Bombay High Court
Supri Advertising And Entertainment ... vs Municipal Commissioner, Mcgm And 5 Ors on 27 June, 2019
Equivalent citations: AIRONLINE 2019 BOM 2999
Author: G.S. Patel
Bench: S.C. Dharmadhikari, G.S. Patel
904.WPL2385.18.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 2385 OF 2018
1 Supri Advertising & Entertainment
Private Limited & Anr. ... Petitioners
Vs
1 Municipal Commissioner, MCGM & Anr. ... Respondents
Mr. S.U. Kamdar, senior advocate with Mr. Srinivas Chatti and
Ms. Durga Agarwal i/b Cyril Amarchand Mangaldas for the
Petitioners.
Mr. A.Y. Sakhare, senior advocate with Ms. Rupali Adhate for the
Respondent-Municipal Corporation.
Ms. Jyoti Chavan, AGP, for the Respondent No.5 - State.
Mr. Yashodeep Deshmukh for the Respondent No.6 - MSRTC.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
THURSDAY, 27TH JUNE, 2019 P.C. :
1 By this petition under Article 226 of the Constitution of India, the petitioners, while challenging the order of the Municipal Corporation of Greater Mumbai dated 15 th June, 2018, has prayed for several reliefs. However, Mr. Kamdar, learned senior counsel appearing on behalf of the petitioners, on SRP 1/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc instructions, says that the petitioners are not insisting that they be allowed to display their advertisements on cantilever and placed on a road divider. In other words, right in the middle of the road the cantilever advertisements are displayed in the city, but the petitioners are not insisting on such a display.
2 Accepting Mr. Kamdar's statement, we proceed to refer to his other argument and that is that the petitioner has a contract with the Public Works Department of the Government of Maharashtra. Presently, that contract is subsisting. During the subsistence of that contract and when there are approvals from the Public Works Department, it is the Mumbai Municipal Commissioner and the Municipal Corporation which is insisting on the petitioners seeking a licence from the Municipal Corporation for display of advertisements. It is that which is causing a breach of the mandate of Articles 14 and 19(1)(g) of the Constitution of India inasmuch as the Municipal Corporation is selective in its approach. It grants permission to others while it denies it to the petitioners. While denying it to the petitioners, the insistence is that irrespective of the fact as to who lays the road and to who the road belongs or in whom the street or the SRP 2/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc road vests, the Municipal Corporation insists on obtaining of a licence. This is impermissible in law.
3 All that the petitioners are seeking is equal treatment and on par with others. They should be granted such permissions and approvals as are required under the Mumbai Municipal Corporation Act and the policies of the Corporation. These permissions and approvals or licences will be utilised to display advertisements, not in the middle of the road, but by the sides. Meaning thereby, the cantilever would be installed on pavements and footpaths, but not on road dividers. They would also be placed in such a manner so as not to cause any inconvenience to the pedestrians. The pedestrian traffic can move smoothly without any hindrance or obstruction, much less a fear of accidents.
