The High Court held that the licensee must pay GST separately on the license fee as per the terms of the tender and deed, and refused to interfere with the Corporation's policy on fee remission.
Petitioner directed to pay GST and dues within one month, otherwise license termination remains valid.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
HIGH COURT FOR THE STATE OFTELANGANA AT HYDERABAD (Special Original Jurisdiction)
MONDAY, THE EIGHTEENTH DAY OF APRIL TWO THOUSAND AND TWENTY TWO
PRESENT
THE HONOURABLE SRI JUSTICE A.ABHISHEK REDDY
WRIT PETITION NOS: 35683 OF 2021 AND 57650F 2022
W.P.No.35683 ol 2021
Between:
P. Kishore, Son of Narsaiah, Aged about45 years, License Holder of Stall No.66 i.e.' Cloak Room in MGBS, Hyderabad.
...PETITIONER
AND
..,RESPONDENTS
Petition Under Article 226 of theConstitutionof lndia praying that in the circumstances stated in theaffidavitfiled therewith,the High Court may be pleased to issue a writ or order or direction, moreparticularlyone in the nature of writ of Mandamus, declaring the actionof the 2nd respondent in terminating the license of thepetitioner withoutissuing show cause notice to the petitionervide his Proceedings No.P4l122(77)l2O1B-RR dated 2211112021, issued againstthe petitioner, is highly arbitrary, unjust, violative ofprinciples of natural justice, contrary to the terms and conditionsof licenses, illegal and unsustainable'
l.A.NO:1 OF 2021
Petition under Section151 CPC praying that in the circumstancesstated in the affidavit filed in support ofthe petition, the High courtmay be pleased to suspend the operation of theProceedings bearing No.P41122(77)/ 20'1 B-RR
-,
dated 2211112021 , issued against thepetitioner, relating to termination of license of thepetitioner in respect of his stall,pending disposal of the above writpetition.
I.A.NO:2 OF 2022
Between:
...,PETITIONERS/ RESPON DENTS/RES PON DENTS
AND
P. Kishore, Son of Narsaiah, Aged about 45years, License Holder of Stall No.66 i.e., Cloak Room in MGBS, Hyderabad.
...RESPONDENT/PETITIONER/ WRIT PETITIONER
Petition Under Section 151 CPCpraying that in the circumstances stated in the affidavit filed in support of thepetition, theHigh Cou(may be pleased to vacate the interim ordergranted on 2211212021 ln W.P.No. 35683of 2021.
Counsel for the Petitioner : SRI.C.RAMACHANDRARAJU
Counsel for the Respondents : SRI.N.VASUDEVA REDDY(SC FOR TSRTC) W.P.NO: 5765 OF 2022
Between:
P. Kishore, Son of Narsaiah, Agedabout 45 years, License Holder of Stall No.66i.e., Cloak Room in MGBS, Hyderabad.
...PETITIONER
AND
...RESPONDENTS
Petition Under Article 226 of the Constitutionof lndia praying that in the circumstances stated in theaffidavit filed therewith,the High Court maybe
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pleased to issue anappropriatewrit, order or direction more particularly one in thenatureofWritofl,4andamus,declaringtheactionoflstrespondentvideits proceedingsdated04.0g.202.lrefusingtograntremissionoflicenseefeesforthe period effected bythe 2nd waiveof the pandemic and refusing to waiveof the licensefeesforthe2ndlockdownperiodforthemonthsofMayandJune'2021 and declaringthe actionof the 2nd respondentvide his ProceedingsNo P4l 122(77)1201!-RRdated3l'l2.2o2lissuedtothepetitionerasadvancenoticefor terminationof license of the petiiloner and demanding the petitionerto pay the license feesfor the strike period of TSRTC Employeesfor the monthsof october November-2019and refusing to waive off the license feesfor the 2ndlockdown period and demandingthe petitionerto paythe full amountof license feesfor the period effectedby the 2nd wave of the pandemic and the action of the 2nd respondentinissuingonemonthadvancenoticeforterminationoflicenceofthe petitioner, withoutissuing any showcause noticeto the petitionerto that effect is highly unwarranted,highly arbitrary' unfair' unjust' irrational' violativeof principlesofnaturaljustice,unlawfulandviolativeofarticlesl4and2,lofthe constitutionof rndiaand consequenflydirect the respondentsto wave of the licencefeeofthepetitionerforthestrikeperiodofTSRTCEmployeeforthe months ofOctober November2019 and the licensefees of the 2nd lockdown period for the monthsof May and June 2021and grant remissionof licensefees f rom the monthof July' for the remainingmonths of the Covid effectedperiod' 2021 onwardstill the pandemic ceasesto exist proportionate to the decline in the revenue ofthe corPoration
l.A.NO:2OF 2022
Between:
,...'PETITIONERS/
RESPONDENTS/RESPONDENTS
AND
P. Kishore, Son of Narsaiah, Aged about 45 years, Llcense Holder of Stall No.66 i.e., Cloak Room in MGBS, Hyderabad.
.....RESPONDENT/PETITIONER
...WRIT PETITIONER
Petition Under Section'1 51 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the interim order granted on 02.02.2022 in lA No.1/2022 in WP No.576512O22.
l.A.NO:1 OF 2022
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend the operation of the Proceedings No.P4l 122(77)12018-RR dated 31 .12.2021 issued by the 2nd respondent against the petitioner in respect of his Stall No.66. in MGBS Hyderabad and consequentially directing the respondents not to insist petitioner to pay the full amount of existing licence fee stipulated in the license deed, till the corporation takes the decision to revise licence fee of thepetitioner, commensuration with the Revenue of the Corporation during the pandemic period and further directing the respondents to collect the reasonable amount of licence fee from the petitioner @ 30% of the licence fee, pending disposal of the main writ petition.
Counsel for the Petitioner : SRI.C.RAMACHANDRA RAJU
Counsel for the Respondents : SRI.N.PRAVEEN REDDY (SC FOR TSRTC)
The Court made the following COMMON ORDER
THE HON'BLE SRI JUSTICE A,ABHISHEK REDDY
WRIT PETITION Nos.35683 of 2O2l and 5765 of2022
COMMON ORDER:
Since the petitioner in both the writ petitions is common and the issue involved in both the r,r,rit petitions is intrinsically connected, they are taken up toge ther and being disposed of by this common order.
W.P. No.35683 of 2O2\ is filed questioning the Notice for Termination of Licence issued by the respondent No.2 uide proceedings No.P4l122(77)12O18-RR dated 22.11.2021, without issuing any show cause notice to the petitioner, whereas W.P.No.5765 of 2022 is filed questioning the proceedings dated 04.O9.2021 issued by the respondent Corporation relusing to grant remission of licence fee for the months of May and June, 2021, i.e. the period eflected by lockdown due to 2nd wave of Covid- 19 pandemic.
W.P. No.35683 of 2O2l
The case of the petitioner, in brief, is that he was granted licence by the respondent Corporation for running "Cloak Room" in Stall No.66 at MGBS, Hyderabad, for a period of llve years from 24.07.2019 to 23.01.2024 on payment of licence fee of Rs.40,2021- per month. While so, the respondent No.2 has issued the impugned notice dated 22.11.2021 calling it as one month advance notice, lor terminating the licence of the petitioner on the ground that he has not paid the GST on the licence fee from 24.0 1 .20 I 9 to November, 2021 . It is the specific case of the
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2 AAR, J ,r' P. Nos 35683 2A2l&,5765 2O2)
petitioner that no show cause notice was issued to him before issuing the impugned notice dated 22.11.2021. It is further stated that the licence fee offered by the petitioner was inclusive of GST, and therefore, the question of the petitioner again paying any amount towards GST does not arise. Hence, the present writ petition.
On 22.I2.2021, this Court, while issuing notice before admission has granted interim stay of eviction of the petitioner pursuant to the impugned notice dated 22.11.2021, subject to condition of his paying the GST.
Seeking to vacate the said interim order, the respondent Corporation has filed I.A. No.2 of 2022 along rrvith a counter affidavit.
