M/S Mmp Water Sports Pvt. Ltd vs Chhattisgarh Tourism Board
2022 Latest Caselaw 3499 Chatt

                                     1



                                                                        AFR
              HIGH COURT OF CHHATTISGARH, BILASPUR

                           WPC No. 1844 of 2020

M/S MMP Water Sports Pvt Ltd, through Mr. B. Vijay Kumar authorized

Representative, aged-40 years, R/o Buddha Talab Main Gate, Mahamay

WArd, Swami Vivekanand Sarovar, Chhattisgarh.


                                                               ---- Petitioner

                                     Versus

1. Chhattisgarh Tourism Board, through Managing Directore, 2 nd Floor,

Udyog Bhawarn, Ring Road No.1, Telibandha, Raipur - 492006, C.G.


2. Raipur Municipal Corporation, through Commissioner Nagar Nigam Head

Office, Near Mahila Police Thana, Gandhi Udyog, Raipur, C.G.


3. Raipur Smart City Limited through Managing Director Ground Floor

Chhatrapati Shivajee Maharaj Outdoor Stadium Campus, In front of Buddha

Talab, Raipur, Chhattisgarh.


                                                          ---- Respondents

along with

WPC No. 2479 of 2020

M/S MMP Water Sports Pvt Ltd, through Mr. B. Vijay Kumar authorized

Representative, aged-40 years, R/o Buddha Talab Main Gate, Mahamaya

Ward, Swami Vivekanand Sarovar, Raipur, Chhattisgarh.

---- Petitioner

Versus

1. Chhattisgarh Tourism Board, through Managing Directore, 2 nd Floor,

Udyog Bhawarn, Ring Road No.1, Telibandha, Raipur - 492006, C.G.

2. Raipur Municipal Corporation, through Commissioner Nagar Nigam Head

Office, near Mahila Police Thana, Gandhi Udyog, Raipur, C.G.

3. Raipur Smart City Limited through Managing Director Ground Floor

Chhatrapati Shivajee Maharaj Outdoor Stadium Campus, In front of Buddha

Talab, Raipur, Chhattisgarh.

---- Respondents

(Cause-title taken from Case Information System)

For Petitioner : Mr. Kishore Bhaduri, senior counsel assisted by Mr. Siddharth Shukla, Advocate.

For Respondent No. 1 : Mr. Ashish Shrivastava, senior counsel assisted by Mr. Aman Pandey, Advocate.

For Respondent No. 2 : Mr. Anumeh Shrivastava, Advocate.

For Respondent No. 3 : Mr. Animesh Tiwari, Advocate.

Date of Hearing : 07.04.2022

Date of Judgment : 12.05.2022

Hon'ble Mr. Arup Kumar Goswami, Chief Justice

Hon'ble Mr. Gautam Chourdiya, Judge

C.A.V. Judgment

Per Arup Kumar Goswami, Chief Justice

WPC No. 1844 of 2020 and WPC No. 2479 of 2020 are filed by

the same petitioner against the same respondents and the subject matter

in both the writ petitions are substantially same. In WPC No. 2479 of 2020,

cause of action that had accrued subsequent to the filing of WPC No. 1844

of 2020 are incorporated.

2. These two petitions have been listed together and, accordingly,

both the writ petitions are disposed of by this common order.

3. The facts of the case as pleaded by the writ petitioner in WPC

No.1844 of 2020, inter alia, are that the petitioner is a marine specialist

company dealing with ports and marine infrastructure, ship building and

ship repair, water front developments including floating marinas, water

sports facilities and water activities with experience of 21 years.

4. Respondent No. 1 had issued an Expression of Interest dated

06.12.2015 "for setting up, development, management and operation

'integrated leisure destination' and its peripheral area situated at Swami

Vivekanand Sarovar (Budha Talab), Raipur, Chhattisgarh, (herein after

referred to as 'licensed premises')".

5. On being declared as a successful bidder, a License Agreement

dated 25.10.2016 was executed between the petitioner and respondent

No.1. The activities covered under the planned scope of licensed premises

included jetty with jet boats, floating party boat, water sports, adventure

and amusement activities, etc. The petitioner is to invest a sum of Rs. 12

crores in the project and that petitioner had already invested an amount of

Rs. 5 crores. The project was to be operationalised in phased manner

subject to receipt of permissions/approvals from the concerned authorities

within the time-frame as provided in clause 4. In terms of clause 5, license

period was 30 years from the date of commencement with a right of

renewal for further 30 years.

6. Clause 5.3 provides that a period of eighteen months shall be

given to furnish and develop the recreational facilities as per Phase-I

(subject to delivery of deliverables) in order to start the Commercial

Operations and that date after eighteen months of signing the License

Agreement is termed as 'Commercial Operation Date' (COD).

