TMI Blog2018 (3) TMI 1654X X X X Extracts X X X X X X X X Extracts X X X X ..... enactment, the Central Government only exercises control over the AAI but the said Authority is distinct from the Union of India (UOI). Whether the local laws could be invoked to regulate the procedure for erection of hoardings and whether permission of the Local Authority i.e. MCGM is imperative? - Held that:- The AAI, as a commercial venture, has undertaken the work of allotment of concessionaire right in favour of the advertisers and in order to achieve the best commercial interest and not for indulging into any activity 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. 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, viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per the learned petitioner who has filed the PIL - 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 Shivaji Maharaj and Mahatma Gandhi. The duty to obtain necessary permission, in the light of the conferment of advertising rights concession of developing and operating the advertisement board in the estate at Juhu Airport has been placed on the advertiser and the advertiser has failed to obtain such necessary permissions. Resultantly, the said hoardings erected by M/s. Guju Ads are unauthorized and are liable to be removed forthwith. Petition disposed off. - Public Interest Litigation (L) No. 119 of 2017, Writ Petition (L) Nos. 3360 and 3433 of 2017 - - - Dated:- 1-3-2018 - S.C. DHARMADHIKARI AND BHARATI H. DANGRE, JJ. Counsels: For Appellant/Petitioner/Plaintiff: Mihir Desai, Senior Counsel and Chetan Mali For Respondents/Defendant: Sagar Patil for M.C.G.M. JUDGMENT Bharati H. Dangre, J. 1. Public Interest Litigation (L) No. 119/2017 and other two writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent petition praying for removal of the alleged hoardings erected by respondent Nos. 1 and 2 and by way of interim order he sought directions to restrain respondent No. 2 from erecting such hoardings without prior permission from the MCZMA and without obtaining mandatory permission under Section 328 and 328(A) of the MMC Act, 1888 and as per Hoarding Policy framed by MCGM. 5. Writ Petition (L) No. 3433/2017 is filed by one Selvel Publicity Consultants Private Limited, registered under the provisions of the Companies Act, 1956 and engaged in the business of out-door advertisements and erection of sky-signs under contracts and assignment. The petitioner is aggrieved by the erection of hoardings by M/s. Guju Ads which is impleaded as Respondent No. 2 in the petition and the petitioner contends that he has erected hoardings after obtaining permission from the MCGM and his hoardings are standing since the year 1962 and are used for displaying advertisements. According to the petitioner, hoardings are standing on the Plot No. CTS No. 958 which is the same piece of land on which Respondent No. 2 has erected hoardings. According to the petitioner, he had applied for license and permit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subject matter of the petitions. It is the stand of the Respondent No. 2 that the hoardings are sought to be erected at a site situated on piece of land bearing CTS No. 940 and 958 of Taluka C.S.O. Ville Parle, Mumbai Suburban District, is owned by Civil Aviation Department, Government of India. The copy of property register cards for the site are placed on record alongwith affidavit. The answering respondent has disputed that any permission is required to be sought from MCGM for erection and display of hoardings on the land owned by Airport Authority and according to him on inquiry from the AAI, he was informed that such a permission is not required. The Respondent No. 2 categorically responds to the petition by asserting that they are not required to obtain any permission/approval from the local body/authority neither under any law/rules or guidelines framed. It is the stand taken in affidavit that the Airports Authority of India is a body Corporate, with power to acquire, hold and dispose of property, both movable and immovable. The affidavit further sets out that the Airports Authority of India which is a statutory body owing its existence to the Airports Authority of India A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said land is located outside the airport, and therefore, is amenable to the Municipal/State law and even if for the sake of argument the property was situated within the Airport itself, the advertisements were displayed on the boundary walls of the Airport, which are visible to the public at large within the jurisdiction of Municipal Corporation and therefore it is imperative on the part of the agency to seek permission from the Municipal Corporation. According to the petitioner, the erection of hoardings/sky-signs is hazardous to the passer-by and therefore it ought to have been properly regulated and erected only after seeking permission from MCGM which already has a policy in existence, governing the erection of hoardings, displaying advertisements/sky-signs. The petitioner apart from relying on Section 328 and 328A of the MMC Act, 1888, places reliance on the judgment delivered by this Court in relation to erection of sky-signs and hoardings. The learned Senior Counsel would, then, argue that the guidelines on the grant of permission for display by sky-signs and advertisements issued under Sections 328 and 328A of the MMC Act, 1888 makes the hoardings in issue, vulnerable and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C Act, 1888 is imperative. He would also argue that permission of the CRZ is also mandatory. The learned Senior Counsel Mr. Mehta appearing for the petitioner who himself has erected hoardings on the site with due permission of the MCGM and after being granted a licence to do so, would follow the argument of the learned Senior Counsels Mr. Vashi and Mr. Mihir Desai in support of his petition. 