Orissa High Court
Ms. Enkon Pvt. Ltd. vs Bhubaneswar Smart City Ltd. And Others on 7 February, 2017
Equivalent citations: AIR 2017 (NOC) 1057 (ORI.)
Author: Vineet Saran
Bench: Vineet Saran
HIGH COURT OF ORISSA : CUTTACK
W.P.(C) No.19563 of 2016
In the matter of an application under Article 226 of the
Constitution of India.
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M/s. Enkon Pvt. Ltd. ........ Petitioner
AFR
-Versus-
Bhubaneswar Smart City Ltd.
and others ......... Opp. Parties
For petitioner : M/s. Gautam Mukherji, A.C. Panda,
S.D. Panda, S.D. Ray and M. Agarwa,
Advocates.
For opp. parties : Mr. S. Mohanty, Sr. Advocate
along with Mr. R.R. Swain,
Advocate [O.P. 1].
Mr.Manas Ranjan Mohapatra,
Senior Advocate [O.P. 2]
Mr. D. Mohapatra,
Advocate [O.P. 3]
Mr. B.P. Pradhan,
Addl. Government Advocate
[O.Ps. No. 4 & 5]
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PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HONOURABLE DR. JUSTICE B.R. SARANGI
2
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Date of hearing : 25.01.2017 :Date of judgment: 07.02.2017
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DR. B.R. SARANGI, J 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
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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-
4
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
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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-
28/2016/49dated 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 6 was called off and, as a result, the writ petition also became infructuous 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 7 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 8 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 regulate the installation of signals, more so, when the policy of the Government cannot override the statute. Further contention of learned counsel for the petitioner is that assuming some defects are found to have been committed by the petitioner, that by itself being curable one, the petitioner should have been called upon to rectify the same, instead of going for the fresh RFQ. As the petitioner is still operating 11 signals, out of 63 signals which are part of the RFQ in question, those 11 signals should be excluded from the purview of RFQ issued by opposite party no.1. Finally, it is urged that power of Commissionerate of Police cannot be delegated to a non- statutory authority like that of the opposite party no.1, Bhubaneswar Smart City Ltd.
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To substantiate his contention, he has relied upon the judgments in Gujarat State Financial Corporation v. Lotus Hotels Pvt. Ltd.; AIR 1983 SC 848, State of Kerala and Ors. V. M.K. Jose, (2015) 9 SCC 433; Remfry And Sons v. Commissioner of Income Tax, 118 (2005) DLT 720; Subhash Chand Goyal v. U.P. Financial Corporation, Kanpur AIR 2005 All. 246; B. L. Sreedhar v. K. M. Munireddy (Dead), AIR 2003 SC 578; Sidhartha Sarawgi v. Board of Trustees for the Port of Kolkata, AIR 2015 SC 1271.
8. Mr. S. Mohanty, learned Senior Counsel appearing along with Mr. R.R. Swain, learned counsel for opposite party no.1 (Bhubaneswar Smart City Ltd.) contended that the petitioner's claim is based on MOU dated 23.12.2008 (Annexure-2), which has been executed between the Commissionerate of Police and the petitioner. But, however, the petitioner, due to non-payment of licnece yearly fee, does not have any licence and, as such, he cannot be allowed to continue. More so, in the regulation, which has been framed under the provisions of the Act, 2003 itself, there is a gross noncompliance of the said 10 provisions. Thereby, conditions of the MOU have been violated. Since the petitioner effectively prays for enforcement of the agreement (MOU) in Annexure-2, the writ application is not maintainable, as it is purely a contractual dispute between the parties, and for any breach thereof the petitioner has to approach the appropriate common law forum for execution of the same. To substantiate his contention, he has relied upon the judgment in Divisional Forest Officer v. Biswanath Tea Co. Ltd., (1981) 3 SCC 238.
9. Mr. M.R. Mohapatra, learned Senior Counsel appearing for the Bhubaneswar Municipal Corporation- opposite party no.2 states that no permission has been granted by the Municipal Corporation to install 11 number of traffic posts by the petitioner. In absence of such permission, any steps taken by the petitioner is absolutely contrary to the provisions of law. It is further contended that the Bhubaneswar Municipal Corporation has never consented, either to Commissionerate of Police or the petitioner, to install the traffic posts in the areas, as mentioned in the MOU, and more particularly, if the 11 petitioner has installed any signal posts, it is liable to pay the licence fee in consonance with the provisions contained in Orissa Municipal Corporation Act, 2003 read with the Regulations, 2008. Due to non-payment of the licence fee, the petitioner, having violated the conditions stipulated in the MOU (Annexure-2), cannot be allowed to continue, even if it was continuing earlier, as its continuance is contrary to law. Thereby, no illegality or irregularity has been committed by issuing a fresh RFP under Annexure-9 dated 28.10.2016, which the petitioner cannot challenge. Furthermore, the Bhubaneswar Municipal Corporation being not a party to the MOU, it is not binding on it and, this apart, if at all any breach thereof has been committed, the petitioner, if so advised, may approach the alternative forum by filing a suit before the competent civil court, as the writ application is not maintainable due to availability of such alternative remedy.
