G.S. Singhvi, J.
1. This is a petition to quash Annexure P-8, issued by the Joint Commissioner, Municipal Corporation, Faridabad (hereinafter referred to as 'theCorporation') requiring the petitioner to remove the hoardings put up by them within the limits of the Corporation and also to quash the proceedings of auction held by the Corporation for display of hoardings within the Municipal limits.
2. In order to appreciate the real controversy it will be useful to give a brief resume of the facts of the case. Petitioners as well as respondent No.4 are engaged in the business of advertising which includes putting up of hoardings on the basis of licence granted by the competent authorities. The petitioners have been putting up advertisement hoardings in Faridabad town on the basis of permission/licence granted to them by the authorities of erstwhile Faridabad Complex under the provisions of Faridabad Complex (Regulation and Development) Act, 1971 (to be referred hereinafter as '1971 Act'). Even after coming into force of the Haryana Municipal Corporation Act, 1994 (to be referred hereinafter as '1994 Act'), the Municipal Corporation, Faridabad gave permission to petitionerNo.1, to display 65 hoardings for a period of one year commencing 1.10.1994. In the year 1995 petitioners applied for permission to put up hoardings for advertisements and vide Annexures-P-5 and P-6 the Joint Commissioner granted such permission for display of hoardings during 1995-96.
3. In the meeting of the Corporation held on 13.3.1995 it was resolved that permission for fixing the advertisement boards on street light poles and other public places be given by open auction so that income of the Corporation may increase from Rs. 2 lacs to Rs. 10 lacs. This resolution could not be given effect during 1995-96 because steps had already been initiated by different authorities to grant permission to put up hoardings on payment of fixed fees. On 13.6.1996 the Corporation issued notice for auction of hoarding sites for the period from 1.7.1996 to 30.6.1999. As per notice each bidder was required to deposit a sum of Rs. 1 lac in cash or by way of bank draft. This was a condition precedent for participation in the auction. The auction was held on 20th June, 1996. Respondent No.4 gave highest bid of Rs. 77.50 Lacs and deposited Rs. 19,37,500/- which represented 25 percent of the bid money. Soon after acceptance of the bid by the respondent-Corporation another sum of Rs. 19,37,500/- was deposited by respondent No.4 and in this manner, respondentNo. 4, has deposited a total sum of Rs. 38,75,000/-.
4. First contention urged by Shri M.L. Sarin is that the auction of hoardings is contrary to the provisions of '1994 Act' read with the provisionsof '1971 Act'. Learned counsel referred to the provisions of Section 46 of '1971 Act'. Advertisement Control Order, 1973 and Sections 121 to 125, 418 and 421 of '1994 Act' and argued that in terms of statutory provisions the licences for hoardings are to be given on payment of fee fixed by the Chief Administrator of the erstwhile Faridabad Complex because in terms of Section 121 of '1994 Act', the Government has not specified the amount of fee to be charged for advertisement hoardings. Learned counsel argued that even though '1971 Act' stands repealed, the rates of fee prescribed by the Chief Administrator for hoardings will continue to remain in force and there can be no justification to deprive the petitioners of their right to carry on business on the basis of a resolution passed by the respondent-Corporation which does not have any sanction of law. Learned counsel argued that the petitioners have a fundamental right to carry on trade and business in accordance with the provisions of the statute and they cannot be deprived of their right under Article 19(1)(g) of the Constitution of India by employing the mechanism of auction of advertisement hoardings. Second contention urged by Shri Sarin is that the impugned auction has been held by the respondent-Corporation with the sole object to help respondent No.4 who was earlier shown similar favour by the Faridabad Complex Administration and this Court had nullified the auction of the authorities in CWP No. 3802/89, The FaridabadAdvertisers Association (Regd.) v. The Faridabad Complex Administration and another, decided on April 11, 1989. Last contention urged by Shri Sarin is that only a few parties had come forward to give their bid because of lack of publicity of the auction notice and, therefore, the auction proceedings should be declared illegal and a direction be given to the respondent-Corporation to re-advertise the auction notice so that a larger amount of revenue may be earned by the Corporation.
5. Shri R.S. Mittal and Shri S.C. Kapoor on the other hand argued that the procedure of grant of licence by way of auction is not new because on 23.6.1994 similar auction was held in which the petitioner had also participated. Learned counsel argued that after the coming into force of '1994 Act' the respondent-Corporation took a policy decision to grant permission to put up advertisement hoardings by public auction with a view to collect more public revenue and after the passing of resolution dated 13.3.1995 the old practice of grant of permission on payment of specified fees shall be treated as superseded. Learned counsel submitted that method of public auction is consistent with the doctrine of equality embodied under Article 14 of the Constitution because all eligible persons can participate in the auction and give bid to get a licence and there is nothing in the '1971 Act' or '1994 Act' which prohibits the respondent-Corporation from adopting such procedure for grant of licence. Learned counsel further argued that the provisions of Section 121 must be read alongwith Section 421 of the Act and a purposeful interpretation should be given to the two provisions keeping in view the larger public interest. Learned counsel also argued that after having participated in the auction proceedings it is not open to the petitioners to challenge the methodology of public auction of hoardings.
