Rajasthan Patrika Private Limited vs The State of Raj.

Raghuvendra S. Rathore, J.—This third stay application has been filed by the petitioner with the prayer that the respondents be restrained from installation of unipole hoardings on the railway premises, in cluster-6 near railway over bridge, where the unipoles of the petitioner were installed.

The writ petition was filed on 16.04.2013. Along with it, a stay application (5548/2013) was filed by the petitioner. Initially notices were issued on the writ petition. The counsel for the respondent Nos. 5 and 7 had appeared on that day and the counsel for the petitioner was directed to supply the copies of the writ petition to them. Further it was directed that copies of the petition be given to Additional Advocate General for respondent No. 1; the counsel for respondent Nos. 2 and 3 and for respondent No. 4.

Notices were issued only to respondent No. 6, returnable by 05.07.2013 and the same were given ''dasti''. It was ordered that till the returnable date, the railways shall not remove the structure of unipole, contract of which was awarded to the petitioner by the railways for a duration of five years in 2009. The said interim order continued till next date, from time to time. Thereafter, the petitioner moved second stay application (5591/2014) while the first stay application was yet to be finally decided, with the prayer that the respondent No. 5 be restrained from displaying the advertisements in Cluster-6 near railway over bridges to meet the ends of justice. After hearing the respective parties, the second stay application was dismissed by this court on 15.07.2014. The said order attained finality as the same was never challenged before the higher court.

On 31.07.2014, North Western Railway- respondent no. 4, filed an application under Article 226(3) of the Constitution of India with the prayer that the exparte stay order dated 17.05.2013 may be vacated. After hearing the parties, this court had ordered on 18.08.2014 that the exparte stay order passed on 17.05.2013 does not remain in existence, as on now. On the request of the petitioner, the matter was then ordered to be listed after 15 days. The said application (5548/2013) remained pending as the same had not been decided.

Soon after the passing of the order dated 18.08.2014, the petitioner preferred an SLP (23554/2014) before the Hon''ble Supreme Court and the same came up for hearing on 29.08.2014. On that day the said petition was dismissed. Following order came to be passed by the Hon''ble Apex Court:

"However, it will be open to the petitioner to apply afresh to the High Court for grant of interim relief since writ petition is pending. For a period of two weeks, status quo with regard to subject Unipoles will remain operative. However, this will have no bearing on the fresh consideration of the prayer for interim relief by the High Court."

The petitioner had then chosen to file this third stay application. It is to be noted that the first stay application (5548/2013) which was filed by the petitioner along with the writ petition, for grant of interim relief during the pendency of the writ petition, is still pending.

It has been submitted by the counsel for the petitioner that after being granted advertisement rights in respect of Cluster-6 in the form of Unipole sites located at railway premises on 15.09.2009, the petitioner had installed unipoles on the railway premises. The Municipal Corporation-respondent Nos. 2 and 3, had vide order dated 27.01.2012, rejected the application for permission to display the said advertisements. Therefore, the petitioner could not display the advertisement. Attention of this court was invited to the letter dated 10.12.2010 (Annexure-30) sent by respondent No. 4 to its counsel. The counsel for the petitioner has submitted that the contract of the petitioner for five years is still alive and the completion of first year contract has to be determined from the date of its commencement. It has also been submitted by the counsel for the petitioner that the Municipal Corporation- respondent Nos. 2 and 3 had rejected the application of the petitioner but has granted license to respondent Nos. 5 and 7 to raise construction for erecting unipoles at such places that they would obstruct the sites allotted to the petitioner by the railways. Further he has submitted that respondent No. 4 has subsequently, on 05.02.2013, terminated the contract awarded to the petitioner. They have issued an open tender notice on 06.02.2013 for letting out advertisement space over entire Jaipur Division, including Cluster-6, which was already let out to the petitioner. Therefore, it has been prayed by the counsel for the petitioner that the respondents be restrained from installation of unipole hoardings on the railway premises in Cluster-6 where the unipoles of the petitioner were installed.

