Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2008-2019 ORDER 1
MHCC010055772019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2008 OF 2019
IN
S.C.SUIT NO.1453 OF 2019
Bimal Viren Vora & ors. … Plaintiffs
Vs.
The State of Maharashtra & Ors. … Defendants
Appearances:
Ld. Adv. Mr.Jatin Sheth for plaintiff.
Ld.Adv. Ms.Martina Sakpal for defendant No.1 to 3.
Ld.Adv.Chandramore for defendant no.4 & 5/BMC.
CORAM : HER HONOUR AD-HOC JUDGE
SMT. C.V. PATIL
(C.R.NO.09)
DATE : 25th OCTOBER 2021
ORDER
1. The plaintiff Bimal Viren Vora is a partnership firm, it is an
outdoor advertising Contractor carrying on business of outdoor
advertising. The plaintiff has constructed hoarding structure for
displaying thereon permanent illuminated hoarding for advertisements.
In the suit and Notice of motion the plaintiff requested that the Court
may restrain defendant no.2 to 5, its officers, staff, servants etc. from
taking steps for execution of letter dated 9/4/2019. It is one more
prayer from plaintiff that defendant no.4 and 5, its officers, staff,
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NM No.2008-2019 ORDER 2
servants etc.be restrained from taking any action for canceling
permission/license granted in respect of the subject hoardings.
2. Before going ahead it is necessary to go through summary
statement of the plaintiff stated by him in the plaint. The plaintiff is a
sole proprietor of Hoardings Outdoor Advertisement which is interalia
in the business of providing outdoor advertisements throughout the city
of Mumbai. The plaintiff has hoardings located in various private
buildings owned by defendant no.4. Defendant no.1 is the State of
Maharashtra which is formal party in the suit. Defendant no.2 and 3 are
the officers of Traffic Police, Defendant no.4 is Municipal Corporation,
defendant no.5 is the officer of defendant no.4. The plaintiff in the due
course of his business has been displaying advertisements via an
illuminated advertising board located and affixed on permanent steel
structure with cement concrete foundations and made structural steel
with a permanent illuminated hoarding of the size (Hereinafter this
hoarding is referred as subject hoarding). The property in which
hoarding is erected be referred as suit property.
3. The plaintiff has received license in 1989 for hoarding
advertisement. The said hoarding has been duly authorised by
defendants. They have given no objection for the said hoarding but
lateron defendants without any prior indication illegally and with
malafide intention by his order dated 9/4/2019 called the plaintiff to
remove the subject suit hoarding. Thereafter, the defendant no.3 passed
order and revoked his no objection for illumination granted to the
plaintiff in respect of the subject hoarding. Defendant no.3 further
directed the plaintiff to remove the hoarding with immediate effect. The
plaintiff submitted that the said order has been passed by defendant
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NM No.2008-2019 ORDER 3
no.3 by violating principles of natural justice that is without giving
sufficient opportunity of hearing to the plaintiff. Therefore, this suit is
filed for declaration of order dated 29/4/2019 is null and void.
4. The Hon’ble High Court in W.P. No.1132/2002 has given
guidelines to Municipal Corporation about hoardings. Time to time the
hoarding license is also renewed. Suddenly the plaintiff has received
order dated 9/4/2019 from defendant no.2. In that order it is
mentioned that plaintiff has violated clauses Part II A 16(i) (ii) of the
Mumbai Municipal Corporation Policy Guidelines 2007 which reads as
“The neon signs in Residential premises should not be flickering. No
neon hoardings shall be permitted in residential Zones/Localities.” The
plaintiff submits that on the basis of the incorrect assumptions, without
giving the plaintiff any hearing or knowing what the plaintiff have to
say in the matter, the Defendant no.2, has purportedly directed the
plaintiff to immediately remove the suit hoarding and to report to
writing about the remval of the said hoarding to his office within 7 days
which direction is arbitrary, irrational and unfair and tantamounts to
not giving a fair hearing to the plaintiff.
5. Heard learned advocate of plaintiffs and defendant No.1 to 3 at
length. They have also submitted written notes of arguments.
Considering pleadings from both the sides following points arise for my
consideration to which I have given reasons before them :
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NM No.2008-2019 ORDER 4
Sr.Nos. Points Findings.
1 Does plaintiff prove prima facie case ? In Negative
2 Does balance of convenience lies in favour
of plaintiff ?
In Negative
3 To whom irreparable loss would cause if
injunction granted or refused ?
