M/s Helpline Advertising Services,Anr. v. Commissioner, SMC, Srinagar,Anr.
2013-01-04
MUZAFFAR HUSSAIN ATTAR
body2013
DigiLaw.ai
Caveat No. 05/2013 Caveat stands discharged. OWP. No. 1743/2012 & OWP. No. 04/2013 Heard in part. List for continuation of arguments immediately after ensuing vacation. Meanwhile, wherever required, pleadings be completed, more particularly respondent No. 2 to file Affidavit in OWP. No. 04/2013. 2. CMP. No. 2830/2012. CMP. No. 07/2013 Notice. Following reliefs are sought in OWP. No. 1743/2012:- "(I) By issuance of a writ of certiorari or any other appropriate writ, order of direction, the impugned order bearing No. 443 of 2010 dated 26-07-2012, No. 1845 of 2012 dated 13-09-2012 issued by respondents 2 to 5 and order No. MD/LDA/36/1646-49 dated 07-12-2012 issued by respondents 6 to 8 in favour of the respondent No. 9 be quashed. (II) By issuance of a writ of mandamus or any other appropriate writ, order or direction, respondents be directed: (a) To look into the grievances of the petitioner regarding non-availability of earmarked sites and facilitate installation of hoardings at those sites/places or equivalent places/sites as the respondents may identify; and (b) Not to accord sanction to the erection/installation of any hoardings backlit/ normal at any spot or place within the Municipal limits of Srinagar/jurisdiction of J&K Lakes and Waterways Development Authority, Srinagar, in any manner whatsoever in favour of respondent No. 9 or any other person/agency except the petitioner. (III) The Hon'ble Court may pass any other order or direction which it may deem fit and proper under the facts and circumstances of the case." 3. The petitioner in OWP. No. 04/ 2013 figures at Serial No. 9 in the array of respondents in OWP. No. 1743/ 2012. The orders, which are impugned in this Petition, have been issued in his favour. 4. The respondent No. 9 in OWP. No. 1743/2012 has filed OWP. No. 04/2013, in which following reliefs are sought: - (i) By issuance of the Writ of Certiorari impugned allotment order/letter No:675/2006 dated: 16.9.2006 issued by respondent No. 2 in favour of respondent No. 1 may be quashed and set aside. (ii) By issuance of writ of mandamus respondent No. 2 be directed to invite open tenders for all sites/kiosks available in the Municipal limits in Srinagar including those allotted illegally to respondent No. 1 afresh so that maximum revenue is generated in this process.
(ii) By issuance of writ of mandamus respondent No. 2 be directed to invite open tenders for all sites/kiosks available in the Municipal limits in Srinagar including those allotted illegally to respondent No. 1 afresh so that maximum revenue is generated in this process. (iii) By issuance of the writ of Mandamus respondent No. 2 be directed to recover the balance amounts along with interests from respondent No. 1 which is public money forthwith. (iv) Any other, writ, order or direction that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be issued in favour of the petitioner and against the respondent." 5. In terms of relief (I), the petitioner in OWP. No. 04/2013 has prayed for quashing of the impugned order/letter issued in favour of respondent No. 1, who is petitioner in OWP. No. 1743/ 2012. 6. The controversy raised in both the Writ Petitions owes its origin to 'Notice Inviting Offers' dated 26th June, 2006, where-under Srinagar Municipal Corporation (for short "SMC") invited sealed offers from the interested parties, Advertising agencies for installation of Hoardings on Government/Municipal sites numbering 142 and KIOSKS on central and side poles numbering 600 sites. In terms of Order No. 675/2006 dated 16th September, 2006, the offer of petitioner in OWP. No. 1743/ 2012 was accepted as the petitioner had surfaced highest bidder, having offered an amount of Rs. 81, 00786/- for the financial year 2006-2007. The aforementioned allotment order, however, would reveal that the Petitioner-Helpline was permitted to remit the amount in instalments. The Petitioner-Helpline was required to execute agreement with the SMC, which, it is stated at Bar, has not been executed till date. In terms of the aforementioned Order No. 675/2006, it was provided that the terms of the contract/ agreement period will be for ten years from the date of issuance of the order. It was further provided that there will be enhancement of 10% of original amount, after every two years. The Petitioner-Helpline was permitted to pay the first year license/Hoarding fee in three instalments within six months from the date of issuance of allotment order. The Order No. 675/2006 provided other terms and conditions which are not required to be considered at this stage.
