Bombay High Court
District - Mumbai Muncipal Corpn. Of ... vs R. D. Advertisers on 11 September, 2024
Author: M.S.Sonak
Bench: M.S.Sonak
2024:BHC-OS:14057-DB M/s. R. D. Advertisers v The Municipal Corporation
of Brihanmumbai
oswp-1518-2004
Amol
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION NO. 161 OF 2009
IN
WRIT PETITION NO. 1518 OF 2004
1. M/S R. D. ADVERTISERS,
firm, having its address at 1/41
Tardeo Air-conditioned Market,
Tardeo Road, ...PETITIONER
Bombay 400 034.
~ VERSUS ~
1. THE MUNICIPAL CORPORATION OF
BRIHAN MUMBAI,
AMOL a body corporate, incorporated
PREMNATH under the provisions of the Bombay
JADHAV
Municipal Corporation Act, 1888
Digitally signed by and having its office at Mahapalika
AMOL PREMNATH
JADHAV Bhavan, Mahapalika Marg,
Date: 2024.09.11
19:16:50 +0530 ...RESPONDENTS
WITH
INTERIM APPLICATION (L) NO. 20156 OF 2021
IN
NOTICE OF MOTION NO. 161 OF 2009
IN
WRIT PETITION NO. 1518 OF 2004
1. DISTRICT - MUMBAI MUNICIPAL
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M/s. R. D. Advertisers v The Municipal Corporation
of Brihanmumbai
oswp-1518-2004
CORPORATION OF GREATER MUMBAI,
through Municipal Commissioner
having its office at Mahapalika
Bhavan, Mahapalika Marg, Fort,
Mumbai - 400001. ...APPLICANT
In the matter between
1. M/S R. D. ADVERTISERS,
firm, having its address at 1/41
Tardeo Air-conditioned Market,
Tardeo Road,
Bombay 400 034. ...PETITIONER
~ VERSUS ~
1. THE MUNICIPAL CORPORATION OF
BRIHAN MUMBAI,
a body corporate, incorporated
under the provisions of the Bombay
Municipal Corporation Act, 1888
and having its office at Mahapalika
Bhavan, Mahapalika Marg, ...RESPONDENTS
WITH
INTERIM APPLICATION (L) NO. 7258 OF 2022
IN
NOTICE OF MOTION NO. 161 OF 2009
IN
WRIT PETITION NO. 1518 OF 2004
1. MR. JEHANGIR NOSHIR IRANI,
Age: 79 years,
R/at.: 8B, 3rd floor, Mahayanoos
Casbah Building, Above Beig
Mansion,
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M/s. R. D. Advertisers v The Municipal Corporation
of Brihanmumbai
oswp-1518-2004
Chowpatty Sea Face,
Mumbai - 400 007.
2. MRS. DINAZ JEHANGIR IRANI,
Age: 63 years,
Mahayanoos Casbah Building,
Above Beig Mansion,
Chowpatty Sea Face,
Mumbai - 400 007. ...APPLICANTS
In the matter between
1. M/S R. D. ADVERTISERS,
firm, having its address at 1/41
Tardeo Air-conditioned Market,
Tardeo Road,
Bombay 400 034. ...PETITIONER
~ VERSUS ~
1. THE MUNICIPAL CORPORATION OF
BRIHAN MUMBAI,
a body corporate, incorporated
under the provisions of the Bombay
Municipal Corporation Act, 1888
and having its office at Mahapalika
Bhavan, Mahapalika Marg, ...RESPONDENTS
WITH
WRIT PETITION NO. 1518 OF 2004
1. M/S R. D. ADVERTISERS,
firm, having its address at 1/41
Tardeo Air-conditioned Market,
Tardeo Road,
Bombay 400 034. ...PETITIONER
~ VERSUS ~
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M/s. R. D. Advertisers v The Municipal Corporation
of Brihanmumbai
oswp-1518-2004
1. THE MUNICIPAL CORPORATION OF
BRIHAN MUMBAI,
a body corporate, incorporated
under the provisions of the Bombay
Municipal Corporation Act, 1888
and having its office at Mahapalika
Bhavan, Mahapalika Marg, ...RESPONDENTS
A PPEARANCES
FOR THE Ms Hetal Patel, with Suraj Shetye,
PETITIONER/APPLICANT IN Hemanshu Vyas.