10. Mr. D. Mohapatra, learned counsel for opposite party no.3 (Bhubaneswar Development Authority) strenuously urged that the petitioner having not obtained any permission from the authority concerned for 12 construction and erection of traffic posts, the entire action is in gross violation of the provisions of law and, therefore, the petitioner is not entitled to get any relief as claimed in the writ application.
11. Mr. B.P. Pradhan, learned Addl. Government Advocate appearing for State-opposite parties no. 4 and 5 contended that the relief sought for in the writ application being to enforce the contract, for the deviation thereof, the petitioner has to approach the appropriate civil court but not to invoke the jurisdiction of Article 226 of the Constitution of India. As the writ application has been filed for enforcement of the conditions of the contract, it is not maintainable and the parties have to approach the common law forum to give binding effect to the agreement (MOU). To substantiate his contention, he has relied upon the judgment in Noble Resources Ltd. v. State of Orissa, AIR 2007 SC 119.
12. To provide for reorganization and regulation of police in certain areas of the State, the legislature of the State of Odisha enacted an Act called "The Orissa Urban 13 Police Act, 2003", which received assent of the President on 24.09.2007 and notified on 15.10.2007. It came into force w.e.f. 01.01.2008 after publishing in the official gazette. The relevant portion necessary for the purpose of adjudication of the case, in hand, is quoted below.
"Section 2 :- Cesser of operation of certain enactments and saving - (1) On and from the date on which a Commissionerate is created under Section 4 in respect of any area, any enactment in force in that area which is inconsistent with, or a repetition of, the provisions of this Act shall cease to be in force in such area:
xx xx xx Section 3(b) :- "Commissionerate" means a Police Commissionerate created under Section 4;
xx xx xx
Section-4 :- Creation of Police
Commissionerate:- The Government may, by notification, create a Police Commissionerate for any area comprising the territorial area of any one or more Corporations constituted under the Orissa Municipal Corporation Ordinance, 2003 and may include any other contiguous area as may be specified in the notification.
xx xx xx Section 16. Duties of a Police officer - It shall be duty of every police officer to -14
xx xx xx
(viii) Facilitate orderly movement of people and vehicles;
xx xx xx Section 18. Duties of police officers wile regulate traffic - It shall be duty of every police officer to -- (i) regulate and control the traffic in the streets to prevent obstructions therein and, to the best of his ability, to prevent the contravention of any rule, regulation or order made under this Act or any other law in force for observance by the public in or near the streets;
xx xx xx Section 28. Power to make regulations for regulating traffic and for preservation of order in public place, etc. (1) The Commissioner may, with the previous sanction of the Government, make regulations to provide for all or any of the following matters, namely:--
Xx xx xx
(iv) licensing, controlling or prohibiting the erection, exhibition, fixation or retention of any sign, device or representation for the purpose of advertisement, which is visible against the sky from some point in any street and is hoisted or held aloft over any land, building or structure at such height as may be specified in the regulations, having regard to the traffic in the vicinity and the likelihood of such sign, device or representation at that height being a distraction, or causing obstruction, to such traffic;"15
13. In exercise of powers conferred by Section 28 of Orissa Urban Police Act, 2003 (Orissa Act 8 of 2007) and with the previous sanction of the Government, the Commissioner of Police, Bhuabneswar and Cuttack, Bhubaneswar framed a regulation to regulate the traffic and matters incidental thereto, called "the Bhubaneswar- Cuttack Police Commissionerate (Traffic and Public Orders) Regulations, 2008, which is notified by the official gazette on 12.12.2008. The relevant portion of such Regulation, 2008 is reproduced here for adjudication.
"Regulation-2 Definitions :
(1) In these regulations, unless the context otherwise requires-
(a) 'Act' means the Orissa urban Police Act, 2003
(b) Commissioner means the Commissioner of Police of the twin cities of Bhubaneswar and Cuttack.
xx xx xx
3. Traffic signs and traffic police- The driver of a motor vehicle and every other person using the public road shall obey every direction given by a police officer, whether by signal or word or notice or otherwise, or given through the traffic sign or signal fixed or operated on the public road, xx xx xx
46. Erection of advertisements etc.-
(1) No person shall erect, exhibit, fix or retain any sign, device or representation for the purpose of advertisement, which is visible on the sky from some point in any street and is hoisted or held aloft over any 16 land, building or structure, except as may be permitted by the Commissioner.