The Petitioner-Helpline was permitted to pay the first year license/Hoarding fee in three instalments within six months from the date of issuance of allotment order. The Order No. 675/2006 provided other terms and conditions which are not required to be considered at this stage. The allotment Order No. 675/2006 dated 16th September, 2006 was cancelled by the Respondent-SMC, which Cancellation Order dated 19th September, 2009 was published in the Newspaper. The allotment order was cancelled on the ground that the Petitioner-Helpline had failed to execute the agreement. The Petitioner-Helpline challenged the cancellation order in Civil Original Suit, in which on 24th September, 2009, the Civil Court directed for maintenance of status-quo. The Respondent-SMC during the pendency of the Suit, recalled the order of cancellation, which resulted in dismissal of the Suit. The Respondent-SMC sent notice of demand dated 24th June, 2010 to Petitioner-Helpline, wherein he was informed that he has failed to pay the amount of Rs. 81,00786/- in three equal installments within six months from the date of issuance of the allotment Order No. 675/ 2006 dated 16th September, 2006. He was also informed that he has failed to execute agreement with SMC. He was called upon to deposit the outstanding amount with interest as per the prevailing bank rates with the Corporation within period of seven days. It was further provided that on failure of the Petitioner-Helpline, necessary action will be taken against him in accordance with law. 7. The Petitioner-Helpline responded to the said notice of the SMC, in which SMC was informed that the outstanding amount as per their record is to the tune of Rs. 29,42,032/-, which was paid vide Cheque dated 3rd September, 2010. The SMC was also informed that it is SMC, who has failed to execute the agreement. The SMC was accordingly requested to withdraw notice of demand. The SMC vide Order No. 1032 of 2010 dated 17th July, 2010 cancelled the Order No. 675/2006 dated 16th September, 2006 on the ground that the Petitioner-Helpline has failed to pay the balance amount alongwith interest and had further failed to execute the agreement. The Petitioner-Helpline challenged the aforementioned cancellation order in a Civil Original Suit. The learned Civil Court vide its Order dated 12th August, 2012, while issuing notice in the injunction application kept the Order dated 17th July, 2010 in abeyance till next date of hearing.
The Petitioner-Helpline challenged the aforementioned cancellation order in a Civil Original Suit. The learned Civil Court vide its Order dated 12th August, 2012, while issuing notice in the injunction application kept the Order dated 17th July, 2010 in abeyance till next date of hearing. The injunction application was dismissed by the learned Trial Court vide its order dated 06th December, 2010. The SMC had taken stand before the Civil Court in the said Suit that the Petitioner-Helpline was in arrears for an amount of Rs. 2,55,83,258/- and this amount was outstanding up to 30th March, 2010, The Petitioner-Helpline challenged the said order in CIMA No. 155/2010 before this Court and this Court on 10th December, 2012 provided that subject to objections and till next date before the Bench status-quo as on date be maintained. The Respondent-SMC had made a request to Tehsildar Recoveries for recovery of the amount of Rs. 2,55,83,258/- under Section 90 of Land Revenue Act read with Section 124 of the Municipal Corporation Act, 2000 from the Petitioner-Helpline. The Petitioner-Helpline filed OWP. No. 27/ 2011, in which said order was challenged. The Writ Petition was disposed of on 19th January, 2011 and the Petitioner-Helpline was directed to appear before Commissioner, Srinagar Municipal Corporation for settlement of the amounts and it was further directed to deposit Rs. 30.00 lacs with Srinagar Municipal Corporation within seven days from 20th January, 2011. It was provided that that in-case of failure on the part of Petitioner-Helpline to deposit Rs. 30.00 lacs, the Tehsildar Recoveries would be at liberty to seek recovery of the amount in accordance with law. 8. It appears that SMC and Petitioner-Helpline entered into a settlement and memo of settlement was executed, where-under, it was provided that against the total claim of Rs. 1,54,51,187/- raised by SMC on account of licence fee and interest upto 15th September, 2012, the Petitioner-Helpline shall pay lump-sum amount of Rs. 1,20,00,000/- only towards its full and final satisfaction. It was also provided that out of the said amount Rs. 80.00 lacs shall be paid by or before next date of hearing and the remaining amount of Rs. 40.00 lacs shall also be paid within two months thereafter. It was also agreed upon that on payment of the aforesaid amount, the order dated 17th July, 2010 shall be deemed to have been revoked.
