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2013 Supreme(Bom) 1889
HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI & G.S. PATEL, JJ.
Kishorkant Bhattessa & Another
Versus
The State of Maharashtra & Others
Writ Petition No.534 of 2012
Decided on: 23-09-2013
For the Petitioners:Zal Andhyarujina with Harish V. Meghani i/by Namita M. Mestry, Advocates.
For the Respondents:A.Y. Sakhare, Senior Advocate with Smt. K.R. Punjabi
for the Municipal Corporation of Greater Mumbai, R5, Shoaib I. Memon, Advocate, R.J. Mane, AGP.
Headnote:Constitution of India - Article 14 - Equality before law. - Since there can be no equality in illegality hence removal of illegal and unsafe hoardings, just and proper. - Merely because the Municipal Corporation has not proceeded against offending hoardings in other part of the City, or in the vicinity of the petitioners’ building, does not mean that the petitioners or the Municipal Corporation of Greater Mumbai is prevented from taking recourse to law. Merely because something has not been proceeded against, though offending, does not mean that the writ Court should allow other hoarding sites to be retained even if they are unsafe or it must issue a direction to perpetuate or continue any illegality, if it is brought to its notice.
Constitution of India - Articles 19(1)(g) and 226 - Prohibition of Hoardings Boards and advertisements on above another. - If continuation of old hoardings pose a threat to public safety, same can be removed invoking policy guidelines 2008. - Merely because the hoarding structure has been put up in the instant case in the year 2002, the Municipal Corporation cannot be said to be prevented from taking an action against it. It is the continuation and retention of this hoarding and, at the same site and, which is complained of as posing a threat to the safety and security of the occupants of the building and to those residing in the vicinity and neighborhood and, equally, passers bye.
It is complained that its retention for a long duration and its non-removal is hazardous. Such a alleged continuing wrong or a alleged continuing illegality in a matter of great public concern cannot be said to be not covered by the current Policies and Regulations of the Municipal Corporation. No principle of law, has been shown which prevents the Municipal Corporation from proceeding against such offending hoardings, even if they are erected prior in point of time or are at site for decades together, if their continuation at the same site is now a pause for concern and, in larger public interest.
If that is a cause for concern, then, in matters of safety and security, Court cannot say that the Municipal Corporation is estopped in law from proceeding against such hoardings, if their continuation is in any way in breach or violation of the Policy Regulations prevailing. If they pose a threat to the public safety, then, in the present case, the Policy Guidelines for the grant of permission for display of skysigns and advertisement framed on 10th January, 2008 can be applied and invoked.
Clause (6) of Policy speaks about maximum height of hoarding board and, particularly, sub-clause (c) thereof, says that no hoarding shall be permitted henceforth one above another. The photographs annexed to the affidavit in rejoinder of the petitioners prima facie demonstrate that the hoardings are one above the other. The word “henceforth“ has been relied upon by petitioner to urge that henceforth means hereafter and denotes security.
Whatever has been erected even if it is one above another, then, that cannot be touched is the submission because it is existing since decades at the same site. Submission is not acceptable when it comes to matters of public safety and, our concern for the lives and properties of the residents of the City and the occupants of the structures and buildings, then, an interpretation which will further the object and purpose and, which will assist the public body in reaching out and taking care of the complaints of the above nature pertaining to the above aspects should be placed on such Policy Regulations.
Policy Guidelines for Grant of Permission for Display of Sky Signs and Advertisement, 2008 - Clause 6(c) - Prohibition of hoardings and advertisements. - Policy guidelines framed by Municipal Corporation to regulate display of hoardings on buildings, in view of public safety, given retrospective effect. - The doctrine of fairness was referred to by the Supreme Court in Vijay v. State of Maharashtra, (2006) 6 SCC 289: (2006) 7 JT 112. In this case a new law which enacted that ’no person shall be a member of a Panchayat or continue as such who has been elected as a councilor of Zila Parishad as a member of the Panchayat Samiti’ was held to be retrospective and applicable to existing members of a Panchayat. In holding so S.B. Sinha, J. observed: "It is now well settled that when a literal reading of the provision giving retrospective effect does not produce absurdity or anomaly, the same would not be construed only prospective. The negation is not a rigid rule and varies with the intention and purport of the legislation, but to apply it in such a case is a doctrine of fairness. When a new law is enacted for the benefit of the community as a whole, even in absence of a provision the statute may be held to be retrospective in nature.
