1. The present Writ Petition was filed, originally, against respondents 1 to 3, seeking a direction to respondent No.3 not to demand license fee in respect of an extent of 42,508 square feet i.e. 23,380 square feet for want of municipal permission and 19,128 square feet, being the space not provided to the petitioner by respondent No.3, out of total extent of 64,648 square feet, under Tender Notice No.01/2019-20/Pub.5/OOH Packages, dated 03.05.2019, holding that the demand of respondent No.3 for 23,380 square feet which requires municipal permission and 19,128 square feet, being the space not provided to the petitioner by respondent No.3, is illegal and arbitrary.

2. The averments of the affidavit filed in support of the Writ Petition, in brief, are as follows.

                  (a) The petitioner participated in the Tender process pursuant to Tender dated 03.05.2019 issued by respondent No.3 for award of licence for display of Advertisements at earmarked areas at out-of-home locations (i.e. outside the station premises) via. Hoardings, Boards, Wall paintings, Digital Display with LED screens, at different locations specified under each of the Packages A, B, C and D, and petitioner‟s tender was accepted for Package-D, meant for outside locations of Vijayawada Station, at a licence fee of Rs.13,85,91,000/- for a period of five years, and the acceptance was confirmed vide letter dated 13.07.2019 by respondent No.3. The area promised to be provided to the petitioner for advertisements, etc. is 64,648 square feet under various categories of erection.

                  (b) Pursuant to issuance of the letter of acceptance, there was a joint inspection of the earmarked locations of Package-D, wherein it was found that it was not possible to erect hoardings at certain locations, and the petitioner submitted a letter dated 29.7.2019, giving details of such identified locations. Petitioner requested to provide space for the deficit areas and also to provide permission from RTC and Corporation authorities, or in the alternative, to reduce the licence fee pro rata, for the area that is not made available. In compliance with the Tender conditions and as per letter dated 13.7.2019 of respondent No.3, the petitioner paid balance amount of 1st half year and GST bill vide letter dated 21.8.2019, by reiterating the aforesaid request. The petitioner submitted Bank Guarantee on 31.8.2019 towards security deposit being 50% of 5th year licence fee, and respondent No.3 confirmed the advertising rights in favour of the petitioner for five years, through letter dated 13.9.2019.

                  (c) Vide letter dated 16.09.2019, respondent No.3 intimated that it was not feasible to allow for erection of hoarding at the space mentioned at S.No.29 of Annexure to the letter dated 13.07.2019, due to technical reasons, and proposed for providing alternate location as per Clause 14.1 of the Tender.

                  (d) It is stated that an area of 23,380 square feet, out of the total area of 64,648 square feet offered to the petitioner, requires municipal permission, and as per the tender conditions, the petitioner applied for permission from the municipal authorities, and vide letter dated 30.01.2021, 4th respondent informed that the request of the petitioner is kept in abeyance as the decision is awaited from the Government on the policy matter. The petitioner sent a copy of the said letter dated 30.1.2021 of 4th respondent, to respondent No.3 through letter dated 4.2.2021, indicating that the only area available for advertising is 22,140 square feet. Respondent No.3, ignoring the factum that the petitioner is prohibited from utilizing 21,780 square feet for want of statutory clearance from 4th respondent and the petitioner is not provided with balance promised area of 12,979 square feet, issued the impugned notice dated 26.8.2021, demanding licence fee after deducting pro rata charges only for 7749 square feet identified by it. The petitioner gave a detailed reply dated 31.8.2021 to the said letter, requesting to consider receiving payment only for the actual space made available to them for advertisements. But, without considering the same, respondent No.3 issued impugned letter dated 29.12.2021 demanding payment of licence fee after deducting pro rata licence fee for the area of 7,749 square feet only. Though the petitioner submitted a representation dated 19.1.2022 in reply to the said letter, respondent No.3, without considering the same, is threatening to take action and is contemplating to revoke all contracts entered, forfeit security deposit and debar the petitioner from participation in any SCR tenders. Hence, the Writ Petition.

3. Subsequent to filing of the Writ Petition, as respondent No.3 made demand through letter dated 30.05.2022, the petitioner filed I.A.No.2 of 2022 seeking amendment of prayer in the Writ Petition as under, and the same is ordered.

                  “…to issue a writ of mandamus more in the nature of directing the Respondent No.3 not to demand the Licence Fee in respect of an extent of 42508 sq. ft. i.e. 23380 sq. ft. for want of municipal permission and 19128 sq. ft., being the space not provided to the petitioner by Respondent No.3, out of total extent of 64648 sq. ft., under Tender Notice No.01/2019-20/Pub.5/OOH Packages dt. 03.05.2019, holding that the demand of Respondent No.3 through letters dt. 26.08.2021, 29.12.2021 & 30.05.2022 for 23380 sq. ft. which requires municipal permission and 19128 sq. ft. being the space not provided to the petitioner by respondent No.3, is arbitrary, illegal and unconstitutional..”

