M/S NOVA ADS Vs. METROPOLITAN TANSP.CORP.& ORS.
Supreme Court of India (Division Bench (DB)- Two Judge)
Writ Petition (Civil), 223 of 2009, Judgment Date: Dec 12, 2014
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL/APPELLATE JURISDICTION
WRIT PETITION (C) NO. 223 OF 2009
M/s. Nova Ads ... Petitioner
Versus
Metropolitan Transport Corporation
And Ors. ... Respondents
WITH
C.A. NO. 11037 OF 2014 (@ SLP(C) NO. 276/2007)
C.A. NO. 11038 OF 2014 (@ SLP(C) NO. 852/2007)
C.A. NO. 11039 OF 2014 (@ SLP(C) NO. 11880/2009)
J U D G M E N T
Dipak Misra, J.
Leave granted in all the special leave petitions.
2. The present batch of appeals characterizes series of collusive
concessions, maladroit misrepresentations, designed negotiations and
infusion of fraud on financial morality; and further epitomises how
statutory Corporations can cultivate the proclivity to give indecent burial
to their interests, which is fundamentally collective interest that the
Corporations are duty bound to protect, preserve and assert for. That
apart, this bunch also exposes, as we have painfully penned, how the State,
the protector of the interest of the citizens, has constantly maintained
sphinx-like silence and also for some unfathomable reason, dexterously
ignored the financial misdeeds as a colossal mute spectator. It seems all
have either eloquently or silently competed with each other to write the
epitaph of law. But, a pregnant one, there is a watch-dog, the petitioner
in Writ Petition(C) No. 223/2009, despite being wedded to individual
interest, thought it apposite to uncurtain the machinations adopted by the
respondent nos. 3 to 8 and the Metropolitan Transport Corporation (Chennai)
Ltd. (MTCL) which had filed SLP(C) No. 16908/2006 against K.S. Kumar Raja &
Another and later on chose not to press the same. The painfully unusual
thing, has been allowed to happen.
3. The litigation has a history. The MTCL issued advertisements for
erection and maintenance of certain bus shelters, both lit and non-lit and
in response to the said advertisement, M/s. Aim Associates approached the
1st respondent for taking of the work of erection and maintenance of bus
shelters on "build, operate and transfer" on sponsorship basis. It was
based on the principle of first come, first serve. Specific areas had been
allotted in favour of the respondents to the writ petition who have also
preferred appeals by way of special leave. The agreement entered into by
the MTCL with the sponsors was to remain valid for one year with the
stipulation that the same shall be renewed every year for next nine years
subject to the performance of the sponsors and compliance of all the terms
and conditions of the agreement to the best satisfaction of the MTCL.
Similar sponsorship agreements had been entered into with the other
sponsors for construction and maintenance of bus shelters in the city of
Chennai. In 2003, as various disputes arose pertaining to the sponsorship
agreement, respondent nos. 3 to 8 to the writ petition, invoked the
jurisdiction of the High Court under Article 226 of the Constitution.
While the said writ petitions were pending, K.S. Kumar Raja, the 9th
respondent to the writ petition, also preferred a writ petition before the
High Court challenging the authority of the MTCL in allotting contract for
erection and maintenance of bus shelters.
4. Dealing with all the writ petitions, the High Court passed a common
order on 5.9.2006. Be it stated, along with the writ petition, certain
writ appeals were disposed of by the High Court. The High Court adverted
to the facts in W.P.(C) No. 318/2004 which was filed by K.S. Kumar Raja,
the sole proprietor, City Advertising Systems, Chennai who had questioned
the tender notification dated 31.3.2003 published in Dina Bhoomi, a daily
newspaper. By the said tender notification, MTCL had called for tenders
from intending buyers for erection of bus shelters on the road margins
within the city of Chennai. The said K.S. Kumar Raja had also preferred
W.P. No. 34872/2003 calling in question the legal acceptability of the
order dated 7.11.2003 of the Commissioner, Municipal Corporation of Chennai
(for short, 'the Corporation') informing him that the erection and
maintenance of bus shelters in Chennai city was being dealt with by the
MTCL and, therefore, he should approach the said authority. It was
contended before the High Court that it was obligation of the Corporation
to provide bus shelters for the convenience of commuters. It was averred
that initially various bus stops were identified and allotted on first
come, first serve basis and consequently for the successful tenderer,
permission was also granted to erect shelters under the royalty scheme.
The writ petitioner had submitted an application to the respondent
Corporation for allotment of specified location for establishment of
shelters but the same did not evoke any response. The reminders also fell
on deaf ears. Being aggrieved by the said non-response, he had approached
the High Court in W.P. No. 26890/2003 seeking a direction to the
Corporation to consider his representation and the High Court had directed
the Corporation to pass appropriate orders on the representation within a
specific period. Pursuant to the order passed by the High Court, the
Corporation on 7.11.2003 him that the construction and maintenance of a
shelter in Chennai city was being dealt by the MTCL. At that juncture,
MTCL invited tenders which constrained him to file the writ petition
assailing the said order.
5. It was contended before the High Court that MTCL has no
jurisdiction/authority to erect the bus shelters on its own or to give
permission to the sponsors for erection as per the provisions contained in
Section 285 of the Chennai City Municipal Corporation Act, 1919 (for
brevity, 'the Act'). The Corporation filed its counter affidavit
contending, inter alia, that the Government in G.O.Ms No. 14, Municipal
Administration and Water Supply Department dated 11.1.1983 had allowed the
MTCL to provide bus shelters to passengers and also to maintain them, and
hence, it had the authority. Thus, the Corporation conceded to the
authority of the MTCL solely on the basis of the aforesaid notification
issued by the Government. The High Court, addressed itself with regard to
the competent authority under the Act who is entitled to build bus shelters
for passengers or enter into an arrangement for the said purpose. Scanning
the provisions of the Act and appreciating the administrative instructions,
it came to hold that none of the provisions of the Act empowers the
Government for issuing such notification; that reliance placed on the
Government Order is unacceptable; that the road margin including the margin
of public streets has to be controlled and managed by the Corporation as
they vest in it; that MTCL has no jurisdiction to allow any sponsor either
to erect or illuminate the bus shelters; that the order passed by the
Commissioner requiring the petitioner therein to approach the MTCL was
inapposite and deserved to be quashed; that the tender notification issued
by the MTCL was legally unsustainable; and that the MTCL has no power
either to grant or cancel the allotment. Being of this view, the High
Court dismissed the writ petitions filed by the sponsors and allowed the
writ petitions filed by K.S. Kumar Raja. It is seemly to state here that
the High Court had issued certain directions, which we think it apt to
reproduce:
"(i) The Commissioner, Corporation of Chennai shall identify the road
margins for erection of bus shelters and for the said purpose he can take
the opinion/ advice of the Metropolitan Transport Corporation;
(ii) On such identification of the location for erection of bus shelters,
the Commissioner Corporation of Chennai shall call for tenders from
intending sponsors:
(iii) The Corporation Council is also entitled to resolve to allow
Metropolitan Transport Corporation to locate bus shelters and maintain the
same and in such an event, the Metropolitan Transport Corporation would
identify the locations and erect bus shelters on the basis of the terms and
conditions imposed by the Council.
