Bharat Advertising and Marketing Associates (BAAMA) v. Greater Cochin Development Authority (GCDA)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 9[TH] DAY OF MARCH 2022 / 18TH PHALGUNA, 1943** ## **WP(C) NO. 5601 OF 2021** ## **PETITIONER:** BHARAT ADVERTISING AND MARKETING ASSOCIATES (BAAMA), FIRST FLOOR, CITY PLAZA, WEST NADA, GURUVAYUR, REPRESENTED BY ITS PROPRIETOR, K. RAMACHANDRAN, RESIDING AT FLAT NO. 404, SHIVAM ENCLAVE, MAHAKAVI G. ROAD, KARIKKAMURI, KOCHI. BY ADVS. PIRAPPANCODE V.S.SUDHIR SHRI. AKASH S. SMT.A.MEGHA ## **RESPONDENTS:** 1 GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) POST BOX NO. 2012, KOCHI 682 020, REPRESENTED BY ITS SECRETARY 2 THE SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA), POST BOX NO. 2012, KOCHI:682 020 3 ESTATE OFFICER, GREATER COCHIN DEVELOPMENT AUTHORITY (GCDA) POST BOX NO. 2012, KOCHI:682 020 BY ADV SMT.MINI.V.A., SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 5601 OF 2021 2 ## **P.V.KUNHIKRISHNAN, J** **------------------------------W.P.(C)No. 5601 of 2021 -------------------------------Dated this the 9[th] day of March, 2022** ## **JUDGMENT** The above writ petition is filed with the following prayers: _“(i) issue a writ of certiorari of any other appropriate writ, order or direction calling for the records leading to Ext.P20 and quash the same._ _(ii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to permit the petitioner to beatify, maintain and clean the Marine Drive Walkway in terms of the conditions and the undertaking given by him in Ext.P1 agreement, irrespective of the issuance of Ext.P20 order._ _(iii) issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents 1 and 2 to permit the petitioner to pay Rs.12,99,858/- towards electricity charges for the period from 27.01.2009 to 25.11.2017, remitted by the respondents 1 and 2, in 10 equal monthly instalments._ ## _and_ _(iv) grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this Writ Petition.”[SIC]_ WP(C) NO. 5601 OF 2021 3 2. The petitioner was awarded the work of beautification, maintenance and cleaning of Marine Drive Walkway, by the respondents 1 and 2. The agreement was entered on 04.11.2008. The same was expired in February, 2011. Subsequently, the same was extended for 36 months from 28.03.2013 by Ext.P2 supplementary agreement and thereafter by Ext.P3 agreement, the contract was extended for a further period of six years from 27.03.2016. Hence the existing agreement will be in force till 27.03.2022. As per the agreement, the petitioner is bound to pay the electricity charges for the lighting facility in the walk way. According to the petitioner, respondents 2 and 3 did not insist on the payment of the current charges and they continue to pay the same whenever there was demand. Even though notice was issued by the GCDA subsequently, the petitioner was not able to pay the amount because of the financial difficulties in connection with the pandemic situation. When Ext.P20 was issued, WP(C) NO. 5601 OF 2021 4 this writ petition was filed. 3. Heard the learned counsel for the petitioner and the learned Standing counsel appearing for the respondents. 4. The counsel for the petitioner reiterated his contentions based on the averments in the writ petition. The learned Standing counsel on the other hand submitted that from 2010 onwards the respondents were issuing notice to the petitioner to clear the electricity charges. The Standing counsel submitted that, admittedly, as per the agreement, the petitioner has to pay the electricity charge and it is now violated and hence there is nothing to interfere with Ext.P20. The Standing counsel also submitted that the amount due as on 2/8/2017 is Rs.15,25,155/-. This is disputed by the counsel for the petitioner. 5. Whatever that may be, it is a fact that the petitioner is bound to pay the electricity charge. It is also an admitted fact that the petitioner failed to pay the electricity charges and that is why Ext.P20 was issued. WP(C) NO. 5601 OF 2021 5 When this writ petition came up for consideration on 22.03.2021, this Court passed the following order: _“The learned Standing Counsel to file counter affidavit._ _Post on 05.04.2021._ _In the meanwhile, there will be an interim stay on Ext.P20 on condition that the petitioner remits an amount of_ ` _3 lakhs on or before 31.03.2021 and another_ ` _3 lakhs on or before 30.04.2021.”