1 dgm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL APPEAL APPEAL (LODG) NO.202 OF 2008 (LODG) NO.202 OF 2008 (LODG) NO.202 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.890 OF 2008 OF MOTION NO.890 OF 2008 OF MOTION NO.890 OF 2008 IN IN IN SUIT SUIT SUIT NO.3466 OF 2004 NO.3466 OF 2004 NO.3466 OF 2004 M/s.Front Display Appellant vs. 1. The Maharashtra State Road Development Corporation & anr. Respondents ALONG ALONG ALONG WITH WITH WITH APPEAL APPEAL APPEAL (LODG) NO.203 OF 2008 (LODG) NO.203 OF 2008 (LODG) NO.203 OF 2008 IN IN IN NOTICE NOTICE NOTICE OF MOTION NO.698 OF 2008 OF MOTION NO.698 OF 2008 OF MOTION NO.698 OF 2008 IN IN IN SUIT SUIT SUIT NO.3466 OF 2004 NO.3466 OF 2004 NO.3466 OF 2004 M/s.Front Display Appellant vs. 1. The Maharashtra State Road Development Corporation & anr. Respondents Mr.Pravin Samdani, Senior Counsel with Mr.Birendra Saraf i/b.M/s.Kishore Thakordas & Co. for the appellant. Mr.C.J.Sawant, Senior Counsel i/b.Mr.Vaibhav Sugdare for the respondent No.1. Mr.K.N.Gaikwad for the respondent No.2. CORAM : S.B.MHASE & R.V. MORE,JJ. DATED : 11th August, 2008 P.C. Heard the learned senior counsel for the respective parties. 2. Both these Appeals take exception to the common 2 Order dated 18.03.2007 passed by the learned Single Judge of this Court in Notice of Motion No.698/2008 and Notice of Motion No.890/2008 preferred in Suit No.3466/2004, whereby the Notice of Motion No.890/08 taken out by the Appellant-original plaintiff came to be dismissed and the Notice of Motion No.698/2008 taken out by the respondent-original defendant was made absolute in terms of prayers (a) and (b). 3. The Appellant instituted a Suit before this Court on 29.11.2004 and the principal reliefs sought therein are for a declaration that the Appellant-plaintiff is entitled to the allotment of hoarding sites on the flyover at the junction of Mahim Causeway of an aggregate area of 208 sq.mt. for the period of three years and the decree of specific performance requiring the respondent-defendant to allot the hoarding sites to the Appellant-plaintiff. Both the Notices of Motions viz. Notices of Motion Nos.698 and 890 before the learned Single Judge founded on the basis of an Order dated 8.06.2007 passed by consent of parties in Notice of Motion No.3528/2004. Under the aforesaid Consent Order dated 8.06.2007 the Appellant-plaintiff was to approach the Municipal Corporation and other Authorities for permission to display of hoardings on the sites which were mentioned in the Plan which was sent by the respondent to the plaintiff and which was marked as "X", 3 within a period of four weeks from the date of the said order and upon receipt of permission from the Authorities, the sites were to be jointly measured and thereafter on those sites, the Appellant-plaintiff was entitled to display hoardings in terms of tender notice. The Appellant was to pay for the same in accordance with the terms of tender of 1998. Under this Consent Order, the Appellant-palintiff was to secure permission for the display of hoardings from the concerned Authorities within a period of six months from the date on which the Appellant approaches the Authority and in the event the Appellant fail to secure the permission, as stated above, the Appellant would not be entitled to display the hoardings. However, it was stipulated that the Respondents shall not dispose of the sites without the leave of the Court. 4. Pursuant to the above consent order dated 8.06.2007, the Appellant initially applied to the Municipal Corporation on 2.07.2007. There is no dispute that the period of six months expired on 8.1.2008. The Municipal Corporation thereafter issued letter dated 14.01.2008 calling upon the appellant to comply with certain requisition in order to enable the Corporation to process the matter further. It is the case of the Appellant that because of non-cooperation on the part of the respondent the permission could not be obtained 4 within a stipulated period of six months. In these facts and circumstances, the Appellant-plaintiff took out Notice of Motion No.890/08 for grant of extension of time for securing permission from the Municipal Corporation in terms of order dated 8.06.2007. The respondent also took out Notice of Motion No.698/08 for liberty to dispose of the sites mentioned in the Plan at "X" mentioned in the order dated 08.06.2007 with a further direction to the Appellant to remove the unauthorised structures on the site nos.2, 4 and 6 marked in the Plan at "X". 5. Both the Notices of Motion came to be disposed of by the common order and as stated above, the Notice of Motion No.890/08 taken out by the Appellant was dismissed and the Notice of Motion No.698/08 taken out by the respondent was made absolute in terms of prayers (a) and (b). This common order is challenged by the Appellant by filing the abovesaid two separate Appeals. 