(iv) The above exercise, viz., to identify the location and advertise on
its own or empower the Metropolitan Transport Corporation to erect the bus
shelters, shall be implemented by the Corporation, on or before the end of
December 2006.
(v) Till such time, the petitioners viz., the sponsors are entitled to
continue their activities in relation to the shelters established, subject
to payment of Rs. 49,500/- per shelter for one module of 20 x 4 size
shelters and a sum of Rs.99,000/- for the second module consists of 40 x 4
shelters.
(vi) The above said amount shall be paid to the Corporation of Chennai
entirely in advance along with a copy of this order. On such payment, the
Commissioner, Corporation of Chennai shall allow the petitioner to continue
their business till the end of December 2006.
(vii) It is made clear that the above arrangement is basically made only in
the interest of the commuters as they must be provided with the shelter and
removal of the shelter will not be in the interest of either the writ
petitioners or of the Metropolitan Transport Corporation or of the
commuters in general. Hence, the Commissioner should strictly adhere to
the timings prescribed in this order for taking the decision, whether to go
for an advertisement on its own or leave the entire matter to the transport
corporation the respective claims both by the sponsors as well as the
transport corporation arising out of the Contract are left open to be
resolved by them before the appropriate forum".
6. Challenging the said order, the aggrieved parties filed various special
leave petitions and as has been stated earlier MTCL had also filed special
leave petition. This Court had initially issued notice, and passed an
interim order but thereafter during the pendency of special leave petitions
the MTCL and the aggrieved contracting parties entered into a settlement.
The settlement that was entered between the parties is necessitous to be
reproduced:
"(1) That the parties would refer all the past disputes and their mutual
claims to Arbitration in respect of the disputed period: 01.02.2003 to
31.03.2005. All payments made after 01.04.2005 will be adjusted as against
the then current dues as claimed by the Petitioners.
(2) That the Petitioner in SLP (C) No. 276 and SLP (C) No. 852 of 2007
would be entitled to 500 shelters and they would be granted a 12 year
license period with further extension, on condition that the entire 500
shelters, as per list, would be converted into International Standard Bus
Shelters with Advertisement Space not exceeding 30 sq. mtrs per shelter,
within 13 months time from the date of the order.
(3) The License Fee payable for this period would be Rs. 30,000/- per
annum with an escalation of 10% once in every three years considering the
huge investment involved in erecting the international Standard Bus
Shelters. "
7. On the basis of the said settlement a prayer was made for listing the
matter and accordingly an order came to be passed on 30.06.2008, which is
as follows:
"SLP (C) No. 276/07 and SLP (C) No. 852/07, filed by AIM Associate Ltd. and
M/s Front Line Media Etc., respectively, are taken up on mentioning.
Having regard to I.A. No. 3/08 filed in SLP (C) No. 276/07 and I.A. No.
2/08 in SLP(C) 852/07, wherein it has been mentioned that the matter has
been settled between the parties, the terms whereof are filed in the form
of Memo, annexed to the said applications, we disposed of both these
Special Leave Petitions by the following order.
The Memos signed by the petitioner and the Respondent Metropolitan
Transport Corporation duly supported by the affidavit of the petitioner and
the affidavit of Shri Ramasubramaniam, Managing Director of Metropolitan
Transport Corporation, filed in the connected SLP(C) No. 16908 of 2006, are
taken on record and these Special Leave Petitions are disposed of in terms
of the said memos.
The parties shall bear their own costs in these proceedings.
SLP (C) No. 16908/06 filed by the Metropolitan Transport Corporation,
Chennai, Limited, is also taken up for consideration along with I.A.
No.2/08 filed therein. In view of the Order passed hereinabove in the
earlier two Special Leave Petitions, no orders are necessary in this
Special Leave Petition. The Special Leave Petition is disposed of
accordingly and the question of law raised in the petition is left open for
decision in appropriate proceeding."
8. Be it noted, to the said settlement, Chennai Municipal Corporation
was not a party. It needs no Solomon's wisdom that by such a settlement
the interest of the Corporation was seriously affected, for the High Court
had categorically opined that it was within the authority of the
Corporation to have control over the public roads as per the provisions
contained in the Act.
9. At this juncture, it is condign to mention that during the pendency
of the Special Leave Petitions, an agreement was entered into between the
appellants and MTCL and as has been stated earlier, the Court has disposed
of the matter on the basis of the settlement on 30.6.2008. At this stage,
we think it apt to refer to the agreement that has been entered into
between MTCL and M/s. Metro Multimedia, a firm controlled by M/s. Aim
Associates, M/s. Front Line Media, M/s. Graphite Publicities, M/s. S.S.
International, M/s. Vaishnavi Images and M/s. White Horse Communications
Network dated 24.09.2008. The reference to the said agreements is
extremely significant, for it throws immense light on the conduct of the
parties. The relevant clauses from the said agreements are as follows:
"AND WHEREAS MTCL had permitted the firms for erection of various bus
shelters by entering into individual agreements.
AND WHEREAS a dispute arose between the firms and MTCL, regarding the
certain legal rights to continue with reference to issues pertaining to
payment of Royalty amounts for the period of 2003 to 2005.
AND WHEREAS both the MTCL, and the firms duly agitated their respective
rights before the Hon'ble Supreme Court of India, subsequent to the
disposal of legal proceedings by the Hon'ble High Court of Madras.
AND WHEREAS considering the overall issues all the parties herein had
agreed for arriving at an appropriate settlement on such other terms and
conditions and also agreed to resolve their past dispute once for all
before the Hon'ble Supreme Court of India.
AND WHEREAS the Hon'ble Supreme Court of India had passed orders on 30th
June 2008 in SLP(C) No. 16908/2006, 276/2007 and 852/2007 recording the
terms as set out in the Memo and had permitted both MTCL, and the firms to
implement the said order and had disposed all the cases pending before the
Hon'ble Supreme Court of India.
xxxxx xxxxx xxxxx
That in compliance with the orders of Hon'ble Supreme Court of India in
SLP(C) No. 16908/2006, 276/2007 and 852/2007 MTCL agrees to allot 500 Nos.
of bus shelters to the concessionaire for erection/re-erection of the
shelters of International standard for the benefit of the waiting bus
passengers and the concessionaire agrees to convert the existing bus
shelters of International standard where there is no bus shelters. The
concessionaire agrees to erect the above bus shelters of International
standard at its own cost and in return agrees to pay the royalty amount at
the rates hereinafter appearing.
xxxxx xxxxx xxxxx
The concessionaire agrees to buy royalty amount to MTCL during the period
of 12 years. The royalty amount shall be paid at the rate of Rs.30000/-
per year per International Standard Bus Shelter with an escalation of 10%
once in every three years over the previous rate. The period of agreements
as well as the royalty payment starts from 01.09.2008.
xxxxx xxxxx xxxxx
This agreement is valid for 12 years from 01.09.2008 with further extension
on condition that the entire 500 bus shelters, as per list, would be
converted into International Standard Bus Shelters with advertisement space
not exceeding 30 sq.mtrs per shelter, within 12 months from 01.09.2008."
