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SCA/664/2009 9/ 11 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 664 of 2009
To
SPECIAL
CIVIL APPLICATION No. 673 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge?
=========================================================
EVEREST
PUBLICITY - Petitioner(s)
Versus
MUNICIPAL
COMMISSIONER & 2 - Respondent(s)
=========================================================
Appearance :
MR
MIHIR JOSHI, SR.ADVOCATE WITH MR. AJAY S JAGIRDAR
for Petitioner(s) :
1,
NOTICE SERVED BY DS for Respondent(s) : 1 - 3.
MR RM CHHAYA
for Respondent(s) : 1 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 15/01/2010
ORAL
JUDGMENT
1. As
common question of law and facts arise in this group of petitions,
they are being disposed of by this common judgment.
2. In
all this group of petitions under Article 226 of the Constitution of
India the respective petitioners have prayed for an appropriate Writ,
direction and/or order declaring action of the respondents as illegal
in indulging into demolition of the hoardings of the respective
petitioners, particulars of which are as per Annexure C to the
petitions.
3. It
is the case on behalf of the respective petitioners that they are
doing business of outdoor advertising, putting hoardings in the city
of Rajkot since many years and paying licence fees regularly. That
they have paid licence fees lastly for the accounting year 2008
2009. It is the case on behalf of the respective petitioners that
respondent Corporation without issuing any show cause notice,
started large scale demolition in the City of Rajkot in the afternoon
of Friday (23.01.2009) and some hoardings were demolished.
Therefore, respective petitioners have approached before this Court
by way of present petitions.
4. It
is the case on behalf of the respective petitioners that regulations
in respect of placing of the hoardings are permitted and notification
was issued in 2002 and subsequently in 2004 and therefore, respective
petitions have been granted licence to placement of hoardings at
various sites in the city of Rajkot and thereafter have paid licence
fees of Rs.300/- per Sq.Mts. for non-lit hoardings and Rs.400/- per
Sq.Mtrs. for lit hoardings. Therefore, it is submitted that action of
the respondents in demolishing some of the hoardings and proposed
action of demolition of advertising / boards of the respective
petitioners are absolutely illegal and such high handed action is bad
in law, illegal.
5. Mr.Mihir
Joshi, learned Senior Advocate appearing for the respective
petitioners has submitted that action of the respondents pulling down
hoardings lying in private premise is absolutely high handed and
without issuing any notice or without giving any opportunity of
hearing and without following principles of natural justice. It is
submitted that same is with ulterior purpose to pressurize the
advertisers who have been granted permission to put up hoardings in
private properties and is trying to monopolize the advertising
business of the persons who have been allotted the tender more
particularly allotted to one Sambhav Media Ltd. by the respondent
Corporation. Sum and substance of submissions and case of the
respective petitioners in nutshell is that they have been issued
licence and have paid licence fees up to 2008-2009 and still without
any notice, without giving any opportunity, respondent
Corporation is likely to demolish hoardings / advertising boards of
the respective petitioners.
6. All
these petitions are opposed by Mr.R.M.Chhaya, learned Advocate
appearing for the respondent Corporation. It is submitted by
Mr.Chhaya, learned Advocate for the respondent Corporation that
all these petitions are required to be dismissed on the ground of
suppression of material fact. It is submitted that case on behalf of
the respective petitioners that proposed action is without any notice
and/ or without giving any opportunity is factually incorrect. He has
relied upon various correspondences between respondent
Corporation and respective petitioners which are annexed with
affidavit -in-reply. It is further submitted by Mr.Chhaya, learned
Advocate for the respondent Corporation that as such none of the
respective petitioners have applied for licence as per General
Development Control Regulations (herein after referred to as ‘GDCR’
for short) after 2004 and time and again all the respective
petitioners were called upon to see that provisions of GDCR are
complied with. It is submitted that GDCR is part of development plan
and all inclusive of respective petitioners are bound to comply with
the provisions of GDCR and have hoardings as per provisions of GDCR
more particularly clause 21 of GDCR. It is submitted that none of the
respective petitioners have put up hoardings by complying with the
requirement as per GDCR and therefore, action of the respondent
Corporation in pulling down / demolishing hoardings are in accordance
with the provisions of GDCR, which is after following due procedure
i.e. after giving notice which is just and proper and not required to
be interfered with. Therefore, it is requested to dismiss present
Special Civil Applications with costs.
7. In
reply, Mr.Mihir joshi, learned Senior Advocate appearing on behalf of
the respective petitioners has relied upon affidavit-in-rejoinder and
tried to explain notices which were issued in the year 2007 and it is
submitted that therefore, as such there is no suppression as alleged
by the learned Advocate appearing for the respondent Corporation.
It is submitted that due to administrative reshuffle, due to lack of
complete information, the Town Planning Department issued notice
under section 245(3) of the Bombay Provincial Municipal Corporation
Act (herein after referred to as ‘BPMC Act’) in the
month of November, 2007 and same were replied by the respective
individual petitioners which were with respect to individual
hoardings. It is submitted that after aforesaid notices were issued
in the month of November, 2007, respondent Corporation issued
another notice for renewal of licence fee on 13.03.2008 for the year
2007 2008 and the petitioners had sent cheques, but respondent
Corporation had not deposited the same and thereafter, demanded new
cheques from the respective petitioners zone wise and in response to
that, respective petitioners submitted fresh cheques in March / April
2008. It is submitted that thereafter, respondent Corporation
issued another notice dated 11.08.2008 for yearly renewal of licence
fees for the year 2008 -2009 which can be said to be third notice.