4. Subsequently, as per Order dated 15.12.2022 in I.A.No.3 of 2022, respondent No.4 was impleaded.

5. Respondent No.4 filed counter affidavit, denying the material averments made in the writ affidavit and contending inter alia that under Section 421 (1) of the H.M.C. Act, 1955, no such authority is vested with the Municipal Corporation which requires permission to be granted for erecting Advertisement/Display Board on railway land, and such permissions shall not be necessary in respect of any advertisement relating to the business of any railway administration; that since policy and guidelines regarding the issue of enrolment of display device agencies in the Corporation, are awaited from the Government, the then City Planner of 4th respondent Corporation issued letter dated 30.01.2021 intimating the same. Hence, it is prayed to dismiss the Writ Petition.

6. Respondent No.3 filed counter affidavit denying the material averments in the writ affidavit and contending inter alia that filing of the present Writ Petition is nothing but abuse of process of law, without there being infringement of any Fundamental or Statutory Right of the writ petitioner. Respondent No.3 admitted issuance of Letter of Allotment (LoA) dated 13.7.2019 in favour of the petitioner as it was successful in the tender process for Package-D under the subject tender, for a period of five years from 20.09.2019 to 19.09.2024 for a total licence fee of Rs.13,85,91,000/-, and stated that as per the tender conditions, the requisite licence fee has to be remitted on half-yearly basis.

                  It is further stated that the petitioner paid Rs.1,30,50,000/- for the first six months of first year licence period and failed to pay any licence fee as per the LoA; that the authorities gave periodical reminders to the writ petitioner for payment of the licence fee as per LoA, but it failed to do so; that the petitioner is utilizing the said area by displaying advertisements without paying licence fee and enjoying the revenue generated out of the said advertisements.

                  It is further stated that a committee of officers of railway authorities conducted a survey and submitted a report, whereunder the authorities found that an extent of 7,749 square feet of land was not available, and as such, the authorities reduced the proportionate licence fee of Rs.33,80,787/- from the total licence fee payable, but even after reduction of the licence fee, the petitioner failed to pay any amount. It is further stated that the amounts are accruing day to day on account of non-payment of licence fee by the petitioner, and a sum of Rs.6,14,16,432/- is due for the period from 20.03.2020 to 19.03.2024; that the bank guarantee furnished as security deposit by the petitioner is only to a tune of Rs.1,57,90,500/-, which is minimal when compared to the amount due by the petitioner in case of breach of contract. It is further stated that the petitioner under pretext of false grounds, approached this Court, and on account of the stay order, evaded payment of license fee.

                  It is further stated that the areas allotted as per the LoA to the petitioner are exclusive railway properties/ lands, and as such, permission of the municipal authority does not arise, and 4th respondent has no role to play, and the same is clear from the counter affidavit filed by 4th respondent.

                  It is further stated that except for the first six months, the petitioner failed to pay any amounts to the railway authorities even though the petitioner is displaying advertisements in the said area which was allotted to it.

                  It is further stated in the counter affidavit that as per Clause 27 of the Special Conditions of Contract, if there is any dispute with regard to the LoA, the said dispute has to be resolved before the Arbitrator, and therefore, though there is an efficacious alternative remedy available to the petitioner for settling the disputes arising out of the subject LoA, it resorted to file the present Writ Petition. Hence, it is prayed to dismiss the Writ Petition.

7. Learned counsel for the petitioner contended that pursuant to the Tender dated 03.05.2019 issued by respondent No.3 for award of licence for display of Advertisements viz. Hoardings, Boards, Wall paintings, Digital Display with LED screens, at earmarked areas at out-of-home locations , petitioner became successful bidder in respect of Package-D, for a period of five years, and a LoA dated 13.7.2019 was issued by respondent No.3; that as per the LoA, the area promised to be provided to the petitioner for the advertisements, etc. is 64,648 square feet under various categories of erection; that out of the said area, municipal permission is required for erection in 23,380 square feet and the respondent No.3 has not provided space of an extent of 19,129 square feet to the petitioner; that though the petitioner applied for municipal permission, the same is awaited from 4th respondent; that inspite of the same, respondent No.3 issued demand notices dated 26.8.2021, 29.12.2021 and 30.05.2022 demanding licence fee after deducting pro rata charges only for 7,749 square feet; that though the petitioner submitted representation dated 19.1.2022, without considering the same, the respondents are threatening to take action, and hence, the Writ Petition.