10. As the factual matrix undrape, M/s. Nova Ads, filed the Writ
Petition(Civil) No. 223/2009 for recall of the order passed by this Court
on many a ground. On 11.01.2011, the following order came to be passed:
"This writ petition has been filed for recall of the order passed by this
Court on 30th June, 2008, in SLP(C)No.16908 of 2006, filed by the
Metropolitan Transport Corporation against one K.S. Kumar Raja & Anr.,
together with two other Special Leave Petitions filed by some of the
private parties, namely, AIM Associates Ltd. and M/s. Front Line Media etc.
2. By virtue of the said order, on a submission made by the parties that
a settlement has been arrived at, we had disposed of the Special Leave
Petitions on the basis of such submissions.
3. In this writ petition, it has been sought to be indicated that the
said order had been passed despite an earlier order in the same matter.
4. Having heard learned counsel for the respective parties
and in particular Mr. Mohan Parasaran, learned ASG, that the subject-matter
of the Special Leave Petitions was confined to 500 bus shelters, out of
which a number of shelters had already been constructed to a large extent,
we recall the order which we had passed earlier on 30th June, 2008, and
restore all the three Special Leave Petitions to file. We also, however,
clarify that such order had been passed upon agreement by the parties at
that stage. We also clarify that whatever steps that have been taken so
far on the basis of the said order, will be subject to the final result of
the Special Leave Petitions.
5. This order is passed without prejudice to the rights and contentions
of the parties at the time of the hearing of the Special Leave Petitions.
7. Liberty given to file additional documents.
11. Going back to the clauses in the agreement, it is luminescent that
there is a reference to the order passed by the High Court and the order
dated 30.6.2008 wherein this Court has recorded the settlement. The High
Court had unequivocally held that the MTCL has no authority to enter into
any agreement in respect of the bus shelters and only the Corporation has
the authority under the law. The Chennai Corporation was not a party to
the settlement. It is interesting to note that from the clauses
incorporated in the agreement, it is reflective as if there was a direction
by this Court to enter into this kind of settlement. The disturbing part
is that the MTCL has entered into the agreement which has to remain valid
for 12 years with the consortium of six firms without calling for tenders.
These facts are not only bewildering, but really shocking.
12. In this background, the seminal question that is required to be
addressed first is whether under the Act it is the Corporation or the MTCL
has the authority to deal with bus shelters for passengers. Mr. C.A.
Sundaram, Mr. V. Giri and Mr. Ravindra Srivastava, learned senior counsel
appearing for various parties in different appeals would contend that the
High Court has fallen into error in its appreciation of the provisions of
the Act and has erroneously come to hold that Corporation has the authority
to exercise the powers for providing shelters to the passengers and to deal
with the shelters for any commercial venture and the said transport
undertakings are to be controlled and managed by the Corporation and the
MTCL has no authority to grant permission for establishing the bus shelters
or to deal with them in any manner. It is further urged by them that the
High Court has failed to take note of the fact that at the time the State
Government had conferred the power on MTCL to deal with the matter, the
Corporation was under supersession and hence, the State Government had the
authority to act on behalf of the Corporation and delegate the
power/authority to MTCL and, therefore, there was no illegality in dealing
with the same. Resisting the aforesaid contentions, it is submitted by Mr.
Rohtagi, learned Attorney General that the analysis made by the High Court
cannot be found fault with because it is in consonance with the principles
of interpretation. Similar submission has also been canvassed by Mr.
Subramonium Prasad, learned AAG for the State of Tamil Nadu and Mr. C.U.
Singh, learned counsel for the writ petitioner. As far as the authority of
the State Government is concerned, it is urged by them that by the time the
notification was issued, the elected body had come into existence and,
therefore, the State Government could not have acted on behalf of the
Corporation.
13. To appreciate the controversy, certain statutory provisions need to
be referred to. Sections 2(6) and 2(7) that define "carriage" and "cart"
respectively read as follows:
"Carriage - "Carriage" means any wheeled vehicle with springs or other
appliances acting as springs and includes any kind of bicycle, tricycle,
rickshaw and palanquin but does not include any motor vehicle within the
meaning of the [Motor Vehicles Act, 1939 (Central Act IV of 1939)].
Cart - "Cart" includes any wheeled vehicle which is not a carriage but does
not include any motor vehicle within the meaning of the [Motor Vehicles
Act, 1939 (Central Act IV of 1939)]."
14. Keeping the said definitions in view, we shall proceed to deal with
certain other provisions of the Act. Chapter IX of the Act deals Public
Streets. Section 203 reads as follows:
"203. Vesting of public streets and their appurtenances in corporation -
(1) All public streets in the city not reserved under the control of [the
Central or the State Government], with the pavements, stones and other
materials thereof, and all works, materials implements and other things
provided for such streets, all drains, drainage works, tunnels and culverts
whether made at the cost of the municipal fund or otherwise, in alongside
or under any street, whether public or private, and all works, materials,
implements and other things appertaining thereto and all trees not being
private property growing on public streets or by the side thereof, shall
vest in the corporation.
(2) The State Government may by notification withdraw any such street
drain, drainage work, tunnel, culvert, or tree from the control of the
corporation."
15. From the aforesaid provisions, it is quite vivid that all public
streets and their appurtenances which are not reserved under the control of
the Central or State Government shall vest in the Corporation. Thus the
reservation as engrafted under the provision is only meant for the Central
Government or the State Government. Sub-section 2 of Section 203 enables
the State Government to issue a notification withdrawing any street, drain,
drainage, tunnel, culvert or tree from the control of the Corporation. It
is submitted by Mr. Rohtagi that Section 203(1) of the Act, barring certain
streets, vests everything in the Corporation. The State Government has
been conferred the power by the legislature to withdraw certain streets and
other things from the control of the Corporation, for the legislature in
its wisdom has thought it appropriate to carve out an exception from
Section 203(1) and enabled the State to deal with it after issue of a
notification. As we perceive the said provision, public streets which have
been vested in the Corporation, unless it is reserved for the Central
Government or the State Government or unless a notification is issued to
withdraw in respect of certain streets and other things from the control of
the Corporation, it has the absolute control. This is the plainest meaning
that can be placed on the aforesaid provision, for it does not admit of any
other interpretation.
16. Section 204 deals with maintenance and repair of streets. It reads
as follows:
"204. Maintenance and repair of streets - The corporation shall cause the
public streets to be maintained and repaired and make all improvements
thereto which are necessary or expedient for the public safety or
convenience."
17. The aforesaid provision clearly envisages that it is the duty of the
Corporation to maintain, repair and improve the streets which are necessary
and expedient for public safety and convenience. The key words are
"safety" and "convenience" and that is the responsibility of the
Corporation.
18. Section 214 provides for protection of appurtenances and materials of
streets. It lays down that it shall not be lawful for any person, without
the permission of the Commissioner, to displace, take up or make any
alteration in the fence, posts, pavement, flags or other materials of any
public street. The Commissioner, needless to say, is the Commissioner of
the Corporation. Thus, it is clear that no alteration can take place
without the permission of the Commissioner, for it is the duty of the
Corporation to maintain the streets and also it is obliged to see the
convenience of the public.