IAL/20156/2021, &
WP/1518/2004.
FOR THE Mr Drupad S. Patil, with Suyesh S
PETITIONER/APPLICANT IN Sule.
IAL/7258/2022,
NMW/161/2009 &
WP/1518/2004
FOR RESPONDENT-BMC Ms Dhruti Kapadia, with Meena
Dhuri.
FOR RESPONDENT-STATE Ms Usha Rahi, AGP.
CORAM : M.S.Sonak &
Kamal Khata, JJ.
RESERVED ON : 4 September 2024
PRONOUNCED ON : 11 September 2024
JUDGMENT (Per MS Sonak J):
-
1. Heard learned Counsel for the parties.
2. The Writ Petition No. 1518 of 2004 initially instituted
challenges the 'finding of the Bombay Hoardings Conservation
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Committee in its report dated 9th August 2003, filed in Writ
Petition No. 1132 of 2002' so far as such findings 'pertain to
the hoarding of the Petitioner' described in paragraph 3 of the
Petition.
3. Despite repeated queries to the learned Counsel for the
Petitioner about whether the Petitioner was pressing for this
relief and, if so, the grounds on which such a challenge was
premised, we were given no clear or satisfactory answers.
4. Ms Patel finally submitted that the reference to the
Petitioner's hoardings in the impugned report dated 9 August
2003 was not correct because, according to her, the Heritage
Conservation Committee had only recommendatory powers
and the final decision in this regard was vested in the
Commissioner of Brihanmumbai Municipal Corporation
("BMC"). She submitted that as long as the Commissioner of
BMC had no objections to the Petitioner's hoardings, based
upon the findings in the Heritage Conservation Committee
report, the Petitioner's hoardings could not be touched or
ordered to be removed. Though this submission or some
submission to this effect was made, the same was never
elaborated upon.
5. Instead, Ms Patel urged that this Court allow the
Petitioner to extensively amend the Writ Petition in terms of
the Schedule annexed to Interim Application (L) No. 24077 of
2023 and 'to quash and/or set aside' orders passed by the
Respondents on the basis that the said hoarding violated
Clause 16(g) of the policy guidelines'.
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6. The Interim Application (L) No. 24077 of 2023 in Writ
Petition No. 1518 of 2004, though filed belatedly and perhaps
only to delay the final hearing of this Petition and continue to
display the hoarding based upon the interim order in this
Petition, was allowed. Ms Patel was extensively heard on the
averments and reliefs in the amended Writ Petition.
7. Since prayer clause (a-1) introduced by the amended
Petition was vague, in as much as it referred to no specific
orders and provided no dates or particulars of such orders, Ms
Patel was requested to clarify. She referred us to BMC's order
dated 17 December 2016 (Exhibit-I, page 68 of the IA) and
submitted that this was the order referred to in the amended
prayer clause (a-1). Further, she clarified that the policy
guidelines referred to in the amended prayer clause (a-1)
were the policy guidelines on the grant of permission for the
display of sky signs and advertisements under Section
328(A)of the Mumbai Municipal Corporation Act, 1888,
issued on 10 January 2008. In the written note/list of dates
furnished by Ms Patel, there is a reference to these New Policy
Guidelines 2007 coming into effect from 10 January 2008.
8. In the written note submitted by Ms Patel, 'the challenge
in brief' is described as follows:-
"I. Challenge in brief: The Petition pertains to a hoarding
erected in the compound of heritage building ' Mahaynus
Casba' at Chowpatty, and was filed as part of batch of Writ
Petitions filed before this Hon'ble Court regarding the
installation of hoardings across the city of Mumbai. The
Petitioner has challenged the inclusion of the hoarding in the
Report dated 9th August 2023 ("Report") prepared by the
Mumbai Heritage Conservation Committee ("MHCC"), which
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requires all hoardings in heritage precincts to be taken down.
The MHCC has recommended removal because of purported
violation of Guidelines. However, the Municipal Commissioner
has not accepted the said recommendation and has directed
the hoarding be retained because it is in the precincts of a
Grade III building."
