1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. NOTICE OF MOITON NO.698 OF 2008 WITH NOTICE OF MOTION NO.890 OF 2008 IN SUIT NO.3466 OF 2004 M/s. Front Display. ...Plaintiff. Versus The Maharashtra State Road Development Corporation. ...Defendant. ....... Mr. P.K. Samdani, Senior Advocate with Mr. Vastal Kishore and Mr. Vikramsinh i/b. M/s. Kishore Thakordas & Co. for the Plaintiff. Mr. C.J. Sawant, Senior Advocate with Mr. V.A. Sugdare for the Defendant. Mr. R.Y. Sirsikar for the BMC. ...... CORAM : DR. D.Y. CHANDRACHUD, J. March 18, 2007. P.C.: Two Motions are the subject matter of the proceedings before the Court, one which has been taken out by the Maharashtra State Road Development Corporation Ltd. (Notice of Motion 698 of 2 2008) and the second which has been taken out by the Original Plaintiff (Notice of Motion 890 of 2008). 2. The suit has been instituted before this Court on 29th November 2004 and the principal relief that is sought therein is a declaration that the Plaintiff is entitled to the allotment of all hoarding sites on the Flyover at the junction of Mahim Causeway, of an aggregate area of 208 sq.mtrs. for a period of three years and a decree of specific performance requiring the Defendant to allot the hoarding sites to the Plaintiff. Both the Notices of Motion which are now taken up before the Court are founded and argued on the basis of the provisions contained in an order dated 8th June 2007 passed by Hon'ble Mr.Justice D.K. Deshmukh, by consent of parties in Notice of Motion 3528 of 2004. Clauses 5,6, 7 and 8 of the order are relevant to the present proceedings and are as follows : “5. Along with the letter bearing No. MSRDC/02/CU/FLYM/006/6/683 dated 13.3.2006 of the Defendant, a plan has been sent by the Defendant to the Plaintiff, that plan is taken on record and marked “X”. 3 6. Within a period of four weeks from today, the Plaintiff shall approach the Corporation and other authorities for permission to display hoardings on the sites which are mentioned in the plan at “X”. Such of the sites on which the authorities may permit the plaintiff to display the hoardings on the plan at “X” shall be jointly measured by the Plaintiff and the Defendant and thereafter, on those sites the Plaintiff shall be entitled to display the hoardings in terms of the tender notice for the period permissible under the tender notice. It is clarified that the Plaintiff will be liable to pay charges for the sites on which actually he is permitted to display the hoardings as per the terms of the tender. 7. The Plaintiff shall endeavour and secure permission for display of the hoardings on the sites mentioned in the plan at “X” as expeditiously as possible in any case within a period of six months from the date on which the Plaintiff approaches the authorities. 8. In case the Plaintiff fails to secure permission of the relevant authorities for displaying hoarding on the sites shown in the plan at “X” within the aforesaid period of six months neither the Plaintiff shall be permitted to display the hoardings nor the Defendant shall dispose of the sites without seeking leave of the Court.” 3. The plan which is annexed and marked as “X” to the order of the Court, contained a description of six hoarding sites at the fly over of Mahim Causeway Junction forming, the Court has been 4 informed, an aggregate area of about 1300 sq.mtrs. Broadly, the order of the Court contemplates that (i) The Plaintiff was to approach the Municipal Corporation and other authorities for permission to display hoardings on the sites which were mentioned in the Plan; (ii) Upon the receipt of permission from the authorities, the sites were to be jointly measured; (iii) Thereafter on those sites, the Plaintiff would be entitled to display hoardings in terms of the tender notice (the common position before the Court being that the tender notice is one of 1998); (iv) The Plaintiff would be liable to pay in accordance with the terms of the tender; (v) The Plaintiff was liable to secure permission for the display of hoardings from the concerned authorities in any event within six months from the date on which the authorities were approached; (vi) In the event, the Plaintiff failed to secure the permission of the authorities within the stipulated period, the Plaintiff would not be entitled to display the hoardings. However, it is stipulated that the Defendant, MSRDC shall not dispose of the sites without the leave of the Court. Upon the order dated 8th June 2007, the Plaintiff initially applied to the Municipal Corporation on 2nd July 5 2007. Both the Learned Counsel are agreed in stating before the Court that the period of six months expired on 8th January 2008. The Municipal Corporation issued a letter thereafter, on 14th January 2008 calling upon the Plaintiff to comply with certain requisitions in order to enable the Corporation to process the matter further. 