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2012 DIGILAW 373 (ORI)

Ajanta Advertisers v. State of Orissa

2012-08-24

B.N.MAHAPATRA, V.GOPALA GOWDA

body2012
JUDGMENT V. GOPALA GOWDA, C.J. : These petitions were heard together and are being disposed of by this common judgment, as the facts and legal contentions in all cases are similar and the prayer made therein is to quash the notice dated 12.12.2011 (in W.P.(C) Nos.32995, 32397, 32996, 32991 and 33443 of 2011) and 31.12.2011 (in W.P.(C) No.192 of 2012) issued by the Cuttack Municipal Corporation (in short, ‘CMC’) directing immediate removal of hoardings erected by the petitioners upon private buildings and lands within its area and the contract awarded in favour of opposite party No.3-/M/s. Dreamteam Advertising Pvt. Ltd, the awarded of the leasehold rights for erection of hoardings upon the property of the CMC and the private owners with their consent stating various facts and legal contentions in support of their respective claims. So far as W.P.(C) No.32995 of 2012 is concerned, apart from the prayer for quashing of the notice dated 12.12.2011, the other prayers made in it is to quash the tender process floated under Annexure-2 dated 18.6.2011 and the agreement dated 16.9.2011 under Annexure-3; and to protect the right of the petitioners to undertake their business over private land and to declare the action of the CMC in restricting the petitioners to undertake their business over private land is illegal and contrary to law and encroaching upon their fundamental rights guaranteed under the Constitution of India. 2.In the first writ petition, (i.e. WPC No.32995 of 2011), petitioner No.1 is a proprietorship concern represented by its Proprietor who is petitioner No.2 and they have undertaken advertising business in the city within CMC area and over private plots/roof tops of the private buildings with the consent of the owners and entered into agreement with different land owners, erected hoardings on the railway land and lands abutting the National Highway after taking due permission either from the competent authority or from the respective land owners. As per the practice prevailing, they have paid necessary fee as demanded by CMC for installing hoardings. It is their case that in some places hoardings are continuing for more than to 5 to 7 years. As per the practice prevailing, they have paid necessary fee as demanded by CMC for installing hoardings. It is their case that in some places hoardings are continuing for more than to 5 to 7 years. It is also their case that the CMC has demanded the licence fee though they have not framed any regulation with regard to grant of leasehold right and collection of licence fee from the licencee, like the petitioners and further, it is the case of the petitioners that there is no outstanding against the petitioners till March, 2011 and they have produced document in support of the clearance demand made by the Corporation. 3.Fact situation of the other five writ petitions being almost similar, we take up the facts of WPC No.32397 of 2011 for consideration. The petitioner in W.P.(C) No.32397 of 2011 is a public company incorporated under the relevant provisions of Companies Act, 1956 (hereinafter called as the ‘Companies Act’). Its registered office is in Kolkata and Branch Office in Cuttack amongst other places. The case of the petitioner is that it is one of the oldest advertising companies in the country and has its presence in every nook and corner of the country. It has survived in the highly competitive trade of erection of hoardings because of its high ethical business values extended to its customers as well as to its target audience. It has filed the writ petition assailing the notice No.9682 dated 12.12.2011 issued by the CMC unilaterally directing it to remove the legitimate hoardings from private property which action is outside the jurisdiction of the CMC. The action of the CMC is arbitrary and in violation of the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. Therefore, the same warrants interference by this Court in exercise of its writ jurisdiction. It is the case of the petitioner that the Municipal Corporation has also published another tender call notice on 18.6.2011 and its terms and conditions clearly stipulate that the tender is for the purpose of displaying advertisements to public view in CMC land/Government land, except railway and National Highway land, for erection of any hoardings, frame, kiosks and glow sign within the area of operation of CMC. It is further stipulated in the said notice that the selected bidder can display the aforesaid medium of advertisement in private land/buildings/roof top etc. It is further stipulated in the said notice that the selected bidder can display the aforesaid medium of advertisement in private land/buildings/roof top etc. with due consent/agreement with the owners concerned within the quoted price. 4.Further on a scrutiny of the tender document, it is clear that there is no restriction of prohibiting the other operators who have already installed hoardings over the private lands/roof tops. Such installation/erection of hoardings would be subject to the provisions of the Orissa Municipal Corporation Act, 2003 (in short, ‘OMC Act’) apart from the terms of the tender document if any, which did not and cannot restrict the right of the petitioners to commence such business and in such event, the right guaranteed under Article 19(1)(g) of the Constitution of India is violated. Further it is stated that the tender call notice published by the CMC cannot restrict the constitutional and statutory right of public/private land owners and the advertisers who have undertaken the business of taking private lands/buildings on lease basis and such restriction if any, in the tender call notice will be ultra vires of the Constitution and the provisions of the OMC Act. 5.As could be seen from the Tender call notice, the right of collection of licence fee shall not be granted to the highest bidder as the same is admittedly a statutory function.. That apart, in the absence of any stipulation in respect of licence fee in the form of regulation, there cannot be any auction of granting the right of collection of licence fee, if any, to a private operator. In the case on hand, the successful bidder is restricted to use the land/building specified in Annexure-A to the tender call notice. 6.In the instant case, Opp.Party No.3-M/s. Dreamteam Advertising Pvt. Ltd. (hereinafter called as ‘the awarded’) has become the highest bidder and the CMC has entered into an agreement with it on 16.9.2011. On a careful reading of the said agreement, it is very much clear that the agency has been granted for advertisement in the area specified as per Annexure-A to the tender call notice which is also appended to the agreement. On a careful reading of the said agreement, it is very much clear that the agency has been granted for advertisement in the area specified as per Annexure-A to the tender call notice which is also appended to the agreement. There is no restriction and in fact there cannot be any restriction in respect of the petitioners and others who have installed hoardings over the private lands and cleared up the fees demanded by the CMC more particularly when they are agreeable to pay the requisite licence fee. That apart, the collection of licence fee would be an addition to the account of the CMC to the tune of Rupees one crore per year. It is further stated that it is not understood for what purpose and at whose instance and in whose interest the CMC restricted the petitioners and others and refused to accept the fee like the preceding years thereby causing loss to its exchequer. It is stated that the petitioners intend to deposit the fees before the CMC for the hoardings installed over the private land and/or roof tops like the preceding years. When the matter stood thus, the CMC played hide and seek and did not accept the application if any, nor did it demand and/or collect the fees. On the other hand, advertisements were brought by the private company in the name of the CMC demanding their right for installation of hoardings though such right has never been granted and cannot be granted in law in favour of the said agency. In the meanwhile, the CMC in the interest of the private agency issued notice Nos.9673, 9682, 9681, 9686 and 9681 dated 12.12.2011 (in WPC Nos.32995, 329967, 32996, 32991 and 33443 of 2011 respectively) and notice No.10186 dated 31.12.2011 (in WPC No.192 of 2012) requiring the petitioners to replace the hoardings within seven days otherwise, it shall be removed and vested to the CMC. The said action of the CMC is self-explanatory as to how it is acting at the instance of the private operators causing huge loss to its exchequer. 7.The aforesaid private agency, the awarded has been granted licence for erection of the hoardings/frames, kiosks and glow signs etc. The said action of the CMC is self-explanatory as to how it is acting at the instance of the private operators causing huge loss to its exchequer. 