Disha Advertising vs The Hyderabad Metropolitan ...
2021 Latest Caselaw 4123 Tel

                                                                  KL,J
                                                          WPNO.1009 OF 2019
                                    1


            HON'BLE SRI JUSTICE K. LAKSHMAN

                WRIT PETITION No.1009 OF 2019
ORDER:

The present writ petition is filed to direct respondent Nos.1 and

2 to act in accordance with law and their statutory and contractual

duties pursuant to the conclusion of the tender notification process and

the conclusion of contract pursuant to the acceptance of bid by the 1st

respondent on 01.09.2018; to declare the action of respondent Nos. 1

and 2 in seeking to demolish the 80 advertisement LED boards

erected from Pillar No. 120 to Pillar No. 200 of the PVNR

Expressway, Hyderabad; to restrain the respondents from interfering

with the said business of the petitioners' right to conduct their

legitimate and duly authorized business activity in accordance with

the concluded contract; to issue a direction to the respondent Nos. 1

and 2 to forbear from interfering with the activity of the petitioners to

continue with their lawful business exhibiting the advertisement

boards from Pillar No. 120 to Pillar No. 200.

2. Heard Sri Anjana Taggarse Motupalli and Associates,

learned counsel for the petitioners, Sri V.Narasimha Goud, learned

standing counsel appearing for respondent Nos.1 and 2 and learned

Government Pleader for Municipal Administration Department

appearing for the 3rd respondent. Perused the record.

KL,J WPNO.1009 OF 2019

3. FACTS OF THE CASE

i) A tender notification No.76/BPP/HMDA/2018 dated

27.07.2018 was issued by the 1st respondent under Tender

Id.No.76665 to grant license to design, install, operate and maintain

160 LED advertisement boards on 80 pillars from Pillar No. 120 to

Pillar No. 200 at PVNR Expressway, Hyderabad.

ii) The petitioners paid the EMD bid security and submitted all

the bid documents in accordance with the Request for Proposal

(hereinafter RFP) document issued pursuant to the tender notice. The

last date to submit the bids was 24.08.2021 and the bids were to be

finalized on 01.09.2018.

iii) The 1st petitioner's bid was accepted as the highest bid and it

was awarded the tender. Based on the remarks reflected on the

Telangana e-Procurement Website, the 1st Petitioner claimed that the

tender was awarded to it on 01.09.2018 5:23 PM. This, according to

the petitioner, was communication of acceptance and resulted in a

concluded contract between itself and the 1st respondent. However,

subsequent to the online communication of awarding the bid to the 1st

petitioner, no steps were taken by the respondent authorities to act in

accordance with the RFP. No letter of acceptance was issued nor any

license agreement was executed between the parties.

iv) The petitioners claim that they received oral assent from the

1st respondent to install the advertisement boards as the contract was KL,J WPNO.1009 OF 2019

already concluded. The petitioners installed eighty advertisement

boards on 40 pillars.

v) The 1st Respondent denied any conclusion of contract and any

oral assent to install the advertisement boards and removed the said

advertisement boards.

vi) The Petitioners have challenged the removal of the said

advertisement boards contending that lawful agreement is subsisting

as illegal and arbitrary and sought a direction against the respondent

authorities not to interfere with their lawful conduct of business.

vii) It is relevant to note that respondent Nos.1 and 2 herein had

filed W.A.No.953 of 2019 against an order passed in I.A.No.1 of 2019

in the present Writ Petition. In the said W.A.No.953 of 2019, the

Division Bench noted that issuance of Letter of Acceptance has to

culminate in the signing of agreement. It was observed that whether

acceptance of bid would be tantamount to entering into a contract

needs to be decided by the Single Judge. Therefore, direction was

given to decide the present writ petition as expeditiously as possible.

viii) It is also relevant to note that the order passed in I.A.No.5

of 2019 filed to amend the writ petition, was also challenged by the

petitioner herein vide W.A.No.271 of 2021. The said appeal was

disposed of by the Division Bench of this Court granting leave to the

petitioners to bring on record all the additional facts and subsequent

developments. Likewise, the petitioners herein have placed all the

additional facts before this Court during the course of hearing.

