Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2009-2019 ORDER 1
MHCC010055772019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2009 OF 2019
IN
S.C.SUIT NO.1454 OF 2019
M/s. V. R. Advertisers … 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 V.R.Advertisers is partnership firm, it is an outdoor
advertising Contractor carrying on business of outdoor advertising. The
plaintiff has constructed hoarding structure for displaying thereon
illuminated/non-illuminated 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 6/4/2019 and order dated 29/4/2019. It is one more
prayer from plaintiff that defendant no.4 and 5, its officers, staff,
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NM No.2009-2019 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 of 20’ x 20’ facing
outgoing traffic coming from Haji Ali & proceeding towards Kemps
Corner onwards. The said structure is build in the compound wall of
Ajoomal CHS Ltd. Peddar Road, Mumbai-400026. (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 1994/1995 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 letter dated 6/4/2019 called the plaintiff to
remove the subject suit hoarding. Thereafter, by order dated 29/4/2019
the defendant no.3 passed order and revoked his no objection for
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NM No.2009-2019 ORDER 3
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 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 letter dated 6/4/2019 and
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 6/4/2019 from defendant no.2. In that order it is
mentioned that plaintiff has violated clauses Part II 16(b) and 16(d).
Both the impugned orders dated 06/04/2019 and 29/04/2019 purports
to invoke clauses 16(b) and 16(d) of the guidelines, which are
reproduced hereunder:-
“16(b) No hoarding shall be permitted at intersection within a distance
of 25 meters from the stop-line of each approach road facing the
hoarding erected on the ground level.
16(d) No hoarding shall be permitted around traffic islands and signal
junctions.”
The defendant while passing order has not considered all relevant
legal provisions since long i.e. 25 years the area is accident free.
5. As per guideline no.16(d) i.e. amended guideline no hoarding
shall be permitted around traffic Islands and signal junctions. The
plaintiff submitted that though this guideline is that but it is not
confirmed whether it is applicable to private premises around the traffic
island or municipal properties. This guideline has also given discretion
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to defendants to allow hoarding within 25 mtrs. area or not. Taking
advantage of guidelines no.16(b) and 16(d) defendant no.3 has issued
notice to the plaintiff. However, the guidelines are applicable from
2007. Those guidelines cannot be effected retrospectively. The deputy
Municipal Commissioner has passed order on 31/3/2010 holding that
there was no violation of guideline 16(b) and 16(d). Accordingly, he has
permitted the plaintiff to make certain modifications to the subject
hoarding. The plaintiff further submitted that there is no change in the
location of subject hoarding and the direction of traffic at the concerned
location since long back. Inspite of that without any reason the
defendant no.3 has revoked NOC of hoarding granted to the plaintiff.
The Deputy Municipal Commissioner had renewed permit after being
satisfied himself. But suddenly the plaintiff has received notice from
defendant no.3 i.e notice dated 6/4/2020. In that notice defendant no.3
has submitted that the subject hoarding is in breach of guidelines of
Motor Vehicle Act. Therefore, by that notice it was asked to plaintiff to
remove the hoardings from the suit property. The plaintiff submitted
that hoarding is on straight road. The subject hoarding is situated in
private property and the illumination of the said hoarding is facing the
straight road and did not in any manner affected cone of vision of driver
of any vehicle. However, there is more that 25mtrs. distance between
hoarding and stop-line traffic signal. Therefore, the plaintiff has erected
hoarding by following rules and regulations. From 2001 there is no
change in the circumstances, inspite of that notice is issued by
defendant no.3. The notice was issued without giving opportunity to the
plaintiff, therefore, plaintiff has taken objection. Thereafter, formal
opportunity is granted to plaintiff and defendant no.3 has passed order
on 29/4/2019 and removed its no objection for hoarding. While passing
order the defendant no.3 has not applied its mind, however, defendant
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NM No.2009-2019 ORDER 5
no.3 has not considered objections raised by plaintiff before him and
without following procedure canceled the permission of suit hoarding.
While passing order defendant no.3 mentioned that the suit hoarding is
in 25mtrs. of the junction and therefore, it is in violation of guidelines.
Accordingly, defendant no.3 has revoked their no objection for subject
hoarding. The plaintiff further submitted that so far as subject hoarding
is concerned there is no traffic island nor any signal junction. The
Municipal authority has time to time renewed the hoarding license.
Inspite of that defendant no.3 has passed order with malafide intention.
Guideline no.16(d) is applicable to political banners, blocks etc. It is not
applicable to private permitted hoarding. From long back there is no
change in the circumstances but since by order dated 29/4/2019 the
defendant no.3 has revoked no objection granted earlier. It is the
submission of plaintiff that he has Constitutional right to carry on
business under Article 19(1)(g) that right cannot be curtailed by
passing such order. Therefore, this suit is filed for declaration that the
Court may declare letter dated 6/4/2019 and order 29/4/2019 as
unreasonable, improper, and invalid. In main suit plaintiff has also
sought permanent injunction against defendants and during the
pendency of the suit this Notice of Motion is filed.
