie case. Since we have already dismissed the writ appeal as far as it relates to the challenge to the tender notice dated 2.4.2006 and all the steps taken pursuant thereto after having found no merit in the said challenge and since we have also refused to grant a certificate for appeal to the Supreme Court under Article 134A read with Article 133 (1) of the Constitution, it will not be proper for us to continue the interim orders of status quo passed by the Court on 30.8.2006 and 25.9.2006 for a further period of four weeks so as to cause hardship and prejudice to the respondents. 13. The applications under Article 134-A of the Constitution and section 151 of the Code of Civil Procedure are thus dismissed.