7. After execution of the License Agreement, the petitioner, by an

e-mail dated 23.11.2016 and letter dated 24.11.2016, requested the

respondent No. 1 for commencing execution of the deliverables as per

clause 2B of License Agreement which included parking provisions,

lighting, power load, water connection, cleaning of water, sewerage

connection, etc. It had also submitted vide letter dated 27.04.2017 the final

site plan for the Swami Vivekanand Sarovar (Budha Talab) with the

respondent No. 1 for approval for development of an integrated leisure

destination, and for approval of the Building Plan and Development Plant

of the License Area (Premises) in line with the terms of the License

Agreement.

8. By a letter dated 19.06.2017, the respondent No.1 had granted

partial approval for undertaking cleaning of the licensed premises,

beautification of the pier and for starting the water sports and fountain

under the supervision of respondent No. 3 and consultant. It was informed

that approvals for balance work would be communicated to the petitioner

later on.

9. Subsequently, the lease agreement was amended on 25.10.2017

to give effect to incorporation of Special Purpose Vehicle (SPV) for the

execution of the project as required under clause 9.42 of the License

Agreement. This amendment was executed in terms of clause 9.44. The

amendment, amongst others, replaced "Modern Maintenance Products

(India) Private limited" with whom respondent No. 1 had executed the

contract dated 25.10.2016 by "MMP Water Sports Private Limited" in the

License Agreement, which is the petitioner in the two writ petitions.

10. A Resolution dated 05.08.2017 was passed in a meeting of Mayor-

in-Council, approving the selection of the petitioner under Public-Private

Partnership (PPP) mode for the project on the condition that no permanent

construction would be undertaken and that the area of lake will not be

reduced.

11. The Resolution was communicated to the petitioner by the

respondent No. 1 vide letter dated 23.11.2017 and the petitioner was

further directed to start the commercial operations in the light of letter

dated 05.08.2017. The respondent No. 1 had also sent a letter dated

23.11.2017 to the respondent No. 2 requesting them to approve and send

the signed copy of the final site plan submitted by the petitioner, so that the

petitioner can undertake the development activities in accordance with site

plan.

12. After receiving necessary approvals and consents from the State

Environment Impact Assessment Authority (SEIAA) and the Chhattisgarh

Conservation Board, the petitioner had commenced the commercial

operations on 19.10.2018 to the extent the same was allowed under letter

dated 05.08.2017.

13. By letter dated 11.12.2018, the petitioner requested the

respondent No. 1 to provide the copy of the approved site plan so that

development work can be undertaken in accordance with the same.

14. It is pleaded that the petitioner had started commercial operations

in the month of October, 2018 and carried out development work in the

peripheral areas such as entrance plaza and proper railing, boating jetty,

viewing deck and gazebo, island pathway beautification and cleaning

peddle and pontoon boats etc., but in absence of approved site plan,

project development had come to a stand still. In such circumstances,

letter dated 27.06.2019 was issued to respondent No. 1 to expedite

approval of site plan. The said letter was followed by letters dated

10.01.2020 and 15.06.2020 indicating that development works were

undertaken in absence of approved site plan to the extent permitted and

that the respondents No. 2 and 3 had demolised the Solar Power Building

area and equipment without informing the petitioner although the same

were transferred in favour of the petitioner. With the onset of Covid-19

pandemic, the petitioner had invoked clause 19 of the License Agreement

and had suspended the operations and the same was communicated by

letter dated 30.03.2020 and an e-mail dated 12.05.2020. However,

arbitrarily and illegally the respondent No. 3 had a issued Notice Inviting

Tender No. 309/RSPL/2020 and Request of Proposal dated 07.08.2020 for

"selection of an agency for procurement and other accessories, operation

of boats and provide maintenance services at Swami Viveknand Sarovar

(Budha Talab), Raipur, Chhattisgarh" for a period of three years, indicating

therein that the last date of filing tender is 20.08.2020.

15. Though no order of termination had been served upon the

petitioner by the respondent No.1, it was circulated in the newspapers that

the petitioner's License Agreement had been cancelled.

16. It is in the background of the above factual matrix, WPC No. 1844

of 2020 was filed praying for setting aside and quashing the NIT No.

309/RSPL/2020 and Request for Proposal dated 07.08.2020 and for a

direction to respondent No.1 to provide the approved site plan to the

petitioner along with other deliverables.

17. Noticing that despite service of notice, there is no representation

on behalf of respondent No.3 and that other respondents had also not filed

responses, by an order dated 11.01.2021, this Court in WPC No. 1844 of

2020 and WPC No. 2479 of 2020 had passed an interim order of status

quo as on that date.

