TaxTMI 
TaxTMI 
TaxTMI 
2018 (3) TMI 1654
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....nafter referred to as "MCZMA"). 2. PIL (L) No. 119 of 2017 is instituted by a practicing Advocate, residing in Santacruz area seeking a writ in the nature of mandamus/directions to the Municipal Corporation, Greater Mumbai to remove the hoardings/sky signs erected by the Respondent No. 4, an advertising Company on the land of Airports Authority of India (hereinafter referred to as the "AAI"), opposite to Hotel Palm Grove, Opp. Juhu Beach, Juhu Tara Road, Mumbai. The petition raises a grievance that the Airports Authority of India (AAI) is an owner of plot of land situated opposite to Hotel Palm Grove, Opp. Juhu Beach, Juhu Tara Road, Mumbai, which is boundary of CTS No. 940 and next to Public Road namely, Juhu Tara Road. According to the petitioner, part of the land of Airport Authority, opposite to Hotel Palm Grove, is leased out to MCGM which uses the said land for public parking. The petitioner is aggrieved by the action of Respondent No. 2-Airport Authority of India who had invited applications for Advertising Rights Concession for erecting advertisement on the said land and allotted the tender in favour of an advertisement company. According to the petitioner, Respondent No. ....
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....e petitioner that on noticing the action of the Advertising Company in erecting hoardings, it had approached the MCGM and the petitioner was informed that a notice under section 354A of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the "MMC Act", 1888) was already issued and the advertising agency was directed to stop erection of hoardings within 24 hours from service of notice. Further, the petitioner has also placed on record a communication addressed by the MCGM dated 24/11/2017 to the General Manager of the AAI, inter alia, pointing out that on receipt of the complaint from the petitioner, the site inspection was carried out and the facts were verified. By the said notice, the AAI was asked to restrain its contractor from carrying out any unauthorized development work. Attention of the AAI was also invited to the unauthorized work being carried out in CRZ area without permission of the Competent Authority. The said work was thus declared as unauthorized work and request was made to the AAI to restrain the contractor M/s. Guju Ads Pvt. Ltd. from continuing such activity, failing which action would be initiated. The Petitioner is aggrieved by the fact th....
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....h Respondent No. 1 and Respondent No. 3 and Respondent No. 9 and also forwarded complaint to Respondent No. 2 calling upon him to stop illegal work erecting structure of hoarding board. However, the Respondent No. 2 did not deter and continued with the said activity of erecting the hoardings. In the form of this petition, it is the petitioner who himself has erected and displayed the hoardings on the plot of land CTS No. 940 and 958 at Juhu Beach, Mumbai, but he is aggrieved by the erection of hoardings at the instance of Respondent No. 2 on the land belonging to Respondent No. 1 without permission from the MCGM and CRZ. This petitioner has also placed on record the permits/licenses granted in his favour. Heavy reliance is placed on the directions issued by this Court in the case of Dr. Anahita Pandole v. State of Maharashtra (WP No. 1132/2002 decided on 11/4/2008) and it would argue that the said hoardings are required to be demolished. 6. In PIL (L) No. 119/2017 and WP (L) No. 3360/2017 an affidavit-in-reply is filed by the Maharashtra Coastal Zone Management Authority (MCZMA). In W. P. (L) No. 3360/2017 an affidavit is filed by Senior Licensing Inspector of the MCGM on 1/1/201....
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....ollowing the guidelines prescribed under the 2008 Policy Guidelines framed under Section 328 and 328A of the Mumbai Municipal Corporation Act for display of sky-signs and advertisements. According to the said affidavit, in case of Dr. Anahita Pandole v. State of Maharashtra & Ors, these guidelines have been held to be not having any force of law but are the guiding principles in exercise of administrative power by the authorities concerned. 8. Surprisingly, the AAI/Respondent No. 1 did not file any affidavit on record and in spite of we granting time to place such an affidavit in response to the petition. Learned counsel Mr. Shroff appearing on behalf of the Respondent/AAI, would argue that it would be bound by the directions issued by this Court and are ready and willing to abide by the position of law as would be laid down by this Court. Mr. Shroff made it clear to us that it did not want to take any defence or a particular stand and it being a statutory corporation is bound to follow the law and would abide by the same. 9. We have heard learned counsel Mr. Mihir Desai appearing on behalf of the petitioner in Public Interest Litigation (PIL), learned Senior Counsel Shri Mukesh ....
