Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N/M Nos.2059/19 in Suit No.1592/19
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO.2059 OF 2019
(CNR NO. MH CC010057192019)
IN
L.C. SUIT NO. 1592 OF 2019
CNR NO. MH CC010053512019)
Dilip Amratlal Kapadia, ]
Residing at 29 Chowpatty Sea Face, ]
4th Floor, Sea Castle Building, N.A. ]
Purandare Marg, Mumbai – 400007, ]
Constituted Attorney of the legal ]
representatives of the deceased ]
coowners of the hoarding under the ]
name of Keshavlal Bulakhidas and others. ].. Plaintiff.
V/s.
1 The State of Maharashtra, ]
Office of Government Pleader, ]
City Civil Court, Mumbai. ]
2 The Police Inspector (Planning) ]
Additional Charge, Assistant Police ]
Commissioner, (Planning), ]
Traffic Police Head Quarters, 87, Sir ]
Pochkhanwala Road, Worli, ]
Mumbai – 400 030. ]
3 The Joint Commissioner of Police ]
Traffic, Mumbai, Traffic Police ]
Head Quarters, 87, Sir Pochkhanwala Road,]
Worli, Mumbai – 400 030. ]
4 The Municipal Corporation of Greater ]
Mumbai, incorporated under the Mumbai ]
Municipal Corporation Act, 1888 having ]
its Office at Mumbai Municipal Head ]
Office Building, Mahapalika Marg, ]
Mumbai – 400 001. ]..Defendants
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Advocate Mr.Bhadang with Advocates Mr. Kishor Maru and
Mr. Jatin Seth for the plaintiff.
Advocates Mr. Shukla and Ms. Sakpal for defendant nos.1 to 3.
Advocate Mr. OM Suryawanshi for defendant no. 4.
CORAM : HER HONOUR JUDGE
MS. S.P. PONKSHE.
(C.R.NO.12)
DATE : 11TH SEPTEMBER 2019
ORDER
This Notice of Motion has been taken out by the plaintiff
for granting temporarily stay to the effect and operation of the
impugned Orders dated 26.03.2019 and 15.05.2019 issued by
defendant no.2 and for restraining the defendants temporarily from
revoking/withdrawing/cancelling the NOC dated 15.06.2017 and
further restraining from removing and/or dismantling the hoarding
structure in any manner and/or preventing the plaintiff from
illuminating the hoarding/advertisements thereon including the neon
signs affixed thereon on the terrace of “Sea Castle” building, situated at
Chowpatty Sea Face, N.A. Purandare Marg, Mumbai 400 007 under
permit No.54907 (SAP No.761102735), for want of NOC from
defendant nos.2 and 3 and further restraining temporarily from
preventing the plaintiff to display the advertisements on the said
illuminated hoarding structure from time to time.
2 The Constituted Attorney of the plaintiff Mr. Dilip Amratlal
Kapadia has filed affidavit in support of notice of motion. He has
confirmed and adopted statements made in the plaint. It is averred that
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there is urgency in the matter, as defendant no.2 i.e. the Police
Inspector (Planning) has passed two impugned Orders dated
26.03.2019 and 15.05.2019 purportedly cancelling the NOC of
illumination of the suit hoarding, with immediate effect and also
forwarding the copy of the impugned order dated 15.05.2019 to the
Superintendent of Licences i.e. officer of defendant no.4 for taking
further action in pursuance thereof.
3 It is further averred that the action threatened therein is
except in accordance with and in due course of law. If injunction as
prayed for are not granted, grave and irreparable harm and loss will be
caused to the plaintiff for which compensation in money will not be an
adequate relief. On the other hand, no prejudice whatsoever would be
caused to the defendants in the event the plaintiff is granted relief. The
plaintiff has a strong primafacie case. The balance of convenience is in
favour of the plaintiff. Hence, prayed for allowing notice of motion.
4 On behalf of Defendant nos.1 to 3 Shri Prasad Jagannath
Satam, Police Inspector (Planning), Additional Charge, Assistant
Commissioner of Police (Planning), Traffic, Police Head Quarters has
filed affidavit in reply. It is contended that the suit filed by the plaintiff
is totally misconceived, bad in law and not maintainable. The suit is
bad for want of statutory notice under section 80 of the Code of Civil
Procedure. This Court shall have no jurisdiction to try and entertain
the suit.
5 It is further contended that the Traffic Control Branch,
Mumbai Police vide Letter dated 26.03.2019 has issued notices to
various agencies including the present plaintiff, directing them to
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remove illumination of the Neon Sign Board, in view of the fact that
they were found to be violating certain conditions of the policy
guidelines by MCGM regarding the advertisements. A meeting with the
advertising association and various other stakeholders including the
plaintiff were held in the office of the Joint Commissioner of Police,
Traffic, Mumbai, wherein it was communicated to them jointly that this
violation come to the notice of the defendants.