6. Mr.Samdani, the learned senior counsel for the Appellant submitted that the permission in terms of order dated 8.06.2007 could not be obtained within the stipulated period of six months, because of the non-cooperative attitude of the respondent. It was also further submitted that the Appellant is willing to forego the period of three months that has elapsed or 5 such other period within the extension that has been prayed and, therefore, in the interest of justice, the extension as prayed may be granted. 7. Mr.Sawant, the learned senior counsel, per contra, supported the impugned common order and prayed for dismissal of both the aforesaid Appeals. 8. Having heard the learned senior counsel for the respective parties and having gone through the impugned common order as well as the compilation of relevant documents, we find no merit in both these appeals for the reasons stated hereafter. 9. In view of Consent Order dated 8.06.2007 the Appellant was duty bound to have applied to the Corporation within a period of four weeks from the date of the said order for permission to display hoardings on the sites which are mentioned in the Plan at "X". The Appellant was further obliged to secure the permission for display of 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 Appellant approached the concerned Authorities. The consequence of Appellant’s failure to secure permission as contemplated above was also provided in the consent order dated 8.06.2007 namely; the appellant was not to 6 be permitted to display the hoardings on the sites shown in the Plan at "X". It is not disputed that the Appellant applied within the stipulated period of four weeks i.e. on 2.07.2007, to the Municipal Corporation for permission to display the hoardings on the sites which are mentioned in the Plan at "X". However, the perusal of the letter dated 14.01.2008 written by the Corporation to the Appellant which is annexed at Exhibit "G" at page 45 of the Appeal (Lodging) No.203/2008, disclose that the Appellant’s proposal was not complete and they were directed to comply with the following documents: 1) Two photocopies of the proposed hoardings. 2) Plan copy to be attested by the Competent Authority. 3) NOC from traffic for illumination. 4) Contract period is not mentioned in the documents. 5) Undertaking is not signed by the landlord(MSRDC). 10. Thus, it is evident that the Appellant’s proposal dated 2.07.2007 did not contain either a Plan or for that matter a reference to the specific site in respect of which permission was sought. The Appellant was 7 required to obtain permission from the Corporation within the stipulated period of six months. Though the Appellant had applied for permission, the application was not complete and, therefore, the Corporation by its letter dated 14.01.2008 asked the Appellate to comply with the documents mentioned above. In our considered view, the Appellant itself is responsible for the delay. Failure to obtain the permission within the stipulated period, the consequences envisaged in the order dated 08.06.2007 must follow. We are also of the considered view that in the absence of permission to the Appellant from the Competent Authority, the respondent-MSRDC is entitled to issue fresh tenders for the allotment of the hoarding sites. 11. Be that as it may, it is important to note that in view of consent order dated 8.07.2007 the Appellant was entitled to the allotment of hoarding sites at the tender rate of 1998. Nearly 10 years have elapsed since that tender and if the Appellant desires to have benefit of the rates quoted in the tender of 1998 it was for the Appellant to comply strictly with the conditions imposed in the said consent order dated 8.06.2007. The Appellant having failed to do so, in our opinion, the extension cannot be granted even though the Appellant is willing to forego the period of three months that has elapsed from the stipulated period of six months or such 8 other period within the extension that has been prayed. The learned Single Judge has rightly dismissed the Appellant’s Notice of Motion and allowed the Respondent’s Notice of Motion. We do not find any fault or illegality in the approach adopted by the learned Single Judge. 12. Resultantly, both the Appeals are dismissed. 13. The appellants are directed to remove the steel structures which have been constructed by the appellants. If the said structures are not removed within four weeks from today, the respondents are at liberty to demolish the same. [R.V.MORE,J.] [R.V.MORE,J.] [R.V.MORE,J.] [S.B. [S.B. [S.B. MHASE, J.] MHASE, J.] MHASE, J.]