AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.1129 OF 2010 M/s. D.S. Mittle & Co., a Registered Partnership firm, having its office at 15-A, Everest Building, 156, Tardeo Road, Mumbai – 400 034. ) ) ) ) ) ... Petitioners Versus The Municipal Corporation of Greater Mumbai, having office at Mahanagar Palika Marg, Mumbai. ) ) ) ... Respondents Mr. C.R. Naidu for the petitioners. Mr. Shobha Ajithkumar for the respondents. CORAM: MRS. RANJANA DESAI & R.V. MORE, JJ. DATE ON WHICH THE ORDER IS RESERVED : 20TH SEPTEMBER, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 29TH SEPTEMBER, 2010. P.C. :- 1. The petitioners claim to be a registered partnership AJN 2 firm carrying out business activity of outdoor advertising. The case of the petitioners needs to be shortly stated: a) In or around May, 1975-76, the respondents viz. the Municipal Corporation of Greater Mumbai (for short, “the Corporation”) permitted the petitioners to renovate Sane Guruji Udyan (for short, “the said Udyan”) situated at Prabhadevi. The petitioners were also permitted to erect a hoarding at the said Udyan. The petitioners maintained the said Udyan for a long time. b) In or around 1980, Agreement dated 19/8/1980 was executed between the petitioners and the Corporation and the licence was renewed. The said arrangement continued from time to time by the parties. The petitioners were informed that the Corporation desires to keep the said Udyan free of any hoardings and that the existing hoarding must be relocated. The Corporation had also indicated AJN 3 that an alternative hoarding would be provided to the petitioners. After due deliberations, the petitioners were awarded a site at Keshavrao Khadye Marg at Hajiali. Order dated 16/5/1998 was passed to that effect. The petitioners, however, continued to maintain the said Udyan. c) By letter dated 30/4/2004, the Corporation extended the licence of the petitioners from 1/8/2003 to 31/7/2005 in respect of the said hoarding. The petitioners were required to continue to maintain the said Udyan. The petitioners were also directed to maintain the Sion subway. The petitioners continue to maintain the said Udyan and Sion subway. As regards the hoarding at Hajiali, the petitioners were directed to rectify some irregularities, which direction was complied with by the petitioners. The said rectification/modification was carried out pursuant to the order dated 5/12/2005 passed by the Corporation. The petitioners continued to maintain AJN 4 the said Udyan and Sion subway. By letter dated 9/5/2007, the Corporation extended the petitioners' licence in respect of the hoarding at Hajiali from 1/8/2005 subject to payment of advertisement fee and ground rent as per the First Finders Scheme, on proportionate monthly basis. d) The petitioners received a notice dated 30/4/2008 from the Deputy Municipal Commissioner (Special). By the said notice, the petitioners were directed to vacate and remove the hoarding. e) The petitioners filed a suit in the Bombay City Civil Court being Suit No.1027 of 2008. In that suit, the petitioners took out notice of motion, inter alia, for restraining the Corporation from removing the suit hoarding. The petitioners were not successful in getting any interim order, and therefore, being aggrieved by the City Civil Court's order, they filed Appeal from Order No.506 of 2008 in this court. AJN 5 Learned Single Judge of this court by his order dated 4/6/2008 dismissed the said appeal from order. Learned Single Judge observed that the policy under which the extension was granted to the petitioners by letter dated 9/5/2007 has now given way to a fresh policy and the fresh policy is referred to in the impugned Letter of Termination dated 30/4/2008 issued by the Corporation. Learned Single Judge observed that the new policy for displaying the hoardings contemplates inter-alia invitation of tenders. Learned Single Judge observed that there is nothing to suggest that the Corporation is not entitled to formulate such a policy and, in any event, the policy was not challenged. It was observed by learned Single Judge that the counsel for the petitioners submitted that in any event, the petitioners may be allowed to continue the hoarding till the new hoarding is permitted pursuant to the new policy. Learned Single Judge further observed that that is a matter for the Corporation to decide. AJN 6 On a request made by the petitioners' counsel, learned Single Judge stayed his order till 31/7/2008. He, however, clarified that the process of inviting the tenders and even granting them shall not be stalled by virtue of the said stay order. f) The petitioners carried the said order to the Supreme Court. The Supreme Court dismissed the special leave petition on 4/8/2008 by observing that it is not inclined to interfere in the matter. A statement was made by learned counsel for the petitioners that the Corporation shall be moved for permitting the petitioners to continue till finalization of the tender to be issued. In view of this statement, the Supreme Court while dismissing the special leave petition, observed that if the petitioners make an application in that regard before the Corporation, needless to say that the same should be considered in the proper perspective. The Supreme Court clarified that it had not expressed any opinion in this regard. AJN 7 2. From the above chain of events, it is clear that the petitioners' grievance as regards termination of his agreement has been considered upto the Supreme Court. The Supreme Court has refused to interfere with the termination. Learned Single Judge of this court rightly did not interfere with the policy of the Corporation of inviting tenders. The Supreme Court upheld that order. Thus, the Supreme Court also accepted the Corporation's right to float tender. In fact, the only submission made before the Supreme Court was that the petitioners be permitted to display the hoarding till finalization of the tender. It appears that after the Supreme Court's order, the petitioners submitted a representation dated 4/8/2008 to the Corporation praying that the petitioners may be allowed to continue to display the hoarding till finalization of the tender and allotment of the same to the highest bidder. Mr. Balkrishna Mittle, the Proprietor of the petitioners was heard by the Corporation. By order dated 21/1/2010 which is impugned in this petition, the AJN 8 petitioners' representation was rejected. The petitioners are aggrieved by the said order. 3. We have heard, at some length, Mr. Naidu, learned counsel appearing for the petitioners, who has reiterated the contentions raised in the petition. From the order of the Supreme Court dated 4/8/2008 passed on the special leave petition filed by the petitioners, it is evident that the Corporation was only required to consider the petitioners' prayer that they may be permitted to continue to display the hoarding till finalization of the tender. The petitioners' case on merits was rejected by the City Civil Court. That order was confirmed by this court because the Supreme Court refused to interfere with the order of this court. It is not open for the petitioners, therefore, to make any other submission except to renew their prayer that they may be permitted to continue to display the hoarding till finalization of the tender. It is, therefore, not possible for us to consider any submissions made by learned counsel for the petitioners on any other aspects except permission AJN 9 to continue to display the hoardings till the finalization of the tender. So far as that issue is concerned, an affidavit has been filed by Sudarshan Awhad, the Deputy Superintendent of Licence in the employment of the Corporation. In this affidavit, it is stated that the Corporation is bound to take action as per the new policy guidelines on grant of permission for display of sky signs and advertisement under Sections 328 and 328A of the Mumbai Municipal Corporation Act, 1888 and the present site of the hoarding under reference is not in consonance with the new policy guidelines and, therefore, the question of inviting tenders for that particular site under reference does not arise. Thus, it appears that the site where the present hoarding is displayed itself is stated to be a site where no hoarding can be displayed as it is not in conformity with the new guidelines. If that is so, no tender can be invited in connection with the said site. If no tender can be invited, then the question of allowing the petitioners to display their hoarding at the said site till the tender process is finalized does not arise. It is not AJN 10 possible for this court to force the Corporation to invite tender for a site which is not in consonance with the new guidelines and where no hoarding can be displayed. If the Corporation realizes that the tender cannot be invited for a particular site because the site itself cannot be chosen for display of hoarding, obviously the Corporation will not invite tender for it. In our opinion, therefore, the impugned order cannot be interfered with. The petition is dismissed. [MRS. RANJANA DESAI, J.] [R.V. MORE, J.]