(2) There shall not be any fixture or fitting on or in the vicinity of any public road, cycle/pedestral track, pavement or any private property in the vicinity of a public road for the purpose of erection of hoardings and display of advertisements etc. without the written permission of the Commissioner of Police.
(3) Permission for continuance or retention of the existing signboards fixed for advertisement shall be made within a period of six months from the date of commencement of these regulations along with necessary fee and other documents as may be specified by the Commissioner.
xx xx xx 60. Permission-
(1) Every person may apply for obtaining permission for any purpose as provided under these regulations in Form No. 1 along with necessary fees and certificates/NOC as may be specified by the Commissioner.
(2) Permission with necessary conditions as the case may be or refusal thereof shall be granted by the Commissioner or by any officer authorized by him in Form No. II (3) After permission for any purpose as provided under these regulations even is/are granted, the Commissioner shall have the power to cancel such permission on the ground of non-compliance to license conditions, public safety and breach of public order.
(4) Before cancellation of the permission under sub-regulation(3), the Commissioner shall give an opportunity of hearing to the applicant and record the reasons in writing while issuing the order of cancellation.
(5) Every permission for any purpose, as provided under these regulations shall lapse on expiry of the period/duration specified in the permission unless renewed by the Commissioner.
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(6) Any person aggrieved by the order of the Commissioner may prefer an appeal before the Director General and Inspector General of Police, Orissa within a period of 30 days.
61. License-
(1) Every person may apply for obtaining licenses for any purpose as provided under these regulations in Form No.1 along with such fees as may be specified by the Commissioner.
(2) License with or without conditions as the case may be or refusal thereof shall be granted by the Commissioner or any officer authorized by him in Form No. II.
(3) After license for any purpose as provided under these regulations even is/are granted by the Commissioner shall have the power to cancel the license on the ground of non-compliance to license conditions, public safety and breach of public order.
(4) Before cancellation of the license under sub- regulation(3), the Commissioner shall give an opportunity of hearing to the applicant and record the reasons of cancellation in writing while issuing the order.
(5) Every license for any purpose, as provided under these regulations shall lapse on expiry of the period/duration specified in the license, unless renewed by the Commissioner.
(6) Any person aggrieved by the order of the Commissioner may prefer an appeal before the Director General and Inspector General of Police, Orissa within a period of 30 days.
62. The fees to be charged for the purpose of obtaining license or permission or renewal thereof under the provisions of these regulations shall be as specified in the Table below:
Table Sl. Purpose Fee in Rs.
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No.
(1) (2) (3)
(a) License for erection/exhibition/fixation Rs. 100 per Sq.ft.
or retention of any sign/device or per year
representation for the purpose of
advertisement
(b) (i) Storage of hazardous and noxious Rs. 500 per year
substances
(ii) Movement of hazardous and noxious Rs. 100 per
substance occasion
(c) Movement from or into houses or Rs. 50 per
buildings of ordure or offensive matter occasion
or object
(d) Setting apart places for slaughtering of Rs. 500 per year
animals, sale of flesh, deposit of
noxious or offensive matter and for
obeying calls of nature.
(e) License for use and operation of Rs.200
loudspeakers
(f) Erection of gates/ puja Rs. 50 per day
pendals/tents/samianas in public
places
(g) Public amusement/public entertainment Rs. 2,000
for a period of fifteen days and multiple thereof
(h) Eating houses
(i) when the seating capacity is fifty or Rs. 1000 per year more
(ii) if the seating capacity is less than Rs. 500 per year 50
(i) Fee for performances for which no fee Rs. 100 has been specifically charged
63. The Commissioner in appropriate cases may exempt or reduce the license fee as referred to in regulation 62 after recording reasons therefore in writing."
19The above being the provisions contained in the Act and Regulations governing the field, the same are to be considered in the present context in view of the MOU executed between the Commissionerate of Police with the petitioner. The MOU is reproduced below:
"MEMORANDUM OF UNDERSTANDING THIS AGREEMENT is made on this day 23rd of December, 2008 between Bhubaneswar Commissionerate Police having their office at BBSR, hereinafter referred to as the party of the FIRST PART.
AND M/s Enkon Private Limited having its registered office at 32, Pramatha Chowdhury Sarani, Kolkata-700 053 hereinafter referred to as the party of the SECOND PART which expression shall include their heirs, executors, representatives, ancestors, successors and assigns).
