1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION rpa WRIT PETITION NO. 335 OF 2010 Intercon Real Estate Developers Pvt. Ltd. & Anr. .. Petitioners. v/s. The Municipal Corporation of Greater Mumbai & Ors. .. Respondents. .... Mr. Janak Dwarkadas, Senior Advocate i/b. M/s. Nankani Associates for the Petitioners. Ms. Trupti Puranik for Respondent No.1-BMC. Mr. Manav Parekh a/w. Ms. Hetal Patel for Respondent No.3. Mr. Kiran Jain a/w. Mr. Tushar Goradia a/w. Ms. Nisha Parmar for Respondent No.4. .... CORAM : S. J. KATHAWALLA, J. DATE : FEBRUARY 26, 2010. P.C. The present Writ Petition is confined to the issue relating to a hoarding which has been put up by Respondent No. 3 M/s. Orion Advertisers (Orion) on the building (ground + 2 floors) known as ‘Kwality House’, situated at Kemps Corner, Mumbai.– 400 036 (the said building). It is the grievance of the Petitioners that despite being 2/3rd owners of the said building the 2 Municipal Corporation has been renewing the licence granted to ‘Orion’, without insisting for a NOC from the Petitioners. However, admittedly the issue as to whether the Petitioners have 2/3 undivided share in the said building is one of the issues framed in suit No. 3192 of 2007 filed by the Petitioners, before the City Civil Court, Mumbai, and is pending determination. The hearing of the suit is expedited by this Court by its order dated 11th March, 2008 (Exhibit E to the Petition). 2. By the present Petition, the Petitioners have challenged the order passed by the Respondent No. 2 [Deputy Municipal Commissioner (Special)] dated 4th January, 2010 allowing renewal of license for hoarding in favour of ‘Orion’. Respondent No. 2 has also held that, as there is no nuisance specified in the instant case the application of the Petitioners for stopping the renewal of licence to ‘Orion’ cannot be considered. By the impugned order Respondent No. 2 has also rejected the prayer of the Petitioner seeking suspension/revocation of license granted to ‘Orion’ for displaying the hoarding on the said building. Respondent No.2 has in his order inter-alia held : 3 “Further, the Hon’ble High Court by its order dated 11.03.2008 in an Appeal from Order No. 869 of 2007, has directed M/s. Orion Advertisers to deposit a sum of Rs. Two lacs per month from August, 2007 till disposal of Suit No. 3192 of 2007 pending in the Hon’ble City Civil Court, hence non-renewal of licence at this stage will not be justified and unwarranted.” 3. According to the Petitioners, by a certificate of sale dated 10th March, 2004 the Petitioners acquired the entire second floor and mezzanine floor of the said building. By a deed of assignment dated 10th September, 2004, the Petitioners also acquired rights in respect of the first floor of the said building. In September 2004 the Petitioner came across a hoarding displayed by ‘Orion’ on the said building and the Petitioner called upon ‘Orion’ to remove the said hoarding which ‘Orion’ refused to do. 4. On 22nd November, 2004, the Petitioner filed suit No. 5878 of 2004 in the City Civil Court, Mumbai to restrain ‘Orion’ from displaying the hoarding on the said building. On 9th December, 2004 ‘Orion’ filed a counter suit being suit No. 5769 of 2004 also in the City Civil Court, Mumbai. Eventually, in the Appeals for Order Nos. 43 of 2006 and 44 of 2006, this Court by 4 its order dated 20th March, 2006 held that ‘Orion’ was entitled to display the hoarding till 30th June, 2007. 5. 'Orion’ continued to display the hoarding even after 30th June, 2007, which led the Petitioners to file S.C. Suit No. 3192 of 2007 in the City Civil Court, Mumbai on 6th August, 2007. In the said suit ‘Orion’ is joined as party Defendant No.1. The reliefs sought by the Petitioner in the said suit No. 3192 of 2007 are reproduced hereunder : “a. that Defendant No. 1 be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner utilizing, using or accepting advertisements from any third parties or displaying any advertisements of any third parties or itself on the hoarding structure/board admeasuring 30’ X 20’ on the front panel wall between the 2nd floor and terrace of the said bulding and/or entering into/and/or trespassing upon the said building ‘Kwality House’, Kemps Corner, Mumbai 400 036 consisting of Ground and 2 Upper Floors, situated on a plot of land admeasuring 989 sq. yards (approximately) being Plot No. 2 of Gamdevi Estate, New Survey No. 7337 (Part) Cadastral Survey No. 624 in the Registration District and Sub-District of Mumbai. b. that Defendant No. 1 be directed by a mandatory order and direction of this Hon’ble Court ordering and directing Defendant No. 1 to forthwith remove the hoarding structure/board admeasuring 30’ x 20’ on the front panel wall 5 between the 2nd floor and terrace of the said building and the belongings put up by Defendant No. 1 on the terrace of the said building known as “Kwality House”, Kamps Corner, Mumbai 400 036 consisting of Ground and 2 Upper Floors, situated on a plot of land ameasuring 989 sq. yards (approximately) being Plot No. 2 of Gamdevi Estate, New Survey No. 7337 (Part) Cadastral Survey No. 624 in the Registration District and Sub-District of Mumbai. c. that Defendant Nos. 2 and 3 their respective partners, their agents, servants, personnel or persons claiming through them be restrained by a perpetual order and injunction of this Hon’ble Court from in any manner whatsoever, whether directly or indirectly, creating, renting, assigning or in any manner howsoever extending any hoarding rights with regard to the said property on the said building “Kwality House”, Kamps Corner, Mumbai 400 036 consisting of Ground and 2 Upper Floors, situated on a plot of land admeasuring 989 sq. yards (approximately) being Plot No. 2 of Gamdevi Estate, New Survey No. 7337 (Part) Cadastral Survey No.624 in the Registration District and Sub-District of Mumbai without prior written consent of the Plaintiff.” 