Final Order 1

Order Details: Order below exhibit
Pdf Text: 1 Common Order on Exh-A
IN THE CITY CIVIL COURT FOR GREATER BOMBAY
AT BOMBAY.
COMMON ORDER ON EXHIBIT A
IN
L.C. SUIT NO. 5300 OF 2012
(CNR no. MHCC010161612012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 5301 OF 2012
(CNR no. MHCC01 0161622012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 5302 OF 2012
(CNR no. MHCC01 0161632012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 5303 OF 2012
(CNR no. MHCC01 0161642012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
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L.C. SUIT NO. 5304 OF 2012
(CNR no. MHCC01 0161652012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 5305 OF 2012
(CNR no. MHCC01 0161662012)
Mehrunnissa Kalimullah Sayed ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 514 OF 2013
(CNR no. MHCC01 0006302013)
Hiroo Jethanand Thadani ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 1162 OF 2013
(CNR no. MHCC01 0012932013)
Shri Jhaverbhai Tarjabhai Patel Smarak Trust ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 1163 OF 2013
(CNR no. MHCC01 0012942013)
Shri Jhaverbhai Tarjabhai Patel Smarak Trust ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
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3 Common Order on Exh-A
L.C. SUIT NO. 714 OF 2013
(CNR no. MHCC01 0008442013)
Deepak Balkrishna Jadhav ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 891 OF 2013
(CNR no. MHCC01 0009982013)
Sandip Kashinath Wade ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 991 OF 2013
(CNR no. MHCC01 0011572013)
Fahim Haroon Batliwala ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
L.C. SUIT NO. 2770 OF 2010
(CNR no. MHCC01 0035932010)
Bindu Shailen Mewar ]... Plaintiff
Versus
The Municipal Corporation of Greater Mumbai ]... Defendants
Coram : Dr. M. S. Deshpande, Judge
(Court Room no. 05)
Date : 3rd January, 2019.
Mr. Shoaib Memon with Ms. Memon, advocates for plaintiff.
Mr. Atif Shaikh, Mr. Gajanan Shinde, Mr. Parshurami, Mr. Vikram
Walavalkar with Ms. Deepali Patil advocates for defendant M.C.G.M.
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COMMON ORDER
1. In all the aforesaid suits, the defendant corporation has
moved applications dated 08.09.2017 seeking summary disposal of the
suits with a direction to the respective plaintiffs to approach before the
Competent Authority, in furtherance of the directions / guidelines
issued in the judgment dated 30.07.2012 by the Hon'ble High Court of
Bombay (Coram : Mohit S. Shah, C.J. & N. M. Jamdar, J.) passed in
W.P. no. 1132 of 2002 along with various related petitions in respect of
hoarding matters.
2. The subject matter of all the applications is one and the
same and therefore, all the applications are decided by common order
after hearing the respective advocates at length. The aforesaid suits and
their nature can well be considered in following tabulated form :
Sr.
No. Suit No. Date of Suit
Date of
impugned
notice
Date of
impugned
order
Reliefs
claimed
1. 5300 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
2. 5301 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
3. 5302 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
4. 5303 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
5. 5304 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
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Sr.
No. Suit No. Date of Suit
Date of
impugned
notice
Date of
impugned
order
Reliefs
claimed
6. 5305 of 2012 17.12.2012 03.11.2012 12.12.2012
Declaration
and
Injunction
7. 514 of 2013 02.02.2013 09.11.2012 31.12.2012
Declaration
and
Injunction
8. 1162 of 2013 14.03.2013 02.01.2013 11.03.2013
Declaration
and
Injunction
9. 1163 of 2013 14.03.2013 02.01.2013 11.03.2013
Declaration
and
Injunction
10. 714 of 2013 15.02.2013 05.01.2013 04.02.2013
Declaration
and
Injunction
11. 891 of 2013 26.02.2013 26.11.2012 31.12.2012
Declaration
and
Injunction
12. 991 of 2013 07.03.2013 09.11.2012 08.02.2013
Declaration
and
Injunction
13. 2770 of 2010 18.12.2010 05.08.2008 13.10.2010
Declaration
and
Injunction
3. The learned advocates for the defendant corporation
submitted that by order dated 30.07.2012 the Hon'ble High Court
directed to place the said order before all the Courts where the matters
relating to hoardings / sky signs are pending. They also submitted that
in view of the said order it is necessary for the plaintiffs to prefer
appeals before the Competent Authority and thus, the suits are not
maintainable. The learned advocate Mr. Walavalkar submitted that
though the jurisdiction of Civil Court is not taken away, the suits are not
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maintainable in view of the directions issued by the Hon'ble High Court.