6 It is further contended that notice dated 26.03.2019 was
sent to the plaintiff to remove the illumination of NeonSign Board
installed on the terrace of 29, Sea Castle Building, Chowpatty Sea Face,
Mumbai. It was further communicated to them vide letter dated
19.04.2019 to submit written representation and to remain present for
hearing. After the letter was issued, written representation was
received dated 23.04.2019 from the plaintiff and personal hearing was
given to them. After the hearing was given on 22.04.2019 and
24.04.2019, considering the circumstance that the permission given was
lapsing on 16.06.2019. The plaintiff was informed that they were
violating the other condition “No illuminated hoarding shall be
permitted within the cone of the vision of the driver without the NOC
from the Traffic Police Department” as per the clause 16(a) of MCGM
Policy Guideline.
7 It is further contended that the plaintiff has come for
renewal of NOC, which is expired on 16.06.2019. The Traffic Control
Branch is well within its rights to refuse the NOC for renewal in the
interest of public and Road Safety consideration, as Neon Sign Boards
are also illuminated signs and same cannot be displayed without NOC
from Traffic Police as per the MCGM Policy Guidelines. This decision
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was taken as per the various provisions in the Policy Guidelines on the
grant of permission for display of skysign and advertisement under
section 328 and 328A of M.M.C. Act.
8 It is further contended that the decision has been taken by
the Traffic Police to promote road safety and also in Public Interest and
safety. The safety of vehicular commuters and pedestrians on roads is
major cause of concern in India in general. The Maharashtra and
Mumbai in particular is very prone to road accidents affecting both
vehicular commuters and pedestrians. They are put togreater risk at
intersections, if the same is encroached by various structures such as
Neon Sign Board/Hoardings, distracting driver's attention and
obstructing pedestrians movement. It has become a major cause of
concern with large number of hoardings.
9 It is further contended that considered decision was taken
by the Traffic Police in consonance with the policy guidelines of the
MCGM and the policy on roadside advertisements of the Indian Road
Congress of the MORTH. Therefore, it is necessary to remove the Neon
Sign Hoardings. The plaintiff's NeonSign Hoarding distracts driver
attention and causes obstruction to pedestrian movements. Defendant
no.4 has granted the permission to erect and display nonillumination
for commercial profits. Therefore, the plaintiff's hoarding is totally
gross violation of the condition of 16(a) and 16(ii)(iii) of MCGM policy.
Hence, prayed for dismissal of notice of motion.
10 The plaintiff has filed rejoinder by filing affidavit of
Constituted Attorney Mr. Dilip Kapadia. According to him, the deponent
of the Affidavit in Reply dated 27.06.2019 has made incorrect
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statements in his affidavit without application of mind to the facts of the
present case and without going through the factual status of the matter
in question. The authorities like the defendants cannot act arbitrarily
without any material in support of their contentions. The statements
made by the deponent in the affidavit are vague and misleading, as the
same are made without providing any supporting evidence. The letter
dated 26.03.2019 is not a notice and an Order directly cancelling the
NOC dated 15.06.2017 is issued by the office of defendant nos.2 and 3
by violating the principles of natural justice and it was passed without
giving any show cause notice and/or any personal hearing.
11 It is further averred that at the time of hearing on
24.04.2019, the plaintiff had even asked for a joint inspection in order
to ascertain the truth of the plaintiff's submissions. Inspite of the same,
without considering the oral as well as the written submissions made by
the plaintiff and without giving any joint site inspection and without
any application of mind, defendant nos.2 and 3 have passed impugned
order dated 15.05.2019 rejecting the application for renewal and not
followed due process of law. The plaintiff has specifically denied that
they are violating the other condition “No illuminated hoarding shall be
permitted within the cone vision of the driver without the NOC from the
Traffic Department”. Defendant nos. 2 and 3 had never alleged that
their hoarding is violating Clause 16(a) of the New Policy Guidelines,
2007. The impugned order, demonstrate complete unfairness and non
application of mind. Defendant no.4 has never even alleged that the
plaintiff's hoarding is violating Clause 16(a) of the New Policy
Guidelines. Defendant no.4 has renewed the Licence for the plaintiff's
hoarding and also issued its Certificate dated 01.04.2019. Further, the
plaintiff's hoarding is not at an intersection. There has not been even a
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single complaint from anyone whatsoever that the plaintiff's hoarding is
causing any obstruction to the drivers and defendant nos.2 and 3 have
not even cited a single incident or any evidence in this regard.
