Kalabharati Advertising vs Hemant Vimalnath Narichania & Ors

3. Facts and circumstances giving rise to these appeals are that the appellant who is carrying out a business of advertisement hoardings within the city of Bombay approached the Society in 2001 for grant of permission to erect a hoarding admeasuring 40'x20' in its compound. The Society passed a Resolution in the year 2001, permitting the appellant to erect a hoarding of the aforesaid measurement. The appellant applied to the Municipal Corporation (hereinafter called the "Corporation") for grant of necessary permission for erecting the same. The said application was allowed by the Corporation vide order dated 4.8.2001. Subsequent thereto an agreement dated 5.9.2001 was executed between the appellant and the Society for a period of three years on various terms and conditions mentioned therein, and was given effect to. The said agreement was renewed after expiry of the period of three years in the year 2004 by the Society and ultimately vide Resolution dated 12.8.2007 for a further period of three years.

5. The Bombay High Court vide its order dated 1.10.2002 directed the aggrieved parties to file representation before the Statutory Authority, i.e., Deputy Municipal Commissioner, against the findings of the Committee constituted by the Court. Accordingly, the appellant made a representation before the said authority and the said representation was disposed of on 6.4.2004, after giving opportunity of hearing to the appellant and examining the facts in the presence of officers/representatives of the respondent- Corporation, coming to the conclusion that the hoarding of the appellant was 3 not violative of guideline No.16(f). So far as violation of guideline No.16(c) was concerned, the appellant was directed to apply to the Chief Engineer (DP) for condonation of compulsory open space clause of guidelines within 15 days with an observation that regularisation of the hoarding would be subject to the outcome of Writ Petition No.1132 of 2002.

7. There had been some dispute between the Society and some of its members and those members raised certain objections/complaints against the erection of the hoarding in question. Those members approached the Co- operative Court challenging the Resolution passed by the Society in favour of the appellant for granting permission to erect the hoarding and also made 4 an application for interim relief. However, the Co-operative Court dismissed the application for interim relief.

8. Being aggrieved, some of the members of the Society (Respondent Nos.1 to 5) filed Writ Petition No.2366 of 2007 before the Bombay High Court against the Society and the appellant for cancellation of the permission granted in favour of the appellant. During the course of hearing of the said writ petition on 4.2.2008, the Joint Municipal Commissioner (Education), Shri S.S. Shinde filed an affidavit to withdraw the earlier order approving the erection and for permission to pass a fresh order in accordance with law. The court accepted the said affidavit and permitted the Corporation to withdraw its earlier order with further liberty to pass fresh orders without giving an opportunity of hearing to the appellant or the Society as it had already been done while passing the earlier order. In pursuance of the said order, a fresh order was passed by the respondent- Corporation on 11.2.2008, not approving the erection of hoarding which had earlier been approved. Hence, these appeals.

9. Shri Ravi Shankar Prasad, Ld. Senior Counsel for the appellant, submitted that as the PIL, i.e., Writ Petition (Civil) No.1132 of 2002 in 5 which certain direction had been issued by the High Court and a Committee was constituted to examine as to whether hoardings were in violation of the guidelines and an action had been taken in pursuance thereof, is still pending, even if the respondent nos.1 to 5 were aggrieved of any order of the Corporation, they ought to have moved an application for intervention and for further direction in the said Writ Petition No.1132 of 2002. An independent writ petition could not have been filed. So far as the internal dispute between the Society and some of its members is concerned, it is still pending with the Co-operative Court. Only an application for interim relief had been dismissed. Therefore, the writ petition itself was not maintainable as the said respondents had chosen the forum of Co-operative Court under the provisions of Maharashtra Co-operative Societies Act, 1960 (hereinafter called as `Act"). The High Court had permitted the respondent-Corporation to withdraw its earlier order and to pass a fresh order, that tantamounts to conferring the jurisdiction of review upon the statutory authority, though such power had not been conferred by the Statute. Therefore, the order conferring such power itself is without jurisdiction. The Corporation passed subsequent order without assigning any reason and giving opportunity of hearing to the appellant. It is a clear cut case of legal malice. More so, the respondent Nos. 1 to 5, have been permitted to withdraw the Writ Petition 6 No.2366 of 2007 itself vide order dated 13.2.2008, therefore, all orders passed therein by the High Court as well as the consequential orders passed by the Corporation stood automatically washed away. Thus, the appellant should be permitted to continue its business with the Society as if no order had ever been passed by the Court or Corporation in regard to the hoardings in question.

Admittedly, Writ Petition No. 1132 of 2002, wherein the issue of examining the violation of guidelines issued by the Corporation had been raised and the High Court had passed certain directions which had been 16 complied with and in pursuance of the same the Corporation passed an order dated 6.4.2004 that an order passed by it would be subject to the decision in the said Writ Petition No. 1132 of 2002 is still pending before the High Court. In such a fact-situation, if the respondent Nos. 1 to 5 were aggrieved by the order passed by the Corporation they ought to have filed an application for intervention and appropriate directions in the said writ petition. Undoubtedly, there could be no prohibition for filing a fresh writ petition, but it would have been more appropriate for them to file an application in the said pending writ petition as it is necessary that contradictory orders must not be passed in similar circumstances.

31. Respondent No.1 had approached the Co-operative Court and could not get the interim relief. He filed a writ petition along with others after meeting his waterloo there. Subsequently, after obtaining the interim orders from the High Court and consequential orders from the Corporation withdrew the writ petition.

33. In view of the above, appeals deserve to be allowed to the effect that the appellant and the respondent-Society may act as if no order had ever been passed, adversely affecting their contract, by the High Court in Writ 21 Petition No.2366 of 2007 or any statutory authority and they may proceed with the agreement/contract in accordance with law.

34. Needless to say that this judgment/order would have no bearing on the order passed by any court/tribunal or statutory authority independent of the proceedings taken in Writ Petition No. 2366 of 2007.

35. The appeals are allowed as explained hereinabove. No order as to cost.