12. We have heard learned Senior Counsel Dr. Milind Sathe representing the Advertiser, M/s. Guju Ads Pvt. Ltd. and he would argue that the street in question where the hoardings are erected did not belong to the MCGM and according to him, it did not even belong to the AAI, but he placed reliance on the property cards which he had annexed to the affidavit to support his contention that the said piece and parcel of lands bearing CTS No. 939, 940, 945, 946 etc. of Juhu, the name of owner is recorded as Aviation Department, Government of India. In view of this position, according to the learned Senior Counsel, the hoardings cannot be regulated by invoking Section 328 and 328A of the MMC Act and 2008 Policy would not govern the property of Union. He also invited our attention to the provisions o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... obligation or claim a privilege. 16. The AAI owes its existence to the Airports Authority of India Act, 1994. The preamble of the Act makes it clear that it is an Act to provide for the constitution of the Airports Authority of India and for the transfer and vesting of the undertakings of the International Airports Authority of India and the National Airports Authority in the Airport Authority of India so constituted for its better administration and cohesive management. Thus, the said Act aims to constitute a single unified Airports Authority of India to control and manage both the National and International Airports in the country. The said Act defines Airport in section 2 (b). Airport means a landing and taking off area for aircrafts, usually with runways and aircraft maintenance and passenger facilities and includes aerodrome as defined in clause (2) of section 2 of the Aircraft Act, 1934. (22 of 1934). 17. By virtue of Section 3 of the Act, 1994, the Airports Authority of India is a body corporate by the name Airports Authority of India , having perpetual succession and a common seal, with power, subject to the provisions of this Act, to acquire, hold and dispose of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f India under the provisions of International Airports Authority Act, 1971 can be called the properties of Union within the meaning under Article 285 of the Constitution of India, and therefore, exempt from all taxes imposed by the State or any other Authority within a State. To be more precise State Taxation. The Hon'ble Apex Court after considering the scheme of the enactment i.e. International Airports Authority Act, 1971, qua Article 285 of the Constitution of India, held that the Corporations being created under the Statute, distinct, juristic entity owing its own property can enter into a contract like any other Corporation and the Apex Court held that the properties held by the Authority can be categorized in the two categories, namely, those which were transferred to it under Section 12 of the Act, and those which are acquired by it subsequent to its creation under statute. The Court held that as far as second category of properties is concerned, they are undisputedly the properties of the Airport Authority and as far as properties of first category, the Hon'ble Apex Court held as follows:- 35. For all the above reasons, we are of the opinion that the Interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers is that for erection of hoardings permission of the AAI is sufficient and there is no requirement of seeking permission/approval of the local body under consideration. In order to appreciate the rival submissions advanced before us and to effectively deal with them two enactments in the form of State legislations need to be referred to and their scheme needs to be examined. 22. The Maharashtra Regional Planning Act, 1966 is an enactment for planning and development and use of land in the Regions established for that purpose and to make better provisions for the preparation of development plans with a view to ensure that town planning schemes are made and executed in a proper manner and for creation of new towns by means of development and to make provisions for compulsory acquisition of land required for public purposes in respect of plans. The enactment, which received assent of the President of India on the 13th December, 1966, came into force from 20th December, 1966. The said enactment provides for establishment of 'Regions' by the State Government by notification in the Official Gazette with the power to include and exclude, alter the limits of the 'Regions& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpose of the enactment the term Planning Authority , is defined in section 2 (19), means a local authority and includes :- (a) a Special Planning Authority constituted or appointed or deemed to have been appointed under section 40; (b) in respect of the slum rehabilitation area declared under section 3C of the Maharashtra Slum Areas (Improvement, Clearance and Redevelopment) Act, 1971, the Slum Rehabilitation Authority appointed under section 3A of the said Act. The Planning Authority, means a local authority and Local Authority is defined in section 2(15) of the said Act, which reads as follows :-- -- 2(15) local authority means - - (a) the Bombay Municipal Corporation constituted under the Bombay Municipal Corporation Act or the Nagpur Municipal Corporation constituted under the City of Nagpur Corporation Act, 1948, or any Municipal corporation constituted under the Bombay Provincial Municipal Corporation Act, 1949. - (b) a Council and a Nagar Panchayat constituted under the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965] - (c) (i) a Zilla Parishad constituted under the Maharashtra Zilla Parishads and P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to - (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibility conferred upon them including