12 It is further averred that while the order dated 26.03.2019
cancels the NOC on the perception and assumption of defendant nos.2
and 3 about the alleged public interest and the security of vehicle
drivers, the order dated 15.05.2019 rejected the renewal of NOC on a
completely on new ground that no neon hoarding shall be permitted
within the cone vision of the driver, clearly reflects the nonapplication
of mind on the part of defendant nos.2 and 3. Since the hoarding is at a
height of more than 70 feet, it cannot in any manner come within the
cone of vision of any driver.
13 The plaintiff has further stated that he has attached Exhibit
B Certificate dated 03.07.2019 issued by Mr. Nitin P. Doshi, the licensed
surveyor. Further, while passing orders dated 26.03.2019 and
15.05.2019, defendant nos.2 and 3 have never even alleged that the
plaintiff's hoarding is violating 16(d) of the New Policy Guidelines. The
public interest is a wide term and therefore, no order can be passed
without setting out specifically how public interest is allegedly affected
and without calling for any say from the plaintiff. There is no single
complaint in the last 59 years that any driver of any car had any
obstruction or distraction, caused due to suit hoarding. Thus, prayed for
allowing notice of motion.
14 Heard the learned advocate for the plaintiff and the learned
advocate for defendant nos. 1 to 3 and learned advocate for defendant
no.4 at length.
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15 The following points arise for my determination. I have
recorded points and findings thereon alongwith the reasons are as
follows:
Sr.
No.
POINTS FINDINGS
1 Whether the plaintiff has established
prima facie case ?
In the Affirmative
against defendant
Nos.1 to 3
2 Whether balance of convenient lies in
favour of the plaintiff ?
In the
Affirmative
3 To whom irreparable loss would be
caused, if this notice of motion is not
allowed ?
To the
Plaintiff
4 What Order ? As per final Order
R E A S O N S
16 It is argued by the learned advocate for the plaintiff that
while passing orders on 26.03.2019 and 15.05.2019, the Police
Inspector (Planning) Additional Charge of the Assistant Police
Commissioner (Planning), Traffic Mumbai has not made compliance of
doctrine of legitimate expectation. In the absence of powers, defendant
no.2 has changed the decision by which earlier NOC was granted.
Already NOC was granted by imposing conditions by defendant no.2
Further, he has argued that there is no case of the defendants that
earlier officer has committed error while granting NOC and the officer,
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who has passed orders on 26.03.2019 and 15.05.2019 is basically not
Appellate Officer, because earlier officer, who has granted NOC was of
the same rank. Further, he has argued that the Appellate Authority of
the Corporation has never raised objection in respect of suit hoarding
that it is within the cone of vision of the driver. While granting NOC
previously on 15.06.2017, there was no grievance that suit hoarding is
within the cone of vision of the driver. Despite, permission was granted
earlier, now another officer of the same rank suddenly has raised issue
in respect of suit hoarding that NeonSign suit hoarding is within the
cone of vision of the driver and request for renewal of the Traffic NOC
for NeonSign hoarding has been rejected.
17 It is further argued by the learned advocate for the plaintiff
that the defendants have not pointed out what are the parameters in
respect of Cone of the vision of the driver. Nothing has been tendered
regarding any complaints received in respect of the suit hoarding
disclosing that it causes distraction to the drivers of the cars and
pedestrians on the road. According to him, thus, there is infringement
of doctrine of legitimate expectation. He has pointed out conditions for
granting traffic NOC and further pointed out guidelines of MCGM.
According to him, the said impugned orders have been passed without
issuing prior notice or prior intimation in respect of the fact that the
plaintiff's hoarding is affecting cone of vision of the driver.
18 The learned advocate for the plaintiff has placed his
reliance in Navjyoti Group Housing Society and others V/s. Union of
India and others reported in (1992)4 S.C.C.477, wherein it is held
that;
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“The doctrine of 'legitimate expectation' imposes in
essence a duty on public authority to act fairly by
taking into consideration all relevant factors
relating to such 'legitimate expectation'. The
existence of 'legitimate expectation' may have a
number of different consequences and one of such
consequences is that the authority ought not to act
to defeat the 'legitimate expectation' without some
overriding reason of public policy to justify its
doing so . Within the conspectus of fair dealing in
case of 'legitimate expectation', the reasonable
opportunities to make representation by the parties
likely to be affected by any change of consistent
past policy, come in. In a case of 'legitimate
expectation' if the authority proposes to defeat a
person's 'legitimate expectation' it should afford
him an opportunity to make representation in the
matter.”
19 Further, he has placed his reliance in Narendra Kumar
Maheshwari V/s. Union of India and others reported in 1990(supp)
S.C.C.440, wherein Their Lordships have held that;
“Nonstatutory guidelines are generally not
enforceable. A policy is not law. A statement of
policy is not a prescription of binding criterion.
The competent authority might depart from these
guidelines where the proper exercise of his
discretion so warrants.
