JUDGMENT
(1) Can there be a tenancy on a public road? This is the question which requires to be determined in this appeal.
(2) The Appellant-Company (the Plaintiffs) is an advertising company. They were granted permission for installation of ornamental grill-work poles for outdoor displays, referred to in these proceedings as, “Pole-Ads” under an agreement dated 28th February 1978 entered into between the Municipal Corporation, the respondents herein, and the Appellants. The idea is to beautiful the City of Bombay and for propagating civic, traffic and other worthy causes. The relevant clauses of the agreement are as follows :
“1. The Deputy Municipal Commissioner do hereby grant unto the Company the monthly tenancies of the land covered by Pole-ads and more particularly described in the columns (2) (3) and (4) of the schedule hereunder written.”
“2. The company shall pay to the Deputy Municipal Commissioner ground rent at the rate of Rs. 1,35,000/- per annum (Rupees One Lac Thirtyfive Thousand only) for the display of 5,000 Pole-ads i.e. Rs. 27/- per pole-ad per annum from the date of installation of each pole-ad.”
“3. The ground rent as mentioned in clause 2 above shall be paid on or before 10th of each callender month.”
“4. The company shall commence installation of the said Pole-ads as soon as possible in any case within 3 months from the date of intimation by the Deputy Municipal Commissioner or any Officer authorised by him to commence the work of the installation of Pole-ads on any road described in the Column (1) of the schedule hereunder written.”
“5. The company shall install poles of 21/2 diameter poles with a clearance of approximately 81/2 from the ground with four displays on the pole-ad occupying 34 square feet.”
“8. On each footpath or divider the distance between each Pole-ads shall not be less than 275 feet and each pole-ad shall be installed on the footpath or divider as per locations approved by the Deputy Municipal Commissioner detailed in the Column (1) of the schedule. If any site is to be abandoned for reason of road widening the Company shall be entitled to display the pole-ads on an alternative site with due approval of the Deputy Municipal Commissioner.”
“12. Each party may terminate the tenancy at the end of any English calendar month by giving to the other party one month’s previous notice in writing.”
“13. In the event of the termination of this agreement as provided in clause 12 above, the company shall hand over vacant possession of the land to the corporation after restoring the land to its original condition and the company shall be entitled to remove the pole-ads at its cost.”
“15. The corporation may increase annually the ground rent by an amount equivalent to 5% of the initial ground rent, namely, 5% of Rs. 27/- per pole-ad every year.”
“24. If for any reason, namely, widening of footpath, closing of road etc. it is necessary to shift the pole-ads, then the Corporation shall provide alternate site for the display of the pole-ads.”
(3) By a notice dated 29th August 1983, the Corporation purported to terminate the agreement as provided under clause 12 of the said agreement. The plaintiffs challenged the said termination on the ground that the same is illegal, improper, etc. they also pleaded that there is no breach of any of the terms and conditions of the said agreement. Since the Corporation threatened to uproot the poles installed by the plaintiffs, the plaintiffs were advised to file a suit in the Bombay City Civil Court, being Suit No. 6088 of 1983. The Suit is for an injunction restraining the Corporation from interfering with the “possession of the tenancies” (in respect of the ground covered by the poles installed by the plaintiffs at different places on the public road) and from obstructing or interfering with the plaintiffs’ advertisement and also from obstructing and interfering with reinstallation of the poles which have been removed by the defendants, all “save and except by due process of law.”
(4) After filing the suit, they took out a notice of motion for an interim order and injunction almost on the same terms, as finally prayed for. It appears that initially, the court had not granted any injunction. The plaintiffs came to this court, and obtained an order of ad interim injunction, which was to remain, in force till the final hearing and disposal of the notice of motion. Thus, the motion was heard at length, land the learned Judge by his well-considered judgment and order dated 29th June 1984 dismissed the notice of motion. Against this order, the plaintiffs preferred the present appeal. On admission of this appeal, the earlier order of injunction was continued. It took six years for final hearing, the resultant beneficiary being the plaintiffs, all because we had not had sufficient men and time to scan and scrutinise, the apparent hollowness of the plaintiffs’ claim.
