1 ao.360.02.doc ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION APPEAL FROM ORDER NO. 360 OF 2002 In & Out Advertising Pvt. Ltd. ... Appellants Versus Maharashtra Housing & Area Development Authority and others. ... Respondents -------- Mr. Navin Parekh i/b Ms. Hetal Patel for the Appellants. Mrs. K.K.Soraan for the BMC. Mr. Amar Rana for Respondent No.3. -------- CORAM : A.S.OKA, J. DATE ON WHICH SUBMISSIONS ARE HEARD : 3 rd May, 2011. DATE ON WHICH JUDGMENT IS PRONOUNCED : 6 th June, 2011. JUDGMENT : 1 The challenge in this appeal from order preferred by the original plaintiffs is to the order dated 11 th February, 2002 passed by 2 ao.360.02.doc the trial Court. 2 According to the case of the Appellants, they negotiated with the Respondent No.3 – society for putting up hoarding structures to display advertisements in the compound where the building of Respondent No.3 – Society is situated. On 1 st March, 2001, there was an agreement executed by and between the Appellants and the Respondent No.3. Under the said agreement, the Appellants were permitted to erect structures after obtaining requisite permissions. The Appellants agreed to pay to the Respondent No.3 – society a sum of Rs.10,000/- per month by way of consideration. The period of agreement was initially of ten years with an option to the Appellants to extend the same for a further period of five years. 3 Accordingly, the Appellants made an application to the Respondent No.2 for grant of permission for putting up two hoarding 3 ao.360.02.doc structures for putting up hoardings. Accordingly, the Respondent No.2 issued no objection certificate to the Appellants for putting up the hoardings. When the aforesaid agreement was executed, the Respondent No.3 was not registered and the said society was registered on 27 th April, 2001. The Respondent No.1 (Maharashtra Housing & Area Development Authority) also granted permission to put up two hoarding structures on its property wherein the building of the Respondent No.3 is situated. The permission was granted in the name of the third Respondent society. On 20 th June, 2001, the work of construction of hoarding structures started. The fourth Respondent society which is having a building in the vicinity complained to the first Respondent. On the basis of the complaint, on 30 th June, 2001, stop work notice was issued by the Respondent No.1. Therefore, the Appellants filed a suit in the City Civil Court praying for a declaration that the notice dated 30 th June, 2001 issued by the Respondent No.1 was illegal. In the said suit, a notice of motion was taken out by the Appellants. On 10 th July, 2001, an 4 ao.360.02.doc order was passed directing the Chief Officer of the Respondent No.1 to submit a report. Accordingly, on 17 th August, 2001, the Chief Officer submitted a report with a plan and photographs annexed thereto. In the report, it was observed that distance between the windows of Building No.3 and the hoarding site was roughly to 200 feet to 250 feet and there was no obstruction to light and ventilation by the construction of the hoarding structures. It was observed that the distance between the hoarding structures and various windows of Building No.2 was in between 130 feet to 275 feet and there was no obstruction to light and ventilation. The said Building No.3 and Building No.2 are of the Respondent No.4 – society. As far as Building No.9 is concerned, the Chief Officer of the Respondent No. 1 recorded that there was no obstruction to the light, ventilation or view from the said building due to the hoarding structures. By the impugned order, notice of motion taken out by the Appellants was dismissed. The prayers in the notice of motion read thus: 5 ao.360.02.doc “a) that pending the hearing and final disposal of the suit, the Defendant No.1 their officers, agents and representatives be restrained by an order and injunction of this Hon’ble Court restraining them from taking any action pursuant to the said notice CO/MB/3270 dated 30 th June, 2001; b) that pending the hearing and final disposal of the suit, Defendant No.2 their officers, agents and representatives be restrained by an order and injunction restraining the from coming upon the site at Cosmopolitan CHS Ltd., Rambaug, Opp. Powai Lane, A.S. Marg, Mumbai 400 076; and obstructing and/or interfering with the plaintiffs’ and/or their workers carrying on their work as permission granted and prevent the plaintiffs from displaying and advertising from the said hoardings; “ 4 It must be stated here that the notice of motion was opposed by the Secretary of the Respondent No.3 – society by filing a reply. While passing the impugned order, the learned trial Judge has observed that when the agreement dated 1 st March, 2001 was executed, the Respondent No.3 – society was not registered. The learned trial Judge observed that Chief Promoter of Respondent No. 3 – society could not have executed the agreement in favour of the Appellants. Even the Respondent No.4 opposed the Notice of 6 ao.360.02.doc Motion by filing a reply. 