TaxTMI 
TaxTMI 
2018 (3) TMI 1654
X X X X Extracts X X X X
X X X X Extracts X X X X
....htra Coastal Zone Management Authority (hereinafter 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 compan....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... touching the public road. 4. It is the case of the 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s the case of the petitioner that he lodged complaint with 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ontention of the petitioner, as raised in the petition, about following 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 Pu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... view. Thus, the petitioner would urge that the said hoardings are obstructing 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 standar....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in (2008) 10 SCC 246. 13. On hearing the respective counsel, on perusal 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, whic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nction assigned to the Authority. Sub-Section (4) of Section (12) emanates that the Authority 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 a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. Indeed that is the object behind the very creation of the Authority. But that does not mean 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 refe....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., recreation sanctuaries, terrace etc. It may also provide for a location of land for different uses, 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....her operations in or over or under, land or the making of any material change, in any building or land or in the use of any building or land [or nay material 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 Arti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....gnation of land for public purposes like open space, play ground etc. Once such development plan prepared by the Planning Authority comes into force and it receives sanction from 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 funct....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion, supported on or attached to any post, pole, standard frame-work or other support wholly or in part upon or over any land, building or structure which, or any part of which sky-sign, shall be visible against the sky from some 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 ridg....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n for public streets and maintenance of those streets, in a manner which are free of obstruction, is also one of the function which is required to be discharged by the MCGM. The Scheme of the enactment mandates the Corporation to prohibit projections on the streets which are 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 stru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....efeat the planning legislation like MRTP which is intended to achieve systematic planning for larger public good. 29. The Division Bench of this Court in the case of Goroba Pandurang Gadekar v. State of Maharashtra reported in 2018 (1) Bom.C.R. 117, to which one of us (Hon'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 s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....legislation." 30. The AAI is also not entitled to take recourse to the provisions contained in Section 43 and 44 of the MRTP Act, 1966 and particularly the proviso which does not require a permission for requiring the works by any Authority in exercise of its powers under any law 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tivity at the Airport and its civil enclaves. However, such right will not absolve the Authority from falling in line with the local laws enacted and governing the field. The Airports Authority of India Act, 1994 has been enacted by the Parliament by invoking the Entry 29 and 30 of List I of Seventh Schedule to the Constitution of India which reads thus : Entry 29 :- 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 aut....
X X X X Extracts X X X X
X X X X Extracts X X X X
....thin the domain of Railway Authorities. The submission was in view of Section 184 of the Railways Act, railway administration is not liable to pay any tax in aid of the funds of any local authority unless the Central Government, by notification, declares the railway administration to be liable to pay the tax specified in such notification. It was also argued that in view of the provisions 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... which are erected by the Railways on its land would not require permission of Corporation either under Section 328A and no licence would be required under Section 479 of MMC Act. The said dictum is clearly distinguishable in view of the civic provision in the Railways Act and identical provision on similar lands is not found in Airport Authority of India Act, 1994 and hence the said judgment 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 Maharashtr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ercised their authority, it would not be safe for the Court to question the decision taken by the said authorities on the basis of allegations made by an individual, without having anything more to rely upon, especially, in the face of the affidavits affirmed both on behalf of Mumbai Municipal Corporation and Mumbai Traffic Police." The appeal filed before the Hon'ble Apex Court was allowed 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 wer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rt Authority of India, Defence Ministry, Public Sector Undertakings etc. have to obtain a valid permit under section 328-328A of the MMC Act after obtaining NOC from the concerned Public Authority before they can erect the hoarding or display advertisements. The demand notices for advertisement fees should be sent to the concerned advertising agencies as per schedule of the Corporation. The concerned authorities 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 (D....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (m) No diesel generator sets will be allowed to illuminate hoardings as these create noise and air pollutions. The guidelines provide detail mechanism for disposal of the applications preferred, seeking such permission. The object of the Policy of the MCGM is to ensure smooth flow of traffic in discharge of its duties conferred as Local Authority and to regulate the obstructing/hazardous hoardings which would not cause any hindrance or disturbance to the smooth traffic movement. The said policy framed by the MCGM for display of 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 prio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y concern for any local authority. The distraction in the form of hoardings which may pose danger to such free flow of traffic therefore, needs to be regulated so that their placement, their sizes, the illumination and the material displayed thereon is put to check by the local authorities since the safety of public at large should be the primary goal. It is no doubt true that, hoardings also earn revenue and in the present case the revenue for the AAI and though it is commercial venture, it would not superimpose the larger public interest. The 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 exam....