(5) The plaintiffs’ arguments are as follows: The agreement mentions that what was granted to the plaintiffs was “monthly tenancies” and the charge payable is described as “ground rent”. The argument is that there is a tenancy in respect of the land where the pole-ads are installed, wherever they could be, all over the city, and the dimensions of each pole could be of 21/2 inches, in diameter. therefore, they say that even though the agreement could be terminated, or even though the tenancy could be terminated, the plaintiffs cannot be evicted from these places where the poles are installed, except in accordance with the procedure contemplated under Chapter V-A of the Bombay Municipal Corporation Act. They, therefore, submit that after termination of this agreement, the Corporation has to issue a show-cause notice as provided under section 105-B of the B. M. C. Act and thereafter the further procedure as contemplated under that Chapter will have to be followed. Since the Corporation desires to remove the poles without complying with the above procedure, the plaintiffs contend that the corporation’s action is illegal.
(6) In support of the plaintiffs’ case, legal ingenuity relies on the definition of the “premises” as given under Section 3(gg) of the B. M. C. Act. The definition includes lands of any tenure, whether open or enclosed, whether built or not and “whether public or private”. So the argument is that even if the land is on a public road, it is premises belonging to the Municipal Corporation under the agreement, tenancy has been granted in respect of the area where the poles have been installed. In this connection, they further rely on the definition of “corporation premises’ as given under Section 105-A (b) the B. M. C. Act, which means any premises belonging to or vested in or taken on lease by the Corporation.
(7) Prima facie, all these arguments are devoid of simple commonsense. Law is a practical instrument, a working tool in a work-a-day world. It must be understood in its context and not as an artifice leading public ridicule and private gain. Noomenclatures are not normally the nucleus to understand the nature of any agreement, the guiding factors being always the intent and surrounding circumstances. Understood properly, it should strike anyone including the plaintiffs, but for the lawyers’ law, that what was given to them was nothing but permission, pure and simple.
(8) The preamble expressly says that the plaintiffs asked for permission “for installation and displaying of ornamental grill-work poles” and the Deputy Municipal Commissioner granted the same. It is true that it further mentions “together with the monthly tenancy rights of the land covered by the pole-ads.” Accordingly, Clause 1 says that the Deputy Municipal Commissioner “do hereby grant unto the Company the monthly tenancies of the land covered by pole-ads.” Clauses 2 and 3 speak of “ground rent” at the rate of Rs. 27/- per pole-ad per annum from the date of installation of each pole. But where are the poles to be installed? It could be the footpath or on the road-divider “as per locations approved by the Deputy Municipal Commissioner” (Clause 8) and the tentative locations are detailed in the Schedule. If any site is to be abandoned for reason of road widening, the company would be given an alternative site. So also the poles could be shifted from one place to another (Clause 24). Clause 12 provides for termination of the agreement, and under clause 13, if the poles are not removed on termination, the Corporation can remove the same, on its own. Thus the object of the agreement is clear – namely — to provide for outdoor displays of advertisements and civic slogans, on “grill work poles.” Therefore, poles have to be necessarily installed on public street. Therefore, can it be said that there was any demise of that portion of land of about 21/2 inches in diameter scattered all over the public street, so as to bring in the notions Transfer of Property Act, or for that matter to invoke the procedure contemplated under Chapter V-A of the B. M. C. Act? By its very nature of the situation and the purpose, there is no definite location nor is there any definite tenure, as the poles could be at one place today and could be at another place tomorrow, depending on the exigencies such as road-widening, road-digging closure of the roads etc. Public street is meant for the public, and there can be no private interest on a public road.
(9) Construction and maintenance of public streets, is one of the obligatory duties of the Corporation (section 61 (m)). The Commissioner has no plenary power to act in derogation to the obligatory duties of the corporation. While the commissioner can provide for measures to promote public health, information and beautification, they must subserve the primary duties of the Corporation. If the agreement is to be construed as a demise in respect of all such small holes all over the streets in favour of the plaintiffs, it would put the Corporation in conflict with its basic requirement to discharge its obligatory duties. Neither the Corporation nor the Commissioner has the authority to grant any such demise, and consequently it must necessarily be held that there was and there can be no such intention. The agreement is just a permission to instal poles on the public streets. Without such permission, no poles could have been installed on the public streets. While granting permission, the Commissioner is within his powers to impose such terms and conditions, as he thinks proper. If the agreement is terminated in accordance with terms and conditions, the plaintiffs can have no cause to complain. In the present case, the corporation complied with this term by giving a notice as provided under this agreement. On the expiry of the period as given in the said notice. I cannot understand as to how the plaintiffs can say that they have still a right to hold on to the agreement and to the pole-ads without any right whatsoever.