80.00 lacs shall be paid by or before next date of hearing and the remaining amount of Rs. 40.00 lacs shall also be paid within two months thereafter. It was also agreed upon that on payment of the aforesaid amount, the order dated 17th July, 2010 shall be deemed to have been revoked. In view of the aforementioned settlement, CIMA No. 155/2010 and OWP. No. 462/ 2011 which was also filed by Petitioner-Helpline were disposed of. Mr. T.H. Khawaja, learned counsel for the Petitioner-Helpline was asked to move an application for withdrawal of the Suit. 9. In this Petition, action of SMC in issuing the allotment orders in favour of respondent No. 9-writ petitioner in OWP. No. 04/2013 is challenged. 10. The Respondent-SMC in the Reply Affidavit has stated at paragraph (3) that the Petitioner-Helpline was to erect only 142 Hoardings as per the stipulations of the allotment order, but on the ground, he has erected 171 Hoardings. It is also pleaded by the SMC that the Petitioner-Helpline was not asked to pay license fee for a period of six months which amounted to Rs. 44.00 lacs and interest to the tune of Rs. 34, 51,187.00 was also waved off. It has been further provided that the Petitioner-Helpline has filed the present Writ Petition for malafide reasons and to pre-empt the action, which is contemplated against him for erecting 171 Hoardings as he was allotted 142 Hoardings only. It is also pleaded that notice has been issued to the Petitioner-Helpline by the SMC, where-under he has been asked to remove the unauthorized and other sites of Hoardings and to execute agreement with the SMC. It is also pleaded that the Petitioner-Helpline was asked to liquidate amount of Rs. 1, 07, 82,147/- as license fee for the current year 2012-2013. It has been also pleaded that the Petitioner-Helpline has been maliciously involving the Respondent-SMC in avoidable litigation. It is further stated that the Respondent-Corporation considered the request of respondent No. 9 and a Committee constituted by the Commissioner, Srinagar Municipal Corporation decided to allot five sites in favour of respondent No. 9 for erecting Hoardings for a period of six months only after making advance payment to the Corporation and it is for this reason that the impugned allotment has been issued in favour of the respondent No. 9.
It is also pleaded that the Respondent-SMC is contemplating to allot more than 300 available sites through tendering process. 11. The petitioner in OWP. No. 04/ 2013 has prayed for quashing the allotment order made in favour of Petitioner-Helpline on 16th September, 2006. He has further prayed for issuance of direction to the SMC for inviting open tenders/KIOSKS available in the limits of Srinagar Municipality. He has also prayed that SMC be directed to recover the balance amount along-with interest from Petitioner-Helpline. 12. Mr. M. A. Qayoom, learned counsel for Petitioner-Helpline argued at length. Learned counsel referred to all the documents placed on writ record and submitted that, though the Petitioner-Helpline was authorized to erect/install 142 Hoardings, but he has not been permitted to erect these Hoardings in the Dal Lake area and the area which falls within the jurisdiction of Cantonment Board. Learned counsel submitted that the petitioner-Helpline has been subject to huge loss by the actions of the respondents. Learned counsel submitted that the Petitioner-Helpline has cleared all the dues up to September, 2012. Learned counsel also submitted that the allotment order was issued in favour of the Petitioner-Helpline by SMC after inviting offers from all the interested persons. Learned counsel further submitted that the SMC has power to issue allotments for a period of ten years in terms of the provisions of the Srinagar Municipal Corporation Act, 2000. Learned counsel further submitted that the Authorities of the Lakes and Waterways Development Authority (for short "LAWDA") in violation of the orders of the Division Bench passed in PIL No. 159/2002 have permitted the respondent No. 9, petitioner in OWP. No. 04/ 2013 to erect/install Hoardings in the prohibited Dal Lake area. Learned counsel while referring to order dated 18th September, 2012, arising out of PIL No. 159/2002 submitted that contempt notice has been issued to the Vice Chairman LAWDA for violating the Court orders, but still the said Authority has permitted respondent No. 9, writ petitioner in OWP. No. 04/2013 to erect/install the Hoardings. Learned counsel also referred to judgments of the Hon’ble Supreme Court reported in AIR 2009 (4) SCC, 171, AIR 2011 SC, 1834, AIR 2010 (1) SCC, 139/620 and prayed for allowing the Writ Petition. 13. Mr. B. A. Bashir, learned senior counsel, appearing for respondent No. 9, writ petitioner in OWP.