6. The defendants have filed their reply and strongly opposed Notice
of Motion. It is their submission that the suit is totally misconceived,
bad in law and not maintainable in the eyes of law. The present suit
does not disclose any cause of action against defendants. However, it is
also bad for want of statutory notice under Section 80 of the Code of
Civil Procedure. It is their submission that this Court has no jurisdiction
to entertain such kind of suit. Before removing the hoarding
intermittent meeting with the advertising association and various other
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NM No.2009-2019 ORDER 6
stakeholders including plaintiff were held in the office of the Joint
Commissioner of Police. It is their submission that large number of
hoardings required to be removed by adopting speedy remedy for public
safety. As per guidelines no hoarding should be permitted at traffic
junction. The same principle has been held by Hon’ble Madras High
Court in its ratio. The defendant no.3 has issued notice on 6/4/2019
and on 24/4/2019 personal hearing was given to the plaintiff thereafter
detail order has been passed. The subject hoarding is without any doubt
falls within 25mtr. distance from the signal junction at Tardeo Junction,
from where it is in clear violation of guidelines no.16(b) of the MCGM
policy. However, Section 3 of the ‘Indian Road Congress’ bans hoarding
within 100 meters from junction, bridge or crossing. The defendant
no.3 has taken decision for road safety and it is in the interest of public.
Such kind of hoarding distracts drivers attention and obstructs
pedestrians movement. Ultimately, that will cause concern for serious
kind of accidents. With these submissions the defendants have strongly
opposed Notice of Motion.
7. Plaintiff filed rejoinder and denied contents of reply of
defendants.
8. 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.2009-2019 ORDER 7
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:
9. 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, (2009) 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 29/4/2019 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.2009-2019 ORDER 8
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 needed to be taken into consideration while deciding
this notice of motion.
10. 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. Before expiration of validity of hoarding
defendant no.3 by order dated 29/4/2019 revoked its no objection
which is malafide one. Plaintiff has produced copy of permission of the
year 1994/1995 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 defendant no.3 has passed
order and mentioned that hoarding is within 25 mtrs. from the stop
signal and ultimately that hoarding will cause danger to public. As per
statement of defendants that such kind of hoardings will create obstacle
in smooth traffic flow. It will disturb the attention of driver that may
cause serious accidents. Therefore, defendant no.3 has revoked no
objection on the ground of public interest.
11. It is the submission of plaintiff that he has fundamental right to
carry business. Certainly under Article 19 of the Constitution, the
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NM No.2009-2019 ORDER 9
plaintiff has right to carry out business but that fundamental right is
subject of 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
impose reasonable restriction for public interest. The defendant no.3
has revoked no objection on the ground that as per guideline 16(d) no
signal can be permitted around traffic island and signal junction. The
plaintiff himself produced photocopies and has given much emphasis
thereon. From those photo copies it appears that signal junction is near
hoarding and as per amended guideline the criteria or distance is
removed. Therefore, now there is no question to consider the
submission of plaintiff that the hoarding is more than 25meters away
from signal. Though the defendant no.3 mentioned in its order that the
subject hoarding is within 25 meters from signal junction. But now the
criteria of distance is removed. The plaintiff further submitted that the
defendant no.3 has discretion about distance but it must be exercised by
applying mind. Here the photocopies of hoarding itself show that it is
erected near signal, there is Four Corner road. Certainly, while driving
vehicle it will disturb attention of driver. That hoarding is visible from
heavy traffic road, where there is four corner road. The subject
hoarding is not on straight road. Therefore, such kind of hoardings near
signal junction will certainly create obstacle in smooth traffic flow. In
such circumstances, it cannot be said that the order of defendant no.3 is
malafide. It is one of the submission of plaintiff that from 2001 there is
no change in road circumstances. But one fact needs to be taken in to
notice that day by day traffic on road is increasing. It is mandatory for
Government to construct fly overs, to increase size of road and that is
going on as per demand of the society. Population is also increased,
standard of living developed accordingly, now change is going on. The
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NM No.2009-2019 ORDER 10
hoarding right has claimed by plaintiff from 2001. Now 2021 is
running. From 2001 to 2021 there is lots of change and even it will be
changed day by day in future also. Therefore, as per circumstances from
2001 the plaintiff can not claim his right as it is. Considering this fact
the right to revoke license is granted to defendants.
12. The plaintiff has placed reliance on the photographs which are
produced alongwith plaint. On careful perusal of those photographs, it
appears that the hoarding is near four Corner road, though, it is erected
away from 4 corners. Prima facie, it appears that such kind of hoarding
can disturb attention of drivers and ultimately that may cause serious
accidents or untoward incidents. The State can impose reasonable
restrictions. The plaintiff has challenged legal provisions. But her prima
facie material needs to be considered. Prima facie from amended
guideline 16(d) it appears that no hoarding is allowed near signal
junction. Therefore the order of defendant is proper for public interest.
Accordingly, I answer point no.1 and 2 in negative, for point no.3 as
observed and following order is passed :-
O R D E R
1. Notice of Motion No.2009 of 2019 is hereby dismissed.
2. Notice of Motion No.2009 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 : 26/10/2021,
HHJ signed on : 29/10/2021
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NM No.2009-2019 ORDER 11
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
29/10/2021 12.55p.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 29/10/2021
JUDGEMENT /ORDER uploaded on 29/10/2021
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