However, thereafter considering representation of the respective
petitioners that till a decision is taken by the State Government as
regards the policy regulations and fees in respect of outdoor
hoardings, the Corporation would continue with the prevailing
position and thereafter, respective petitioners paid renewal fees for
the year 2008-2009 and thereafter, no notice have been issued to the
respective petitioners for demolition of hoardings. Therefore, it is
requested to allow present Special Civil Applications.
8. Heard
the learned Advocates for the respective parties at length.
9. At
the outset it is required to be noted that when Special Civil
Applications came to be filed by the respective petitioners, it was
the specific case on behalf of the respective petitioners that
pulling down / demolition of hoardings and/or proposed action of
Corporation in pulling down / demolition of the hoardings of
respective petitioners is absolutely illegal and without giving any
prior notice. However, considering affidavit-in-reply filed by the
respondent Corporation aforesaid is factually incorrect. Having
pointed out in affidavit-in-reply with respect to the same and
issuance of notices / various correspondences between the respondent
Corporation and respective petitioner, respective petitioners have as
such admitted in affidavit-in-rejoinder with respect to earlier
notices issued in the year 2007-2008 and correspondences. However,
they have tried to explain said notices. Therefore, fact remains that
respective petitioners have not stated correct facts before the Court
and have suppressed material fact with respect to earlier
correspondences and notices issued in the year 2007-2008 and on such
misrepresentation and suppression of material fact they have obtained
ex-parte ad-interim relief. Thus, respective petitioners are not
entitled to extraordinary discretionary relief from this Court in
exercise of powers under Article 226 of the Constitution of India.
Respective petitioners were supposed to and required to state correct
facts. It appears that respective petitioners have not come with
clean hands which disentitles them discretionary and equitable relief
under Article 226 of the Constitution of India.
10. It
is to be noted that sign boards and hoardings are governed and
regulated under Chapter 21 of GDCR of Rajkot Urban Development
Authority (herein after referred to as ‘RUDA’ for
short), which were sanctioned as a part of final development plan
vide Notification dated 20.02.2004 and the same have come in force
from 06.03.2004. That RUDA has fixed the design and size of the
hoardings under its Resolution No.1343. As per Chapter 21 of GDCR,
only authorized sings (hoardings) paging tower and telephone towers
will be permitted and anybody who wants to put up any hoardings,
paging tower and/or telephone tower is required to comply with
Chapter 21 of GDCR and required to apply licence and/or apply for
permission as contemplated under Regulation No.21.1. It appears that
none of the respective petitioners have applied for any permission /
licence as contemplated under Regulation no.21.1. From various
correspondence / notice referred to in affidavit-in-reply produced
along with affidavit-in-reply, respective petitioners were time and
again informed to comply with provisions of GDCR. However, it
appears that none of the respective petitioners have complied with
the same. It appears that as respective petitioners did not comply
with provisions of GDCR and still continued to have hoardings
contrary to provisions of GDCR, even respective petitioners were
served with notice by the Assistant Town Planner, Rajkot Municipality
under section 245(3) of BPMC Act and only thereafter, respondent
Corporation has started pulling down / demolishing hoardings which
are contrary to provisions of GDCR. It is to be noted that respective
petitioners did not produce Stability Certificate at the relevant
time, which respective petitioners have produced subsequently. All
the aforesaid correspondences and notices were required to be
referred to by the respective petitioners in the petitions which they
have failed to refer to in the petitions. Even otherwise considering
aforesaid facts and circumstances, more particularly, notices /
correspondences produced along with affidavit-in-reply, it cannot be
said that action of the respondent Corporation is in any way illegal
and/or arbitrary and/or against principles of natural justice which
calls for interference of this Court in exercise of powers under
Article 226 of the Constitution of India. Considering aforesaid and
considering the fact that hoardings which are put by the respective
petitioners are not in consonance with provisions of GDCR and/or
provisions of RUDA and more particularly when respective petitioners
have never applied for permission as required under Chapter 21 of
GDCR and when respondent Corporation has initiated proceedings
for pulling down / demolishing hoardings, it cannot be said that
respondent- Corporation has acted illegally and/or arbitrarily.
11. In
view of above and more particularly considering the fact that
respective petitioners have suppressed material fact of notices /
correspondences between respondent Corporation and respective
petitioners and Association and they have not come with clean hands,
all these petitions deserve to be dismissed and ad-interim relief
granted by this Court which respective petitioners have obtained by
suppressing fact and making incorrect averments in the petitions,
deserve to be vacated. Accordingly, all these petitions are
dismissed with costs. Notice discharged in each of the petitions.
Ad-interim relief granted stands vacated forthwith.
12. At
this stage, Mr.Mihir Joshi, learned Senior Advocate appearing for the
respective petitioners prayed for extension of ad-interim
relief granted earlier by this Court so as to enable respective
petitioners to approach higher forum, ad-interim relief granted
earlier is directed to be continued till 26.03.2010.
[M.R.Shah,J.]
satish
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