18. WPC No. 2479 of 2020 was filed with the same factual matrix as

presented in WPC No. 1844 of 2020. In addition, it is stated that after

issuance of notice in WPC No. 1844 of 2020 by this Court on 19.08.2020,

the respondent No.1 had terminated the License Agreement dated

25.10.2016 and amendment to License Agreement dated 08.05.2017 by

notice of termination dated 05.09.2020 by invoking clause 19 of the

Contract Agreement and immediately thereafter, the respondent No.3 had

issued a Notice Inviting Tender No.323/RSCL/2020 and Request for

Proposal for "Design, Supply, Installation, Testing and Commissioning of

Musical Fountain at Swami Vivekanand Sarovar (Budha Talab), Raipur,

Chhattisgarh including operation and maintenance of 5 years on

08.09.2020. Accordingly, prayer was made to set aside and quash the

notice of termination dated 05.09.2020 and License Agreement dated

25.10.2017 as well as to set aside and quash Notice Inviting Tender No.

323/RSCL/2020 and Request for Proposal dated 08.09.2020, issued by

respondent No.3.

19. In WPC No.1844 of 2020, no affidavit was filed by respondent

No.1. The respondent No. 2 had filed an affidavit stating that it is a formal

party. In the affidavit filed by respondent No.3, it is stated that an order

dated 30.05.2020 was issued wherein it was indicated that no Resolution

was passed in General Council Meeting of Raipur Municipal Corporation

prior to issuance of license to the petitioner and that due procedure of

floating of tender had not been followed by respondent No.1 and that on

the basis of the said letter dated 30.05.2020, License Agreement of the

petitioner was terminated by the respondent No.1. It is also stated that the

respondent No.3 is working under a project called "renovation and

beautification works of Swami Vivekanand Sarovar and garden, Raipur.

20. The Raipur Municipal Corporation had accorded approval for

constitution of Raipur Smart City Limited to be undertaken on the property

of Municipal Corporation, Raipur and that Budha Talab development

project has been approved under the Raipur Smart City mission by the

Raipur Municipal Corporation, after termination of License Agreement

dated 25.10.2016. It is on the basis thereof, NIT dated 07.08.2020 was

issued, which, however, came to be cancelled because of technical issues

and subsequently, again on 11.11.2020, notice was issued for the same

work. It is stated that no sanction order had been issued to anyone.

21. In WPC No.2479 of 2020 also, the respondent No. 2 had taken the

stand that it is a formal party to the proceedings.

22. Respondent No.1, in its response at paragraph 4 stated that the

respondent No.2, vide decision of Mayor-in-Council dated 05.08.2017 and

the decision of General Council Meeting dated 15/12/2017 approved the

selection of the petitioner for development purposes of Swami Vivekanand

Sarovar (Budha Talab), Raipur under PPP mode on the condition that no

permanent construction would be undertaken and the area of lake will not

be reduced. It is stated that concerned department of the State

Government had constituted a three-member enquiry committee for the

purpose of development of convenient operation for the selection of

agency for procurement and other accessories, operation etc. and had

submitted a Report dated 30.10.2019, based on which Department of

Urban Administration & Development, recommended cancellation of

tripartite agreement executed in respect of Budha Talab garden to the

Department of Tourism and based on the same, the Department of Tourism

issued a letter dated 26.06.2020 instructing the respondent No.1 to take

appropriate action with regard to cancellation and accordingly, the

respondent No.1 issued notice of termination dated 05.09.2020 and

therefore, the respondent No.3 had issued fresh NIT dated 08.09.2020.

23. An additional affidavit was filed by respondent No.1 on 25.10.2021

in terms of an order dated 22.10.2021 with regard to the order of

termination of Agreement of the petitioner.

24. The respondent No. 3, while reiterating the stand taken in the

response filed in WPC No.1844 of 2020, further stated that in connection

with the tender of musical fountain at Swami Vivekanand Sarovar, work

order was issued on 15.10.2020 in favour of the L1 bidder and first

payment to the tune of Rs.157.50 lakhs was released on 20.10.2020 and

thereafter, second payment of Rs.78.75 lakhs had been released and that

90% work of the musical fountain has already been completed.

25. Mr. Kishore Bhaduri, learned senior counsel for the petitioner

makes pointed submission to the effect that during the subsistence of the

contract agreement between the petitioner and the respondent No.1,

respondent No.3 could not have issued the NIT and Request of Proposal

dated 07.08.2020, which according to the respondent No.3 had now been

cancelled and now another fresh tender for the same work by NIT dated

11.11.2020 has been issued.

26. It is submitted that though the impugned notice of termination had

been issued invoking clause 19 of the License Agreement, the condition

precedent for invoking clause 19 being absent, the impugned notice of

termination agreement is arbitrary, illegal and cannot be sustained in law.

