ash 1 ao-283.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION APPEAL FROM ORDER NO. 283 OF 2011 M/s.De Zens Products. .. Appellants Vs The Municipal Corporation of Greater Mumbai. .. Respondent -- Shri Vineet Naik i/by Shri S.R. Kulkarni for the Appellants. Shri Jokim Reis and Mrs. K.K. Soraan for the Respondent. -- CORAM ; A.S. OKA, J DATED : 6TH MAY, 2011 P.C. . Heard learned counsel appearing for the Appellants. The Appellants are the original Plaintiffs. By the impugned order, the learned Trial judge has declined to grant equitable relief of temporary injunction in favour of the Appellants. 2. According to the Appellants on 26th April, 2001, they submitted a proposal to the Respondent – Mumbai Municipal Corporation for beautification of the entire stretch of the sea-face starting from opposite the Worli Dairy till the end of Worli Sea-face opposite Godrej Bayview Building. According to the Appellants they pointed out to the Respondent Corporation that they will have to incur a cost of about Rs.90,00,000/- which could be recoverable by installing display advertising boards of a particular size as mentioned in the proposal. It is contended that on 26th July, 2001, a sanction was granted by the Respondent Corporation. The Appellants are relying ash 2 ao-283.11 upon the communication of sanction dated 26th July, 2001. It is stated that the said communication was signed by the Assistant Commissioner (G-South) on 1st August, 2001 which contains only 14 conditions. 3. According to the case of the Appellants, they undertook the work of tiling wherever required on different stretches at Worli sea-face promenade. According to the Appellants, the carried out work of beautification by investing a sum of Rs.1,33,00,000/-. They obtained No Objection Certificate from the office of the Commissioner of Police (Traffic) on 15th September, 2001 for displaying advertisement display boards. On 12th January, 2002, the Appellants applied for licence to the Respondent Corporation. On the very day, a show cause notice was issued by the Respondent alleging non-payment of license fees and use of a large size of display boards. A suit was filed for declaration and injunction as regards the show cause notice dated 12th January, 2002. The Respondent Corporation did not contest the suit and on 6th November, 2008, the suit was decreed. On 26th July, 2010 a fresh show cause notice was issued by the Respondent Corporation alleging breaches committed by the Appellants including breaches of condition no.(xv) laying down size of the boards. The same was replied by the Appellants by a communication dated 30th July, 2010. On 29th September, 2010 the Assistant Municipal Commissioner by passing an order revoked the permission granted on 26th July, 2001 and directed the Appellants to remove the advertisement boards within a period of two weeks therefrom. 4. Thereafter, a fresh suit was filed by the Appellants for ash 3 ao-283.11 challenging the notice dated 26th July, 2010 and order dated 29th September, 2010. A Notice of Motion was taken out by the Appellants in the said suit praying for the relief of temporary injunction. By the impugned order, the relief of temporary injunction was denied. 5. Learned counsel appearing for the Appellants pointed out that the communication of permission dated 26th July, 2001 was signed by the Assistant Commissioner, G South Ward on 1st August, 2001. He pointed out that there is no condition imposed in the said communication as regards the size of the display boards. He pointed out that a fresh show cause notice issued to the Appellants is virtually the same as the show cause notice dated 12th January, 2002 which was challenged in the earlier suit filed and the decree of perpetual injunction has been passed against the Respondent which is operating till today. He submitted that the Appellants have made huge investments and carried out the work of beautification. He submitted that after the first show cause notice was issued, the Appellants could not display advertisement boards as in fact even a license was denied by the Respondent Corporation. He pointed out that the application for license was made by the Appellants on 12th January, 2002 and on the very day, a show cause notice was issued by the Respondent – Corporation. He submitted that thus after spending a huge amount now the Respondent Corporation has revoked the permission granted to the Appellants. He pointed out that in the sanction letter dated 26th July, 2001 which was signed on 1st August, 2001 no condition as regards the size of the advertisement boards was mentioned. He submitted that condition no. (xv) does not find place in the said letter issued to the ash 4 ao-283.11 Appellants and the said letter contains only 14 conditions. He submitted that the order impugned in the suit passed by the Assistant Commissioner is patently illegal. 