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2011 DIGILAW 1686 (PNJ)

Commando Caterers v. Chandigarh Administration

2011-09-02

K.KANNAN

body2011
JUDGMENT K. KANNAN J. 1. The petitioner-company introduced into India, of what it claims as the first in Asia, a concept of “dinner in the sky”. That allows for hoisting a hanging restaurant at a height of 165 feet to cater to a dinning experience for 22 guests seated around a table, apart from 6 crew members consisting of 2 chefs, 2 air hostesses, one camera man and the security staff. The concept is said to be invented and promoted by a Belgium Company and the petitioner company claimed to be a partnership franchise for India to promote it for entertainment of public at any sports ground or cultural site or tourist or picnic site in the city. It is claimed by the petitioner company that this concept is being operated in more than 30 countries throughout the world and the petitioner company had mooted the idea to the Chandigarh Administration by addressing a letter to the Administrator with copy supplied to the Secretary, Tourism Department, Chandigarh. The petitioner is said to have pursued his representation with demonstration of the concept at meeting with the Deputy Commissioner and the Director Tourism on 22.07.2009. The Tourism Department is also believed to have been informed subsequently on 24.07.2009. This is represented to have been discussed again on 3.8.2009 amongst the Deputy Commissioner, U.T., Director Tourism and an official belonging to the Engineering Department in the presence of the Managing Director of the petitioner company. Since setting up this event constituted serious safety issues, a three member committee is reported to have been constituted by the 1st respondent, comprising of the Deputy Commissioner, Director Tourism and an officer of the Engineering Department to examine the modalities regarding launching of the ‘Sky Events’ concept. The petitioner files in proof of the contention, the file notings on his letter seeking for permission and for an opportunity to give a presentation of the viability of the project. The notings revealed that different aspects regarding safety, location of the land and promotion of tourism had been discussed and the Director Tourism had placed it before the Administrator, U.T. for information on 07.08.2009. On 08.09.2009, there was an endorsement that the Administrator, U.T. approved of the launching of the concept and a letter of intent in favour of the petitioner was suggested to be drafted and put up for approval. 2. On 08.09.2009, there was an endorsement that the Administrator, U.T. approved of the launching of the concept and a letter of intent in favour of the petitioner was suggested to be drafted and put up for approval. 2. On 14.09.2009, the Deputy Commissioner, U.T. informed the petitioner that the proposal regarding the launching of the Sky Event had been approved by the Chandigarh Administration subject to certain terms and conditions. Since this communication forms the basis of the petitioner's contention, it is appropriate to reproduce the same:- “(i) The Sky Events will be held during all major mega events in the city relating to Tourism and tentative venues where this event can be held with prior permission is as under:- Sector 17 adjoining Shivalik View, Opposite Parade Ground, Sector 17 Plaza, Sukhna Lake, Leisure Valley, Sector 10, Ground Sector 34, Public Places for Events, Product Promotions, Conferences and Celebrations-Chandigarh Club, Rock Garden, Lake Club, Press Club, Cricket Stadium, Hockey Stadium, Panjab University, Kala Gram or any institution for e.g. Mountview, I.T. Park, CII etc. (ii) Since the Sky Events will be launched through the mobile vehicles, the vehicles will have to be got registered by the Registering and Licensing Authority. (iii) Use of The Sky Events for more than 12 hours will entail payment of the ground fee by the promoters on the rates prescribed by the Administration/Municipal Corporation from time to time. (iv) You are further required to sign a Memorandum of Understanding with the Tourism Department, Chandigarh. Since the project relates to Tourism Department, U.T., you are requested to consult the Director Tourism for further clarification, if any. 3. All the leading newspapers carried reports of the imminent launch of the concept in the tri-city of Chandigarh, Mohali and Panchkula. Things however, took a different turn on 14.09.2009 when the Managing Director of the petitioner company met with the th respondent, who was the Finance Secretary, Chandigarh Administration for duly apprising him of the developments that had taken place and when he expressed his displeasure that the scheme was getting approved by the Tourism Department without reference to him and more particularly with the Chandigarh Industrial and Tourism Corporation (CITCO). On 19.09.2009, the suggestion appears to have emanated from the Administrator U.T. himself for organizing a National Crafts Mela in Chandigarh and the Home Secretary, Tourism had suggested that the Sky Events Concept could be launched on the said occasion. The 4th respondent had other ideas and proceeded to issue letter on 22.09.2009 