HON’BLE MR.JUSTICE R.SUBHASH REDDY Writ Petition No.11459 of 2008 Date: 26th September 2011 Between: M/s.Prakash Arts, rep. by its C.O.O., H.V.Surendranath, Himayath Nagar, Hyderabad … Petitioner And The Commissioner, Greater Hyderabad Municipal Corporation, GHMC Buildings, Hyderabad and others … Respondents Order: The petitioner, an advertising company, has filed this writ petition questioning proceedings No.216/AD3/Advt/GHMC/2008, dated 03.05.2008, issued by the 2nd respondent-Additional Commissioner (Advt) Greater Hyderabad Municipal Corporation, by which permission is granted to the 4th respondent-company to erect a uni-pole with 2 boards of size 40’ x 40’ each in the premises of Sagar Park, BPPA Area, Opp. IMAX Theatre, Necklace Road, Hyderabad. It is the case of the petitioner that it was granted licence of space by the 3rd respondent-Hyderabad Urban Development Authority, a body constituted under the Andhra Pradesh Urban Areas (Development) Act, 1975 for erection of a uni-pole of size 50’ x 40’ at Triangle Park, behind Amedkar Statue, Tank Bund for a period of three years subject to payment of Rs.13,00,000/- per annum. As the said licence was conditional subject to obtaining permission from the local authority, i.e. Greater Hyderabad Municipal Corporation, it has obtained permission from respondents 1 and 2 on 07.06.2005 and entered into an agreement with the 3rd respondent for a period of three years which can be extended for a further period of three years, and the same is valid upto 31.07.2011. It is stated that even for the period beyond 31.07.2011 lease in favour of the petitioner is renewed and in pursuance of the aforesaid agreement, the petitioner has erected a uni-pole of size 50’ x 40’ at Triangle Park, behind Ambedkar Statue, Tank Bund. It is the grievance of the petitioner that when the said agreement is still in force, the 2nd respondent has granted permission to the 4th respondent- company on 03.5.2008 to erect a uni-pole with two boards of size 40’ x 40’ at Triangle Park and the same will cause obstruction to the visibility of the existing uni-pole of the petitioner. It is alleged that the permission granted to the 4th respondent-company is in violation of condition No.39 of the terms and conditions, issued along with the impugned proceedings dated 03.05.2008; as such the same is illegal. Precisely, it is the grievance of the petitioner that it has incurred huge expenditure towards erection of the uni-pole and paid the licence fee to the respondents and thus no other uni-pole can be allowed to be erected which will cause obstruction to the visibility of the uni-pole already erected by it. Separate counter-affidavits are filed by the respondents. In the counter-affidavit filed by the 3rd respondent- HUDA, while denying the allegations of the petitioner, it is stated that the petitioner and the 4th respondent herein requested to permit them to erect uni-pole boards at Sagar lake park, Tank Bund, BPPA office. The said request was examined and place was allotted for erection of uni-poles by the petitioner and the 4th respondent at two different locations (in a distance of about 200 yards) in the year 2005. It is stated that as the said allotment was subject to the submitting no-objection certificate from the Municipal Corporation of Hyderabad (presently GHMC) and in view of the no-objection certificate obtained by the petitioner, the petitioner was permitted to erect a uni-pole with size of 50’ and 40’ by fixing annual rent of Rs.13,00,000/- with an increase of 10 percent every year. It is further pleaded that no-objection is also granted in favour of the 4th respondent on 03.05.2008 by the GHMC and care is taken to see that the uni-pole allotted to the 4th respondent will not block the visibility of the uni-pole erected by the petitioner. It is stated that the petitioner cannot stop the respondents from allotting place for erection of a uni-pole in favour of others and this writ petition is filed by the petitioner with an oblique motive to have monopoly in the market. It is further stated that in view of filing of this writ petition and preventing the 4th respondent from erecting the uni-pole, HUDA is losing its revenues. The 2nd respondent has filed a separate counter- affidavit on behalf of the GHMC. In the counter-affidavit, while denying various allegations of the petitioner, it is sated that the 4th respondent herein has made an application on 23.04.2005 to the erstwhile Municipal Corporation of Hyderabad along with NOC No.1959/UF/HUDA/2003 of the HUDA for grant of permission to erect uni-pole near BPPA area, Sagar Park and pursuant thereto, the Corporation has requested the 3rd respondent-HUDA to furnish sanction plans of uni- poles which are leased out to the petitioner and the 4th respondent herein at Triangular Park/Sagar Park, Tank Bund, Hyderabad vide letter No.941/AD3/ADVT/MCH/2005, dated 16.08.2005, issued by the erstwhile Additional Commissioner (Advt.) MCH. It is stated that the 3rd respondent-HUDA, while