4 If such is the nature of the request coming from the petitioners, we inquired from Mr. Sakhare, learned senior counsel appearing on behalf of the Corporation and he would invite our attention to the impugned order. He says that there are certain disputes and having financial implications. They are pending and SRP 3/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc the petitioners are not ready and willing to pay the amount demanded by the Municipal Corporation. It is that which has prevailed upon the Municipal Commissioner in imposing some conditions. Mr. Sakhare says that properly read, the impugned order does not impose a total bar or embargo on display of advertisements on cantilevers. All that it says is that the policy guidelines do not permit the advertisements on cantilevers on road dividers. Therefore, so long as the petitioners are ready and willing to abide by the policies, the Corporation will duly consider their request for grant of permissions / licences / approvals and they will be granted or issued in accordance with law. 5 On hearing both sides, we do not find that any wider issue or question, much less of law requiring a decision in this case. We are of the view that insofar as the contractual disputes are concerned, since both sides are ready and willing to resolve them by a process of arbitration, with their consent, we appoint Hon'ble Mrs. Justice Nishita N. Mhatre (now retired) as a Sole Arbitrator to arbitrate on the disputes between the petitioners and the Mumbai Municipal Corporation. We request the Sole Arbitrator to render the Award as expeditiously as possible and SRP 4/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc bearing in mind the larger public interest involved. The learned Arbitrator shall exercise the usual summary powers. 6 Insofar as the second operative clause of the impugned order is concerned,we are of the firm view that now that the parties have referred their disputes for resolution by arbitration, that does not mean either of them have surrendered their legal rights. All issues and questions on merits of the controversy involving financial implications are kept open. Similarly, the wording of the operative clause (2) does not mean that either parties are bound by the Award rendered by the Sole Arbitrator and will have no remedies to question it. It is subject to their legal rights and contentions that clause (2) would have to be abided by them. So clarified, clause (2) presents no difficulty. 7 As far as operative clause (3) of the impugned order is concerned, it is clear that the Municipal Corporation of Greater Mumbai Policy Guidelines, which the Municipal Commissioner refers to, relates to permission to display advertisement on cantilevers on road dividers. Once Mr. Kamdar has stated, on instructions, that the petitioners are not interested in displaying SRP 5/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc any advertisements on cantilevers on road dividers, then, this issue need not detain us. As far as sides of the road are concerned, it is entirely for the Municipal Commissioner to grant the permissions in accordance with its policies and the prevailing provisions of law.
8 The other operative direction is to renew the permission of twenty numbers of bus queue shelters and forty numbers of glow sign boards, subject to compliance of the directions in the impugned order, would stand clarified to the extent that these permissions have to be renewed and that would be, of course, without prejudice to the rights and contentions of the Municipal Corporation in the financial disputes and contractual aspects of the matter. Those contractual disputes involving financial implications are not, in any manner, affected, much less, their adjudication by this clarification. 9 Once we clarify as above, we do not think that the impugned order needs to be quashed and set aside. With the clarifications, it can operate and govern the rights of the parties. SRP 6/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc 10 We are informed that in pursuance of the earlier orders of this Court and the observations therein and particularly to uphold the larger public interest and to take care of every concern relating to public safety, the Municipal Corporation is coming out with a revised policy. We expect the Municipal Corporation to devise such policy as would avoid accidents resulting in deaths of motorists and pedestrians. The greatest concern of this Court is of public safety. Once anything is permitted to be installed right in the middle of the road and it protrudes on the road, then, we have noticed several mishaps and accidents caused by collapsing of such hoardings and advertisements, particularly when in monsoon season, the speed of wind is stated to be anything between 45 - 55 - 65 kms per hour. There is also a genuine apprehension if the advertisements are displayed prominently by use of modern technology and when they are illuminated or presented in such a manner even in daylight that they distract the motorists and pedestrians crossing the roads. The Municipal Corporation would do well to view the slides and pictures of the recent cyclone in Odisha and particularly the stretch near Puri Beach and Bhubaneswar market. All the advertisements flew off and fell directly on the SRP 7/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::
904.WPL2385.18.doc road and some of them came down so fast or briskly, that the motorists and others using the road were saved by a whisker. Every time people may not be so lucky. In these circumstances we would expect the Municipal Commissioner now to look into these issues in the backdrop of the larger public interest and public safety and may be that the Municipal Corporation may have to forego some revenue, but that is worth it. Let such a policy be outlined and made public within six (6) months. 11 If the petitioners apply for requisite licence, their application would be disposed of as expeditiously as possible and within a period of eight (8) weeks from the date of its receipt. 12 With the above directions, the Writ Petition stands disposed of.
G.S. PATEL, J. S.C. DHARMADHIKARI, J. SRP 8/8 ::: Uploaded on - 01/07/2019 ::: Downloaded on - 21/07/2019 02:42:59 :::