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However, selfmade rule can become enforceable
on the application of persons if it was shown that
it had created legitimate expectation in their
minds that the authority would abide by such a
policy/guideline. But the doctrine of legitimate
expectation applies only when a person had been
given reason to believe that the State will abide by
the certain policy or guideline on the basis of
which such applicant might have been led to take
certain actions. This doctrine is akin to the
doctrine of promissory estoppel.”
With respects the principles held in the above cited authorities is
necessary to be considered while deciding the present notice of motion.
Therefore, arguments of the learned advocate of the plaintiff in respect
of compliance of doctrine of legitimate expectation is necessary to take
into consideration while deciding this notice of motion.
20 Besides, on the other hand, the learned advocate for
defendant nos.1 to 3 argued that orders passed by the Joint
Commissioner of Police are as per Policy Guidelines. Location of the suit
hoarding is very important. It is further submitted that license of the
plaintiff in respect of the suit hoarding has already been expired and
further argued that mistake of earlier officer cannot be continued. She
has placed her reliance on copy of Order dated 04.06.2019 passed by
the Hon'ble High Court in Writ Petition No.1632/2019 and copy of
Order in Writ Petition No.1663/2019. According to her, there is
violation of MCGM Policy Guidelines at the hands of the plaintiff.
Therefore, the defendants have correctly refused NOC. She has further
argued that due to said Neonsign hoarding, there is distraction to the
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driver on the road from Nariman Point to Girgaon Chowpatty. The
order is not arbitrary and it is for Welfare of Citizen and public at large.
Hence, she has prayed for dismissal of notice of motion.
21 Defendant no.4 has not filed reply to this Notice of Motion.
It is argued by learned advocate for defendant no.4 that if impugned
orders are stayed, then orders or action of Corporation will be
automatically stayed. Further, it is argued that the Licence Department
of defendant no.4 has not received order dated 15.05.2019, therefore,
defendant no.4 has renewed the licence and the plaintiff's claim in
respect of revocation of the licence by defendant no.4, is not
maintainable before this Court. Hence, prayed for rejection of notice of
motion.
22 In this background of submissions, first let us consider
reliefs claimed by the plaintiff in the suit. The plaintiff has prayed for
setting aside the orders issued by defendant no.2 dated 26.03.2019 and
15.05.2019 and prayed for mandatory injunction by giving directions to
renew NOC for illumination of the suit hoarding and further prayed for
restraining all the defendants permanently from removing and/or
dismantling the hoarding structure in any manner or preventing the
plaintiff from illuminating the hoarding/advertisements thereon
including the neon signs affixed thereon on the terrace of “Sea Castle”
building, situated at Chowpatty Sea Face, N.A. Purandare Marg,
Mumbai400 007 under Permit No.54907 (SAP No.761102735) for
want of NOC from defendant nos.2 and 3 and also for restraining the
defendants from preventing the plaintiff to display the advertisement on
the said illuminated hoarding structure from time to time.
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23 It is the case of the plaintiff that in and around 1960, after
obtaining all the required permissions from the Municipal Corporation
of Greater Mumbai, the Plaintiff has constructed at their own cost of
around Rs.10 lacs, a permanent outdoor advertisement hoarding
structure of which the Plaintiff is the sole coowner. On the said
structure, the Plaintiff has permanently affixed an illuminated neon sign
hoarding facing traffic coming from Marine Drive and proceeding
towards Chowpatty, Babulnath, Walkeshwar onwards. The said
structure is built on the terrace of “Sea Castle” building, N.A. Purandare
Marg, Chowpatty, Mumbai – 400 007.
24 Here, I would like to mention that the suit hoarding and its
location is not in dispute. Even, defendant nos.2 to 4 have not
disputed size of the hoarding as stated in the plaint and also not denied
Permit number is 54907 (SAP No.761102735). It is not the case of
defendant no.4 that the plaintiff has not paid all amount payable to
defendant no.4 including property taxes in respect of said illuminated
neon sign hoarding.
25 Perused further documents tendered by the plaintiff. It
appears primafacie that on 18.06.1986, the plaintiff has obtained a No
Objection Certificate (NOC) from the office of the Deputy Commissioner
of Police, Traffic Control Branch in respect of suit hoarding from the
traffic point of view and while granting NOC, five condition were
imposed. Then, it reveals that directly on 15.06.2017, traffic NOC of the
plaintiff in respect of suit hoarding has been renewed by imposing total
24 conditions.
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26 The learned advocate for the plaintiff has drawn my
attention towards paragraph no.2 of the order dated 30.07.2012
passed by the Hon’ble Bombay High Court in Writ Petition No.1132 of
2002. It appears that in the said PIL, Mr.S.B. Bande, the Superintendent
of Licence (I/C) of the Municipal Corporation has filed an affidavit
dated 27.07.2012 containing the modalities suggested by the Municipal
Commissioner for processing the applications for renewal of licences for
display of existing hoardings/sky signs. In the said affidavit, it is
specifically stated on behalf of the Municipal Corporation that “No
hoarding/sky sign licence/permission shall be granted or renewed by
the Municipal Corportion of Greater Mumbai, except in accordance with
Mumbai Corportion Act, 1888, the policy Guidelines of 2007 and the
orders of the Court.
