Bombay High Court
Fulchand Kasturchand Trust vs Mumbai Municipal Corpn. And 2 Ors on 20 August, 2024
Author: M S Sonak
Bench: M. S. Sonak
Fulchand Kasturchand Trust v Mumbai Municipal
2024:BHC-OS:12816-DB
Corporation and ors.
906.wp.3387-2004.doc
Pradnya
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3387 OF 2004
1. FULCHAND KASTURCHAND TRUST,
having its office at 163/165,
Shaikh Memon Street,
Mumbai 400 020. ...PETITIONER
~ versus ~
1. MUMBAI MUNICIPAL CORPORATION,
a body incorporated under
the provisions of Bombay Municipal
Corporation Act, 1888 having its
office at Mahanagar Palika Nagar,
Opp. C.S.T. Station,
Mumbai.
2. DEPUTY MUNICIPAL COMMISSIONER,
having its office at "D" Ward,
Nana Chowk, Mumbai 400 007.
3. BIMAL VIREN VORA,
Carrying on business in the name
And style of M/s. Bimal Advertisers
as Sole Proprietor thereof from
1/41, Tardeo Conditioned Market,
Tardeo Road, Mumbai - 400 034.
4. OFFICE OF THE CHIEF ENG. (D.P),
5th FLOOR, ANNEX BUILDING,
MCGM HEAD OFFICE
MAHAPALIKA MARG, FORT,
MUMBAI - 400 001. ...RESPONDENTS
Page 1 of 8
20th August 2024
Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
A PPEARANCES
FOR THE PETITIONER Ms Prachi Khandge, i/b M/s M. P.
Vashi & Associates.
FOR RESPONDENT NO.3 Ms Priyanka Tanna, i/b Mr Prem
Gidwani.
FOR RESPONDENT-BMC Ms Dhruti Kapadia, a/w Ms Meena
Dhuri.
PRESENT IN COURT Mr Rajesh Parmar, Senior
Inspector, License
Department, "D" Ward.
CORAM : M. S. Sonak &
Kamal Khata, JJ.
DATED : 20th August 2024
ORAL JUDGMENT (Per M S Sonak J):-
1. Heard learned counsel for the parties.
2. The challenge in this Petition concerns the notice dated
29 May 2004 issued by the Brihanmumbai Municipal
Corporation ("BMC") requiring the Petitioner to
remove/demolish the hoarding installed on Fulchand Niwas
Building, N. A. Purandare Marg, "D" Ward, Chowpatty,
Mumbai--400 007.
3. Ms Prachi Khandge, learned counsel for the Petitioner,
submits that the building on which the hoarding is erected is
neither a heritage building nor falls within the heritage
precincts and therefore, the Petitioner's case is covered by the
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Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
order made by the Hon'ble Supreme Court on 20th May 2004
in Special Leave to Appeal (Civil) No.9957 of 2004 wherein
the Hon'ble Supreme Court had directed a stay of the
demolition of the hoardings which were contained in the
precincts proposed to be added to the heritage
buildings/structures.
4. Ms Khandge submitted that the Deputy Municipal
Commissioner (Zone-I) on 19 June 2003 had directed the
Petitioners to make representations to the Mumbai Heritage
Conservation Committee ("MHCC") to determine whether the
building in question was really a heritage building or fell
within the heritage precincts. She submits that though the
petitioner made such an application, the same has not been
decided to date.
5. Ms Khandge, accordingly, submits that until the MHCC
decides whether the building is a heritage building or falls
within the heritage precincts, there is no question of enforcing
the impugned notice dated 29th May 2004. She submits that
such a notice should not have been issued to the Petitioner
without clarity.
6. For all the above reasons, Ms Khandge submits that the
impugned notice be quashed and the rule issued in this
Petition be made absolute.
7. Ms Dhruti Kapadia, learned counsel for BMC submits
that the Petitioner still needs to renew the permission for
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Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
displaying hoardings from 2013-2014. She submits that the
building being a heritage building or falling within the
heritage precincts is only one of the grounds supporting the
removal notice. She submits that the Petitioner's case must be
considered based on the policy guidelines in force during
periodic renewals. She submits that such renewals must be
applied every two years, and such renewal applications are
considered based upon the policy guidelines then in force.
8. Ms Kapadia also submitted that the Petitioner rejected
one such renewal that the DMC (Special) applied for by order
No.DMC/Spl/15-16/1102 dated 17th December 2016. She
submits that the Petitioner never challenged this order, but the
Petitioner continued to display the hoarding based upon the
interim order made by this Court in this Petition.
9. For the above reasons, Ms Kapadia submits that this
Petition may be dismissed and the interim relief granted be
vacated.
10. The rival contentions now fall for our determination.
11. In this case, the impugned notice dated 29th May 2004
was issued by relying upon specific orders made by this Court
in Writ Petition (C) No.1132 of 2002 directing the BMC to
remove the hoardings in heritage precincts/buildings as per
the directions of the MHCC.