19. Section 214-A prescribes the power of the Corporation to recover
expenses caused by extraordinary traffic. Section 220 deals with
prohibition against obstruction in streets. The said provision stipulates
that no one shall build any wall or erect any fence or other obstruction or
projection or make any encroachment in or over any street or any public
place the control of which is vested in the Corporation. Section 222
empowers the Commissioner to remove encroachments by following certain
procedures. Section 223 deals with power to allow certain projections and
erections. Section 223-A deals with the power of the Council to set up
hoardings and levy fees. As the learned Attorney General has highlighted
the said provision to bolster the proposition that it is the Corporation's
authority to deal with bus shelters and the hoardings/ advertisements put
on those shelters, it is apposite to reproduce the same:
"223-A. Power of Council to setup hoardings and levy fees - Subject to the
provisions of the Madras Open Places (Prevention of Disfigurement) Act,
1959 (II of 1959) and Section 129-A to 129-F of this Act, the commissioner
may, with the sanction of the council, set up, for the exhibition of
advertisements, hoardings, erections or other things in suitable place
owned by, or vested in the corporation and may permit any person to use any
such hoardings, erection or thing on payment of such fee as may be
prescribed by regulations made by the council in this behalf.
Explanation I. - For the purpose of Section 129-D and 129-E the person who
has been permitted to use any hoarding, erection or thing under this
Section shall be in addition to the advertisements Taxes payable by him
under Section 129-A or advertisements exhibited by him on such hoarding,
executing or thing.
Explanation II. - For the removal of doubts, it is hereby declared that any
fee payable by any person to use any hoarding, erection or thing under this
Section shall be deemed to be the owner or the person in occupation of such
hoarding, erection or thing."
20. Laying emphasis upon the aforesaid quoted provision, it is urged by
Mr. Rohtagi that exhibition of any advertisements, hoardings, erections or
other things in a suitable place owned by, or vested in the Corporation has
to be dealt with by the Council and the Commissioner can set up places with
the sanction of the Council and the said act has to be done on payment of
such fee as may be prescribed by the Regulations by the Council in that
behalf. It is his submission that the Corporation has been conferred the
power by the legislature and it cannot be scuttled by any authority.
21. At this juncture, it is apt to refer to Section 285 of the Act. It
deals with the provision of landing places, cart-stands, etc. It is as
follows:-
"285. Provisions of landing places, cart-stands, etc. - (1) The
Commissioner may construct or provide public landing places, halting
places, cart-stand, cattle-shed and cow-house and may charge and levy such
fees for the use of the same as the standing committee may fix.
Explanation - A cart stand shall, for the purpose of this Act, include a
stand for carriages including motor vehicles within the meaning of the
Motor Vehicles Act, 1939 and animals.
(2) A statement of the fees fixed by the standing committee for the use
of such place, shall be put up in English and Tamil in a conspicuous part
thereof.
(3) The commissioner may farm out the collection of such fees for any
period not exceeding three years at a time, on such terms and conditions as
he may think fit."
22. This provision has its own significance. It empowers the
Commissioner to construct or provide public landing places, halting places,
cart-stand, cattle-shed and cow-house and for levy of fees for the use of
the same, which is determined by the standing committee of the Corporation.
The cart-stand, as the Explanation would show, for the purposes of the
Act, includes stand for carriages including motor vehicles within the
meaning of Motor Vehicles Act, 1939 (for short, "the 1939 Act"). The
definition of motor vehicle under the 1939 Act reads as follows:
"motor vehicle" means any mechanically propelled vehicle adapted for use
upon roads whether the power of propulsion is transmitted thereto from an
external or internal source and includes a chassis to which a body has not
been attached and a trailer; but does not include a vehicle running upon
fixed rails or used solely upon the premises of the owner."
The aforesaid definition indubitably would include a bus. Keeping
the same in view, we are to examine Section 285-A which has been emphasised
by the learned counsel for the parties. The said provision reads as
follows:-
"285-A - Prohibition of use of public place or sides of public street as
cart-stand etc. - Where the commissioner has provided a public landing
place, halting place, cart-stand, cattle-shed, or cow-house, he may
prohibit the use for the same purpose by any person within such distance
thereof as may be determined by the standing committee of any public place
or the sides of any public street:
Provided that nothing contained in this section shall be deemed to
authorise the commissioner to prohibit the use of any place in the city by
the State Government as a stand solely for motor vehicles belonging to the
Transport Department of the State Government.
23. Section 285-B deals with recovery of cart-stand fees, etc. On a
scrutiny of the said provision, it is limpid that the Commissioner of the
Corporation has the power to take appropriate action for the purpose of
recovery, if the fee leviable under sub-Section (1) of Section 285-B is not
paid. Section 285-C deals with licence fee for private cart-stand. The
provision also postulates that no person shall open a new cart-stand or
keep open a private-cart stand unless he obtains from the Commissioner a
licence to do so and the owner of a place is required to apply for licence.
Section 285-C(5) provides for the licence fee and 285-C(6) provides the
period of licence.
24. A conjoint reading of the aforesaid provisions make it absolutely
plain that the Corporation has the power under the Act to control the cart-
stand which includes a stand for carriages including motor-vehicles and
levy fees and also provide for licence, even for private cart-stand.
25. Learned counsel for the appellants have laid immense emphasis on
Section 203(2) and proviso to Section 285-A which we have already
reproduced hereinbefore. Section 203(2) as has been stated earlier,
empowers the State Government to issue a notification to withdraw any such
street, drain, drainage work, tunnel, culvert, or tree from the control of
the Corporation. A reference is made to the notification issued by the
State Government to pyramid the submission that the entire area where the
bus shelters have been constructed, has been withdrawn from the control of
the Government. We will advert to the same when we interpret the said
notification at a later stage. Suffice it to say that Section 203(2) has
to be understood as an exception to Section 203(1) and there has to be a
specific notification, for the words used therein are "as such". They have
their own signification.
26. Presently, we shall advert to the proviso to Section 285-A. Section
285-A has to be read in conjunction with Section 285. Section 285 empowers
the Commissioner to construct or provide public landing places, halting
places, cart-stand, etc. The Explanation includes a stand for carriages
that includes motor vehicles within the definition of cart-stand. Section
285-A authorises the Commissioner to prohibit use of public place or sides
of public street as cart-stand, etc. by any person within such distance
which has to be determined by the standing committee. The proviso carries
out an exception which stipulates that nothing contained in Section 285-A
shall be deemed to authorise the Commissioner to prohibit the use of any
place in the city by the State Government as a stand solely for motor
vehicles belonging to the Transport Department of the State Government.
27. Learned counsel appearing for the appellants would contend that MTCL
is a State undertaking and comes under the Transport Department. On a
reading of the said proviso, it is graphically clear that the
Commissioner's power cannot be extended to prohibit the use of any place in
the city by the State Government as a stand solely for motor vehicles
belonging to the Transport Department. It is urged by the learned counsel
for the appellants that the vehicles in question belong to the State
undertakings and thereby to the Transport Department and, therefore, the
Commissioner has no role. On a first blush, the aforesaid submission looks
slightly attractive, but on a studied scrutiny it has to pale into
insignificance. We are inclined to think so as Section 285 uses the term
"cart-stand" and by way of amendment, it has been specified that a cart-
stand would be 'stand' for a carriage including motor vehicles within the
meaning of 1939 Act. The proviso to Section 285-A also uses the
phraseology "stand" solely for the "motor vehicles". The words in a
statute have to be construed in their grammatical sense. Reasonableness or
otherwise becomes material only when the statute is not clear. Long back,
the Privy Council in Corporation of the City of Victoria V. Bishop of
Vancouver Island[1] has laid down thus:
"In the construction of statutes their words must be interpreted in their
ordinary grammatical sense, unless there be something in the context, or in
the object of the statute in which they occur, or in the circumstances with
reference to which they are used, to show that they were used in a special
sense different from their ordinary grammatical sense. In Grey V.
