Ashutosh S/O. Shivkumar Sharma vs The State Of Maharashtra And Anr
2017 Latest Caselaw 5239 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION

                             WRIT PETITION NO.182 OF 2016

              Mr. Ashutosh s/o Shivkumar Sharma             ]
              Aged about 61 years                           ]
              of Mumbai, Adul, Indian Inhabitant,           ]
              carrying on business as Proprietor of         ]
              M/s. State Express Ads Outdoor Advertising ]
              having his office Situated at 9-A, Pink Apt.  ]
              Co-op. HSG. Society, Opp. Seven Bunglow  ]
              Garden, Versova, Andheri (W),                 ]
              Mumbai - 400 061.                             ]        .. Petitioner

                    V/s

1.            The State of Maharashtra, to be served        ]
              through Government Pleader,                   ]
              High Court (O.S), Mumbai                      ]

2.            Municipal Corporation of Greater Mumbai       ]
              A Body incorporated under the provisions      ]
              of M.M.C. Act having its office sitated at    ]
              Mahapalika Bhavan, Mahapalika Marg,           ]
              Mumbai.                                       ]        .. Respondents
                                            ...

Mr. Anand Mishra i/b. R. R. Verma for the Petitioner.
Mr. V. S. Upadhyay, AGP for the Respondent No.1.
Ms. Pallavi Thakar for the Respondent No.2.



                             CORAM   :  A. S. OKA &
                                          SMT. VIBHA KANKANWADI, JJ.

DATE ON WHICH THE JUDGMENT IS RESERVED: 11th JULY 2017 DATE ON WHICH THE JUDGMENT IS PRONOUNCED: 31th JULY 2017

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ORAL JUDGMENT: (PER SMT. VIBHA KANKANWADI,J)

1] The Petitioner carries business of erecting hoardings. He had made an application to 2nd Respondent for display of hoarding on 5 th May 1995. The said application was allowed by the 2 nd Respondent on 18th July 1995. The Petitioner obtained no objection certificate from Patel Apartments in whose compound the hoarding was to be erected. The said no objection was given on 10 th February 1995. Now the Petitioner has received a notice/ order on 26 th March 2013, from 2nd Respondent, directing Petitioner to modify hoarding bearing Permit No.761101678 within 6 weeks. The Petitioner was informed that the vertical size of the hoarding is exceeds by 10 ft. and shall take every steps to comply with the guidelines in the policy of 2007 followed by the 2nd Respondent. Being aggrieved by the said notice/ order, Petitioner had preferred an appeal before the Deputy Commissioner of 2 nd Respondent. The appeal was rejected on 15 th March 2014. The notice/ order passed by BMC was confirmed. Thereafter, the Petitioner has preferred Second Appeal before the Municipal Corporation of Greater Mumbai. It was intimated by the 2nd Respondent vide letter dated 8th December 2015 that the said appeal has been rejected. 2] The only dispute in respect of compliance of the new guidelines of the policy of 2007 is that the vertical size of the hoarding exceeds by 10 ft. The Petitioner claims to have complied with all other obligations on his part by his letter dated 10th May 2012. The Petitioner had informed the 2nd Respondent that he is ready and willing to modify the hoarding as per the new guidelines. Another letter came to be addressed by the Petitioner to the Deputy Municipal Commissioner of 2 nd Respondent on 19th May 2012 on the same lines. In addition to willingness to remove the 10 ft. portion of the hoarding; the Petitioner

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has contended that he has now removed the portion attached to the footpath. Thereby, it is stated that he has complied with all the requirements mentioned in the notice/ order. The intimation was given by the Petitioner regarding present position to the 2nd Respondent no 15th March 2014 as well as on 8th December 2015. However, the 2nd Respondent has passed an order directing the Petitioner to remove the hoarding. It has been stated that the new policy guidelines of 2007 has been challenged before this Court in many petitions. It has been further contended that as the Petitioner has complied with all the directions, issued by the 2nd Respondent, both the orders dated 15 th September 2015 and also the order passed by Deputy Municipal Commissioner dated 7 th February 2014 and 26th March 2013 deserve to be set aside. Hence this Writ Petition.

3] Affidavit-in-reply has been filed by Shri Baig, M.H.R., Senior Inspector of License, H/West Ward, on behalf of the 2 nd Respondent. It has been contended that the advertisement hoardings of M/s. State Express Advertising in H/West Ward was permitted under Permit No. 761101678 having size 20' X 20' in the compound of Patel Apartments, S. V. Road Santracruz (W), Mumbai. This Court had passed an order on 30th July 2012 in Writ Petition No. 1132 / 2002 directing the MCGM to adopt certain procedure in case of issue/renewal of existing hoardings/Sky Sign issued under Section 328 / 328 A of the Mumbai Municipal Corporation Act, 1888. A renewal application was filed by M/s. State Express regarding the hoarding permit on 26 th August 2012. The inspection revealed that their hoarding was violating following new policy guidelines 2007 for permission to display advertisement.

Part-IIA 10(c) : - The hoarding is projecting on Municipal Footpath by 2ft.

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Therefore, a show cause notice was issued on 26 th February 2012. At that time, M/s State Express neither ratified the violations nor complied with the terms and conditions of the advertisement policy guidelines. Since the advertiser had failed and neglected to comply, the Deputy Municipal Commissioner (Zone-III) revoked the permit vide his order No. DMC/Z-III/4211 dated 22nd March 2013. The First Appeal was rejected and therefore, M/s. State Express preferred Second Appeal. It was preferred without making compliances in spite of giving opportunity and therefore, the Appellate Authority revoked the permit by its order No. ACHW/OD/118/Lic dated 8th December 2015. It is further stated in the affidavit-in-reply that the Petitioner in this Writ Petition has rectified the violations pointed out in the show cause notice. The subject hoarding was inspected on 4 th August 2016. During the inspection it is found that the Petitioner had carried out rectification by removing the projection of hoarding which was projecting on the Municipal footpath by 2 ft. It has been now clearly stated that the hoarding size is as per the approved size.

4] As the facts emerge and it has been so contended in the petition also that when even the Second Appeal was preferred, the Petitioner had not complied with the notice/ order. The hoarding in question was not as per the policy that has been framed by 2 nd Respondent in 2007 by virtue of order passed under the directions of this Court. However, the position as on today is that the said hoarding is now as per the said policy and all the shortcomings have been rectified. Specific statement has been made on behalf of the 2 nd Respondent in para 5 (j) of the Affidavit of Shri Baig. Under such circumstances, when the rectification has been done, the permit deserves to be considered for

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renewal. Another aspect to be noted is that the owner of the premises in whose premises the hoarding is displayed appears to have no objection and therefore so long as the owner has no objection and the hoarding is as per the requirements of the policy, we do not find any reason for the 2nd Respondent to deny the prayer for the renewal of permit. With these observations, we proceed to pass the following order:-

O R D E R

a) The orders dated 15th September 2015, 26th March 2013 and 7th February 2014 by Deputy Commissioner are hereby set aside;

b) 2nd Respondent is directed to consider the application for the renewal of permit filed by the Petitioner within 6 weeks from the date of uploading of this order;

c) The said order be communicated to the Petitioner;

d) Till the decision on the application is communicated by the 2nd Respondent to the Petitioner, the Petitioner shall not display any advertisement on the hoardings.

e) With these directions, the Writ Petition is disposed of.

(SMT. VIBHA KANKANWADI, J)                                                (A. S. OKA, J.)