Allowed

Sachu T.Russak v. the Executive Engineer

Kerala HC3 Sept 2014WP(C)/16969/2013

Case brief

AI extract

What is this about?

Petitioner challenged orders directing removal of advertisement boards erected in National Highway median. Court held that while contracts are valid, removal requires notice and hearing unless obstruction is proven. Unilateral order by authority on removal of boards without notice was not allowed.

What did the court decide?

Impugned orders quashed and petitioners entitled to display advertisements per agreement subject to notice and hearing for removal if public interest required.

Sachu T.Russak Vs the Executive Engineer — Landlord and Tenant | Kerala HC (2014)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE

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WEDNESDAY, THE 3RD DAY OF SEPTEMBER 2014/12TH BHADRA, 1936

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WP(C).No. 16969 of 2013 (U)

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PETITIONER:

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SACHU T. RUSSAK, SIGNPOST MEDIA, 33/605, DEVELOPMENT PLOT NOT.100, SOUTH KALAMASSERY.

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BY ADVS.SRI.ASP.KURUP SRI.SADCHITH.P.KURUP

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RESPONDENTS:

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1. THE EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PUBLIC WORKS DEPARTMENT, NATIONAL HIGHWAY DIVISION, ALAPPUZHA.

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2. THE CHERTHALA MUNICIPALITY , REP. BY ITS SECRETARY, MUNICIPAL OFFICE, CHERTHALA.

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3. MARARIKKULAM NORTH GRAMA PANCHAYAT, REP. BY IT SECRETARY, PANCHAYAT OFFICE, S.L.PURAM, MARARIKKULAM.

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4. VAYALAR GRAMA PANCHAYAT , REP. BY ITS SECRETARY, PANCHAYAT OFFICE, VAYALAR P.O., CHERTHALA.

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5. KADAKKARAPPALLY GRAMA PANCHAYAT, REP. BY ITS SECRETARY, PANCHAYAT OFFICE, KADAKKARAPPALLY P.O., CHERTHALA, ALAPPUZHA-688 529.

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R1 BY SPL.GOVERNMENT PLEADER SRI.P.M.A.KALAM BY GOVERNMENT PLEADER SRI.SOJAN JAMES

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R2 BY ADV. SRI.JOBY CYRIAC

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R4 & R5 BY ADV. SRI.P.SANTHOSH KUMAR SRI.C.H.CHANDRABHANU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2014, ALONG WITH WPC.16982/2013 AND CONNECTED CASES, THE COURT ON 03-09-2014 DELIVERED THE FOLLOWING:

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sts

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WP(C).No. 16969 of 2013 (U)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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EXHIBIT-P1: TRUE COPY OF AGREEMENT DATED 4.1.2007 EXECUTED BY PETITIONER & 2ND RESPONDENT.

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EXHIBIT-P2: TRUE COPY OF LETTER DATED 4.1.2007 GIVEN BY 2ND RESPONDENT TO FIRST RESPONDENT.

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EXHIBIT-P3: TRUE COPY OF LETTER DATED 27.3.2007 GIVEN BY 1ST RESPONDENT TO 2ND RESPONDENT.

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EXHIBIT-P4: TRUE COPY OF AGREEMENT DATED 7.12.2006 EXECUTED BY PETITIONER & 3RD RESPONDENT.

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EXHIBIT-P5: TRUE COPY OF LETTER DATED 6.12.2006 GIVEN BY 2ND RESPONDENT TO FIRST RESPONDENT.

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EXHIBIT-P6: TRUE COPY OF LETTER DATED 26.12.2006 GIVEN BY 1ST RESPONDENT TO 3RD RESPONDENT.

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EXHIBIT-P7: TRUE COPY OF AGREEMENT DATED 17.1.2008 EXECUTED BY PETITIONER & 4TH RESPONDENT.

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EXHIBIT-P8: TRUE COPY OF LETTER DATED 25.3.2008 GIVEN BY 1ST RESPONDENT TO 4TH RESPONDENT.

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EXHIBIT-P9: TRUE COPY OF AGREEMENT DATED 6.3.2008 EXECUTED BY PETITIONER & 5TH RESPONDENT.