6. Section 46 of '1971 Act' and Sections 121, 418 and 421 of '1994 Act' which have bearing on the issues raised in this petition are reproduced below for readyreference:-
'Faridabad Complex (Regulation & Development Act, 1971:
Section 461. If it appears to the Chief Administrator that it is necessary or expedient to restrict or regulate the display of advertisements in Faridabad Complex, he may, by notification in the official Gazette make an order (hereinafter referred to as the Advertisements Control Order) restricting or regulating the display of advertisements and such order may provide:-
a) for regulating the dimensions, appearance and position of advertisements which may be displayed, the sites on which such advertisement may be displayed, and the manner in which they are to be affixed to land or building;
b) for requiring the permission of the Chief Administrator to be obtained for the display of advertisements;
c) for enabling the Chief Administrator to require the removal of any advertisement which is being displayed in contravention of such order or discontinuance of the use for the display of advertisements on any site which is being used for that, purpose in contravention of such Order;
d) for fees to be charged for advertisements at places specified in such Order.' 'The Haryana Municipal Corporation Act, 1994:
121. Fee on advertisements:
(1) Every person, who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding, frame, post or structure or upon or in any vehicle any advertisement or, who displays any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph) shall pay for every advertisement which is so erected, exhibited, fixed or retained or so displayed to public view, a fee calculated at such rates, as may, from time to time, be specified by the Government:
Provided that no fee shall be levied under this section on any advertisement which -
(a) appears in newspapers, relates to a public meeting, or to an election to Parliament or Legislative Assembly or the Corporation or to candidature in respect of such election; or
(b) is exhibited within the window of any building if the advertisement relates to the trade, profession or business carried in that building; or
(c) relates to the trade, profession or business carried on within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or to any sale, entertainment or meeting to be held on or upon or in the same; or
(d) relates to the name of the land or building upon or over which the advertisement is exhibited, or to the name of the owner or occupier of such land or building; or
(e) relates to the business of a railway administration and is exhibited within any railway station or upon any wall or other property of the railway administration; or
(f) relates to any activity of the Government or Union of India the Corporation.
(2) the fee on any advertisement leviable under this section shall be payable in advance in such number of installments and in such manner as maybe determined by bye-laws made in this behalf.
Explanation 1. The word 'structure' in this section includes any movable board on wheel used as an advertisement or an advertisment medium.
Explanation 2. The word 'advertisement' in relation to fee on advertisement under this Act means any word, letter, model, sign, placard, notice, device or representation whether illuminated or not, in the nature of and employed wholly or in part for the purposes of advertisement, announcement or direction.
418. In any enactment other than the Faridabad Complex (Regulation and Development Act, 1971, in force on the date immediately preceding the day on which this Act came into force in the Municipal area or in any rule, order or notification made or issued thereunder and in force on such date, unless a different intention appears.
'(a) reference to Faridabad Complex Administration, Faridabad under the Faridabad Complex (Regulation and Development) Act, 1971, shall be construed as reference to the Municipal Corporation of Faridabad, and such enactment, rule, order or notification shall apply to the Municipal area of the Corporation;
(b) references to the Chief Administrator under the Faridabad Complex (Regulation and Development) Act, 1971, shall be construed in respect of the Municipal area as reference to the Commissioner appointed under this Act;
(c) references to any chapter or section of the Faridabad Complex (Regulation and Development) Act, 1971, shall as far as possible be construed in respect of the Municipal area as references to this Act or its corresponding chapter or section.
421. Repeal and saving:
(1) As from the commencement of this Act the Faridabad Complex (Regulation and Development) Act, 1971, shall stand repealed.
