Selsites Outdoor Advertising Through Mr. Jayeshbhai Shah v. Ahmedabad Municipal Corporation Mahanagar Seva Sadan
2024-08-22
SANGEETA K.VISHEN
body2024
DigiLaw.ai
ORDER : Sangeeta k. Vishen, J. 1. Mr.Tirth Nayak, learned Advocate appearing for the petitioners has tendered the draft amendment. Amendment is allowed in terms of the draft. The same shall be carried out forthwith. 2. By this petition, the petitioners, inter alia have prayed for direction to the respondent No.1- Ahmedabad Municipal Corporation (hereinafter referred to as "the Corporation") to take action against the respondent No.2 in respect of the gantries, unipoles and structures placed by the respondent No.2 in violation of the tender terms, outdoor policy and the order passed by this Court. Further prayer is for direction to the Corporation to ensure that the respondent No.2, constructs the structures as per the tender terms, outdoor policy and the order passed by this Court. Besides, the petitioners have also prayed for cancellation of the tender Nos.AMCADVEST2324520 and AMCADVEST2324521 awarded to the respondent No.2. 3. Tersely stated are the facts. The petitioners claim to be leading advertisers in Gujarat and are in the business of outdoor advertising since several years. The petitioners have several hoardings, gantries and kiosks at various locations in the city of Ahmedabad and across the State. It is the case of the petitioners that the tenders in question were floated for erection of gantries for the purpose of advertisement in the zones in the land owned by the Corporation. The tender bearing no. AMCADVEST2324520 was for the West Zone, North-West Zone, South-West Zone of the city of Ahmedabad for potential display area of 3500 sq. mts. for an upset price of Rs.8,75,00,000/-, while tender bearing no. AMCADVEST232451 was for the North Zone, South Zone, East Zone and Central Zone of the city of Ahmedabad for potential display area of 3500 sq. mts. for an upset price of Rs.3,85,00,000/-. The respondent no. 2 was the sole bidder and the tenders were allotted to it for the erection of the gantries in the zones indicated in the tender and the land owned by the Corporation. 3.1. According to the petitioners, the respondent no. 2 was required to place the gantries as per the terms and conditions of the tender and in compliance with the orders passed by this Court. It is the case of the petitioners that the respondent no.
3.1. According to the petitioners, the respondent no. 2 was required to place the gantries as per the terms and conditions of the tender and in compliance with the orders passed by this Court. It is the case of the petitioners that the respondent no. 2 disregarding the tender conditions, applicable rules and regulations and the orders passed by this Court has put up unipoles and gantries in such a manner that it blocks the advertisements put up by the petitioners. The grievance raised is that the Corporation is duty bound to ensure the compliance of the rules, regulations and the orders passed by this Court; however, the Corporation turning blind eye, has not taken any steps and thereby, the inaction on the part of the Corporation reflects that the Corporation is favouring the respondent no. 2 and it is in violation of the rights of the petitioners under Articles 14, 19(1)(g) of the Constitution of India and thus the action/inaction of the respondent is arbitrary. Hence, the captioned writ petition. 4. Mr.SN Soparkar, learned Senior Counsel appearing with Mr.Tirth Nayak, learned Advocate while inviting the attention of this Court to the tender conditions, submitted that the respondent no. 2 is obliged to construct various hoardings/gantries at various locations within the city of Ahmedabad in such a manner, that it does not affect the existing advertisements and the hoardings of the petitioners. It is further submitted that Clause 15 titled ‘Structure/Impediments’ of the Ahmedabad Outdoor Advertising Policy- 2023 (hereinafter referred to as "the Policy of 2023"), provides that the structure used for display of advertisements should not, inter alia, block the existing advertisement boards/hoarding or the proposed site for the advertisement boards/ hoarding for which permission is already accorded by the Corporation; except to the Corporation owned potential display sites. It is submitted that the Policy of 2023, has not been challenged; however, the fact remains that the respondents are under an obligation to adhere to the rules, applicable regulations and the policies. It is submitted that the grievance of the petitioners is that the respondent no. 2 is putting up the signs, hoardings and advertisement so as to completely obliterate the advertisements of the petitioners and therefore, business of the petitioners is severely affected. 4.1.