9. At the final hearing, however, Ms Patel stressed the
challenge to BMC's order dated 17 December 2016, by which
the Petitioner's applications for renewal to display the
hoardings were rejected. This order, however, provides that in
light of the pending litigation and orders passed by this Court
in Writ Petition No. 1518 of 2004 (present Petition), the
implementation of this order would be operative only after
the outcome of Writ Petition No. 1518 of 2004 and the orders
that shall be made therein.
10. The order dated 17 December 2016, in terms, states that
the Petitioner could appeal the same within 30 days to the
Joint Appellate Authority specified in Clause 4 of the
operative portion of the said order. This order specifies that if
there is no challenge within 30 days, the hoarding shall have
to be removed by the Petitioner, failing which, the Assistant
Commissioner, D Ward, shall remove the same at the
advertiser's risk, cost and consequences. Further, there was to
be no display of advertisement during the pendency of the
appeal, if preferred.
11. The above directions in the operative portion of the
order dated 17 December 2016 were entirely consistent with
the directions issued by this Court in its judgment and order
dated 30 July 2012 in Writ Petition No. 1132 of 2002 and
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connected matters (Dr. Anahita Pandole Vs. State of
Maharashtra & Ors.). This judgment and order was passed
after the Hon'ble Supreme Court, by its order dated 19
February 2009 set aside the order dated 5 May 2024 (reported
in 2004 SCC OnLine BOM 402) and restored Writ Petition No.
1132 of 2002 and connected matters to this Court for
reconsideration.
12. In terms of this Court's judgment and order dated 30
July 2012 in Writ Petition No. 1132 of 2002 and connected
matters, liberty was granted to the parties who had displayed
hoardings to apply for renewal under the New Policy
Guidelines. If such renewal were to be rejected by the Deputy
Municipal Commissioner, the aggrieved parties had the right
to appeal against such a decision. Directions were issued that
the hoarding need not be pulled down during the pendency of
the appeal. However, the advertisements were not to be
displayed at the same time. The appellate authority was
directed to dispose of such appeals within four weeks. (see
paragraph 6(vi) of judgment and order dated 30 July 2012).
13. Further, this Court, in paragraph 6(vii) of its judgment
and order dated 30 July 2012, directed that once an
application for renewal of a license is rejected and such order
is not challenged within 30 days or when an appeal is filed,
and the appellate authority dismisses the same, the hoarding
shall be removed within four weeks from the date of
communication of the order to the concerned party.
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14. In the present case, we are satisfied that the Petitioner
has tried to overreach the judicial process and bypass the clear
and definite directions issued by this Court in its judgment
and order dated 30 July 2012. By adopting such an unfair
modus operandi, the Petitioner continues to display the
impugned hoardings unlawfully and bypass the directions
issued by this Court by not appealing the order dated 17
December 2016 by which the Deputy Municipal Commissioner
rejected the Petitioner's application for renewal of a license to
display the hoardings. In the note submitted by Ms Patel,
there is a vague reference to the Petitioner appealing the
order dated 17 December 2016. However, despite repeated
queries and opportunities, neither any appeal memo nor any
details of such an appeal could be provided by her. The
circumstance that the BMC accepted license fees does not
mean that the license was renewed. The BMC has several
departments. Unfortunately, not always with working
coordination with each other. In this case, there is expressed
order rejection renewal. Despite the same, the Petitioner
continued displaying the advertisement. Possibly, therefore,
license fees were charged. This does not constitute renewal or
confer legitimacy to such display.
15. Ms Dhruti Kapadia, the learned Counsel for the BMC,
based upon instructions of the BMC officials present in the
Court, explicitly stated that the Petitioner instituted no appeal
against the order dated 17 December 2016. This statement,
coupled with the inability to place on record any details of the
appeal, if preferred, is sufficient to conclude that the
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Petitioner instituted no appeal. This was only because this
Court, in its judgment and order dated 30 July 2012, had
stated that the offending hoardings need not be pulled down
during the pendency of the appeal. Still, at the same time,
parties were not allowed to display their hoardings during the
pendency of such appeal. To bypass this court's order and
continue to display the hoarding even though renewal was
rejected, the petitioner adopted this modus Operandi.