(2) Notwithstanding anything contained in Sub-section (1)-
(a) any appointment, notification, order, scheme, rule, form, notice, or bye-law made or issued, and any licence or permission granted under the Faridabad Complex (Regulation and Development) Act, 1971 and in force immediately before the commencement of this Act shall in so far as it is not inconsistent with the provisions of this Act continue to be in force and be deemed to have been made, issued or granted under the provisions of this Act, unless and until it is superseded by any appointment notification, order, scheme, rule, form, notice or bye-law made or issued or any licence or permission granted under the said provisions;
(b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and thing engaged to be done, by, with or for the administration of the Faridabad Complex, before such commencement, shall be deemed to have been incurred, entered into or engaged to be done by with or for the Corporation;
(c) all budget estimates, assessments, valuations, measurements or divisions made by the administration of the Faridabad Complex shall, in so far as they are not inconsistent with the provisions of this Act continue in force and be deemed to have been made under the provisions of this Act unless and until they are superseded by any budget estimate, assessment, valuation, measurement or division made by the Corporation under the said provisions;
(d) all properties, movable and immovable and all interests of whatsoever nature and kind therein, vested in the administration of the Faridabad Complex immediately before such commencement, shall with all rights of whatever description used, enjoyed or possessed by the administration of Faridabad Complex, vest in the Corporation;
(e) all rates, taxes, fees, rents and other sums of money due to the administration of the Faridabad Complex immediately before such commencement, shall be deemed to be due to the Corporation;
(f) all rates, taxes, fees, rents, fares and other charges shall, until and unless they are varied by the Corporation continue to be levied at the same rate at which they were being levied by the aforesaid administration of the Faridabad Complex immediately before such commencement;
(g) all suits, prosecutions, land acquisition proceedings instituted or which might have been instituted by or against the administration of the Faridabad Complex may be continued orinstituted by or against Corporation; and
(h) all proceedings and appeals pending before any authority of the Faridabad Complex before such commencement, shall be deemed to have been instituted before the Commissioner and shall be continued by him or transferred to another authority under the provisions of this Act.'
7. In exercise of the powers vesting in him under Section 46(d) of '1971 Act' the Chief Administrator, Faridabad Complex Administration issued Advertisement Control Order, 1973 and prescribed the fees on different types of advertisements other than the advertisements published in the newspapers. Schedule appended to the Advertisement Control Order, 1973 was amended by notification No. FCA(T)-76/3 dated 10th January, 1977. Till the coming into force of '1994 Act', the licences/ permissions were granted to put up advertisement hoardings by charging the fee prescribed by the Chief Administrator. Section 121 of '1994 Act' requires that every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding, frame etc. any advertisement or who displays any advertisement shall pay for every advertisement a fee calculated at such rates which may be specified by the Government. It can thus be said that the Government has been given power to prescribe the rates of fee which a Municipal Corporation can charge for advertisements. However, it is an admitted position that the Government has been given power to prescribe the rates of fee which a Municipal Corporation can charge for advertisements. However, it is an admitted position that the Government has not issued any notification or order specifying the rates of fee under Section 121(1) of '1994 Act'. It is, therefore, within the domain of the Corporation to determine the rate of fee to be charged within the Municipal limits. That apart, what is more significant to be noted is that Section 121 does not in any manner prescribe the mode to be adopted for giving permission/licence for advertisements. It has not been provided that permission for display of advertisement on hoardings etc. should be given on the basis of first come first service basis nor it does say that existing license should be renewed on payment of a particular amount of fee. There is no express bar to the grant of permission/licence for display of advertisement on hoardings by way of public auction and we do not find any logic or reason to read such prohibition by implication. Therefore, it is open to the Municipal Corporation to adopt any method for grant of permission/licence to display advertisement on hoardings which is consistent with the doctrine of equality and by adopting it the Corporation can earn maximum revenue and at the same time safeguard public interest. We, therefore, do not find substance in the argument of Shri Sarin that the respondent-Corporation has acted illegally or without jurisdiction when it resolved to hold public auction for advertisement hoardings. In fact public auction of sites for display of advertisement hoardings is normallythe safest and surest method to comply with the equality clause and to earn maximum revenue. This method gives a fair opportunity to all eligible persons to participate in the process of grant of permission/licence. It also serves public interest by enabling the Corporation to collect maximum revenue from one of the important sources of income and the money so collected can be utilised for public good. Therefore, the contention of Shri Sarin that resolution dated 13.3.1995 or auction notice are without jurisdiction deserves to be rejected.
8. We also do not find any merit in the contention that by virtue of Section 418 read with Section 421 of '1994 Act', the Corporation is bound to grant permission /licence to the petitioners on payment of fee prescribed in the Advertisement Control Order, 1973, Section 418 has been enacted in order to remove any ambiguity or difficulty which may have been faced by the Administration of the Corporation because all previous orders were passed and actions were taken with reference to the provisions of '1971Act' and the Chief Administrator was treated as the Chief ' Executive Officer of the erstwhile Faridabad Complex Administration. Section 421(1) contains repealing clause and whereasSub-section (2) of Section 421 contains saving clause. It begins with the expression 'Notwithstanding anything contained.........' which shows that it is a non obstante clause and has overriding effect over the repealing clause. This means that even though the provisions of '1971 Act' stand repealed from the date of commencement of '1994 Act', appointment made, notification or order issued, scheme, rule, bye-law made or any notice issued by the Administration of erstwhile Faridabad Complex Administration and any licence or permission granted under '1971 Act' will be deemed to have been granted under '1994 Act' and the same would continue to subsist/remain in force. This saving is subject to two conditions, namely:
(1) There is no inconsistency between the '1994 Act' and the appointment made, notification or order issued, scheme, rule, bye-law made or formed or notice issued or licence/permission granted under '1971 Act' and
(2) such appointment, notification, order, scheme, rule, form, notice or bye-law made or issued or licence/permission granted under the old Act is not superseded.