Language not always decisive. - In deciding the question of applicability of a particular statute to past events, the language used is no doubt the most important factor to be taken into account; but it cannot be stated as an inflexible rule that use of present tense or present perfect tense is decisive of the matter that the statute does not draw upon past events for its operation. Thus, the words ’a debtor commits an act of bankruptcy’ were held to apply to acts of bankruptcy committed before the operation of the Act. The words ’if a person has been convicted’ were construed to include anterior convictions. The words ’has made’, ’has ceased’, ’has failed’ and ’has become’ may denote events happening before or after coming into force of the statute and all that is necessary is that the event must have taken place at the time when action on that account is taken under the statute. The words ’dying intestate’ were interpreted by the Judicial Committee not as connoting the future tense but as a mere description of the status of the deceased person without any reference to the time of his death. So the words, ’held as lease’ may be only descriptive of land and may apply to lands held on lease prior to or after the coming into force of the Act. The words, ’when a person dies’, may include a person who died prior to the coming into force of the Act. And the word ’is’ though normally referring to the present often has a future meaning and may also have a past signification in the sense of ’has been’.
The real issue in each case is as to the dominant intention of the Legislature to be gathered from the language used, the object indicated, the nature of rights affected and the circumstances under which the statute is passed."
Pertinently, the Municipal Corporation has not taken this stand before us.
(S.C. Dharmadhikari, J.)
1. By this writ petition, the petitioner is seeking a direction to the Municipal Corporation of Greater Mumbai to take action against an offending hoarding and which is more particularly described in the petition.
2. The petitioner essentially seeks a direction to the Municipal Corporation of Greater Mumbai that it must proceed and deal with the complaint made with regard to dismantling and removing the three hoardings put up and used by respondent Nos.5 and 6 on the terrace of the building of the said Society.
3. We have heard Mr.Andhyarujina appearing for the petitioners, Mr.Sakhare, learned senior counsel appearing on behalf of the Municipal Corporation of Greater Mumbai and the respondent Nos.2, 3 and 4 and, equally, we have heard Mr.Memon appearing on behalf of respondent No.5.
4. After hearing the learned counsel at some length, we find that there is much substance in the complaint of the petitioners that the Municipal Corporation failed to take into account all the Policies and Regulations and prevailing till date in permitting the hoarding at site and rather its retention, when there is enough material to show that the same contravenes the above referred Policies and that allowing it to be retained in the form and shape at site endangers the safety of the occupants not only of the building of the Society, but all those passing bye as well.
5. The argument of Mr.Memon is that the petitioners have by an oblique and back-door method raised the issue of the respondent No.5's right to use the hoardings. That issue cannot be raised here because the petitioners and the respondent No.5 have ongoing disputes and, which are pending in a competent Civil Court. Our attention has been invited by Mr.Memon to the pendency of a Civil Suit filed by the respondent No.5. It is submitted that the Society is fully aware of the pendency of the said dispute and that on account of the orders passed therein, it could not have a removal far from dismantling of the hoarding at site. Therefore, they have approached this Court and, by raising the plea of inaction of the Municipal Corporation of Greater Mumbai.
6. It is submitted that the Society was unsuccessful in the past and, now by these proceedings the Society seeks to achieve something, which it has failed to in the pending proceedings.
7. It has also been urged that the hoardings have been erected in the year 2002 as per the guidelines and in terms of the Rules, then prevailing. The hoardings have been erected and the retention thereof is also governed by the same. No fresh Policy or Regulations of the Municipal Corporation would enable the Corporation to take cognizance of the complaint and, particularly, about the height of the hoarding. In such circumstances, this writ petition be dismissed.
8. At the outset, we wish to clarify that we are not concerned with the inter-se civil disputes. The petitioners and the respondent Nos.5 and 6 may have an on-going dispute as between them in a competent Civil Court and, particularly, about the right to erect a hoarding on the hoarding sites. They may also rely upon the clauses in the agreement in that behalf. We are essentially concerned with the issue of safety and stability of the structure. The occupant's safety and, equally, the safety of all those passing bye and residing in the neighborhood is a matter of concern for us. We had before us a complaint in the past with regard to the hoarding sites and, which are placed on the top of buildings or directly facing the road collapsing on account of natural causes or on account of heavy rains and winds, endangering thereby the safety of all those using the roads and footpaths. The occupants of the residential building of the Cooperative Housing Society have also complained that the stability of the structure and building is adversely affected, if hoarding sites are allowed to be erected on the terrace of the buildings. They are precariously placed and/or mounted on the
