1 APHC010593092024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3458] TUESDAY ,THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION NO: 30914/2024 Between: Vld Agency And Contractors ...PETITIONER AND The State Of Ap and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. S LAKSHMINARAYANA REDDY Counsel for the Respondent(S): 1. V HIMABINDU 2. GP FOR ENDOWMENTS APHC010503232024 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3458] TUESDAY ,THE FIRST DAY OF APRIL TWO THOUSAND AND TWENTY FIVE PRESENT 2 THE HONOURABLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION NO: 25872/2024 Between: Vld Agency And Contractors ...PETITIONER AND The State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: 1. S LAKSHMINARAYANA REDDY Counsel for the Respondent(S): 1. V HIMABINDU 2. GP FOR ENDOWMENTS The Court made the following: COMMON ORDER:- The Writ Petitions are filed challenging the proceedings of the 2nd respondent refusing to extend the lease period with effect from 01.12.2024 to 30.11.2026 and directing the petitioner to pay a license fee of Rs.2,06,38,199/-. 2. It is contended by the petitioner that he was the successful bidder for managing vehicle parking and collecting toll fees for the vehicles reaching Temple Hill for two years, with effect from 01-06-2023 to 31-05-2025, and was therefore granted the license accordingly. Thereafter, upon the representation made by the petitioner, the lease for the first year was extended till 30-11-2024 by the 3rd respondent vide proceedings dated 09-09-2024. 3 3. The petitioner, vide her representation dated 07-11-2024, requested the 2nd respondent for an extension of the lease, citing that the „ghat road‟ leading to the temple hill was closed between July 2024 to September 2024, for fortifying the retention wall along the road that leads to the temple hill. 4. Thereafter, the petitioner vide another representation of the same date, i.e., 07-11-2024, had yet again requested the 2nd respondent that on account of the development activity and civil construction at „Kanakadurga Nagar‟ by the temple authorities, the parking area licensed in favour of the petitioner was closed entirely and since in all likelihood the said development activity would continue for some more time. The petitioner requested an extension of the license for another term of two years since the parking space at “Kanakadurga Nagar” will not be used by the public and the parking space on the hillock alone would be available, therefore requested for extension of the lease for another two years. If the same is agreeable to the authorities, the petitioner would remit the agreed license fee for the second year. 5. The 3rd respondent - Commissioner, vide proceedings dated 18-06-2024 rejected the said representation of the petitioner having regard to the tender conditions, more particularly the condition No.11 and also by further observing that though the parking space at “Kanakadurga Nagar” was partially inoperative. At the request of the petitioner, she was permitted to use an alternate land belong to the Water Resources department in an Ac-3.39 Cents 4 near “Seethammavari paadalu” and thus directed the Petitioner to remit the license fee including the GST amounting to Rs.2,06,38,199/- on or before 30-11-2024. Challenging the same, the present Writ Petition is filed. 6. It is contended by the Petitioner that she was the highest bidder in the tender for collecting toll for the vehicle parking uphill through the „ghat road‟ as well as down the hill at „Kanakadurga Nagar‟. However, since both the places viz; mainly the „ghat road‟ was closed from July to September 2024, and since the parking space at Kanakadurga Nagar downhill also was partially inoperative on account of civil construction activity, the Petitioner incurred losses. Thus, having collected the license fee from the Petitioner, the respondents are under the obligation to extend the lease by a further period of two years with effect from 01-12-2024, permitting the Petitioner to collect the toll fee at „ghat road‟. 7. The 2nd respondent filed a counter affidavit stating that the Writ Petition is not maintainable, having regard to the availability of alternative remedy before the Arbitrator, in terms of Clause 31 of the tender conditions. It is further stated that the Petitioner was given an alternate site in lieu of the partially inoperative parking space in the downhill area of Kanakadurga Nagar. While calling for tenders, the Petitioner was made aware of the contingencies, as specified under tender conditions, clearly indicating that the temple would not be responsible for any such contingencies or unforeseen situations. 5 8. It is further stated that for the second spell of the lease commencing from 01-12-2024 to 30-11-2025, the petitioner has to pay the enhanced license fee at 10% on the existing license fee i.e., Rs.1,74,89,999/- and the applicable GST, which would be Rs.31,48,200/- on or before 30-11-2024, however the Petitioner had remitted only Rs.45,00,000/- and the nonpayment of balance license fee would automatically render the license cease. The averment that the uphill road was closed from 12-07-2024 to 25-07-2024 on account of incessant rains and thereafter from 30-08-2024 to 25-10-2024, the uphill road was closed due to a fall of a retaining wall for a period of 64 days. The 2nd respondent states that the same may not be true having regard to the fact that a total of 35,339 vehicles were passed through the uphill ghat road and given the alternate site of Ac-3.39 cents that was provided at Seethammavari paadalu, the petitioner’s grievance thus was appropriately addressed by the respondents. 