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2018 Supreme(Bom) 269
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, BHARATI H. DANGRE, JJ.
Farzana Khan & Others – Petitioners
Versus
Municipal Corporation of Greater Mumbai, Through its Commissioner & Others – Respondents
Public Interest Litigation (L) No. 119 of 2017 with Writ Petition (L) Nos. 3360 of 2017 & 3433 of 2017
Decided On : 01-03-2018
For the Petitioner:Mihir Desai, Senior Counsel a/w Chetan Mali, Mukesh Vashi, Senior Counsel a/w Aparna Devkar, Manisha Desai, Sanjay Kotak I/b Hansa Advani, Loshika Bulchandani, Mukesh Vashi, Senior Counsel a/w Aparna Devkar, Manisha Desai, Sanjay Kotak I/b Hansa Advani, Loshika Bulchandani, Shyam Mehta, Senior Counsel a/with Ashish Kamat a/with Nita Solanki, Mr. Kiran Jain i/by Kiran Jain & Co. Advocates.
For the Respondent:Sagar Patil for M.C.G.M, Karl Shroff I/b Rony Pallath Joseph for Airport Authority, S.U. Deshmukh, Milind Sathe, Senior Counsel, Vivek Shetty, Ashwini Vaidialingam I/b AZB Partners, S.U. Deshmukh, Sharmila Deshmukh, Advocates, Himanshu Takke, AGP, A.L. Patki, Addl. Govt. Pleader.
Headnote:
Municipal Corporation Act, 1888 - Section 354A - Seeking a writ in nature of mandamus/directions – Controversy - Seeking appropriate permissions – Petitioner Company Palm Grove Beach Hotels Pvt - Ltd - in W.P .(L) is running a Five Star Hotel at Ramada Hotel Palm Grove Juhu Beach has approached this Honble Court being aggrieved by erection of hoardings by Respondent No -2 on land owned by Airport Authority of Indian - Respondent No -1 outside Airport land being used for parking area - petitioner alleges that he is aggrieved by erection of hoarding since six alleged hoardings are blocking air and ventilation of hotel and according to petitioner said hoarding attempted to be erected in violation of local laws and CRZ norms - It is claim of petitioner that it is running said Five Star Hotel since more than years and said hotel is located at Beach Mumbai and some of these rooms are facing Beach which is uniqueness of hotel and visitors enjoy stay there since they get complete view of sea and beach and allows free light and ventilation with fresh air coming from Sea – Held, Public Interest Litigation has highlighted before us issue of safety of those persons using road may be pedestrians or vehicles - It is not true that city is developing and expanding and increase in vehicular traffic is consequent result of development of city - It is duty of local authority to ensure safe conveyance to public at large which includes accessibility which is speedy and free of traffic hazards - Number of vehicles are on rise day by day and regulation of such vehicular traffic is a primary concern for any local authority - Distraction in form of hoardings which may pose danger to such free flow of traffic therefore needs to be regulated so that their placement their sizes illumination and material displayed thereon is put to check by local authorities since safety of public at large should be primary goal - It is no doubt true that hoardings also earn revenue and in present case revenue for AAI and though it is commercial venture it would not superimpose larger public interest - Claim of a particular public Authority in attempt of its commercial venture cannot over ride and it must be subservient to larger public interest - Writ Petition allowed
Bharati, H. Dangre, J.
1. Public Interest Litigation (L) No. 119/2017 and other two writ petitions are being disposed of by this common judgment as the issue involved in these petitions is common. The controversy revolves around erection of hoardings by one M/s Guju Ads Private Limited, registered under the Companies Act on the land CTS No.940 and owned by the Airports Authority of India, touching the public road. The issue for consideration is whether such hoardings warrant a permission from the Municipal Corporation of Greater Mumbai (hereinafter referred to as the “MCGM”) as a Planning Authority and of the Maharashtra 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 company. According to the petitioner, Respondent No.4 without seeking appropriate permissions from Respondent No.1 i.e. MCGM and Respondent No.3-MCZMA has proceeded with construction of foundations/structures for 14 hoardings and erected 12 hoardings/skysigns in the last week of November, 2017. The petitioner has placed on record the photographs of the hoardings.
3. The Petitioner–Company, Palm Grove Beach Hotels Pvt. Ltd. in W.P. (L) No.3360/2017 is running a Five Star Hotel at Ramada Hotel Palm Grove, Juhu Beach, Mumbai – 400 049, has approached this Hon'ble Court being aggrieved by erection of the hoardings by Respondent No.2 on the land owned by the Airport Authority of India, Mumbai, i.e. Respondent No.1, outside the Juhu Airport, land being used for parking area. The petitioner alleges that he is aggrieved by the erection of the hoarding since the six alleged hoardings are blocking the air and ventilation of the hotel and according to the petitioner the said hoarding attempted to be erected in violation of the local laws and CRZ norms. It is the claim of the petitioner that it is running the said Five Star Hotel since more than 35 years and the said hotel is located at the Juhu Beach, Mumbai and some of these rooms are facing the Juhu Beach, which is uniqueness of the hotel and the visitors enjoy the stay there since they get complete view of the sea and the beach and allows free light and ventilation with fresh air coming from the Sea. Along with the petition, the petitioner has annexed the sketch map which is annexed at Annexure “A” reflecting the location of the petitioner hotel and other landmarks nearby including Chhatrapati Shivaji Maharaj statue, garden, public parking lot as well as footpath. On the said map, the petitioner has indicated the location of six hoardings attempted to be erected by the Respondent No.2. According to the petitioner, the hoarding No. “A” is situated near the compound wall of the petitioner and obstructing the view of petitioner's hotel, whereas hoarding No. “B” and “C” are situated on the footpath of the Public Road/Municipal Road touching CTS No.940 (West side) parking lot and located near the statue of