Pearson[2], Lord Wensleydale said:
"I have been long and deeply impressed with the wisdom of the rule, now I
believe, universally adopted, at least in the Courts of Law in Westminster
Hall, that in construing wills, and indeed statutes, and all written
instruments, the grammatical and ordinary sense of the words is to be
adhered to, unless that would lead to some absurdity, or some repugnance or
inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified, so as to avoid
that absurdity and inconsistency; but no farther."
28. In this context, it is also apposite to refer to K.P. Varghese V.
Income Tax Officer, Ernakulam and Another[3], wherein the Court observed
thus:
"....... The task of interpretation of a statutory enactment is not a
mechanical task. It is more than a mere reading of mathematical formulae
because few words possess the precision of mathematical symbols. It is an
attempt to discover the intent of the legislature from the language used by
it and it must always be remembered that language is at best an imperfect
instrument for the expression of human thought and as pointed out by Lord
Denning, it would be idle to expect every statutory provision to be
"drafted with divine prescience and perfect clarity". We can do no better
than repeat the famous words of Judge Learned Hand when he laid:
"... it is true that the words used, even in their literal sense, are the
primary and ordinarily the most reliable, source of interpreting the
meaning of any writing: be it a statute, a contract or anything else. But
it is one of the surest indexes of a mature and developed jurisprudence not
to make a fortress out of the dictionary; but to remember that statutes
always have some purpose or object to accomplish, whose sympathetic and
imaginative discovery is the surest guide to their meaning."
29. We have referred to the aforesaid authorities only to highlight that
the stand for motor vehicles in its grammatical connotation are quite
explicit and conveys a definite meaning. It basically means making
provisions for stands for motor vehicle. The word used in Section 285 is
cart-stand. The explanation clearly states that the cart-stand, for the
purposes of this Act, would include motor vehicles. The Corporation has
been authorised by the Act to make provisions for cart-stands. When one
thinks of stand for motor vehicles, it only means, the parking place. That
is the popular meaning of the word. The "stand", if one would like to
conceive that it would include shelters for passengers, it will be a
grossly unreasonable interpretation. It has to be given the common
parlance meaning. While dealing with the concept of popular sense, a two-
Judge Bench of this Court in The Commissioner of Sales Tax, Madhya Pradesh,
Indore V. M/s. Jaswant Singh Charan Singh[4], while dealing with the said
facet has observed thus:
"This rule was stated as early as 1831 by Lord Tenterdan in Attorney-
General v. Winstanley [1831] 2 D & Cl. 302. Similarly, in Grenfell v.
Inland Revenue Commissioner [1876] I Ex-D. 242, Pollock, B., observed,
"that if a statute contains language which is capable of being construed in
a popular sense such statute is not to be construed according to the strict
or technical meaning of the language contained in it, but is to be
construed in its popular sense, meaning of course, by the words 'popular
sense', that sense which people conversant with the subject-matter with
which the statute is dealing would attribute to it". But, "if a word in its
popular sense and read in an ordinary way is capable of two constructions,
it is wise to adopt such a construction as is based on the assumption that
Parliament merely intended to give so much power as was necessary for
carrying out the objects of the Act and not to give any unnecessary powers.
In other words, the construction of the words is to be adopted to the
fitness of the matter of the statute".
30. The scheme of the entire Act, as we notice, is to confer the power on
the Corporation to have control over the public streets and to make
provisions for public convenience. It is obligatory on the part of the
Corporation to provide for stands. In addition, the Corporation or its
authorised officer, Commissioner, cannot prohibit a stand meant for motor
vehicles for the transport Corporation. The legislative intent is
absolutely clear from the language used in various provisions of the Act.
The purpose of interpretation is to understand and gather the mens or
sententia legis of the legislature as has been held in Grasim Industries
Ltd. V. Collector of Customs, Bombay[5]. In the aforesaid authority, it
has been held thus:
"The elementary principle of interpreting any word while considering a
statute is to gather the mens or sententia legis of the legislature. Where
the words are clear and there is no obscurity, and there is no ambiguity
and the intention of the legislature is clearly conveyed, there is no scope
for the court to take upon itself the task of amending or alternating (sic
altering) the statutory provisions. Wherever the language is clear the
intention of the legislature is to be gathered from the language used.
While doing so, what has been said in the statute as also what has not been
said has to be noted. The construction which requires for its support
addition or substitution of words or which results in rejection of words
has to be avoided. As stated by the Privy Council in Crawford v. Spooner[6]
"we cannot aid the legislature's defective phrasing of an Act, we cannot
add or mend and, by construction make up deficiencies which are left
there". In case of an ordinary word there should be no attempt to
substitute or paraphrase of general application. Attention should be
confined to what is necessary for deciding the particular case. This
principle is too well settled and reference to a few decisions of this
Court would suffice. (See: Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v.
Custodian of Vested Forests[7], Union of India v. Deoki Nandan Aggarwal[8],
Institute of Chartered Accountants of India v. Price Waterhouse[9] and
Harbhajan Singh v. Press Council of India[10].)"
31. If the provisions which we have referred to hereinabove are
understood on the touchstone of aforesaid principles pertaining to
statutory interpretation, there remains no iota of doubt that the
legislature has conferred power on the Corporation to take necessary action
for public convenience and make provisions for the cart-stand which
includes the motor vehicles. The exception carved out by a proviso to
Section 285-A of the Act does not remotely suggest that the legislature has
even conceived of any other body like MTCL, which is a State undertaking,
to even construct the bus shelters. What has been engrafted in the proviso
to Section 285-A of the Act is that the Corporation or its agent cannot
prohibit the use of any place in the city to be used for motor vehicles
belonging to Transport Department of the State Government as a stand. We
are of the considered opinion Section 285-A of the Act has to be read in
juxtaposition with Section 285 of the Act and by no stretch of suggestion,
it can be read to include bus shelters. The word "stand" has to be
understood as per the common meaning given to it. That apart, the text,
context and the pattern of use of words do suggest that it is meant for
providing stand for the motor vehicles. In this regard, we may profitably
refer to a passage from Utkal Contractors & Joinery Pvt. Ltd. and others V.
State of Orissa and others[11], which states as under:-
"No provision in the statute and no word of the statute may be construed in
isolation. Every provision and every word must be looked at generally
before any provision or word is attempted to be construed. The setting and
the pattern are important. It is again important to remember that
Parliament does not waste its breath unnecessarily. Just as Parliament is
not expected to use unnecessary expressions, Parliament is also not
expected to express itself unnecessarily. Even as Parliament does not use
any word without meaning something, Parliament does not legislate where no
legislation is called for. Parliament cannot be assumed to legislate for
the sake of legislation; nor can it be assumed to make pointless
legislation. Parliament does not indulge in legislation merely to state
what it is unnecessary to state or to do what is already validly done.
Parliament may not be assumed to legislate unnecessarily. Again, while the
words of an enactment are important, the context is no less important."
