Disposed

Madanmohan C. Gupta and Anr. v. Maharashtra Coastal Zone Management Authority (Mczma) and Anr.

Bombay HC21 Aug 2019NMW/57/2016

Case brief

AI extract

What is this about?

This Division Bench disposed of a writ petition challenging the requirement of MCZMA No Objection Certificates for six advertisement hoardings. After clarifying legal positions and dropping some structures covered by PILs, the Court ordered the retention of specific hoardings subject to license renewal and directed the MCGM to expedite applications. No MCZMA clearance was ultimately found necessar

What did the court decide?

The hoarding at Kalpataru Apartments may be retained upon license renewal without MCZMA clearance; the hoarding at Sun and Sea Apartments to be regularized via expedited license renewal within two wee

Madanmohan C. Gupta and Anr. Vs Maharashtra Coastal… — Intellectual Property | Bombay HC (2019)

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916-OSWP1561-15+.DOC

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Shephali

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1561 OF 2015

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WITH

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NOTICE OF MOTION NO. 57 OF 2016

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Madanmohan C Gupta (HUF) & Anr
Versus

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...Petitioners

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Maharashtra Coastal Zone Management ...Respondents
Authority (MCZMA) & Anr

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Mr Rajiv Narula, with Mr Anuj Narula, i/b Jhangiani Narula &
Associates, for the Petitioners.
Ms Sharmila U Deshmukh, for Respondent No.1.
Mr JF Reis, Senior Advocate, with Ms Vandana Mahadik, for
MCGM.

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Mr Vijay J Gawde, Sr Inspector (License) ‘D’ Ward, present.
Mr Deepak Sardesai, License Inspector, ‘D’ Ward present.
Mr Rajesh Bankar, License Inspector, K/West Ward present.

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CORAM: S. C. DHARMADHIKARI &
G.S. PATEL, JJ
DATED:21st August 2019

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PC:-

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1.In this Writ Petition on 3rd July 2019 this Court passed the
following order:

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Page 1 of 9 21st August 2019

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“1.By this Petition under Article 226 of the
Constitution of India, the Petitioners seek the following
reliefs:

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(a)that this Hon’ble Court be pleased to
issue a Writ of Mandamus or a Writ in the
nature of Mandamus or any other Writ or
order or direction as this Hon’ble Court may
deem ft, thereby, directing the Respondent
No.2 to not to insist for obtaining “No
Objection Certifcate” from the Maharashtra
Coastal Zone Management Authority
(MCZMA), the Respondent No.1 herein as
the Petitioners’ six hoarding structures more
particularly described in the Schedule of
Properties annexed as Exhibit - ‘D’ to the
Petition are situated in Coastal Regulatory
Zone-II (CRZ-II);

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(b)that this Hon’ble Court be pleased to
issue a Writ of Mandamus or a Writ in the
nature of Mandamus or any other Writ or
order or direction as this Hon’ble Court may
deem ft, thereby, directing the Respondent
No.1 to expeditiously consider the Petitioners’
Application dated 24th September 2013, 11th
February 2013, 11th February 2013 and 4th
July 2013 as more particularly annexed as
Exhibit- ‘H’ to the Writ Petition for grant of
No Objection Certifcates in respect of six
Hoardings Structures as more particularly
described in the Schedule of Properties
annexed as Exhibit- ‘D’ to the Writ Petition
and to grant the same in accordance with law;

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Page 2 of 9 21st August 2019

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2. Having heard Mr Narula for the Petitioners briefy today we deem it necessary to call for certain additional information. We are presently not disposing of the Petition.

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3. The Petitioners are in the advertising business. They have outdoor media or advertisements i.e. hoarding displays at various locations in this city. The present Petition concerns six of these advertisement hoarding locations. These are described in paragraph 9 of the Petition as follows:

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(i) One illuminated Hoarding structure having two display boards each admeasuring 40’ x 20’ constructed one above the other in the compound of “Wilson Gymkhana”, Marine Lines, facing North bound trafc of Marine Drive, situated on the property bearing C.S.No. 471, Bhuleshwar Division, situated at Netaji Subhash Road, Mumbai, more particularly described in the Schedule I of the properties annexed thereto;

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(ii) Two illuminated Hoarding structures each admeasuring 30’ x 20’ and 20’ x 20’ constructed in the compound of “Wilson College”, facing South bound trafc of Marine Drive, situated on the property bearing C.S.No. 1527 of Girgaon Division N.A., Purandare Marg, Chowpati, Mumbai – 400 004, more particularly described in the “Schedule II” of the properties annexed hereto;

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(iii) One illuminated Hoarding structure having two display boards each admeasuring 40’ x 20’ constructed one above the other in the compound of “Kalpataru Apt. C.H.S. Ltd.” Peddar Road, facing South bound trafc of Peddar Road, situated on the property bearing CTS No. 669 situated at 39, Peddar Road, Mumbai – 400 026, more particularly