6. I have given careful consideration to the submissions. It will be necessary to make a reference to the earlier decree passed in the suit of the year 2002. The decree is confined to the show cause notice dated 12th January, 2002. The present show cause notice was issued on 26th July, 2010. Paragraph 9 of the said show cause notice is material which records the breaches committed by the Appellants. The five breaches have been set out in the said notice. Clause (v) of Paragraph 9 of the said notice reads thus :- “(v). Condition no.(xv) is violated because you were allowed to put up 2’ x 9” for every 30 mtrs display boards which will exhibit only “beautification” carried out by --------” which clearly indicates that you were not given any commercial advertisement right. However, in violation of rules and regulation, you have exploited advertisement potential commercially. It is clear that you have not only violated the permission granted to you dated 26.7.2001, however, also put M.C.G.M. in losing heavy advertisement income due to prolonged court matter to the tune of approx. Rs.2,43,16,500/-.” 7. Thus, in the show cause notice itself the Respondent Corporation relied upon the Condition No.15 in the permission granted on 26th July, 2001. The said Condition No.15 of the permission reads thus:- “15. You should allow to display only 1 board of size 2’ - 9” dimension of every 50 meters, distance containing message that the beautification carried out .....” 8. On 30th July, 2010 the Appellants replied to the said show cause notice. The Appellants have dealt with the said Clause (v) of Paragraph 9 of ash 5 ao-283.11 the said show cause notice. In fact, the Appellants did not come out with a case that no such Condition No.(xv) was a part of the said letter of sanction. As pointed out earlier, Paragraph 9 of the notice specifically refers to Condition No.(xv) of the letter dated 26th July, 2001. In the reply to the show cause notice the only contention raised is that the condition referred to in Paragraph 9(v) of the notice has not been violated. Thus, while giving a reply to the show cause notice, the Appellants did not dispute the existence of Condition No.(xv) in letter dated 26th July, 2011. Only in the suit, a contention was sought to be raised by producing another letter dated 26th July 2001 in which Condition Nos.15 and 16 are missing. As noted by the learned Trial Judge in the impugned order, the letter of sanction dated 26th July, 2001 incorporating Condition Nos.15 and 16 was served to the partner of the Appellants. The office copy of the said letter is placed on record of the Trial Court. The said finding has been recorded in Paragraph No.19 of the impugned order. The said letter was produced by the Respondent Corporation and the Appellants did not produce the said letter and what was produced by them was a letter containing 14 conditions. 9. Prima facie, it appears to me that the contention that the Condition No.(xv) was not in existence and that the letter of sanction contained only 14 conditions clearly appears to an after-thought in as much as the said contention was not raised in the reply to the show cause notice. 10. Perusal of the permission dated 15th September, 2001 issued by the office of the Commissioner of Police (Traffic) relied upon by the Appellants shows that a permission was obtained by the Appellants from the Police in respect of boards having size of 3’ x 5’ though the condition no.(xv) ash 6 ao-283.11 restricts the size to 2’ x 9”. The judgment in the earlier suit records that the size of the boards installed by the Appellants is bigger than 2’ x 9”. The prayer in the suit shows that 150 boards having size of 3’ x 5’ have been erected. 11. Apart from breach of Condition No.15, a breach of CRZ Regulations has been alleged. Thus, this is not a case where a drastic relief of temporary injunction which is virtually in the nature of mandatory relief could have been granted. Apart from that, the learned Trial Judge has rightly observed that the contention of the Appellants that irreparable loss would be caused if injunction is not granted has not been proved. The loss can be always quantified in terms of money. 12. There is no reason to interfere with the discretionary and equitable order passed by the Trial Court. 13. Hence, there is no merit in the Appeal and the same is dismissed. It is made clear that all contentions of the parties on merits of the suit are kept open and the suit shall be decided without being influenced by the impugned order and confirmation thereof by this Court. 14. Civil Application No. 410 of 2011 does not survive and the same is disposed of. ( A.S. OKA, J )