In the counter affidavit I'iled by the respondent Corporation, it is mainly contended that as per Clause 28 (a) of the Deed ol License dated O5.O 1.2019, if the licensee defaults in payment of licence fee for three months consecutively or three times in a calendar year, the licence is liable for termination with one month advance notice. Further, as per Clause 42 of the Deed of Licence, in case business is not carried out by the licensee due to riots, agitations, bundhs, strikes, etc. the licensee shall have no right to claim any remission of licence fee payment or compensation or reimbursement of loss etc. Therefore, based on the above Clauses, the impugned notice was issued to the petitioner. It is further contended that the petitioner, instead of paying the GST amount, as per the interim order granted b1r this Court on 22.12.2021, has liled
AAR, J 3 w.P. Nos.35683-202 l&5765-2022
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W.P. No.5765 of 2022. Hence, it isprayed to vacate the interimorder dated 22.12.2021 and also to dismissthe writ petition.
The respondent Corporation hasalso filed an additionalcounter affidavit stating that asper conditionNo. 6(f) of the General Terms and conditions of the TenderNotification, the licenseeshal1 pay the applicable GST along with licencefee atthe rate lixed by Governmentfrom time to time. The petitioner, havingsignedon the termsand conditions of the tender, is bound to abideby the same. The allotmentletter clearly indicates that the monthlylicence fee of Rs.40,202 I- is excludingGST and other charges. ltis further statedthat the petitioner was issued notice dated 12.\O.2O2ldemanding paymentof GST and when the petitioner failed topay thesame, thereafteronly the impugned notice for termination of licencewas issued'
Areplyaffidavithasbeenfiledbythepetitionertotheadditional counter affidavitfiled bythe respondentCorporationmainlycontending that the corporationhaving given the petitioneran option to submit the price bid inclusive of GST, in itsown format of price bid as displayedin their website and havingacceptedthe price bid of the petitionerwhich is inclusive of GST, hasno right to demandthe petitionerto pay additional amount towards GST. Further,the respondentCorporation has kept quiet for a long period of threeyearsand thereafter startedinsisting the petitioner for payment ol GST,which cannot be countenanced' Hence, prayed to allow the Writ Petition.
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W.P. Nos 3s683-202 1&.rUSir)
Learned counsel appearing on behalf of the petitioner has stated that pursuant to the e-Tender Notification issued by the respondent corporation, the petitioner has participated in the tender process and licence was granted to him in respect ol stall No.66 (clock Room in MGBS) for a period of five years i.e., from 24.Ol.2olg to 23.0t.2024. Even though the petitioner has initially submitted the bid for an amounr of Rs.30,202/- inclusive of GST, after due negotiations, the licence fee was enhanced to Rs.40,2021- inclusive of GST. The learned counsel has stated that without issuing any shou, cause notice, the impugned notice for termination of licence has been issued by the respondent No.2 after a iapse of more than three years asking the petitioner to pay the GST amount from 24 .0 r .20 1 9 to November, 202 1 . The learned counsel has drawn the attention of this Court to the online tender form, which has the option of selecting the bid amount with GST (inclusive or exclusive). The very fact that the official respondents have issued the impugned notice after a lapse of more than three years substantiates the contention of the petitioner that the bid amount submitted by the petitioner is inclusive of GST and that no separate GST needs to be paid by the petitioner. Therefore, he has prayed this court to set aside the impugned notice for termination of licence and ailow the writ petition.
Per contra, the learned Standing counser appearing on behalf of the respondent corporation has stated that as per the tender notification and also the Deed of Licence entered betneen the petitioner and the respondent Corporation, the licence fee was exclusive of GST. That the
AAR, J W.P. Nos 35683 2A2l&5765-2022
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petitioner having signed the Deed ofLicencedated 05.01.2019,now cannot take U-turn and state that the licencefee is inclusive of GST.The learned Standing Counsel has further stated thatwhen the tender notification and the Deed of Licence are inunequivocalterms that the licence fee is exclusive of GST, thepetitioner cannot takeadvantage of the technical glitch in the software, andprayed this Court to dismiss the writ petition.
Heard both sides and perused therecord
A perusal ol the record, moreparticularly, Clause 7 of the e-Tender Notification, dated 16.04.20 18, shows thatthe basic price that should be quoted by any participating tenderer/bidder shouldbe excluding GST.
Clauses 7 and 13 of the e-TenderNotification read as under:
"7. Tenderershallsubmit Pice Bid online onlg. The bqsic pice shouLd be exctuding GST and other toxesapplicable,if ang. 13. The successf.rl tenderer(allottee) shall pay the GSTas appltcable from time ta time(at presenttheGST is 18o/oCGST-9o/o + SGST-go/o) on paAment of monthlgticence fee(qtotedbg the licensee) euery month."
