1 wp1940-11.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1940 OF 2011 M/s.Vistas Network Marketing Pvt.Ltd. And Anr. .. Petitioners Versus The Municipal Corporation of Greater Mumbai & Ors. .. Respondents Mr.D.D.Madon, Senior Advocate with Mr.Vinay Dave, Ayaz Bilawala, Mr.L.V.Booman i/b. Bilawala & Co. for petitioners Mr.S.S.Pakale with Ms.T.Puranik for Corporation – respondent Nos. 1 to 4 Mr.M.S.Topkar for respondent Nos. 6 and 7 Mr.R.J.Mane for respondent No.5 CORAM : S.C.DHARMADHIKARI, J. 13th October 2011. P.C.: 1] By this petition under Article 226 of the Constitution of India, the petitioners are challenging a notice dated 27th July 2011 informing the petitioners that the licence bearing No. 761218231 will expire on 30th September 2011 and if any renewal is to be effected that will be only after the petitioner obtains an NOC from the Chief Executive Officer of Shri Siddhivinayak Ganapati Temple Trust. 2 wp1940-11.doc 2] The petitioners have stated that after receipt of this communication, they had pointed out that the Trust has assigned the permission in favour of one Rajiv Singhvi, Director of M/s.Vistas Network to continue to caretaking and putting small advertisement on the said sheds for the period of seven years and considering these facts the permission was granted for seven years. The entire shed as per the directions of the Trust is constructed by M/s.Vistas Network Marketing Pvt.Ltd., and considering these facts, the permission was granted for seven years. In these circumstances, by referring to the requirement to obtain a NOC from the Trust, it was prayed that the licence be renewed for a further period of four years without insisting on an NOC of the Trust as stated in the request letter. There is another communication followed by this one dated 24th August 2011 and, thereafter, the Advocate's notice dated 19th September 2011. However, there is no response thereto and the Corporation now contending that there is no licence to display the advertisements or glow signs, coercive measures may be taken to remove the same. 3 wp1940-11.doc 3] Apprehending that not only the advertisements which are displayed on the poles and angles would be removed but even the poles and angles will be removed, that this petition is filed. 4] It was listed before this Court on 3rd October 2011 on which date, time was given at the request of the Corporation till 10th October 2011. When this petition appeared on board on 11th October 2011, Mr.Pakale, learned Counsel appearing for Corporation, on instructions handed over a letter dated 10th October 2011, which was taken on record and marked “X” for identification, under which it was stated that the impugned communication dated 27th July 2011 stands withdrawn and further decision on the application for renewal will be taken in accordance with the policy and guidelines framed for display of advertisements, glow sign boxes under section 328 and 328A of the MMC Act, 1888. This decision is taken as the road and foot path vests with the Corporation. 5] Thereafter, at the request of the petitioner's Advocate, the matter was allowed to be mentioned on 13th October 2011 as the 4 wp1940-11.doc petitioner apprehended that contrary to the request that has been made for renewal and since the earlier licence has come to an end by efflux of time, the advertisements have been removed and they apprehend that even the poles and angles on which the advertisements were displayed would be forcibly removed. Therefore, at the request of parties the date was pre-poned and the matter has been taken up for admission today. 6] Mr.Madon, learned Senior Counsel appearing for the petitioners submits that there are two licences which have been issued in favour of the petitioners by the Corporation. One licence is already referred to above but the other licence bearing No.761230664 has been issued by the Corporation (G-South Ward). Thus, it is his submission that there are two licences which have been issued in favour of the petitioners as the area falls under the jurisdiction of two wards. Therefore, the licensing department under the control of the two wards have issued distinct licences and one has expired by efflux of time whereas the other which was issued by G-South ward is in force and it is valid up to 30th June 2012. Therefore, the advertisements which 5 wp1940-11.doc were displayed on the basis of these licences and within the area of operation of G-South ward could not have been removed. It is his submission that the Corporation has high handedly and at the instance of the Trust, removed all advertisements, although, it was aware that there are two valid licences, one may have expired but an application for renewal of the same is pending; whereas, the other is valid as stated above. In such circumstances, the Corporation's high handed acts should be strongly deprecated and the Corporation be directed to act in accordance with law, without being influenced by any communication from the Trust and, therefore, this is a fit case where the relief as claimed and prayed for be granted. 