8. On the other hand, it is contended by the learned counsel for respondent No.3 that the petitioner paid Rs.1,30,50,000/- for the first six months of first year licence period and failed to pay any licence fee as per the LoA, inspite of periodical reminders. It is his further contention that without paying the licence fee, the petitioner is utilizing the said area also by displaying advertisements and enjoying the revenue generated out of it. He further submitted that as per the survey conducted by a Committee of Officers of railway, an extent of 7,749 square feet area is not made available and as such proportionate licence fee of Rs.33,80,787/- has been reduced, but the petitioner failed to pay the amount and a sum of Rs.6,14,16,432/- is due from the petitioner for the period from 20.03.2020 to 19.03.2024, and the security deposit amount submitted by the petitioner is minimal and is not sufficient to meet the amount due by the petitioner.

                  He further submits that the areas allotted as per the LoA are exclusive railway properties, and as such permission from municipality for erecting hoardings, etc. is not necessary, and that except for the first six months, the petitioner did not pay any amounts to the railway authorities even though the petitioner is displaying advertisements in the said area, and hence, the petitioner is not entitled to any relief in the present Writ Petition.

                  He submits that the Writ Petition is not maintainable as there is no infringement of any Fundamental or Statutory right of the petitioner; that there is an alternative efficacious remedy as per Clause 27 of the Special Conditions of Contract, whereunder the dispute relating to the LoA has to be resolved by way of Arbitration. Hence, he prays to dismiss the Writ Petition.

9. Now, the point that arises for determination in the present Writ Petition is whether the petitioner is entitled to the relief sought in the present Writ Petition with regard to the demand of licence fee by the respondents in respect of 42,508 square feet area or whether the petitioner has to be relegated to avail the alternative efficacious remedy for redressal of its grievance, as contended by the respondents?

10. It is not in dispute that an LoA dated 13.7.2019 was issued to the petitioner in respect of Package-D pursuant to a bid submitted by the petitioner in response to Tender dated 03.05.2019 issued by respondent No.3 for award of licence for display of Advertisements, etc. as mentioned therein, for a period of five years from 20.09.2019 to 19.09.2024, for a total licence fee of Rs.13,85,91,000/-. It is also not in dispute that the petitioner paid Rs.1,30,50,000/- for the first six months of first year licence period.

11. This Court perused the pleadings and documents filed by the parties to the Writ Petition. The issues raised by the parties are all disputed questions of fact which arose in the course of the execution of works under the agreement entered into between the petitioner and respondents-railways pursuant to the Letter of Allotment dated 13.7.2019 issued by respondent No.3 to the petitioner.

12. According to the petitioner, it was not possible to erect hoardings at certain locations in the area allotted to it, and hence, it requested to provide alternative space for the deficit areas or reduce the license fee pro rata, vide representation dated 29.7.2019. It is the further case of the petitioner that it requires permission from 4th respondent for displaying advertisements, etc. in an area of 23,380 square feet out of total area of 64,648 square feet offered to the petitioner, and it addressed a letter dated 30.1.2021 to 4th respondent seeking the said permission. According to the petitioner, the permission is not accorded by 4th respondent for various reasons. It is the further case of the petitioner that an area of 19,128 square feet is not provided by respondent No.3 to the petitioner, and hence, the only area available for advertising 22,140 square feet, but ignoring the same, respondent No.3 issued the impugned notice dated 26.8.2021  demanding licence fee, by deducting pro rata charges for only 7,749 square feet. It is the case of the petitioner that pursuant to the same, it submitted a reply dated 31.8.2021, but without considering the same, another impugned letter dated 29.12.2021 was issued demanding the licence fee in the same lines after deducting pro rata charges for only 7,749 square feet. It is its case that though it submitted another representation dated 19.1.2022, the respondent No.3 did not consider the same, and issued another letter dated 30.05.2022.

13. According to respondent No.4, no authority is vested with the Municipal Corporation that requires permission to be granted for erecting Advertisement /Display Board on railway land and such permissions shall not be necessary in respect of any advertisement relating to the business of any railway administration. It is its case that policy and guidelines regarding the said issue are awaited from the Government and hence, the petitioner was informed the same vide letter dated 30.01.2021.

