Gujarat High Court
Chitra Publicity Company Private ... vs Municipal Corporation Of The City Of ... on 22 December, 2008
Author: Jayant Patel
Bench: Jayant Patel
SCA/15453/2008 1/7 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 15453 of 2008
With
SPECIAL CIVIL APPLICATION No. 15455 of 2008
With
SPECIAL CIVIL APPLICATION No. 15458 of 2008
To
SPECIAL CIVIL APPLICATION No. 15465 of 2008
With
SPECIAL CIVIL APPLICATION No. 15478 of 2008
With
SPECIAL CIVIL APPLICATION No. 15480 of 2008
With
SPECIAL CIVIL APPLICATION No. 15482 of 2008
To
SPECIAL CIVIL APPLICATION No. 15483 of 2008
With
SPECIAL CIVIL APPLICATION No. 15485 of 2008
To
SPECIAL CIVIL APPLICATION No. 15488 of 2008
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CHITRA PUBLICITY COMPANY PRIVATE LIMITED & 1 -
Petitioner(s)
Versus
MUNICIPAL CORPORATION OF THE CITY OF AHMEDABAD & 1 -
Respondent(s)
=========================================================
Appearance :
MR AMAR N BHATT for Petitioner(s) : 1 - 2.
MR SN SHELAT with MR RM CHHAYA for Respondent(s) : 1,
None for Respondent(s) : 2,
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CORAM : HONOURABLE MR.JUSTICE JAYANT PATEL
Date : 22/12/2008
ORAL ORDER
1. In all the petitions, the learned counsel appearing for the respective petitioners as well as Mr. S.N.Shelat with Mr.Chhaya for the Corporation were heard for admission and also for interim orders.
SCA/15453/2008 2/7 ORDER
2. Prima facie, it appears that as per the earlier decision of this Court (Coram: M.R. Shah,J) in Special Civil Application No. 1610/06 dated 20.04.2006, copy whereof is produced at Annexure-GG, this had interpreted the provisions of clause 24.4.10, and observed that no hoardings are permissible in margin open space. It also appears that in the said decision, this Court had no occasion to consider the provisions of 12.4.1(D) which provides for decorative advertisement boards or neon sign boards in cases where the building is abutting on the road having width of 18.0 metres or more, subject to the limits of 4.5 metres in the margin of the building. For ready reference, clause 21.4(10) which has been interpreted in the above referred decision of this Court (Coram : M.R.Shah, J.) reads as under:
"No hoarding shall be permitted in the open margin space of the building."
Whereas, clause 12.4.1 (D)(a) reads as under:
"The marginal open spaces as provided in the above sub-clauses shall be kept permanently open at ground level and they shall not be used for stocking materials or loose articles for the purpose of trade or otherwise nor shall they be used for putting up fixed or movable platforms, over hanging or any other encroachments of any kind provided that decorative advertisement boards or neon sign boards may be permitted in 4.5 mts. margin of a building unit abutting on roads having width of 18.0 mtrs or more with prior permission of the SCA/15453/2008 3/7 ORDER Competent Authority and such approval shall not be given for a maximum period of three years. The sunk-in-lower ground floor or semi-basement or basement shall not be provided in marginal space. The boundary of the plot shall have to be demarcated by at least 0.6 Mt.Paraphet/compound wall/railing."
3. Further, it deserves to be recorded that the word "margin" has been defined in clause 2.58 as under:
"Shall mean space fully open to sky provided at the plot level from the edge of the building wherein built-up area shall not be permitted except specifically permitted projections under regulation."
And the word "open space" is also defined as per clause 2.65 as under:
"Means an area forming an integral part of the plot, left permanently open to sky."
4. Therefore, on combined reading, one of the possible view can be said that the hoarding is permissible in the margin upto the limit of 4.5 metre, if the building is on 18 metre or more wide road and having the margin of 7.5 metre or more.
5. The attempt on the part of the Corporation is to contend that such is permissible only for the purpose of putting hoarding by the owner of the property for his own use and not for any commercial purpose and in furtherance to the SCA/15453/2008 4/7 ORDER submission, the learned counsel for the Corporation relied upon the prima facie observations of the Division Bench of this Court (Coram:R.M. Doshit & S.D.Dave, J.J.) dated 29.08.2008 in Letters Patent Appeal No.352/07.
6. It is also an admitted position that against the order of the learned Single Judge of this Court (Coram:M.R. Shah, J.) in the above referred Special Civil Application, the Letters Patent Appeal is preferred and it has been admitted by the Division Bench, of course, no stay order has been granted.
7. It was also submitted on behalf of the petitioners that the Corporation itself has put up hoarding for commercial advertisement in its own property and has also permitted over other Government properties. Even on road itself, the advertisement is permitted by the Corporation and even after the decision of this Court (Coram:M.R. Shah, J.), there is no action taken for removal of all such hoardings and it was submitted that it is on account of the correct interpretation of clause 12.4.1(D), the Corporation may have continued. It was also submitted that prohibiting the other owners of the property from putting hoarding for advertisement is with malafide purpose of having monopoly in advertisement or to benefit those persons who have put up the advertisement on the SCA/15453/2008 5/7 ORDER road or other place/land, may be of the Corporation or of the Government.
8. Whereas, on behalf of the Corporation, it was submitted that if any illegal hoardings are continued over the land of the Corporation or the Government land, such would not create any right in favour of the petitioner nor the present petition is for removal of such hoarding. The learned counsel for the Corporation further submitted that as the matter is at caveat stage, the Corporation shall respond to such aspect also by filing reply.
9. It would not lie in the mouth of the Corporation to contend on the one hand that no hoardings are permissible in view of the above referred decision of this Court in Special Civil Application No. 1610/06 and on the other hand to sit tight over the hoardings already in existence over the Corporation and other Government properties in the margin area and also on public road. The Corporation being an instrumentality of the State, has to respect the law in an uniform manner and cannot give the discriminatory treatment.
10.However, if the Corporation has interpreted the provisions of GDCR keeping in view clause 12.4.1(D), providing for permissibility of the hoardings, then also, such a discretion has to be exercised in the same manner as are available SCA/15453/2008 6/7 ORDER to the Corporation, qua the properties of the private owners or the other citizens. No final view can be recorded at this stage since the Corporation has yet to file the reply as submitted by the learned counsel for the Corporation.
11.Considering the above, it appears that as against the view expressed by this Court (Coram:M.R. Shah, J.) in Special Civil Application No. 1610/06 and Letters Patent Appeal being admitted, it may not be possible for this Court sitting as a coordinate bench to take any other view or to nullify the effect or to dilute the effect of the observations made in the said decision. The aforesaid is coupled with the prima facie observation of the Division Bench of this Court in Letters Patent Appeal No. 352/07 and others.
12.Hence, office to place the matter on 26.12.2008 before the Division Bench of this Court as may be ordered by the Hon'ble Chief Justice on the administrative side.
13.The petitioners to supply second set. The respondents may file reply including on the aspects about placement of the hoardings at the Corporation's property or the Government property or on public road.
14.Till further orders, status quo as existing on SCA/15453/2008 7/7 ORDER today shall be maintained. Mr.Chhaya, learned Counsel for the Corporation shall intimate to the concerned officer about the order. D.S. permitted.
(JAYANT PATEL, J.) *bjoy