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EXHIBIT-P10: TRUE COPY OF LETTER DATED 24.3.2008 GIVEN BY 1ST RESPONDENT TO 5TH RESPONDENT.

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EXHIBIT-P11: TRUE COPY OF REPRESENTATION DATED 22.1.2013 GIVEN BY PETITIONER TO 1ST RESPONDENT.

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EXHIBIT-P12: TRUE COPY OF INTERIM ORDER DATED 22.2.2013 PASSED BY THIS HONOURABLE COURT IN WPC NO.5136/2013.

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EXHIBIT-P13: TRUE COPY OF INTERIM ORDER DATED 3.6.2013 PASSED BY THIS HONOURABLE COURT IN WPC NO.8347/2013.

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EXHIBIT-P14: TRUE COPY OF ORDER DATED 25.6.2013 ISSUED BY THE FIRST RESPONDENT TO THE PETITIONERS.

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EXHIBIT-P15: TRUE COPY OF LETTER DATED 29.6.2013 ISSUED BY THE THIRD RESPONDENT TO THE PETITIONER.

2/-

sts

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WP(C).NO.16969/2013

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RESPONDENT(S)' EXHIBITS

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EXHIBIT R1(A) TRUE COPY OF THE TRAFFIC SAFETY WORKS TO BE DONE THE GOVERNMENT OF KERALA HAS DECLARED THE STRETCH OF NH-47 FROM KM 366/905 TO 387/300 FROM THE PART OF CHERTHALA MANNUTHI AS MODEL SAFETY CORRIDOR.

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EXHIBIT R1(B) TRUE COPY OF THE DIRECTIONS OF JUDGMENT IN WP(C). NO.27011/12 OF THE DIVISION BENCH.

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EXHIBIT R1(C) TRUE COPY OF THE DISTRICT COLLECTOR, ALAPPUZHA AS PER HIS LETTER NO.C4-16435/2013 DATED 04/04/2013 ISSUED TO THE EXECUTIVE ENGINEER, NH DIVISION, ALAPPUZHA FOR THE STRICT COMPLIANCE OF THE JUDGMENT OF THE HON'BLE HIGH COURT.

/TRUE COPY/

P.S.TO.JUDGE

sts

A.M. Shaffique, J.

W.P(C) Nos. 16969, 16982, 16987/2013 and

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Dated this, the 3^rd day of September, 2014.

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J U D G M E N T

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Since common issues are raised for consideration in these writ petitions, they are decided together.

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In W.P(C) No. 16969/2013, the petitioner challenges Exts. P14 and P15 and seeks for a direction to the 1^st respondent not to remove the advertisement boards erected by the petitioner on the electric posts on the basis of Exts. P1 to P10.

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The petitioner is engaged in the business of erection of sodium vapour lamps along the central median and sides of National Highway. He obtained agreements from various local authorities and permission from the Executive Engineer, PWD National Highway Division for erecting sodium vapour lamps and advertisements. The contract is still in force and in the meantime, Ext. P14 is issued by the Executive Engineer, National Highway Division to the Secretary of Mararikulam Grama Panchayat stating that as per the directions issued by this Court in W.P(C) No. 8347/2013, the advertisement boards in the median of National Highway are to be removed. It is pursuant to the aforesaid communication at Ext. P14 dated 25.6.2013, the Mararikulam North Grama Panchayat issued notice to the petitioner to remove all the advertisement boards in the median within five days.

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The main contention urged by the petitioner is that he has valid agreement for displaying the advertisement boards and therefore the direction to remove the same is contrary to the terms of contract. That apart, it is contended that the Executive Engineer,

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W.P(C) Nos. 16969, 16982, 16987/2013 and 488 & 4696 of 2014.

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-: 2 :-

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PWD National Highway Division has no authority to issue any such direction and the Panchayat cannot unilaterally direct removal of advertisement boards.