Even a perusal ol the GeneralTermsand Conditions of the tender document submitted by thepetitionershows that the licence fee shallbe exclusive of GST and othercharges,if any.
Clauses 6 (i) and 13(c) ofthe GeneralTerms and Conditionsread as under
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i| I, \os.35681 2021&5765 2022.
"6 (fl The licensee stn pag the applicable GST along with the License fee at the rate as fixed bg the Cout. from ttme to time. Ang delag in paAment of GST utitL lead to interest and penaltg as applicable.
13(t:) Amount quoted by the tend.erer (bastc pice) touards monthlg license fee shall be exclusiue of eLecticity, mointenance, tuater chorges, GST and others tf any.,
Furthermore, the Allotment order dated 24.12.2org arso shows that
the licence fee is exclusive of GST and other charges. The said Alotment Order reads as under:
"In compliance with the orders of Hon,ble High Court uide rekrence 3,a cited and_ guidelines issued. uid.e reference 2d cited, the competent authoritg has accorded approual for allotment of Statt No.66 at IttGBS to the petitioner Si p. Kioshore, pend.ing d"isposal of Wit Petttion No.23883/ j8, for runntng business of "CLOAK ROOM" on a monthly licence fee offered bg gou Rs.40,202/ _ (Rupees Forty thousand ttuo hundred two onlg) for the first 2 gears, with an enhancement of the license fee bg 5% in 3d year, 1096 in 4th Aear and 15ok in Stn gear, ouer the licence fee pagable tn 2nd, 3d and 4th gears respectiuely, exclud.inq GS?. Electricity, Maintenance and. Water Cha.rges etc., for a peiod of fue (5 gears) onlg.,,
(Emphasis suppliedl.
Even though the petitioner has relied on the e_tender form submitted by him, as submitted by the learned counsel for the corporation, the same appears to be a technical glitch in the software. The petitioner, having accepted the terms and conditions oI the tender and having entered into Deed of Licence, now cannot turn around and try to take advantage of the technical error in the software.
AAR, J w.P. Nos.35683_202 1&5765_2022
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A perusal of the Deed of Licence dated 05.01.2019 entered between the petitioner and the respondent Corporation, more particularly, Clause 6 (a) and (e) thereof clearly discloses that the licence fee is exclusive of GST and other charges.
Clause 6 (a) and (e) of the Deed of Licence reads as under:
"6, LICENCE FEE: a) The licence fee ts Rs.40,202/ - (Rupees Fortg thousand two hundred two onLy in uords) per month exclusive of electicity & water charges, maintenance charges, GST etc., and the same shaLl be paid in aduance on or before lAh daA of current month.
e) The Licensee sL'talt pay applicable GST at the rate as frxed bg the Gout. from time to time on the license fee pagable to the Corporation, aparT from pagment of license fee as agreed to be paid to the Corporation. Any delag tn pagment of GST tuilt lead to interest and penaLtg as applicable."
This Court, in W.P.Nos.31454 of 20 I 1 and batdn, uide common order dated 09.04.2018, while relying on the judgment of the Hon'ble Supreme Court in Joshi Technologies Internatlonal Inc, a. unlon of
Ind.lal, has dismissed the writ petitions. However, this Court, with a view to ameliorate the hardship to some extent, has granted the following relief:
"The petitioners, if pag tlle licence fee in three instalments, the respondent Corporation is directed not to consider collecting interest fromthe petitioners, fordelaged paAment.In default of thepagment, the respondent Corporation is free to recouer licence fee in accordance uith lau.t. "
'(20r5)7 scc 728
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In the instant case, even though this Court, on 22.12.2021, has granted interim stay of eviction of the petitioner subject to condition of liis paying the GST, it is brought to the notice of this court that the petitioner has not paid rhe GST till date and the order of this Court, dated 22.12.2021, is not yet complied.
