Final Order 1

Order Details: Notice of Motion
Pdf Text: MHCC010000732019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.34 OF 2019
IN
LONG CAUSE SUIT NO 911 OF 2011
M/s. V. R. Advertisers ... Plaintiff
V/s.
1. The Municipal Corporation of
Greater Mumbai and Ors. ... Defendants
CORAM : HER HONOUR JUDGE
SMT. S.G. SHAIKH
CITY CIVIL COURT
GR.MUMBAI ( C.R.NO.06)
DATE : 06/05/2022
Adv. Mr. Kiran Jain alongwith Adv.Mr. Rajesh Patil for the plaintiff.
Adv.Ms.Deepali Patil a/w Adv. Mr. Som Sinha for the defendants.
ORAL ORDER
1. This Notice of Motion is taken out by the plaintiff to order
and direct the defendants BMC to accept the permit fees and licence
fees from the plaintiff with regard to the suit hoarding and renew the
permit No. 761101192 from time to time and allow the plaintiff to
continue display advertisement from time to time on the suit hoarding,
situated in the compound of Mamta 'A' Cooperative Housing Society,
Prabhadevi, Mumbai400 025 as per guidelines laid down by the
Honourable High Court in PIL No.1132 of 2002, the implementation
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and operation of orders dated 03.12.2015 and 19.07.2018 passed by
the Deputy Municipal Commissioner (Special) and joint Municipal
Commissioner (DM) with regard to the suit Hoarding and defendants be
restrained by an order and injunction from removing or demolishing the
plaintiff's hoarding situated in the compound of Mamta 'A' Cooperative
Housing Society, Prabhadevi, Mumbai400 025.
2. The defendant corporation has filed reply to the same and
contested the notice of motion.
3. Perused the notice of motion and reply of the defendant
corporation. Heard advocates for the parties at the length. Perused the
written notes of argument filed by the defendant corporation.
4. This notice of motion is under Order 39 Rule 1 of Code of
Civil Procedure, 1908, wherein the plaintiff has prayed for permission
to display hoarding advertisement against the claim of the defendant
corporation to deposit license fees.
5. The hoarding is in existence since the year 1993. It was
used for displaying advertisement in the year 2007.
6. In this suit, there is an order of Court dated 22.11.2011 by
which there is an order of temporary injunction against the demolition
of the said hoarding. As per the said order in notice of motion No.
1054/2011 till the suit is conclusively decided the hoarding is protected
and it was ordered by the Court that the plaintiff shall not display the
advertisement in the said hoarding.
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7. There is a dispute as to payment of license fees between
plaintiff and defendant corporation. By the order dated 10.12.2018, the
Court has directed the plaintiff to deposit 50% license fees which come
to Rs 16,50,000/ and the same is deposited by the plaintiff with the
defendant corporation.
8. The defendant corporation by the order and notice dated
08.04.2011 has restrained the plaintiff from displaying advertisement
over the hoarding. At the same time, the defendant corporation is
demanding licence fees for the period for which advertisement is not
allowed to be displayed. The defendant corporation has also issued
notice and order dated 03.12.2015 and 19.07.2018 in respect of the
said hoarding.
9. The stand of the defendant corporation is that licence fees
should be paid for all that period for which the hoarding is in existence
in past and in future.
10. Now the things should be understood from the point of
State Exchequer. Licence fees and display charges collected by the
defendant corporation is source of revenue to the same and it is a
ultimately a contribution to the public fund, which will be used for the
welfare and in the interest of public at large. Therefore, if there are two
probable options, without affecting substantive rights of either party,
the Court should opt for the option which will serve the public interest
at large.
11. This is a matter of adjudication as to whether the plaintiff is
liable to pay license fee for this hoarding for the period for which
plaintiff was not allowed to display advertisement. The licence fees are
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not for use of land. The land over which the hoarding is erected and
standing is a private land of society and the plaintiff is paying separate
licence fees for use of said land to the society. This licence fee which
defendant corporation is charging is fixed licence fee for allowing the
plaintiff to just erect a hoarding. There is a additional fees under the
head of display fee/ charges which are charged in addition to licence
fees.
12. Now, the order as to temporary injunction has attained
finality. The hoarding is already protected by the order of temporary
injunction dated 22.11.2011. An amount of 50% of license fees i.e. Rs.
16,50,000/ is paid by the plaintiff in compliance of order dated
10.12.2018. However, the defendant corporation is not allowing to
display the advertisement, at the same time, it is charging licence fees
for the past and future period without allowing the plaintiff to display
advertisement .