27. It is submitted that the respondents No. 1 and 2, for extraneous

consideration in order to grant undue benefit to respondent No.3 had

terminated the Contract Agreement of the petitioner after almost four years

of execution of the same. He has submitted that in the attending facts and

circumstance, this Court may issue a writ of mandamus to respondent

No.1 to provide the approved site plan, at the earliest.

28. Mr. Ashish Shrivastava, learned senior counsel, appearing for

respondent No. 1, submits that the writ petitions are not maintainable in

view of the arbitration clause in the Contract Agreement dated 25.10.2016.

Relying on an additional affidavit dated 25.10.2021, it is submitted by him

that for invoking clause 19, no reasons are required to be cited and the

requirement of 21 days' notice as contemplated under clause 19.1 of the

License Agreement dated 25.10.2016 may not be applicable under the

facts and circumstances of the case.

29. Mr. Animesh Tiwari, learned counsel, appearing for respondent

No.3 submits that the order of termination has been actually issued on the

basis of letter dated 30.05.2020 issued by the Department of Urban

Administration and Development. He further submits that at the time of

filing of the return dated 06.02.2021, 90% of the work of musical fountain

has been completed. However, in view of the interim order dated

11.01.2021, no further work is being undertaken and in the aforesaid

circumstances, he contends that it may not be in the interest of justice to

interfere with the NIT No. 323/RSCL/2020 and Request for Proposal dated

08.09.2020 and the work of musical fountain should be allowed to be

completed by the successful tenderer.

30. Mr. Bhaduri submits that availability of alternative remedy by way

of arbitration is not always a bar for exercising jurisdiction under Article 226

of the Constitution of India. He has submitted that issuance of tender by

respondent No. 3 is intrinsically connected with the termination of contract

of the petitioner and there is no privity of contract between the petitioner

and respondent No.3.

31. It is further submitted that there is also no agreement in between

the petitioner and respondent No.2. Though it has been urged that the writ

petitioner is liable to be relegated to avail alternative remedy, no plea was

taken to that effect by any of the respondents in their responses

32. We have considered the submissions made by the learned

counsel for the parties and have perused the materials on record.

33. Clause 2B of the contract agreement dated 25.10.2016, reads as

follows:

      "2B.      Scope of the Licensor

      2.5       The Licensor shall aid and assist the Licensee for

setting up and operationalizing the premises which includes

assisting in procurement of mandatory Central and State

Government Licenses (which shall include but not limited to

procurement of Environmental Clearance and other allied

licenses/permissions/NOC, MOEF and Ministry of Tourism

Clearance) for operationalizing and running the integrated

Recreation Activities in the licensed premises. All other

sanctions, permissions, no objections, letter of intent,

consent, licenses, clearance, approvals etc. pertaining to the

business activity shall be obtained by the Licensee at his cost

and such document shall be kept effective and in force at all

material times throughout the License period.

2.6 The Licensor shall be responsible for developing the

site area with the essential infrastructure to make the site

accessible to the visiting tourist. This shall include adequate

parking for the employees and the customers of the

Integrated Recreation Centre, last mile connectivity to the

site, drinking water connection, toilets, storage, boat sheds.

Initial and periodic Lake Water Cleaning as required for

optimum operation of Water Activities & other related

infrastructure including transmission lines, sewerage and

water supply lines in the vicinity of project site. The

development of such supporting infrastructure shall be done

in close consultation with the Licensee. The Licensor shall

allocate adequate area to the Licensee for installation of

activities mentioned in Clause 3 here under.

2.7 The Licensor shall assist the Licensee for providing if

any special subsidy / exemptions under the prevailing

Chhattisgarh State Tourism Policy."

34. The Activities covered under the planned scope of project are

following:

"3. Activities covered under the planned scope

3.1 Activities which are covered under the planned scope

of the project are in following:

 Food Kiosks

 Amphitheater

 Jetty with Jet Boats

 Floating Party Boat

 Water Sports

 Adventure, Amusement Activities

 Ferris Wheel Activities

 Kids Play area

 Artisans' Display Area

 Handicraft Outlets

 Retail Outlets

 Flea Market

 Fountain and Laser Light Show

 Exhibition, Events & Banquets Area

3.2 The activities undertaken in the Project may

comprise of but shall not be limited to the above mentioned

activities."

35. It is an admitted position that notice inviting tender and request of

proposal dated 07.08.2020 was issued by respondent No.3.