16. If the Petitioner had indeed preferred any appeal against
the order dated 17 December 2016, there was no reason for
filing an amendment application in 2023 and seeking to
challenge the same order in this Petition. Secondly, if the
appeal was indeed preferred, then the Petitioner was duty-
bound to stop displaying the advertisements, given the
directions in our judgement and order dated 30 July 2012.
17. The Petitioner, to bypass the clear and explicit directions
issued by this Court, adopted a hybrid modus so that the
advertisement could be unlawfully displayed from 2016 to the
present date, even though the application for renewal had
already been rejected. Even the reason for seeking belated
leave to amend the Petition was only to delay the final
disposal of this Petition and enjoy the benefit of the interim
relief. The Petitioner, accordingly, has not been entirely fair to
the Court or the Court process. For such conduct, the
petitioner deserves no relief in this petition. But still, we have
examined the petitioner's case on merits and we are satisfied
that this petition deserves to be dismissed even on merits.
M/s. R. D. Advertisers v The Municipal Corporation
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18. As noted earlier, no substantial ground was raised or
pressed in support of the challenge to the findings of the
Bombay Heritage Conservation Committee report dated 9
August 2003. An expert committee has prepared the report.
The report's conclusions are based not only on facts but also
on the expertise of the committee members. In the Petition,
there are vague allegations about "only a handful of elitist
who are hankering on the removal of hoardings in the name
of preserving environment". There are grounds that if
hoardings are removed, families of artisans, painters, workers
and labourers who depend solely on advertising trade would
be rendered unemployed. There are statements that if the
proposals of the Heritage Conservation Committee are
accepted, that would be the "death-knell to the outdoor
advertising, thereby proportionately benefiting the media
industry". There are allegations that all this is a calculated
effort to reduce competition and to benefit the electronic and
print media. Fortunately, Ms Patel did not argue based on such
unsubstantiated and vague pleadings and grounds. Her only
contention was that the conservation committee could only
make recommendations, but the ultimate decision was with
the Commissioner of BMC.
19. Based upon the grounds pleaded in the Petition or the
allegations therein or on the ground urged by Ms Patel, no
case is made out to set aside the findings of the Bombay
Heritage Conservation Committee in its report dated 9 August
2003. A report prepared by experts cannot be judicially
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reviewed on the grounds urged. Accordingly, prayer clause (a)
of the Petition is liable to be rejected and is hereby rejected.
20. Prayer clause (a-1) introduced by the amendment reads
as follows:-
"(a-1) that this Hon'ble Court be pleased to issue a Writ of
Certiorari and/or Writ in the nature of Certiorari and/or any
other appropriate Writ, order or direction calling for the
records pertaining to the case of the Petitioner and after
going through their legality, validity and propriety be further
pleased to quash and/or set aside orders passed by the
Respondents on the basis that the said hoarding violating
Clauses 16(g) of the Policy Guideline.;"
21. As noted above, this prayer clause is deliberately vague.
However, upon pointed queries, Ms Patel submitted that the
order referred to in prayer clause (a-1) was the order dated
17 December 2016 by which the Deputy Commissioner of
BMC rejected the Petitioner's application for renewal to
display the hoardings.
22. Ms Patel, as noted above, did submit that an appeal was
filed against the order dated 17 December 2016 but was
unable to substantiate this position. Ms Dhruti Kapadia, based
upon the instructions from the BMC officials, asserted that no
appeal had been filed or was pending. In our judgment and
order dated 30 July 2012 disposing of Writ Petition No. 1132
of 2002, applications rejecting the renewal of a license to
display hoardings had to be appealed against in case the
applicants were aggrieved. During the pendency of such an
appeal, the hoardings in question were not required to be
pulled down. But no hoardings/art material would be
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displayed thereon. Besides, directions were issued to dispose
of such appeals within four weeks of their institution.
23. The Petitioner, to bypass the above procedure, chose not
to file any appeal. In any event, they chose to continue
displaying the hoardings during the alleged pendency of the
alleged appeal. Now belatedly, a vague challenge was thrown
by amending the Petition but again not clearly stating in the
prayer clause that the order dated 17 December 2016, by
which the Petitioner's application for renewal of the hoardings
was rejected, was being challenged. We have already
commented upon this modus operandi adopted by the
petitioner to overreach the Judicial process and court's orders.