9. From the plain language of Sections 418 and 421 it is easily discernible that if a licence/permission was granted under '1971 Act' the same would continue/remain in force unless it is superseded by a fresh grant under '1994 Act. However, there is nothing in Section 421(2)(a) which can give indication that the permission/licence which expires by efflux of time will have to be renewed under '1994 Act' nor is there anything in the aforementioned Section to indicate that a fresh decision cannot be taken by the competent authority in the matter of right of the petitioner, if any, under the old permission/licence granted to them subsisted only till tenure of such permission/licence lasted. After the coming into force of '1994 Act' the permission/licence granted to the petitioner will be deemed to have been so granted under '1994 Act' and it was within the jurisdiction of the respondent-Corporation to take a decision for public auction of advertisement hoardings and once Corporation passed the resolution dated 13.3.1995 the practice prevalent in the erstwhile Faridabad Complex Administration as also the schedule of fee indicated in the Advertisement Control Order, 1973 will be deemed to have been superseded. We, therefore, hold that the petitioners have not acquired any vested right on the basis of permission/licence granted to them under '1971 Act' read with Advertisement Control Order, 1973 and no such right can be claimed by them on the strength of Section 421(2) of '1994 Act'.
10. Argument of the learned counsel regarding violation of the equality clause and breach of the directions given by this Court is meritless and deserves to be rejected. Admittedly, the respondent-Corporation gave public notice and invited bids for auction of the advertisement hoardings. All eligible persons including the petitioners had an opportunity to participate in the auction and the petitioners did participate in the auction held on 20th June, 1996. Therefore, they cannot be heard to make a grievance that sufficient publicity was not given to the notice issued by the respondent-Corporation. If the petitioners had succeeded in giving the highest bid, they would not have come forward with the grievance that sufficient publicity was not given to the notice issued by the respondent-Corporation. Only after having failed to secure the permission/licence, the petitioners have chosen to challenge the procedure adopted by the respondent-Corporation. In our opinion, the petitioners have, by their conduct, disentitled themselves in making the grievance on the anvil of violation of Article 14 of the Constitution.
11. It is an admitted position that the bid given by the respondent No. 4 was the highest and the revenue to be earned by the respondent-Corporation will be much more than it could have earned by grant of permission/licence to the petitioners on the basis of fee calculated at the rates specified in the Advertisement Control Order, 1973. Thus it can unhesitatingly be said that the procedure adopted by the respondent-Corporation is consistent with Article 14 and is in public interest.
12. The decision in the case of The Faridabad Advertisers Association (supra) on which reliance has been placed by Shri Sarin does not in any manner help the case set up by the petitioners. Facts incorporated in the order dated 11.4.1989 passed by this Court show that M/s Delhi Advertising Services, which was respondent No.2 in CWP No. 3802/93 was appointed as sole advertiser for the purpose of displaying of hoardings in the Faridabad Complex area for a period of three years and applications submitted by other advertisers were rejected. This Court held that even though it was open to the Administration not to grant permission for putting up the hoardings to anybody but once the authorities decided to do so they could not arbitrarily pick up one person and exclude all others even from making their offers, quotations or applications for the contracts or licences. Their Lordships held that the selection of respondentNo. 2 as the sole contractor without inviting offers from others was a clear case of discrimination. The following observations made in the order passed by the Division Bench are quite relevant:-
'Respondent No.1 may choose not to grant permission for putting up the Hoardings to anybody but once the authorities decide to do so, they cannot arbitrarily pick up one person and exclude all others even from making their offers, quotations or applications for the contracts of licence; The selection of respondent No.2 as the sole contractor without inviting offers from others and- considering claims of others in the trade including the petitioners is highly discriminatory.'
13. From the above extracted portion of the decision relied upon by the learned counsel, it is clear that this Court invalidated the action taken by the then Faridabad Complex Administration on the ground of arbitrariness and violation of Article 14. The present one is not a case of giving exclusive permission to respondent No.4 without giving opportunity to other persons to participate in the process of grant of permission/licence. The very fact that the respondent-Corporation invited bids for public auction completely demolishes the charge of discrimination or arbitrariness, more so, when there is nothing on the record to show that the bid given to respondent No.4 is detrimental to the revenue of the respondent-Corporation.
No other point has been argued.
14. For the reasons stated above, the writ petition is dismissed. The petitioners shall pay costs of Rs. 5,000/- to respondent No.4 whose business remained jeopardised for a period of almost one month on account of the interim stay order granted by this Court at the initiation of the petitioners.