KL,J WPNO.1009 OF 2019

4. CONTENTIONS OF THE PETITONERS

i) the 1st petitioner is the highest bidder and was awarded the

tender on 01.09.2018 5:23 PM. Reliance was placed on 'Annexure

P8' of the writ affidavit which is a screenshot of Telangana

e-Procurement Website showing award of tender in favour of

Petitioner No. 1.

ii) The award of tender on the said website amounts to

acceptance of the 1st petitioner's offer and has resulted in a concluded

contract in terms of Section 7 of the Indian Contract Act, 1872.

iii) Issuance of letter of acceptance and execution of the license

agreement are a mere formality and will not affect the performance of

an already concluded contract. In this regard, reliance was placed on

Trimex International FZE Ltd. Dubai v. Vedanta Aluminum

Ltd.1

iv) petitioners have repeatedly approached the 1st Respondent to

conclude the formalities of issuing letter of acceptance and

executing the license agreement. But Respondent authorities did

not complete the formalities on the ground that the Metropolitan

Commissioner was travelling and was out of country.

v) The 1st respondent orally informed the petitioners that as they

were the successful bidders and were awarded the contract, they could

install the advertisement boards. The same has not been denied in the

counter affidavit filed by Respondent Nos. 1 and 2.

(2010) 3 SCC 1.

KL,J WPNO.1009 OF 2019

vi) Removal of the advertisement boards will result in huge loss

and cause injury to the petitioner as huge amounts were incurred.

Such removal will also cause loss to public interest and public

exchequer.

vii) In arguendo, any restriction the petitioner's right to conduct

business should be reasonable. The term reasonable means resorting

to measures that which are least restrictive of the available options.

The action taken should satisfy the test of proportionality. In this

regard, reliance was placed on the principle laid down by the Apex

Court in Maharashtra Land Development Corporation v. State of

Maharashtra2 and Chairman, All Indian Railway Recruitment

Board v. K. Shyam Kumar3.

viii) The action of the respondent Nos. 1 and 2 is in violation of

principles of natural justice as no communication, much less a show

cause notice, was issued before removing the said advertisement

boards.

ix) Refusal by the Respondent authorities in issuing the

contractual documents including formal letter of acceptance is unfair,

illegal and amounts to malice in law. Reliance was placed on the

decisions of the Apex Court in Kumari Shrilekha Vidhyarthi v.

State of UP4, Mahabir Auto Stores v. Indian Oil Corporation5,

(2011) 15 SCC 616.

(2010) 6 SCC 614.

(1991) 1 SCC 212.

(1990) 3 SCC 752.

KL,J WPNO.1009 OF 2019

Kalabharti Advertising v. Hemant Vimalnath Narichania6 and

Ratnagiri Gas v. RDS Projects7.

x) The decisions in Haryana Urban Development Authority

v. Orchid Infrastructure8 and UP Avas Evan Vikas Parishad v.

Om Prakash Sharma9 cited by Respondent Nos. 1 and 2 are not

applicable to the present case. In both the cases, bids were not

accepted but in the present case the bid was accepted on 01.09.2018

5:23 PM.

xi) A public law remedy in a contractual matter is maintainable

when constitutional obligations co-exist with contractual obligation.

In the present case, Respondent Nos. 1 and 2 have to follow their

contractual duties and constitutional duties of fairness and

reasonableness.

5.CONTENTIONS OF RESPONDENT NOs. 1 AND 2

i) The 1st petitioner has entered into an understanding with

Levonor villas, Aaryan Marble, Naturals Beauty Salon, Bluff Master

Movie, Sangeetha Mobiles, etc. and has erected illegal advertisement

boards at a monthly rent of Rs. 20,000/- and is earning around

Rs. 16,82,000/- per month from October 2018. Thus, the Petitioners

are running their business and earning money by trespassing into

government property, without any right.