36. Relevant portion of the notice of termination of license dated

05.09.2020, read as follows:

"12. The scope of the Licensor, inter alia, included aiding

and assisting the licensee in procurement of mandatory

central and State Government Licenses (which shall include

but not limited to procurement of Environmental Clearance

and other allied license/permissions/NOC, MOEF and

Ministry of Tourism Clearance) for operationalizing and

running the integrated Recreation Activities in the licensed

premises. The Licensor is responsible for developing the site

area with the essential infrastructure to make the site

accessible to the visiting tourist. This included adequate

parking for the employees and customers of the integrated

Recreation Centre, last mile connectivity to the site, drinking

water connection, toilet, storage boat sheds, Initial and

Periodic Lake Water Cleaning as required for optimum

operation of Water Activities & other related infrastructure

including transmission lines, sewerage and water supply lines

in the vicinity of project site.

13. In terms of the said License Agreement, the

Deliverables being within the scope of the Licensor, said

Chhattisgarh Tourism Board, and to be delivered by the

Chhattisgarh Tourism Board required procuring the co-

operation and agreement of other independent agencies

including Raipur Nagar Nigam Ltd., and Raipur Smart City

Ltd., and other government agencies and statutory entities.

14. Although over 46 months have elapsed since the

execution of License Agreement dt 25.10.2016, and 39

months have elapsed since the Amendment in favour of SPV

said M/s. MMP Water Sports Pvt Ltd., Mumbai, on

08.05.2017, the Chhattisgarh Tourism Board has not been

able to deliver the deliverables.

15. The Chhattisgarh Tourism Board has appointed a

fact finding committee to investigate the various aspects of

the said ILD Project including jurisdiction of various

authorities / agencies in the matter of processing of the said

ILD Project, and reserves its rights to initiate legal steps as

warranted in the matter.

16. Meanwhile, the said SPV, M/s. MMP Water Sports

Pvt Ltd., Mumbai, has vide their letter dt 15.06.2020, raised

the subject of delay before the Chhattisgarh Tourism Board,

and expressed their grievance on account of said delay

arising out of non approval of the Development Plan, and

requested the Board to look into the matter in the interest of

the ILD Project.

17. In view of the said inordinate delay in delivering the

deliverables due to reasons beyond the control of

Chhattisgarh Tourism Board, the grievance of the non-

approval of the Development Plan cited by the said M/s.

MMP Water Sports Pvt. Ltd., Mumbai, and the request of the

Board to look into the matter in the interest of the ILD Project,

the Chhattisgarh Tourism Board has thought it expedient to

deliberate on the matter in depth and on a priority basis.

Now, THEREFORE, after due deliberations and application of

mind in depth, in view of the said inordinate delay in

delivering the deliverables by Chhattisgarh Tourism Board,

the Chhattisgarh Tourism Board does hereby invoke the

provisions of Clause 19 captioned Force Majeure, and

Clause 19.1 of the said License Agreement dated 25.10.2020

read with Amendment to License Agreement dt 08.05.2017

which reads as follows:

"if at any time, during the continuance of this

contract, the performance in whole or in part, by

either party, of any obligation under this is prevented

or delayed....... Act of State or direction from

Statutory Authority, ..... epidemic, quarantine

restriction ...........provided further that if the

performance in whole or part of any obligation under

this contract is prevented or delayed by reason of

any such event for a period exceeding 90 days

either party may, at his option terminate the

contract...."

In terms of the aforesaid provisions of Clause 19 and 19.1 of

the said License Agreement dated 25.10.2016 read with

Amendment to License Agreement dt 08.05.2017, the

Chhattisgarh Tourism Board, does hereby terminate the said

License Agreement dated 25.10.2016 read with Amendment

to License Agreement dt 08.05.2017.

FURTHER, TAKE NOTICE THAT in view of the aforesaid

Termination of License Agreement dated 25.10.2016 read

with Amendment License Agreement dt. 08.05.2017, you are

hereby directed to comply with the terms of the said License

Agreement dated 25.10.2016 read with Amendment to

Agreement dt 08.05.2017, which shall continue to remain

alive even after the termination of the said License

Agreement dated 25.10.2016 read with Amendment to

License Agreement dt. 08.05.2017.

FURTHER, TAKE NOTE THAT in view of the aforesaid

Termination of the License Agreement dated 25.10.2016 read

with Amendment to License Agreement dt. 08.05.2017, you

are hereby directed to comply with the terms of the said

License Agreement dated 25.10.2016 read with Amendment

to License Amendment dt 08.05.2017, and to vacate the

License Premises and handover peaceful vacant possession

of the licensed premises to the Chhattisgarh Tourism Board

as solemnly affirmed by you in Affidavit being Clause g of

Annexure - I thereto, failing which the Chhattisgarh Tourism

Board shall be at liberty to take remedial / penal action at the

appropriate time as provided for in terms of said License

Agreement dated 25.10.2016 read with Amendment to

License Agreement dt 08.05.2017, and/or as provided under

law.