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Page 3 of 9 21st August 2019

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described in the “Schedule III” of the properties
annexed hereto;

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(iv) One illuminated Hoarding structure admeasuring 20’ x 20’ constructed in the compound of “Sneh Kutir Bldg.”, Peddar Road, facing North bound of Peddar Road, situated on the property bearing CTS No. 10/739 situated at Sneha Kutir, Near Cadbury House, Peddar Road, Mumbai, more particularly described in the “Schedule IV” of the properties annexed hereto;

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(v) One Hoarding admeasuring 20’ x 20’ constructed in the compound of the “Sun & Sea Apt. CHS Ltd.”, facing South bound of Juhu Tara Road, situated on Juhu Tara Road, Near Sea Princess Hotel, Santacruz (West), more particularly described in the “Schedule V” of the properties annexed hereto;

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4.The location of these hoardings puts them
admittedly within what is called the Coastal Regulation
Zone-II under the Coastal Regulation Zone Notifcation
(“the CRZ Notification”) dated 6th January 2011 as
amended periodically. The Petitioners’ case is that they
should not be asked to obtain any no objection certifcate
from the Maharashtra Coastal Zone Management Authority
(“MCZMA”) constituted under the CRZ notifcation to
put up the six hoardings at the locations listed above.

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5.All these hoardings are very large. Two of them are
40 ft x 20 ft. Another three are 20 ft x 20 ft and one is 30 ft
x 20 ft. Of these six hoardings, fve are said to be
“illuminated”. This is what concerns us most immediately.
We have noticed that fve hoardings at (i) to (iv) above are
all on major arterial roads in Mumbai. These roads have
heavy trafc and are densely congested. Our query
therefore to both the Petitioners as also to the 2nd

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Page 4 of 9 21st August 2019

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Respondent, the Municipal Corporation of Greater
Mumbai (“MCGM”) is in regard to these ‘illuminations’.
Specifcally we would like information on the nature of
these illuminations, the duration for which the illumination
runs, whether any of these illuminated hoardings have
digital or moving displays and further the precise measures
or safeguards insisted on by the MCGM regarding
structural stability.

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6.Whether or not the permission is required from the
MCZMA is a question we will take up at a later stage. But
that question presupposes that there is nothing lacking,
dangerous or amiss in these hoardings themselves. We are
clear that the larger public interest and, specifcally, the
issue of safety of both motorists and pedestrians is
paramount. There is the question of structural stability
especially during stormy monsoon weather and the risk to
motorists and pedestrians in the event of a collapse, apart
from the inevitable disruption of trafc. We are singularly
unimpressed by Mr Narula’s argument that there has been
no collapse until now. We believe it is safe to say that if
there is such an untoward incident it will happen without
advance notice to Mr Narula’s clients.

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7.The second issue that concerns us is about any
possible danger that these illuminations themselves present.
If they are excessively bright, they may pose a disturbance
to motorists especially at the time when the advertiser most
desires illumination i.e. during the dark night-time hours.
Very bright illuminations cause problems to clear lines of
sight and are distractions. Though the visual disruption may
be momentary or transient, a split second is all it takes to
lead to a catastrophe. It is precisely at these late hours times
that very often trafc signals are turned of and vehicles are
moving at much higher speed than during daytime rush
hours. Further, if these hoardings are left illuminated all

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Page 5 of 9 21st August 2019

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through night then there is the question of light pollution
and the disturbance caused to the residents of buildings on
which the hoardings are placed and to residents in the
nearby vicinity as well.

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8.We do not believe that there is any fundamental right
to a hoarding per se, let alone a fundamental right to
illuminate a hoarding. The entire petition proceeds on the
presumption that it is only the MCZMA no-objection that
is in issue. That is incorrect.

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9.Let an Afdavit be fled by the MCGM with the
aforesaid details, namely the precise nature of these
illuminations, the intensity of the illumination in lumens,
the duration for which this illumination runs, whether any
of these illuminated hoardings have digital or moving
displays and further the precise measures or safeguards
insisted on by the MCGM regarding structural stability be
fled by the appropriate ofcers from the 2nd Respondent,
MCGM within two weeks. We post the matter for orders on
17th July 2019. No Rejoinder without leave of the Court.

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10.We clarify that what we have called for is
information about the policy of MCGM in regard to all such
hoardings on such roads. The Afdavit will also necessarily
contain a statement as to whether the Petitioners’ hoardings
comply with these policy norms.”

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2.Thereafter the Writ Petition appeared before a Division
Bench of this Court and essentially to seek compliance with the
order of this Court reproduced above. On 29th July 2019 Mr Narula
said that an Afdavit in Reply has been fled by Municipal
Corporation but he would like to peruse it. Hence the matter was
adjourned and it was then heard on 16th August 2019.