7.The aforesaid private agency, the awarded has been granted licence for erection of the hoardings/frames, kiosks and glow signs etc. in the area of the CMC as per the detailed specification given under Annexure-A to the agreement which includes amongst others, any private land/building roof top etc which was also made known to the public including the petitioners by way of notice, publication whereof was made in the dailies ‘The Samaja’ and ‘Sambad’ on 23.9.2011. In the said notice, it was further mentioned that by virtue of the agreement, any permission sought for by any other party for installing the hoardings over the private land cannot be granted das it is not permissible in law. The aforesaid contention of the CMC as well as the notice issued on 23.9.2011 not only runs contrary to the spirit of the OMC Act but also is contrary to the mandate of Article 19(1)(g) of the Constitution of India. It also imposes unreasonable restriction upon the undertaking business by the petitioners. It is further stated that neither the tender notice nor the agreement can take away the right of the petitioners to undertake the business of erecting the hoardings upon private building, as the same has been done subject to compliance of the provisions of the OMC Act. The aforesaid notice published by the CMC restricting the rights of the petitioners to undertake the business in erecting the hoardings upon the private land/building/roof top is therefore bad in law. The aforesaid notice published by the CMC restricting the rights of the petitioners to undertake the business in erecting the hoardings upon the private land/building/roof top is therefore bad in law. 8.The petitioners having no alternative remedy, have approached this Court for quashing of the tender call notice dated 18.6.2011 in (WPC No.32995 of 2011), notice Nos.9673, 9682, 9681, 9686 and 9680 dated 12.12.2011 (in WPC Nos.32995, 32997, 32996, 32991 and 33443 of 2011 respectively) and notice No.10186 dated 31.12.2011 (in WPC No.192 of 2012) issued for removal of hoardings erected by them and consequently, cancellation of the agreement entered into with M/s. Dreamteam Advertising Private Limited, issuance of a writ of certiorari quashing the notice issued in respect of the connected writ petitions refusing to accept the licence fee for continuing with erection of their hoardings on the private land/building/roof top and issuance of a writ of mandamus to the Corporation to accept the licence fee and permit them to continue with their hoardings which have already been erected by them in the CMC area. 9.The statement of counter has been filed by the CMC and the awardee of the contract of erection of hoardings in the entire area of the CMC including private land building/roof tops of the private owners stating that the petitions have filed these writ petitions in connivance with other advertising agencies with an oblique motive of somehow protracting the litigation and resisting the CMC from smoothly and uninterruptedly collecting its major part of the revenue towards cost of advertisement licence fee within its area of operation by virtue of the power conferred on it as per section 192 read with Sections 240, 241, 242, 243 and 244 etc. broadly prescribed under Chapter XIII of the Orissa Municipal Corporation Act, 2003 (in short ‘OMC Act’). The contention of the petitioners that they are displaying hoardings on the private land buildings/roof tops, railway lands which are situated in the Cuttack Municipal area and it is beyond the purview of the CMC to grant licence for such period for displaying advertisement hoardings over the aforesaid spaces has been negative by taking a plea that in its tender call notice while inviting application for displaying advertisement, hoardings, it has indicated that the successful bidder in the tender would also display advertisement by erecting hoardings on private land/buildings/roof tops etc. with due consent/agreement of the owners concerned within the quoted price and the same is patently illegal. This contention of the petitioners is untenable in law as the CMC could not have retrospectively given such right to the tenderer where the petitioners are displaying hoardings. It is further stated that the petitioners did not challenge the tender call notice knowing very well that there is absolutely no substance in such contention and the licence is always temporary and for a limited period. Therefore, the licence does not create any absolute right. The licence in this case has been given to the petitioners only till 31st March, 2011 and it has already been decided that for the specific period, such licence would be given for operation in the area of the CMC. Therefore, the tender process and the process of advertising the tender call notice was delayed to some extent and ultimately it has been given to M/s. Dreamteam Advertising Pvt. Limited for a period of three years w.e.f 16.9.2011 so that the unauthorized display of hoardings by the petitioners from 1.4.2011 to 15.9.2011 can be regularized in the interest of the CMC by granting licence for the said period in respect of the spaces in question realizing the requisite such fee. But under no circumstances, it is possible for the CMC to grant permission/licence to the petitioners or any other advertising agencies for the said purpose for a period of three years w.e.f 16.9.2011 in respect of the area provided under Annexure-A to the tender call notice. The aforesaid facts have been brought to the notice of the public, which obviously includes the petitioners, through newspaper publication in the Odia dailies ‘The Samaja’ and ‘Sambad’ dated 23.9.2011. In spite of that, M/s. Selvel Advertising Limited did not comply with the same. The CMC was therefore constrained to issue the impugned notices dated 12.12.2011 (in WPC Nos.32995, 32997, 32996, 32991 and 33443 and 2011) and notice no. 10186 dated 31.12.2011 in WPC No.192 of 2012) and the same are tenable in the eye of law and do not call for any interference by this Court. Further, it is stated that the writ petitions filed by the petitioners are misconceived and liable to be dismissed. 10186 dated 31.12.2011 in WPC No.192 of 2012) and the same are tenable in the eye of law and do not call for any interference by this Court. Further, it is stated that the writ petitions filed by the petitioners are misconceived and liable to be dismissed. 10.The tender call notice was published for awarding contract for erection of hoardings in the Cuttack Municipal area to ensure substantial collection of revenue towards licence fee by the CMC. The petitioners and many other advertising agencies could not be able to fulfil their desire of enjoying such business by advertising freely and by not properly paying fee to the CMC. They have started creating all types of hurdles for last so many years by way of obtaining stay order in the matter by such process of litigation. In this regard, while a tender call notice was published by the CMC on 17.9.2005, M/s. Selvel Advertising Limited with many other advertising agencies filed litigation before the civil Court and also a writ petition, i.e. W.P.(C) No.2511 of 2007 before this Court and stalled the process. The moment the tender was completed and the CMC by its resolution dated 31.1.2007 was about to grant licence to the successful bidder, this Court by order dated 6.11.2007 disposed of the aforesaid writ petition observing that since the period of one year from 1.11.2005 to 31.10.2006 had already expired, pursuant to the tender call notice dated 17.9.2005, the said matter had become infructuous. Further this Court directed by taking observation that since considerable public interest is involved in the matter, the CMC should hold further tender for the purpose. Notwithstanding the order of status quo passed by the Civil Court during such time in respect of hoardings displayed in the city, the CMC will collect licence fee and in case of any defaulting advertising agencies, on assessment and demand by the CMC within a period of two weeks, the same shall be paid by them failing which the CMC will be at liberty to take such action to remove the hoardings. 11.While in compliance with the order of this Court dated 6.11.2007 Court in the aforesaid writ petition a fresh advertisement dated 6.12.2007 was published in the news daily “The Samaja” with the terms and conditions of hoardings including the private buildings situated within the CMC area, the petitioner along with many other advertising agencies challenged the said tender call notice dated 6.12.2007 published in the daily “The Samaja” in W.P.(C) No.16653 of 2007 with the prayer to quash the tender call notice published by the CMC and the terms and conditions of the hoardings, etc of the CMC and further to declare that the tender call notice and its terms and conditions are ambiguous, defective, intrinsic having various legal infirmities and further to hold that the CMC being a statutory body/authority cannot float tender for displaying/advertisement on private buildings/premises/lands. 12.Considering the contentions urged on behalf of the parties in the aforesaid writ petition, this Court vide order dated 21.12.2007 held that the terms and conditions which had bene attacked were only preamble to the terms and conditions and the words in the said preamble are commonly used under Section 241 of the Orissa Municipal Corporation Act, 2003. Therefore, this Court could not hold that the terms and conditions of the tender call notice were de hors the Act. However, this Court by way of clarification stated that if the said petitioner participated in the tender along with other participants in accordance with terms and conditions and the successful bidder is selected, the CMC at the time of entering into agreement with that successful bidder will clarify the number of kiosks and hoardings for which an agreement will be entered into. Further, this Court clarified that in view of Section 241 of the Act, the CMC has also the power to collect licence fee in respect of all types of advertisement displayed on hoardings within its area of operation, be that over the Government/Municipal land and/or private land/buildings or the land and buildings belonging to any other authority and thereby the ground of challenge as well as the prayer made by the petitioners in this regard in the said writ petition was turned down by this Court. 