to the Deputy Commissioner, U.T., that the event could not be conducted in the places originally approved by the Administration namely at Sukhna Lake, Leisure Valley, Lake Club, Cricket Stadium and Hockey Stadium but in any place where it was to be approved, the permission has to be restricted a period of not more than three days consecutively. The letter, according to the petitioner, contained unreasonable restrictions and the Administration, which had originally warmed to the idea, suddenly grew lukewarm and the Tourism Department did not evince any interest in the Memorandum of the Understanding, which was originally mooted in the letter referred to above. The petitioner has given several representations for executing the Memorandum of Understanding but it has not come through. The only saving grace was that the petitioner had been permitted to stage the event at the Crafts Mela to add the prestige to the grand occasion at Kala Gram when the Deputy Commissioner, U.T. had addressed the communication on 03.10.2009. The petitioner had expressed his consent on 10.10.2009. The petitioner claims that the 4th respondent had still raised obstruction to the petitioner at every stage. As an appellate authority, the Deputy Commissioner again served a memo on 22.10.2009 calling upon the petitioner to obtain safety certificate from the Engineering Department before the commencement of the Mela. The event went on as planned successfully but the 4th respondent was still having grudge against the petitioner and made an ugly scene at the Mela when he wanted to break the cordon when the Governor had actually ascended to the restaurant. When the 4th respondent was fended off by the security personnel of the Governor, he grew infuriated and took that into his skin to cause obstruction in all future dealings. 4. When the 4th respondent was fended off by the security personnel of the Governor, he grew infuriated and took that into his skin to cause obstruction in all future dealings. 4. The petitioner cites the original consent given by the Tourism Department and how the fact that such consent without reference to the 4th respondent the subsequent ugly scene involving him, created a bias against the petitioner and would say that the decision taken by the 4th respondent not to allow the petitioner to start the event in the places which had been originally approved and imposing unreasonable restrictions was the result of such bias. The petitioner, therefore, seeks for appropriate enquiry into the events that led to the unreasonable restrictions caused on the petitioner and the role played by the 4th respondent and that appropriate action must be taken after such investigation. 5. Reply has been filed by respondent Nos.1 to 3 making out a common cause with the 4th respondent that the restrictions which were imposed through the communication, which is the grievance of the petitioner in the writ petition, was taken after due deliberations and there are no mala fide or bias on the part of the 4th respondent in issuing the communication. The Government would make particularly a point of the issue that the Memorandum of Understanding could not be executed only because the petitioner himself had not given consent to some of the conditions and restrictions imposed for putting up the Sky Event in the various places originally suggested. It appears that the competent authority, who was the Finance Secretary viewed that some of the places originally suggested were not appropriate and that the Sky Event could not be promoted on all mega events. A blanket approval was not possible at all and the request for staging the event at various places has to be considered from to time and appropriate decision would be taken and communicated. In the perception of the Administration, the events were high security risk for the life of persons in the immediate vicinity of the location of the event. A blanket approval was not possible at all and the request for staging the event at various places has to be considered from to time and appropriate decision would be taken and communicated. In the perception of the Administration, the events were high security risk for the life of persons in the immediate vicinity of the location of the event. The very fact that the petitioner had been permitted to stage the event during the Fair at Kala Gram in October, 2009 was illustration of the fact that the 4th respondent was not actually causing any obstruction but he was only interested in securing appropriate security instructions to be put in place and that there could not have been a general licence given to the petitioner for staging the event at various places and would require to be considered on a case to case basis. The right to impose restrictions, which were reasonable, cannot be a subject of complaint for the petitioner to canvass in a writ petition. The 4th respondent would also file his independent written statement contending that there is no bias or prejudice against the petitioner but on the other hand, the petitioner was having a grudge only because a meeting that had taken place for the launch when the petitioner had mooted the idea to the 4th respondent, he had stated that issues of safety have to be seriously examined and finding that his fanciful approach may not take place at all places, where the petitioner wanted to promote his own commercial project, started having the grudge against the 4th respondent. In this way, literally, the Managing Director of the petitioner company and the 4th respondent, were trading charges against each other. 