Final Order 1

Order Details: Notice of Motion
Pdf Text: NM No.2014-2019 ORDER 1
MHCC010055852019
IN THE BOMBAY CITY CIVIL COURT AT BOMBAY
NOTICE OF MOTION NO.2014 OF 2019
IN
S.C.SUIT NO.1507 OF 2019
Mr. M. R. Vana … 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 the plaintiff Mr.M.R.Vana, a sole
proprietor of Hoardings Outdoor Advertisings throughout 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 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.2014-2019 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 20’ x 20’ at
Rangwala Shop, Opp.Tardeo Road, Tardeo Circle Road, Mumbai 400034
facing traffic going towards Hornby Vallard and Mumbai Central and is
not facing oncoming direct traffic, baring permit number 761101221.
(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 on 2/5/2019 for hoarding
advertisement. The said hoarding has been duly authorised by
defendant no.4. Defendant no.2 and 3 have given no objection for the
said hoarding but lateron defendant no.3 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 illumination granted to the plaintiff in respect of the
subject hoarding. Defendant no.3 further directed the plaintiff to
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NM No.2014-2019 ORDER 3
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. Plaintiff submitted that in or about 1969 he has obtained
necessary permission from defendant no.4. Accordingly he has
constructed hoarding structure in private property at his own cost.
Thereafter, on 11/9/2001 Additional Commissioner of Police granted no
objection for illuminating the said hoarding at the abovementioned site.
Some time in the year 2007-08 defendant no.4 came up with guidelines
those were applicable from 10/1/2008. According to these guidelines
guideline no.16(b) & (d) are relevant. Guideline no.16(b) is as follows:
“16. Restrictions
(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.”
As per guideline no.16(b), it is necessary for every hoarding that it shall
be 25mtrs. away from stop-line of each approach road.
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
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
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NM No.2014-2019 ORDER 4
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 the year 2001. Inspite of that without any reason the
defendant no.3 has revoked NOC of hoarding granted to the plaintiff.
The Deputy Municipal Commissioner on 20/3/2019 had renewed
permit for three years that is from 1/1/2019 to December 2020 after
being satisfied himself. But suddenly on 12/4/2019 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 replied said notice and submitted that behind the suit
hoarding there was enormous tree cover. However, there is huge garden
in front of the suit hoarding but there is no traffic signal. 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 33.48mtrs.
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
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NM No.2014-2019 ORDER 5
hoarding. While passing order the defendant no.3 has not applied its
mind, however, defendant 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. However, defendant no.4 in its order
dated 31/3/2010 hold that suit hoarding was not around traffic island
or signal junction, 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
2001, 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
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NM No.2014-2019 ORDER 6
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 17/4/2019 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.2014-2019 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, (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
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NM No.2014-2019 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 needs 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 dated
13/7/2011 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.
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.2014-2019 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.
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
some where inside from 4 corners. Prima facie, it appears that such kind
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NM No.2014-2019 ORDER 10
of hoarding can disturb attention of drivers and ultimately that may
cause serious accidents or untoward incidents. The State can impose
reasonable restrictions in the interest of public. Therefore, defendant
no.3 is at liberty to put such kind of conditions on person who are
carrying business. To carry business is fundamental right but that can be
restricted by imposing reasonable restrictions. Accordingly, I answer to
point no.1 and 2 in the negative. For point no.3 if such kind of hoarding
is allowed it will create untoward incidents ultimately general public
will suffer. Therefore, the plaintiff is not entitled for injunction.
Accordingly, the following order :-
O R D E R
1. Notice of Motion No.2014 of 2019 is hereby dismissed.
2. Notice of Motion No.2014 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 : 27/10/2021
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
Upload Date Upload Time Name of Stenographer
27/10/2021 4.55p.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 27/10/2021
JUDGEMENT /ORDER uploaded on 27/10/2021
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