FURTHER, TAKE NOTICE THAT in terms of Clause 14.3 of

the License Agreement dated 25.10.2016 read with

Amendment to License Agreement dt 08.05.2017, no part of

the License Fee, Security Deposit and Conservancy Charges

is refundable in the event of cancellation / revocation of the

License by the Licensor. Further, in terms of Clause 14.4, the

Licensor will have right to the revoke some/whole part of

Security Deposit furnished by the Licensor in case of non-

obligation of the terms and conditions of the License

Agreement.

FURTHER, TAKE NOTICE THAT in that you have any further

grievance or claims, we drew your kind attention that in terms

of the clauses including clause 1) of Anneuxre - I of the

License Agreement dated 25.10.2016 read with Amendment

to License Agreement dt 08.05.2017, you have solemnly

affirmed that you shall peacefully hand over the vacant

possession of the licensed promises on termination /

cancellation / revocation of license in accordance tih the

instructions issued the Licensor in this regard and seek

resolution of dispute, if any, through financial compensation

only. Accordingly, in case you have any dispute or claims or

grievance of whatsoever nature you may please respond

accordingly to this Notice of Termination, with full details of

your legitimate grievance and claims, and in terms of the

provisions of Clause 20 of the License Agreement dated

25.10.2016 read with Amendment to License Agreement dt

08.05.2017, the Chhattisgarh Tourism Board, shall be

pleased to appoint an Arbitrator to adjudicate upon the same

in terms of the provisions of the Arbitration & conciliation Act,

1996 as amended up to date or re-enacted for an amicable

resolution of your disputes, claims and issues."

37. Clause 19 of the contract agreement reads as follows:

"19. Force-Majeure

19.1 If at any time, during the continuance of this contract,

the performance in whole or in part, by either party, of any

obligation under this is prevented or delayed, by reason of

war, or hostility, acts of the public enemy, civic commotion,

sabotage, Act of State or direction from Statutory Authority,

explosion, epidemic, quarantine restriction, strikes and

lockouts (as are not limited to the establishments and

facilities of the Licensor), fire, floods, natural calamities or any

act of GOD (hereinafter referred to as EVENT), provided

notice of happenings of any such EVENT is given by the

affected party to the other, within 21 Calendar days from the

date of occurrence thereof, neither party shall, by reason of

such event, by entitled to terminate this contract, nor shall

either party have any such claims for damages against the

other, in respect of such non-performance or delay in

performance provided the contract shall be resumed as soon

as practicable, after such EVENT comes to an end or ceases

to exist. Time frame for resuming operation shall be mutually

agreed between the parties, provided further that if the

performance in whole or part of any obligation under this

contract is prevented or delayed by reason of any such event

for a period exceeding 90 days either party may, at his option

terminate the contract except in case partial operation has

been commenced by the Licensee."

38. Clause 19 provides that in the case of events as indicated therein, after

notice of such grievance is given by the affected party to the other within 21

calendar days from the date of occurrence thereof, neither party shall, by

reason of such event be entitled to terminate the contract and neither of the

parties shall have any claim for damages against the other in respect of such

non-performance or delay in performance. However, the contract shall be

resumed as soon as practicable, after such event comes to an end or ceases

to exist. Time-frame for resuming operation is to be mutually agreed between

the parties. It is also provided that if the performance in whole or part of any

obligation under the said contract is prevented or delayed by reason of any

such event for a period of exceeding 90 days, either party may, at his option,

terminate the contract except in case of partial operation has been

commenced by the Licensee.

39. Notice of termination dated 05.09.2020 would go to show that clause 19

of the agreement relating to Force Majeure had been invoked by respondent

No.1 as there was inordinate delay in delivering the deliverables by

respondent No.1 due to reasons beyond the control of respondent No.1. What

are the reasons beyond the control of respondent No. 1 has, however, not

been indicated. In absence of any of the events arising for suspension of the

contract, the respondent No.1 could not have taken recourse to terminate the

contract under Clause 19. It is also to be remembered that partial operation

had been commenced by the Licensee i.e. the writ petitioner and therefore,

even if there is delay exceeding 90 days after Force Majeure event occurs,

Licensor cannot opt to exercise option to terminate the contract.