6. The only point that has to be seen is whether the petitioner could have any unrestricted right of launching the project by the only fact that a communication had been made previously suggesting the places where such events could be organized. Since admittedly the Administration was not prohibiting the petitioner company from carrying on with his commercial activities but was only imposing certain restrictions, the crucial issue would be whether the restrictions that had been made by the respondents were in any way a restriction of the permission already granted and whether the restrictions which were being imposed, were reasonable or not. The reasonableness will again be tested in the context of whether the 4th respondent was spirited by mala fides or bias against the petitioner so that the decision itself is vitiated and not based on objective criteria. 7. As a general principle alone, there is no question of estoppel against the Government. Even a suggestion by the State or its functionaries that the petitioner could launch his project cannot give to the petitioner any right to plead that such a promise was meant to give an unrestricted right to launch the Sky Events Concept. The State acts through its officials, who take the decision on the basis of well laid down procedures and if in the decision making process, the State were to impose any restrictions, all that could be required to be noticed is whether the restrictions were reasonable. It is not as if there has been a complete ban on the launch of the Sky Event and as admitted by the petitioner himself, it was launched at the All India Handicrafts Fair, even subsequent to the letter issued by the 4th respondent in September, 2009. I will, therefore, first hold that there is no scope for the petitioner to plead that the Administration would at all times be bound by what the letter contained when the concept was approved as an idea and evidenced through the communication of the Deputy Commissioner,U.T on 15.09.2009. The approval, which the petitioner’s proposal obtained through such a communication on 15.09.2009, contemplated the execution of a Memorandum of Understanding in future and therefore, it is evident that no concluded contract had emerged and it is not possible for the petitioner to enforce his own assumed rights. I would, therefore, hold that the places mentioned in the communication dated 15.09.2009 could not be treated as a final acceptance of an unrestricted user. It only talks about the tentative venues and it also contemplates a prior permission at the various places mentioned therein. This is still further subject to execution of the Memorandum of Understanding and subject to setting out of terms and conditions. With so many riders operating in that letter, it will be wrong to make an inference that the petitioner has an enforceable right to stage the events in the several places mentioned therein. 8. This is still further subject to execution of the Memorandum of Understanding and subject to setting out of terms and conditions. With so many riders operating in that letter, it will be wrong to make an inference that the petitioner has an enforceable right to stage the events in the several places mentioned therein. 8. The question of reasonableness of the restrictions, which have been imposed, will be properly appreciated by setting out the so-called restrictions in the letter dated 22.09.2009, which lay down as follows:- (i) No such event can be held at Sukhna Lake, Leisure Valley, Sector 10, Rock Garden, Lake Club, Cricket Stadium & Hockey Stadium as they are not meant for such events. (ii) At any place wherever such events have to take place, prior permission from the Engineering Department (Incharge of the Capital Region) will have to be taken and due rent irrespective of time of use will have to be paid. M/s Commando Caterers Pvt. Ltd. will have to take prior specific permission for use of the place. (iii) At no place permission continuously for more than three days will be granted. (iv) If M/s Commando Caterers Pvt. Ltd. has signed any Memorandum with the Tourism Department, a copy of the same be sent to this Administration. It could be noticed that there is a clear roll back on certain aspects of what the letter dated 15.09.2009 of Deputy Commissioner contained and what the Finance Secretary had communicated to the petitioner through his letter dated 22.09.2009. While clause (i) of the letter dated 15.09.2009 states that the tentative venue could be Sukhna Lake, Leisure Valley, Sector 10, Lake Club, Cricket Stadium and Hockey Stadium, a clear cut denial of use at the above places was mentioned in the subsequent letter. It was specifically stated that those places were not meant for such events. If the Administration thought that certain places were not fit, the reasonableness of such decision