13.It is stated that thereafter the tender process pursuant to tender call notice published in 'The Samaja' dated 6.12.2007 continued and while for some reason the licence was to be given in favour of the third highest bidder, namely Team Admark Pvt. Ltd., the second highest bidder M/s. Apollo Advertising and Communication challenged the said action of the CMC by filing W.P. (C) No. 5029 of 2008. Ultimately, in this Court bidding took place and the said petitioner M/s. Apollo Advertising and Communication became the highest bidder. Accordingly, this Court by order dated 18.9.2008 disposed of the said writ petition W.P. (C) No. 5029 of 2008 directing the CMC to take a decision on the bid sheet and execute the agreement. This Court by order dated 5.1.2009 directed that if the agreement is not signed by a particular, then the CMC will consider to execute an agreement with opp.party no. 3 to the said writ petition i.e. Team Admark Pvt. Ltd. 14.It is stated that during that period Bhubaneswar-Cuttack Police Commissionerate intervened in the matter contending that there was no previous sanction of the Police Commissionerate as per section 28 of Orissa Urban Police Act, 2003 and Bhubaneswar-Cuttack Police Commissionerate (Traffic and Public) Regulation, 2008. Regulation 46 of the said Regulation states that no person shall erect, exhibit, fix or retain any sign, device or representation for the purpose of advertisement, which is visible on the sky. In order to resolve the aforesaid controversy, this Court while allowing the intervention, by order dated 13.1.2009 again kept in abeyance the order dated 5.1.2009 vide Annexure-F/2 directing that in view of the conflicting provisions between the Orissa Municipal Corporation Act and the Orissa Urbab Police Act and the Regulation, the Commissioner of Police should file an affidavit with regard to the effect of Article 243-W and Schedule-12 of the Constitution. Further, this Court ultimately resolved the aforesaid disputes by order dated 15.5.2009 in Misc.Case No.1379 of 2009 arising out of said W.P.(C) No.5029 of 2008 clarifying that the Municipal Commissioner is free to levy licence free and there is absolutely no conflict between the provisions of the Orissa Municipal Corporation Act and the Commissionerate Police Regulation, which will operate in their respective fields. 15.In view of the orders dated 5.1.2009 and 13.1.2009, pending disposal of controversy between the Police Commissionerate Regulation and the Orissa Municipal Corporation Act, the CMC faced difficulties to collect licence fee on the advertisement made on displaying on hoardings and sought clarification from this Court. This Court by order dated 17.4.2009 clarified that nowhere it was allowed either the petitioner M/s. Appollo Advertising & Communication of the said writ petition or any other persons similarly situated can fix the hoardings without any licence fee. It was also further clarified that order restraining the Municipal Corporation from fixing hoardings without agreement from 8.1.2009 would mean that the CMC would be free to take a decision independently about fixing of hoardings. 16.In view of the aforesaid peculiar circumstances, settling of licence as well as execution of agreement was delayed for sometime beyond the control of the CMC. However, the said petitioner M/s. Appolo Advertising & Communication was offered licence by executing agreement but it ultimately backed out. In view of that, for a quite considerable time such matter could not be settled and the said chapter was closed. During such time, whoever like the said petitioner was making advertisement within the CMC area was demanded the liecence fee and whoever was not paying, was also given notice for payment of licence fee until the matter was settled through the tender process for the sake of convenience. Thereafter the present tender was held as per the tender call notice dated 18.6.2011. The petitioner (in W.P.(C) No.32995 of 2011) for the purpose of participating in the said tender applied for no due certificate after clearing the dues as on 31.3.2011 vide its letter dated 31.3.2011, vide and in response to the same, no due certificate dated 24.6.2011 was issued vide Annexure-3. However, for the reasons best known to the petitioner, it did not participate in the tender. As regards the present challenge to the impugned notice issued by the CMC on the ground that private buildings within the area of operation of the CMC, though incorporated very well in the tender call notice which is impugned by the petitioner in W.P.(C) No.32995 of 2011, the petitioner did not prefer to challenge the same at that point of time being aware of the fate of the same. Similar attempt was turned down by this Court vide order dated 21.12.2007 passed in W.P.(C) No.16653 of 2007. 17.The tender process was completed and ultimately the M/s. Dreamteam Advertising Pvt. Ltd. as the highest bidder has been given the licence by entering into an agreement dated 16.9.2011. At this belated juncture, the petitioner has taken shelter of this Court challenging the notice vide Annexure-7, which has bee issued after making news publication dated 23.9.2011. vide Annexure-B/2 series. Thus, from 16.9.2011 except M/s. Dreamteam Advertising Pvt. Ltd. nobody is now authorized to make such advertisement within the CMC area as per the specifications under Annexure-A, which includes all CMC area including the CMC land and Government land and any private land/building/roof top, etc. after obtaining due consent/agreement of the owner concerned. Nobody also can be given such licence over such area since M/s. Dream Team Advertising Pvt. Ltd. has already been given such licence for a period of three years from the date of agreement. 18.In view of the aforesaid factual position, the writ petition filed by the petitioner in W.P.(C) No.32397 of 2011 is without any basis and it cannot be entertained. Further, it is reiterated that the petitioner is bound to remove the unauthorized hoardings made over the private properties, since it is within the regulating power of the local self-Government, the CMC as per provisions of Sections 192, 240 and 241 of the Orissa Municipal Corporation Act and the CMC is also empowered to remove the unauthorized hoardings and to realize the cost so also the fees for such period. It is stated that CMC has rightly demanded the licence fee for such period, but the petitioner has never diligently cleared dues till such time. Eve if such agreement has been executed with the owners of private land/buildings for the purpose of advertisement, the same are nothing but their consent for the same, but that does not affect the right of the CMC in regulating and controlling such advertisement by giving licence for the purpose and collecting the licence fee in the interest of revenue, which has been given to M/s. Dream Team Advertising Pvt. Ltd. through tender process. 19.Further, it is stated that if all advertisement is made for the viewers or the residents of CMC and for whom the CMC is to discharge various responsibilities for their public convenience, unless such licence fee is collected, the CMC cannot get substantial amount of revenue like, private buildings are situated within the CMC area and they are paying the holding tax still the advertisement made over the private buildings is also leviable to licence fee. Therefore, the averments made at paragraphs-5 to 7 of the writ petition are wholly untenable in law. 20.Further, it is stated that for the last five years the CMC has collected licence fee and in spite of its best effort licence fee on the advertisement placed on hoardings like the petitioner and many others, only to tthe tune of Rs.2,18,60,535/- with the year-wise collection, which is clearly mentioned in Annexure-L/2 to the counter affidavit. 21.Further, it is stated that through the present tender process the CMC on giving licence is getting Rs.1,71,00,000/- only for one year and for the subsequent year until completion of three years, any further succeeding year will get 10% more to that amount. As such, for the entire three years, the total amount of Rs.5,66,01,000/- only will be collected towards the major chunk of revenue of the CMC. If the dispute with regard to the advertisement hoardings is again prolonged, the collection of such huge amount by the CMC may ultimately be affected by interruption in detriment to the public interest. Therefore, the learned counsel has prayed for dismissal of the writ petition. 22.The same stand has been taken by the CMC in the other writ petitions. However, opp.party No.3-M/s. Dream Team Advertising Pvt. Ltd. has not filed any counter statement. But the learned Senior Counsel on its behalf appeared and made legal submission on various aspects justifying the action of the CMC in awarding contract in its favour. 23.Learned Sr. Counsel Mr. Jayant Das appearing on behalf of Ajanta Advertisers and another (petitioners in W.P.(C) No.32995 of 2011) contended that the tender notice in question and the agreement entered with M/s. Dreamteam Advertising Pvt. Ltd.