6. In the said suit No. 3192 of 2007 the following issues have been framed on 15th October, 2008 : ISSUES “ 1. Whether the Plaintiff proves that the plaintiff has 2/3 undivided share in the suit premises ? 2. Whether the suit is barred under Order 2 6 Rule 2 of Code of Civil Procedure ? 3. Whether the plaintiff proves that hoarding structure and board installed on the suit premises are illegal and invalid ? 4. Do Defendants prove that by virtue of agreement dated 25/7/2002 the period of agreement is extended by seventeen months ? 5. Do Defendants prove that the period of agreement was validly extended for five years from 1/1/2009 onwards ? 6. Do Defendants prove legal right to put hoardings over disputed premises ? 7. Whether the Plaintiff is entitled for perpetual injunction, as prayed ? 8. What Order or Decree ?” The said suit No. 3192 of 2007 is pending disposal before the City Civil Court, Mumbai. 7. In an Appeal from Order preferred by the Petitioner from the interlocutory order passed by the City Civil Court, Mumbai in Suit No. 3192 of 2007, this Court by its order dated 11th March, 2008 has by consent of the parties passed the following order : 7 “2. .... After some discussion at the bar, the learned Counsel for the parties agree that the Appeal may be disposed off with the following directions : i. Respondent No. 1 shall deposit an amount of Rs. 2 lakh per month beginning with 1st August, 2007 till disposal of the S.C. Suit No. 3192 of 2007. The Respondent No.1 shall deposit the amount of arrears from August, 2007 to March 2008 within eight weeks from this day and shall regularly pay the amount for the month of April, 2008 onwards upto 10th day of the succeeding month. In case of failure to deposit arrears within the stipulated period or in case of failure to pay two monthly payments, the notice of motion shall be deemed to have been granted in terms of prayer clauses (a) to (d). Parties shall not enter into further agreement or contract in respect of disputed hoardings without prior permission of the Court. All the rival contentions are left open and the suit shall be decided on its own merits. ii. The trial Court shall invest the said amount in fixed deposit with some nationalized bank. The amount so deposited alongwith interest shall be subject to the result of the suit. The Trial Court shall expedite the hearing of the suit and dispose off the same as early as possible and preferably by the end of 2008. At present there is some dispute about the assignment of 2/3rd share in favour of the Plaintiff. In case, the dispute comes to an end and the Plaintiff shall be at liberty to move the trial Court to release the amount so deposited in favour of the Plaintiff even pending the said suit.” 8. Prior to the aforesaid consent order dated 11th March, 8 2008, the Petitioners by their Advocates letter dated 14th August, 2007 addressed to the Senior Inspector, Licence ‘D’ Ward, Municipal Corporation had inter-alia recorded that the Petitioners have acquired 2/3rd rights in the said building and that ‘Orion’ is neither the owner of the said building nor having any right to display the said hoarding thereat without the permission of the Petitioners. It is also recorded that the right of ‘Orion’ to display the hoarding has expired on 31st July, 2007. The Municipal Corporation was therefore called upon to revoke the permission granted to ‘Orion’ and not to renew any permission to display the said hoarding on the said building. The said letter dated 14th August, 2007 was followed by the Petitioners letters dated 25th September, 2008, 10th October, 2008, 20th October, 2008 and 4th November, 2008 calling upon the Corporation to desist from renewal of hoarding license of the said ‘Orion’. The Corporation heard the parties on 4th November, 2008 and 19th November, 2008 respectively. Since no orders were passed, after the said hearing was concluded by the Corporation, the Petitioner filed writ petition No. 1654 of 2009 before this Court which was disposed of by an order of this Court dated 4th November, 2009 directing the Corporation to hear all the parties and pass appropriate orders on 9 the objections raised by the Petitioners in accordance with law and expeditiously and preferably within eight weeks. Accordingly, Respondent No. 2 passed an order dated 4th January, 2010 renewing license of hoarding in favour of ‘Orion’ and rejecting the prayer of the Petitioner for suspension/revocation of license granted to ‘Orion’ which are impugned in the present writ petition. 