40. Clause 21 is on the subject of termination / revocation of License.

Clause 21.1 and 21.3 are relevant and are reproduced below:

"21.1 In case of default of any materials of the terms

stipulated herein or breach of any of the terms and conditions

of the License Agreement or any instruction of Licensor in

accordance of this agreement or if any legislation prohibiting

or restricting such terms is imposed or impending, the

Licensor shall be entitled to revoke / cancel / terminate the

License granted under this Agreement, subject to issuance of

1 months' written Notice to the Licensee Intimating the default

and a rectification period of 3 months thereof shall be granted

to the Licensee, post which the Licensor shall review and

examine the default and in case it is not rectified the

Licensor shall terminate the agreement without being liable to

give any further notice to the Licensee. In such an event, the

Licensee will not be entitled to any refund of License Fee or

the Security Deposits. The Licensee undertakes to vacate the

Licensed Premises immediately (in "as was where was"

condition)

21.3 The Licensee may also, without assigning any

reason surrender its License and terminate the License

Agreement after giving one month's prior written notice to the

Licensor, but in such an event the Licensor shall not refund

the License Fee, conservancy charges and the Security

Deposit or any part thereof."

41. When a statutory functionary makes an order based on certain

grounds, its validity must be judged by the reasons so mentioned and cannot

be supplemented by fresh reasons in the shape of affidavit or otherwise.

Otherwise, an order bad in the beginning may get validated by additional

ground later supplemented.

42. In the case of Commissioner of Police, Bombay v. Goverdhan Bhanji ,

reported in AIR 1952 SC 16 , it is observed as follows:

"Public orders, publicly made, in exercise of a statutory

authority cannot be construed in the light of explanation

subsequently given by the officer making the order of what he

meant, or of what was in his mind, or what he intended to do.

Public orders made by public authorities are meant to have

public effects and are intended to affect the acting and

conduct of those to whom they are addressed and must be

construed objectively with reference to the language used in

the order itself."

43. Same view was reiterated in the United Air Travel Services v. Union of

India, reported in (2018) 8 SCC 141.

44. The aforesaid observation was also followed in Opto Circuit India

Limited v. Axis Bank and Others, reported in (2021) 6 SCC 707.

45. Therefore, though a frail attempt was sought to be made in the

response that notice of termination was issued on the basis of letter dated

30.05.2020 issued by Department of Urban Administration and Development

because of certain illegalities as indicated therein, the same cannot be taken

note of.

46. The respondent No. 1 in the response filed in WPC No. 2479 of 2020

had categorically stated that the respondent No.2 Municipal Corporation,

Raipur vide its Mayor-in-council decision dated 05.08.2017 and General

Council Meeting dated "15/112/2017" had approved the selection of the

petitioner for the project subject to certain conditions.

47. Despite such assertion, the respondent No. 2, instead of taking a stand

in the matter, skirted the issue and pleaded that it was only a formal party to

the proceedings.

48. The rule of exclusion of writ jurisdiction because of availability of

alternative remedy is a rule of discretion and not one of compulsion. In an

appropriate case, inspite of availability of alternative remedy by way of

arbitration, the High courts can exercise its jurisdiction. In the case of

Harbanslal Sahnia and Another v. Indian Oil Corporation Ltd and Others ,

reported in (2003) 2 SCC 107, the Hon'ble Court has observed as follows:

"7. So far as the view taken by the High Court that the

remedy by way of recourse to arbitration clause was available

to the appellants and therefore the writ petition filed by the

appellants was liable to be dismissed, suffice it to observe

that the rule of exclusion of writ jurisdiction by availability of

an alternative remedy is a rule of discretion and not one of

compulsion. In an appropriate case in spite of availability of

the alternative remedy, the High Court may still exercise its

writ jurisdiction in at least three contingencies: (i) where the

writ petition seeks enforcement of any of the Fundamental

Rights; (ii) where there is failure of principles of natural justice

or, (iii) where the orders or proceedings are wholly without

jurisdiction or the vires of an Act and is challenged [See

Whirlpool Corporation v. Registrar of Trade Marks, Mumbai

and Ors., (1998) 8 SCC 11. The present case attracts

applicability of first two contingencies. Moreover, as noted,

the petitioners' dealership, which is their bread and butter

came to be terminated for an irrelevant and non-existent

cause. In such circumstances, we feel that the appellants

should have been allowed relief by the High Court itself

instead of driving them to the need of initiating arbitration

proceedings."

49. In case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai

and Others, reported in (1998) 8 SCC 1, the Hon'ble Supreme Court made

the following observations in paragraphs 14 and 15:

"14. The power to issue prerogative writs under Article

226 of the Constitution is plenary in nature and is not limited

by any other provision of the Constitution. This power can be

exercised by the High Court not only for issuing writs in the

nature of habeas corpus, mandamus, prohibition, quo

warranto and certiorari for the enforcement of any of the

Fundamental Rights contained in Part III of the Constitution

but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court,

having regard to the facts of the case, has a discretion to

entertain or not to entertain a writ petition. But the High Court

has imposed upon itself certain restrictions one of which is

that if an effective and efficacious remedy is available, the

High Court would not normally exercise its jurisdiction. But

the alternative remedy has been consistently held by this

Court not to operate as a bar in at least three contingencies,

namely, where the writ petition has been filed for the

enforcement of any of the Fundamental Rights or where there

has been a violation of the principle of natural justice or

where the order or proceedings are wholly without jurisdiction

or the vires of an Act is challenged. There is a plethora of

case-law on this point but to cut down this circle of forensic

whirlpool, we would rely on some old decisions of the

evolutionary era of the constitutional law as they still hold the

field."