27 It reveals from the documents tendered by the plaintiff that
the plaintiff had received Showcause notice dated 07.01.2003 issued
by the Deputy Municipal Commissioner (ZoneI), in view of directions
given by the Hon'ble High Court in Writ Petition No.1132/2012 vide
orders dated 02.09.2002 and 01.10.2002, wherein it was mentioned
violation at the hands of the plaintiff in respect of the suit hoardings as
“Hoarding in building of Heritage importance, as per DCR Rule 48(3).
The plaintiff replied the said notice. According to the plaintiff, personal
hearing was given and directions were given to the plaintiff to make a
representation to the Mumbai Heritage Conservation Committee within
15 days. Pursuant to the said Order, the plaintiff had filed their
representation dated 30.06.2003.
28 Further, it appears that in view of directions given by the
Hon'ble High Court vide an order dated 30.07.2012 passed in the Writ
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Petition No.1132 of 2002, the Sr. Inspector License, DWard, issued
show cause notice dated 05.01.2013 to the plaintiff alleging the
breaches of clauses of the existing Policy Guidelines, 2007 for
permission to display of Advertisement under section 328/328A of
M.M.C. Act. It appears that the plaintiff has submitted reply and
documents on 11.01.2013 and thereafter, the Deputy Municipal
Commissioner (ZoneI), rejected the renewal on 02.02.2013 without
giving hearing to the plaintiff. Then, it reveals that against the said
rejection order, the Writ Petition No.1118/2013 has been filed in
respect of suit hoarding and on 15.04.2015, the Hon'ble High Court has
directed the plaintiff to appear before the D.M.C. (Spl.) on 22.04.2015.
After hearing, D.M.C. (Spl.) has passed rejection order on 13.01.2016
on following grounds:
1) Part – IIA, Clause – 16(g) Non Submission of
N.O.C. from M.H.C.C.
2) Part – IIA16(h) – Nonsubmission of CRZ
clerance certificate from MCZMA.
3) AnnexureI – The structure of the hoarding is
not as per Annexture–1 of the New Policy
Guidelines2007.
The said order in respect of the suit hoarding was challenged by way of
First Appeal before the First Appellate Authority and the said Appeal
was decided on 05.01.2017, whereby the Appeal in respect of the suit
hoarding was allowed and order dated 13.01.2016 was set aside and
the Assistant Commissioner, DWard, was directed to renew the
hoarding under said Permit No.54907 (SAP No.761102735) for the
block year 20132014 subject to rectify hoarding structure as per the
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AnnexureI of new policy guidelines. The plaintiff has tendered the said
order dated 05.01.2017 vide ExhibitH to the plaint.
29 Further, from the documents tendered by the plaintiff, it
appears that on 15.06.2017, the Assistant Commissioner of Police for
Joint Commissioner of Police, Traffic, Mumbai has granted No
Objection for Neonsign Hoarding i.e. suit hoarding at the same place
subject to 24 conditions in the background of above facts. In this
background for renewal of traffic NOC dated 15.06.2017 in respect of
suit hoarding, application was filed on 21.02.2019 along with traffic
NOC dated 15.06.2017.
30 The advocate for the plaintiff has tendered Policy
Guidelines on the grant of permission for Display of Skysigns and
Advertisement under section 328 and 328(A) of M.M.C. Act, 1888. It is
to be noted that the said Policy Guidelines are issued on 10.01.2008. It
primafacie reveals that defendant no.2 has cancelled NOC of said
hoarding first time on 26.03.2019 stating therein violation of condition
no.23 of NOC dated 15.06.2017 and it was cancelled also for the public
interest and security and safety of the vehicle drivers. It appears prima
facie that prior to filing an application for renewal in respect of the suit
hoarding on 21.02.2019, the defendants have never raised objection of
violtion of condition no.23 as per traffic NOC dated 15.06.2017. There
was no notice issued to the plaintiff regarding violation of condition
no.23 of NOC dated 15.06.2017 till passing impugned order dated
26.3.2019. I reproduce condition No.23 in the NOC dated 15.06.2017:
“The permission can revoked at any time in respect
of illumination of hoarding/display board/Signage
on public complaint of infringment of any law,
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regulation, guidelines etc. Or any other ground
whether specified above or not in public interest.”