-opp.party No.3 by the CMC are contrary to Sections 240, 241 and 242 of the CMC Act to install and erect the hoardings within the CMC area on payment of taxes/fees of the advertisement at such rate as may be fixed in the Regulation. Section 657 (bb) of OMC Act permits the CMC to frame regulation/Bye-law for prohibition and regulation of advertisement in public road and parks. The aforesaid provision is read harmoniously with Section 242 of the Act, the CMC is not authorized to frame any regulation so far as hoardings to be installed over the private plots and buildings. But, however, the CMC imposed the fees and the petitioner, having no alternative and to avoid confrontation with the CMC and in order to buy peace and to protect its business, went on paying the fees demanded by the CMC. 24.It is further contended that the CMC is authorized to impose any fee for installation and erection of hoardings over private lands and buildings. Further, not admitting but conceding for the sake of argument it is stated that though such a regulations are permitted, the CMC has not framed any such regulation and in absence of any such regulation, imposition of licence fee in the form of tax structure for installation of hoardings/installed hoardings over the private plots/building is not permissible under law. The CMC decided to allow the right of installation of hoardings over its area and government lands on collection of lump sum quoted bid amount. Accordingly, tender was floated by the CMC. The aforesaid tender call notice and its terms and conditions clearly specified that the tender is for the purpose of displaying advertisement to public view in CMC land/Govt. land except railway and N.H. lands as specified in Annexure-A to the Tender document within the area of operation of Cuttack Municipal Corporation. It is also stipulated in the said document that the selected bidder can display the aforesaid medium of advertisement in private land/building/roof top etc. with due consent/agreement with the owners concerned within the quoted price. Clause 1 of tender document if read with Schedule-A of the Tender document would reveal that the aforesaid tender is for the purpose of advertisement in respect of the specified area more fully mentioned in Annexure-A to the Tender Call Notice. 25.It is further stated that on scrutiny, the aforesaid tender document reveals that there is no stipulation of restriction/prohibiting the other operators who have already installed hoardings over the private land and roof tops. Of course, such installation would be subject to the provisions of the Orissa Municipal Corporation Act. 25.It is further stated that on scrutiny, the aforesaid tender document reveals that there is no stipulation of restriction/prohibiting the other operators who have already installed hoardings over the private land and roof tops. Of course, such installation would be subject to the provisions of the Orissa Municipal Corporation Act. That apart, the terms of tender document, if any, and the conditions therein cannot restrict the right of the petitioner to commence such business and in such event the right guaranteed under Art.19(1)(g) of the Constitution of India is violated. Even otherwise a tender call notice cannot restrict the constitutional and statutory right of public/private land owners and the advertisers who have undertaken the business of hiring the private land/building. Such restriction, if any, is ultra vires the Constitution and the Orissa Municipal Corporation Act. 26.It is further revealed from the tender call notice, collection of licence fee was not granted to the highest bidder nor can the same be granted as it is admittedly a statutory function. That apart, in the absence of any stipulation of licence fee in the form of the regulation, there cannot be auction for erection of hoardings by granting of licence/permission for collecting fee, if any, by a private operator. It is stated that the present tender call notice is restricted to use of land/buildings specified in Annexure-A by the highest bidder. It is further stated that one operator i.e. M/s. Dreamteam Advertising Private Limited has become the highest bidder and the CMC entered into the agreement with the company on 16th September, 2011. The petitioner with much difficulty collected a copy of the aforesaid agreement. The recital of such agreement, is very much clear that the agency has been granted for advertisement in the area specified in Annexure-A appended to the agreement. There is no restriction and there cannot be any restriction in respect of the petitioner and others who have already installed hoardings over the private land and cleared up the demanded fees by the CMC more particularly when they are agreeable to pay the said licence fee. That apart, the collection of fee would be an asset to the account of the CMC which would be to the tune of one crore per year. That apart, the collection of fee would be an asset to the account of the CMC which would be to the tune of one crore per year. It is not understood for what purpose and at whose instance/interest the CMC acts restricting the petitioners and others refusing to accept the fee like the preceding years from them, thereby causing huge loss to its exchequer. 27.It is also stated that the petitioners intend to deposit the fee before the CMC for the hoardings installed over the private land and/or roof tops like preceding years. While the matter stood thus, the CMC played hide and seek and the applications if any are not accepted and the fees are not demanded and/or collected. On the other hand, advertisements were brought by the private company in the name of the CMC demanding their right for installation of hoardings though such right has never been granted and cannot be granted in law in favour of the said agency, and notice has been issued bearing No.9681 dated 12.12.2011 requiring to replace the hoardings within seven days otherwise they shall be removed and vested to CMC. The said action of the CMC is self-explanatory as to how the CMC is acting contrary to the provisions of law at the instance of the private operator causing huge loss to the exchequer of the CMC. 28.It is stated that in the notice under Annexure-5 it is mentioned that the private agency has been granted licence for displaying hoardings/kiosks etc. in CMC area as per detailed specification in Annexure-A to the Tender Call Notice which includes amongst others “any private land/building/roof top etc.” and has also been made known to the public, which obviously includes the petitioner, in the news publication made on 23.9.2011. In the said notice, it has been further notified that by virtue of the agreement any permission sought for by any other party for installing hoardings over any private land cannot be granted nor is it permissible. The aforesaid contention of the CMC and the notice issued on 23.9.2011 not only runs contrary to the spirit of the Act but also runs contrary to the mandate of Article 19(1)(g) of the Constitution. Apart from that, neither the tender notice nor the agreement takes away the right of the petitioner to undertake such business. The aforesaid contention of the CMC and the notice issued on 23.9.2011 not only runs contrary to the spirit of the Act but also runs contrary to the mandate of Article 19(1)(g) of the Constitution. Apart from that, neither the tender notice nor the agreement takes away the right of the petitioner to undertake such business. Any such action of the Municipal Corporation is arbitrary, unreasonable, discriminatory and contrary to law and mandates of the Constitution, more particularly the right guaranteed under Articles 14 and 19 of the Constitution to the petitioner. Therefore, Annexure-5 is liable to be quashed. Further, direction should be given to allow the petitioner to install the hoardings over private land/roof tops in respect of which the petitioner has entered into an agreement with the private owners. 29.M/s Goutam Mukherji, learned counsel appearing on behalf of the M/s. Selvel Advertising Pvt. Ltd., the petitioner in WPC No.32397 of 2011 adopting the submission made by the learned Senior Counsel Mr. Jayant Das in W.P.(C) No.32995 of 2011 filed by Ajanta Advertising Ltd., submits that the tender call notice published and the contract awarded in favour of M/s. Dreamteam Advertising Pvt. Ltd. do not cover the private property for which Advertisers have subsisting agreement. It was open tot he successful tenderer i.e. the agreement holder to display advertisements on hoardings erected on private land/buildings rooftops by taking consent/agreement of the land owners on the site which would fall under the impugned tender notice. The properties upon which M/s. Selvel Advertising Pvt. Ltd. has erected the hoardings after obtaining the consent of the respective owners of the private land/buildings/roof tops are not covered under the tender call notice. Therefore, in respect of the said property award of contract in favour of M/s. Dreamteam Advertising Pvt. Ltd. is not permissible in law and issuance of the notice under Annexure-7 by the CMC after the tender process was completed and agreement was executed in favour of the M/s. Dreamteam Advertising Pvt. Ltd. is bad in law as the petitioners’ hoardings are already erected on such private land/buildings and roof tops. Therefore, the impugned notice served upon the petitioners-Company is unsustainable in law. Hence, the same is liable to be quashed. Therefore, the impugned notice served upon the petitioners-Company is unsustainable in law. Hence, the same is liable to be quashed. Further it is contended that the action of the CMC has been resisted by its Chairman of the Standing Licence Committee which was reported in the print media, a copy whereof is annexed as Annexure-12 to the rejoinder affidavit filed by the petitioner to the counter affidavit of the opposite parties. 