No. 04/2013 to erect/install the Hoardings. Learned counsel also referred to judgments of the Hon’ble Supreme Court reported in AIR 2009 (4) SCC, 171, AIR 2011 SC, 1834, AIR 2010 (1) SCC, 139/620 and prayed for allowing the Writ Petition. 13. Mr. B. A. Bashir, learned senior counsel, appearing for respondent No. 9, writ petitioner in OWP. No. 04/2013 submitted that, if it was made known to all interested persons in the year 2006 that bid amount/ offer amount will be realized in installments, many persons would have participated in the process for seeking allotment of sites for erecting/installing advertisement Hoardings. Learned counsel also submitted that this Court in view of the mandate contained in Article 14 of the Constitution of India has to protect overall interests of the society. Learned counsel further submitted that the Petitioner-Helpline has engaged the Respondent-SMC in litigations and has committed breach of terms and conditions of the allotment order and on litigative thrust has made them to succumb to his illegal demands. 14. At this stage Mr. B. A. Khan, appearing for SMC submitted that the corporation obtained information from some clients of the Petitioner-Helpline in respect of bills raised by him for displaying their advertisements in Srinagar City and it is learnt that the amount runs in crores of rupees. Learned counsel submitted that the information has been collected only from his few clients. Learned counsel also submitted that Petitioner-Helpline has made all efforts to monopolies the trade which has caused huge financial loss to the SMC. 15. Because of paucity of time, Mr. B.A. Bashir, learned senior counsel and Mr. B.A. Khan learned counsel for the SMC could not conclude their submissions and petitions were accordingly ordered to be listed for further arguments. The circumstances summarized hereinabove shocks one deep down to his conscience. 16. In our Constitutional scheme and philosophy, it is the people, who are sovereign and source of all power. The power flows from the people to some individuals, who are charged with the duty of protecting the interests of the people. These few individuals hold their offices in trust for the benefit of the people. All powers statutory or administrative have to be exercised by these authorities for overall benefit of the people and has to satisfy the Constitutional mandate contained in Article 14 and 21. 17. This Court in case titled VIOM Networks Limited and Ors.
These few individuals hold their offices in trust for the benefit of the people. All powers statutory or administrative have to be exercised by these authorities for overall benefit of the people and has to satisfy the Constitutional mandate contained in Article 14 and 21. 17. This Court in case titled VIOM Networks Limited and Ors. vs. State of J&K and Anr. reported in 2012 (1) JKJ 11 (HC) has made observations in paragraphs 22 to 26, which are taken note of:- "22. We the people of India" have given to ourselves the Constitution, preamble whereof, refers to solemn resolution to constitute India into sovereign, socialist and secular democratic republic and it is resolved to secure to all its citizens; Justice, social, economic and political; Liberty of thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the [unity and integrity of the nation]; 23. Our country is possessed of immense human and material/natural resources. 'We the people' are masters and have to be beneficiaries of these natural resources. The occupation of this country by external rulers has drained it of most of its material/ natural resources. This country which has history of thousands of years, at the mid night, when it was declared to be free and independent country, inherited body politic which was suffering from many maladies. The subjugation of centuries had reduced a vast majority of its population to abject poverty. The external aggressors and rulers had ruthlessly exploited the material/natural resources of this rich country. The majority of the population at the dawn of freedom of the country was very poor and it was very difficult for them to make the both ends meet. The Constitution makers who were great visionaries, in order to bridge the huge yawning gap between poor and the rich and in order to ensure that the basic necessities of life become affordable to every citizen of this country, made solemn declaration to secure justice, social, economic and political to its citizens. 24. For variety of reasons, a section of population got catapulted to an advantageous position and the vast majority suffered all kinds of deprivations. The class of people who were and are on the right side of the advantages, went on flexing their economic muscles to make huge money/ economic empires.