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....structing the smooth flow of traffic and would rather attract the definition of "Defacement" under Section 2(b) of the Act of 1995 and would then argue that erection of such hoardings in violation of the provision of the said Act be therefore treated with great seriousness and said hoardings are liable to be immediately pulled down. 11. The learned Senior Counsel Shri Vashi would also argue on the similar lines and place much emphasis on the policy framed by the MCGM in relation to erection of hoardings by invoking the powers under Section 328 and 328A of the MMC Act, 1888. Advocate Shri Vashi would argue that the MCGM being a Planning Authority is duty bound to ensure that the residential or commercial area within its jurisdiction is not defaced by unauthorized construction and he would pray that the High Court would be perfectly justified in issuing writ of mandamus to the Corporation to enforce its obligation to remove the structures erected in contravention to the statutory provisions. He would specifically invite our attention to Clause (15) and (16) of the Policy framed by the MCGM prescribing the standards to be followed for display of outdoor advertisements and he would ar....
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.... of the aforesaid petitions, including the PIL and on consideration of the arguments advanced by the appearing parties, we are called upon to answer the issue as to whether the hoardings erected on the land belonging to the AAI, a Statutory Corporation, for which it had invited e-tender for conferring the advertising rights, concession to develop, operate and marking the advertisement board at Juhu Airport, require permission from the MCGM and the CRZ and the consequences of not obtaining such permission. 14. The AAI has invited e-tender by publishing request for proposal (RFP) setting out the terms and conditions for the advertising rights concession to operate and marking the advertising board at Juhu Airport. In the Request for Proposal (RFP) contains the following statement. 1. General information :- 1.1.1 : "The Airports Authority of India (the "Authority") is engaged in the development, operation and maintenance of airport in India and as part of this endeavour, the Authority has undertaken the construction of new Terminals for domestic and international passenger traffic at Juhu Airport, which is located in the State of Maharashtra. In order to maintain and upgrade the pa....
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....rity shall, in the discharge of its functions, have due regard to the development of air transport service and to the efficiency, economy and safety of such service. By virtue of Section 12-A of the Act, the Authority may, in the public interest or in the interest of better management of airports, make a lease of the premises of an airport to carry out some of its functions under Section 12 of the Act. This does not absolve the Airport Authority of its statutory duty to ensure smooth air traffic service and watch and ward of Airports and civil enclaves. 18. From the statutory scheme of the aforesaid enactment, it is clear that the AAI is a Statutory Corporation and juristic entity which is distinct from the Central Government and the properties vested in it are its own properties and are not the properties of the Union within the meaning of Article 285 of the Constitution of India. The properties vested in the AAI no longer remain the properties of the Union. We are not impressed by the stand of the advertisers as canvassed by Dr. Milind Sathe that since the property on which the hoardings are erected being property of Union of India, it must enjoy an exemption by virtue of Articl....
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....that it is a case of limited vesting for the purpose of better management. The Authority cannot, therefore, invoke the immunity created by Article 285(1) of the Constitution. The levy of property taxes by the relevant municipal bodies is unexceptionable." 20. In any case, we are not concerned with the issue of taxing the property of the Union. However, the said judgment lays down the principle that being a Statutory Authority established under a Parliamentary enactment, the properties held by such an Authority are distinct from that of the Union of India, in view of its independent existence being a creature of Statute. We are, therefore, unable to accept the submission of Dr. Sathe that the road on which the hoardings are erected, is the property of the Union of India and, therefore, it cannot be subjected to regime of local laws. We are unable to follow the line of argument advanced by the learned Senior Counsel Dr. Sathe for more than one reason which we would be citing in the next paragraph. 21. Dealing with the second contention of the learned Senior Counsel Dr. Sathe with reference to Section 43 and 44 of the M.R.T.P. Act and the argument that no permission of the Planning ....