30.Admittedly, the CMC does not have any regulations framed for the purpose of erection of hoardings in the CMC land/Government land/private land/building/roof top of private owners. Therefore, issuance of the tender and award of contract in favour of M/s. Dreamteam Advertising Pvt. Ltd. is bad in law and further the same is contrary to the order of this Court produced at Annexure-D/2 in the counter affidavit of the CMC wherein this Court has observed that the CMC at the time of entering into the agreement with the successful bidder will clarify the number of kiosks and hoardings for which the agreement will be entered into. As could seen from the agreement under Annexure-A to the counter statement of the CMC, the number of kiosks/hoardings is not specified. Therefore, at the instance of the agreement holder, the CMC has no right to issue the impugned notice under Annexure-7. Hence the same is liable to be quashed. Further, it is contended that the CMC can regulate erection of hoardings/advertisements over the private properties also. The question of payment of licence fee does not arise as the CMC has no proprietary interest which is being granted in favour of the advertiser for transfer of which right a fee would be payable. At best, advertisement tax would be leviable for which M/s. Dreamteam Advertising Pvt. Ltd have never disputed and have regularly paid the fees to the CMC without demand as borne out from Annexure-13, produced by the petitioner. At best, advertisement tax would be leviable for which M/s. Dreamteam Advertising Pvt. Ltd have never disputed and have regularly paid the fees to the CMC without demand as borne out from Annexure-13, produced by the petitioner. The action of the CMC is to unjustly enrich the successful tenderer-agreement holder causing wrongful loss to the CMC for the reason that the said agreement holder is given the sole right of advertisement over the entire CMC area and the private properties and it would collect the tax payable from the existing advertiser without obtaining permission from the CMC by entering into an agreement which incorporated in it the recital to the effect that the agreement holder can also display the medium of advertisement in the private land/building/roof top etc. within the CMC area with due consent/agreement with the owners within the quoted price which is bad in law. Further, he has placed reliance upon a deed of agreement by which entered into by the Bhubaneswar Municipal Corporation, constituted under OMC Act, 2003 with the successful tenderer as per Annexure-11 to the rejoinder under the said agreement, private properties are not covered and the said CMC has collected tax separately. Another contention urged is that the sites over which M/s. Selvel Advertising Pvt. Ltd. has its hoardings have previously been consented by the CMC and the same do not fall within the prohibited limitations and the action of the CMC to deny permission or give consent tot he same refusing to collect tax leviable on such hoardings is bad in law. Absolutely, no ground is made by the CMC to refuse such permission in favour of the petitioners and its action is in violation of the fundamental rights guaranteed to the petitioners under Articles 14 and 19(1)(g) of the Constitution of India. Therefore, the impugned notice dated 12.12.2011 under Annexure-7 (in WPC No.32397 of 2011) served upon the petitioner at the instance of the agreement holder pursuant to the award of contract in its favour is bad in law and the same is liable to be quashed. 31.Mr. Therefore, the impugned notice dated 12.12.2011 under Annexure-7 (in WPC No.32397 of 2011) served upon the petitioner at the instance of the agreement holder pursuant to the award of contract in its favour is bad in law and the same is liable to be quashed. 31.Mr. Mohanty, learned counsel appearing on behalf of the CMC sought to justify the tender call notice inviting applications for award of contract for erection of hoardings/kiosks both in the CMC area/Government land/private land and private properties which are situated within the CMC area and further since the highest bidder did not come forward, the next highest offer made by M/s. Dreamteam Advertising Pvt. Ltd. was accepted by the CMC and executed the agreement in its favour for a period of three years. M/s. Dreamteam Advertising Pvt. Ltd has offered the amount of Rs.1,71,00,000/- (Rupees one crore seventy one lakhs) as bid price for twelve months. There will be increase of 10% after completion of every one year and further it is contended that the said decision is taken by the Standing Licence Committee and the same is in accordance with the provisions of the OMC Act and the principle laid down by the Apex Court with regard to the grant of permission of licence in favour of an advertiser to erect the hoardings/kiosk in the Municipal area of its land/Government land/private properties and it is not open for the petitioners to turn down the same and contend that in absence of regulation, the CMC cannot award the contract in favour of a successful bidder as they have been enjoying the benefit after obtaining permission from the CMC and erecting their hoardings both upon the land of the CMC and private properties and paying licence fee and further they cannot turn down and contend that the CMC has no authority under law to invite tenders and award contract for a period of three years erecting hoardings upon the properties of CMC, Government Land and private properties. The same is in conformity with the provisions of the CMC Act read with decision of the Apex Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and others, reported in AIR 1979 SC 1628 . The same is in conformity with the provisions of the CMC Act read with decision of the Apex Court in the case of Ramana Dayaram Shetty v. The International Airport Authority of India and others, reported in AIR 1979 SC 1628 . Strong reliance has also been placed upon a decision of this Court in the case of M/s. Swadeshi Ad v. Rourkela Municipality and another (WPC No.8686 of 2011 decided on 23.12.2011). In the said case after referring to various decisions of the Supreme Court, particularly, in the case of Ramana Dayaram Shetty v. The International Airport Authority of India referred to supra, the Court directed that if the Rourkela Municipality intends to grant licensing right for hoardings/kiosks in the Rourkela Municipal area, they are directed to do the same by public auction or by inviting tender after publishing the same in widely circulated newspapers and any other modes. That has been done in the instant case. Therefore, the award of contract in favour of M/s. Dreamteam Advertising Pvt. Ltd. for display of advertisement or erection of hoardings/kiosk upon the properties situated within the CMC area cannot be found fault with and the petitioners, having enjoyed the benefit of erection of hoardings by obtaining permission for a particular period, after expiry of the period cannot contend that in view of the pendency of the matter before this Court the CMC cannot take steps for inviting tender by publishing tender call notice widely in the newspapers to participate in the tender process to get the licensing right and award the contract in favour of the successful bidder. The amount which is being collected presently from M/s. Dreamteam Advertising Pvt. Ltd. in respect of various properties of the CMC area who is the third highest bidder and has been granted licensing right is much higher than what is being paid by all the advertising agencies. Therefore, the petitioners are not entitled to any relief as it would affect the public interest of the Corporation. By resorting to public auction the award of licensing right in favour of the third highest successful bidder by way of entering into agreement cannot be said that it is either arbitrary or unreasonable. Therefore, he has prayed for dismissal of the writ petition. The successful bidder M/s. Dreamteam Advertising Pvt. Ltd has been impleaded in the midst of the argument advanced by the petitioners. Therefore, he has prayed for dismissal of the writ petition. The successful bidder M/s. Dreamteam Advertising Pvt. Ltd has been impleaded in the midst of the argument advanced by the petitioners. It has been impleaded as opposite party No.3 and it is represented by learned Senior Counsel, Mr. R.K. Rath and he did not file any statement of counter. He has contended that the petitioners have no locus standi to challenge the tender notice or entitled to the reliefs as prayed for by them as they have not participated in the Tender Process. In some of the writ petitions, the impugned notice has been issued by the CMC for removing the hoardings erected upon the properties of the private owners as permission in respect of the entire area of the CMC, has been granted in favour of the agreement holder for the reason that they have not participated in the public auction held by the CMC for grant of licensing right/permission in favour of the successful bidder in respect of public property and also private properties for erection of hoardings/kiosks. The advertisements will have a public view for which the statutory provisions under Sections 242 and 244 enable the CMC for levy of licence fee upon the advertisers. Therefore, it cannot be contended that the action of the CMC in inviting tenderers to participate in public auction cannot be found fault with. That apart, the tender notice and the further process are not questioned by M/s. Selvel Advertising Pvt. Ltd. Further, the tender process is completed, contract is being executed and the awardee has started working. Therefore, the petitioners have no locus standi to challenge the same at this stage. 32.In support of his contention, he has placed reliance upon the following decisions of the Supreme Court : (1) AIR 2011 SC 88 , M/s. Garib Nawaz Corporation v. State of Maharashtra and others; (2) (2006) 13 SCC 382, Nagar Nigam, Meerut v. Al Faheem Meat Exports (P) Ltd. and others, (paragraphs 12 to 16); (3) (2007) 8 SCC 75 , Aggarwal & Modi Enterprises (P) Ltd. and another v. New Delhi Municipal Council; and (4) AIR 2005 Bombay 123, Khan Construwell Co. and etc. etc. v. Youth Education and Welfare Society, Nashik and others etc., (paragraphs 14, 73 and 74). and etc. etc. v. Youth Education and Welfare Society, Nashik and others etc., (paragraphs 14, 73 and 74). 