AND WHEREAS the party of First Party had suggested to the Second Party for some requirement of Automatic Signals to be installed at the locations as per Annexure "A" along with Traffic Control Booths as mentioned herein and also to be maintained regularly for a period of 10(ten) years for the date of signing this agreement.
That the Second Party has voluntarily agreed to install the same at their cost and in lieu of that the Second Party is going to put-up advertisements on the poles of the traffic signals to cover-up the cost of installation and its maintenance along with the electricity charges to be arranged by the second party for the said period of 10(ten) years, and the period may be extended further for similar tenure under similar terms and conditions by the Second Party on satisfactory performance.20
In every year the 2nd party will deposit the license fee for advertisement as per the regulatory published in extra -ordinary Gazette No. 2258 dt. 12.12.08 to the 1st party."
14. As it appears from the pleadings of the parties, the entire dispute revolves round the conditions stipulated in the MOU. To understand the meaning of "MOU" in a common parlance, we have to refer to the dictionary meaning of the same.
The meaning of MOU in Oxford Dictionary is as follows:
"A memorandum of understanding (MOU or MoU) is a formal agreement between two or more parties. Companies and organizations can use MOUs to establish official partnerships. MOUs are not legally binding but they carry a degree of seriousness and mutual respect, stronger than a gentlemen's agreement."
In Collins English Dictionary MOU is defined as follows:
"A document that describes the general principles of an agreement between parties, but does not amount to a substantive contract"
In Cambridge English Dictionary, the meaning of MOU is as follows:
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"A document that records the details of an agreement between two companies or organizations, which has not yet been legally approved."
As per Dictionary.com, the meaning of MOU is as follows:
"(law) A document that describes the general principles of an agreement between parties, but does not amount to a substantive contract Abbreviations MOU, MoU."
In Business Dictionary.com the meaning of MOU is defined as follows:
"A document that expresses mutual accord on an issue between two or more parties.
Memoranda of understanding are generally recognized as binding, even if no legal claim could be based on the rights and obligations laid down in them. To be legally operative, a memorandum of understanding must (1) identify the contracting parties, (2) spell out the subject matter of the agreement and its objectives, (3) summarize the essential terms of the agreement, and (4) must be signed by the contracting parties. Also called letter of intent"
In Wikipedia, the meaning of MOU is defined as follows:
"A memorandum of Understanding (MoU) describes a bilateral or multilateral agreement between two or more parties. It expresses a convergence of will between the parties, indicating an intended 22 common line of action. It is often used in cases where parties either do not imply a legal commitment or in situations where the parties cannot create a legally enforceable agreement. It is a more formal alternative to a gentlemen's agreement."
In Investopedia, the definition of MOU is:
"A memorandum of understanding (MOU) is a nonbinding agreement between two or more parties outlining the terms and details of an understanding, including each parties' requirements and responsibilities. An MOU is often the first stage in the formation of a formal contract."
15. In view of the meaning attached to the MOU, as mentioned above, it is to be considered whether such MOU can constitute a form of an agreement between the parties. Whether an MOU would constitute a binding contract depends only on the presence or absence of well-defined legal elements in the text proper of the document (the so- called "four corners"). The required elements are: offer and acceptance, consideration, and the intention to be legally bound (animus contrahendi).
16. The legal ramification of the MOU is, an MOU signals a legal contract is imminent. However, an MOU itself is not legally defensible but should still clearly outline 23 specific points of an understanding. An MOU should describe who the parties are, what the project is that they are agreeing on, the scope of the document, each party's roles and responsibilities and more. An MOU forces the participating parties to reach a semblance of a mutual understanding, and in the process, the two sides naturally mediate and figure out what is most important in moving towards an eventual future agreement that benefits both sides.
17. In view of the meaning attached to the MOU and its effect, as discussed above, and examining the same in the present context, as it appears from the conditions that the first party suggested to the second party for some requirement of Automatic Signals to be installed at the location as per Annexure-A to the MOU along with Traffic Control Booths and also to be maintained regularly for a period of 10 years from the date of signing of the agreement (MOU). The MOU having been signed on 23.12.2008, it is stated that the validity of the same will continue till 22.12.2018. But, the MOU itself indicates that it is in a suggestive form and no finality has been attached to the 24 same. The second party, namely, the petitioner had voluntarily agreed to install the Automatic Signals at its cost and in lieu thereof it will put advertisement on the poles of the traffic signals to cover up the cost of installation and its maintenance along with electricity charges to be arranged by the second party for the said period of 10 years. The period may be extended further for similar tenure under similar terms and conditions by the second party on satisfactory performance. In every year the second party will deposit the licence fee for the advertisement as per the regulatory published in the extra- ordinary Gazette dated 12.12.2008 to the first party.