5 The learned counsel appearing for the Appellants invited attention of the Court to the Affidavit dated 31 st October, 2007 filed by the Honorary Secretary of the Respondent No.3 – society. He pointed out that in the said affidavit, it is stated that the Respondent No.3 – society has no objection for allowing the appeal as the Appellants have agreed to pay compensation at the uniform rate of Rs.20,000/- per site/display. He pointed out that the Respondent No.4 is not contesting the appeal as no one is representing the said respondent. He pointed out that the Respondent Nos.1 and 2 have already granted all the permissions and in view of the no objection by the Respondent No.3 and non-contest by the Respondent No.4, the notice of motion deserves to be allowed by setting aside the impugned order. There is an affidavit filed by Mr.S.G.Mahadevan, the Chairman of the Respondent No.3 – society, which is affirmed on 3 rd May, 2011. The Respondent No.3 has placed on record a 7 ao.360.02.doc letter of authority dated 2 nd May, 2011 singed by the said Mr.S.G.Mahadevan, which authorizes Mr.Amar Ranu, who is the founding Chief Promoter of Respondent No.3 – society to appear in the Court for contesting the appeal. In the aforesaid affidavit, reliance is placed on compromise dated 6 th September, 2007 between the Appellants and the Respondent No.3. It is contended that in view of the said compromise, total compensation will be Rs. 1,00,000/- per month in addition to escalation of 10% per annum to cover the inflationary costs. Further it was contended that in the year 2011, in view of large developmental activities in the area, a sum of Rs.1,00,000/- per month needs to be raised to Rs.2,00,000/- per month. The said representative of the Respondent No.3 – society, however, stated before this Court on 3 rd May, 2011 that the Respondent No.3 is agreeable to abide by settlement arrived at on 6 th September, 2007. 6 I have given careful consideration to the submissions. 8 ao.360.02.doc The Appellants are relying upon the agreement dated 1 st March, 2001 executed by the Chief Promoter of the Respondent No.3 – society. The Appellants are relying upon no objection granted by the Respondent No.2 on 29 th March, 2001. The Appellants are also relying upon the permission granted in favour of the Respondent No.3 – society by the Respondent No.1 on 18 th June, 2001 to erect and display advertisement hoarding structures (two) for a period of five years subject to various terms and conditions incorporated therein. 7 In the plaint, it is asserted that the hoarding structures are to be erected in the property of the Respondent No.1 on which building of Respondent No.3-society is constructed. It is stated that the Respondent No.4 – society is having a building in the vicinity of the building of the Respondent No.3 – society. The cause of action for filing the suit is the notice dated 30 th June, 2001 sent by the Chief Officer of the Respondent No.1 calling upon the Appellants and the 9 ao.360.02.doc Respondent No.3 to stop the work of erection of hoarding. To the notice of motion for interim relief, first reply was filed by Mr.Amar Ranu, the then Chief Promoter of Respondent No.3, who has signed the agreement. Subsequent reply is filed by the Honorary Secretary of the Respondent No.3, who opposed in the prayer in the notice of motion. The Respondent No.4 also filed a reply to the notice of motion through its secretary. The Respondent No.4 opposed the notice of motion on the ground that the Appellants have not complied with the conditions imposed. It was contended that the hoarding, if erected, will completely obstruct the light, air, ventilation and the view of the residents of the Respondent No.4 – society. 8 The first ground held by the learned trial Judge against the Appellants is that the agreement executed by the chief promoter will not bind the Respondent No.3 – society after its registration. The trial Court noted the contention of the Respondent No.4 that its 10 ao.360.02.doc members will suffer hardship. It will be necessary to make a reference to the various conditions imposed by the Respondent Nos. 1 and 2. As far as Respondent No.2 is concerned, a condition was imposed that there should not be any complaint from the residents in the locality. The Respondent No.1 is the owner of the land. On 18 th June, 2001, the Respondent No.1 granted permission to the Appellants to erect and display advertisement hoarding structures for a period of five years. The said permission was granted in the name of the Respondent No.3 to enable the Appellants to display the hoardings. One of the conditions imposed by the Respondent No.1 is that a permission will have to be obtained for erection of hoarding structures from Respondent No.2–Corporation. Permission was specifically granted for a period of five years. In the notice dated 30 th June, 2001, the Chief Officer of the Respondent No.1 stated that the view from Building No.2 is likely to be obstructed by the hoardings. 11 ao.360.02.doc 9 As far as the Respondent No.3 is concerned, in the affidavit dated 31 st October, 2007, its Honorary Secretary has stated thus: “The respondent No.3 society has no objection of any nature whatsoever to the aforesaid appeal being allowed by this Hon’ble Court to complete the balance work of erection of two hoardings with five display/sites in the premises of the aforesaid society since the abovesaid Petitioners have already agreed to the revised rate of cumulative compensation at the uniform rate of Rs. 20,000/- (rupees twenty thousand) per site/display of the said two hoardings, which have been sanctioned and duly approved as per two agreements involving rent as well as maintenance dated 15.03.2001 executed with the aforesaid society. According to the aforesaid executed agreements of the abovesaid Petitioners with the aforesaid society, the said two hoardings have five display/sites and consequently, the cumulative compensation would amount to rupees one lakh per month and the same is payable monthly with an additional escalation of ten percent per annum to cover inflationary costs of the economy.” 