24. For variety of reasons, a section of population got catapulted to an advantageous position and the vast majority suffered all kinds of deprivations. The class of people who were and are on the right side of the advantages, went on flexing their economic muscles to make huge money/ economic empires. The already deprived class of the society became victim of actions of their own people. The people in democratic society like ours are sovereign and all types of resources which are available in this, country, thus, are property of people of this country. The people of this country are Masters of all natural/ material resources. A group of people because of their advantageous position and even capacities and abilities exploited these material/natural resources which are owned by the people of this country and have consequently build great money/economic empires. The Government which represents the will of the people in our Constitutional Scheme is deemed to be in control of all the material/natural resources available in this country. These material/natural resources are to be utilized in a manner by the State and its authorities which will ensure in achieving the goal of securing social and economic justice as enshrined in the preamble of the Constitution to all its citizens. The class of the people who have become affluent and rich have definitely right to retain the fruits of their labour but in a manner which suits our Constitution designed and engineered by its architects to create a socialist State. The Constitutional bodies and Constitutional authorities owe a duty to the people of this country to unveil humanist ideology of the Constitution of which preamble is repository and its vivid colours are painted strikingly by the constitutional painters in Article 38 and 39 thereof. The justice which is social and economic in all its contours will be achieved only when it is ensured that every individual of this country gets the basic necessities of life and the void between haves and have nots does not become unbridgeable. An exercise is to be undertaken to level down and level up two classes of the society so as to ensure that Clement Itlay's Prophecy "if a free society cannot help the many who are poor, it cannot save the few who are rich" does not become true. The soul of our constitution is socialist in nature. Ft.
An exercise is to be undertaken to level down and level up two classes of the society so as to ensure that Clement Itlay's Prophecy "if a free society cannot help the many who are poor, it cannot save the few who are rich" does not become true. The soul of our constitution is socialist in nature. Ft. Jawahar Lal Nehru said, "I see no way of ending poverty, the vast unemployment, the degradation and the subjection of Indian people except through socialism." 25. The State in our Constitutional Scheme in order to ameliorate the lot of suffering masses has sovereign power to levy tax on those who are on the advantageous position and who have build huge economic empires by exploiting material/natural resources of this country. The taxes are being exacted for the public good. The imposition of tax belongs to sovereign power of the State and levying thereof is authorized by the Constitution of this Country. The exaction of the tax in the social, economic and political backdrop of our country has to be looked upon favourably. The people who belong to a habitation are required to create certain facilities for themselves. In a democratic country like ours, since the Government is put in place to provide these facilities, the people who are able and in a position to pay, have to be levied with taxes. No Government can run without taxes being imposed on that section of the population which is able to pay. 26. The issue is to be looked at from another stand point as well. In our Constitutional Scheme representatives of the people ultimately form the Government and are answerable to the people in accordance with the mandate of Constitution of India and laws made hereunder. Governments are accountable and answerable for their every act to the people of the country. In contradistinction thereto, those who wield money or economic power are not answerable and accountable in the like manner. In the recent times value system has completely changed. The money power has taken control of almost all other public institutions. In present times people can be grouped by and large into two main classes viz. 'human beings' and 'commercial beings'. The events have unfolded and unveiled the ugly facts and facets which have shown that money power is affecting the political power of the State.