The counsel for the respondent- North Western Railway has, at the out-set, submitted that the Hon''ble Supreme Court after dismissing the SLP filed by the petitioner against the order dated 18.08.2014 passed by this court, had granted status quo for a period of two weeks but has also made it clear that it will have no bearing on the fresh consideration of the prayer for interim relief. Further he has submitted that the grant of unipole sites to the petitioner has been terminated vide order dated 05.02.2013. He has also drawn the attention of this court to the fact that the first stay application is pending and that the second stay application was filed by the petitioner which has been dismissed on 15.07.2014. The counsel for the respondents has submitted that while vacating exparte-stay order on 18.08.2014, this court had taken into consideration all relevant aspects of the case and then vacated the stay order dated 17.05.2013 and ordered the registry to list the case after 15 days, as prayed by the petitioner. It has been submitted by the counsel for the respondent that the action taken by the respondent is sustainable in law and the contract awarded to the petitioner had been rightly terminated by them. The said termination has already been challenged by the petitioner in the writ petition which is still pending adjudication before this court and as such the same question is not to be adjudicated in this third stay application. He has also submitted that after termination of the contract awarded to the petitioner, a further contract has already been given to respondent No. 5.

Learned counsel for the North Western Railway has brought to the notice of this court the subsequent events which had taken place in this case. After passing of the order dated 18.08.2014 by this court, whereby the exparte interim order in favour of the petitioner was vacated, the respondent North Western Railway had, on 21.08.2014, given notice to the petitioner to remove the unipole structures within 24 hours, failing which the structures were to be removed by the respondent at the cost of the petitioner. Further he has submitted that as the petitioner did not pay any heed to the said notice/letter issued by the respondent, they had to take recourse to remove all unipole structures of the petitioner on 26/27.08.2014. Thereafter, a letter was written by the Senior Publicity Inspector, Jaipur to Senior DCM, Jaipur on 27.08.2014 (Annexure -R-4/4). Along with the said letter, some photographs were also annexed, to show that all the unipole structures have been removed (Annexure- R-4/5).

It has been submitted by the counsel for North Western Railway that respondent No. 5 had installed its unipoles only on some sites. However, at present no unipole structure of the petitioner is in existence and all of them have been removed from the places of their installation. The counsel for the respondent-Railway has submitted that since the matter pertains to public revenue, earned by the railways that the respondent had taken action in pursuance of the orders dated 15.07.2014 and 18.08.2014. Therefore, the counsel for the respondent- North Western Railway has submitted that in view of the aforesaid facts including that the grant of unipole sites to the petitioner already stands terminated on 05.02.2013 and that the averments made in this third stay application and the submissions there-upon relates to the main writ petition which is still pending adjudication before this court, the petitioner is not entitled to any interim relief and the present stay application deserves to be dismissed.

We have given our thoughtful consideration to the submissions made by the counsel for the rival parties and have carefully perused the material on record as well as the orders passed in this matter till date.

The relevant facts for consideration of this third stay application are that the petitioner was granted advertisement rights in respect of Cluster-6, in the form of unipole sites located in the railway premises over the railway/road over bridges of Jaipur city, by respondent- North Western Railway on 15.09.2009. The tender for letting out the advertisement space in Cluster-6 were invited on 17.07.2009 by the Divisional Railway Manager (Commercial), North Western Railway, Jaipur. It was on special terms and conditions. The condition No. 2.1 mentions that the tender will be considered initially for a period of one year and may be renewed for another four years, on year to year basis, on the same terms and conditions subject to an escalation @ 10% in license fees over previous year''s license fees. Further, clause 2.2 states that renewal will be considered keeping in view the performance of the contractor during previous year subject to written application from the Licensee to be submitted at least 90 days prior to expiry of the contract. If for any reason party is not willing to renew the contract, prior information not less than 90 days is to be submitted by the party. Condition 8.1 mentions that the successful tenderer will have to pay the annual license fees in two equal installments. First installment along with full security deposit will have to be paid within 15 days from the date of issue of acceptance letter. The second installment will have to be paid before expiry of six months from the date of commencement of contract. Clause 8.2 further mentions that in the event of failure to deposit the license fees within 15 days from the date of issue of letter of allotment, the railway administration shall be at liberty to terminate the contract and forfeit EMD. Condition 10 mentions in respect of termination of contract.

Apart from the rights reserved by the railways to terminate the agreement without assigning any reason, the licensee shall not be entitled to any compensation by reason of such termination. The condition mentions that in the event of failure on the part of contractor in payment of display charges or any other charges due to the Railway Administration, the Railway Administration will have the right to terminate the contract with immediate effect and to discontinue the display forthwith and confiscate the advertisement and other materials of the contractor without prejudice to any other rights available in addition to forfeiture of security deposit.