could be examined from the said restrictions, which were imposed. Learned counsel appearing on behalf of the Administration argued that the location of restaurant hoisted at a height of about 165 feet above the ground required marking off large places immediately underneath the hanging restaurant and therefore, the availability of space and issues of safety were paramount. Learned counsel appearing on behalf of the Administration argued that the location of restaurant hoisted at a height of about 165 feet above the ground required marking off large places immediately underneath the hanging restaurant and therefore, the availability of space and issues of safety were paramount. The Finance Secretary is the person, who is competent to take such a decision is itself not in dispute but the contention in the petition is that he was coloured in his perception by personal bias. It is not as if the Administration takes a view differently from what the 4th respondent was saying. The statement filed by respondent Nos.1 to 3 fervently supports the view that has been taken by the 4th respondent. Learned counsel for the Administration is prepared to admit that although reasons have not been specifically spelt out, they are not too far to seek. Sukhna Lake that sets an ambience for persons to take a stroll in the mornings or evenings simply does not have a large open space on ground to locate the facilities by fending off people to come within a particular radius. In Leisure Valley itself, there are serious parking issues and if existing space were to be marked as places not available for access for vehicles for the safety considerations of the restaurant to be hoisted at a height, the remaining space would be hardly sufficient to allow for comfortable parking of the members of the public. Sector 10 is essentially a residential area and there could be serious issues of invasion in privacy by allowing a hanging restaurant at a height of 165 feet. Lake Club, Cricket or Hockey Stadium are simply not places of entertainment other than the actual sports themselves and therefore, if it was decided not to allow them at such places, the petitioner could have no cause for complaint. 9. The letter of the Finance Secretary also states that at no place, permission shall be granted for more than 3 days. The issue of location as a predominant concern of safety can be easily understood but it is not possible to understand the rationale for a cap on the number of days for which the permission could be granted. It is not a round the year operation that the petitioner is seeking for. The issue of location as a predominant concern of safety can be easily understood but it is not possible to understand the rationale for a cap on the number of days for which the permission could be granted. It is not a round the year operation that the petitioner is seeking for. Obviously, the concept of novelty wears off with the passage of time and it is through the scarcity value that any such venture could succeed by operating within their economies of scale. Fairs and Melas are not round the year activities. They are invariably during festivals or around some important events or dates. There are self-limitations in their own respective ways. If the petitioner would, therefore, seek for permission during the period of the fair or mela, it would be only appropriate that such permission must be granted for such number of days as the mela or fair prolongs. It will be unreasonable and artificial to be laying down a general condition that at no time, the permission could be granted for a period in excess of three days. I find no logic or reason for such a restriction, which is contained in the letter. It is fair enough that the Finance Department has sought for copy of the Memorandum to Understanding if the petitioner had entered into with the Tourism Department. The Managing Director of the petitioner company is supposed to generate funds and a certain share for the profit was also to be come to the State Exchequer. The Finance Department is bound to know the financial accretions that are likely to ensue, though the tourism corporation may have financial autonomy. The payments and receipts ought to be placed of a Corporation may still have to be place before the State Assembly and the Finance Department will have appropriate access to such information. 10. I find that the restrictions that the letter of the Finance Secretary issues, as already indicated, does not contain a ban but only imposes certain restrictions which were fair enough. I do not, therefore, think it is essential for me to examine whether there was any bias in the mind of the 4th respondent. The petitioner’s counsel, however, was at pains to point out as to how there were serious discrepancies in the file notings about the dates in the dak register of the Finance Secretary. I do not, therefore, think it is essential for me to examine whether there was any bias in the mind of the 4th respondent. The petitioner’s counsel, however, was at pains to point out as to how there were serious discrepancies in the file notings about the dates in the dak register of the Finance Secretary. I had sought for the production of the