It is submitted that the grievance of the petitioners is that the respondent no. 2 is putting up the signs, hoardings and advertisement so as to completely obliterate the advertisements of the petitioners and therefore, business of the petitioners is severely affected. 4.1. It is next submitted that the tenders floated by the Corporation envisage construction of gantries for two zones; however, the respondent no.2 is selectively constructing the entire tender area for gantries, structures, predominantly in Bodakdev Area and CG Road. Resultantly, only on Sindhubhavan road and Judges Bunglow road, there are around 15 sites of the respondent no. 2. It is submitted that the Corporation has floated the tenders whereby, the advertisement placed is of a floating tender which, is quite unusual, inasmuch as, once the tender is accepted, both the parties can mutually decide as to where the advertisement is to be put up. It is submitted that such a course adopted, is not permissible and would go against the commercial principle. It is submitted that the advertisement on the main road would fetch more value compared to the interior road and therefore, there is a grievance on the part of the petitioners against the tender document also. The petitioners are disputing the determination of the sites which are contrary to the rules, the policies and the orders passed by this Court. It is further submitted that the list of gantries have been provided at 48 locations and the respondent no. 2 is obliged to erect the gantries at the locations; however, disregarding the same, the unipoles have been erected by the respondent no. 2 which otherwise, would not be permissible as per the said tender condition. It is submitted that had it been known to the petitioners about the permission of the unipoles, the petitioners would also have participated in the tender process. Therefore, the Corporation ought to have taken steps which they have not done. 4.2. It is submitted that the pillars on the two sides of the roads are erected on the roads in such a manner which would cause hindrance to the traffic. Allowing the erection of the gantries and unipoles in such a manner is not only against the policies but also against the order passed by this Court in the case of Vrajeshbhai Balvantray Raval vs. Ahmedabad Municipal corporation & Ors. in WPPIL No. 167 of 2014.
Allowing the erection of the gantries and unipoles in such a manner is not only against the policies but also against the order passed by this Court in the case of Vrajeshbhai Balvantray Raval vs. Ahmedabad Municipal corporation & Ors. in WPPIL No. 167 of 2014. The grievance in the said writ petition was about the erection of the structures on the footpath. Statement was recorded of the Corporation wherein it was agreed that the Corporation would relocate the advertisement hoardings at other places. Statement was also made about the taking of action against the advertisers which did not confirm with the size, specifications of the advertisement boards, etc. It is therefore submitted that in view of the applicable policies, the orders passed, such a permission would be wholly impermissible as it would be affecting the business of the petitioners as well. 4.3. Mr.Soparkar, learned Senior Counsel, took this Court to the photographs (Annexure F). It is submitted that so far as the Sindhubhavan road is concerned, earlier, the advertisement of the petitioner no. 3 was visible; however, after the constructions of the unipoles, the advertisement is blocked. Therefore, since the business of the petitioners have been affected by the floating of the tenders, the petitioners can very well file the writ petition. It is submitted that by way of the tender what has been permitted to the respondent no. 2 would result into additional erection of the hoardings which is impermissible inasmuch as, the Corporation should ensure that the rights of the petitioners’ pre-existing hoardings are not affected and the existing hoardings are not over shadowed by the gantries/structures/ hoardings of the respondent no. 2. 4.4. Reliance is placed on the judgment in the case of M.S.Jayaraj vs. Commissioner of Excise, Kerala & Ors, reported in (2000) 7 SCC 552 wherein it has been held and observed that even the competitor can file the writ petition. It is submitted that in the case before the Apex Court, the writ petition was dismissed and the division bench allowed the appeal against which, the parties have approached the Apex Court. Referring to various judgments and more particularly, the judgment in the case of Jasbhai Motibhai Desai vs. Roshan Kumar Haji Bashir Ahmed & ors.
