IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION ORIGINAL CIVIL JURISDICTION NOTICE NOTICE NOTICE OF MOTION NO.299 OF 2007 OF MOTION NO.299 OF 2007 OF MOTION NO.299 OF 2007 IN IN IN WRIT WRIT WRIT PETITION NO.1132 OF 2002 PETITION NO.1132 OF 2002 PETITION NO.1132 OF 2002 Dr. Anahita Pandole ..Petitioner V/s. State of Maharashtra & Ors. ..Respondents ..... Mr. I.M. Chagla, Sr.Advocate i/by Federal Rashmikant for the petitioner Mr. Milind More, AGP for Respondent No.1 Mr. K.K. Singhavi, Sr.Advocate with Ms. Shobha Ajeet Kumar for Respondent Nos.2 and 3 Mr. S.K. Chari with S.S. Chawan i/by M.V. Kini & Co. for Respondent No.5 Mr. C.S. Balsara i/by Thakkar and Bali for Respondent Nos.7 to 13. Mr. S.I. Memon for Respondent No.14. ...... CORAM CORAM CORAM : SHRI J.N.PATEL & : SHRI J.N.PATEL & : SHRI J.N.PATEL & SHRI SHRI SHRI K.K.TATED, JJ. K.K.TATED, JJ. K.K.TATED, JJ. DATE DATE DATE :28TH JANUARY, 2009 :28TH JANUARY, 2009 :28TH JANUARY, 2009 P.C.: 1. Heard learned Counsel for the parties. 2. This notice of motion is taken out by the petitioner challenging the permission granted by respondent No.5 to the respondent No.14 for putting up double decker illuminated hoarding at Towers of Silence property, Kemps Corner, Mumbai on the ground that the location at which hoardings are erected obstruct the greenary and further it is contrary to notified Heritage precinct. In so far as the present state of affairs in respect of the said hoardings are concerned, the licence granted by respondent No.7 in favour of respondent No.14 stands terminated. Aggrieved by which respondent No.14 has initiated legal proceedings in Small Causes Court and the same is subjudice. As regards the MCGM is concerned, they have cancelled the permission, as Mumbai Heritage Conservation Committee respondent No.5 has taken a decision that the hoardings at Doongerwadi, Kemps Corner is not erected as per the location approved by the MHCC at the backdrop of ’Om Chambers’ building at Kemps Corner. Therefore, it was decided to convey these findings of the Heritage Committee to Smt. Pandole. Therefore, the Heritage Committee was of the view that the hoardings have been erected in contravention of their guidelines at the level of MHCC. This matter was considered by the competent authority and the order passed by the Deputy Municipal Commissioner (Spl.) dated 25.6.2008, which was challenged by way of Appeal. The impugned order was upheld. In the operative part of the order the Municipal Commissioner observed :- "I uphold the order passed by Dy. Municipal Commissioner (Special) under No.DMC/Spl/OD/9905 dated 25.6.2008 and hence request of the appellant for restoration of permit Nos. 7661100757 and 761100758 cannot be considered in toto. Instead, the request for one hoarding of size 20’ x 20’ in place of existing two hoardings each of size 60’ x 20’ in one upon one position can be considered on its merits as per the Revised New Policy Guidelines 2008 subject to following :- (a) A fresh NOC from the owner of the premises i.e. Parsi Panchayat is produced. (b) A fresh NOC from the Chairman, Mumbai Heritage Conservation Committee is produced." 3. The learned Senior Advocate appearing for the petitioner has taken out this notice of motion that in view of this development, this Court should allow the notice of motion by making it absolute in terms of prayer clause (c). Mr. Chagla, Sr. Advocate has submitted that this is a fit case for invoking the principles of restitution and they will have to be invoked and the perpetrator of wrong should be made to pay and therefore, this Court may direct respondent Nos.2 and 3 i.e. Officials of MCGM and respondent Nos.7 and 14 to take necessary steps in that regard to restore the file at the costs of the Respondent No.14. 4. The learned Counsel appearing for respondent No.14 submits that the respondent No.14 is agitating the issue before the Small Causes Court so far as the revocation of licence by respondent No.7 is concerned and that the order passed by the Municipal Commissioner does not in any manner direct the authorities to remove the structure. On the other hand, it clearly observes that according to the revised new policy guidelines 2008, request for one hoarding of size 20’x20’ in place of existing two hoardings each of size 60’x20’ in one upon one position can be considered on its merits subject to fresh NOC from the owners of the premises i.e. Parsi Panchayat and the Chairman, Mumbai Heritage Conservation Committee is produced and, therefore, such relief cannot be granted as sought out the petitioner in public interest litigation. 5. Mr. Singhavi, Sr. Advocate appearing for respondent Nos.2 and 3 states that respondent Nos.2 and 3 are not under any statutory obligation to remove any structure particularly as the same is in private property owned by respondent No.7 which has granted licence to the respondent No.14 to erect the objectionable hoardings and Municipal Corporation has no objection if respondent No.7 takes proper steps to remove the structure in question. 6. In view of the fact that now the dispute raised between respondent No.7 and 14 relating to exploiting the site for commercial purpose by erecting hoardings, is pending before Small Causes Court and will be subject to the order of the Municipal Commissioner. Further in view of the fact that respondent No. 7 has determined the licence, it is open for respondent No.7 to take steps to enforce its rights for removing structure and, therefore, none of the reliefs sought for in the notice of motion can be granted by this Court except for observing that respondent No.14 shall not erect any hoardings on the site without seeking proper permission from MCGM as well as the owner of the property and Mumbai Heritage Conservation Committee. 7. In so far as dispute pending between the parties i.e. respondent Nos. 7 and 14 in the Small Causes Court is concerned, the Small Causes Court would decide the matter in accordance with law without being influenced by the observations made by this Court while disposing of this notice of motion in respect of the parties who are litigating before the Small Causes Court, Mumbai. 8. Notice of motion stands disposed of accordingly with no order as to costs. (J.N. (J.N. (J.N. Patel, J.) Patel, J.) Patel, J.) (K.K. (K.K. (K.K. Tated, J.) Tated, J.) Tated, J.)