W.P.(C) No. 19563 of 2016. Case: Enkon Pvt. Ltd. Vs Bhubaneswar Smart City Ltd. and Ors.. High Court of Orissa (India)

Case NumberW.P.(C) No. 19563 of 2016
CounselFor Appellant: Gautam Mukherji, A.C. Panda, S.D. Panda, S.D. Ray and M. Agarwa, Advocates and For Respondents: S. Mohanty, Sr. Advocate and R.R. Swain, Advocate
JudgesVineet Saran, C.J. and Dr. B.R. Sarangi, J.
IssueConstitution of India - Article 226; Orissa Urban Police Act, 2003 - Sections 16, 18, 2, 28, 28(1)(iv), 3(b), 4
Judgement DateFebruary 07, 2017
CourtHigh Court of Orissa (India)


Dr. B.R. Sarangi, J.

1. M/s. ENKON Private Limited, which is a company incorporated and registered under the Companies Act, 1956, has filed this application seeking for direction to the opposite parties not to re-allot the sites, already allotted to the petitioner under Annexure-2, 3 and 4 series, to any third party till completion of the term of the contract under Annexure-2, and further not to proceed with the Request For Proposal (RFP) dated 28.10.2016 in Annexure-9.

2. The factual matrix of the case is that the petitioner company deals in establishing and operating traffic signals as well as advertisements by way of glow signs on the traffic signal posts. It has its operations in several parts of the country and has been running arrangements for establishment and operation of traffic signals. A Memorandum of Understanding (MOU) was executed on 23.12.2008 vide Annexure-2 between the petitioner and the Commissionerate of Police-opposite party No. 4 for erection of traffic signals at 11 places in the township of Bhubaneswar. The said places are set out in Annexure-A to the MOU.

3. Consequentially, the petitioner undertook the construction, operation and maintenance of the traffic signals at all the 11 places for a period of 10 years, i.e., from 2008 to 2018. In lieu thereof, it was given the exclusive rights to display advertisement on the poles of the traffic signals to cover up the cost of installation and maintenance. For carrying out such function, the petitioner invested a huge amount, which it has decided to recover by giving advertisement rights over a period of 10 years. As such, on the basis of Public Private Partnership (PPP) mode, when the petitioner invested a substantial amount, an amount of Rs. 5,00,650.00 was collected from it by Bhubaneswar Municipal Corporation in the shape of tax on advertisement, and the petitioner also deposited a sum of Rs. 4,20,000.00 as per the direction of the Commissionerate of Police with the Indian Red Cross Society, Regional Branch, Police Commissionerate, Bhubaneswar. Due certificate was also granted by the Bhubaneswar Municipal Corporation for the years 2010-2013 with regard to successful installation, maintenance and operation of the traffic signals of the 12 areas allotted to it (11 areas earlier granted and subsequently one area at A.G. Square).

4. While it was so continuing, Expression of Interest (EOI) was floated by the Bhubaneswar Municipal Corporation vide EOI No. 24190 dated 25.11.2013 to construct traffic signals in various parts of the city, and upgrade the existing traffic signals with intelligent video surveillance system, those also include 12 sites, which were allotted in favour of the petitioner. The petitioner approached this Court by filing W.P.(C) No. 390 of 2014 stating that, when the MOU between the parties is subsisting, without terminating the same, the Bhubaneswar Municipal Corporation could not have issued such EOI. While entertaining such writ application, this Court passed an interim order on 29.01.2014 to the extent that the Bhubaneswar Municipal Corporation may proceed with tender, but will not finalize the tender work in respect of 11 locations covered by the agreement with the petitioner. Finally, by order dated 02.05.2014, this Court disposed of the said writ application in view of the joint memo filed by the petitioner and the Bhubaneswar Municipal Corporation.

5. Thereafter, opposite party No. 1 issued a Request for Proposal (RFP) vide reference No. BSCL-28/2016/49 dated 20.06.2016 for "supply, installation, testing, commissioning of traffic signaling system, blinkers and pelican signals at selected road junctions and locations with solar powered adaptive system in Bhubaneswar City and subsequent maintenance for 6 years post-defect liability period of one year". The RFP also intends to re-allot the 12 sites of the petitioner once again. Thereby, the petitioner again challenged the same before this Court in W.P.(C) No. 11141 of 2016 and this Court, while issuing notice on 04.07.2016 to the opposite parties, directed to list the matter on 12.07.2016. Vide interim order dated 04.08.2016, this Court recorded the contention of learned counsel for the Bhubaneswar Smart City Ltd. that the last date of application for RFP will be extended for a month, and the matter be listed thereafter. Ultimately, the tender was called off and, as a result, the writ petition also became in-fructuous and was withdrawn on 19.10.2016.

6. For the self same purpose, once again a Request For Proposal was issued on 28.10.2016 vide Annexure-9, which also included 12 sites of the petitioner, by superseding the conditions stipulated in MOU (Annexure-2) and consequential "no objection" was granted in Annexure-3. Thereby, the petitioner claims that, when there is subsistence of MOU between the parties in Annexure-2 on the basis of the NOC granted under Annexure-3, no RFP could have been issued, in respect of very same work, in Annexure-9. Hence, this application.

7. Mr. Gautam Mukherji, learned counsel for the petitioner strenuously urged that in view of the conditions stipulated in MOU (Annexure-2) executed between the petitioner and the Commissionerate of Police, the period of 10 years will expire in the year 2018. During subsistence of such period, the authority could not have issued the RFP under Annexure-9 including 12 traffic posts of the petitioner, which is violative of the conditions stipulated in the MOU (Annexure-2). It is further urged that the Commissionerate of Police acquired a right to frame regulations for licensing, controlling or prohibiting the erection, exhibition, fixation, or retention of any sign, device or representation for the purpose of advertisement in view of the provisions contained under Section 28(1)(iv) of the "Orissa Urban Police Act, 2003". As such, in exercise of such power, on 12.12.2008 a regulation has been framed, known as, "Bhubaneswar-Cuttack Police Commissionerate (Traffic and Public Order) Regulation, 2008". In view of such power, since the MOU has been executed between the petitioner and the Commissionerate of Police and on that basis the petitioner has started functioning and is continuing till today, before expiry of its period, which will come to an end in the year 2018, any action taken cannot sustain in the eye of law.

It is further contended that after commencement of the Orissa Urban Police Act, 2003, the Commissionerate of Police or the Municipal Corporation has right to grant permission or licence for installation of traffic posts. The Commissionerate of Police, in view of such power, having entered into an MOU, on which the petitioner has already acted upon, now it is estopped to change such condition and, as such, the entire action is hit by principle of estoppel.

It is also urged that power being vested with Commissionerate of Police, Bhubaneswar Smart City Ltd. has no power to...

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