M/S Sheen Ads and Anr. Vs Municipal Corporation of Greater Mumbai

¶1

oswp1277

¶2

1

¶3

ssp

¶4

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

¶5

WRIT PETITION NO.1277 OF 2017

¶6

M/s.Sheen Ads and another
vs.

¶7

...Petitioners

¶8

Municipal Corporation of
Greater Mumbai...Respondent

¶9

Mr.S.C.Naidu a/w Mr.Shashipal Shankar for the
Petitioners

¶10

Ms Pooja Thorat a/w Ms Kejali Mastakar and Mr.Anuj
Seth and Mr.Jaivardhan Sing for the respondent-BMC

¶11

CORAM : A.S.OKA, &
 P.N.DESHMUKH,JJ.
DATE : JANUARY 10, 2018

¶12

P.C.:

¶13

1Heard the learned counsel appearing for the
parties. Rule. Respondent waives service. Taken up
for hearing. The petitioner made an application for
renewal of the four permits issued under sections
328/328A of the Mumbai Municipal Corporation
Act,1888 (for short `the said Act'). In this
petition we are concerned with only permit which is
mentioned in prayer clause (a). On the basis of the
application made by the petitioner for renewal of
the subject permit, a communication dated 14th
February 2014 was issued by the Deputy Municipal
Commissioner, Zone-IV recording that the petitioners
have not rectified three defects. The first defect
was that the hoarding was not aesthetically covered.
The second defect was that the distance from the
other hoarding was less than 20 meters. The third
one is that the hoarding is obstructing the light

¶14

2

¶15

oswp1277

¶16

and ventilation. An appeal was preferred by the
petitioner before the First Appellate Authority
which held against the petitioner. Being aggrieved
by the said part of the order of the First Appellate
Authority, a Second Appeal was preferred by the
petitioner which has been dismissed by order dated
13th July 2016. The Appellate Authority consisted of
two Additional Municipal Commissioners. The relevant
part of the order passed by the Second Appellate
Authority reads thus:

¶17

“The Senior Inspector (Licence), K/West
Ward/Dy.S.L. (ZoneIV and VII) has stated
that one hoarding permit No.761101104
facing traffic from Santacruz to Andheri,
S.V.Roadandnexthoardingpermit
No.761101105 is facing traffic from
Mithibai College,V.M.Road to Vile Parle so
both the hoardings are visible from
different directions of the road.

¶18

Sir, Inspector (Licence), K/West ward
added that the distance between these
hoardings is 15 meters and also stated that
hoarding is 10 feet away from the building
and obstructing the view of the building
behind it.

¶19

We are pleased to reject the appeal on
following ground:

¶20

There are two hoardings in the compound
of Kapadia Apartments, S.V.Road, Vile Parle
(West), Mumbai belonging to M/s.Sheen Ads

¶21

3 oswp1277

¶22

Permit No.761101104 (S.V.Road) and Permit
No.761101105 but both the hoardings are on
same side and alignment of road and having
less than 20 mtrs distance between them and
it also obstructs the view of the building
behind. Hence, we pass the following
order:

¶23

1The order of first appellate authority
is confirmed.

¶24

2 The appeal is dismissed.”

¶25

2Thus, it was held that the distance between the
two hoardings in the compound of the Kapadia
Apartment was less than 20 meters. It was held that
both the hoardings are on the same side and same
alignment of the road.

¶26

3The submission of the learned counsel for the
petitioner was that both the First and Second
Appellate Authorities have not applied their mind.
He invited our attention to the relevant guidelines.
He submitted that the guidelines provide that the
minimum distance between two hoardings on the plots
on the same side of road/alignment should be at
least 20 meters. He pointed out that the clause
specifically clarifies that the same side of
alignment shall mean the same direction of road. He
invited our attention to the photographs on record.
He submitted that photographs would show that the
alignment of the hoardings is different and
therefore, unless alignment is on the same side, the
rule regarding maintaining the distance of 20 meters

¶27

4 oswp1277

¶28

could not have been applied. The learned counsel
for the Mumbai Municipal Corporation firstly urged
that what is recorded by both the Authorities is a
finding of fact. The learned counsel also tendered
on record a report dated 27th November 2014 which was
before the First Appellate Authority which is signed
by the Senior Inspector of Licence and the
Advertisement Inspector of K/West Ward. The said
report is taken on record and marked `R-1' for
identification. She also tendered across the bar
another report dated 8th April 2015 signed by the
Senior Inspector of Licence and the Advertisement
Inspector of K/West Ward which is taken on record
and marked `R-2' for identification. Her submission
is that after recording a finding of fact that the
hoardings are on the same side, rule of 20 meters
has been rightly applied. She also tendered on
record Inspection Report dated 8th January 2018 which
is again signed by the same Officers and the same is
taken on record and marked `R-3' for identification.
She invited our attention to the sketch and
photographs annexed to the report. She submitted
that as a matter of fact during the site visit on 8th
January 2018, the Municipal Officers found that that
two hoardings were erected on the same side of
S.V.Road and were found visible facing from three
roads which are mentioned in the report. She
submitted that if the said report (R-3) is
considered, it completely supports the factual
finding recorded in the impugned Orders and
therefore, no interference is called for.