31 It appears primafacie that on 26.03.2019 while cancelling
traffic NOC granted on 15.06.2017 in respect of suit hoarding, no
opprtunity has been given to the plaintiff to file reply and even it
reveals that no hearing was given to the plaintiff. In view of the said
impugned order dated 26.03.2019, it appears that on 12.04.2019, the
plaintiff has filed reply stating therein that the order is arbitrry and the
plaintiff has not committed violation of any conditions of NOC dated
15.06.2017 and demanded copy of the alleged complaints/objections.
32 Thereafter, defendant no.2 has issued letter dated
19.04.2019 to the plaintiff and called the plaintiff to remain present on
22.04.2019 at 1.00 p.m. at the office of the Assistant Police
Commissioner Traffic along with information on the points mentioned
in the letter dated 19.04.2019 in the form of written say. It discloses
that it was directed to the plaintiff to bring photographs of the suit
hoarding taken from all the directions (Approach Road) and from signal
that too, taken from near and far distance during day time and night
time. Further, directed to bring report regarding the exact distance of
suit hoarding from the junction, keeping in view of traffic from all the
directions (Approach Road) and report regarding the exact distance of
the suit hoarding from the signal, location plan showing the suit
hoarding and all the correspondence in respect of the suit hoarding and
NOC issued by the traffic department.
33 It is to be noted that the said notice dated 19.04.2019 was
served on the plaintiff on the day of meeting itself i.e. on 22.04.2019 at
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12.05 p.m. and called the plaintiff at Worli at 1.00 p.m. This conduct of
the defendants discloses unfair, when the defendant called meeting, so
as to give fair opportunity to make representation before them. In such
circumstances, service of the notice dated 19.04.2019 was done on the
day of meeting itself i.e. 22.04.2019 that too, when meeting was at 1.00
p.m. at Worli, it was served at 12.05 p.m. It crystal clear primafacie
discloses unfair conduct of the defendants. Why the defendants served
notice on the same day of meeting at 12.05 p.m. that too, when called
for alongwith various compliance, reasons best known to the defendants
only. The act of the defendants, primafacie compelled me to draw
adverse inference against the defendants.
34 Further, it appears that as per directions given on
22.04.2019, the plaintiff has filed reply on 23.04.2019, the plaintiff has
given explanation in respect of clause 16(d) and 16(i) of the New Policy
Guidelines and it is specifically submitted that the suit hoarding is on
the Top floor terrace of the Sea Castle building, consists of ground plus
five storeys and suit hoarding is not around Traffic Islands and signal
junctions. Further, it is disclosed in the reply regarding NOC dated
15.06.2017 and disclosed further that as per modifications to the New
Policy Guidelines, 2008 of the Municipal Corporation of Greater
Mumbai, the plaintiff has followed all New Guidelines. Further, it is
disclosed that the plaintiff switch off the lights before 11.00 p.m. The
level of luminance of their suit hoarding does not exceed a source of 1
cd/cm square and the display on their hoarding and it is not at all a
moving video or moving digital advertisement nor it is an LED display.
35 Further, along with reply the plaintiff has even enclosed
Certificate dated 23.04.2019 of Senior Civil Engineer Mr. V. B. Kore,
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who measured the various requisite distances. The said Certificate
discloses that suit hoarding is not at any intersection within a distance
of 25 meters from the stop line of any approach road, facing the
hoarding which is erected on the terrace level and there is no traffic
signal within a distance of 25 meters from the stop line of the approach
road facing the above mentioned hoarding. The nearest traffic signal
facing the same traffic as that of the hoarding, coming from Nariman
Point, Churchgate and proceeding towards Chowpatty, Walkeshwar and
Babulnath onwards, is at a distance of around 345 meters from the
above mentioned hoarding. The nearest traffic signal facing the
opposite traffic as that of the hoarding coming from Chowpatty,
Walkeshwar and Babulnath and proceeding towards Nariman Point,
Churchgate onwards is at a distance of around 105 meters from the
back side of the above mentioned hoarding. Thus, primafacie, it reveals
that suit hoarding is within parameters of Policy Guidelines.
36 The plaintiff has filed Location Plan of the Area and
photographs of the hoarding from near and far distance during day time
and night time and also submitted certificate issued by the Deputy
Municipal Commissioner (Election) dated 01.04.2019, latest renewal
permit of the suit hoarding and NOC dated 15.06.2017.
37 In this background, defendant no.2 has passed impugned
order on 15.05.2019, whereby request for renewal of traffic NOC for
neonsign hoarding is rejected. In the said order, it is stated that
proposal for renewal is found not feasible from traffic point of view, as
it violates condition mentioned in MCGM Guidelines and Traffic Control
Branch NOC and mentioned further that no Neonsign hoarding shall be
permitted within the cone of vision of the driver.