13. It is the job of the Court to balance the equities i.e. (I)
What are the consequences of rejecting this notice of motion visavis
(ii) what are the consequences of allowing the same in the light of
interest of public at large as defendant corporation ultimately represent
public will in the capacity of Local Self Government. Except the issue of
payment of arrears, there is no other reason for defendant corporation
to refuse permission to display advertisement on the said hoarding.
Secondly, the hoarding will remain on the said land as it is till the
disposal of the suit in view of protection granted by the order dated
22.11.2011. It is not helpful for any of the parties. Now there is no
purpose for defendant corporation to keep the hoarding without any
display. No public cause will be served by keeping the hoarding without
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any advertisement. This is the first probability , if this Court is reject this
Notice of motion. In this contingency on the side of the State
Exchequer, as the advertisements are not allowing to be displayed on
the said hoarding, defendant corporation will not get display fees.
Whereas, the defendant corporation will continue to claim right to
recover license fees for the period for which defendant corporation itself
restrained the display of advertisement. There is a substantial question
of law before the Court , as to whether plaintiff is liable to pay the
licence fees for the period for which he is not allowed to display an
advertisement by the defendant corporation . This is a triable issue. It is
a matter of adjudication. But in ordinary circumstance defendant
corporation cannot be allowed to restrain the displayed of
advertisement on one hand and charged licence fees on the hoarding on
the other hand. The hoarding without advertisement is a debris of metal
like any other material. Unless the plaintiff earns out of hoarding, how
he can ask to pay?
14. The second possibility is to simply allow the display of
advertisement over the hoarding which is erected with the permission ,
authority and which was used for displaying advertisement for a years.
The display of advertisement on the said hoarding if allowed is not
likely to harm interest of any of the party. If the plaintiff is allowed to
just display advertisement over it, the defendant corporation will get
licence fees as well as display fees. This will credit to the income of the
defendant corporation i.e. State Exchequer. In short , if hoarding is
going to be there till the decision of the suit, why the State Exchequer
should be deprived of its revenue.
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15. In this background, this Court has to choose between above
stated two contingencies. This Court will choose the option where the
State Exchequer would get revenue. The hoarding is already protected
vide order dated 22.11.2011. But, the defendant corporation has also
issued order and notice dated 03.12.2015 and 19.07.2018 for removal
and demolition of the said hoarding. Therefore, the defendant
corporation has to be restrained from implementing on order and notice
dated 03.12.2015 and 19.07.2018.
16. Before passing the final order over this certain things are
clarified as under:
(a) that the dispute as to liability to pay arrears of
license fees is subject matter of adjudication in this
suit. The arrangement is made of future period and
the claim of right to recover the arrears of licence
fees for the period for which advertisement was not
allowed to be displayed will be adjudicated on
evidence at the time of judgment of this suit.
(b) that the municipal corporation shall permit
the plaintiff to display the advertisement and plaintiff
is liable to deposit license fees as well as appropriate
display fees from the date on which plaintiff is
allowed to display advertisement
(c) The defendant corporation shall issue all
necessary permission and allowed the plaintiff to
deposit license fees and display fees in future.
17. With these clarifications and in view of above discussions,
this notice of motion deserves to be allowed and following order is
passed.
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ORDER
1. The Notice of motion No. 34/2019 is allowed as follows:
(a) The plaintiff is hereby permitted to display
advertisement over the suit hoarding till the decision of
the suit or till further modification of this order.
(b) The defendant corporation shall permit the plaintiff to
deposit license fee and advertisement display fee for the
period subsequent to this order.
(c) The defendant corporation shall issue all necessary
permissions to the plaintiff to enable him to display
advertisement.
(d) Right to defendant corporation to recover license fee for
the period for which defendant corporation has
restrained the plaintiff from displaying advertisement
on the said hoarding shall be adjudicated in the suit
and right of plaintiff to display advertisement shall not
be withhold for the arrears of this period.
2. The order be complied within one month and the compliance
to be reported to this on the next schedule date.
3. Interim relief in terms of clause No.(b) and (c) is also
granted.
4. The Notice of Motion No.34/2019 is disposed off.
(Smt. S.G.Shaikh)
Date 06/05/2022 Judge,City Civil Court,
Gr.Mumbai.
Dictated on :06/05/2022
Typed on :06/05/2022
Signed on :
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“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
09/05/2022 01.00 p.m. ( Mayuresh P. Tathe)
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
room No.)
HHJ Smt. S. G. Shaikh (C.R.No.06)
Date of Pronouncement of
JUDGMENT/ORDER
06/05/2022
JUDGMENT/ORDER signed by
P.O.on
09/05/2022
JUDGMENT/ORDER uploaded on 09/05/2022
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