(2010) 9 SCC 437.

(2013) 1 SCC 524.

(2017) 4 SCC 243

(2013) 5 SCC 182.

KL,J WPNO.1009 OF 2019

ii) As per the terms of the RFP document, after the award of

tender, a letter of acceptance is to be issued. After issuance of letter of

acceptance, the 1st petitioner has to comply with the conditions

mentioned in Sl. No. 11 of the Data sheet. Only after such compliance

a license agreement will be entered into for a period of 5 years. Till

the above conditions are satisfied and followed, the petitioners have

no right to install the advertisement boards.

iii) The action of the petitioner in installing the advertisement

boards is unauthorised and was done only in anticipation of

concluding the agreement.

iv) Relying on the contents of the RFP document, it was argued

that there was no concluded contract between the 1st petitioner and the

1st respondent as no letter of acceptance was issued and license

agreement was executed in the 1st petitioner's favour. Issuance of

letter of acceptance and entering into license agreements are pre-

requisites to result in a concluded contract.

v) Merely because the petitioner is the highest bidder, no right

accrues on him, until the contract is concluded. Reliance was placed

on the decisions in Haryana Urban Development Authority

(Supra), UP Avas Evan Vikas Parishad (Supra) and TSRTC

Nalgonda v. Siliveru Gyaneshwar Social Service Society.10

vi) Respondent Nos. 1 and 2 removed the illegal advertisement

boards as they were only trying to stop the petitioners from illegally

2019 (1) ALD 208 (DB).

KL,J WPNO.1009 OF 2019

encroaching into their property without any right. There is no mala

fide intention / malice in law on part of Respondent Nos. 1 and 2.

vii) With the said submissions, the respondent Nos.1 and 2

sought to dismiss the Writ Petition.

FINDINGS OF THE COURT

6. The Petitioners have challenged the removal of LED

advertisement boards by Respondent Nos. 1 and 2 as illegal. The 1st

petitioner claims that it was the highest bidder and was awarded the

tender on 01.09.2018 5:23 PM. According to 1st petitioner, awarding

of tender in its favour resulted in a concluded contract between itself

and the 1st respondent. Therefore, it had installed the LED

advertisement boards in terms of the contract.

7) On the other hand, it was contended on behalf of respondent

Nos. 1 and 2 that the installation of the LED advertisement boards

was illegal as there was no concluded contract between the petitioner

and the 1st respondent. Therefore, the 1st respondent was justified in

removing the illegal advertisement boards.

8) Reliance was placed by both the parties on the contents of the RFP document. Therefore, the relevant terms of the RFP document are extracted below:

Paragraph 2 of This RFP Document is not an agreement and is neither the Disclaimer an offer nor invitation by the Authority to the of RFP prospective Bidders or any other person/ entity. The Document purpose of this RFP Document is to provide interested parties with information that may be useful to them in the formulation & submission of their bids pursuant to this RFP Document.

KL,J WPNO.1009 OF 2019

The issue of this RFP Document does not imply that Paragraph 8 of the Authority is bound to select a Bidder or to appoint the Disclaimer the selected Bidder, as the case may be for undertaking of RFP the Project and the Authority reserves the right to Document reject all or any of the Bids without assigning any reasons whatsoever.

Hyderabad Metropolitan Development Authority Clause 1.1 intends to select a bidder amongst the eligible bidders (herein the "Bidder") for granting to such selected Bidder license rights in terms hereof and more particularly the license agreement for undertaking "Design, Procurement, Installation, Operations & Maintenance of Pillar Advertisement Boards" at various selected pillars under PVNR Expressway, Hyderabad, Telangana, India hereto (hereinafter reffered to as the "Project") for a period of Five (05) years from the date of License agreement.

The Bidder selected in terms hereof for award of the Clause 1.12 project shall be responsible for undertaking designing.

procuring, development, installation. commissioning. operating and maintaining the project under and in accordance with the provisions of a agreement (the "License Agreement") to be entered into between the selected Bidder and the Authority in the form to be subsequently provided by the Authority before the bid due date.