4. Learned Counsel appearing for the Plaintiff has urged that it was as a result of a default on the part of the Defendant in granting its no objection to the grant of permission by the Municipal Corporation, that the Plaintiff failed to obtain the permission within six months as stipulated in the consent order dated 8th June 2007. The contention is that it was the Defendant which by its conduct disabled the Plaintiff from obtaining permission from the Municipal Corporation and that consequently, the Plaintiff is entitled to the reliefs that are sought in the motion. 5. In Notice of Motion 698 of 2008 which has been taken out by the Defendant, the Defendant has sought the permission of the 6 Court to dispose of hoarding sites which have been marked in the plan annexed to the order dated 8th June 2007. Relief has also been sought to direct the Plaintiff to remove the structures fabricated unauthorisedly on site Nos.2, 4 and 6. In Notice of Motion 890 of 2008, the relief that has been sought by the Plaintiff is that this Court should extend the time granted in terms of the order dated 8th June 2007 for securing the permission from the Municipal Corporation for the display of hoardings; the Defendant be directed to render co- operation for obtaining permission for displaying hoardings and the Corporation be directed to expeditiously process the application of the Plaintiff. 6. Under the order passed by this Court on 8th June 2007 the Plaintiff was to approach the Municipal Corporation and other authorities for permission to display hoardings within four weeks and it was only thereafter, upon the grant of permission that there would be a joint measurement of the site. By clause 7 of the Consent Terms, the Plaintiff assumed the obligation to secure permissions for the 7 display of hoardings from the concerned authorities within a period of six months and it was stipulated that if the Plaintiff failed to do so, it would not be permitted to display the hoardings. The letter which was addressed by the Plaintiff to the Municipal Corporation on 2nd July 2007 did not contain either a plan or, for that matter, a reference to the specific site in respect of which permission was sought. The correspondence on the record would show that it was only on 11th December 2007 that a letter seems to have been addressed by the Plaintiff because in the reply dated 14th February 2008 by the Corporation, there is a reference thereto. The Corporation by its letter returned the requisition calling inter alia for photo copies of the proposed hoardings, a copy of the plan attested by the Competent Authority, a no objection certificate from the Traffic Department for illumination, the undertaking of the landlord, namely, MSRDC and the stipulation in respect of the period of contract. Prima facie, it is evident that the Plaintiff has itself to blame. The order of the Court which was passed by consent, required the Plaintiff in any event to obtain permission within the stipulated period. Though the Plaintiff 8 applied for permissions, the application was anything but complete. Upon the Competent Authority not having granted permission within the period stipulated, the consequence envisaged in the order of the Court must follow. In such an event, the MSRDC which is an authority of the State cannot be prevented from issuing a fresh tender for the allotment of the hoarding sites. It must be noted that the consequence of the consensual arrangement that was arrived at between the parties as reflected in the order dated 8th June 2007 was that the Plaintiff was entitled to allotment of hoarding sites at the tendered rate of the tender of 1998. Nearly ten years have elapsed since that tender. If the Plaintiff desired to have the benefit of the rates quoted in the tender of 1998, it was for the Plaintiff to comply strictly with the conditions imposed in the consent order that was passed by this Court. The Plaintiff having failed to do so, no relief can be granted in Notice of Motion 890 of 2008. Learned Counsel appearing for the Plaintiff submitted that the Plaintiff is willing to forgo the period of three months that has elapsed or such other period within the extension that has been prayed. For the reasons already 9 indicated, the aforesaid request which has been urged during course of the submission cannot be granted. 7. In the circumstances, Notice of Motion 890 of 2008 taken out by the Plaintiff shall stand dismissed. Notice of Motion 698 of 2008 taken out by the Defendant is made absolute in terms of prayer clauses (a) and (b). .....