32. Applying the aforesaid principle, when we scan the anatomy of the
provisions, we are impelled to arrive at a singular conclusion that the
Corporation has the authority to deal with cart-stand which includes the
motor vehicles and the 'stand' as used in proviso to Section 285 of the Act
only refers to the stand for motor vehicles and cannot include bus
shelters.
33. At this juncture, we must take note of the submission, though feebly
made, by the learned counsel for the appellants that the word 'stand' even
if construed as a stand equivalent to cart-stand, would mean stand for
motor vehicles only and not include bus shelters and, therefore, the
Corporation would not have the authority but the State Government will have
the power. The said submission has no legs to stand upon and hence, is
hereby rejected. It is for the reason that the Corporation has to look
after the convenience of the people as enshrined under Section 204 of the
Act. The cumulative reading of the provisions and on proper understanding
of the scheme of the Act, there remains no trace of a doubt that the
Corporation has the authority to deal with the 'stands' and have the
obligation to control and manage the bus shelters for public convenience.
It is within the authority of the Corporation to think of appropriate
management.
34. The main thrust of argument of the learned counsel for the appellants
is that the State Government has given the charge and the responsibility to
the MTCL to construct bus shelters and MTCL being empowered by the decision
of the State Government has entered into an agreement with the appellants
and, therefore, no fault can be found with such an action. For the said
purpose, reliance has been placed on GOMs No. 14, Municipal Administration
and Water Supply Department dated 11.01.1993 which had allowed the State
transport undertaking to provide bus shelters to passengers and also to
maintain them. The said order as has been produced in the order of the
High Court, reads as follows:-
"ORDER
The Expert Committee on Transport Sector constituted by the
Government of Tamil Nadu in the G.O read above submitted its report.
2. The Recommendation No. 109 made by the Committee read as follows:-
109. Road maintaining Local Authorities should provide Bus Bay Spaces,
Shelter for passengers to be provided by STUS as infrastructural facilities
and they need to be maintained by STUs.
3. After careful consideration, the Government accept the recommendation
and direct that wherever it is possible, the Municipal Corporations and
Municipalities should provide bus bay spaces on the municipal roads. The
State Transport Undertaking shall be allowed to provide shelters or
passengers and also to maintain them."
35. The aforesaid Government order refers to Recommendation No. 109 of
the Committee. Be it stated, an Expert Committee was constituted and it
had recommended that the road maintained by Local Authorities should
provide Bus Bay Spaces, Shelter for passengers to be provided by STUs as
Infrastructural facilities and they need to be maintained by STUs.
36. Learned counsel for the appellants would contend that the Government
has authorised the said transport undertaking and this has been done in
exercise of power under the proviso to Section 285-A of the Act. We have
already explained the ambit and scope of Section 285-A of the Act and
proviso appended thereto. The proviso carves out an exception with regard
to the stands to be used for motor vehicles owned by the State transport
undertakings when the State so decides and the same cannot be prohibited by
the Commissioner of the Corporation. The "stand" as has been discussed
hereinbefore would only include "stand for motor vehicles". The "stand"
would not include shelters for passengers. The "stand" as has been stated
earlier conveys the meaning of either a "parking place" or a "halting
place" for the motor vehicle. In common parlance, the "stand" and
"shelter for passengers" are quite different. They cannot be attributed
the same meaning. The State Government could have issued a notification
specifying certain places as stands for motor vehicles of the Transport
Department which may include State transport undertakings i.e. MTCL, but
the State Government, as we understand the scheme of the Act, has no
statutory authority to issue a notification allowing the State transport
undertakings to provide shelters for passengers. It is well settled in
law that neither the Rule nor a Regulation nor a Notification can
transgress the postulates engrafted under the Act. In General Officer
Commanding-in-Chief V. Dr. Subhash Chandra Yadav[12], it has been held
that:
"......before a rule can have the effect of a statutory provision, two
conditions must be fulfilled, namely (1) it must conform to the provisions
of the statute under which it is framed; and (2) it must also come within
the scope and purview of the rule making power of the authority framing the
rule. If either of these two conditions is not fulfilled, the rule so
framed would be void."
37. In B.K. Garad V. Nasik Merchants Co-op. Bank Ltd.[13], it has been
ruled that if there is any conflict between a statute and the subordinate
legislation, the statute shall prevail over the subordinate legislation and
if the subordinate legislation is not in conformity with the statute, the
same has to be ignored.
38. In Additional District Magistrate (Rev.), Delhi Administration V.
Shri Ram[14], it has been opined that it is a well recognized principle
that conferment of rule making power by an Act does not enable the rule
making authority to make a rule which travels beyond the scope of the
enabling Act or which is inconsistent therewith or repugnant thereto.
39. Tested on the anvil of the aforesaid authorities, it can be said with
certitude that an order of the present nature could not have been issued by
the State Government, for it is not in conformity with the Act and, in
fact, travels beyond the statutory provisions.
40. In view of our foregoing analysis, the opinion expressed by the High
Court that the Corporation has the power or authority to deal with the
streets, subject to restrictions under the Act and the MTCL has no power or
authority to deal with the same on the basis of the government order, which
has been referred to hereinabove, is absolutely justified in law.
41. Presently, we have to dwell upon the equitable facet. Before we
delve into the arena whether the appellants deserve any equity or not, we
may profitably refer to certain authorities where the equity cannot
operate. In Kedar Lal Seal and another V. Hari Lal Seal[15], while
dealing with the concept of a solution on the basis of equities, Bose, J.,
speaking for the Bench stated thus:
"I am of the opinion that the second solution adumbrated earlier in this
judgment, based on equities, must be ruled out at once. These matters have
been dealt with by statute and we are now only concerned with statutory
rights and cannot in the face of the statutory provisions have recourse to
equitable principles however fair they may appear to be at first sight."
42. In Raja Ram Mahadev Paranjype & Others V. Aba Maruti Mali &
Others[16], a three-Judge Bench has opined that
"equity does not operate to annul a statute. This appears to us to be well
established but we may refer to While and Tudor's Leading cases in Equity
(9th ed. P. 238), where it is stated:
Although, in cases of contract between parties, equity will often relieve
against penalties and forfeitures, where compensation can be granted,
relief can never be given against the provisions of a statute."
43. In P.M. Latha and Anr. V. State of Kerala and Ors.[17], it has been
opined:
"Equity and law are twin brothers and law should be applied and interpreted
equitably but equity cannot override written or settled law........"
44. In Raghunath Raj Bareja and Anr. V. Punjab National Bank and
Ors.[18], the Court observed that it is well settled that when there is a
conflict between law and equity, it is the law which has to prevail. The
Court further ruled that equity can supplement the law, but it cannot
supplant or override it. In this context, reliance was also placed upon
Madamanchi Ramappa v. Muthaluru Bojjappa[19], Laxminarayan R. Bhattad v.
State of Maharashtra[20], Nasiruddin v. Sita Ram Agarwal[21], E. Palanisamy
v. Palanisamy[22], India House v. Kishan N. Lalwani[23].
