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2008 DIGILAW 191 (CAL)

Enkon Private Limited v. STATE OF WEST BENGAL

2008-02-15

DIPANKAR DATTA

body2008
Judgment :- (1.) PETITIONER No. 1 is an advertising agency. It advertises various products of its customers through display hoardings installed by the side of public roads on spaces being allotted to it by the respondent authorities. (2.) THE petitioner No. 1 responded to "notice Inviting Quotations for hoarding Display at different locations of Kolkata Maidan and B. B. D. Bag Area" dated 4. 6. 2001. (3.) THE rates offered by the petitioner No. 1 in respect of five sites in the Maidan area, were as follows : (4.) HOWEVER, the respondents negotiated with the petitioner No. 1 in view of Government order dated 3. 9. 2002 whereby the minimum rate for displaying hoarding within Maidan Area was fixed at Rs. 8,000/-per square metre per annum. The petitioner No. 1 agreed and decided to enhance its offer at per with the rate specified in the Government order referred to above. The petitioner No. 1 was granted permission to instal hoardings at the sites for displaying advertisement of its customers on such payment. (5.) AN agreement was then executed by and between the petitioner no. 1 and the Public Works Department on 18th July, 2006 in respect of the 5 sites. Clause p of the agreement being relevant for a decision in the present case is quoted below : " (p) That the Licensee shall be 3 years commencing from 1. 7. 04 if not earlier terminated, fresh sanction of Government will have to be obtained by the Licensee of the end of the third year of the license when the License fee shall also be liable to re-assessment. " (6.) AFTER expiry of the period of the licence, the petitioner No.1 had sought for renewal thereof. The respondent authorities upon receipt of the prayer of the petitioner No. 1 for renewal informed him that the issue would be considered if the petitioner No. 1 pays to the respondent authorities in respect of hoardings within Maidan Area which was licensed to it during the period 2002-04, also at the rate of Rs. 8,000/- per square metre per annum in terms of the Government order dated 3.9 2002. This was communicated by letter dated 13. 8. 2007 of the Superintending Engineer. 8,000/- per square metre per annum in terms of the Government order dated 3.9 2002. This was communicated by letter dated 13. 8. 2007 of the Superintending Engineer. The petitioners protested on the ground that while taking licence of hoardings during 200204, they did not work out their economics at the rate of Rs, 8,0007- per square metre per annum and, therefore, it was an unreasonable action on the part of the respondent authorities to demand such amount for a period when the terms of agreement between the parties for grant of licence was different. The Superintending engineer did not agree and by letter dated 27. 8. 07 called upon the petitioner no. 1 to pay the sum as demanded, failing which it was threatened that the hoardings would be removed. (7.) APPREHENDING removal of the hoardings at the instance of the respondent authorities, the petitioners approached this Court with the present petition and obtained an order of injunction restraining the respondent authorities from removing the hoardings. Affidavits were called for which have been filed. (8.) THE writ petition has since been heard on affidavits. (9.) HAVING heard learned Counsel for the parties and regard being had to the facts and circumstances of this case, this Court is of the considered view that the demand raised by the respondent authorities in relation to payment for licence of hoardings in and around the Maidan Area by the petitioner No.1 during the period 2002-04 at the rate of Rs. 8,000/- per square metre per annum in terms of the Government order dated 3.9.2002 is absolutely arbitrary and unreasonable. If the respondent authorities had not taken note of the government order at the relevant time and permitted the petitioners to display advertisement on hoardings at a rate lesser than the minimum specified, the petitioner No. 1 cannot be penalized for any default committed by the respondent authorities and asked to pay at the rate of Rs. 8,000/-per square metre per annum as it was not the agreed amount at the time the licence was granted. Insistence by the respondents to clear the amount due is, therefore, held to be arbitrary and without the authority of law. (10.) HOWEVER, this would not mean that the petitioner No. 1 is entitled to have renewed of the licence as of right. Insistence by the respondents to clear the amount due is, therefore, held to be arbitrary and without the authority of law. (10.) HOWEVER, this would not mean that the petitioner No. 1 is entitled to have renewed of the licence as of right. It is the absolute discretion of the respondent authorities as to whether the licence which has been granted in favour of the petitioner No. 1 and has since expired would be renewed or not and for the purpose or deciding the claim of the petitioner No. 1 for renewal of the licence, it would always be open to the respondent authorities to impose conditions which are reasonable. (11.) IN view thereof, this writ petition stands disposed of granting liberty to the respondent authorities to consider the issue of renewal of the licence strictly in accordance with law within a period of four weeks from date of receipt of a copy of this order. (12.) IT is made clear that if any amount is due and payable by the petitioner No. 1 in respect of the licence which has since expired on 30. 6. 2007 and/or in respect of continuance by virtue of the interim order passed by this court, the respondent authorities shall be at liberty to intimate to the petitioner no. 1 the amount due and payable by it. In the event the petitioner No. 1 is of the view that the amount charged is not due and payable by it and/or any amount in excess of the amount claimed has been paid by it, it shall be open to it to make an appropriate representation giving detailed particulars of payments made. On receipt of such representation, the respondent authorities shall proceed to consider the issue and decide it upon granting reasonable opportunity of hearing to the petitioners and thereafter a reasoned order shall be passed. (13.) TILL such time a decision is taken by the respondent authorities on the issue of renewal of licence in favour of the petitioners, the hoardings put up by it shall not be removed subject to the condition that the petitioners continue on paying at the prescribed rate to the respondent authorities. There shall be no order for cots.