9. The learned Senior Advocate for the Petitioners, has submitted that since the Petitioners are the co-owners of the said building, a No Objection Certificate (NOC) is required from the Petitioners for renewing the license to put the hoarding on the said building. The Municipal Corporation has ignored the fact that the Petitioners have not issued any NOC to ‘Orion’ for putting up any hoarding on the said building and therefore the Corporation ought not to have renewed the licence for hoarding in favour of ‘Orion’. 10. The learned Advocate appearing for the Respondent has pointed out that as recorded in the impugned order, the Petitioners have not made out any case of nuisance. It is also pointed out that the Respondent No. 2 by the impugned order has correctly held that the High Court by its order dated 11th March, 10 2008 in an Appeal from Order No. 869 of 2007, has directed ‘Orion’ to deposit a sum of Rs. 2 lacs per month from August 2007 till disposal of Suit No. 3192 of 2007 pending in the City Civil Court, Mumbai and hence, non-renewal of license at this stage will not be justified. 11. I have considered the submissions made on behalf of the Petitioners as well as the Respondents. It is an admitted fact that the Petitioners by Suit No. 3192 of 2007 filed in the City Civil Court, Mumbai have sought perpetual as well as mandatory orders and injunction/direction against ‘Orion’ from in any manner utilizing, using or accepting advertisements from any third parties or displaying any advertisements of any third parties or itself on the hoarding structure/board put up on the said building and to remove the hoarding/structure/board already put up on the said building. The petitioner has also sought reliefs against Respondent No. 4 who is admittedly the 1/3rd owner of the suit building, from directly or indirectly creating, renting assigning or in any manner howsoever extending any hoarding rights with regard to the said building. The said suit is filed on 30th June, 2007 on the basis that the Plaintiffs (Petitioners herein) has 2/3rd 11 right in the said building and that the right of ‘Orion’ to display the hoarding has expired on 31st July, 2007. The representation made to the Municipal Corporation to revoke and/or not to renew the hoarding licence of the ‘Orion’ is dated 14th August, 2007 and is also on the basis that the Petitioners are 2/3rd owners of the said building and the right of ‘Orion’ to display the hoarding has expired on 31st July, 2007 and ‘Orion’ cannot be allowed to display the hoarding without obtaining a NOC from the Petitioners. After the suit was filed on 30th June, 2007 and the representation made to the Corporation on 14th August, 2007, in an Appeal from Order No. 869 of 2007 in the said suit a consent order dated 11th March, 2008 was obtained by the parties wherein the parties (including the Petitioners) agreed that ‘Orion’ shall deposit an amount of Rs. 2 lacs per month beginning with 1st August, 2007 till the disposal of the Suit No. 3192 of 2007, meaning thereby that “Orion’ shall continue to display the hoardings until Suit No. 3192 of 2007 is finally decided by the City Civil Court, Mumbai. It is not the case of the Petitioners that after the consent order dated 11th March, 2008 was passed, any party has entered into a further agreement or contract in respect of the disputed hoarding without the permission of this Court. The application made before the 12 Corporation by the Petitioners calling upon the Corporation not to renew the licence for hoarding in favour of ‘Orion’ and or to revoke/suspend the licence granted to ‘Orion’ is prior to the consent order obtained from this Court dated 11th March, 2008. The said application is argued mainly on the basis that the NOC of the Petitioners is required since the Petitioners are the co-owners of the said building. As set out in the consent order passed, the claim of the Petitioners of 2/3 shares in the said building is disputed. In fact the first issue raised / framed in the Suit No. 3192 of 2007 before the City Civil Court, Mumbai, pertains to the Petitioners 2/3 undivided share in the said building. The said suit has been expedited by this Court by the consent of the parties and is pending disposal before the City Civil Court, Mumbai. 12. Under the circumstances, the question of the Municipal Corporation not renewing the license of hoarding in favour of ‘Orion’ or suspension/revocation of the license already granted in favour of ‘Orion’ on the ground that the Petitioners are the 2/3 owners of the said building and their NOC is not obtained by ‘Orion’, certainly does not arise, at this stage. Admittedly, no case of nuisance has been made out by the Petitioners pertaining 13 to the said hoarding. No explanation has come forward as to why the consent order dated 11th March, 2008 is not binding on the parties and why ‘Orion’ is not entitled to continue with the disputed hoardings untill final disposal of Suit No. 3192 of 2007 by the City Civil Court, Mumbai as long as ‘Orion’ continues to deposit an amount of Rs. 2 lacs per month as agreed by consent of the parties. 13. Under the circumstances, I am of the view that the order passed by the Respondent No.2, which is impugned in this Petition, cannot be faulted in any respect and no case for interference under Article 226 of the Constitution of India is made out by the Petitioners. 14. The Writ Petition is, therefore, dismissed with no order as to costs. ( S. J. KATHAWALLA, J.)