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In W.P(C) No. 16982/2013, the impugned order is Ext. P13, a communication issued by the Executive Engineer to the petitioners calling upon them to remove all the advertisements and hoardings, which are installed in the National Highway. Petitioners in this case also contend that they have valid agreement with the respective local authorities and necessary permission had been granted by the Executive Engineer for putting up the sodium vapour lamps and the right to put up advertisement boards, forms part of the said agreement, which cannot be cancelled by the 1^st respondent Executive Engineer.

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W.P(C) No. 16987/2013 is filed by two contractors challenging Ext. P12 dated 26.6.2013 issued by the Executive Engineer calling upon them to remove the advertisement boards in the National Highway. They also contend that they have valid agreement with the local authorities and permission was granted by the Executive Engineer to install sodium vapour lamps and advertisement boards and the period of contract is still in force.

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W.P(C) Nos. 488 and 4696 of 2014 are filed by similar contractors apprehending action on the part of the Executive Engineer as well as local authority in forcing them to remove advertisement boards. They also contend that they have valid agreements which are still in force and there is no reason for deviating from the terms of the contract.

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W.P(C) Nos. 16969, 16982, 16987/2013 and

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488 & 4696 of 2014.

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-: 3 :-

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Counter affidavit is filed by the 1^st respondent in W.P (C) Nos. 16969, 16982 and 16987 of 2013. The contentions are common. It is inter alia submitted that this Court by judgment dated 23.6.2013 in W.P(C) No. 8347/2013, permitted the respondents to remove all the advertisement boards installed in electric posts. It is in pursuance of the said direction that the impugned orders had been issued.

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Heard the learned counsel for the petitioners and the learned Government Pleader.

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Having regard to the factual issues in these cases, it is clear that the petitioners have valid contract with the local authorities for installing sodium vapour lamps and as consideration of the same, they are permitted to put up advertisements for the periods specified under each of the agreements. Corresponding permission was also obtained from the 1^st respondent. The period of contract is not over and is still in force. Under such circumstances, in the absence of the petitioners committing any breach of the terms and conditions of the contract, it is not open for either the 1^st respondent or the local authority to cancel the contract.

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However, if for any the reason, it is found that advertisement or hoardings installed by the petitioners are causing hindrance to the National Highway or removal of the same is required for traffic regulation or public purpose, it shall be open for the local authority concerned to issue appropriate notice to the contractors/petitioners herein and after hearing them, appropriate directions can be issued. But, there cannot be any unilateral action on the part of the local authority.

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W.P(C) Nos. 16969, 16982, 16987/2013 and

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488 & 4696 of 2014.

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-: 4 :-

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The petitioners have a case that the 1^st respondent cannot cancel the contracts, the petitioners had with the local authorities. Perusal of impugned communications would show that the 1^st respondent had directed the petitioners to remove the advertisement boards. In fact, the petitioners have valid contract with the local authority and as long as the contract is in force, the petitioners are entitled to maintain the advertisements as permitted under the respective agreements. Under these circumstances, these writ petitions are disposed of as under:

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(i) The impugned orders are quashed. The petitioners are entitled to display advertisements or erect hoardings as per the terms and conditions of the agreement with the local authorities, subject to any modification that may be made by the local authorities concerned.

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(ii) If, for any reason, the local authorities are of the view that the advertisements/hoardings are to be removed, the same shall be done only after giving proper notice to the petitioners and hearing the petitioners, of course, subject to the terms and conditions of the contract between the parties and the right of the petitioners to be compensated for predetermination of the contract.

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(iii) If the Executive Engineer, PWD National Highway Division is of the view that any obstruction is caused by the advertisements/hoardings in the National Highway, they are entitled to address the issue before the local authorities, who shall thereafter take necessary steps in accordance with law.

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W.P(C) Nos. 16969, 16982, 16987/2013 and 488 & 4696 of 2014. -: 5 :-

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(iv) Until the happening of any event as stated above, the petitioners are entitled to continue with their contractual rights in terms of the agreement with the local authorities.

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Sd/- A.M. Shaffique, Judge.

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Tds/

Sachu T.Russak v. the Executive Engineer

Case brief

What is this about?

What did the court decide?

Sachu T.Russak v. the Executive Engineer

Case brief

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