Depend on
observation
4 What order ? NM is dismissed
R E A S O N S
AS TO POINT NOS. 1 TO 3:
6. Heard learned advocate of plaintiff and defendants at length. At
the time of argument the plaintiff has placed reliance on citation of
Hon’ble Supreme Court Oryx Fisheries Private Limited Vs. Union of
India And others, (2008) 13 Supreme Court Cases 427 , in that citation
the Hon’ble Supreme Court has observed about administrative action of
department. But in that citation question was regarding Cargo Ship but
here in the case in hand the question is altogether different and it is
about hoarding. Plaintiff has also placed reliance on notification of
Hon’ble Bombay High Court, issued on 14/3/2020 and one citation of
Hon’ble Bombay High Court passed during Covid-19 Pandemic that is
Writ Petition no.2/2020. Admittedly, at that time the prevailant
circumstance was difficult and almost all movements were shut down.
Therefore in Pandemic the Hon’ble High Court has issued guidelines to
Government, Principal authorities and other agencies that they shall not
take any cohesive steps so as to drive the citizen to Court of law. The
order of defendant no.3 is dated 9/4/2019 and certainly at that time
Covid-19 was not there. Covid-19 was from March-2020. Therefore,
citation of Hon’ble High Court in Writ Petition No.2/2020 is applicable
to the extent whether defendant no.3 can execute its order during
Pandemic. The order is dated 19/4/2019. The Hon’ble High Court
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NM No.2008-2019 ORDER 5
has restrained Government Authorities from taking cohesive steps
during pandemic Covid-19 but now situation has changed and almost
all the Government offices, private sectors, private establishments have
started functioning regularly by following rules of Covid-19. However,
from the citations it appears that the concerned would have to approach
to Hon’ble High Court if there is need to take such kind of steps. Apart
from that whether execution is permitted or not, for that some legal
points are also needs to be taken into consideration while deciding this
notice of motion.
7. It is submission of the plaintiff that from long back Deputy
Municipal Commissioner has granted permission for erecting hoarding
in the suit property. It was continued and renewed by the Deputy
Municipal Commissioner. Plaintiff has produced copy of permission of
the year 12/9/1989 for subject hoarding. In that copy some terms and
conditions are imposed for erecting hoarding. Clause no.7 of the order
shows that the concerned person from traffic department will withdraw
their NOC for the interest of public. Here the defendants have passed an
order and mentioned that the neon sign is in residential premises
should not flickering. No neon hoarding shall be permitted in
residential Zone/locality. Therefore, defendant no.3 has revoked no
objection on the ground of public interest.
8. It is the submission of plaintiff that he has fundamental right to
carry business. Certainly under Article 19 of the Constitution, the
plaintiff has right to carry out business but that fundamental right is
subject to reasonable restrictions. Those reasonable restrictions can be
imposed by State. The defendant no.3 Authority appointed by State,
does functioning on behalf of State therefore, defendant no.3 can
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NM No.2008-2019 ORDER 6
impose reasonable restriction for public interest. The defendant no.3
has revoked no objection on the ground that as per guideline 16(i)(ii)
no neon sign is permitted in residential locality. The plaintiff himself
produced photocopies and has given much emphasis thereon. From
those photographs it appears that the neon sign is on signal junction.
Here the question is not of signal junction but it is of residential locality.
It is the case of plaintiff that neon sign is prohibited in residential
locality. But the subject hoarding is in mixed locality. Therefore, this
guideline rule is not applicable. For the sake of movement if it is
believed that hoarding is in mixed residential locality. But that rule
doesnot show any exception that neon sign is permitted in mixed
locality.
9. Though there is mixed locality but law does not permit such kind
of neon sign in residential locality. That rule does not differentiate
residential locality and mixed locality. Therefore, plaintiff failed to
prove prima facie case. Balance of convenience also not lies in favour of
plaintiff so answer to point no.1 and 2 in the negative. Answer of point
no.3 is depend upon and following order is passed :-
O R D E R
1. Notice of Motion No.2008 of 2019 is hereby dismissed.
2. Notice of Motion No.2008 of 2021 disposed of accordingly.
(C.V. PATIL)
Ad-hoc Judge,
Date : 25/10/2021 City Civil Court, Gr. Bombay
Dictated on : 25/10/2021,
Transcribed on : 27/10/2021,
HHJ signed on : 30/10/2021
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NM No.2008-2019 ORDER 7
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
30/10/2021 5.55p.m. Mrs.Jyoti Mane
Name of the Judge (With Court Room No.) HHJ Smt. C.V.Patil (CR 09)
Date of Pronouncement of JUDGEMENT
/ORDER
25/10/2021
JUDGEMENT /ORDER signed by P.O. on 30/10/2021
JUDGEMENT /ORDER uploaded on 30/10/2021
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