33.It is further contended in favour of agreement holder that on 16.9.2011 agreement has been executed by the CMC in favour of the third highest successful bidder. Some of the Advertising Agencies have joined with the first petitioner with an ulteriror motive to stall the process of awarding contract in favour of the successful Tenderer for erection of hoardings in the CMC area. Therefore, at this stage, this Court should not interfere with the same and grant reliefs to the petitioners. Further, it is contended that the petitioner M/s. Selvel Advertising Pvt. Ltd. is the biggest advertiser which has filed W.P.(C) No.32397 of 2011 and out of the other petitioners who have filed WPC No.32995 of 2011, WPC No.32996 of 2011 and WPC No.192 of 2012, M/s. Appollo Advertising and communication, the petitioner in WPC No.192 of 2012 black listed. Therefore, he has prayed for dismissal of the writ petition. 34.With reference to the aforesaid factual and rival legal contentions, the following points would arise for consideration of this Court :- (a)Whether the Licence and Appeal Standing Committee of the CMC can publish Tender call notice inviting applications from the registered Advertising Agency/Firms for displaying advertisement and for erection of hoardings/kiosks in the specified area as mentioned in the schedule at Annexure-4 to the tender call notice ? (b)Whether the invitation of tenders from the registered advertising agencies/firms/consortium in respect of the entire CMC land/Government land/private land/rooftops after obtaining consent does not amount to monopoly i.e. conferring power upon one advertising agency ? (c)Whether creation of such monopoly right upon one successful bidder of advertising agency in respect of the entire CMC area, Government land and Private Owners property is arbitrary and unreasonable which deprives the small advertisers to seek permission for erection of hoardings/Kiosks in the area as mentioned in the schedule at Annexure-A to the tender call notice ? (d)Whether, in the absence of regulations required to be framed by the CMC under the provisions of CMC Act fixing the advertisement fee, invitation of tenders and award of contract in favour of the awardee is permissible in law ? (d)Whether, in the absence of regulations required to be framed by the CMC under the provisions of CMC Act fixing the advertisement fee, invitation of tenders and award of contract in favour of the awardee is permissible in law ? (e)Whether the petitioners are entitled to grant of permission or licence for continuing the advertisement erected either in the CMC property/Government land or on the private properties by seeking renewal of licence granted earlier. If the petitioners are not entitled for licence to continue with their hoardings in the CMC area/Government land/private building/rooftops, to what relief they are entitled ? (f)What order ? 35.The points (a), (b), (c) and (d) are interrelated and hence they are answered together by assigning the following reasons. 36.The grant of permission or licence in favour of a person or persons for erection of hoardings/kiosks in the property of the CMC/Government land and private properties is governed by the statutory provisions of OMC Act, 2003. Sections 240, 241, 242, 243 and 244 of the OMC Act deal with the same. The tax to be levied on such advertisement is to be fixed by the Regulation read with Sections 657 and 659 of the OMC Act. The regulations are not framed by the CMC and approved by the State Government as provided under the provisions of the OMC Act. In the absence of any regulations framed and approved fixing the advertisement tax to be levied on the hoardings erected or exhibited or displayed to public view, the Regulations framed by the Bhubaneswar Municipal Corporation Regulation, 2006 have to be applied to the CMC for grant of permission or licence for erection of hoardings as the same have been framed by BMC in exercise of the statutory provisions as required under Sections 242 of OMC Act. 37.For better appreciation, Regulations 3 to 13 of the Bhubaneswar Municipal Corporation Regulation, 2006 are extracted below :- “3. Prohibition of erection, exhibition, fixation, retention or display of advertisement without written permission of the Commissioner. No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosks, structure, vehicle, neon-sign or sky-sign, any advertisement or display any advertisement to public view in any manner whatsoever in any place within the jurisdiction of the Corporation without the prior written permission of the Commissioner. 4. No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosks, structure, vehicle, neon-sign or sky-sign, any advertisement or display any advertisement to public view in any manner whatsoever in any place within the jurisdiction of the Corporation without the prior written permission of the Commissioner. 4. Prohibition or erection, exhibition, fixation, retention or display of advertisements on historic public building. No person shall erect, exhibit, fix, retain or display or cause to be erected, exhibited, fixed, retained or displayed any advertisement so as to cause damage to the amenities or obstruct the view of any historic public building or buildings of national importance, monument or public garden, etc. 5. Prohibition or erection, exhibition, fixation, retention or display of advertisements. (a)On roads - No person shall erect, exhibit, fix, retain or display or cause to be erected, exhibited, fixed, retained or displayed any advertisement on any land, building which may be opened to the view of traffic causing distraction to motorists thereby endangering public safety. (b)On temples, mosques, gurudwaras, churches and other such religious places and lands and buildings within one hundred meters of such religious places. (c)Within one hundred meters of Schools and Colleges and other Educational Institutions. (d)On cremation grounds or lands and buildings within one hundred meters of cremation grounds. (e)Near any fly-over, railway over bridge, water tank, communication tower, transmission tower or land and buildings within one hundred meters of such fly-over or railway over bridges. (f)On any other street, road, crossing, junction, place, area, locality or part thereof as may be decided by the Commissioner from time to time, in public interest for reasons to be recorded in writing. 6.Manner of display of advertisement on vehicles. No vehicle used for the purpose of advertisement shall display any advertisement in a manner different from that as approved by the Commissioner. 7.Prohibition on advertisement by broadcast No person shall broadcast any advertisement except on Radio or Television without the written permission of the Commissioner. 8.Defacement of the sign or mark or letter of advertisement prohibited. No person shall deface or cause to be defaced any sign or mark or letter or words that, shall have been put by the Commissioner on the advertisements erected, exhibited, fixed, retained or displayed in token of their having been permitted or approved by him and of the tax having been collected thereon. No person shall deface or cause to be defaced any sign or mark or letter or words that, shall have been put by the Commissioner on the advertisements erected, exhibited, fixed, retained or displayed in token of their having been permitted or approved by him and of the tax having been collected thereon. 9.Advertisement on hoards. (1) The advertisement on hoarding - (a)shall not be of more than 20' height from the ground level. (b)shall not project, or be on or over the public passage beyond the general store or buildings in the street for which a regular location has been prescribed. (c)Shall not exceed the size approved by the Commissioner. (d)Shall not be put up or executed on the right of any road, provided that, advertisement hoardings may be put up or erected adjacent to or near the footpaths of the roads, if such hoardings run parallel to the road and are otherwise permitted by the Commissioner. (2) The base of the hoardings shall be at a height of 5’ from the ground level and shall be at proper alignment, in conformity with other hoarding. 10.Procedure for grant of permission for erection, exhibition, fixation, retention or display of advertisements. (a)Every person desiring to erect, exhibit, fix, retain or display an advertisement shall apply to the Commissioner for permission in the Form available in Corporation Office or Unit Cells at each Ward of the Corporation against payment of fees of Rs.100. The said application form duly filled in all respects shall be submitted by the applicant in the Unit Cell or BMC Office, against a proper receipt. The Commissioner may, after making such inspection as may be necessary and satisfied of the land status and within thirty days after the receipt of the application, grant/refuse/renew or cancel the permission, as the case may be, in accordance with the provisions of Act and the Regulations made thereunder. (b)The Commissioner may disapprove an advertisement among others, on the ground that, its contents or the manner of its display is unsuitable from the considerations of public safety, traffic hazards or aesthetic design, or otherwise offensive and in bad taste and offensive to public sentiments. (c)Every licence shall be for a period of one year except in the case of sites used for temporary congregations including, fairs, festivals, circus, yatra, exhibitions, sports events or cultural or social programmes. (c)Every licence shall be for a period of one year except in the case of sites used for temporary congregations including, fairs, festivals, circus, yatra, exhibitions, sports events or cultural or social programmes. (d)If any tax on advertisements is not paid within the stipulated time after the demand notice, the same shall be recovered as arrears of tax and the permission granted shall be deemed to have been terminated. The Commissioner shall be at liberty to remove such hoardings. (e)If any advertisement is erected, exhibited, fixed or retained on any land and building unauthorizedly and in contravention to the provisions of the Act, and the Regulations made thereunder, such advertisement or hoarding shall be removed by the Commissioner, without any notice whatsoever and expenses for the removal of such unauthorized advertisement or hoarding shall be recovered from the advertiser or exhibitor concerned at the rate of Rs.5000 per advertisement or hoarding for size upto 100 sq.ft. and Rs.7000 for sizes larger than 100 sq.ft. as pre the provisions of law. (f)The Commissioner shall cause to maintain a register showing the licences issued under the act and Regulations. 