(10) Mr. Tripathy says that the Corporation must still follow the procedure contemplated under Chapter V-A of the B.M.C. Act. According to him, if the plaintiffs could be said to be in unauthorised occupation of those areas on the public streets which are premises belonging to the corporation, the corporation must issue notice as provided under Section 105-B(2) of the Act, and thereafrer must follow the procedure as mentioned in the said Chapter, before eviction. In any view, chapter V-A has no application to public streets at all. If any obstruction is caused on the public street, it cannot be said that the person who causes such obstruction is in occupation of any public premises. He is just found there. If he does not remove the obstruction himself, the same has to be removed. Regulation of streets is specially provided for under Chapter XI, and all public streets are under the control of the commissioner. If a person is given permission to keep anything on the public street, and if that permission is withdrawn, it cannot be said that he is in “occupation” of the area where the thing is kept. The thing has to be just removed. In order to say that a person is in occupation of any premises, so as to attract regular eviction proceedings under Chapter V-A, or through a Civil Court, such a person must have some kind of dominion over the land. There can be no such dominion or control by a private person on a public road, as the control is always with the Commissioner.
(11) The pole-ads are on public streets. The pole-ads have been installed on the public street with the permission of the Corporation as provided under the agreement. The agreement has been terminated. After termination of the agreement there is no permission whatsoever to retain the pole-ads on the public streets. In law, every such pole-ad which is found without permission, is an obstruction on the public road. If the plaintiffs do not remove the poles, the Commissioner can remove them under Section 314 of the Act. But Mr. Tripathi syas that there is no provision in the Act which applies to the facts and circumstances of this case. I do not agree. The Corporation has a mandatory duty to remove all obstructions from the road. Consequently there has to be a power in the Commissioner to discharge the said duty. Under Sections 312 and 313 of the Act, no person shall keep any “post” or any “other thing” on any public street, except with the permission of the Commissioner. If the permission is withdrawn, such “post” or such “other thing” can be removed by the commissioner without notice Section 314 of the Act.
(12) Mr. Tripathy says that the poles cannot be removed except in due course of law. In real terms he means that they cannot be removed excepting after litigation. The words “except in due course of law” are very often misunderstood in very many litigations. It can only mean that the authority cannot act arbitrarily. It cannot take law into its own hands and act by rule of force and not by rule of law. But “due course of law” does not necessarily mean “through any process from a Civil Court.” If the corporation acts in accordance with law and not arbitrarily, it is acting in accordance with “due course of law”.
In the present case there can be no dispute that the agreement has been terminated in accordance with the terms of the agreement. Since then the poles have been kept on the public street without permission. Section 314 of the Act empowers the Commissioner to remove them without any further notice. If every obstruction on a public street has to be removed through the process from the Civil Courts, that would bring the whole administration to a stand still. That is why in all such cases, the law in its wisdom gives powers to public authorities to act on their own. Legislation is essentially empiric and it cannot function in a vacuum.
(13) Mr. Tripathy says that the plaintiffs have not been heard before the agreement is terminated and before the poles are ordered to be removed. It is well settled that there can be no vested right in the case of any individual that he shall be heard in every case before any power is exercised by a statutory authority. The test is whether the authority has acted fairly and in accordance with law. The corporation terminated the agreement by giving a proper notice. There is no infraction of any term of the contract, nor of any provision of law. The law itself says that in such situations the obstructions can be removed without notice. The plaintiffs cannot now insist on a hearing while the obstruction continues.
(14) If the argument of the plaintiffs is taken to its logical conclusion, it comes to this : that any private citizens can keep anything on a public road or a public street and can say and even though he has no present permission, the corporation must still hear him and if necessary adopt proceedings under Chapter V–A of the Act. The argument is plainly untenable.
(15) In the result, I have no hesitation in dismissing this appeal. I, therefore, pass the following order:
Appeal dismissed with costs. Ad interim injunction, if any, stands vacated. However, at the request of Mr. Tripathi, the injunction, which is in force today will stand vacated after a period of four weeks from today so as to enable the plaintiffs to remove the pole-ads on their own.
(16) Order accordingly.