It is submitted that in the case before the Apex Court, the writ petition was dismissed and the division bench allowed the appeal against which, the parties have approached the Apex Court. Referring to various judgments and more particularly, the judgment in the case of Jasbhai Motibhai Desai vs. Roshan Kumar Haji Bashir Ahmed & ors. reported in 1976(1) SCC 671 , it is pointed out that there are three categories of persons vis-à-vis the locus standi: (1) a person aggrieved; (2) a stranger; (3) a busybody or a meddlesome interloper. It has been held and observed that considering the expanded concept of the locus standi, the motion cannot be nipped solely on the ground of locus standi. Hence, the rival in the business has a locus standi to challenge the order if passed by the authorities. It is therefore submitted that the petitioners have locus to challenge the action of the Corporation of allowing the respondent no. 2 to erect the gantries/unipoles over the identified areas. 4.5. It is submitted that representation was made by the Outdoor Advertising Owners Association, Ahmedabad somewhere in the month of May, 2024 followed by detailed representation dated 25.06.2024, inter alia, raising the objections against the erection of the unipoles. Grievance was also raised that the advertisement is being displayed in complete disregard of the Policy of 2023; however, till date the representations have not been decided. It is submitted that therefore, the inaction on the part of the Corporation is illegal and only with a view to favouring the respondent no. 2, violating the rights of the petitioners under Articles 14, 19(1) (g) of the Constitution of India. 5. Heard the learned counsel appearing for the petitioners and perused the documents available on record. 6. By filing composite petition, the petitioners, have prayed for the following reliefs: “(A) To issue a writ of mandamus, certioried mandamus and/or any other appropriate writ, order or direction to:- i. Command the respondent no. 1 to take action against the respondent no. 2 in respect of the gantries, unipoles and structures placed by the respondent no. 2 in violation of tender terms, outdoor policy and the order passed by the Hon’ble Court. ii. Command the respondent no. 1 to ensure the respondent no. 2 constructs structures as per the tender terms, outdoor policy and the order passed by the Hon’ble Court. iii. Command the respondent no.
2 in violation of tender terms, outdoor policy and the order passed by the Hon’ble Court. ii. Command the respondent no. 1 to ensure the respondent no. 2 constructs structures as per the tender terms, outdoor policy and the order passed by the Hon’ble Court. iii. Command the respondent no. 1 to cancel the tender no. AMCADVEST2324520 and AMCADVEST2324521 awarded to the respondent no. 2. (B) Pending the hearing, admission and final adjudication of the present petition, this Hon’ble Court may be pleased to: i. Direct the respondent no. 1to forthwith implement the order dated 12.09.2014 in WPPIL No. 167 of 2014 passed by this Hon’ble Court including on, in respect of the structures of the respondent no. 2. ii. Direct the respondent no. 1 to demolish the illegal structures of the respondent no. 2 in breach of the policy and orders passed by this Hon’ble Court. (C) This Hon’ble Court may be pleased to grant such other and further relief(s)/ direction(s), as this Hon’ble Court may deem fit in the interest of justice.” 7. Discernibly, the petitioners, who are seven in numbers, have prayed for various reliefs namely to direct the corporation to take action against the respondent No.2 in respect of the gantries, unipoles and structures placed in violation of the tender terms, outdoor policy and the order passed by this Court. The petitioners have also prayed for direction to the Corporation to ensure that the respondent No.2 constructs the structures as per the tender terms and policy. Moreover, the petitioners have also prayed for cancellation of the tenders awarded to the respondent No.2. 8. Therefore, essentially the grievance raised by the petitioners is two fold, namely that the respondent no. 2 has put up the hoardings, either in the form of gantries or unipoles, disregarding the tender conditions so also, the Policy of 2023. The grievance of the petitioners is also that erection of the gantries, is blocking the advertisement/hoardings of the petitioners and is affecting their business. In support of such challenge, following averments have been made in paragraphs 2.7 to 2.11 and the same read thus: “2.7. The aforesaid tenders floated by the Respondent No. 1 Corporation envisage construction of Gantries for two entire zones l.e., West Zone and East Zone which are further bifurcated into sub zones.
In support of such challenge, following averments have been made in paragraphs 2.7 to 2.11 and the same read thus: “2.7. The aforesaid tenders floated by the Respondent No. 1 Corporation envisage construction of Gantries for two entire zones l.e., West Zone and East Zone which are further bifurcated into sub zones. However, the Respondent No. 2 is selectively constructing the entire ternder area for gantries, structure predominantly in bodakdev area and CG Road. Resultantly, only on sindhu bhavan and judges bungalow road there are around 15 sites of the Respondent No.2. The pillars on the 2 sides of the Roads are erected on the Roads in a manner which would cause hindrance to the traffic. 2.8. The Respondent No. 1 is duty bound to ensure that the said gantries and construction done by the Respondent No. 1 are not blocking and infringing the view of the other pre existing hoardings. However, the Respondent No. 1 has failed to ensure that rights of other advertisers are not infringed. 2.9. The Tender floated by the AMC is solely for the purpose of construction of gantries. However, at various locations in the city the Respondent No. 2 is permitted to put up unipoles and not gantries when no tender is floated for unipoles. Unipole is different from "Gantry". 2.10. The Association wherein the Petitioners are members has also addressed letters dated 04/05/2024 and 25/06/2024 inter alia raising various concerns and pointing out the illegal acts being done by the Respondent No. 2 in complete disregard to the tender terms, the outdoor policy and the orders passed by this Hon'ble Court. The Respondent No.1 has not replied to the same nor taken any action pursuant to the same. A copy of the letter dated 04/05/2024 and 25/06/2024 is at Annexure E Colly hereto. 2.11. Moreover, the Respondent No. 1 Corporation is duty bound to ensure complete compliance of the policy, the tender documents and the orders passed by this Hon'ble Court equally on all the parties to ensure level playing field. However, the Respondent No.1 for reasons best known to them is turning a blind eye to the said irregularities. The deliberate inaction of the Respondent No.1 is arbitrary, malicious, capricious, in violation of the rights of the Petitioner under Article 14, 19(1)(g). The same is being done deliberately and specifically to favor the Respondent No.2. Hence this Petition.” 9.