50. In Radha Krishnan Industries v. State of Himachal Pradesh and

Others, reported in (2021) 6 SCC 771, it is observed as follows:

"27. The principles of law which emerge are that:

27.1 The power under Article 226 of the Constitution to issue

writs can be exercised not only for the enforcement of

fundamental rights, but for any other purpose as well.

27.2 The High Court has the discretion not to entertain a writ

petition. One of the restrictions placed on the power of the

High Court is where an effective alternate remedy is available

to the aggrieved person.

27.3 Exceptions to the rule of alternate remedy arise where

(a) the writ petition has been filed for the enforcement of a

fundamental right protected by Part III of the Constitution; (b)

there has been a violation of the principles of natural justice;

(c) the order or proceedings are wholly without jurisdiction; or

(d) the vires of a legislation is challenged.

27.4 An alternate remedy by itself does not divest the High

Court of its powers under Article 226 of the Constitution in an

appropriate case though ordinarily, a writ petition should not

be entertained when an efficacious alternate remedy is

provided by law;

27.5 When a right is created by a statute, which itself

prescribes the remedy or procedure for enforcing the right or

liability, resort must be had to that particular statutory remedy

before invoking the discretionary remedy under Article 226 of

the Constitution. This rule of exhaustion of statutory remedies

is a rule of policy, convenience and discretion.

27.6 In cases where there are disputed questions of fact, the

High Court may decide to decline jurisdiction in a writ petition.

However, if the High Court is objectively of the view that the

nature of the controversy requires the exercise of its writ

jurisdiction, such a view would not readily be interfered with."

51. In case of Uttar Pradesh Power Transmission Corporation Limited and

Another v. CG Power and Industrial Solutions Limited and Another , reported in

(2021) 6 SCC 15, the observations made in paragraphs 66 to 68 are as

follows:

"66. Even though there is an arbitration clause, the petitioner

herein has not opposed the writ petition on the ground of

existence of an arbitration clause. There is no whisper of any

arbitration agreement in the Counter Affidavit filed by

UPPTCL to the writ petition in the High Court. In any case,

the existence of an arbitration clause does not debar the

court from entertaining a writ petition.

67. It is well settled that availability of an alternative remedy

does not prohibit the High Court from entertaining a writ

petition in an appropriate case. The High Court may entertain

a writ petition, notwithstanding the availability of an

alternative remedy, particularly (1) where the writ petition

seeks enforcement of a fundamental right; (ii) where there is

failure of principles of natural justice or (iii) where the

impugned orders or proceedings are wholly without

jurisdiction or (iv) the vires of an Act is under challenge.

Reference may be made to Whirlpool Corporation v.

Registrar of Trade Marks, Mumbai and Ors. reported in AIR

1999 SC 22 and Pimpri Chinchwad Municipal Corporation

and Ors. V. Gayatri Construction Company and Ors, reported

in (2008) 8 SCC 172, cited on behalf of Respondent No.1.

68. In Harbanslal Sahnia and Ors. v. Indian Oil Corporation

Ltd. reported in (2003) 2 SCC 107, this Court allowed the

appeal from an order of the High Court dismissing a writ

petition and set aside the impugned judgment of the High

Court as also the impugned order of the Indian Oil

Corporation terminating the dealership of the Appellants,

notwithstanding the fact that the dealership agreement

contained an arbitration clause. "

52. In the instant case, apart from the fact that the notice of termination

was issued on wholly irrelevant and non-existence ground, there was no

arbitration agreement of the petitioner with respondent No. 2 and respondent

No.3.

53. In that view of the matter, we are of the considered opinion that

availability of alternative remedy is not an efficacious remedy in the instant

case.

54. In view of the above discussions, notice of termination dated 05.09.2020

is set aside and quashed. The respondent No. 1 is directed to take steps for

delivery of deliverables to the petitioner at the earliest

55. Having regard to the fact that 90% of the musical fountain work has

since been completed, the successful bidder and respondent No.3 are

allowed to complete the musical fountain.

56. The writ petitions stand allowed as indicated above.

                        Sd/-                                    Sd/-
              (Arup Kumar Goswami)                        (Gautam Chourdiya)
                   CHIEF JUSTICE                                JUDGE



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