The money power has taken control of almost all other public institutions. In present times people can be grouped by and large into two main classes viz. 'human beings' and 'commercial beings'. The events have unfolded and unveiled the ugly facts and facets which have shown that money power is affecting the political power of the State. The state has to wake up and respond to these ringing alarms by making laws which would effectively control the money power/economic power and make it more answerable and accountable. The unbridled economic power has potential to destabilize the political order of the State. If the necessary checks and breaks are not put on the economic/money power, vast majority of the people will become poor and poorer. The people who suffer at the cruel hands of the deprivation, it is seen are, either committing suicide or joining outlawed groups. The State has to distribute the natural resources for overall good of society. The State in order to secure the Constitutional goal of having a socialist society has to necessarily have absolute control on the natural resources of this country." 18. It, prima-facie, appears that the interests of the people who are masters of all the properties has been cast to winds and all norms have ripped to shreds by the Authorities of SMC from time to time, inasmuch as, Petitioner-Helpline has been in real terms, helped to attain "unjust enrichment'. The allotment orders could not have a life of ten years. In our fast developing society and in view of the sky rocketing advancement in the economic affairs, it, prima facie, appears to be absurd and highly illegal that public property is vested for a period of ten years with one person. The material placed on record would, prima-facie, show that illegal and undue benefits have been conferred on Petitioner-Helpline. He has not executed any agreement with SMC at any point of time. He on the one hand, as per the submission of Mr. B. A. Khan, learned counsel for the SMC has earned crores of rupees from his clients and on the other hand has made SMC to waive substantial amount of his liability. The Petitioner-Helpline, as per the submissions of his learned counsel, has made payment up to September, 2012. Prima-facie, the allotment order for a period of ten years is illegal and unconstitutional.
The Petitioner-Helpline, as per the submissions of his learned counsel, has made payment up to September, 2012. Prima-facie, the allotment order for a period of ten years is illegal and unconstitutional. The public exchequer has been put to immense loss and few individuals conferred illegal benefits. Prima-facie, in view of the facts enumerated herein-above, the allotment order issued in favour of Petitioner-Helpline, is not legally surviving, so he cannot derive any further benefit from it. 19. The allotment order issued in favour of the respondent No. 9, petitioner in OWP No. 04/2013, is, prima-facie, illegal and improper. The said allotment has been issued without inviting offers and is, thus, bound to cause great loss to the public exchequer. An illegal and immoral benefit has been conferred. 20. This Court as sentinel of rights of the people is duty bound to perform its Constitutional duties. 21. For the above stated reasons, at this stage, following directions/orders are passed:- a. The Respondent-Srinagar Municipal Corporation is directed to forthwith take control/charge/possession of all the sites, which are used for installation of Hoarding's and KIOSKS, which have been allotted to Petitioner-Helpline as also to respondent No. 9, petitioner in OWP. No. 04/2013. b. The Srinagar Municipal Corporation is directed to invite offers from interested persons and allot these sites to the persons, who offer highest bid/amount initially for a period of six months. c. The Respondent-Srinagar Municipal Corporation is authorized in order to secure more financial benefits to enter into negotiation with concerned companies/persons who are interested in displaying their advertisements and put up Hoardings of such companies/individuals on the above stated sites. The Srinagar Municipal Corporation, can take recourse to this method only, if it is not satisfied with the highest offer made in open bid/tendering process and will secure more amount by adopting this method. d. The Vice Chairman, Lakes and Waterways Development Authority is directed to ensure that there is no violation of the orders passed by Division Bench of this Court in PIL No. 159/2002. e. The Petitioner-Helpline and respondent No. 9, petitioner in OWP. No. 04/2012 are restrained from putting up advertising Hoardings on the allotted sites. The allotment orders made in favour of these persons (petitioners in both Writ Petitions) are stayed till further orders. f. The Divisional Commissioner, Kashmir to supervise and monitor carrying out of the aforementioned directions by the concerned Authorities.
No. 04/2012 are restrained from putting up advertising Hoardings on the allotted sites. The allotment orders made in favour of these persons (petitioners in both Writ Petitions) are stayed till further orders. f. The Divisional Commissioner, Kashmir to supervise and monitor carrying out of the aforementioned directions by the concerned Authorities. g. In case the petitioners succeed in their petitions, then the Respondent-Srinagar Municipal Corporation shall have to pay compensation, which can be fixed in accordance with law and rules. h. All the concerned Authorities to report compliance to the Registrar Judicial of this Court. Registrar Judicial to serve this order for compliance on all the authorities. In view of the huge public interest involved in these Petitions, the petitioners will not be permitted to withdraw these Writ Petitions. Any withdrawal Application, filed by petitioner(s), shall not be entertained and registered by the Registry without obtaining orders from the Court.