Manoj Kumar Gupta, J. - (1.) The first writ petition (Writ-C No. 35910 of 2017), under Article 226 of the Constitution of India, is filed by one Bundelkhand Advertising Association (for short, 'the Association') and its members, whereas the second writ petition (Writ-C No. 32507 of 2017) is filed by M/s. Anoop Publicity alone, who is also a member of the Association. The prayers made in both the writ petitions and factual matrix against which they are arising are similar. Even the respondents in both the writ petitions are common. Hence both the writ petitions were heard together and are being disposed of by this common judgment. 1.1In the first writ petition, initially the petitioners had challenged the order dated 27th July 2017, whereby their applications seeking renewal of permissions for displaying advertisements for the years 2016-17 and 2017-18 made under the provisions of the U.P. Municipal Corporation Act, 1959 (for short, 'the Act') were rejected. The petitioners, by way of an amendment, also raised a challenge to the order dated 20th October 2016 passed by respondent no.8, another order dated 20th October 2016 passed by respondent no. 3/4 and the agreement dated 4th January 2017 executed between the respondent - Nagar Nigam and respondent no.5 - Midas Infra Tech Private Limited. By the order dated 20th October 2016, respondent no.4 Municipal Commissioner, Nagar Nigam, Jhansi (for short 'Municipal Commissioner') decided/allowed the representation made by respondent no.5 dated 10th October 2016 and re-allotted the contract that was cancelled earlier vide order dated 4th August 2016, for two years, commencing from 20th October 2016 to 19th October 2018, by executing an agreement dated 4th January 2017. The challenge raised in the second writ petition is similar. Thus, the petitioners have principally raised challenge to the order of re-allotment dated 20th October 2016 of the contract in favour of respondent no.5 on grounds, to which we propose to make reference after narration of the factual matrix and at an appropriate stage in latter part of the judgment. We may also observe at this stage that if the order dated 20th October 2016 is set aside and the subsequent contract dated 4th January 2017 is cancelled as a consequence thereof, then alone it would be necessary to consider whether the petitioners are, as of right, entitled to seek renewal of the permission to display advertisements.
(2.) The factual matrix, sans unnecessary details, is as follows: the respondent - Nagar Nigam, as usual, for realising the advertisement fee from advertisers, who are engaged in the business of advertisement, and who install hoardings in the territorial limits of the Nagar Nigam, Jhansi, decided to appoint contractors for financial years 2016-17 and 2017-18 and, consequently, issued an advertisement on 13th January 2016, inviting tenders. However, there was no response to the tender notice. In other words nobody came forward to participate in the tender proceedings. Thereafter, two more tender notices dated 12th March 2016 and 27th March 2016 were issued, and to these advertisements also, there was no response and hence, fourth time, making some changes in terms and conditions of the tender notice, an advertisement was published in newspapers on 13th April 2016. In response to this advertisement, respondent no.5 and two more advertising agencies submitted the tender. None of the petitioners participated in the tender process in view of the typical terms and conditions mentioned in the advertisements, including the condition whereby the defaulters were debarred from participating in the tender process. Respondent no.5, being the highest bidder, after negotiations, enhanced the auction amount by 15% and, accordingly, the bid was finalised for an amount of Rs. 1,27,80,000/- for a period of two years. In pursuance thereof, an agreement was entered into between respondent no.5 and the Nagar Nigam on 18th May 2016.
(3.) According to respondent no.5, it could not start the work as per the contract as the Association and its members did not hand over the sites assigned for exhibition of hoardings, and continued to exhibit their advertisements notwithstanding the expiry of the period for which license was granted to them. As a result, the Corporation started facing financial loss, consequently, respondent no.8 proceeded to cancel the contract dated 18th May 2016 vide order dated 4th August 2016. The order of cancellation of the contract dated 4th August 2016 was challenged by respondent no.5 in Writ-C No. 39671 of 2016. The said writ petition was, however, dismissed vide order dated 29th August 2016, which reads thus: "Heard learned counsel for the parties. The writ petition has been filed against the order dated 4.8.2016 cancelling the agreement entered into between the petitioner and the Nagar Nigam, Jhansi. The parties can resort to arbitral proceeding in view of Clause-19 of the agreement. In view of the aforesaid, the writ petition is dismissed with liberty to the petitioner to approach the authority concerned." 3.1In view of the order dated 29th August 2016 passed by this Court, respondent no.5 made a representation dated 10th August 2016 before the Municipal Commissioner for resolution of dispute in terms of Clause 19 of the agreement. The Municipal Commissioner allowed the representation vide order dated 20 October 2016 and, in pursuance thereof, a fresh agreement dated 4 January 2017 was entered into between respondent no.5 and the Nagar Nigam for a period of two years, commencing from 20th October 2016 to 19th October 2018. This agreement was for 588 hoardings at 14 specified locations/ places. It is this order of the Municipal Commissioner dated 20th October 2016 and the agreement dated 4th January 2017 which are under challenge in both the writ petitions.;