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.... general distribution and locations of the land and the extent to which land may be used as residential, industrial, agriculture or as forest or mineral exploitation. The regional plan so prepared mandates an approval from the State Government and the said enactment provides the procedure to be followed in preparing and approving such regional plans. The said enactment by virtue of section 18 imposes restrictions on change of use of any land or development, after publication of the notice of the draft regional plan, without prior permission of the Municipal Corporation or Municipal Council, within whose area, the land is situated and elsewhere without permission of the collector. No permission for alteration or change of the use is to be granted by the concerned authority until and unless it is in the conformity with the provisions of draft or the final regional plan. After the regional plan comes into force, it is permissible for the State Government, but not earlier than 10 years to revise the said regional plan through the Regional Planning Board or Regional Board. 23. Chapter-III of the "MRTP Act, 1966" contains provisions for development plan. The "development plan" has been ....
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....al or structural change in any heritage; building or its precinct] [and includes [demolition of any existing building, structure or erection or part of such building, structure of erection; and] [reclamation,] redevelopment and lay- out and subdivision of any land; and "to develop" shall be construed accordingly" 24. The Planning Authority plays a pivotal role in preparation of development plan. The Planning Authority means a local authority and by section 2(15), "local authority" includes the Mumbai Municipal Corporation constituted under the Bombay Municipal Corporation Act, 1888. The Mumbai Municipal Corporation is one of the authorities which owes its recognition to part IX-A of the Constitution of India, inserted by 74th amendment to the Constitution w.e.f. 01.06.1993. Part IX-A captioned as "Municipalities" provides for constitution of Municipalities under Article 243-Q which includes constitution of a Municipal Corporation for a larger urban area. Part/Chapter IX-A provides for composition of the Municipalities and Article 243W provides for powers, authority and responsibilities of the Municipalities. It is necessary to refer to Article 243W which provides that the Legislat....
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....the State Government, then such development plan binds every person and every Authority, operating in the jurisdiction of such planning authority and any development, which is to be carried out within the jurisdiction of the Planning Authority, has to be strictly in consonance with the development plan. This is the reason why any draft modification in the development plan after it has become final, is a cumbersome procedure required to be followed and any modification is permissible only with the approval of the State Government and such a development plan under the scheme of the MRTP indicates a revision once in 20 years from the date on which it comes into operation. The whole scheme of the MRTP Act places the Planning Authority at the helm of affairs for undertaking planning and regulating any development. It should be strictly in consonance with the Development Plan so as to ensure a planned development. 25. The Mumbai Municipal Corporation Act, 1888 contains provisions which would include the functions and duties to be discharged by the Corporation in the nature of its obligatory and discretionary duties. One of the important Chapter in the Enactment is Chapter XI "Regulation....
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....e point in any street and includes all and every part of any such post, pole, standard framework or other support. The expression "sky-sign" shall also include any balloon, parachute, or other similar device employed wholly or in part for the purposes of any advertisement, announcement or direction upon or over any land, building or structure or upon or over any street, but shall not include- (a) any flagstaff, pole, vane or weathercock, unless adapted or used wholly or in part for the purpose of any advertisement, announcement or direction; (b) any sign, or any board, frame or other contrivance securely fixed to or on the top of the wall or parapet of any building, or on the cornice or blocking course of any wall, or to the ridge of a roof: Provided that such board, frame or other contrivance be of one continuous face and not open work, and do not extend in height more than three feet above any part of the wall, or parapet or ridge to, against, or on which it is fixed or supported; (c) any word, letter, model, sign, device or representation as aforesaid, relating exclusively to the business of a railway company, and place wholly upon or over any railway, railway station, y....
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....re hanging over or which in any way encroach upon or obstruct the safe and convenient passage of public along the street. By virtue of Section 308 of the MMC Act, the Commissioner is authorized to issue notice to the owner or occupier of such premises to remove any such structures or fixtures which has been erected in contravention of provisions of the Act. By virtue of Section 310, the Commissioner is the authority who is competent to grant any such permission to erect projection over the street subject to certain terms and conditions. In tune with the said provisions in the Scheme of enactment, the Corporation is authorized to regulate the erection/fixing of sky-signs in view of provisions contained in Section 328 and 328-A of the MMC Act, 1888. The said provision is not restrictive but is regulatory in nature and there is no wholesome ban on advertisement but what is prohibited is obstructive and hazardous structures displaying advertisements. There is no indefeasible right in an individual to erect such hoardings or nor a right vested in an authority to commercially exploit the use of land by erecting such hoardings since such hoardings at times not only create physical obstruc....
