Bombay High Court
Madanmohan C. Gupta (Huf) vs Municipal Corporation Of Greater ... on 12 June, 2017
Bench: A.S. Oka
1 wp-1991.16
pmw
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1991 OF 2016
Madanmohan C. Gupta (HUF) ... Petitioner
Vs.
Municipal Corporation of Greater Mumbai & Ors. ... Respondents
Mr. Girish Godbole a/w Mr. Rajiv Narula i/by Jhangiani Narula &
Associates for the Petitioner.
Mr. J. Reis, Senior Counsel a/w Ms. Pallavi Thakar for the Respondents.
CORAM : A.S. OKA &
SMT. VIBHA KANKANWADI, JJ.
DATE : 12th JUNE, 2017
ORAL JUDGMENT (Per A.S. Oka, J.)
1 The submissions of the parties were heard on 8 th June,
2017. The parties were put to notice that the Petition will be disposed
of finally at the stage of admission. Rule. Advocate on record for the
respondents waive service. The challenge in this Petition under Article
226 of the Constitution of India is mainly to the order dated 13 th July,
2016 passed by the officers of the Mumbai Municipal Corporation in a
Second Appeal against an order passed by the First Appellate Authority.
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2 A show cause notice dated 27th November, 2012 was issued
to M/s. Advance Advertisers by the Assistant Commissioner, K/West
Ward. The present petitioner is stated to be carrying on business in the
name of M/s. Advance Advertisers. In the said show cause notice, it was
stated that the permit has been granted to the petitioner to display the
Illuminated Advertisement Hoarding more particularly described in the
said notice which is valid upto November, 2012. It was alleged that on
inspection of the advertisement hoarding it was revealed that the
hoarding is violating certain clauses of policy guidelines of the year
2007. The said clauses read thus :-
"1 Clause Part II A- 2: All poles on support of hoarding is
erected and back of hoarding board is
aesthetically not covered.
Structure of the hoarding alongwith
its support and the rear side of the
hoarding is not painted as per
Annexure - I of the Policy Guidelines.
8 Increase in Hoarding size."
3 The petitioner was called upon to show cause as to why his
request for renewal of the permit should not be rejected and why the
permit along with the agreement should not be revoked. The petitioner
replied to the show cause notice by a reply dated 17 th December, 2012.
By a further notice dated 28th December, 2012 the petitioner was
informed by the Mumbai Municipal Corporation that inspection of the
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site reveals that the petitioner has not made compliances. Thereafter,
there was correspondence exchanged between the petitioner and the
officers of the Municipal Corporation. The second show cause notice
was issued on 11th June, 2013. By the said show cause notice, the
petitioner was informed by the Senior Inspector of Licence, K/West
ward that Tata Power Company Limited has raised an objection to the
advertisement hoardings in respect of two permits mentioned in the
show cause notice. The objection raised by Tata Power Company
Limited was also set out in the said show cause notice. By a letter dated
22nd June, 2013 the petitioner informed the Senior Inspector (Licence)
that out of two permits, the Permit No.761143384 has been cancelled
and for Permit No.761143356, there was a NOC granted by the said
Company. By a letter dated 20th July, 2013 the Senior Inspector
(Licence), K/West Ward informed the petitioner that copy of the NOC
produced by the petitioner cannot be considered as the said Company
has now raised an objection. Thereafter, there was further
correspondence exchanged between the parties.
4 By a communication dated 13 th February, 2015/ 2nd March,
2015, the petitioner was informed that he has not rectified the
following violations :-
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"1) Clause Part II A-2 : All poles on support of hoarding is
erected & back of hoarding board is
aesthetically not covered structure of
the hoarding alongwith its support &
the rear side of the hoarding is not
painted as per Annexure-I of the
policy Guidelines.
5) Complaint received from Tata Power Co. Ltd. vide their
letter 28th March, 2013 regarding advertisement
hoarding close to EMV lines."
Therefore, by the said communication issued by the
Municipal Corporation (Zone-4), he proceeded to reject the application
for renewal of Permit No.7661143356 (for short "the said permit") and
revoked the said permit along with the agreement. Against the said
decision, an Appeal was preferred by the petitioner. The First Appellate
Authority by order dated 2nd September, 2015 upheld the order of the
Deputy Municipal Commissioner. Being aggrieved by the said order, a
second Appeal was preferred by the petitioner which is dismissed by the
impugned order dated 13th July, 2016.