3. Project & Location The Selected Licensee Shall Design, Procure & Install Data Sheet in the Pillar Advertisement boards equipped with LED Clause 2 Lighting system to each select Pillars starting FROM PILLAR NO. 112 TO PILLAR NO. 192| Eighty Pillars) of under PVNR Expressway and as instructed by the Officer-in-charge, BPP, HMDA.

4. Obligations of Licensee The selected Licensee shall design, procure and install the aesthetically designed Pillar Advertisement Boards within three (03) f months from the date of licensee agreement and as per the terms and conditions stipulated in this RFP document. (Detailed in TOR) More details on the Obligations of Licensee re outlined in the terms of reference (TOR) of this REP document.

11. Pre condition for Signing License Agreement (Only Preferred Bidder after receipt of Letter of Acceptance) KL,J WPNO.1009 OF 2019

Preferred Bidder shall fulfill all the following conditions for signing the License Agreement within stipula ted time indicated the clause 3.4:

1. Security Deposit: Ten percent (10%) of first year License fee (Quoted Price) in the form of DD duly adjusting EMD amount paid.

2. One month advance License fee Both the above said payments shall be in the form of DD drawn from any Nationalized Bank in favor of Metropolitan Commissioner, HMDA

3. The Preferred Bidder shall pay an amount of Rs. 38,400/- (Rupees Thirty Eight thousand four hundred Only) plus its applicable taxes towards non-refundable and irrevocable Project Development Fee (PDF) in the form of DD drawn from any Nationalized Bank in favour of The Officer on Special Duty (OSD). BPP, HMDA.

4. Preferred Bidder shall pay the Corpus Fund as defined in this RFP document.

All the above are pre conditions for signing License Agreement.

Award of License:

Clause 3.4 i. The sole criterion for selection of the preferred Bidder shall be in accordance with the s nos. 10 of Data Sheet ii. On acceptance of the Bid/ tender, HMDA will communicate in written by issuing a letter of Acceptance (LOA) 10 such preferred bidder (Bidder who is technically qualified and offering highest license fee). Within seven (07) days of such communication, the bidder shall fulfill the conditions/ payments defined Sl. No. 11 of Data sheet. Non-fulfillment of the above said payments within the stipulated time shall be deemed hat the bidder has withdrawn its offer and the EMD already paid stands forfeited without any notice whatsoever. Fulfillment of above payments is a precondition for signing the license agreement.

Clause 3.10 General Terms and Conditions iii. License agreement shall be executed between the selected bidder and HMDA. The project operations shall be allowed only after execution of license agreement, tailing which it will be construed that the licensee is not willing/ KL,J WPNO.1009 OF 2019

accepting the terms and conditions spelt out in this Bid.

Clause 4 4.1.1 The selected licensee shall execute the project facilities on "as is where is" basis.

4.1.2 The selected licensee shall be responsible for "Design, Procurement, Operations and Maintenance Installation, of Pillar Advertisement Boards equipped with LED (Back-to-Back system) Lighting system to

(Eighty no. of Pillars) of under PVNR Expressway and as instructed by the Officer-in-charge, BPP, HMDA" at its own cost.

Clause 4.3 License Period and License Fee

a) License period shall be for a period of five (05) years from the date of License agreement or date of handing over the site, whichever is earlier.

9) In view of the above said rival contentions, now the point

that arise for consideration by this Court is:-

Whether the award of tender on 01.09.2018 resulted in a concluded contract?

POINT:

10). It is apt to discuss the relevant law dealing with conclusion

of contracts. Under Section 7 of the Indian Contract Act, 1872, a

contract is said to be concluded when an offer is made and that offer is

accepted. The acceptance of such offer involves an absolute and

unqualified expression of assent. Mere acknowledgement or

willingness to enter into a contract does not satisfy the requirement of

acceptance.