7] Mr.Pakale, learned Counsel appearing for Corporation while not disputing that the Corporation has withdrawn the impugned communication dated 27th July 2011, however, submitted that it is clarified that in terms of the statutory provisions, the road and the street so also foot paths vest with the Corporation. When they so vest, it is for the Corporation to decide whether to renew the licence or not. Further, the 6 wp1940-11.doc Corporation has not been influenced by the decision taken by the Trust or its stand reflected in the affidavit filed in reply, but, once the impugned communication is withdrawn and the Corporation has to act in terms of sections 328 and 328A of the MMC Act, then, the petitioner's apprehension that the Corporation will continue to act high handedly is not well founded. Mr.Pakale clarifies that all that has been done is to remove the advertisements which have been displayed and not the poles and angles. There is no intention to touch them nor will they be removed from the site. The Corporation should be permitted to act in accordance with law and there is no warrant for interference in writ jurisdiction. As far as the submission of Mr.Madon that there were two distinct licences issued by two distinct ward offices/licence departments is concerned, Mr.Pakale states that the Corporation is taken by surprise inasmuch as there is no pleading in the petition to this effect nor is their any attempt made to amend the petition and introduce the documents and still the senior counsel makes submissions based on the contents of the same. In these circumstances, he is handicapped and he would not be in a position to make any 7 wp1940-11.doc submission with regard to two distinct licences having been issued. 8] Even the Trust has filed an affidavit and Mr.Topkar submits that as far as the trust is concerned, the shed that has been put up at site belongs to the Trust and the petitioners cannot claim any right on the basis that it has put up and erected any shed and are displaying advertisements and putting up hoardings on the iron poles and angles. For all these reasons, he submits that the petition is not bonafide and must be dismissed. 9] In the light of the rival contentions all that remains for consideration is whether the Corporation's act can be termed as high handed, arbitrary and violative of the mandate of Rule of Law flowing from Article 14 of the Constitution. Now that the communication dated 27th July 2011 stands withdrawn, it is clear that the Corporation will take its own decision on merits and in accordance with law, strictly, on the basis that the street and the foot paths vest in the Corporation for public use and as a public property. The apprehension that the petitioners have that the 8 wp1940-11.doc Corporation would be influenced by the communications and objections from the Trust and its office bearers and, therefore, may not, act in accordance with law, is now taken care of. Once it is clarified that the said communication stands withdrawn and the Corporation can take independent decision in accordance with law on the petitioners' request for renewal/ permission with regard to one of the licences, I have no doubt in my mind that the Licensing Authority of G-North ward will act in accordance with law and as expeditiously as possible. 10] From a perusal of the copies of the receipts, it is also clear that licence No.761230664 has been issued by G-South ward and that is valid from 23rd June 2011 to 30th June 2012. The fee/payment in relation to this licence has been collected which is evident from the receipt produced for my perusal. If some of the hoardings or advertisements fall within area of operation or the jurisdiction of G-North ward, then, needless to state that the Corporation will permit the petitioner to display advertisements/ hoardings within the area falling under the G-South ward till such time as the licence No.761230664 is valid and viz., till 30th June 9 wp1940-11.doc 2012. 11] Mr.Madon submits that there is another licence bearing No. 761230291 which is issued by the same G-North ward and that is to display commercial non temporary illuminated advertisement, computer colour moving electronic display other than business premises which is valid from 26th March 2011 to 31st March 2012. The apprehension is that even the material that is allowed to be displayed under this licence will be removed from the site. 12] In a decision reported in AIR 2002 SC 1638 in the case of Municipal Corporation of Greater Bombay Vs. Bharat Petroleum Corporation Ltd, the Hon’ble Supreme Court held thus: “... The main and salutary purpose of Ss.328/328-A is to regulate the installation/construction of signboards of the nature defined and envisaged therein to keep road margins and space above such margins not indiscriminately meddled with so as to affect the free movement and free flow of traffic, preserve the ecology and environment by averting and regulation to the extent required, ensuring, in public interest, adverse physiological and psychological impacts 10 wp1940-11.doc either directly or indirectly due to the use of neon lights/illuminations used for the installations. The provision for licensing is incidental and necessarily required to properly and effectively enforce the regulations and the levy and collection of fee also ultimately seem to achieve the same purpose. The statutory provisions seem to have been thus enacted with a laudable public purpose and the definition is also not only inclusive in nature but the enumeration of the various nature of fixtures, the manner and methods adopted therefor, as also the obvious and ostensible object of such fixtures/installations found specified therein, under the scheme of things, are found to be with the intention of making the provision an all inclusive one to cover or rope in all possible things and not to operate in a manner to bring about any limitation on their scope, and that too to render the very provision otiose, redundant and meaningless.” 