In other words, the period of contract was initially for a period of one year and the same could be renewed to another four years on year to year basis subject to an escalation @ 10% license fee over that of the previous year. The license fee was payable annually in two equal installments; first installment was to be paid within 15 days of issuance of the acceptance letter and the second one before expiry of six months. In the event of failure to deposit license fee, the railway administration was at liberty to terminate the contract. According to the letter dated 17.07.2009 issued by the North Western Railway to the petitioner, as per clause 10, the railways had a right to terminate the agreement without any reason and in the event of failure on the part of the contractor in payment of display charges or any other charges due to the railway administration, the railway administration has a right to terminate the contract with immediate effect and discontinue the display forthwith and confiscate the advertisement and other materials.

It was submitted by the learned counsel for the petitioner in misc. application (531/2004) in writ petition No. 4783/2003) that since permission has been granted on year to year basis, the period for which earlier order was passed is already over and they may apply afresh. On perusal of the order dated 05.02.2013 whereby the contract of the petitioner was terminated, it was noted that the letter dated 04.12.2009 was issued by the Divisional Railway Manager (Commercial) in respect of first installment of license fee and the security amount. Further it was mentioned that after allotment of first year, no application was submitted or steps taken for renewal or extension of allotment. Thereafter, when open tender notice was issued by the North Western Railway on 06.02.2013, the period of completion of work was clearly given which was to start with license of one year and thereafter up-to four years on year to year basis etc. It is the case of the respondent North Western Railway, as given in its reply to writ petition, that the averments made by the petitioner on having not exhibited/displayed even a single advertisement is wholly incorrect and false. The petitioner had with open eyes participated in the tender process and on having been found to be highest bidder, had deposited the license fee for six months and thereafter not even a single penny was deposited by them. The petitioner had neither submitted any application for renewal of contract nor any prayer for extension was ever made. According to the terms and conditions of tender wherein it was specifically mentioned that the petitioner ought to have abided by it, by making payment after deposition of initial license fee for first six months. The petitioner had also thereafter did not submit any application for extension. In these circumstances, the respondent thought it proper to terminate the contract by order dated 05.02.2013.

It is the case of the respondent- North Western Railway that treating the contract to have started from 03.01.2010 upto 04.02.2013, till the contract was terminated, the total amount of license fee due against the petitioner is to the tune of Rs. 7,88,69,679/- and the petitioner had only deposited an amount of Rs. 1,13,50,150/- towards license fee for six months. After opening of new tender in pursuance of the open tender notice issued on 06.02.2013, the respondent No. 5 being the highest bidder, a letter of acceptance has been issued in his favour on 28.05.2013 and in furtherance thereof the respondent No. 5 had deposited Rs. 1,82,40,089/- as license fee for six months out of a total amount of Rs. 3,99,66,666/-.

So far as submission made by the counsel for the petitioner in respect of letter dated 10.12.2010 is concerned, it is a correspondence between Sr. DCM and the Senior counsel for Railways. As the conditions of contract were made clear, as mentioned above, and in the event of non-compliance of the said condition the petitioner cannot be entitled for any relief. The said correspondence of 10.12.2010 cannot give any advantage to the petitioner, particularly when it was contrary to the letter dated 17.07.2009 which gave out the special terms and conditions of tender. The contract was considered initially for a period of one year which could be renewed for another four years, on year to year basis, on the same terms and conditions subject to escalation @ 10% in license fee over the license fee of previous year. But in the present case the petitioner had deposited license fee for six months and thereafter no fee was deposited by them.

The other issues raised by the counsel for the petitioner are such which relates to those raised in the main writ petition and would be considered and adjudicated at the time of final decision of the writ petition.

In view of above, we are of the considered opinion that taking into consideration the fact that the petitioner had violated the terms and conditions of tender by only paying the first installment of license fee and no payment was made thereafter; it had neither submitted any application for renewal of contract nor prayer for extension was ever made and that a huge loss has been caused to the revenue of the railways as against a total sum of Rs. 7,88,69,679/-, the petitioner had paid only Rs. 1,13,50,150/-, there is no prima-facie case in favour of the petitioner so as to grant any interim relief during the pendency of the writ petition. Further more, there is neither any balance of convenience in favour of the petitioner nor any irreparable loss to be caused to him if any interim relief is not granted. On the contrary by granting interim relief, a huge monetary loss is to be caused to the respondent North Western Railway and respondent No. 5 in whose favour the new tender has been granted, would suffer irreparable loss.

Consequently, this third stay application is dismissed as being devoid of merits.