11) It is a well settled principle that a contract is said to have

come into existence even when it is not formally executed. In other

words, where an offer is accepted subject to entering into a formal KL,J WPNO.1009 OF 2019

contract, a contract is said to exist even if the formal contract is not

entered into. In Trimex (Supra) it was held that once the contract is

concluded orally or in writing, the mere fact that a formal contract has

to be prepared and initialed by the parties would not affect either the

acceptance of the contract so entered into or implementation thereof,

even if the formal contract has never been initialed. However, it is a

matter of construction to be decided in each case whether the

execution of the formal contract is an essential condition or not.

12) In Hatzfeld Wildenburg v. Alexander11, it was held that

whether execution of a formal contract is a formality or an essential

condition is matter of construction, wherein it was held as follows:

"It appears to be well settled by the authorities that if the documents or letters relied on as constituting a contract contemplate the execution of a further contract between the parties it is a question of construction whether the execution of the further contract is a condition or term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the transaction already agreed to will, in fact, go through. In the former case there is no enforceable contract either because the condition is unfulfilled or because the law does not recognise a contract to enter into a contract. In the latter case there is a binding contract and the reference to the mere formal document may be ignored."

Similarly, in Deep Chandra v. Ruknuddaula Shamsher Jang

Nawab Mohammad Sajjad Ali Khan12 the Court explaining the law

held as follows:

80. Second, where all the terms of a contract are agreed upon, but the parties desire that the contract shall go through the form of a formal document, then the mere fact that there is no

(1912) 1 Ch 284

AIR 1951 Al. l93 KL,J WPNO.1009 OF 2019

agreement upon the shape that the formal document should take will not render the agreement inconclusive. Where, however, parties expressly declare that the agreement is "subject to a formal contract" it has been held that these words indicate not merely the desire of the parties that the terms already agreed upon shall be put down in the shape of a formal document, but that they indicate something more, namely, that the parties will have further to make up their minds in regard to the minor terms of the contract and that the contract will not be deemed to be concluded till then. This is the effect of decided cases with regard to the implications of the special formula 'subject to a formal contract'.

The above said English principles were reiterated and approved by the

Supreme Court in Kollipara Sriramulu v. T. Aswathanarayana.13

Therefore, existence of a contract when acceptance of an offer is

subject to formal execution of a contract depends on the facts and

circumstances of each case.

13) Now coming to the facts of the case, the clauses of the RFP

document provide various steps that will result in the award of

contract. The disclaimer makes it clear that the RFP document is not

an agreement, not an offer and also not an invitation. Further, 1st

respondent also made it clear that it is not bound to select a bidder or

to appoint the selected bidder to execute works. Clauses 1.1 and 1.12

state that the selected bidder has to undertake the works specified in

accordance with a License Agreement to be entered into subsequently.

The Data Sheet in Clause 2 uses the term 'Selected Licensee' and not

the term "Selected Bidder". Clause 2 provides certain pre-conditions

for signing the license agreement which is to be entered into only after

AIR 1968 SC 1028 KL,J WPNO.1009 OF 2019

the issuance of letter of acceptance to the preferred bidder. These pre-

conditions include payment of security deposit, one-month advance

license fee, payment towards non-refundable and irrevocable Project

Development Fee and payment towards Corpus Fund.

14) Further, Clause 3.4 talks about 'award of license' and states

that the requirements under the Data Sheet are to be satisfied for

awarding license. It clearly states that after issuance of Letter of

Acceptance the preferred bidder has to fulfill the requirements under

Sl. No. 11 of the Data Sheet in Clause 2. Clause 3.4 categorically

states that fulfillment of the payments mentioned therein is a pre-

condition for signing the license agreement.

15) It is also pertinent to note that Clause 3.10 provides that the

'project operations shall be allowed only after the execution of license

agreement'. Likewise, Clause 4 provides the period and the manner in

which the selected licensee has to execute the project. Thus, it is clear

that the project could have been executed only after the license

agreement was entered into as per clause 4.3. According to the said

clause, a 5 year license period shall begin only after the license

agreement was entered into or when the site was handed over. As

stated above, no license agreement was entered into and the site was

never handed over to the petitioners. Therefore, the contract was not

concluded.