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....#39;ble Mr. Justice S.C. Dharmadhikari) is a party, had an occasion to deal with somewhat similar issue where a construction was raised by the Agricultural Produce Marketing Committee (for short "the APMC") being a Local Authority within the meaning of Section 2(15) of the Maharashtra Regional Town Planning Act, 1966 and whether such a construction would be regulated by the provisions of Maharashtra Municipal Corporation Act, the Public Interest Litigation which was filed before Aurangabad Bench of this Court raised a grievance that the construction at the behest of the APMC by a Builder and Developer is completely within the domain of the APMC since it was on the lands belonging to it and the argument advanced was that the provisions of MRTP and building by-laws cannot be made applicable to the market area by the State Government. It was canvassed on behalf of the builder and developer that the market areas specified by the State Government under the control and supervision of the APMC stands exempted from such law. While dealing with the issue in the case of Goroba Pandurang Gadekar (cited supra) the Division Bench observed as under :- 48. "A perusal of the Rules and particularl....
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....aw for the time being in force. Section 43 of the MRTP Act reads thus :- 43. Restrictions on development of land:- After the date on which the declaration of intention to prepare a Development Plan for any area is published in the Official Gazette [or after the date on which a notification specifying any undeveloped area as a notified area, or any area designated as a site for a new town, is published in the Official Gazette,] no person shall institute or change the use of any land or carry out any development of land without the permission in writing of the Planning Authority: Provided that, no such permission shall be necessary - (i) for carrying out works for the maintenance, improvement or other alteration of any building, being works which affect only the interior of the building or which do not materially affect the external appearance thereof; [except in case of heritage building or heritage precinct]; (ii) the carrying out of works in compliance with any order or direction made by any authority under any law for the time being in force; (iii) the carrying out of works by any authority in exercise of its powers under any law for the time being in force; (iv) for t....
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....9 :- Airways; aircraft and air navigation; provision of aerodromes; regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies. Entry 30 :- Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels. The Maharashtra Town Planning Act, 1966 and the Mumbai Municipal Corporation Act, 1888 have been enacted by the State Legislation by invoking Entry 5 and Entry 18 of List II of the Seventh Schedule of the Constitution of India read as below :- Entry 5 : Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. Entry 18 : Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. We are not able to fathom the argument of the lea....
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....ions of Article 285 of the Constitution, it will have to be held that the respondent MCGM has no jurisdiction to regulate the hoardings erected on the property of railways and recover any tax on the same. 33. Paradoxically, Dr. Sathe who appears before us and represents the advertisers appeared for one of the petitioners who advanced his submission in view of Section 44 of the MRTP Act, 1966, that since no permission is required to be obtained by the Central Government or the State Government for any development, the Municipal Corporation will have no power to regulate the hoardings erected on the land of railways. This Court heavily rely upon the provisions contained in Section 185 of the Indian Railways Act, observing thus :- "We find that in view of interpretation placed by the Division Bench of this Court on Section 7 of 1890 Act, which is analogous to Section 11 of the 1989 Act, that too while construing the conflict between the provisions of the said Act and city of Bombay Municipal Act, which is a predecessor of the said Act and City of Bombay Municipal Act, which is a predecessor of the MMC Act, it will have to be held that the provisions of Section 328 and 328A and 479, ....
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....nt cannot come to the rescue of the respondents. 35. We are also not able to comprehend any conflict between the legislations which we have dealt with namely, the Airports Authority of India Act enacted by Parliament on one hand and Mumbai Municipal Corporation Act, 1888, on the other hand. Though an attempt is made to assert supremacy of legislation enacted by the Parliament in the form of the Airports Authority of India Act, 1994 and to make State legislation subservient to it, we do not find that the said argument holds any water. Nonetheless the issue of repugnancy as sought to be invoked, is not to be perceived, not required to be searched for but must exist in fact. 36. We have also perused the judgment of the Bombay High Court in the case of Dr. Anahita Pandole v. State of Maharashtra & Ors decided by this Court (Coram : Swatanter Kumar C.J. and Kanade V.M. J) on April 11, 2008, where the Hon'ble Bench dealt with the issue of mobile hoarding vehicles which were alleged to be plied in contravention of the provisions of the Motor Vehicles Act and it was alleged that they were violating the provisions of MMC Act, 1888 and directions were sought to remove all such hoarding....
