Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2010-2019 ORDER 1
MHCC010055782019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2010 OF 2019
IN
S.C.SUIT NO.1506 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 Notice of Motion is filed by M/s.V.R.Advertisers a partnership
firm against defendant no. 1 to 5. The plaintiff is an Outdoor
Advertising contractor carrying business in its own name. 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, servants etc.be restrained from taking any action for canceling
permission/license granted in respect of the subject hoardings.
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NM No.2010-2019 ORDER 2
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’s illuminated hoarding of the size 20’ x 20’
bearing Permit/SAP No.790771879 (Old Permit/SAP No.76110424)
situated in the compound of Pleasant Park Co-operative Housing Society
Ltd. Opp.Villa Theresa School, Peddar Road, Mumbai-400026.
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. (Hereinafter this hoarding is referred as subject
hoarding). The property in which hoarding is erected be referred as suit
property.
3. By this suit the plaintiff is challenging the grossly illegal,
untenable, arbitrary letter/order dated 06/04/2019 and 29/4/2019
(received by the Plaintiff on 18th April, 2019) passed by Defendant no.2
i.e. the Police Inspector (Planning)Traffic, without powers and
jurisdiction and purporting to exercise powers under the Maharashtra
Motor Vehicles Act, 1988 and Rules thereto and Mumbai Police Act,
1951 which gives no such authority or power to decide upon the
existence of the hoarding in Mumbai City on the alleged breaches.
4. Pursuant to the above order, the plaintiff was called for a personal
hearing on 26th April 2019. Until the filing of this suit no order was
passed on the personal hearing given to the plaintiff. However, after the
suit was filed and the Notice of Motion was moved for ad-interim
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NM No.2010-2019 ORDER 3
releifs, which came to be granted, an Afidavit came to be filed by the
Defendants when, for the first time, they disclosed an order dated 29th
April 2019. It is alleged that the said order came to be passed pursuant
to the personal hearing being granted to the plaintiff. It is of utmost
importance that the order has not even been given to the plaintiff and
the same is brought to the plaintiff’s attention for the first time in the
Affidavit in Reply. The said order itself neither discusses the contentions
raised by the plaintiff, nor does it even purport to given any findings on
the same. The said order is nothing but a standard order being passed
in like matters and suffers from complete non-application of mind on
the part of the Defendants.
5. In about 1995 after obtaining all the required permissions from
the Defendant nos.2, the plaintiff have constructed at their own cost, a
permanent outdoor advertisement hoarding structure of which the
plaintiff is the sole owner. On the said structure the Plaintiff has affixed
an illuminated hoarding facing south bound cars on Peddar Road going
towards Kemp Corner. The said structure is built in the compound of
Pleasant Co-operative Housing Society, Opp.Villa Theresa School,
Peddar Road, Mumbai- 400026 in D Ward.
6. The hoarding is with license dated 20/10/1994. By order dated
16/2/2010 the hoarding was again permitted with certain
modifications. Subsequently, by Order dated 30/07/2012 passed in the
Writ Petition No.1132 of 2002, the Hon’ble High Court Bombay has
given certain directions clarifying and modifying the said Policy
Guidelines formulated by the Municipal Corporation of Greater Mumbai
for better regulations of sky-signs and hoardings.
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NM No.2010-2019 ORDER 4
7. From time to time hoarding permission has been renewed by
plaintiff. Last renewal period was till 2/5/2019. Thereafter by notice
dated 6/4/2019 the plaintiff was directed to remove hoarding within 7
days. The notice is with malafide intention and without giving hearing
opportunity to plaintiff. The plaintiff replied to the notice but the order
dated 29/4/2019 is directed from the reply of defendants. The said
order invoked clause (b) and (d) of guideline no.16. Both read as
under:
The impugned Order 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 plaintiff further submitted that clause 16(d) will have to be
read with clause 16(a). The plaintiff has produced photographs to show
the factual situation on record.
8. In the instant case, the plaintiff submits that admittedly the
hoarding does not obstruct the cone of the vision of the driver and also
does not obstruct any signal whatsoever. Any normal driver driving on
the said road and keeping his eyes on the road (as he is expected to do
so by law), unless he takes his eyes off the road and deliberately turns
and twists his head to the extreme left side, he would not be able even
to see plaintiffs’ hoarding. Thus, the plaintiffs’ hoarding does not and
has no likelihood of distracting the attention or concentration of any
driver. Moreover, the concerned officers of the Traffic Police Department
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NM No.2010-2019 ORDER 5
have given their official N.O.C.s to the Plaintiff’s hoarding. This was
done after the inspection and after taking into consideration all relevant
facts including those set out herein. By order dated 29/4/2019 the
defendants have directed to plaintiff to remove hoardings.
9. From 1994 upto date as the persons in occupation and use of the
suit premises for advertisement purposes, the plaintiff has paid upto
date all dues payable to the Defendant no.4 in respect of the Plaintiff’s
said outdoor advertisement hoarding and structure. The plaintiff is
entitled for protection from illegal action of defendants. The plaintiff is
entitled for protection under Doctrine of legitimate expectations, Article
19, 300A of the Constitution . Therefore, this Notice of Motion.
10. 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
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
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NM No.2010-2019 ORDER 6
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.
11. Plaintiff filed rejoinder and denied contents of reply of
defendants.
12. 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 :
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:
13. 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
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NM No.2010-2019 ORDER 7
India And others, (2010) 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
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.
14. It is submission of the plaintiff that from long back Deputy
Municipal Commissioner has granted permission for erecting hoarding
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NM No.2010-2019 ORDER 8
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 dated
20/10/2011 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.
15. 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 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
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NM No.2010-2019 ORDER 9
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
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.
16. 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
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NM No.2010-2019 ORDER 10
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.2010 of 2019 is hereby dismissed.
2. Notice of Motion No.2010 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
“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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