entire files. The discrepancy in so far as they are said to exist are in relation to the dates of receipt of tapals and the decisions said to have been rendered even before the alleged their receipt. It is seen from the file that the original proposal given by the petitioner by addressing a communication to the Director Tourism on 09.07.2008 has been forwarded by the Director Tourism to the 4th respondent, who was also incidentally the Secretary Tourism at that time by a communication dated 18.07.2008. He has also marked his approval for the proposal on 23.07.2008. It must be first seen that the letter dated 09.07.2008 does not set out any place for location of the facilities and it merely introduces a concept and gives a website address that hosts the details. The approval by the 4th respondent at that time on 23.07.2008 was, therefore, to be understood as merely an approval for the concept and cannot be understood that it should be unrestricted. I find, therefore, no merit in the contention that there was any serious inconsistency between the approval, that had been granted by the 4th respondent to the concept on 23.07.2008 to his final decision imposing certain conditions for the launch of the concept. 11. If the petitioner’s contention is as regards the subsequent delays that had taken place from 2008 to 2009, I have no reason to suspect that the 4th respondent had any specific objective to delay the project. The petitioner has placed some information obtained through Public Information Officer to say that the file pertaining to the letter dated 09.07.2009 went missing from the office of the 4th respondent. If it went missing for any reason, I will not take that to be serious. It has not scuttled the whole project; It has still yielded to permission subsequently, as we have already noticed. If it went missing for any reason, I will not take that to be serious. It has not scuttled the whole project; It has still yielded to permission subsequently, as we have already noticed. It is no doubt true that State undertook active consideration only when it was mooted again some time in July, 2009 when there was a National Crafts Mela round the corner. The petitioner would characterize the letter dated 22.09.2009 as illegal, arbitrary and capricious. I have already set out the reasons as to why I find no reason for a bias or prejudice in the mind of the 4th respondent and I find no fault in the restrictions that were imposed except as limitation to the number of days for which licence could be issued, irrespective of number of days in the particular events during which the Sky Events Concept could be launched. 12. The petitioner has filed C.M. No.6414 of 2010 seeking for initiation of proceedings/enquiry against respondent No.4 and has made it part of the prayer in the writ petition also. The prayer is in the context of a newspaper publication made in the Hindustan Times in HT Live Edition on 19.09.2009 where a report was carried through that a ban had been imposed by the Finance Department on staging the Sky Event at Sukhna Lake, Leisure Valley etc. According to the petitioner, such news could not have been true, since on that day no order had been passed by the Finance Department and a formal order to the effect was issued for the first time only on 22.09.2009. In the statement filed by the 4th respondent in Court, he has made a reference to an order issued on 15.09.2009, which was apparently conveyed to the Deputy Commissioner and Secretary, Tourism Department on 22.09.2009 imposing certain conditions on the petitioner that included restraining the operation of the event at Sukhna Lake, Leisure Valley, Rock Garden etc. Although there is surely a reference to a decision as having been taken by the 4th respondent on 15.09.2009, according to the petitioner, there is no corresponding document for such a decision. Even the letter of the Finance Secretary dated 22.09.2009 makes no reference to any decision on 15.09.2009. Although there is surely a reference to a decision as having been taken by the 4th respondent on 15.09.2009, according to the petitioner, there is no corresponding document for such a decision. Even the letter of the Finance Secretary dated 22.09.2009 makes no reference to any decision on 15.09.2009. The attempt of the petitioner was to say that there could not have been an order passed on 15.09.2009 and what came in the Hindustan Times was about the decision that was to be taken three days later. The petitioner’s contention was, with reference to the file notings on which the 4th respondent had relied on, that the so called decision on 15.9.2009 and file notings are forged. 