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Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
12. In Civil Appeal No.6360 of 2005 and connected matters,
the Hon'ble Supreme Court, on 19th February 2009, set aside
various orders made by this Court and directed
reconsideration of all the Petitions, including Writ Petition (C)
No.1132 of 2002.
13. In this Petition, the only ground in the impugned notice
was that the building upon which the hoarding was erected
was a heritage building or in a heritage precinct. Therefore,
such hoarding was directed to be removed. Ms Khandge
referred to an order dated 19th June 2003 made by the
Deputy Municipal Commissioner (Zone-I) of BMC in which
the Petitioners were directed to make an application to MHCC
within 15 days, failing which, the Assistant Municipal
Commissioner, "D" Ward was directed to remove the hoarding
in question.
14. The Petitioner has pleaded, and there is no denial that
the Petitioner made such an application to the MHCC within
15 days. Since such an application was made and the same
was pending, there was no question of requiring the Petitioner
to remove the hoarding on the ground that the building was a
heritage building or a heritage precinct. The MHCC needed to
decide on these applications as expeditiously as possible, and
depending on the committee's decision, further action could
have been taken against the Petitioner's hoarding.
15. At the same time, we find merit in Ms Kapadia's
contention that irrespective of the heritage issue, the
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Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
Petitioner was duty-bound to apply for periodic or annual
renewals. Such applications had to be decided based upon the
policy in force at the time they were to be made.
16. Ms Kapadia has submitted that there is no renewal post
2013-2014. She also submitted that the DMC (Special) has, in
fact, rejected the renewal by order dated 17 December 2016,
which has not even been challenged by the Petitioner.
17. Ms Khandge states that renewal was applied for every
two years, but the DMC did not decide on such an application
due to the pendency of this Petition. She further states that
the DMC's rejection order dated 17 December 2016 is
challenged in an Appeal that is pending. She further states
that license fees have been paid and have been accepted by
the BMC up to date.
18. Accordingly, this Petition will have to be disposed of by
directing the MHCC to dispose of the Petitioner's application
to determine whether the building is a heritage building or
falls within the heritage precincts within six weeks from today.
To avoid any confusion simply because the Petitioner's
application was made sometime in 2003, we permit the
Petitioner to make a fresh application for such determination
within a week from today. The MHCC should dispose of such
application on or before 1st October 2024. The committee
must hear the Petitioner and make a reasoned order. Such
reasoned order must be communicated to the Petitioner on or
before 1st October 2024.
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Fulchand Kasturchand Trust v Mumbai Municipal
Corporation and ors.
906.wp.3387-2004.doc
19. Parallelly, we grant the Petitioner liberty to file for an
application seeking permission/renewal of permission to
continue displaying hoarding on the building in question.
Such an application can be made within two weeks of today.
The BMC must dispose of this application within six weeks of
its receipt. Again, the Petitioner must be heard, and a
reasoned order must be passed, which should be
communicated to the Petitioner within six weeks.
20. Suppose the BMC proposes to reject the Petitioner's
application for renewal because the building in question is a
heritage building or falls within the heritage precincts. In that
case, obviously, the BMC must await the decision of the
MHCC, which is an expert body in determining such matters.
However, suppose the BMC proposes to consider the
Petitioner's application for renewal based upon the policy
guidelines in force without addressing the issue of the
building being a heritage building or falling within the
heritage precincts. In that case, the BMC shall be free to make
appropriate orders. But, we think it would be better if the
BMC awaits the decision of the MHCC so that the Petitioner's
application for renewal can be comprehensively considered
and decided on all points.
21. The impugned notice dated 29 May 2004 is hereby
quashed and set aside. However, based upon our interim
order, the Petitioner can continue to display the hoarding until
12 November 2024 only, unless, before this date, the
Petitioner obtains a license renewal from the BMC.
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906.wp.3387-2004.doc
22. Our interim order, in this case, was, in fact, not intended
to permit the Petitioner to continue to display the hoardings
even without seeking any renewal of permissions or license or
paying the license fees. Our interim order had only restrained
the BMC from taking action against the Petitioner's hoarding
on the presumption that such hoarding was displayed on a
heritage building or fell within the heritage precincts. Such an
issue was yet to be decided by the MHCC, which was
constituted by the BMC itself.
23. In this matter, we are equally pained by the
circumstance that the MHCC did not decide on the Petitioner's
application for over 20 years. Therefore, we direct the
committee to dispose of the Petitioner's application by 1st
October 2024. If, for any reason, this is not done, then the
Chairperson of this committee must seek an extension by
giving proper reasons and explaining why such an application
has not been decided for the last 20 years. Such application, if
filed, will then be considered on its own merits. But we hope
the committee complies with our directions and decides the
matter by 1st October 2024.
24. The Rule in this Petition is disposed of in the above
terms without any order for costs. All concerned to act on an
authenticated copy of this order.
(Kamal Khata, J) (M. S. Sonak, J)
Signed by: Pradnya Bhogale
Designation: PA To Honourable Judge 20th August 2024
Date: 22/08/2024 19:09:02