5 The learned counsel appearing for the petitioner has taken
us through the orders of the Appellate Authorities. He pointed out that
the First Appellate Authority has considered only one objection namely
the letter of objection issued by the Tata Power Company Limited. He
pointed out that the Second Appellate Authority in the impugned order
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referred to the fact that a fresh NOC has been issued by the said
Company on 12th June, 2015. He pointed out that that the Second
Appellate Authority has confirmed the order of the First Appellate
Authority on an altogether new grounds namely that the hoarding was
blocking the view of the building behind it and the hoarding is situated
in close vicinity of EMV lines. Thirdly, it was observed that the view of
the Senior Inspector (Licence) K/West Ward is adverse. He submitted
that the order of rejection of the application for renewal of permit could
have been passed only on the basis of grounds in the two show cause
notices and on no other grounds. He submitted that the impugned order
of the second Appellate Authority is therefore in breach of principles of
natural justice. The learned Senior Counsel appearing for the Municipal
Corporation supported the impugned orders and submitted that in view
of the observations made by the Second Appellate Authority, no
interference is called for.
6 We have carefully considered the submissions. We have
already reproduced the objections raised by the Municipal Corporation
in the first show cause notice dated 27 th November, 2012. As
reproduced earlier, there were two objections raised in the said show
cause notice. In the communication/ order dated 13 th February, 2015/
2nd March, 2015, the second objection in the show cause notice dated
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27th November, 2012 is not even referred and therefore, it is obvious
that the order dated 13th February, 2015/ 2nd March, 2015 is not based
on the second objection (increase in the hoarding size). The first ground
set out in the said order is of violation of clause Part II A-2 which is set
out in the first show cause notice. The second ground in the order dated
13th February, 2015/ 2nd March, 2015 is regarding complaints received
from the Tata Power Company Limited on the basis of which the second
show cause notice was issued. We have carefully perused the order of
the First Appellate Authority. The impugned order of rejection of
application for renewal and revocation of permit seems to have been
upheld only on the basis of the objection raised by the Tata Power
Company Limited. The said order of the First Appellate Authority notes
that the report of the Advertisement Inspector records that the Tata
Power Company Limited has withdrawn the objection and has issued a
no objection certificate. It is observed by the First Appellate Authority
that the said Company has suddenly changed the stand after a period of
three years and the letter dated 12 th June, 2015 was issued without
citing any reasons. It was observed that the matter appears to be fishy.
The entire approach of the First Appellate Authority appears to be
completely illegal. There was an objection raised by the Tata Power
Company Limited which was withdrawn by the letter dated 12 th June,
2015 and NOC was issued. The First Appellate Authority had no
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jurisdiction to go into the question as to why the said Company has
changed its earlier stand. The observation that the matter appears to be
fishy was completely uncalled for as it has no basis.
7 Now, we come to the order of the Second Appellate
Authority. The Second Appellate Authority seems to have accepted the
contention of the Appellant that the earlier objection raised by the Tata
Power Company Limited has been withdrawn and now a fresh NOC
dated 12th June, 2015 has been issued by the said Company. However,
the Second Appellate Authority has relied upon new grounds which
were not a part of both the show cause notices and which were not part
of the order of rejection of the application for renewal of permit. It was
observed by the Second Appellate Authority that the hoarding was
blocking the view of the building behind it. Secondly, it was observed
that the hoarding is in close vicinity of EMV lines. Thirdly, it was
observed that the view of Senior Inspector (Licence), K/West Ward is
adverse. The second Appellate Authority could not have invented these
new grounds. In any event, the said grounds could not be held against
the petitioner as the same were not a part of the show cause notices.
8 Therefore, the scenario which emerges is that the order of
rejection of an application for renewal of permit made by the petitioner
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and the order of revocation of permit cannot be justified on any of the
grounds set out in both the show cause notices.
9 Therefore, the Writ Petition must succeed and the
application made by the petitioner for renewal of the said permit will
have to be considered afresh without being influenced by the orders of
the Appellate Authority. However, the petitioner is not entitled to
display any advertisement on the hoarding unless a permit is granted by
the Mumbai Municipal Corporation.
10 Accordingly, we pass the following order :-
ORDER
(i) The impugned order of the Second Appellate Authority
dated 13th July, 2016, the order dated 2nd September,
2015 passed by the First Appellate Authority and the
order dated 13th February, 2015/2nd March, 2015 are
hereby set aside;
(ii) Within a period of four weeks from the date on which
an authenticated copy of this judgment and order is
produced by the petitioner before the concerned
Authority of the Mumbai Municipal Corporation, the
application for renewal of Permit No.761143356 shall
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be decided afresh by the Municipal Corporation.
Needless to add that while deciding the application, the
concerned authority shall not take into account the
impugned orders which have been set aside;
(iii) We make it clear that the petitioner shall not be entitled
to display advertisement on the hoarding unless the
permit earlier granted to the petitioner is renewed or a
fresh permit is granted;
(iv) Before deciding the application for renewal of permit,
the concerned Authority will verify whether the
petitioner is displaying any advertisement on the
hoarding. If the Authority finds that the petitioner is
displaying any advertisement on the hoarding, the
concerned authority will be justified in rejecting
application on that ground;
(v) Rule is made partly absolute on above terms;
(vi) All concerned to act upon an authenticated copy of this
order.
(SMT. VIBHA KANKANWADI, J) (A.S. OKA, J)
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