Bombay High Court
Madan Mohan Chandrabhan Gupta vs The Municipal Corporation Of ... on 23 October, 2018
Author: G.S. Kulkarni
Bench: Naresh H. Patil, G.S. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1206 OF 2015
Madan Mohan Chandrabhan ...Petitioner
Vs.
The Municipal Corporation of Brihanmumbai ...Respondent
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Mr.Navin Parekh i/b.Ms.Hetal Patel for Petitioner.
Mr.J. Reis, Senior Advocate, with Ms.Rupali Adhate for MCGM.
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CORAM : NARESH H. PATIL, ACTING C.J.
& G.S. KULKARNI, J.
DATE: 23rd OCTOBER, 2018.
P.C.
Heard the learned Counsel for the parties.
2. The dispute in the present petition concerns the hoardings which are put up by the petitioner. Being aggrieved by the actions of the respondent-Municipal Corporation of Brihanmumbai (for short, "Municipal Corporation") to demand licence fees, the petitioner by the impugned communication dated 22nd April 2015 (Exhibit "CC" and Exhibit "DD" of the petition) has approached this Court seeking the following substantive reliefs:-
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psv 2/6 12-wp 1206-15.doc "(a) that this Honourable Court be pleased to declare that part V(C)(e) of the Policy Guidelines on the grant of permission for display of sky science and advertisement under sections 328 and 328A of the MMC Act, 1888 is illegal, bad in law and without taking into consideration the principles of natural justice and be further pleased to strike off the said part V (C)(e);
(b) that this Hon'ble Court be pleased to issue a Writ of Certiorari and/or a Writ in the nature of Certiorari and/or any other appropriate Writ, order or direction calling for the records pertaining to the case of the Petitioner and after going through their legality, validity and propriety and after going through their legality, validity and propriety be further pleased to quash and/or set aside the order bearing Ref. No.DMC/Spl/REN 13-14/117 dated 31/03/2015, Exhibit "X" hereto and the notice of demand bearing Ref. No.A/C/FW/1022/Lic dated 22/04/2015, Exhibit "CC" and another notice of demand bearing Ref. No. A/C/HW/023/Lic also dated 22/04/2015, Exhibit "DD" hereto."
3. This Court from time to time had heard this petition. By an order dated 8th August 2018 the Court recorded the statement as made on behalf of the Municipal Corporation that the Municipal Corporation would allow the retention of the hoardings of the petitioner at the site, provided the petitioner is ready and willing to pay the amount computed by the MCGM towards arrears of licence fees and penalty. It would be appropriate to note the said order which reads thus:-
"1 After hearing both sides and in the light of the earlier order, Mr.Reis, learned senior counsel appearing for the ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:06:55 ::: psv 3/6 12-wp 1206-15.doc Municipal Corporation of Greater Mumbai has taken instructions. He has instructions to inform the Court that the Municipal Corporation of Greater Mumbai will allow the retention of the hoardings of the petitioner at the site, provided the petitioner is ready and willing to pay the amount computed by the MCGM towards arrears of licence fees and penalty.
2 Presently, Mr.Parekh says that the petitioner has not instructed him to give any concession, particularly, on the point of penalty. Rather the petitioner is aggrieved by imposition of such penalty, when he was always ready and willing and indeed forwarded the cheques for the licence fees, but they were never accepted and encashed, just returned. Thus, there is no delay or an element of keeping back something from the Corporation, which the Corporation was duly entitled to recover. 3 We do not consider the request of the petitioner presently for deletion of penalty. We would like to test the bonafides of the petitioner. If the amount of arrears computed at Rs.56 Lakh is paid within a period of four weeks from today as stated and proof of such payment is produced, this Court will proceed to pass appropriate orders on the next occasion after considering the request of the petitioner for deletion of penalty. 4 We post the petition on 19th September 2018 for "Admission".