4. On the other hand, the learned advocate Mr. Memon for
the plaintiffs in all the suits submitted that the defendant corporation is
wrongly interpreting the aforesaid order dated 30.07.2012. According
to him, the defendant corporation is avoiding to argue on the notices of
motion. He further submitted that by orders dated 03.05.2017 passed in
all the suits the learned Predecessor of this Court held that Civil Court
has jurisdiction to entertain and try these suits. He further submitted
that effect of the order dated 30.07.2017 is considered by the Court.
According to him, if the plaintiffs seek redress in the Court of Law for
the same cause, the appeal shall stands dismissed automatically. He
further submitted that the Hon'ble High Court has not directed that the
City Civil Court shall not entertain any such suits.
5. On perusal of record, it appears that the plaintiffs applied
to defendant corporation for renewal of their licenses / permits in
furtherance of the aforesaid order dated 30.07.2012. In suit no. 2770 of
2010, the plaintiff was directed to reduce the size of hoardings. In
remaining suits the defendant corporation issued impugned notices to
the respective plaintiffs to show cause as to why action should not be
taken for non rectification of violations and non compliance of terms
and conditions of the existing Policy Guidelines, 2007, for permission to
display advertisements under Section 328, 328A of Mumbai Municipal
Corporation Act (M.M.C. Act) with reference to the aforesaid order
dated 30.07.2012. The plaintiffs replied the said notices. The concerned
Deputy Municipal Commissioner, thereafter, passed impugned orders by
holding that the plaintiffs did not rectify the violations and therefore, in
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furtherance of directions given in the aforesaid order dated 30.07.2012
the applications for renewal of permits for hoardings were rejected. The
plaintiffs were directed to remove the hoardings within stipulated time.
The plaintiff in suit no. 2770 of 2010 was directed to reduce the size of
hoardings.
6. Therefore, the plaintiffs instituted these suits seeking
directions that the impugned notices and orders are issued with mala
fide exercise of powers and they are null and void etc. The plaintiffs
have also prayed for permanent injunction for restraining the defendant
corporation from acting upon impugned notices and orders. Reliefs of
adinterim injunctions are granted in favour of the plaintiffs.
7. The learned Predecessor of this Court, by judgment and
order dated 03.05.2017, had been pleased to decide a preliminary issue
as to jurisdiction by holding that this Court has jurisdiction to try the
suits in view of the order dated 30.07.2012. The defendant corporation
has not placed anything on record to show whether it has challenged
the said judgments and orders. However, the present application has
been made on different footing to the effect that in view of the
directions and guidelines given by Hon'ble High Court in the order
dated 30.07.2012, the plaintiff be directed to approach Competent
Authority and the suit be disposed off accordingly. Thus, there is no bar
to decide this application when this Court has already decided the
preliminary issue as to jurisdiction and there would not be any review
of the order dated 03.05.2017.
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8. It is undisputed that the plaintiffs have not challenged the
impugned notices and orders before Additional Municipal
Commissioner / Competent Authority.
9. So far as, the order dated 30.07.2012 passed in W.P. no.
1132 of 2002 (Dr. Anahita Pandole vs. State of Maharashtra & others),
the Hon'ble High Court after going through an affidavit dated
27.07.2012 filed by the Superintendent of License of M.C.G.M.
considered the modalities suggested by the Municipal Commissioner for
processing the applications for renewal of licenses for display of
hoardings / sky signs [referred in paragraph no. 2 (i to iv) of the
judgment] and further considering the submissions made by respective
advocates disposed off the said writ petition by laying down directions
in paragraph no. 6 (i to vii) with a specific direction in paragraph no. 8
that in cases where the litigation about the hoardings / sky signs is
pending, the corporation place a copy of the order dated 30.07.2012
before the concerned Court at earliest.
10. Except suit no. 2770 of 2010 none of the remaining suits
was pending on 30.07.2012. The clause no. (vi) of paragraph no. 6 of
the said judgment provides for forum to prefer an appeal to the effect
that when a party aggrieved by the decision of Deputy Municipal
Commissioner will have right to prefer an appeal before Additional
Municipal Commissioner and during pendency of appeal, the hoarding
need not be pull down. At the same time the advertisement shall not be
displayed. The Appellate Authority shall endeavor to hear and decide
the appeal within four weeks. Thus, a special and an equally efficacious
remedy is made available to the person aggrieved by the decision of
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Deputy Municipal Commissioner.