16) The pre-conditions for signing the license agreement were

issuance of the letter of acceptance and the payment of the amounts KL,J WPNO.1009 OF 2019

mentioned. The Petitioners have admitted that no letter of acceptance

was issued and no license agreement was entered into. According to

the Petitioners, the contract was concluded as the tender was awarded

in its favour on 01.09.2018 5:23 PM which is evident from 'Annexure

P8' of the writ affidavit. The issuance of letter of acceptance and

signing of license agreement was a mere formality. This contention

cannot be accepted as the terms of the RFP document clearly state that

the works should begin only after the license agreement is entered

into. Further, certain pre-conditions were prescribed to enter into the

license agreement which were not satisfied. These pre-conditions

were in the form of condition precedent and only after its compliance

a concluded contract will come into existence.

17) The petitioner argued that those pre-conditions could not be

complied as the letter of acceptance was not issued. Reciprocal

promises were involved in the transaction and it could not comply

with the terms as the 1st respondent failed to issue the letter of

acceptance. While this may be true, the Petitioner always had the right

to sue the 1st respondent for specific performance or claim damages or

repudiate the contract or challenge the non-issuance of letter of

acceptance. Merely because the name of the Petitioner was shown on

the website (Annexure P8) that tender was awarded, it cannot claim

that the contract was concluded. It is trite law that the highest bidder is

ordinarily awarded contract and may have a legitimate expectation.

However, as held in Manoj Kumar Shahani v. The State of KL,J WPNO.1009 OF 2019

Assam14 legitimate expectation is not a right that is enforceable in the

eye of law. Petitioner No. 1 in the absence of a concluded contract

cannot claim that it has performed the contract and also cannot claim

any relief.

18) In PSA Mumbai Investments Pte. Limited v. The Board

of Trustees of the Jawaharlal Nehru Port Trust15, it was held that

there is no absolute and unqualified acceptance even where Letter of

Award is issued if two or three very important steps have to be

undergone to execute the contract. The relevant paragraphs are

extracted below:

12. On a conjoint reading of the aforesaid clauses, a few things become clear--

(i) first and foremost a disclaimer at the forefront of the RFP makes it clear that there is only a bid process that is going on between the parties and that there is no concluded contract between the same,

(ii) it is equally clear that such bid process would subsume a letter of award to be issued by Respondent 1 with two further steps under the schedule to be gone into before the draft concession agreement finally becomes an agreement between Respondent 1 and the special purpose vehicle that is constituted by the consortium for this purpose,

(iii) that throughout the stage of the bid process, the forum for dispute resolution is exclusively with the courts at Mumbai, and

(iv) that right uptil the stage of the entering into the concession agreement, the bid process may be annulled without giving any reason whatsoever by Respondent 1.

13. In addition, it may also be pointed out, on a reading of the letter of award itself dated 26-9-2011, as acknowledged by the appellant, that:

2020 (2) GLT 697

(2018) 10 SCC 525.

KL,J WPNO.1009 OF 2019

"3. You are required to incorporate a special purpose vehicle solely for the purpose of implementing the project ("the concessionarie") as per Clause 2.2.6 of RFQ document.

4. As per Clause 2.20.5 of RFP document, your bid security shall remain in force and effect till the concessionarie furnishes the performance guarantee of a sum equal to Rs 3350 million (Rupees three thousand three hundred fifty million), not later than 90 days from the date of signing of the concession agreement.

***

6. Please note that the concession agreement is expected to be signed within 30 days of the issue of this letter of award." This would show that even after the letter of award, a special purpose vehicle solely for the purpose of implementing the project would have to be set up, and that this special purpose vehicle would be called the concessionarie. Further, the bid security given by the appellant shall remain in force till the special purpose vehicle furnishes the performance guarantee for a sum equal to Rs 3350 million, and that the concession agreement is expected to be signed within 30 days of the issue of this letter of award.