5 For the period of six weeks, the hoardings will not be removed."
4. Thereafter this petition was heard on 16 th October 2018 when the Court in its order recorded a statement as made on behalf of the petitioner that the petitioner has deposited Rs.56 Lakhs with the Municipal Corporationin pursuance of the order dated 8 th August 2018. A statement made on behalf of the Municipal Corporation was also recorded that the Municipal Corporation would depute an Officer to inspect the subject hoarding site and thereafter matter could be heard. ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:06:55 :::
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5. On the above backdrop, today an affidavit of Shri. Jitendra Vitthal Gartolla, Sr. Inspector of Licence, H/West Ward, dated 22 nd October 2018, is placed on record, whereby on behalf of the Municipal Corporation it is stated that the hoardings site was visited on 4 th August 2018 when it was found that the petitioner has complied all the points in the order dated 28th March 2014 passed by the Municipal Commissioner. It is stated that the Corporation will consider the renewal application of the petitioner as and when applied for renewal of permit of advertisement hoardings. The affidavit further records that penalty of Rs.13,78,315/- per hoarding, totalling Rs.27,56,630/- for the two hoardings in question is payable by the petitioner for not having paid licence fees from June 2014 upto August 2018. We note the contents of the paragraph Nos.3 and 4 of the said affidavit which read thus:-
"3. I say that when visited and inspected the hoarding site on 04.08.2018 it is found that the petitioners have complied all the points in the order dated 28.03.2014 passed by the Hon'ble Municipal Commissioner of MCGM. I say that these Respondents will consider the renewal application as and when applied for renewal of permit of advertisement hoardings. I say that as advertisement Policy Guidelines, if there are any other violations which has to be rectified by the Petitioner, liberty may be given to the Respondents raised them after the present renewal of permit which will be for 2 years.
4. I say that the petitioner has to pay charges of the back to back two hoardings of sizes 20' X 40' each from 01.06.2014 on ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:06:55 ::: psv 5/6 12-wp 1206-15.doc wards till date. The Petitioner has paid Rs. 56 Lakhs towards licence fees of the two hoardings, on 06.09.2018 as has to pay Rs. 27,56,630/- per hoarding as advertisement fee till August 2018. The Petitioner has to pay composition charges amounting Rs. 13,78,315/- per hoarding total amounting Rs. 27,56,630/- calculated till August 2018 for not having paid the licence fee in time from June 2014 upto August 2018 for both hoarding as per the Policy guidelines Schedule and he must pay before the renewal of the permit."
6. In the circumstances, the only issue being urged on behalf of the petitioner is in regard to the penalty being imposed by the Corporation. The learned Counsel for the petitioner submits that it is not fair and proper for the Municipal Corporation to levy penalty in as much as there is no delay in making payment of licence fee. In this regard, our attention is drawn to the following averments as made in the writ petition:-
"60. The Petitioner states that the Petitioner had made regular payments of licence fees for the said 2 hoardings each admeasuring 30' x 20' by forwarding on the first day of every month from 01/06/2014 till 01/05/2015. The Petitioner states that the cheques forwarded by the Petitioner were refused by the office of the Senior Inspector of Licences. Hereto annexed and marked Exhibit "R" is a copy of the list of checks with the details and particulars which was forwarded by the Petitioner and Exhibit "S" is one of the envelopes showing that service thereof was refused."
7. We are also shown Exhibit "R" and Exhibit "S". The contention of the learned Counsel for the petitioner is that the Senior Inspector of Licence has refused to accept the payment across the bar which was ::: Uploaded on - 24/10/2018 ::: Downloaded on - 27/10/2018 01:06:55 ::: psv 6/6 12-wp 1206-15.doc tendered by the petitioner and therefore, the petitioner was constrained to forward cheques by registered post.
8. We find that there is no denial of the clear averments of the petitioner as noted by us above as also to the relevant annexures in the reply affidavit as filed on behalf of the Municipal Corporation. It is thus clear that the payments which were offered by the petitioner, were not accepted by the Municipal Corporation. Therefore, no fault can be attributed to the petitioner in either not making payment or delaying payments of the licence fee so that the Corporation can proceed to levy a penalty. The demand of penalty in the facts and circumstances of the case, would not be justified. We accordingly set aside the demand of penalty made by the Municipal Corporation. It is made clear that the petitioner would be liable to pay the licence fee as fixed by the Corporation for the permissible size of hoarding as per the report dated 19th July 2014 of the Municipal Corporation which is placed on record on behalf of the petitioner and marked "X" for identification.
9. The writ petition is disposed of in the above terms. No costs.
G.S. KULKARNI ACTING CHIEF JUSTICE
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