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20 N/M Nos.2059/19 in Suit No.1592/19
38 It reveals primafacie that after 15.06.2017 till 26.03.2019,
defendant nos.2 and 3 have never issued any showcause notice in
respect of violation of conditions of NOC. Further, vide order dated
26.03.2019, it is mentioned regarding violation of condition no.23 of
NOC dated 15.06.2017. It reveals that there are specific condition
nos.7 to 11 in NOC dated 15.06.2017, as below
7 The Neon hoarding should be in such a position
that the driver while driving should not be affected
by it.
8 No Neon hoarding shall be permitted within the
cone of vision of the driver.
9 No Neon hoarding shall be permitted at
intersection within a distance of 25 meters from the
stop line of each approach road.
10 No Neon hoarding shall be permitted around
traffic islands and signal junctions within a 25
meters radius from the road line.
11 No Neon hoarding shall be permitted which
would obstruct the light, Signal of CCTV Cameras.
It is pertinent to note that defendant no.2 has passed order on
26.03.2019 by stating condition no.23 only and for the first time in the
order dated 15.05.2019, it is mentioned in respect of violation of above
condition no.8. Then what was the hurdle for the defendants to disclose
alleged violation of condition no.8 in order dated 26.03.2019 reasons
best known to the defendants only. It appears that in two impugned
order two different stands seems to be taken by the defendants for
cancellation of traffic NO without issuing specific prior notices.
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21 N/M Nos.2059/19 in Suit No.1592/19
39 Thus, prima facie, it reveals that the defendants earlier
granted NOC by observing all the said conditions and continued it till
the plaintiff filed an application for renewal of traffic NOC for further
period. Nothing has come on record primafacie, to show that the
plaintiff has made any changes in the suit hoarding in the year 2019
while filing an application for renewal of traffic NOC, in view of
condition nos. 7 to 11 of NOC dated 15.06.2017. Further, NOC dated
15.06.2017 was granted keeping in mind policy guidelines issued on
10.01.2008. Thus, it primafacie appears that the concerned officer of
the defendants was satisfied regarding the position of the suit hoarding
and even observed that driver was not affecting by the suit hoarding
and even considered also that suit hoarding was not within the cone of
vision of the driver. It is not the case of the defendants that height, size
or anything has been changed by the plaintiff after 15.06.2017 and
prior to 26.03.2019 at any point of time.
40 Perused clause16(a) of the Policy Guidelines. It seems that
while granting NOC dated 15.06.2017, it was already considered by the
Traffic Department. The same authority has granted earlier NOC, who
has now cancelled it and same has right to grant NOC, considering the
Policy Guidelines of M.C.G.M. Arguments advanced by the learned
advocate for the plaintiff is acceptable on the point that mere change of
the officer is not the ground for cancelling NOC though all factors of
suit hoarding are same and not changed. Nothing has been primafacie
established by the defendants as to how suddenly while renewing NOC
for further period, suit hoarding has come within the cone of vision of
the driver. The defendants have not filed on record any complaints
received or pointed out number of accident occurred, due to distraction
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22 N/M Nos.2059/19 in Suit No.1592/19
of the driver of the vehicle, due to suit hoarding, while driving vehicles
on the road from Naariman Point to Chowpatty, Walkeshwar.
Admittedly, the hight of the suit hoarding is at 70 feet and not at the
eye level of the driver while driving the vehicle from the Nariman Point
to Chowpatty. It reveals primafacie that there is no satisfactory and
convincing explanation on behalf of the defendants to accept reasons
stated first time in the impugned orders.
41 In this background, it is for the M.C.G.M. to take decision
in respect of issuance of permission/licence in respect of suit hoarding
and if aggrieved by the decision, then the plaintiff has right to approach
before the Additional Municipal Commissioner/Appellate Authority for
redressal of their grievance. It reveals that there is no cause of action
accrued to the plaintiff against defendant no.4 because defendant no.4
has not passed any orders in respect of the suit hoarding against the
plaintiff, but it appears that inspite of impugned orders passed by
defendant no.2, defendant no.4 has renewed licence in respect of
hoarding.
42 Further, I would like to mention that ther 'Cone of Vision of
the driver' is relevant term and it will vary depending upon place,
height, site and distance of the hoarding. Primafacie, it reveals from
the admitted position of the suit hoarding that it is not reasonable to
accept without proof that suddenly, now suit hoarding has come within
Cone of vision of the driver and it distracts the driver's attention while
driving vehicles and distracts attention of pedestrians on the road.
Further, it reveals that there is no compliance of doctrine of legitimate
expectation from the defendants, as argued by learned advocate for the
plaintiff.
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23 N/M Nos.2059/19 in Suit No.1592/19
43 The learned advocate for the plaintiff has placed further his
reliance in G.J. Kanga, Adm. of Municipal Corporation Greater
Bombay and another V/s. S.S. Basha reported 1992 Mh.L.J. 1573.
Further, he has placed his reliance in Kalabharati Advertising V/s.