However, the Respondent No.1 for reasons best known to them is turning a blind eye to the said irregularities. The deliberate inaction of the Respondent No.1 is arbitrary, malicious, capricious, in violation of the rights of the Petitioner under Article 14, 19(1)(g). The same is being done deliberately and specifically to favor the Respondent No.2. Hence this Petition.” 9. By way of an amendment, the following averments are made: "2.10 (a). The Petitioners have recently learnt that aware that one Public Interest Litigation being WPPIL No. 37 of 2024 has been filed wherein the issue regarding illegal and hazardous hoardings on public roads has been raised and this Hon'ble Court has been pleased to pass order dated 13/06/2024 and 12/07/2024 (Copy at Annexure E-1 Colly) hereto" 3.9 The Respondent No.1 ought to appreciate that the primary purpose of a gantry is as a public utility to make the public aware about directions and distances to the destinations and therefore the gantries of the Respondent No. 2 are contrary to the object and purpose of having gantries. 3.10 The Respondent No.1 ought to have undertaken a survey and assigned locations where such gantries could be constructed. However, no such exercise has been undertaken. The Respondent No.2 is permitted to construct gantries without any survey under the guise of the Tender, the Respondent No. 2 is permitted to choose the place for placing gantires in such manner that most gantries are placed by the Respondent No. 2 in one particular locality only so as to earn maximum revenue. The other areas are left without gantries and therefore without serving any public purpose. 3.11 The Respondent No. 2 has been constructing unipoles instead of gantires in many areas although no tenders are invited for unipoles. It is a known fact that the cost of constructing a unipole is much lesser than the cost of a gantry. Resultantly, the Respondent No. 2 is permitted to make unauthorized gains. Again, the Respondent No. 2 has been constructing the gantries in such a way so as to block the view of the existing hoardings in private properties and tender sites of other advertisers including the Petitioners which is evident from the photographs attached at Annexure F hereto. 3.12 The Respondent No.1 ought to ensure that easmentary rights of other hoardings of the Petitioners, from whom, huge license fees are being recovered, are not infringed.
3.12 The Respondent No.1 ought to ensure that easmentary rights of other hoardings of the Petitioners, from whom, huge license fees are being recovered, are not infringed. The Respondent No.2 is deliberately and maliciously constructing the said gantries/unipoles in a manner that easmentary rights of other hoardings are affected." 10. For ventilating the self same grievances, the petitioners have preferred representations which are pending consideration. 11. Moreover, the petitioners grievance is also that the unipoles are unauthorizedly constructed on public property and therefore, the Corporation is required to take appropriate steps to protect the same. It is required to be noted that contention is raised that the business of the petitioners is affected who are seven in numbers. Perceptibly, all the petitioners would be having absolutely different fact situation; however, a common writ petition has been filed raising various grievances without indicating as to how the respective petitioners are affected. The person who suffers legal injury can invoke the extra ordinary jurisdiction of this Court pointing out how he is affected. In the present case without indicating the number of sites, nature of injury, etc., a composite writ petition has been filed. Clearly, there are no precise pleadings and hence, the writ petition in the present form cannot be entertained and deserves to be dismissed only on the ground of it being vague and imprecise. A party is expected and is also bound to make full and correct disclosure of the facts and produce the documents substantiating the grievance. The petition if is lacking in accuracy, and incomplete details are provided, cannot be entertained. 12. In the captioned writ petition, the petitioners apart from making above referred averments have placed on record the photographs which, if is to be perused, do not indicate as to the photographs belong to which petitioners; except the photographs tendered together with the amendment wherein, the advertisement of petitioner no. 3 is indicated. When the learned Senior Counsel was confronted, it is fairly conceded that petitioner-wise information is not provided, urging that averments which are necessary have been made. 13. It is also sought to be argued that though the tender, is exclusively for the erection of the gantries, unipoles have been erected and the Corporation has not taken any steps restraining the respondent no. 2 from erecting the unipoles which, would be against the Policy of 2023.