24. The relief in terms of prayer clause (a-1) must be
rejected because the Petitioner, despite having an alternate
remedy, has chosen not to avail of such remedy to avoid
stopping displaying the hoardings during the pendency of the
appeal. The amendment was applied for in 2023 when the
impugned order was made out on 17 December 2016. There
is no explanation for this inordinate delay. The Petitioner has
taken utmost advantage of his delay. Even the amendment
was applied for and pressed only to avoid the final hearing of
this Petition. Based on these grounds, the challenge to the
order dated 17 December 2016 warrants dismissal even
without examining its merits.
25. However, we propose considering the Petitioner's
challenge to the order dated 17 December 2016, even on
merits. Ms Patel submitted that the hoardings do not violate
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the MCGM policy guidelines. However, apart from such a
submission, Ms Patel could not elaborate on any deficiencies
in the order dated 17 December 2016.
26. The order dated 17 December 2016 refers to the notice
issued to the Petitioners for violating the policy guidelines and
to the Petitioner's reply to the notice. Thus, there can be no
complaint about violating principles of natural justice or fair
procedure before making the order dated 17 December 2016.
Full opportunity was granted to the petitioner, and the BMC
adopted a fair procedure.
27. The order dated 17 December 2016 records that the
subject hoardings were inspected by Senior Inspector (LIC) D
ward and Advertisement Inspector (LIC) on 8 November
2016. During the inspection, the following violations were
noted:-
i. The size of the hoarding is not in standard size in
Zone-H1.
ii. Hoarding is projecting on footpath.
iii. Advertiser has not submitted NOC of MHCC for
heritage point of view.
iv. Advertiser has not submitted NOC of MHCC for CRZ
point of view.
v. The structure of the hoarding is not as per Annexure -
1 of the policy guidelines."
28. The Petitioner has not produced any material to show
that the hoarding size was the standard size permissible in
Zone H1. No material was produced to show that the
hoarding was not projecting on a footpath. In fact, in one of
the Interim Applications filed by the residents of the building,
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the material is produced to show that the hoarding is
projecting on the footpath. There is a finding that the
hoarding structure is not in accordance with Annexure 1 of
the policy guidelines. Ms Patel, except for asserting that the
structure is in accord with Annexure 1, produced no material
to substantiate or to show that this finding of fact recorded in
the order dated 17 December 2016 is perverse or vitiated for
any other reason.
29. The order dated 17 December 2016 also refers to the
Petitioner not producing any No Objection Certificate ("NOC")
from Mumbai Heritage Conservation Committee ("MHCC")
from the heritage point of view or submitting NOC from
Maharashtra Coastal Zone Management Authority (MCZMA)
from the Coastal Regulation Zone ("CRZ") point of view. Even
if the aspect of CRZ is ignored because of Ms Patel's
contention that this hoarding was put up before 1991, there is
still no explanation for not submitting any NOC from MHCC
from the heritage point of view. The challenge to the Heritage
Committee report was rejected because it was frivolous and
misconceived. Therefore, the Petitioner could not avoid
producing NOC from MHCC from the heritage point of view.
30. Ms Dhruti Kapadia also produced on the record a
communication dated 4 September 2023 issued by the
Government specifying that the Marine Drive Precinct is
declared a heritage precinct. She also produced on record the
guidelines for granting special permission to redevelopment
projects in the Marine Drive Precinct. Therefore, Ms Patel did
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not raise any argument about the Marine Drive Precinct not
being a heritage precinct.
31. At this stage, we also refer to the decision of the Division
Bench of his Court Comprising Thakkar C. K., C.J. &
Chandrachud D. Y., J. (as Their Lordships then were) in Dr.
Anahita Pandole Vs. State of Maharashtra & Ors1. disposing of
Writ Petition No. 1103 of 2002. Although the Hon'ble
Supreme Court set aside this decision and remanded the
matter for reconsideration. Such setting aside was not on
merits but only to facilitate the hearing of Writ Petition No.
1132 of 2002 and all matters instituted by the advertisers.