Having regard to the fact that the petitioner himself has signed the Deed of Licence dated 05.01.2019, the contention of the learned counsel for the petitioner that the impugned order passed by the respondent Corporation deminding the petitioner to pay GST amount from 24.O1 .2019 to November, 2O2I @ l,ok per month is illegal and untenable, cannot be accepted. Merely because the respondent corporation has not demanded the payment of GST for a period of three years cannot absolve the petitioner from paying the GST, since as per the terms and conditions of the Tender Notification, Allotment order and the Deed of Licence clearll, discloses that the licence fee is exclusive of GST. Therefore, the petitioner cannot take advantage of the lapses committed by the respondent Corporation and refuse to pay the GST.
For the aforestated reasons, and in view of the common order dated 09.04.2018' passed in w.P.No.314s4 of 2o11 and batch, the petitioner is directed to pay the GST amount and also other dues, as stipulated in the impugned Notice for Termination of Licence dated 22.11.2021, within a period of one month from the date of receipt of a copy of this order, failing which, the impugned notice for termination of licence stands good.
I AAR, J W.P. Nos.35683_202t&S75s 2022
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With the above directions, W.p.No.35 6g3 of 2O2I is disposed of. Miscellaneous petitions pending in this writ petition, if any, shall stand closed. There shall be no order as to costs.
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W.P.No.57 65 ot 2O2Z
The case of the petitioner, in brief, is that the respondent corporation is demanding the petitioner to pay the ricence fee for the 2nd lockdown period of May, 2o2t, and June, 2021, without considering the fact that the corporation itserf has suffered huge loss due to rockdown and also the volume of commuters at MGBS, Hyderabad, has decreased drastically.
This Court on O2.O2.2O22 has granted interim suspension of the proceedings dated 31.l2.2O2I issued by respondent No.2 subject to payment ol 50% of the demanded amount.
Seeking to vacate the said interim order, the respondent corporation iras filed I.A. No.2 of 2022 along with a counter affidavit mainly stating that the respondcnr corporation has considered the representations of arl the ricense horders with regard to waiver of ricense fee for the months of May, 2O2l to August, 2021, and issued proceedings dated 04.09.202 1 permitting aI the licensees to pay the ricense fee for the months of May, 2O2l to August, 2027, in four equal installments i.e. from October, 2O2l to January, 2022, withowt penal interest. Except the
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{' P. Nos.35683-2021&5?65 2022\
above, the petitioner is not entitled for any other concessions and therefore prayecl to dismiss the Writ petition.
Having regard to the fact that the with regard to waiver of iicence fee for the months of May, 2A21 b August, 2021, the respondent Corporation has already taken a policy decision and permitted all the licensees to pay the licence fee for the said period in four equal instarlments i.e. from October, 2027 to January, 2022, wtthout penal interest, this Court, under Article 226 of the constitution of India, cannot sit over the poricy decisions taken by the authorities concerned. Furthermore, in view of the order passed by this Court in W.p.No.356g3 of 2O2t, this Court does not find any merit in the present writ petition u,arranting anv interference.
W.P.No.5765 of 2022 is, accordingly, dismissed.
Miscellaneous petitions pending in this writ petition, il any, shall stand closed. There shall be no order as to costs.
SD/. P.PADMANABHA REDDY ASSISTANT REGISTRAR
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//TRUE COPY'
SECTI ER
To
'1 . One CC to SRI.C.RAMACHANDRA RAJU, Advocate IOPUC] 2. One CC to SRI.N.PRAVEEN REDDY(SC FOR TSRTC) [OPUC] 3. One CC to SRI.N.VASUDEVA REDDY(SC FOR TSRTC) (OPUC) 4. Two CD Copies 5. One spare copy s.A
q
HIGH COURT
DATED:1 810412022
COMMON ORDER
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WP.Nos.35683 OF 2021 AND 5765 ot 2022
D!SMISSING THE WRITPETITIONS
WITHOUT COSTS
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2 issues framed by the court
Whether the petitioner is liable to pay GST separately on the license fee as per the Deed of License and Tender Notification.
Whether the High Court can interfere with the policy decision of the respondent Corporation regarding remission of license fees during the pandemic.
Colour shows how this judgement treated each authority
W.P.Nos.31454 of 2011 & batchFollowed¶108
Joshi Technologies International Inc. v. Union of IndiaRelied on¶108
Joshi Technologies International Inc. v. Union of India
4 provisions across 3 enactments
P. Kishore
Telangana State Road Transport Corporation
A. Abhishek Reddy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