13. I have called for the original documents and examined the same. I have noticed that as per Annexure A-1 filed along with application in C.M. No.6343 of 2010, a decision had been taken on 15.09.2009 to impose certain restrictions for the installation of facilities. This had been dispatched by the office of FS (Finance Secretary) as entry No.275 dated 16.09.2009 and marked to the JSF (Joint Secretary of Finance). He had received it in Sr. No.3511 dated 16.09.2009, which in turn had been received by the Finance I Branch in diary No.3946 dated 16.09.2009. The same movement of the file had been subsequently made to the Superintendent of Finance I Branch, who marked the same to JSF for approval of the draft made. It has been dispatched in Sr. No.1758 dated 18.09.2009 by the Finance Branch to PA to JSF in Sr. No.2372 dated 18.09.2009. The counsel for the petitioner points out that Sr. No.1758 dated 18.9.2009 cannot carry a number anterior to the numbers which are appearing for 16.09.2009. In the appraisal that I have undertaken, there is a mistake in the assumption that all these numbers relate only to ‘receipts register’. On the other hand, from the original registers, I find that there are two registers maintained, one for receipt of dak with numbers carried serially and another for dispatch of dak to other branches. The No.2372 dated 18.09.2009 is a distinct register for dispatch from JSF Branch which is different from the receipt register which contains No.3511 for the date 16.09.2009. Similarly, the number found in Sr. The No.2372 dated 18.09.2009 is a distinct register for dispatch from JSF Branch which is different from the receipt register which contains No.3511 for the date 16.09.2009. Similarly, the number found in Sr. No.1758 dated 18.09.2009 from the Finance I Branch is a distinct register of dispatch from the register containing details of dak received and entered in diary No.3946 dated 16.09.2009. I do not, therefore, think that there is any manipulation of records as contended by the petitioner. No doubt the printed register contains a heading ‘receipt register’ and the columns are split in the same manner but on the outside wrapper, the exact name of the register is mentioned. One is named as movement register and another named as receipts register. All the entries contained in the movement register are dispatch of dak while all the entries seen in receipt register are in respect of receipt of dak. 14. While there could be direction to enforce a contract already entered into, there cannot be a mandate to enter into a contract by an order of court. If the Department of Tourism had sounded originally that a memorandum of understanding could be executed, it does not become a contract in itself. The communication must only be taken as formal approval of the proposal and a contract could have come to life only when a MOU had been executed. There is no binding contract yet for the court to accede to a prayer that the respondents shall enter into a MOU with the petitioner by a writ of mandamus. Since there is no binding contract, the allegation of mala fides against the 4th respondent does not arise for not approving of the sites for locating the sky event. There shall be consequently no relief also for ordering any enquiry or investigation against the 4th respondent for his role in not finalizing the contract. 15. I do not find any error in the order passed by the Finance Secretary, except the condition relating to the maximum number of days when the Sky Event Installation could be made in any one place. All the conditions imposed and found mentioned in the letter dated 22.09.2009 are approved except the condition No.3 that reads “at no place permission continuously for more than 3 days will be granted” which is ordered to be removed, if a contract is entered in to between the parties. All the conditions imposed and found mentioned in the letter dated 22.09.2009 are approved except the condition No.3 that reads “at no place permission continuously for more than 3 days will be granted” which is ordered to be removed, if a contract is entered in to between the parties. The Authorities shall be at liberty to enter into Memorandum of Agreement with petitioner containing the stipulations of the share of revenue and the conditions of licence for the Sky Event Installation at the time and place, which it will specify. The agreement, if it gets to be executed, may specify, inter alia, the fee payable for utilizing public places as well as, provision for indemnity by the petitioner for any claim against the Administration by any guest utilizing the facility. The petitioner could make the necessary application for grant of licence during various occasions, such as melas or public events to the Finance Secretary, UT Administration. If such a request is made, the office of the Finance Secretary shall take an objective decision, with appropriate consultation from all the relevant Departments, namely, the Police Department for traffic arrangements, Fire Department for issues of safety of installations, Department of Medical and Public Health for health and hygiene requirements of running a restaurant, Department of Engineering to ensure the integrity of the equipments and periodical maintenance of the equipment and any local body administration that controls and levies fees or regulates fairs. Even apart from the element of entertainment, the safety of public, the concerns of traffic congestion, the suitability of location and the proper upkeep of the engineering equipments are paramount. The exercise will be undertaken on any fresh application made by the petitioner for location at any place, time and duration. 16. The writ petition is disposed of subject to the above directions. Petition disposed of.