11. By deciding the preliminary issue it has been held that the
Civil Court has jurisdiction. It is well settled position of law that where
the party contends that the concerned authority committed an error of
jurisdiction and mala fide exercise of powers, the Civil Court has
jurisdiction. However, except the suit no. 2770 of 2010, all these suits
were not pending on 30.07.2012 when the Hon'ble High Court issued
certain directions in W.P. No. 1132 of 2002 for processing the
applications for renewal of licenses for display of hoardings / sky signs.
Thus, the suits were filed subsequently in utter violation of the
guideline given in paragraph no. 6 (vi) of the said judgment. In addition
to that the said guidelines are also applicable to the suits pending on
30.07.2012, in view of directions given in paragraph no. 8 of the said
judgment. Therefore, when a Special Forum / Appellate Authority has
been provided, the plaintiffs had no reason to file suit in Civil Court by
avoiding to approach the said forum or side tracking the same.
12. The learned advocate Mr. Memon submitted that the
appeals so filed by some aggrieved advertisers before the Appellate
Authority / Additional Municipal Commissioner are not disposed off
within four weeks and many appeals are pending for period of more
than 6 months. According to him, if an appeal is preferred, the
advertiser has to pay license fees to corporation in addition to rent to
his landlord without any display of advertisements. On consideration of
these contentions, it appears that they are not sufficient to give go bye
to the Special Forum / Appellate Authority and institute civil suit by
raising contentions that the Deputy Municipal Commissioner by mala
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fide exercise of powers passed the impugned orders, and that too, when
the Hon'ble High Court has provided a Special Forum in the form of an
Appellate Authority for redress of grievances. Merely, by contending
that the Civil Court also has jurisdiction, will not take away the
appellate jurisdiction of Additional Municipal Commissioner. Even it
will not confer any right on the plaintiffs to directly approach Civil
Court by short cut method by avoiding the Appellate Authority. It
appears that the plaintiffs are not having cause of action to approach
directly to Civil Court.
13. The plaintiffs are trying to mix up two different issues, viz.
the jurisdiction of Civil Court and plaintiffs' right to approach a forum
i.e. either Civil Court or the Appellate Authority. Thus, merely on the
ground that jurisdiction of Civil Court is not excluded, the plaintiffs can
not avoid to approach the Special Forum / Appellate Authority /
Additional Municipal Commissioner to seek redress of the orders passed
by the Deputy Municipal Commissioner. The plaintiffs can not adopt
short cut method to approach Civil Court by ignoring the Appellate
Authority and merely making averments about commission of
jurisdiction error or mala fide exercise of powers by the concerned
Deputy Municipal Commissioner. The plaintiffs have to follow the
guidelines given by the Hon'ble High Court in the aforesaid judgment
and order dated 30.07.2012 passed in W.P. no. 1132 of 2002. The said
guidelines are equally applicable to the suits pending on 30.07.2012
and filed subsequently.
14. Therefore, in view of the directions given in the aforesaid
order dated 30.07.2012 the suits filed by the plaintiffs are not
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maintainable. They are required to be dismissed. Thus, the following
order is passed:
ORDER
1. The applications dated 08.09.2017, Exhibit A in the respective
suits are allowed.
2. The L. C. suit no. 5300 of 2012, suit no. 5301 of 2012, suit no.
5302 of 2012, suit no. 5303 of 2012, suit no. 5304 of 2012, suit
no. 5305 of 2012, suit no. 514 of 2013, suit no. 1162 of 2013,
suit no. 1163 of 2013, suit no. 714 of 2013, suit no. 891 of 2013,
suit no. 991 of 2013, suit no. 2770 of 2010 are disposed off by
this common order.
3. The plaintiffs in all aforesaid suits are at liberty to approach the
Appellate Authority / Additional Municipal Commissioner for
redress of their grievance against the impugned orders on or
before 04.02.2019.
4. The defendant corporation is directed that no coercive action be
taken against the suit hoardings / sky signs till 04.02.2019.
5. The notices of motion, chamber summonses, if any, pending in
the aforesaid suits are disposed off.
6. In each suit the respective parties to bear their own costs of the
suit.
(Dr. M. S. Deshpande)
Judge,
Date : 03.01.2019 City Civil Court, Mumbai.
Directly dictated on dias computer : 03.01.2019
Checked by HHJ on : 03.01.2019
Signed by HHJ on : 03.01.2019
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE AND TIME : 04.01.2019 at 12.11 p.m.
NAME OF STENOGRAPHER : Mrs. Gayatri P. Acharekar
Name of the Judge (With Court
Room no.)
HHJ Shri. M. S. Deshpande
C.R. no.05
Date of Pronouncement of
JUDGMENT/ORDER
03/01/2019
JUDGMENT/ORDER signed by
P.O. on
03/01/2019
JUDGMENT/ORDER uploaded
on
04/01/2019
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