N S PUBLICITY AUTHORITY Vs. JAIPUR DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) This writ petition was filed by petitioner, M/s. N.S. Publicity Agencies way back on 21st January, 2008, inter alia with the prayers that respondent-Jaipur Development Authority (for short, "JDA") be directed to grant extension of concession period with regard to 21 overhead sign-ages installed by he petitioner pursuant to the agreement entered into between them on 9th January, 2007 for a further period of three years and be restrained from withdrawing advertisement rights of the petitioner or from transferring the ownership of the said installed overhead signages to the respondent-Jaipur Municipal Corporation. Factual matrix of the case is that the JDA formulated a scheme known as 'Mission Anupam', wherein it was proposed that JDA would initiate exercise to get various facilities constructed, such as bus shelters and overhead signages on various roads of the city on BOT (Buld Operate and Transfer) basis. JDA issued a notice of expression of interest in various news papers on 22nd December, 2004 inviting bids for developing such facilities on various specified roads. A pre bid meeting was held between officials of JDA and various bidders on 31st December, 2004. Petitioner submitted its offer on 4th January, 2005, which was accepted by JDA on 17th February, 2005. Petitioner, accordingly submitted a bank guarantee in the sum of Rs. 27,20,000/- on 12th March, 2005. One site was made available to the petitioner by JDA out side OTS, Jawahar Lal Nehru Marg, Jaipur in March 2005. Structures were erected by the petitioner on the basis of drawing approved by NHAI, which was inaugurated by the concerned Minister on 23rd March, 2005. Simultaneously, JDA appointed a Committee on 11th August, 2005 for identifying locations for such signages. The committee some times in September, 2005 approved the locations on the basis of which work order was given to the petitioner and the sites were handed over to it, where the petitioner started work. Before however work could be completed, JDA vide letter dated 6th October, 2005 directed the petitioner to stop execution to work in view of some interim order passed by this Court. Similar communication was also addressed to the petitioner by the respondent-Municipal Corporation on 24th October, 2005. In between, execution of work was delayed due to heavy rains and strong winds. On 7th June, 2006 petitioner submitted drawings and designs of bus shelters and overhead signages to the J.D.A. Petitioner, on 24th June, 2006 sought approval of those drawings with regard to Khasa Kothi Circle. Accordingly, petitioner submitted revised drawings and designs as required by the JDA on 10th July, 2007 as per the mission of respondent, it is averred that since execution of work was delayed for reasons attributable to the respondent, such as, drawings were changed in between; the petitioner was required to stop the work and locations were not handed over to the petitioner in time, yet petitioner was required by communication dated 3rd August, 2006 to extend the Bank guarantee, which he did upto 31st March, 2007. On 10th August, 2006, JDA informed the petitioner that Malviya National Institute of Technology (for short, 'MNIT') has given its consent to provide technical consultancy to the respondents and the petitioner was required to submit its drawings and designs to the MNIT. In compliance with the directions, the petitioner submitted revised drawings and designs to the MNIT on 22nd September, 2006 and informed the JDA accordingly on 26th September, 2006. It was only on 31st October, 2006 that the MNIT modified the designs of overhead signages submitted by the petitioner and sent modified designs on 31st October, 2006. On receiving the same, petitioner forwarded modified designs to the JDA for adopting the same for remaining overhead signages. It was, therefore, on 13th November, 2006 that the JDA issued communication to the petitioner asking again to submit designs and drawings, whereas the petitioner had already submitted the same. However, the petitioner vide letter dated 16th November, 2006 insisted that so far formal agreement has not been executed and, therefore, it should be done. Despite the fact that the petitioner had already invested huge amount of Rs. 58,80,000/- JDA issued notice to the petitioner, conveying that the work executed by it was contrary to the designs approved by the MNIT. Therefore, in January, 2007 formal agreements were executed in between the parties with regard to various sites available on different roads on various dates. However, in terms of directions issued by JDA, the petitioner removed all earlier signages in April, 2007 and installed new signages as per the drawings approved by the MNIT.

(2.) Shri Bajrang Lal Sharma, learned Senior Advocate, appearing on behalf of the petitioner has invited attention of the Court towards the numbers of sites as enumerated in Part-21, Schedule-A appended to the writ petition and argued that new signages as per designs approved by the MNIT were installed by the petitioner within a week of their removal. It is submitted by him that since the respondent JDA has unilaterally changed the conditions of work, which resulted in additional losses to the petitioner and since the petitioner was unable to fully recover the amount of its investment and reasonable profits with regards to 21 signages installed due to reasons attributable to the respondents, the respondents were under obligation to grant to the petitioner extension of time period for operating advertisements on the aforesaid facilities. Therefore, time period that was fixed of 30 months, should further be extended for another three years. Specific request was made in that behalf by the petitioner on 10th May, 2007 and 8th December, 2007, but the respondent JDA arbitrarily rejected such request of petitioner by communication dated 27.12.2007. In these circumstances, the petitioner had no option but to approach this Court. Learned counsel has cited the judgment of the Apex Court in Delhi Development Authority and Another vs. Joint Action Committee, Allottee of SFS Flats and others, 2008 2 SCC 672 and argued that conditions of contract could not have been unilaterally changed by the respondent JDA. JDA imposed additional onerous terms and conditions upon the petitioner, which were not part of offer and such conditions were imposed without consent of the petitioner and, therefore, petitioner is entitled to seek extension of time in respect of these 21 sites by three years so as to make good the losses which the petitioner had to incur for replacing old signages poles which were unipoles by multipoles as per designs approved by the MNIT. Learned counsel has cited the judgment of the Supreme Court in LIC India and another vs. Consumer Education and Research Centre and Others, 1995 5 SCC 482 and argued that even in contractual matters, action of the State has to be fair and reasonable and in public interest and in consonance with the constitutional conscience and socio economic justice. Right to carry on trade or industry by public authorities or private persons is subject to directives contained in Part IV, Part III of the Constitution. The court should interfere to mould the relief appropriately to remedy injustice despite availability of alternative remedies. Learned counsel submitted that 11 out of 21 sites were such for which original concession period had already expired or was about to expire when interim order was passed by this Court, requiring respondents to maintain status quo, therefore petitioner now confines its claim to remaining 10 sites where concession period has expired during pendency of this writ petition or would be expiring now and claims grant of extension for three years from respective dates.

(3.) It is further contended by Mr. B.L. Sharma, learned Senior Counsel that petitioner could not display signages or advertisements for a period earlier than the replacement of signages as per the designed approved by MNIT, therefore, also it should be granted extension of time, as prayed for.