9. The learned Senior Counsel Sri K.S. Murthy appearing for Sri S. Lakshminarayana Reddy, the learned counsel for the petitioner, would argue that the 3rd respondent passed the impugned order without calling for the ground report from the Executive Officer as was done earlier. He argues that in the first spell of the lease of one year, the petitioner sought an extension of 6 months. The same was granted by the 3rd respondent after calling for a report from the Executive Officer. In contrast, in the present extension, which is now sought by the petitioner, the 3rd respondent has passed the impugned order without calling 6 for the ground report. The petitioner has incurred huge expenditure towards the license fee, however, on account of the closure of the roads and the closure of the parking place that was allotted at the time of granting a license, without any fault of the petitioner, the respondents are duty bound to make good the loss. Regarding the second-year license fee, the petitioner remitted a sum of Rs.94,40,000/- including GST. He thus prays for the Court to grant an extension of the license period having regard to the closure of the parking space down the hill. 10. The learned Senior Counsel Sri Venugopal Rao, appearing for Smt. Hima Bindu, learned counsel for the 2nd respondent, would argue that the Writ Petition is not maintainable, considering the tender conditions, which provides for an alternative remedy of arbitration in case of any dispute regarding the tender conditions. The learned Senior Counsel for the respondent further argues the vehicular movement at uphill between 20-08-2024 and 25-10-2024 cannot be said to be minimal since as many as 35,339 vehicles have passed through the ghat road. Thus, he contends that the petitioner should not have any grievance. He further argues that the petitioner was sufficiently compensated for the loss of parking space at Kanakadurga Nagar by providing an alternate site to the extent of Ac-3.39 cents within the vicinity. Thus, it argues that the petitioner cannot have reason to seek further extension of the license. 11. Considered the rival submissions. 7 12. The contention of the respondents that the petitioner should avail the alternative remedy of approaching the arbitrator may not be sustainable having regard to the fact that the petitioner is seeking extension of the lease period from 01-12-2024 to 30-11-2026, and the relief sought in the Writ Petition is a constitutional right. In this connection reliance is placed on a recent decision of the Hon’ble Apex Court in the case of M/s. Tamil Nadu Cements Corporation Limited Vs. Micro and Small Enterprises Facilitation Council and Another1, wherein it is observed as under: “13. The access to High Courts by way of a writ petition under Article 226 of the Constitution of India, is not just a constitutional right but also a part of the basic structure. It is available to every citizen whenever there is a violation of their constitutional rights or even statutory rights. This is an inalienable right and the rule of availability of alternative remedy is not an omnibus rule of exclusion of the writ jurisdiction, but a principle applied by the High Courts as a form of judicial restraint and refrain in exercising the jurisdiction. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and the same is not limited by any provision of the Constitution and cannot be restricted or circumscribed by a statute. [Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai and Others, (1998) 8 SCC 1; L. Chandra Kumar vs. Union of India and Others, (1997) 3 SCC 261; S.N. Mukherjee vs. Union of India, (1990) 4 SCC 594; Union of India and Others vs. Parashotam Dass, 2023 SCC Online SC 314]. It has been well settled through a legion of judicial pronouncements of this Court that the writ courts, despite the availability of alternative remedies, may exercise writ jurisdiction at least in three contingencies: (i) where there is a violation of principles of natural justice or fundamental rights; (ii) where an order in a proceeding is wholly without jurisdiction; or (iii) where the vires of an Act is challenged. Noticeably, the MSEFC as a statutory authority performs a statutory role and functions within the four corners of the law. 14. Following the aforesaid dictum, this Court in Harbanslal Sahnia and Another vs. Indian Oil Corporation and Others, (2003) 2 SCC 107 had taken notice of the fact that the High Court had referred to 1 (2025) 2 Supreme 229 8 the arbitration clause which the writ petitioner could take recourse to, to hold that the rule of exclusion of writ jurisdiction is a rule of discretion and not of compulsion. In an appropriate case, in spite of availability of alternative remedy, the writ courts can exercise its jurisdiction at least in three contingencies, as referred to above. In the facts of the said case, this Court interfered observing that there were peculiar circumstances as the dealership had been terminated on an irrelevant and non-existence cause.” 