18. On perusal of the provisions contained in Regulations, 2008, it only states about erection of advertisement etc. Under Regulation-46(3) it is provided that permission for continuance or retention of existing signboards fixed for advertisement shall be made within a period of six months from the date of commencement of the Regulations along with necessary fee and other documents as may be specified by the Commissioner. Regulation-60 deals with permission, and mechanism has been prescribed 25 under sub-Regulations (1) to (6) mentioned therein. Regulation-61 deals with license, whereas Regulation-62 states that the fees to be charged for the purpose of obtaining license or permission or renewal thereof under the provisions of the Regulations shall be as specified in the table mentioned therein. Regulation-63 deals with the fact that the Commissioner in appropriate cases may exempt or reduce the license fee, as referred to in Regulation-62, after recording reasons therefor in writing. The Regulations, 2008 clearly specify the area of operation of the Commissionerate of Police. Chapter-I deals with traffic control, Chapter-II deals with movement of animals, Chapter-III deals with transport of dangerous substances & dead bodies, Chapter-IV deals with fire and fireworks, Chapter-V deals with signboards and advertisements and Chapter-VI deals with Public amusement/entertainment. Chapter-XI deals with grant of permission and licence. As per the MOU (Annexure-2) executed between the parties vis-à-vis Orissa Municipal Corporation Act, 2003, Orissa Urban Police Act, 2003 and Regulations, 2008, even if there 26 is any breach of the conditions stipulated in the MOU, then this Court may not have jurisdiction to entertain the same.
19. The apex Court in Divisional Forest Officer (supra) in paragraph-9 observed as follows:
"Ordinarily, where a breach of contract is complained of, a party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed, or the party may sue for damages. Such a suit would ordinarily be cognizable by the Civil Court. The High Court in its extraordinary jurisdiction would not entertain a petition either for specific performance of contract or for recovering damages. A right to relief flowing from a contract has to be claimed in a civil court where a suit for specific performance of contract or for damages could be filed. This is so well settled that no authority is needed. However, we may refer to a recent decision bearing on the subject. In Har Shankar v. Deputy Excise and Taxation Commissioner(1975) 1 SCC 737, the petitioners offered their bids in the auctions held for granting licences for the sale of liquor. Subsequently, the petitioners moved to invalidate the auctions challenging the power of the Financial Commissioner to grant liquor licence. Rejecting this contention, Chandrachud J., as he then was speaking for the Constitution Bench at page 263 observed as under:
"Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out 27 of contract do not depend for their enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could ever have a binding force."
Again at page 265 there is a pertinent observation which may be extracted.
Analysing the situation here, a concluded contract must be held to have come into existence between the parties. The appellants have displayed ingenuity in their search for invalidating circumstances but a writ petition is not an appropriate remedy for impeaching contractual obligations."
This apart, it also appears that in a later decision, the Assam High Court itself took an exactly opposite view in almost identical circumstances. In Woodcrafts Assam v. Chief Conservator of Forests, AIR 1971 Ass. 92, a writ petition was filed challenging the revision of rates of royalty for two different periods. Rejecting this petition as not maintainable, a Division Bench of the High Court held that the complaint of the petitioner is that there is violation of his rights under the contract and that such violation of contractual obligation cannot be remedied by a writ petition. That exactly is the position in the case before us. Therefore, the High Court was in error in entertaining the writ petition and it should have been dismissed at the threshold."
20. In Noble Resources Ltd. (supra), in paragraph 43, the apex Court held as follows:
"Ordinarily, a specific performance of contract would not be enforced by issuing a writ of or in the nature of mandamus, particularly when keeping in view the provisions of the specific Relief Act, 1963 damages may be an adequate remedy for breach of contract."28
21. In view of the foregoing discussions, breach of the conditions of the MOU being the specific stand of the petitioner, this Court is refrained from making any observation on the merits of the case itself, on which arguments were advanced by the learned counsel for the parties, save and except permitting the petitioner to approach the appropriate common law forum to ventilate its grievances, in view of the availability of alternative remedy in a contractual matter.
22. In the result therefore, this Court is not inclined to entertain the writ application, which is hereby dismissed. No order to cost.
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(VINEET SARAN) CHIEF JUSTICE .................................. (DR. B.R. SARANGI) JUDGE Orissa High Court, Cuttack The 7th February, 2017, Ajaya/Alok/GDS