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....and the judgment of the Hon'ble Apex Court made the following observations :- 56. "The High Court, in our view, in its anxiety to ensure the free movement of traffic and the safety of both motorists and pedestrians and to avert any untoward incident, has proceeded to question the decision taken by the competent authorities without having proper material before it to do so. Contrary to the authority vested in the State Government and the local authority under the provisions of Section 117 of the Motor Vehicles Act, 1988 and Sections 328 and 328-A of the 1888 Act, the High Court has given directions which, in our view, are beyond the scope of the writ petition." 37. The MCGM has a policy in place laying down guidelines for the display of advertisements. The existing guidelines were framed in the year 2000 in furtherance of power u/s. 328 and 328A of MMC Act, 1888 was modified by the new guidelines framed in the year 2008. The guidelines aimed to improve the quality of out-door advertisements at par with the International Standards and also aim to change the look of the city for the better. The modified guidelines necessitates permission for display of advertisements by means of....
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....are requested to provide the names of the agencies, locations, size, period and all other details of the hoardings on their premises. However, provision of D.C.R. 48 (3) may be taken into account. 16. Restrictions :- (a) No illuminated hoarding shall be permitted within the cone of the vision of the driver without the NOC from the Traffic Police Department. (b) No hoarding shall be permitted at intersection within a distance of 25 meters from the stop-line of each approach road facing the hoarding erected on the ground level. No mobile hoardings will be permitted in carriageways of any road. (c) No hoarding shall be permitted in the compulsory open space required to be maintained under the Development Control Regulations of Greater Mumbai (DCR) including public recreation grounds, playgrounds, parks and Gardens. (d) No hoardings shall be permitted around Traffic Islands and signal junctions within a 25 meters distance from the road line. (e) No hoarding shall be permitted which will cover vision of the sea, greenery, landscaping or large size trees in the adjoining areas. No hoarding shall be permitted near beaches, parking lots or on any land adjacent to seacoast on sea....
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....f hoardings has received approval of this Hon'ble Court and hence, it has binding effect. We expect the Airports Authority of India to regulate its displaying policy in consonance with the policy of the MCGM, framing its own policy, regulating the advertisement hoardings in a manner which do not cause any disruption of traffic and ensure public safety. 38. Once we have arrived at a conclusion that the land on which the hoardings are erected, has to abide by the local laws, then, all the parameters laid down in the policy of the MCGM flowing from Section 328 and 328A of the MMC Act, 1888 must fall in line. Any erection of hoardings without prior permission of the MCGM is, thus, violative of the provisions of MMC Act and needs no protection and rather such structures used for the erection of hoardings needs to be removed. 39. We have before us affidavits filed by the Director of Environment and Member Secretary of the Respondent No. 5 Maharashtra Coastal Zone Authority. The said Authority has referred to the Notification issued by the Ministry of Environment and Forests. The said Notification is superseded by CRZ Notification published on 6th January, 2011 by the Ministry of En....
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....he claim of a particular public Authority in attempt of its commercial venture cannot over ride and it must be subservient to the larger public interest. Erection of hoardings can be permitted subject to regulation as long as the said hoardings do not endanger the public safety. 41. The hoardings which are attempted to be erected by AAI are exposed to the public view and pose a disturbance to the safe traffic movement, as per the learned petitioner who has filed the PIL. We are not aware as to whether they really pose a danger and obstruct the free flow of traffic as attempted to be canvassed before us however, it is not our function to examine whether they are hazardous and we would relegate the agencies erecting such hoardings to the competent authority, named in the policy framed by the Corporation as a competent authority set up by the said policy who would determine whether such hoardings are permissible being not obstructive or hazardous. It is for the authority to also consider whether the alleged hoardings attract the provisions of the Prevention of Defacement of Property Act, 1995 since it is alleged that they are obstructing the view of the statues of Shri Chhatrapati Sh....