13. The 2nd respondent through the tender conditions has amply made it clear to the bidders that in case of any unforeseen climatic conditions and during Navarathri Festival and Bhavani deeksha period, and such of those days as directed by the Police Department, the vehicular movement uphill would be restricted/closed. And it has also been clarified that the temple authorities would not be responsible for the loss to the licensee that may arise on account of closure of the ghat road or restricted movement during the bad weather conditions. Under these circumstances it can be assumed that the petitioner being aware and conscious of the tender conditions participated in the tender process, turned out to be a successful bidder, has accepted the conditions of license. It is not the case of the petitioner that the days during which there was less vehicular movement to uphill would not be attributed to the tender condition Nos.12 and 13. Thus having accepted the tender conditions, be, it climatic conditions or the festival periods the petitioner cannot seek equity under circumstances. 14. The second parking area that was granted to the petitioner is the one at Kanakadurga Nagar, down the hill. The petitioner’s contention is that the 9 said parking space on account of the construction activity carried on by the temple authorities, has been in partial operation therefore an alternate site was provided to the petitioner in the nearby. 15. Further, it is observed from the tender conditions, condition No.21, that on account of any developmental activities, if the temple authorities takes a decision to close the toll gate, the licensee should accordingly suspend the collection of toll, in such circumstances the licensee would be entitled for refund of the proportionate license fee for the unexecuted license period . 16. However in the instant case the authorities did not close the toll, on account of development activities that are being carried out by the temple authorities, at Kanakadurga Nagar, instead, the temple authorities have indentified an alternate site for parking of an extent of Ac.3.39 cents and the petitioner is permitted to have the said area for parking of the vehicles and collect the toll accordingly. 17. Having regard to the same, since the period during which the ghat was said to have been closed or movement was restricted, cannot be attributed to the temple authorities, the few of such closure instances, from the facts can at best be considered as act of god, which any way have been foreseen even while granting license and made known to the petitioner, therefore, it can be said that petitioner was also conscious of the climatic situations that may arise during bad weather leading to closure/restricted movement of the vehicles uphill. For the 10 above reasons it cannot be said that the petitioner has been deprived of toll collection and on that pretext petitioner’s request for extension of license is not justifiable. 18. However, since the petitioner has entered into a license agreement with the second respondent for toll collection in two designated areas, the potential of these locations may have influenced the petitioner to submit the highest bid. The authorities have invited tenders for toll collection at a specific point and have authorized the collection of tolls from devotees visiting the temple to offer prayers in the specified areas. However, if, for any reason, the authorities decide to close one of the two areas and show an alternative location that is farther away, the new area may not attract the same level of demand and potential as the original one for which the petitioner won the contract. Devotees generally prefer to park within the temple premises if parking is available. If they find there is no parking space in the temple, it is unlikely they would expect the temple authorities to provide such a space elsewhere. It may not be found feasible to park the vehicle in a distant place and walk up to the temple. Therefore in my considered view, the petitioner has participated in the tender process being satisfied with the designated areas, if for any reason the designated area is changed, such a change or modification should not result in disadvantageous to the petitioner. 11 19. Therefore, in the circumstances of the case, having regard to clause 21 of tender conditions, I am of the considered view that it is appropriate to direct the 2nd respondent to accept amount lesser than the amount that was bid and agreed by the parties. 20. The matter is remitted to the 2nd respondent for fixing of the license fee afresh for the 2nd year, after taking into consideration the circumstances under which the petitioner was required to choose the alternate parking area. The entire exercise shall be completed within a period of four (04) weeks from the date of receipt of a copy of this order. It is needless to observe that they shall provide an opportunity for hearing the petitioner. 21. With the above directions, the Writ Petitions are disposed of. There shall be no order as to costs. As a sequel, interlocutory applications, pending if any, shall stand closed. ____________________________________ JUSTICE KIRANMAYEE MANDAVA Date:01.04.2025 MVK 12 165 THE HON’BLE SMT JUSTICE KIRANMAYEE MANDAVA WRIT PETITION Nos.30914 & 25872 of 2024 Date:01.04.2025 MVK