furnishing a copy of the key-plan of Triangular Park/Sagar Park, Tank Bund, Hyderabad has requested the Corporation to grant permission in favour of the 4th respondent for erection of uni-pole in order to avoid loss of revenue to HUDA vide letter dated 16.11.2005; thereafter the then Deputy Executive Engineer (Advertisement) has also made an inspection and submitted his field inspection report dated 10.08.2006 stating that erection of uni-pole by the 4th respondent will not obstruct the existing hoarding and recommended for grant of permission. It is stated that the present Advertisement Engineer of the 1st respondent- Corporation has also inspected the site and submitted a report dated 19.04.2008 stating that the proposed erection of uni-pole by the 4th respondent will not obstruct the view of the existing hoardings, i.e. the uni-pole board of the petitioner herein. It is further stated that on the basis of the said report, the 2nd respondent has granted permission in favour of the 4th respondent for erection of uni-pole at Triangular Park/Sagar Park, Tank Bund, Hyderabad vide proceedings dated 03.05.2008; as such there is no violation of condition No.39 of the terms and conditions for erection of uni-pole as alleged by the petitioner. It is also stated that the allegation of the petitioner that due to the permission granted to the 4th respondent, the visibility of its uni-pole is obstructed is purely imaginary and without any basis. The 4th respondent has filed separate counter- affidavit. In the counter-affidavit filed by it, it is stated that it is a company incorporated under the provisions of the Indian Companies Act, 1956. It is averred that the permission granted to it by the 3rd respondent is earlier in point of time than the permission granted to the petitioner, but the GHMC instead of processing its application first, had processed the application of the petitioner first and issued proceedings to it. It is further stated that the place allotted to it by the 3rd respondent for erection of uni-pole and the place where the petitioner was permitted to erect the uni-pole are distinct and separate and there is no violation of condition as pleaded by the petitioner. It is stated that in absence of violation of any legal right or fundamental right, the relief, sought for by the petitioner, in this petition under Article 226 of the Constitution of India, cannot be granted. While pleading that in absence of any legal right and violation of any fundamental right, no petition, under Article 226 of the Constitution of India, can be maintained by the petitioner. It is also stated that the site plan which is enclosed along with the counter-affidavit makes it clear that the places allotted to the petitioner and the 4th respondent for erection of uni-poles are at a distance of 200 feet from each other and the petitioner, being a rival trader, only with a view to have a monopoly in the market, has filed this writ petition by making false allegations. Heard Sri V.V.Anil Kumar, learned counsel for the petitioner, learned standing counsel for respondents 1 and 2, learned standing counsel for the 3rd respondent and also Sri S.Niranjan Reddy, learned counsel for the 4th respondent. It is contended by Sri Anil Kumar, learned counsel for the petitioner, that as the petitioner has already erected the uni-pole, permission granted to the 4th respondent for erection of another uni-pole, which will obstruct the visibility of the uni-pole of the petitioner, is illegal and the same is in violation of condition No.39 of the terms and conditions. It is further contended by the learned counsel that as much as there is dispute with regard to visibility of the uni-pole, appropriate directions be issued to the 1st respondent-Commissioner to make an enquiry before allowing the 4th respondent to erect the uni-pole. On the other hand, it is contended by Sri S.Niranjan Reddy, learned counsel for the 4th respondent, that this writ petition is filed by making false allegations to prevent the 4th respondent from erecting the uni-pole though there is a valid permission from the competent authorities. It is submitted that though the permission granted by the 3rd respondent to the 4th respondent is earlier in point of time than the permission granted to the petitioner, but in view of the fact that the GHMC processed the application of the petitioner first and issued no-objection in its favour, the petitioner has erected the uni-pole earlier in point of time. It is submitted that it is not known as to why the application of the petitioner was processed first and in any event when the 4th respondent is granted permission by the competent authority, it is not for the petitioner to plead that there is obstruction of visibility of the uni-pole erected by it. It is further submitted that the site plan which is enclosed along with the counter-affidavit makes it clear that two uni-poles are at different locations and at a distance of 200 yards from each other; in that view of the matter, the