_ 6. As directed by this Court, ` 6 lakhs is already paid. Even now there is a huge balance. The counsel for the petitioner submitted that because of the financial difficulties, the petitioner was not able to pay the amount and he even approached the respondents for getting an instalment facility, which is refused by them because of the pendency of this writ petition. The counsel also submitted that an extension of the agreement is necessary in the facts and circumstances of the case. These are matters to be decided by the respondents. The petitioner is free to approach the respondents with a representation and if such a representation is received, the respondents will consider WP(C) NO. 5601 OF 2021 6 the same in accordance to law. But a perusal of Ext.P20 will show that the agreement is canceled only because of the non payment of the electricity charges. Ext.P20 was stayed by this court on 22.03.2021 and that order is in force even now. Moreover the agreement period itself will expire on 27.03.2022. The learned Standing counsel submitted that the premises is now already handed over to Cochin Smart Mission Limited (CSML) for renovation work. In such circumstances, Ext.P20 need not stand further. The respondents can consider the request of the petitioner for giving an instalment facility for paying the balance amount. The petitioner is free to approach the respondents for extension of the agreement also. If such a representation is received, the respondents will consider the same, in accordance to law. Therefore, this writ petition is disposed of in the following manner: - _i. Ext.P20 is quashed._ - _ii. The petitioner will pay an amount of Rs.3,00,000/-_ - _(Rupees Three lakhs only) to the respondents within_ WP(C) NO. 5601 OF 2021 7 _one month from today._ - _iii. The petitioner is free to approach the respondents with_ - _a representation for payment of the balance amount, if any, within a period of two weeks from the date of receipt of a copy of this judgment._ - _iv. Once such a representation is received, the respondents will consider the same and pass appropriate orders in it, in accordance to law._ - _v. The petitioner is also free to approach the respondents with a representation for extension of the agreement and if such a representation is received, the respondents will consider the same in accordance to law._ Sd/- **P.V.KUNHIKRISHNAN JUDGE** DM WP(C) NO. 5601 OF 2021 8 ## **APPENDIX OF WP(C) 5601/2021** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE AGREEMENT EXECUTED| |---|---| ||ON 04-11-2008 BETWEEN THE 1ST| ||RESPONDENT AND THE PETITIONER| |EXHIBIT P2|TRUE COPY OF THE SUPPLEMENTARY| ||AGREEMENT EXECUTED ON 19-02-2011| ||BETWEEN THE 1ST RESPONDENT AND THE| ||PETITIONER.| |EXHIBIT P3|TRUE COPY OF THE AGREEMENT DATED 22-| ||09-2015 EXECUTED BETWEEN THE 1ST| ||RESPONDENT AND THE PETITIONER.| |EXHIBIT P4|TRUE COPY OF THE LETTER NO.| ||5659/ESTATE.A3/2011/GCDA DATED 02-06-| ||2017 OF THE 2ND RESPONDENT.| |EXHIBIT P5|TRUE COPY OF THE REPRESENTATION DATED| ||22-06-2017<br>SUBMITTED<br>BY<br>THE| ||PETITIONER BEFORE THE CHAIRMAN, GCDA| |EXHIBIT P6|TRUE COPY OF THE LETTTER NO.| ||15165/E2/1993/GCDA DATED 03-01-2018| ||OF THE 2ND RESPONDENT| |EXHIBIT P7|TRUE COPY OF THE REPRESENTATION| ||SUBMITTED BY THE PETITIONER BEFORE| ||THE CHAIRMAN, GCDA| |EXHIBIT P8|TRUE COPY OF THE LETTER RECEIVED BY| ||THE PETITIONER ON 05-02-2018 FROM THE| ||2ND RESPONDENT| |EXHIBIT P9|TRUE COPY OF THE LETTER NO.| ||E2/15165/93/GCDA DATED 09-03-2018, OF| ||THE 2ND RESPONDENT| |EXHIBIT P10|TRUE COPY OF THE LETTER DATED 17-03-| ||2018 OF THE PETITIONER, ADDRESSED TO| ||THE CHAIRMAN, GCDA| |EXHIBIT P11|TRUE COPY OF THE LETTER NO.| ||15165/E2/93/GCDA DATED 21-08-2020| WP(C) NO. 5601 OF 2021 9 ||RECEIVED BY THE PETITIONER FROM THE| |---|---| ||SUPERINTENDING ENGINEER, GCDA| |EXHIBIT P12|TRUE COPY OF THE LETTER NO.| ||5659/ESTATE.A3/2011/GCDA DATED 23-03-| ||2020 OF THE 3RD RESPONDENT| |EXHIBIT P13|TRUE COPY OF THE LETTER DATED 10-07-| ||2020 OF THE PETITIONER TO THE| ||RESPONDENTS 2AND 3| |EXHIBIT P14|TRUE COPY OF THE LETTER NO.| ||5659/ESTATE.A3/2011/GCDA DATED 17-07-| ||2020 OF THE 3RD RESPONDENT| |EXHIBIT P15|TRUE<br>COPY<br>OF<br>THE<br>LETTER| ||NO.5659/ESTATE/A3/2011/GCDA<br>(PART| ||FILE) DATED 17-08-2020 OF THE 3RD| ||RESPONDENT| |EXHIBIT P16|TRUE COPY OF THE E-MAIL DATED 25-08-| ||2020 OF THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P17|TRUE COPY OF THE LETTER DATED 10-09-| ||2020 OF THE PETITIOENR TO THE 2ND| ||RESPONDENT| |EXHIBIT P18|TRUE COPY OF THE LETTER DATED 17-09-| ||2020 OF THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P19|TRUE COPY OF THE LETTER DATED 30-11-| ||2020 OF THE PETITIONER TO THE 2ND| ||RESPONDENT| |EXHIBIT P20|TRUE COPY OF THE ORDER NO.| ||5659/A3/ESTATE./2011/GCDA DATED 06-| ||01-2021 OF THE 2ND RESPONDENT.| ||RESPONDENTS EXHIBITS| |EXHIBIT R2(A)|TRUE COPY OF THE NOTICE DATED 19-08-| ||2010 ISSUED BY THE RESPONDENTS TO THE| ||PETITIONER DEMANDING THE ELECTRICITY| WP(C) NO. 5601 OF 2021 10 CHARGES. EXHIBIT R2(B) TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER TO THE RESPONDENT. //TRUE COPY// PA TO JUDGE