Delhi High Court
Pisces Communications Pvt. Ltd vs Dtc. on 10 October, 2011
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 10th October, 2011.
+ W.P.(C) 633/2011
% PISCES COMMUNICATIONS PVT. LTD. .....Petitioner
Through: Ms. Anusuya Salwan, Mr. Anil Garg
& Mr. Kunal Kohli, Advocates.
Versus
DTC. ..... Respondent
Through: Mrs. Avnish Ahlawat with Ms. Latika
Chaudhary, Advocates.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Not necessary
be allowed to see the judgment?
2. To be referred to the reporter or not? Not necessary
3. Whether the judgment should be reported Not necessary
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. The petition seeks to restrain the respondent DTC from dismantling
the Bus Queue Shelters (BQSs) situated in the Rohini-I Zone, Delhi till such
time the petitioner has contract with the respondent DTC. The petitioner
also seeks mandamus to the respondent DTC to provide 175 Bus Queue
Shelters fit for the purposes of display of advertisement. The said claims
have been made by the petitioner on the basis of an agreement dated 10 th
March, 2010 entered into with the respondent DTC and which contract is
stated to have been for the term of two years i.e. till 10 th March, 2012.
2. Notice of the petition was issued on 1st February, 2011; the counsel
for the petitioner also stated on that date that the petitioner was aggrieved
from action of the respondent DTC of removing the BQSs subject matter of
contract with the petitioner without notice to the petitioner and without
giving alternative sight to the petitioner and has already submitted a
representation to the respondent DTC in that regard. Thereafter the matter
was adjourned from time to time for filing of the counter affidavit by the
respondent DTC and awaiting the decision on the representation stated to
have been made by the petitioner. No counter affidavit has been filed by the
respondent DTC.
3. The counsel for the petitioner, in the light of the judgment dated 14th
September, 2011 in W.P.(C) No.4874/2010 titled Himalayan Advertising
Vs. DTC, today confines the relief in this petition only to a direction to the
respondent DTC to give a reasonable notice to the petitioner before
demolishing any of the BQSs subject matter of agreement with the petitioner
during the pendency of the term of the agreement. It is contended that if the
respondent DTC demolishes the BQSs without notice, the advertising
undertaken by the petitioner thereon (under the agreement with the
respondent DTC) suffers and the petitioner become susceptible to a claim for
damages by the advertiser.
4. Attention of the counsel for the petitioner has however been invited to
clause 11 of the agreement which is as under:-
"11. Removal/Demolition of Shelters"
The Chairman-cum-Managing Director or his authorized
representative shall have the right to have the shelters/booths
demolished, discontinued, shifted or removed at any time
during the period of contract without notice to the contractor
for any reason whatsoever. In the event of such removal or
shifting, the Contractor may be permitted at the discretion of
Chairman-cum-Managing Director to display the advertisement
on the alternative shelter or booths so constructed/allotted in
the same zone.
The contractor/advertiser has to abide the directions of
Govt. as agreed by them in the form of affidavit, before entering
into the contract in regard to deletion of such nos. of BQSs
from the tendered list of BQSs as deemed fit by the Govt. for the
purpose of construction of new BQSs/modernization through
any agency/DIMTS. The contractor shall not claim any
compensation on this account nor shall take the matter in the
court of law under any circumstances. Advertisers can use
deleted BQSs for any advertisement purpose till M/s DIMTS
starts reconstruction. However, he has to pay the Monthly
License fee and R & M Charges for these BQSs also as per
applicable rate.
Further, in view of the ensuing Common Wealth games to
be held in October, 2010, the DTC may withdraw the
advertising rights temporarily for a period to be specified at the
appropriate time with a notice of 07 days for displaying the
Common Wealth games related advertisement and in such
situation the contract period of two years shall be deemed to
have been completed only after adding the period of such
temporarily withdrawal as stated above."
5. It has been enquired as to how in the face of express contract entitling,
the respondent DTC to demolish the BQSs even without notice to the
petitioner, can this Court give a direction contrary thereto.
6. The counsel for the respondent DTC in this regard has also invited
attention to Clause 13 of the agreement which also entitles the respondent
DTC to terminate the contract without notice to the petitioner and cause the
advertisements to be removed at the risk and cost of the petitioner.
7. Faced with aforesaid the counsel for the petitioner states that the
aforesaid clauses of the agreement are onerous and are liable to be ignored.
It is contended that the same are illogical as the advertisements of third
parties cannot be permitted to be so removed without notice. On enquiry as
to why the petitioner signed the contract if found the clauses aforesaid to be
illogical, the counsel contends that the Courts in the past have given
directions contrary to the contractual clauses and sought time to place the
judgments in this regard. After the close of hearing the counsel for the
petitioner has handed over copies of judgments in Central Inland Water
Transport Corporation Limited Vs. Brojo Nath Ganguly (1986) 3 SCC 156
and Pawan Alloys & Casting Pvt. Ltd., Meerut Vs. U.P. State Electricity
Board (1997) 7 SCC 251.
8. The Apex Court in Central Inland Water Transport Corporation Ltd.
in paras 83, 84 & 89 to which attention is invited held that the Courts will
not enforce and will, when called upon to do so, strike down an unfair and
unreasonable contract, or an unfair and unreasonable clause in a contract,
entered into between parties who are not equal in bargaining power. In
Pawan Alloys & Casting Pvt. Ltd. the Apex Court in paras 44, 55, 55 & 56
to which attention is invited held the petitioner therein to have not
voluntarily or by even the remotest chance agreed to give up the benefits
given to them by clear representation held out in the earlier notifications. In
my view, the judgments aforesaid have no application to the facts of the
present case. The petitioners have neither made any pleadings of the clauses
aforesaid in the argument being unreasonable or unfair nor claimed any
relief in this regard. The Apex Court in Central Inland Water Transport
Corporation Ltd. was dealing with a contract between an employer and the
employee. The said contract was found to have been imposed on the
employees under threat of disengagement and the employees were found to
have no option in the matter. Pawan Alloys & Casting Pvt. Ltd. is a case of
promissory estoppel. In the absence of any foundation having been laid in
the pleadings or a relief in that regard having been claimed, doctrines of law
in abstract cannot be relied upon.
9. The contract of the petitioner with the respondent DTC is admittedly
unforceable. That being so, if the petitioner claims to have suffered any
losses for the reason of any of the clauses in the contract being void or
unreasonable or unfair, the remedy of the petitioner is by way of a claim for
damages and not by way of this writ petition.
10. There is thus no merit in the petition, the same is dismissed. No order
as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
OCTOBER 10, 2011/Bs..