13] In a more recent decision reported in AIR 2008 SC 2941 (M/s.Nova Ads Vs. Secretary, Department of Municipal Administration and Water Supply), the Hon’ble Supreme Court reiterated the principle and earlier view that hoardings on private property can also be regulated and controlled. The rules do not regulate advertisement but putting up of objectionable, destructive or obstructive hoardings. 14] After hearing learned Counsel for parties, to my mind, it 11 wp1940-11.doc needs to be emphasised that even a public body has to abide by the Rule of law. Although the Hon’ble Supreme Court has clarified in terms of the very statutory provisions that nobody can claim a vested right in displaying advertisement and hoardings on foot paths and roads, yet, when the Corporation itself permits parties to put up such hoardings and advertisements, then, the least that is expected from it is that it will abide by the applicable policies, rules and regulations framed by it. If there are licences which are valid, then, during their subsistence, unless the Corporation is satisfied that the advertisement and hoardings are causing nuisance or annoyance to public or affect smooth flow of traffic or obstruct it in any way, it should not ordinarily take an action of physically removing them from site. All material in relation to such advertisement and hoardings can be removed, if it is found that the parties in whose favour licence has been issued are in breach and violation of the terms and conditions of the licence or has not abided by the rules and regulations applicable in relation thereto. A minimal requirement of acting fairly is inbuilt and inherent, even in such matters and actions which are taken to meet a emergent situation. The Corporation 12 wp1940-11.doc ought not to take law in its hands and the apprehensions of the petitioners, therefore, that advertisements would be removed without adherence to the communications and permissions issued by the Corporation itself cannot be termed as not well founded. There is material in the form of photographs which have been shown to me yesterday and even today, which indicate that the advertisements that were displayed and the glow signs which were being put up have been removed. It appears that the Trust and the petitioners may have some issues and disputes but once the Corporation states that it is a public property and vests in the Corporation for public good, then, any communication or action initiated by the Trust ought not to influence the Corporation’s decisions. Ultimately, the Corporation has to act independently and impartially as a statutory authority. The disputes between entities and persons who are given permissions and licenses either inter se or with third parties ought not weigh with the Corporation and it cannot take an action contrary to law and its rules and regulations. In these circumstances, this petition is disposed of with a direction to the Corporation that as far as licence issued by G-North ward 13 wp1940-11.doc and a copy of which has been annexed to the petition and which is also referred to in the communication of the Corporation and the petitioners, viz., bearing No.761218231 is concerned, the petitioners' request for renewal or permission to put up advertisement and glow signs should be considered as expeditiously as possible and the Corporation shall communicate the decision to the petitioner on the said application within two weeks from today. Needless to state that once the communication dated 27th July 2011 stands withdrawn, the Corporation shall not insist on petitioners producing any NOC from the Trust. The Trust can take such action as is permissible in accordance with law, if it is in any way aggrieved by any of the acts of the petitioner. However, as far as the Corporation is concerned, it must decide the issue uninfluenced by any objections or complaints from the Trust nor shall it deny permission to the petitioners only because the petitioners wish to display any advertisement or hoardings on the poles and the display materials within the area of operation or under the shed put up by the Trust. The Corporation must act on the statements that have been recorded by this Court that the property is a road 14 wp1940-11.doc and foot path which vests with the Corporation under the MMC Act and the Corporation alone has necessary powers to decide whether any advertisement or hoardings shall be displayed thereon. 15] As far as other two licenses are concerned viz., 761230664 issued by the G-South ward and 761230291 which is issued by G-North ward and which are both in force and valid till 30th June 2012 and 31st March 2012 are concerned, any advertisements or hoardings displayed on that basis and within the area of operation of the said wards, shall not be in any manner removed or display of the advertisement on the angles or poles erected be prohibited. The Corporation if satisfied that the petitioners have violated the terms and conditions of the licence or that the rules and regulations or that the advertisements and/or hoardings are causing nuisance and annoyance to the vehicular traffic or general public, then, it should not permit any such display and take such a decision as is permissible in law after giving an opportunity to the petitioner to show cause. Needless, therefore, to add that this order shall 15 wp1940-11.doc not prevent the Corporation to take the above action even if the licence is in operation. Further, needless to state that if the petitioners desire to apply for any permission/ renewal such application will also be considered uninfluenced by any objections from the Trust and strictly in accordance with law and on its own merits. Petition disposed of accordingly. No costs. (S.C.DHARMADHIKARI, J)