Hemant Vimalnath Narichania and others reported in (2010)9
S.C.C.437. With respects the principle held is guideline.
44 Further, he has placed his reliance in Hipolito Gregorio
Coutinho V/s. Jagdish Sagar, page no.31, wherein it is held that;
“licences which affect the business and living of the
people cannot be cancelled or refused without any
valid reason supported by law or malafide or for
reasons extraneous of law. The principles of natural
justice should not be violated.
In the present case in hands, in two impugned orders, different reasons
are mentioned and no opportunity was given to explain the
circumstances regarding alleged violation of conditions.
45 One Officer of the same rank has issued NOC on the basis
of same Policy Guidelines and another officer of the same rank has
refused NOC on the same policy guidelines, that too, there is no change
regarding illumination of the suit hoarding. Then, even it is not
specifically pleaded by the defendants in their reply that their earlier
officer has committed error while granting NOC, because it was argued
by learned advocate for the defendants that mistake of earlier officer
cannot be continued, if there is mistake. It is not even the case of the
defendants that there is any change regarding illumination of the suit
hoarding. Further, there is no grievance specifically made by the
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24 N/M Nos.2059/19 in Suit No.1592/19
defendants in respect of violation of clause 16(i) of the Policy
Guideline. The learned advocate for the plaintiff has also filed on
record copy of a Policy on Roadside Advertisements Clause No.3.1.2 to
show that even it is not case regarding breach of said Clause 3.1.2, in
view of angle of traffic safety.
46 The defendants have filed on record order passed in Writ
Petition No.1632/2019 on the point of cone of vision of the driver. The
said hoarding was at specific location near the Juhu 10th Road and
Gulmohar Road junction at Juhu. The Joint Commissioner stated in
respect of the said hoarding that it should not be illuminated in late
evening and at night. This will obstruct the smooth flow of traffic and
possibly lead to accidents. In the present case in hands, the suit
hoarding is at different place than hoarding in the Writ Petition
No.1632/2019. It appears that while passing order, it is held that “the
Joint Commissioner has found hoarding to be erected at a location
which is prohibited in terms of the policy and in the larger interest of
pedestrian and motorist safety and accordingly, order has been passed”.
In the present case, location of suit hoarding is not at prohibited place
in terms of the policy guidelines. Therefore, with respects, the facts in
hands are totally different and not applicable to the present set of facts.
47 The defendants have further placed on record Order passed
in Writ Petition No.1663/2019. There was violation of clause16 of the
Policy Guidelines. The location of the hoarding was different than the
present suit hoarding. Therefore, with respects, as the facts are
different and not applicable to the present set of facts.
48 Thus, primafacie, it appears that the impugned orders
seems to be passed on personal perception and assumption of defendant
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25 N/M Nos.2059/19 in Suit No.1592/19
no.2 without properly taking into consideration, locational position of
the suit hoarding and without giving an opportunity to the plaintiff.
Thus, primafacie, there is no proof of violation of clause16 at the
hands of the plaintiff, in respect of the suit hoarding. Therefore, I am
inclined to hold that the plaintiff has established the primafacie case
against defendant nos.1 to 3. There is no cause of action against
defendant no.4 to file this suit, as no order has been passed by
defendant no.4 in respect of suit hoarding. Therefore, there is no prima
facie case established by the plaintiff against defendant no.4. Hence, I
answer point no.1 accordingly.
AS TO POINT NOS.2 AND 3;
49 So far as balance of convenience is concerned, in view of
my above discussion and findings, it is tilted in favour of the plaintiff
only and if this notice of motion is rejected against defendant nos.1 to
3, it will cause irreparable loss to the plaintiff. Hence, I answer point
nos.2 and 3 accordingly.
50 In the light of my above discussion and findings as to points
nos.1 to 3, this notice of motion is to be made partly absolute. With
this, I proceed to pass the following order:
ORDER
Notice of Motion No.2059 of 2019 is hereby made partly absolute
in terms of prayer clause (i).
2 The effect and operation of the impugned orders dated
26.03.2019 and 15.05.2019 is hereby temporarily stayed.
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26 N/M Nos.2059/19 in Suit No.1592/19
3 Notice of Motion No.2059 of 2019 stands disposed of accordingly.
(S. P. PONKSHE)
Judge,
Date: 11/09/2019. City Civil Court,
Gr. Bombay.
Dictated on : 11/09/2019
Transcribed on : 1617 /09/2019
Signed on : 23/09/2019
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
23/09/2019 At 5.15 p.m. MRS. SUPRIYA S.PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MS. S. P. PONKSHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
11.09.2019
Judgment/Order signed by P.O. on 23.09.2019
Judgment/Order uploaded on 23.09.2019
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27 N/M Nos.2059/19 in Suit No.1592/19
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