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Page 6 of 9 21st August 2019

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3. On 16th August 2019 we made the following order:

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“1.In today’s hearing we have been shown that on page
105(a) of the paper-book, Exhibit “D”, there is a schedule
of property.

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2.The properties at Schedule I and II are advisedly
dropped from this litigation for there is a larger challenge
pending in the form of public interest litigation in this
Court. These structures, namely, Wilson Gymkhana and
the hoardings thereon, particularly the illuminated ones are
covered by those proceedings and it will not be proper on
our part to pass any orders in relation thereto.

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3.In so far as properties at schedule III, IV and V are
concerned, there is an apparent dichotomy in the sense that
the Maharashtra Coastal Zone Management Authority is
not sure as to why no objection certifcate is required for a
hoarding structure to be constructed in the compound of
Kalpataru Apartments Cooperative Housing Society
Limited, Peddar Road. We can understand an objection
from the trafc department or from the Municipal
Corporation and if the Municipal Corporation is seized of
an application seeking extension or renewal of the license,
then, it is bound to consider all the aspects in relation to the
license, particularly compliance with the terms and
conditions imposed by it on the petitioner.

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4.We are concerned with the permission or no
objection certifcate required from this Coastal Zone
Management Authority. How and why it comes into picture
is unclear, once it seen that the construction is stated to be
internal and made on Peddar Road, and that too on the
eastern side facing south bound trafc, and between that
and the coastal zone there are several other roads and
buildings.

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Page 7 of 9 21st August 2019

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5. Presently we do not express any opinion whether such permission is required for we would like to peruse the policy of this Authority. Therefore, we place this matter on 21st August 2019. To be placed under the same caption.

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6.Similarly we would like the Municipal Corporation
to enlighten us as to why it is insisting on the MCZMA
clearance.”

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4.In furtherance of that today Ms Deshmukh appearing for
Maharashtra Coastal Zone Management Authority (“MCZMA”)
has stated on instructions that there is a hoarding structure in the
compound of Kalpataru Apartments Cooperative Housing Society
Limited, Peddar Road, Mumbai. That is now said to be not afected
by the Coastal Regulation Zone. No restrictions have been placed in
accordance with CRZ Regulations on the location or mounting of
this hoarding structure. Once this clarifcation has been given on
instructions, then, within the four corners of the Municipal
Corporation policy, the terms and conditions of the license issued in
favour of the Petitioner, the provisions of the Mumbai Municipal
Corporation Act 1888, this hoarding structure should be allowed to
be retained provided the Petitioners seek a renewal of the earlier
license if the same has expired. If the Petitioners comply with the
terms and conditions of the license and of the law, then, the
hoarding structure can be retained and advertisements can be
displayed thereon. Needles to clarify that there being no
requirement of prior approval from the MCZMA will not absolve
the Petitioners from complying with the other laws. The Municipal
Corporation is free to ensure compliance with the same. Our order
clarifying the matter does not afect the rights and contentions of

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Page 8 of 9 21st August 2019

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either parties. Our order of 16th August 2019 was only concerned
with the hoarding structure in the premises of Kalpataru Apartment
Cooperative Housing Society. Once that aspect is dealt with and
covered by the instant order, the Writ Petition will not be kept
pending. It is disposed of.

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5.In so far as the hoarding structure at Sun and Sea Apartments
Cooperative Housing Society Limited near Royal Lane, Juhu Tara
Road, Mumbai, the Petitioner says that the permission from the
MCZMA has been obtained and a recommendatory letter has been
issued in that behalf. The 101st meeting of the said Zonal Authority
held on 13th July 2015 has recommended that the hoarding
structure be allowed. If that is how the recommendation has been
forwarded, needles to clarify that should the Petitioners seek
renewal of the license in relation to the hoarding structure in the
premises of the Sun and Sea Apartments Cooperative Housing
Society Limited, the Municipal Corporation will consider that
application in accordance with its existing policies and law. The
application in that behalf should be considered and disposed of as
expeditiously as possible and within a period of two weeks from the
date of receipt of a copy of this order.

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6.The Writ Petition and Notice of Motion are disposed of in
these terms. No costs.

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(S. C. DHARMADHIKARI, J)

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(G. S. PATEL, J)

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Page 9 of 9 21st August 2019

Madanmohan C. Gupta and Anr. v. Maharashtra Coastal Zone Management Authority (Mczma) and Anr.

Case brief

What is this about?

What did the court decide?

Madanmohan C. Gupta and Anr. v. Maharashtra Coastal Zone Management Authority (Mczma) and Anr.

Case brief

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What did the court decide?

What the court decided

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