11.Tax to be paid in advance. (i)The tax on each advertisement shall be payable in advance for the financial year concerned as per the charges specified in the schedule to these regulations. (ii)All dues shall be payable in cash or by pay order or demand draft. 12.Licenced or registered advertisement- (a)No person except licenced or registered advertisers or agencies shall be allowed to undertake display of advertisements on behalf of other persons or agencies, but shall enroll themselves as licenced or registered advertisers with the Corporation by furnishing the required information, documents, security as may be determined by Commissioner and shall pay the licence fee or registration fee and security deposit as may be determined by the Commissioner from time to time. (b)Persons intending to entrust the work of displaying advertisement on their behalf shall not entrust it to any unlicenced or unregistered advertiser. (c)A licenced or registered advertiser shall before displaying or causing the display of advertisements, satisfy himself that, the tax due thereon has been paid to the Corporation and the Commissioner’s approval obtained thereof. (d)A licenced or registered advertiser shall maintain proper record of advertisements displayed by him and produce the same whenever required for inspection by the Commissioner or any other officer authorized by him. 13.Penalty. (d)A licenced or registered advertiser shall maintain proper record of advertisements displayed by him and produce the same whenever required for inspection by the Commissioner or any other officer authorized by him. 13.Penalty. (a)Whoever contravenes any of the provisions of the these regulations and terms and conditions on the subject or fails to comply with the order of direction lawfully given shall be punishable with a fine of Rs.100 per day till which such contravention continues. The contravention of these regulations shall be dealt with and punishable as per the provisions of the act provided under Section 246. (b)Any other action including blacklisting of the defaulting agency or advertiser may also be taken as the Corporation may decide on the recommendation of the Commissioner. 38.Rule 10(a) of the Regulation provides for seeking permission by a person for erection, exhibition, fixation, retention or display of advertisements. Schedule to the Regulations prescribes the charges for advertisement at different rates in respect of non-illuminated advertisement on hoarding/post/kiosks/frame/structures. In respect of Collapsible Kiosks, Rs.500/- per month or part thereof irrespective of size etc. for each kiosk will be charged. 39.On a reading of the aforesaid Regulations which are applicable to the CMC in the absence of the Regulations required to be framed by the CMC as provided under Section 242 of OMC Act fixing the advertisement tax, procedure to be followed for grant of licence/permission by the Commissioner, it is clear that the aforesaid Regulations of Bhubaneswar Municipal Corporation are applicable to the CMC. In view the said Regulations, the advertisement issued by the CMC in respect of its property/Government land and the private owners’ property within the CMC area for awarding contract in favour of the successful bidder is totally impermissible in law. As could be seen from the tender call notice dated 18.6.2012 inviting bids as per the details contained in the Website of CMC, the last date is fixed for submitting tender applications was on 4.7.2011 and the same was scheduled to be opened on the same day at 4 P.M. and the period of licence that would be issued in favour of a successful bidder is for three years from August, 2011 to July, 2014. The licence fee for the succeeding years will be fixed at 10% more than the licence fee of the previous year with the conditions that the EMD i.e. Rs.2,00,000/- is to be deposited by way of bank drafts/bankers cheque drawn on any Nationalised/Scheduled Bank in favour of the Commissioner, Cuttack and paper cost of Rs.10,400/- including VAT i.e. 4%, which is non-refundable is to be deposited in the form of cash or demand draft issued in any Nationalised/Scheduled bank payable at Cuttack in favour of Municipal Commissioner, Cuttack Municipal Corporation. The upset price for this tender is fixed at Rs.1,00,00,000/- (Rupees one crore) only for twelve months and the EMD for the tender is fixed at Rs.2,00,000/- (Rupees two lakhs) and the other condition is to furnish a bank guarantee of 50% of the bid price from any Nationalised/Scheduled Bank. The intending firms shall also produce attested photo copies of the Registration Certificates of valid Income Tax Clearance Certificate/PAN Card/Service Tax Registration in support of the Registered Firms/Agencies along with the tender failing which the tender shall be liable for rejection. It is also mentioned that M/s. Team Admark and M/s. Appolo Advertisements are prohibited to participate in the said tender call notice as mentioned in Condition No.16 of the Terms and Conditions of the Tender Call Notice which is extracted below :- Terms and Conditions : “1 to 5. xxxxxxxxxxxx 16. M/s. Team Admark & M/s. Appolo Advertisers will not be entitled to participate in the tender as decided. Apart from the same all other agencies/firms/consortium can apply for the tender.” 40.The said tender notice is in respect of the area mentioned in Annexure-A for advertisement is contrary to the Regulation referred to supra for the reason that the Regulation does not provide for the same. By a careful reading of the areas mentioned in Annexure-A to the Tender Call Notice, it is clear that the said areas come within the prohibited places as per Regulations 3, 4, 5, 6 and 7 and the tender call notice inviting tender with certain terms and conditions referred to supra is contrary to the Regulation 10 wherein certain procedure has been provided for grant of permission in favour of an applicant for erection, exhibition, fixation, retention or display of advertisements in the CMC area for public view. The provisions contained in Clauses (a) to (f) of Regulation-10 clearly indicate that every person desires to erect, exhibit, fix, retain or display an advertisement can apply to the Commissioner for permission in the form available in the Corporation. Under Regulation 10 (a), the Commission is empowered to grant/refuse/renew or cancel such permission. Permitting the licencee for erection of hoarding in the CMC area or Government land or private owners property, the Corporation cannot deviate the procedure and invite tenders fixing the upset price of one crore and fixing two lakhs as EMD and paper cost of Rs.10,400/- non-refundable amount for a period of three years and 10% hike in every succeeding year, the highest bidder agreed to pay for erection of the hoardings. The aforesaid Regulations are read carefully along with the application form and the charges for advertisement mentioned in the Schedule to the Regulation would clearly indicate that the grant of licence or permission by inviting tender from persons who are eligible is totally prohibited under the Regulations. Therefore, inviting tenders in respect of the entire area is totally impermissible under the provisions of the Act and the Regulations of BMC which are applicable to the CMC as it does not have its regulation and the same would amount to creating monopoly upon the licencee in whose favour permission is granted in respect of the entire area as mentioned in Schedule-A to the tender call notice. Further, the terms and conditions stipulated in the tender call notice prescribe the persons who are eligible under the Regulations referred to supra. Thus, the CMC has taken away the statutory right by inviting tenders for grant of permission and licence in favour of one Advertising Agency which is not only void ab initio in law but also contrary to the decision of the Supreme Court and the advertisement of the CMC by way of Tender Call Notice to award contract of hoardings in the area specified in the schedule-A is arbitrary and unreasonable as the same is in violation of Articles 14 and 19(1)(g) of the petitioners and the other persons who are entitled to apply for grant of licence and permission by the Commissioner for erection of hoardings in the CMC area. Further, the power for grant of licence/permission for erection, exhibition, fixation, retention and display advertisement in the property of CMC/Government land/private owners’ property is with the Commissioner, but the counter filed by the CMC clearly discloses the fact that the power of the Commissioner has been exercised by the Licence and Standing Committee. Issuance of tender call notice inviting tenders in respect of the entire area of the CMC, award of contract in favour of M/s. Dreamteam Advertising Pvt. Ltd. by executing agreement, fixation of upset price and acceptance of the financial bid of the third highest bidder is contrary tot he description of different charges in respect of different items of advertisements and the sizes of the advertisements is contrary to the provisions of the Act and the Regulations. At this stage, it is not necessary to refer to the decision of the Supreme Court in the case of Babu Verghese v. Bar Council of Kerala, (1999) 3 SCC 422 , the Apex Court after referring to the Privy Council judgment and its earlier decision has laid down the legal principles in support of the proposition of law that when Statute prescribes a particular procedure required to be followed, that must be done in that manner. It is worthwhile to extract here paragraphs 31 and 32 of the decision of the Supreme Court in the case of Babu Verghese referred to supra, which read as under :- “31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor which was followed by Lord Roche in Nazir Ahmad v. King Emperor who stated as under : “Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.” 