Mohammad Rafiq, J.@mdashThis 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
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.
4. Per contra, Mr. S.N. Kumawat, learned Additional Advocate General, appearing on behalf of respondent Municipal Corporation has argued that contract between the parties was executed on 9th January, 2007 in which petitioner has clearly admitted the dates of handing over of sites with respect to each of the places including the disputed sites and the concession period as indicted in the contract has also been accepted by the petitioner. All the events with regard to change of designs/drawings and replacement of single pole by multiple poles as per the designs approved by MNIT had taken place much prior to execution of contract. Petitioner did not raise any objection which he is now agitating, at the time of execution of contract and accepted the date of concession period indicated in the contract with open eyes. Therefore, petitioner is now estopped from agitating the demand of extension of concession period. It was argued that petitioner had already continued the overhead signages on various sites for 69 months starting from the date of work order and that the respondents are being put to huge financial loses because if the petitioner did not have the protection of interim order, they would have been in a position to again invite bids and auction those sites and start earning revenue for the period. Petitioner has not alleged any violation of contract not alleged any violation of contract nor is it seeking enforcement of contract in this petition. This petition for execution of contract period cannot be entertained, muchless in the face of availability of alternative remedy because Clause 22 of the agreement clearly provides that in the event of any questions, the dispute and difference arising under these conditions of the agreement or MOU, the same shall be referred to the Commissioner, Jaipur Development Authority and his decision shall be binding on the parties. It is submitted that the petitioner when it was required to replace the overhead signages of single pole pattern installed by him by multiple pole pattern as per the design approved by the MNIT, did not raise any objection, rather readily replaced those overhead signages immediately, he is estopped from questioning the same now. It is denied that earlier than replacing signages, petitioner did not display advertisements on those sites. It is prayed that the writ petition be dismissed.
5. Mr. A.K. Gupta, learned counsel appearing on behalf of JDA has adopted the arguments advanced by Mr. S.N. Kumawat, Additional Advocate General and has further submitted that now all these sites, for which contract was awarded to the petitioner, have been transferred to the Municipal Corporation, Jaipur.
6. Mr. Alok Sharma, appearing for interveners submitted that their clients are engaged in the business of advertising and that if those sites are re-auctioned, they would have the right to participate in the same and, therefore, time should not be allowed in the matter. Learned counsel has cited the judgment of the Apex Court in
7. I have given my anxious consideration to the rival submissions and perused the record.
8. In the first place, I am not inclined to uphold the contention that before substitution of unipoles by multipoles in terms of the design approved by the MNIT the petitioner was not allowed to display advertisements on such sites or the petitioner did not actually display advertisements, so as to raise money in terms of the agreement between the parties. What is evident from record is that old poles were substituted by the petitioner on all the locations within a period of less than one week and there is no pleading to the effect that the petitioner did not or could not display advertisements on those overhead signages thereby as per contract awarded to it by JDA on BOT basis. The Court has, therefore, to proceed on the footing that the petitioner started using those sites from day one when the same were handed over to it for erection of poles and putting of overhead signages. However, in this case, petitioner entered into an agreement with the respondent JDA on 9th January, 2007 and all events on the basis of which the case is sought to be build by the petitioner for seeking extension of concession period, had taken place much prior to the execution of that agreement. Petitioner could have availed appropriate legal remedy when it was required to replace the old poles by new once. Nothing prevented it to take recourse to law when the conditions, which according to the petitioner were onerous, were being imposed. It appears that the petitioner readily accepted those conditions and when he signed the agreement with the respondents, he did so without any protest. Not only that the petitioner agreed to the dates of handing over the sites but also agreed to the concession period. Petitioner cannot, therefore, now argue contrary to duly executed agreement. No argument can be allowed to be guilt now to contend that extension of period, over and above the period which petitioner had agreed with open eyes, should be granted to it. The dates on which the sites were actually and initially handed over to the petitioner, on which petitioner erected the poles and displayed overhead signages and advertisements, should form basis for assuming that he started raising money by renting out those sites. Replacement of unipoles by multipole on pattern approved by MNIT cannot possibly supply him an additional reason to claim extension of concession period.
9. The judgment cited by the learned counsel for the petitioner in Delhi Development Authority''s case (supra) was delivered in a case where certain additional terms and conditions were imposed in an already executed contract and those conditions were unilaterally sought to be imposed. Such terms and conditions, which were newly imposed, were not part of the offer and were based on unilateral issuance of officer order, but not communicated to the other party and which were not even the subject matter of a public notice. Such is not a position in this present case where the contract was executed by the petitioner with the respondent JDA consciously and with open eyes accepting all what has been narrated above. For the reasons aforesaid, I do not find any merit in this writ petition, which is accordingly dismissed.
No order as to costs.
