IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 17713 of 2007(H)
1. T.SREEKUMAR,
... Petitioner
Vs
1. THE DIVISIONAL RAILWAY MANAGER,
... Respondent
2. THE SENIOR DIVISIONAL COMMERCIAL
3. DRISYA ADVERTISERS,
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent :SRI.VARGHESE P.THOMAS, SR.SC,RAILWAYS
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :19/12/2007
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 17713 OF 2007 H
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Dated this the 19th day of December, 2007
J U D G M E N T
The prayer sought for in this writ petition is for directing
the respondents not to allot the hoarding created by the
petitioner to any person including the 3rd respondent. The
petitioner also seeks an order requiring respondents 1 and 2 to
consider Exts. P6 and P7 representations submitted by him.
2. Petitioner claims to have erected a hoarding in the
railway compound at Kollam some time in 1999. It is also his
case that he was allowed to display advertisements for about two
years. In 2000, in a tender that was invited by the Railways for
erecting hoardings, though the petitioner was the sole tenderer,
that was cancelled following Ext.P3 judgment of this court in WA
No.3332/2001. It is stated that since 2004, petitioner had
continued displaying advertisements based on an agreement
with the beneficiary of the judgment in WA 3332/2001,
Smt.Dhanalakshmi. Petitioner has produced as Exts. P4 and P5,
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indicating the payment that were made to Smt.Dhanalakshmy, to
whom the advertisement rights were issued pursuant to Ext.P3
judgment.
3. Petitioner submits that in 2007, he came to know that
the railways are going to terminate the arrangement with
Smt.Dhanalakshmy and thereupon filed Exts. P6 and P7
representations requesting for permitting him to continue the
arrangement with him. He submits that while these
representations are pending, his hoardings were removed on
4/6/07. It is contended that while allowing all other advertisers
to retain their hoardings, the hoarding of the petitioner alone was
removed and that the place has been alloted to the 3rd
respondent. On these pleadings, petitioner seeks the reliefs
mentioned earlier.
4. The Railways have filed a statement from which it is
disclosed that they had permitted the petitioner to erect a
hoarding for the period from 6/12/1998 and this continued till
about 2002. It is stated that following Ext.P3 judgment of this
court, contract for hoarding at Kollam was awarded to
Smt.Dhanalakshmi, M/s Seematti Textiles, Kollam and that this
was for the period 1/6/04 to 31/5/2007. According to them, they
WPC 17713/07
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are not concerned with the business transactions between
Smt.Dhanalakshmi and other agencies and that on expiry of the
contract with Smt.Dhanalakshmy on 31/5/07, all permissions
that were granted for displaying the hoardings also stood
terminated and the contractor was asked to remove the
hoardings. It is stated that since the expiry of the previous
contract, for the future period sites were alloted on the basis of
first come first served basis to those who are willing to pay
higher charges than the normal tariff. It is stated that on this
basis, they have realised double the revenue. In so far as the
hoarding of the petitioner is concerned, they would submit that
the proposal from the petitioner was received by them only on
21/5/2007 , whereas based on a proposal that was received from
M/s Drishya Advertisers, Adithya Nagar, Kollam, site was allotted
to them and that the party had made remittance of Rs.2,18,867/-
on 14/5/2007.
5. Thus, from the facts, it is obvious that when this writ
petition was filed on 8/6/07, much earlier to that, the site in
question was allotted to the 3rd respondent based on the proposal
that was received and on the remittance that was made by them.
6. From the facts as stated above, it is obvious that for
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the hoardings he displayed, there was no contract between the
petitioner and the railways. Therefore, the petitioner cannot
assert any claim as he did not have any privity of contract
between himself and the railways. As his contract was only with
Smt.Dhanalakshmi and as her contract with railways having been
terminated on 31/5/2007, petitioner has no legal right to insist
that he should be permitted to carry on the arrangement for any
period thereafter.
7. Petitioner is not seeking an order directing that the
railways should not allot the hoardings otherwise than by tender.
On the other hand, what the petitioner was attempting is only to
take advantage of the situation by making Exts. P6 and P7
representations to the railways requesting for allotment in his
favour. It is the case of the railways that they have adopted the
system of first come first served basis. In such an arrangement,
petitioner has lost only because he made the proposal belatedly.
From the statement, it is evident that the 3rd respondent made
his proposal on 25/4/2007 and remitted the amount on
14/5/2007 whereas the petitioner made his proposal only on
21/5/07. Thus, it is only because of the delay on the petitioner’s
side that he could not successfully bid for the hoarding in
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question. Further petitioner also took his chance in the direct
allotment system adopted by the railways and lost out because
his proposal was made belatedly.
8. It certainly is disturbing to note that the Undertaking
like the railways are resorting to this kind of adhoc system in the
matter of distributing their spaces for advertisement purposes.
Being a Public Sector, it is obligatory on the part of the railways
to ensure that they realise the best revenue as possible, that too
in a most transparent method. As against the accepted method of
open tenders, it is not been explained as to why railways have
opted for the system of direct allotment and that too, on first
come first serve basis. Needless to say that this arrangement
will often lead to criticisms whether necessary or unnecessary
and it is not a desirable tendency. This certainly is a matter for
the railways to take into account atleast for their future guidance.
Writ petition will stand dismissed without any order as to
costs.
ANTONY DOMINIC, JUDGE.
Rp