32. In judgment and order dated 5 May 2004, the Division
Bench, in the context of the precise hoardings/advertisements
forming the subject matter of the Petition, observed as
follows:-
"47. The present case relates to the illuminated hoarding
admeasuring 16 ft. x 12 ft. erected in the compound of Islam
Club situated at N.A. Purandare Marg, Chowpatty. Chowpatty
sea face buildings have been listed at Sr. No. 458 of the
Heritage List. The Heritage Committee has dealt with this
hoarding at Sr. No. 22 in its second list and has come to the
conclusion that Guidelines 1 and 3 of its guidelines are
violated by the hoarding. The Expert Committee appointed by
this Court was also of the view that the hoarding was liable to
be removed since it was in violation of Guidelines 16(a) and
(g) framed by the Municipal Corporation. The Municipal
Corporation had not accepted the recommendation and was of
the view that the hoarding should be retained since it is on a
Grade III building. We have specifically disapproved of the
approach of the Municipal Commissioner and overruled his
findings in regard to Grade III structures. For the reasons
already indicated in the body of the main judgment, we are of
2004 SCC OnLine BOM 402
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the view that the Municipal Commissioner was not justified in
interfering with the well considered findings of the Heritage
Conservation Committee. We do not find any merit in the
petition which is accordingly rejected."
33. Although, technically, the above decision was set aside
by the Hon'ble Supreme Court with directions to hear all
pending matters together, there is a finding that the expert
committee found the hoardings to the in violating of
guidelines 16(a) and (g) framed by the BMC. This Court
disapproved of the BMC not accepting the recommendation of
the expert committee on the alleged ground that the building
was a Grade-III building. The Division Bench expressly
disapproved of the Commissioner's approach and overruled its
findings regarding Grade-III structures. The Division Bench
held that the Municipal Commissioner was not justified in
interfering with the well-considered findings of the Heritage
Conservation Committee.
34. Ms Patel, apart from submitting that the Hon'ble
Supreme Court set aside the judgment, could not point out
why the above findings were incorrect. As noted earlier, the
Hon'ble Supreme Court did not set aside the above findings
on merits; the decision was set aside only by observing that all
the matters should have been taken up and disposed of
together.
35. However, even accepting Ms Patel's argument, upon
remand of the matter, nothing prevents this Court, after
examining the matter on merits, to conclude that there was no
case made out to interfere with the findings of the Heritage
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Committee report, which was an expert body. Similarly, based
on the material on record, it is established that the hoardings
that form this Petition's subject matter violated Guideline
16(a) and (g) framed by the BMC. At that stage, the BMC
disagreed with the expert committee's recommendations. This
approach of the BMC deserves to be deprecated.
36. However, as the order dated 17 December 2016 would
show, the BMC has now, based on inspection, concluded that
there are several violations and, based thereon, declined to
renew the license for the display of hoardings. Thus, even
independent observations in para 47 above show that this is a
matter where the record shows serious violations. There is no
infirmity with the order dated 17 December 2016, even on
merits. Accordingly, relief in terms of prayer clause (a-1) is
liable to be rejected.
37. The Petitioner, in this case, has abused the judicial
process and displayed hoardings in breach of several clauses
of the applicable guidelines by securing an omnibus interim
order. Even the interim order required the Petitioner to obtain
or renew the licenses. The Petitioner did apply for renewals
but, after the renewals were rejected, continued to display the
hoardings even though such hoardings were wholly illegal
and in violation of the guidelines. The Petitioner, as noted
above, has tried to overreach the orders of this Court and to
bypass the orders made by this Court.
38. We dismiss this Petition and vacate the interim reliefs for
all the above reasons. The Petitioner must pay Rs.
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2,00,000/--within four weeks from today. The MCGM and the
building owners who filed the Interim Application (L) No.
7258 of 2022 for vacating the interim orders in this Petition
must share these costs.
39. This Petition is accordingly dismissed with a cost of Rs.
2,00,000/--payable by the Petitioner within four weeks. Rs.
100,000/--must be paid to the BMC, and the balance of Rs.
100,000/--must be paid to the applicants in Interim
Application (L) No. 7258 of 2023. The interim orders granted
by this Court are vacated, and the BMC is expected to execute
its order dated 17 December 2016 immediately.
40. The Interim Applications are disposed of in the above
terms.
(Kamal Khata, J) (M. S. Sonak, J)