45. In the case at hand, as we have concluded that it is the Corporation
who has the authority to deal with the bus shelters and not MTCL, the
equity has to yield to law. It is submitted by the learned counsel for the
appellants that they have spent huge amount in erecting the structures and
also doing certain ancillary things in that regard and, therefore,
appropriate extension should be granted. Such a prayer, needless to say,
is in the realm of equity. It cannot be granted as that will violate the
law. The contract between the MTCL and the appellants cannot bind the
Corporation. Had there been an irregularity in the contract or any lapse,
then the question of invoking the principle of equity could have arisen but
as it is perceptible, it is an agreement between two parties in respect of
an act, which one of the parties is not entitled to enter into as it has no
legal authority.
46. That apart, while dealing with the issue of equity, we are obliged to
deal with the conduct of the parties. The High Court had decided the writ
petition in favour of the Corporation. The MTCL was very much aware that
it has no authority to enter into any kind of contract for bus shelters as
it was within the domain of the Corporation. This Court, at no point of
time, had stayed the operation of the judgment passed by the High Court.
The only order that was passed on 19.1.2007 was to the effect that until
further orders, no action shall be taken in relation to bus shelters
allotted to the petitioners subject to payment of all licence fee. Be it
stated, an application was filed seeking clarification of the order dated
19.01.2007. On 10.3.2008, the Court passed the order that the applications
for clarification and directions shall be considered along with the special
leave petition. After the said order, the memo was filed, which has
already been reproduced. What is disturbing is that the MTCL entered into a
compromise/ settlement with the appellants and on the basis of the
compromise entered into an agreement. In the agreement, as we notice,
there is a reference to this Court's order describing that in pursuance of
the order passed by this Court, the agreement was entered into. This Court
had never passed any order/direction in that regard. The Court had
disposed of the matter on the basis of the compromise. There was no
decision by this Court. In such a situation, when the parties entered into
an agreement and knowing fully well that the decision of the High Court was
still staring at them, which cannot be countenanced.
47. The claim of equity has also to be adjudged on the bedrock of truth.
In Dalip Singh V. State of Uttar Pradesh and Others[24], the Court has
observed thus:
"...... Truth constituted an integral part of the justice-delivery system
which was in vogue in the pre-Independence era and the people used to feel
proud to tell truth in the courts irrespective of the consequences.
However, post-Independence period has seen drastic changes in our value
system. The materialism has overshadowed the old ethos and the quest for
personal gain has become so intense that those involved in litigation do
not hesitate to take shelter of falsehood, misrepresentation and
suppression of facts in the court proceedings.
In the last 40 years, a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for truth. They shamelessly
resort to falsehood and unethical means for achieving their goals. In order
to [pic]meet the challenge posed by this new creed of litigants, the courts
have, from time to time, evolved new rules and it is now well established
that a litigant, who attempts to pollute the stream of justice or who
touches the pure fountain of justice with tainted hands, is not entitled to
any relief, interim or final".
48. In Amar Singh V. Union of India and others[25], a two-Judge Bench has
laid down:
"Courts have, over the centuries, frowned upon litigants who, with intent
to deceive and mislead the courts, initiated proceedings without full
disclosure of facts. Courts held that such litigants have come with
"unclean hands" and are not entitled to be heard on the merits of their
case."
In the said case, it is also stated that it is one of the fundamental
principles of jurisprudence that litigants must observe total clarity and
candour in their pleadings.
49. In the instant case, the appellants entered into a
compromise/settlement with the MTCL. They were fully aware of the fact
that as per the High Court judgment, MTCL did not have the authority. On
the basis of the judgment of the High Court, such a settlement could not
have been entered into. Despite the same, a settlement was entered and the
cases were disposed of.
50. It is clear as a noon day that the MTCL, a wing of State Transport
Department transgressed its powers, and we are inclined to think
deliberately. In this context, a passage from Westminster Corporation V.
London & North Western Railway[26], as has been reproduced in State of
Bihar V. Kameshwar Singh[27], is apposite to quote:
"It is well settled that a public body invested with statutory powers such
as those conferred upon the corporation must take care not to exceed or
abuse its powers. It must keep within the limits of the authority
committed to it. It must act in good faith. And it must act reasonably.
The last proposition is involved in the second, if not in the first."
51. We have referred to the aforesaid authorities for the proposition
that the MTCL, which is an undertaking of State Transport Department that
has been granted some benefit under the Act, knowing fully well that it has
no authority to enter into a settlement, has entered into an agreement in
respect of bus shelters after the judgment of the High Court of Madras,
consciously it proceeded to do so and, in fact, did enter into an
agreement. It would have been appropriate on its part from all spectrums
to remain within its bounds. It failed to do so. When a power had not
been conferred on MTCL to do so and it exercises that power under the cloak
of a power conferred, it really paved the path of deviance. The appellants
could not have legitimately entered into a settlement with the MTCL. It
could not have entered into an agreement with the State undertaking. This
was a clear deceit on the part of the appellants in collusion with the MTCL
to frustrate the legal rights of the Corporation. It is a deception
intended to get an advantage. It is another matter that the Corporation
did not wake up to save its own interest. The writ petitioner, for his own
individual interest, made a prayer to recall of the order and thereafter,
as we find, the Corporation has woken from slumber. Be that as it may, it
was a loss to the Corporation and the Corporation is a public body and it
is expected to protect and handle its finances for the benefit of the
persons who are covered under the Act. The conduct of the appellants, from
any angle, is absolutely depreciable.
52. Another aspect to be taken note of. The agreement has been entered
into by the appellants with the MTCL for a period of 12 years. Despite the
direction of the High Court that the Commissioner of Corporation of Chennai
shall call for tenders from intending sponsors. True it is, the High Court
has passed certain orders relating to interim arrangement but that was
solely for the purpose of protecting the interest of the commuters. A
public authority like the Corporation is not supposed to enter into this
kind of private negotiations without calling for a tender, especially while
entering into a contract for the purpose of providing bus shelters. It is
well settled in law that wherever a contract is to be awarded or a licence
is sought to be given, it is obligatory on the part of the public authority
to adopt a transparent and fair method. It serves two purposes, namely,
participation of all eligible competitors and giving a fair opportunity to
them and also generating maximum revenue. In this context, we may
profitably refer to a two-Judge Bench in Nagar Nigam, Meerut V. Al Faheem
Meat Exports (P) Ltd. & Others[28], wherein it has been held as follows:
"The law is well settled that contracts by the State, its corporations,
instrumentalities and agencies must be normally granted through public
auction/public tender by inviting tenders from eligible persons and the
notification of the public auction or inviting tenders should be advertised
in well-known dailies having wide circulation in the locality with all
relevant details such as date, time and place of auction, subject-matter of
auction, technical specifications, estimated cost, earnest money deposit,
etc. The award of government contracts through public auction/public tender
is to ensure transparency in the public procurement, to maximise economy
and efficiency in government procurement, to promote healthy competition
among the tenderers, to provide for fair and equitable treatment of all
tenderers, and to eliminate irregularities, interference and corrupt
practices by the authorities concerned. This is required by Article 14 of
the Constitution......"
53. Needless to say, there can be a situation for good reasons a contract
may be granted by private negotiation but that has to be in a very
exceptional circumstance, for in the absence of transparency the public
confidence is not only shaken but shattered. In the case at hand, as the
contract has been entered by way of some kind of understanding reason of
which is quite unfathomable, such a contract has to be treated as vitiated,
applying this principle also.