¶29

5 oswp1277

¶30

4We have given careful consideration to the
submissions. Relevant clause in the policy which is
admittedly applicable reads thus:

¶31

MODIFIED CLAUSE

¶32

“The minimum distance between two hoardings
on poles on the same side of the
road/alignment shall not be less than 20
metres. The distance will be measured from
the perimeter of the hoarding. Here same side
of alignment shall mean same direction of
road.

¶33

This restriction applies only to the
distance between hoardings on ground level
and not the distance between hoardings on (a)
ground and dead wall; (b) dead wall and
terrace; (c)ground and terrace.”

¶34

(Underline supplied)

¶35

5On the basis of the said clause, the
submission is two hoardings which are referred in
the order of the First and Second Appellate
Authorities have a different alignment and the said
hoardings are not visible from the same direction
and they are visible from different directions. In
substance, the argument is that it cannot be said
that the hoardings are of the same alignment though
they may be on one side of the road.

¶36

6It is, therefore, necessary for us to ascertain
what was the material before the First and Second

¶37

6 oswp1277

¶38

Appellate Authorities. As far as the Second
Appellate Authority is concerned, it does not refer
to any report by any Municipal Officer. The learned
counsel for the Mumbai Municipal Corporation has
tendered a copy of the report which is marked as
`R-2'. We have carefully perused the said report.
The said report does not deal with the aspect of
alignment of two hoardings which are referred in the
Order by the Second Appellate Authority. Thus, what
is noted in the impugned order of the Second
Appellate Authority is the oral statement of the the
Senior Inspector of Licence of K/West Ward. The same
does not find place in the report dated 8th April
2015 which was before the Second Appellate
Authority. We have also perused the report which was
before the First Appellate Authority. The report
records that the distance between the two hoardings
is less than 20 meters and in fact only 10 feet.
However, the aspect of alignment of hoardings is not
dealt with. Therefore, in our view, both the
Appellate Authorities could not have recorded
factual findings which are recorded in the impugned
orders as there was no material for coming the said
conclusion before both the Appellate Authorities.
It is not recorded in both the orders that the
Officers constituting the Appellate Authorities had
visited the site for ascertaining the factual
position. Now, the Municipal Corporation wants to
defend the impugned orders based on Inspection
Report dated 8th January 2018 and the annexures
thereto. The petitioners had no opportunity to deal
with the said report before both the Appellate

¶39

7 oswp1277

¶40

Authorities. In fact, both the Appellate
Authorities did not have benefit of the said report.
Therefore, it will be appropriate, if by setting
aside the orders of both the Appellate Authorities,
the case is remanded to the First Appellate
Authority. It will be open for the Mumbai Municipal
Corporation to produce the report dated 8th January
2018 before the First Appellate Authority. If
necessary, the Officers constituting the First
Appellate Authority can always make a site visit.
If the order of remand is made, it will enable the
petitioner to deal with the report dated 8th January
2018.

¶41

7Accordingly, we dispose of this petition by
passing the following order:

¶42

(I)The impugned order dated 13th July 2016
passed by the Second Appellate Authority and
the impugned order dated 6th January 2015 passed
by the First Appellate Authority confined only
to the Permit No.761101105 are hereby quashed
and set aside. We make it clear that the order
of the First Appellate Authority in so far as
it relates to Permit No.761101104 is not
disturbed;

¶43

(II) We direct the petitioners to appear before
the First Appellate Authority on 8th February
2018 at 11.00 a.m for fixing the schedule of
hearing. The report dated 8th January 2018 shall
be placed before the First Appellate Authority

¶44

8

¶45

oswp1277

¶46

for its consideration;

¶47

(III) It will be always open for the Officers constituting the First Appellate Authority to make a site visit especially for dealing with the contention regarding the alignment of the hoardings. It will be also open for the First Appellate Authority to call for the site inspection report from the Municipal Officer;

¶48

(IV) The First Appellate Authority shall decide the appeal afresh as expeditiously as possible and in any event within a period of one month from the date fixed for appearance of the parties;

¶49

(V) Needless to add that till the disposal of the appeal and till the renewal of the Permit, it will not be open for the petitioners to display any advertisement on the hoarding in question;

¶50

(VI) However, till the disposal of the appeal, the hoarding shall not be removed. If appeal is decided against the petitioners, the hoarding shall not be removed for a period of 30 days from the date on which the order is communicated to the petitioners;

¶51

(VII) All contentions of the parties on merits are kept open which will be decided by the First Appellate Authority and the Second Appellate Authority if occasion for doing so arises;

¶52

(VIII) Rule is partly made absolute on above terms with no order as to costs. (P.N.DESHMUKH,J.) (A.S.OKA,J.)

M/S Sheen Ads and Anr. v. Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

M/S Sheen Ads and Anr. v. Municipal Corporation of Greater Mumbai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Shri. Vinod Dadu Chougale and Anr. Vs the State of Maharashtra through the Secretary and Anr.

Abdul Sattar Shaikh and Ors. Vs the Commissioner, Solapur Municipal Corporation and Ors.

Siraj Ahmed Abdul Rehman Vs Municipal Corporation of Greater Mumbai and Anr.

Mr. Ramji Wagha Dabhi Alias Kathiawadi and Ors. Vs State of Maharashtra through Govt. Pleader and Ors.

Atc Telecom Infrastructure .P. Ltd. Vs Mumbai Municipal Corporation and 5 Ors.

Mohamed Afsar Sayed S/O Mohamed Ayub Vs Municipal Corpration of Greater Mumbai and Vaibhav Co-Operative Housing Society (Applicant)