petitioner is not entitled to any relief as prayed for. At the outset, it is to be noticed that, in the impugned proceedings, location for erection of uni-pole by the 4th respondent was shown as Sagar Park, BPPA Area, Opp. IMAX Theatre, Necklace Road, Hyderabad, but on filing an application by the 4th respondent stating that the location is wrongly mentioned, the same is corrected by issuing proceedings dated 07.11.2008 to read the location as “Sagar Park, BPPA Area”. The grievance of the petitioner is that erection of uni-pole by the 4th respondent at Sagar Park, will obstruct the visibility of the uni-pole board erected by the petitioner, for which there is valid permission. It is to be noticed that, in this writ petition, permission granted by the HUDA is not under challenge. The consequential permission issued by the GHMC in favour of the 4th respondent is only under challenge. In the counter-affidavits filed by the HUDA and also the GHMC, it is clearly stated that while granting permission to the 4th respondent, due care has been taken to see that the uni-pole allotted to the 4th respondent does not block the visibility of the uni-pole erected by the petitioner. Further, in the counter-affidavit filed by the 2nd respondent, it is categorically stated that the permission to erect uni-pole by the 4th respondent is based on the field inspection report dated 10.08.2006 submitted by the Deputy Executive Engineer (Advertisement) in which it is categorically stated that the uni-pole which is to be erected by the 4th respondent will not obstruct the existing hoarding, i.e. the uni-pole erected by the petitioner. It is true that along with the impugned proceedings, issued by the 2nd respondent, there are terms and conditions and condition No.39 reads as under: “The proposed erection shall not obstruct or block the view of the existing sky signs.” But, when the technical staff concerned have made a field inspection and submitted a report stating that erection of uni-pole by the 4th respondent will not in any way obstruct the existing uni-pole of the petitioner, it is not open to the petitioner to plead that the proposed erection of uni-pole by the 4th respondent will be in violation of condition No.39 of the conditions. There is no reason to disbelieve the report which is referred to in the counter- affidavit filed by the 2nd respondent. It appears, the petitioner as well as the 4th respondent are in the same business and by making false allegations, by filing this writ petition, the petitioner stalled huge revenues to the respondent-Corporation. In view of the report relied on by the 2nd respondent in the counter-affidavit, the allegation of the petitioner, that the uni-pole proposed to be erected by the 4th respondent will obstruct the visibility of its existing uni-pole, cannot be accepted. I have also perused a copy of the key-plan, which is enclosed to the proceedings Lr.No.49/SE/BPPA/Advt/03, dated 16.12.2005, issued by the HUDA. A perusal of the said plan makes it clear that the place where uni-pole is proposed to be erected by the 4th respondent is far away from the uni-pole already erected by the petitioner. Hence, the allegation of the petitioner that the uni-pole proposed to be erected by the 4th respondent will obstruct the visibility of its uni-pole appears to be baseless and is contrary to the report submitted by technical experts. It is to be seen that the permission granted to the 4th respondent to erect the uni-pole is on the basis of the reports submitted by such technical experts and there is no reason to disbelieve the same. There are also no allegations against the report in the affidavit filed in support of the writ petition. Though learned counsel for the petitioner placed reliance on the order dated 21.09.2006, passed by a learned single Judge of this Court in W.P.No.13778 of 2006, in which directions were issued to the Commissioner to conduct enquiry with regard to obstruction and visibility of the hoarding therein, but, in this case, it is to be seen that reports submitted by the technical staff of the respondents-authorities are clear to the effect that the proposed erection of uni-pole by the 4th respondent will not in any away obstruct the visibility of the uni-pole erected by the petitioner. As the technical staff of the respondents-authorities have already examined the issue and submitted reports, based on which permission is granted to the 4th respondent, this Court is of the view that no further enquiry need be made; as such the said order relied on by the learned counsel for the petitioner would not render any assistance in support of his argument, having regard to the facts and circumstances of this case. For the foregoing reasons, I see no illegality in the action of the 2nd respondent in issuing the impugned proceedings permitting the 4th respondent to erect uni- pole. Writ petition is wholly misconceived and is accordingly dismissed. No costs. ___________________ (R.SUBHASH REDDY, J) 26th September 2011 MRR