Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2013-2019 ORDER 1
MHCC010055842019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2013 OF 2019
IN
S.C.SUIT NO.1455 OF 2019
M/s. S. D. Mittle and Co. … 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. This notice of motion is filed by S.D.Mittal & Co. a partnership
firm. The plaintiff is carrying on business of providing outdoor
advertisement hoarding within city of Mumbai. 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 3/4/2019 and order dated 25/4/2019. 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.2013-2019 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 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 30’ x 20’ in the
compound of Haji Ali Juice centre, Lala Lajpat Rai Marg, Haji Ali,
Mumbai 400034 facing traffic, bearing permit number 761101746.
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 03/04/2019 and 25/4/2019
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
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NM No.2013-2019 ORDER 3
decide upon the existence of the hoarding in Mumbai City on the
alleged breaches.
4. In 1974 after necessary permission the plaintiff has constructed
hoarding at its own cost in private property is in the compound of Haji
Ali Juice Centre. The defendant no.1 has given no objection for erecting
the hoarding. Sometime in the year 2007-08 defendant no.4 came up
with the Guidelines applicable from 10th Jan 2008. The Guidelines
initially inter alia provides
16. Restrictions:
“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. No mobile hoardings will
be permitted in carriageways of any project.
(d) No hoarding shall be permitted around traffic islands and signal
junctions within a distance of 25 meters from the road line.”
5. Subsequently, Guideline 16(d) was amended and now reads as
follows:
No hoardings shall be permitted around Traffic Islands and signal
junctions.
It becomes difficult to ascertain whether a particular hoarding is
violating this Guideline as the distance criteria is not there. If it is not
clear, as whether the hoarding erected in the private premises around
the Traffic Island and signal junctions are to be treated as violating this
guideline Clause or whether it is applicable only to the hoardings
erected on the municipal properties then it is necessary to take
clearance from Traffic Police.
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NM No.2013-2019 ORDER 4
Further, as per the Guidelines, discretion was given to defendants
No.2 and 3 to grant their clearance. However, since the distance criteria,
envisaged earlier, had been deleted discretion would have to be
exercised in a reasonable manner and based on certain objective
criteria. Furthermore, the discretion would be guided by the provisions
of the Motor Vehicles Act 1988 and the rules framed thereunder as well
as the Bombay Police Act. A review of the relevant provisions of these
acts reveals that the defendants No.2 and 3 can remove or cause to be
removed inter alia any advertisement which is obscuring the view of
any traffic sign or causing distraction. The HO’ble Bombay High Court
has also given necessary guidelines about hoarding. This has been no
charge in location from 1974. From time to time hoarding also
renewed. The plaintiff has given reply to notice but only formal
opportunity has to be shown given.
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
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.
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NM No.2013-2019 ORDER 5
9. From 1974 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 3/4/2019
and 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
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NM No.2013-2019 ORDER 6
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
India And others, (2013) 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
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NM No.2013-2019 ORDER 7
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
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
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NM No.2013-2019 ORDER 8
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.
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
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
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NM No.2013-2019 ORDER 9
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
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.
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NM No.2013-2019 ORDER 10
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.2013 of 2019 is hereby dismissed.
2. Notice of Motion No.2013 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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