54. From the aforesaid analysis, it is luculent that there was a deceit
practiced by the appellants in collusion with MTCL and the authorities of
the MTCL had acted with full knowledge against the statute and against the
interest of the Corporation. The beneficiaries are the appellants. As far
as the MTCL functionaries are concerned, we do not intend to say anything
as we have been apprised by Mr. Subramonium Prasad, learned AAG for the
State of Tamil Nadu that certain proceedings are pending against the
functionaries of the MTCL. We will be failing in our duty if we do not
take note of the fact that the Corporation should have been vigilant to
protect its own interests. However, as is perceived, it did not wake up
for long. The State remained a silent spectator to all that was going on.
Under these circumstances, prayer has been made on behalf of the appellants
to show equity and allow them to continue at least for two years. Needless
to emphasise, it has been canvassed as an alternative submission. The said
alternative submission does not deserve consideration. To think of
acceptation of such a submission, we will be adding a premium to the
appellants who have crucified the law and played possum of the existence of
the judgment of the High Court and in the ultimate eventuate designed the
plan to have the benefit of 12 years; 'a yuga' for availing illegal
benefit', which is impermissible and belongs to the Corporation and
required to be dealt with in accordance with law. The whole action, as we
perceive, is a fiscal pollution. It is, if we allow ourselves to say so,
an acid rain on finance that can really crumble and collapse the financial
health of the Corporation, which, in a democracy, is impermissible. It
compels us to say that the skillfully designed scheme has the potentiality
to bring in ruination in an orderly society governed by law; as if the
appellants are determined to treat the proceeding in a court equivalent to
experimentation in a laboratory or an adventure in a garden that has no
boundary.
55. In view of the aforesaid analysis, the contracts entered into by the
appellants with the MTCL cannot be sustained and they are accordingly
annulled. It is directed that the Corporation shall take over the
management of the bus shelters forthwith and shall proceed to deal with
them for all purposes by taking recourse to procedure of tender or auction
which should be fair and transparent. This direction of ours shall prevail
all other directions issued by the High Court.
56. At this juncture, we may note that a submission was canvassed by the
appellants that they have spent huge amount of money in putting the
structures and making certain arrangements. As we have annulled the
contract and their conduct is decryable, the said facet of spending,
whatever may be the extent, is absolutely irrelevant and we so hold.
57. Consequently, the civil appeals arising out of SLP(C) Nos. 276 of
2007 and 852 of 2007 are dismissed and the appellants, namely, M/s. White
Horse Communication, M/s. Aim Associates Ltd., M/s. S.S. International,
M/s. Front Line Media, M/s. Graphite Publicities and M/s. Vaishnavi Images
shall pay a cost of Rs.5 lakhs each to the Corporation within a period of
eight weeks from today. The writ petition and appeal preferred by Mr. A.T.
Mani are disposed of in terms of our order and the order of the High Court
is affirmed to the extent it holds that the Corporation has the authority.
As far as other directions are concerned, they are given for a specified
period and hence, have lost their force and utility. As far as the order
directing calling for tender, we have modified the same direction as per
our direction and the Corporation shall follow the directions which are
stated hereinabove. We expect the Corporation to act in quite promptitude
and become more vigilant, for it protects the collective interest.
........................................J.
[DIPAK MISRA]
.........................................J.
[UDAY UMESH LALIT]
NEW DELHI
DECEMBER 12, 2014.
ITEM NO.1A COURT NO.6 SECTION PIL
(For judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition(s)(Civil) No(s). 223/2009
M/S NOVA ADS Petitioner(s)
VERSUS
METROPOLITAN TANSP.CORP.& ORS. Respondent(s)
WITH
SLP(C) No. 276/2007
SLP(C) No. 852/2007
SLP(C) No. 11880/2009
Date : 12/12/2014 These petitions were called on for
pronouncement of judgment today.
For Petitioner(s) Mr. C.U. Singh, Sr. Adv.
WP(C) 233/09 Mr. B. Raghenth Basant, Adv.
Ms. Liz Mathew, Adv.
Ms. Shruti Iyer, Adv.
SLP(C) 276/07 Mr. V. Giri, Sr. Adv.
Mr. Nikhil Nayyar, Adv.
Mr. Ambuj Agrawal, Adv.
Mr. Dhananjay Baijal, Adv.
Ms. Akanksha, Adv.
Mr. K.S. Natarajan, Adv.
SLP(C) 852/07 Mr. Ravindra Srivastava, Sr. Adv.
Mr. K.S. Natarajan, Adv.
Mr. Nikhil Nayyar, AOR
Mr. Dhananjay Baijal, Adv.
Ms. Akanksha, Adv.
SLP(C)11880/07 Mr. V. Ramasubramanian, AOR
Ms. Shruti Iyer, Adv.
For Respondent(s) Mr. Mukul Rohatgi, A.G.
No.2 in SLP 276/07 Mr. Jayanth Muth Raj, Adv.
(Corpn. Of Mrs. Malavika J., Adv.
Chennai) Mr. Sureshan P., AOR
For R-3 to 8 Mr. C.A. Sundaram, Sr. Adv.
in WP(C) 223/09 Mr. K.S. Natarajan, Adv.
Mr. Nikhil Nayyar, AOR
Mr. Dhananjay Baijal, Adv.
Ms. Akanksha, Adv.
Mr. Subramonium Prasad, Adv.
Mr. B. Balaji, AOR
Mr. R. Rakesh Sharma, Adv.
Ms. R. Shase, Adv.
Mr. Paramveer, Adv.
Mr. Rajiv Dalal, Adv.
Mr. S. Thananjayan, Adv.
Mr. T. Harish Kumar, Adv.
Mr. V. N. Raghupathy, Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the reportable judgment of
the Bench comprising His Lordship and Hon'ble Mr. Justice Uday Umesh Lalit.
Leave granted in all the special leave petitions.
The civil appeals arising out of SLP(C) Nos. 276 of 2007 and 852 of
2007 are dismissed. The writ petition and appeal preferred by Mr. A.T.
Mani are disposed of in terms of the signed reportable judgment.
(R.NATARAJAN) (H.S. PARASHER)
Court Master Court Master
(Signed reportable judgment is placed on the file)
-----------------------
[1] AIR 1921PC 240
[2] (1957) 6 H.L.C. 61
[3] (1981) 4 SCC 173
[4] AIR 1967 SC 1454
[5] (2002) 4 SCC 297
[6] (1846) 6 Moore PC 1
[7] (1990) Supp SCC 785
[8] (1992) SCC (L&S) 248
[9] (1997) 6 SCC 312
[10] (2002) 3 SCC 722
[11] (1987) 3 SCC 279
[12] (1988) 2 SCC 351
[13] (1984) 2 SCC 50
[14] (2000) 5 SCC 451
[15] AIR 1952 SC 47
[16] AIR 1962 SC 753
[17] (2003) 3 SCC 541
[18] (2007) 2 SCC 230
[19] AIR 1963 SC 1633
[20] (2003) 5 SCC 413
[21] (2003) 2 SCC 577
[22] (2003) 1 SCC 123
[23] (2003) 9 SCC 393
[24] (2010) 2 SCC 114
[25] (2011) 7 SCC 69
[26] (1905) AC 426
[27] AIR 1952 SC 252
[28] (2006) 13 SCC 382
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