32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmad case was again upheld. This rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law.” 41.The said decision with all force is applicable to the fact situation of the present case for the reason that the statutory provision i.e. Section 242 of OMC Act mandates the Corporation to frame the Regulation for grant of permission/licence and determine the rates, which has not been done, in accordance with the exercise of power under Sections 657 and 659 of the Orissa Municipal Corporations Act, 2003 and the same is required to be confirmed by the State Government. That has not been done in the instant case. Further in the absence of such regulations, similar Regulations of the Bhubaneswar Municipal Corporation shall be applicable, in view of the law laid down by the Apex Court in a catena of cases. Therefore, points (a), (b), (c) and (d) are required to be answered in favour of the petitioners. Answer to the point Nos. (e) & (f) 42.M/s. Ajanta Advertisers and another, the petitioners in WPC No.32995 of 2011 have prayed for quashing of Annexure-2, the tender call notice and the consequent action of execution of the agreement for the reasons stated supra and issuance of tender call notice and award of contract in favour of opposite party No.3, namely, M/s. Dreamteam Advertising Pvt. Ltd., on the basis that it was the third highest offerer and since the highest bidder No.1 and 2 did not come forward to deposit the amount, the bid of opposite party No.3 was accepted and the agreement has been executed in favour of opposite party No.3 for a period of three years, is once again contrary to the Regulation 10(c) which states that every licence shall be for a period of one year except in the case of sites used for temporary congregations including fairs, festivals, circus, yatra, exhibitions, sports events or cultural or social programmes. Erection of hoardings is for temporary period as mentioned above. Erection of hoardings is for temporary period as mentioned above. Therefore, execution of the award beyond one year in favour of opposite party No.3, M/s. Dreamteam Advertising Pvt. Ltd. is bad in law and liable to be quashed. The contention urged on behalf of opposite party Nos.2 and 3 that CMC will get more revenue by the procedure adopted inviting tenders pursuant to the Tender Call Notice for the entire area of the CMC cannot be accepted as the action of the CMC is contrary to the provisions of the Act and Regulation. Their further contention that the petitioners have approached this Court alleging that CMC should issue tender call notice inviting tenders from the eligible persons and award contract in their favour and in that process, collection of more revenue to the CMC has been stalled by the petitioners who are unauthorized persons and have erected their hoardings in the Cuttack Municipal Area/private property area and therefore, the writ petition is liable to be dismissed, cannot be accepted and the various pleas taken in the counter and the submissions made by Mr. Rath are wholly untenable in law and required to be rejected. 43.The submission made by Mr. Rath, learned Senior Counsel appearing on behalf of M/s. Dreamteam Advertising Pvt. Ltd. cannot be accepted as the tender call notice was not challenged by the petitioners at the time of filing the writ petition. But when the matter was posted for judgment, at that stage, at the instance of the Court the same is challenged. The further contention of Mr. But when the matter was posted for judgment, at that stage, at the instance of the Court the same is challenged. The further contention of Mr. Rath that the tender call notice cannot be quashed as the tender of opposite party No.3 has already been accepted as he was the highest bidder, deposited the amount and also furnished the bank guarantee of 50% of the bid amount in favour of the Cuttack Municipal Corporation, agreement is executed and it has already been entrusted with the work of displaying the advertisement by way of reaction and exhibition of hoardings within the CMC area upon its land/Government land/private properties and therefore, the petitioners have no locus standi as they are not the bidders present in the tender call notice for which they are not entitled to the reliefs prayed for in the writ petition, is wholly untenable in law in view of the reasons stated supra and we have clearly held by answering the aforesaid contentious points which arose for our consideration that the action of the Licensing Standing Committee of the CMC in inviting bids by publishing tender call notice with certain terms and conditions which are narrated above in respect of the area mentioned in Annexure-4 to the tender call notice is bad in law. Hence, the said contention is wholly unfounded and accordingly the same is rejected. 44.Having answered the aforesaid points, i.e. point Nos. (a) to (d) in favour of the petitioners, the point Nos. (e) and (f) are required to be answered against the petitioners for the following reasons. Undisputedly on the basis of their admission, they have not got permission or licence from the CMC for continuing with their hoardings either in the property of the CMC or upon the private owners property is for a period of one year and continuing their hoardings in the area of the CMC without permission is unauthorised, as the same is in contravention of the provisions of Regulations 10 (a) to (f) which are extracted above. Therefore, the petitioners are not entitled to continue with their hoardings unauthorisedly. It is open for the CMC to take necessary steps for removing all hoardings erected by the petitioners as provided under the Regulations as they are all unauthorized persons who have been continuing their hoardings in the CMC area without permission. Therefore, the petitioners are not entitled to continue with their hoardings unauthorisedly. It is open for the CMC to take necessary steps for removing all hoardings erected by the petitioners as provided under the Regulations as they are all unauthorized persons who have been continuing their hoardings in the CMC area without permission. Further, it is open for the petitioners to apply for grant of licence/permission to the Commissioner of the CMC either in respect of the area where they have already erected exhibited, fixed, retained, and displayed their hoardings or within the area of the CMC or in respect of the private property holders. If such an application is filed by the petitioners, the same shall be considered and appropriate orders shall be passed by the Commissioner of CMC in accordance with law. It is also open for the Commissioner to recover the arrears of advertisement charges strictly in conformity with the charges for advertisements made for unauthorized bidder as mentioned in the Schedule of the Regulation and also penal charges as permissible in law. On payment of such arrears, including the penalty amount that may be levied upon them as provided under Regulation 10 and recovered as per Regulation 10 (a) to (f), so also the penalty amount as provided under Regulation 13, liberty is given to the petitioners to apply to the CMC for grant of permission/licence in accordance with the Regulations referred to supra. 45.For the reasons stated supra, the writ petitions are partly allowed and the following reliefs are granted and rule issued. The tender call notice dated 18.6.2011 published by the CMC along with the terms and conditions as well as Annexure-A to it mentioning the areas in respect of which the advertisement hoardings are to be erected and advertisements to be displayed, is hereby quashed and consequently the agreement executed by the CMC in favour of opposite party No.3-M/s. Dreamteam Advertising Pvt. Ltd. is also quashed. The interim order granted not to remove the hoardings is hereby vacated. The interim order granted not to remove the hoardings is hereby vacated. Since points ((a) to (d) have been answered in favour of the petitioners and the awardee has already made the deposit of the agreed amount, it is directed that the CMC authorities shall make a proper inventory as to the number of hoardings either erected by the awardee or its agent(s), calculate the charges to be levied for such hoardings as per the scheduled rate prescribed under the Regulations of Bhubaneswar Municipal Corporation and thereafter, deducting the said amount from the amount already deposited by the awardee, refund the balance amount to it within a period of one month from today. So far as the petitioners are concerned, the unauthorized hoardings erected by them shall be removed immediately and they shall not be allowed to erect the same till they obtain necessary permission from the CMC as per the Regulations applicable. Their applications if any, pending with the CMC for the purpose shall be considered and disposed of in accordance with law subject to payment of license fee for the period for which such hoardings were erected and continued unauthorisedly as early as possible. B.N. MAHAPATRA, J.I agree. Petitions partly allowed.