14. Under Section 7 of the Contract Act, 1872 in order to convert a proposal into a promise, the acceptance must be absolute and unqualified. It is clear on the facts of this case that there is no absolute and unqualified acceptance by the letter of award -- two or three very important steps have to be undergone before there could be said to be an agreement which would be enforceable in law as a contract between the parties.

19) Dealing with a similar issue, a Division Bench of this Court

in Apollo Health and Lifestyle Limited v. Anupam Saraogi of

Indian Inhabitant16 held as follows:

48. To constitute a binding contract, there must be a concluded bargain. A concluded contract is one which settles everything that is necessary or essential to be settled. It follows therefore that there is no concluded contract where further agreement is expressly required. The MoUs on hand fall under these categories, since the actual contract for licensing the right to establish and run a

2017 (3) ALT 602 KL,J WPNO.1009 OF 2019

clinic under the name "Apollo Clinic", and the right to use the technical know-how and provide training inputs, and the right to use the trade marks, logos and other designs, were to be the subject matter of a Licence Agreement to be entered into in future. Hence, the learned counsel for the respondent/plaintiff was right in contending that the MoUs by themselves were unconcluded contracts. Once it is clear that they are only unconcluded contracts, it would follow as a corollary that the right to retain the money paid thereunder would accrue, only if such a Licence Agreement had come into existence.

20) In the present case also, though the tender was awarded to

the petitioner it was to be followed by:

      (i)     issuance of letter of acceptance;

      (ii)    payment of security deposit, one-month advance

license fee, payment towards non-refundable and irrevocable Project Development Fee, payment towards Corpus Fund;

(iii) executing the license agreement.

The contract would have come into existence only if the above steps

were taken and the requirements were satisfied. The petitioner argued

that oral permission was granted to install the advertisement boards,

however the same was denied by the respondents. Nothing was placed

on record to suggest that such oral permission was granted.

Therefore, the award of tender did not result in a concluded contract

and the contention of the Petitioner is not accepted.

21) Relying on various judgments, it was argued by the learned

counsel for the petitioner that refusal to issue contractual documents

including formal letter of acceptance amounts to 'malice in law'. This KL,J WPNO.1009 OF 2019

Court cannot accept this contention as the petitioner could have

challenged the inaction of the 1st respondent in issuing the letter of

acceptance before commencing the installation of the advertisement

boards. Without a concluded contract it could not have installed the

advertisement boards and cannot later claim malice in law.

22) The contention of the petitioners that only 'reasonable'

restrictions or least restrictive measures should be taken on the

fundamental right of the petitioner cannot be accepted. Test of

proportionality or reasonableness cannot be claimed when petitioners

themselves had no accrued right, much less a fundamental right, to

install the advertisement boards.

23) In light of the aforesaid, this Court holds that the removal of

the advertisement boards installed by the petitioner by respondent

Nos. 1 and 2 was justified.

24-a) I.A. No. 2 of 2019 was filed by the respondent Nos. 1 and

2 herein seeking recovery of amount earned by the petitioners on each

sign board per month from Octobers 2018. The said I.A. was closed

leaving it open for the respondent Nos. 1 and 2 to make submissions

during final hearing. The said relief sought by the respondent Nos.1

and 2 is on factual basis. This court cannot go into the said factual

aspects of amount collected by the petitioners, period and

quantification etc., by invoking the jurisdiction under Article 226 of

the Constitution of India. Moreover, the relief in the said Interlocutory

Application cannot be granted in a writ petition filed by another KL,J WPNO.1009 OF 2019

person. Therefore, liberty is granted to the respondent Nos. 1 and 2 to

take appropriate steps to recover the amount, in accordance with law.

CONCLUSION.

25) In the result:-

ii) The writ petition is dismissed.

iii) Interim order granted earlier shall stand vacated.

iii) Consequently, pending miscellaneous petitions, if any,

shall stand closed.

______________ K. LAKSHMAN, J Date:03.12.2021 Vvr

Note: L.R.Copy to be marked.

b/o.vvr