14. It is the case of respondent No.3 that according to the survey conducted by the committee of officers of railway department, only 7,749 square feet of land was not made available to the petitioner, and hence, the licence fee was deducted pro rata for 7,749 square feet. It is the specific case of respondent No.3 that the petitioner is utilizing the said area for displaying advertisements without paying licence fee and enjoying the revenue generated out of the same, but except Rs.1,30,50,000/- paid for the first six months of first year licence fee, petitioner did not pay any amount as per the LoA, and that the amounts due by the petitioner are accruing day by day on accounts of its non-payment, and a sum of Rs.6,14,16,432/- is due by the petitioner for the period from 20.3.2020 to 19.03.2024, and the security deposit given by the petitioner is too meagre to realize the same. It is also the specific case of respondent No.3 that the areas allotted as per the subject LoA to the petitioner are exclusive railway properties/lands and as such permission of 4th respondent for advertising in the said areas, does not arise.

15. The issues raised in the present Writ Petition arise out of the execution of the work pursuant to an agreement entered into between the petitioner and the railways. The issues -whether the respondent No.3 failed to hand over the total site as agreed upon under the LoA to the petitioner, as contended by the petitioner, or not; whether the petitioner is utilizing the total area, except 7,749 square feet, for advertising and enjoying the revenue derived therefrom, and evading to pay the licence fee, as contended by the respondents, or not; whether any permission from 4th respondent-municipality is required for displaying advertisements, etc. in certain portion of the land allotted to the petitioner by respondent No.3 or not; what is the amount payable by the petitioner towards license fee pursuant to the subject agreement entered into between the parties, etc., are all disputed questions of fact, which cannot be decided in a Writ Petition filed under Article 226 of the Constitution of India.

16. According to the respondent No.3, as contemplated under Clause 27 of the Special Conditions of Contract, there is a remedy provided to the petitioner to resolve the disputes arising from the subject LoA.

                  According to respondent No.3, the disputed questions of fact, as urged by the petitioner and denied by respondents, cannot be decided in the present Writ Petition. This Court is totally in concurrence with the said contention. Clause 27 of the Special Conditions of Contract deals with “Arbitration Clause‟. According to the said clause, if any dispute in regard to implementation of the agreement with the railway, difference or claim arising out of this agreement, shall be referred to a sole arbitrator who shall be appointed by the General Manager, South Central Railway. The issues raised in the present Writ Petition arose in the course of implementation of the subject agreement entered into, between the petitioner and respondent-railways. From the averments made in the affidavit filed in support of the Writ Petition and the averments made in the counter affidavits, this Court is satisfied that the issues raised therein are all disputed questions of fact, which, ordinarily, this Court cannot decide in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. There is no breach of any fundamental or statutory right of the petitioner, which calls for interference of this Court in exercise of its extraordinary jurisdiction. However, the parties are relegated to avail the alternative remedy available under the terms of the contract, to resolve the disputed issues between them.

17. On this aspect, it is pertinent to refer to a decision in State of Bihar v. Jain Plastics and Chemicals Limited((2002) 1 SCC 216) wherein it is held thus: (paragraph 7)

                  “7. In our view, it is apparent that the order passed by the High Court is, on the face of it, illegal and erroneous. It is true that many matters could be decided after referring to the contentions raised in the affidavits and counter-affidavits, but that would hardly be a ground for exercise of extraordinary jurisdiction under Article 226 of the Constitution in case of alleged breach of contract. Whether the alleged non-supply of road permits by the appellants would justify breach of contract by the respondent would depend upon facts and evidence and is not required to be decided or dealt with in a writ petition. Such  seriously disputed questions or rival claims of the parties with regard to breach of contract are to be investigated and determined on the basis of evidence which may be led by the parties in a properly instituted civil suit rather than by a court exercising prerogative of issuing writs.”

18. It is settled law that writ is not the remedy for enforcing contractual obligations. Writ Petition under Article 226 is not the proper proceedings for adjudicating such disputes. In such a case, the High Court is not expected to minutely examine the merits of the case and act as a court of appeal, as the same would be nothing but by-passing the established statutory machinery. It is open to the parties to approach the court of competent jurisdiction for appropriate relief for breach of contract. It is settled law that when an alternative and equally efficacious remedy is open to the parties to the contract, they are required to pursue that remedy and not permitted to invoke the writ jurisdiction of the High Court. It is also settled that existence of alternative remedy does not affect the jurisdiction of the Court to issue writ, but ordinarily that would be a good ground for refusing to exercise the discretion under Article 226 of the Constitution of India.

19. In view of the foregoing discussion, this Court is of the opinion that there is no infringement of any Fundamental or Statutory right of the petitioner so as to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India, and the parties can be relegated to the alternative remedy available to them under the terms of the Contract.

20. Accordingly, the Writ Petition is devoid of merits and is dismissed. However, the parties are relegated to avail the remedy available to them under the Agreement to agitate the issues in controversy, before the competent forum. No costs.

Miscellaneous petitions pending, if any, in the Writ Petition shall stand closed.