10 In the subsequent affidavit dated 3 rd May, 2011 of Mr.S.G.Mahadevan, Chairman of the Respondent No.3 – society, in paragraph No.3 and 4 it is stated thus: 12 ao.360.02.doc “3. The respondent No.3 society has no objection of any nature whatsoever to the aforesaid appeal being allowed by this Hon’ble Court to complete the balance work of erection of two hoardings with five display/sites in the premises of the aforesaid society since the abovesaid Petitioners have already agreed to the revised rate of additional cumulative compensation at the uniform rate of Rs.20,000/-(rupees twenty thousand) per site/display of the said two hoardings, which have been sanctioned and duly approved by statutory authorities as per two agreements involving rent as well as maintenance dated 15.03.2001 executed with the aforesaid Petitioner with the aforesaid society. 4. According to the aforesaid executed agreements of the abovesaid Petitioner with the aforesaid society, the said two hoardings have five display/sites and consequently, the cumulative compensation would amount to rupees one lakh per month and the same is payable monthly with an additional escalation of ten percent per annum to cover inflationary costs of the economy.” 11 The representative of the Respondent No.3 – society stated before this Court that the Respondent No.3 – society is not pressing at present the demand for further escalation which is set out in paragraph No.6. It is thus obvious that the Respondent No.3 has no objection for erection of the hoarding structures and for display of the advertisements by the Appellants subject to 13 ao.360.02.doc Appellants complying with the agreed terms and conditions as regards the payment. The agreement executed by the erstwhile chief promoter of the Respondent No.3 – society on 1 st March, 2001, appears to have been ratified by the Respondent No.3 – society as is clear from the affidavits subject to what is stated therein. The said agreement is in force for a period of fifteen years from 1 st March, 2001. 12 As far as the Respondent No.4 is concerned, the main objection was that the view from Building No.2 will be obstructed. The Respondent No.4 had not appeared to substantiate the said contention. From the sketch placed on record on page No.119 and the report of the Chief Officer of the Respondent No.1 submitted in Appeal, the said contention appears to be without any basis. 13 However, as of today, the permission granted by the Respondent No.1 on 18 th June, 2001 has expired and therefore, the 14 ao.360.02.doc Appellants will have to obtain permission of the Respondent No.1 afresh. While granting permission, the Respondent No.1 is free to consider the objections raised by the Respondent No.4. 14 In view of the above discussion, the impugned order will have to be set aside. As noted earlier, the challenge is to the stop work notice issued by the Respondent No.1 on 30 th June, 2001. In the notice of motion, injunction is prayed for against the Respondent No.1 from taking any action on the basis of notice dated 30 th June, 2001. Injunction is also prayed for against the Respondent No.2 – Corporation restraining the Corporation from preventing the Appellants from carrying on work of erection of hoarding structures. As the permission granted by the Respondent No.1 has come to an end, the Appellants cannot proceed with the further work of erection of hoarding structures unless requisite permissions are obtained. Therefore, as of today, there is no occasion to grant injunction as prayed in the notice of motion. However, to enable the Appellants to 15 ao.360.02.doc apply for requisite permissions, status-quo as of today, in respect of the hoarding structures will have to be maintained by the parties for a period of three months. 15 Hence, I pass the following order: i. The impugned order dated 11 th February, 2002 is quashed and set aside and the Notice of Motion No.2795 of 2001 is disposed of with liberty to the Appellants to apply afresh to the Respondent No.1 and/or the Respondent No.2 for grant of necessary permission ; ii. The statements made by the Respondent No.3 in affidavit dated 31 st October, 2007 as well as the statements made in paragraph Nos.3 and 4 of the affidavit dated 3 rd May, 2011 filed by the Respondent No.3 in this Court are accepted ; iii. To enable the Appellants to obtain appropriate permissions, the parties are directed to maintain status-quo as of today, in respect of the disputed hoarding structures for a period of three months from today. 16 ao.360.02.doc iv. It will be open for the Appellants to take out a fresh Notice of Motion for interim relief ; v. Appeal from order is partly allowed on above terms with no order as to costs ; vi. All contentions of the parties on merits of the suit are kept open. [ A.S.OKA, J ]