13. It is also sought to be argued that though the tender, is exclusively for the erection of the gantries, unipoles have been erected and the Corporation has not taken any steps restraining the respondent no. 2 from erecting the unipoles which, would be against the Policy of 2023. It is required to be noted that the tender notice has been issued in the month of October, 2023 and further process, has taken place somewhere in the month of November, 2023. Averment has been made in the writ petition that the tender 7was awarded on 24.01.2024 and therefore, the Policy of 2023 would be applicable. Except this, there is nothing on record to substantiate about the award of the tender in favour of the respondent no. 2. Pertinently, the advertisement, was issued in the month of October, 2023 and the tender process, as stated hereinabove, took place in the month of November, 2023. As per sub-clause (2) of Clause 1 of the Policy of 2023, the policy shall come into force from the approval of the municipal board and the said approval has been granted as per the resolution no. 827 dated 22.12.2023. Hence, it appears that the Policy has come subsequent to the tender process therefore, the issue, would also be about the applicability of the policy to the tender process. In absence of any averments much less, any documents, it is not possible to determine the said issue. The petitioners, have not placed on record any work order which has been awarded in favour of respondent no. 2 therefore, at the cost of repetition, it is required to be said that the petition is not only vague but has been filed with incomplete details. 14. Another contention raised is that the gantries and unipoles are erected illegally. Reliance is placed on the proceedings of WPPIL No. 37 of 2024. Relevant would be to note the order which has been passed in the said writ petition on 12.07.2024, and reads thus: “[1] The petitioner herein is raising issue pertaining to public safety with the assertion that billboards / hoardings installed in the city of Ahmedabad at various places are posing danger to public life, inasmuch as, they have not been put up by complying the norms prescribed by the Corporation.
The submission is that with the onset of rainy season, the chances of collapse of such hoardings increase to a great extent. [2] Mr Kamal Trivedi, learned Senior Advocate assisted by Mr. G. H. Virk, learned advocate appearing for the Corporation would submit that the Corporation undertakes exercise of inspection with the onset of rainy season each year. This exercise will be conducted by the Corporation and Inspection Report will be submitted to this Court. [3] In view of the said submission, we provide that the Municipal Commissioner, Ahmedabad Municipal Corporation shall ensure that the inspection be carried out in the entire city of Ahmedabad, by whatever number of teams, he thinks deem fit to create for the purpose. The Inspection Report along with the personal affidavit of the Estate Officer, Director Estate and Town Planning Head of Department, shall be submitted on the next date fixed. [4] It goes without saying that the faulty structures have to be removed or corrected under the instructions of the Municipal Commissioner and any such billboard / hoarding, which has been installed without requisite permission is to be removed with immediate effect.” 15. Therefore, the concern raised about the illegal erection of the gantries/unipoles or that it would affect the pedestrians or traffic, has been taken care of by the statement made on behalf of the Corporation and the directions contained in paragraphs 3 and 4 of the said order. 16. While concluding, it is required to be noted that it is the case of the petitioner that that representation dated 04.05.2024 and 25.06.2024 have been filed but no decision is taken. If one is to peruse the representation dated 04.05.2024, in vernacular, the same only states about proposal for erection of the gantries and the unipoles by way of tender process. It has nothing to do with the grievance raised in the captioned writ petition and that too by the association whom the petitioners claim to be the members. Another representation is dated 25.06.2024 received on 27.06.2024. It appears that the Corporation has not taken any decision. Also, in absence of any refusal by the Corporation, the writ petition cannot be entertained at this stage; however, it will be open for the petitioners to pursue the representations dated 04.05.20241 and 25.06.2024, if they so wish to do. 17.
Another representation is dated 25.06.2024 received on 27.06.2024. It appears that the Corporation has not taken any decision. Also, in absence of any refusal by the Corporation, the writ petition cannot be entertained at this stage; however, it will be open for the petitioners to pursue the representations dated 04.05.20241 and 25.06.2024, if they so wish to do. 17. In view of the above discussion, the captioned writ petition does not deserve to be entertained and hence, is dismissed in limine. No order as to costs.