those in relation to the matters listed in the Twelfth Schedule. Article 243W has to be read conjointly with 12th Schedule of the Constitution and the Legislature enacted by a State, constituting such municipalities would be endowed with the duties of urban planning including the town planning of such municipalities. It would also provide for regulation of land use, roads, and bridges etc. The M.R.T.P. Act, 1966 contains provisions for planning through the Planning Authority and the Mumbai Municipal Corporation Act, is a Planning Authority for the purposes of Brihan Mumbai. Since the Planning Authority includes the Local Authority , t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advertisements. Section 328. Regulations as to sky-signs. (1) No person shall, without the written permission of the Commissioner erect, fix or retain any sky-sign, whether now existing or not, [where a sky-sign is a poster depicting any scene from a cinematographic film, stage play or other stage performance, such permission shall not be granted, unless prior scrutiny of such poster is made by the Commissioner and he is satisfied that the erection or fixing of such poster is not likely to offend against decency or morality. No permission under this section] shall be granted, or renewed, for any period exceeding two years from the date of each such permission or renewal:- [* * * * *] [Provided that] in any of the following cases a written permission or renewal by the Commissioner under this section shall become void, namely:-- (a) if any addition to the sky-sign be made except for the purpose of making it secure under the direction of the municipal [city engineer]; (b) if any change be made in the sky-sign, or any part thereof; (c) if the sky-sign or any part thereof fall either through accident, decay or any other cause; (d) if any addition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. (1) Whenever it is provided in this Act that a licence or a written permission may be given for any purpose, such licence or written permission shall specify the period for which, and the restrictions and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a municipal officer empowered under section 68 to grant the same. 26. After consideration of the scheme of the aforesaid enactments, discussed above, and in the backdrop of admitted facts that hoardings are erected on the land CTS No. 939, 940, 945, 946 situated at Juhu Airport. However, indisputably the said land is not a part of the Airport but is situated outside the Airport. The said land has been put to use for the purposes of parking. It is the AAI which has invited RFP and initiated the tender process for availing concessionaire rights for erection of hoardings. The said land, therefore, belongs to AAI and we are not able to accede to the contention of Dr. Sathe that the said land is owned by the Union of India. The AAI is statutory Corporation and is an independent entity capable of holding property in its own name and in the Scheme of the enactme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mize its ill effect. Such a restriction would regulate the right to erect such hoardings and since no one can claim that it is fundamental right to carry on the business and earn money by commercially exploiting a piece of land belonging to himself and the said right can be curtailed by imposing reasonable restrictions in the larger public interest. The Local Authority, therefore, can assume to itself further right to regulate such structures since the land on which it stands though belonging to a Airport Authority, vests in the Local Authority and it is competent for such an Authority to impose limitations in the larger interest of the public and specially when it happens to be a public street. 28. It is not in dispute that the land where the hoardings are erected, belongs to the AAI. However, it has no right to develop it as per its own pleasure under the guise of its commercial exploitation and if they are permitted to do so, it would result into haphazard development of the city. As such since it would be permissible for every Statutory Authority or public body within the City to claim such a right and carry out the development which is not in consonance with the development ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the grant of sanction to the same will not make the Market Committee a Planning Authority for all purposes. It is only for the works proposed to be constructed partly or wholly at the expenses of the Market Committee, that a limited authority is granted to the Agricultural Produce Market Committee to allow any construction to be made. Even if it is made within its area but by a private agency for it, it cannot go ahead and sanction and approve the plans itself. It cannot permit a developer and builder to develop a land within the area or jurisdiction of a Planning Authority by ignoring the Planning Statute itself. It would mean dispensing with the requirements stipulated by the planning law and allowing a private party to put up construction beyond permissible limits and set out in the planning legislation. It would mean the entire regime then is taken over by the Agricultural Produce Market Committee and merely because the construction is in the Market Area, or a Market Yard, but by a private agency, all the powers of a Planning Authority vest in the Agricultural Produce Market Committee necessarily. The Statute has not intended this to be the position and, therefore, has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pes, cable, telephone or other apparatus including the breaking open of any street or other land for that purpose; (v) for the excavation (including wells) made in the ordinary course of agricultural operation; (vi) for the construction of a road intended to give access to land solely for agricultural purposes; (vii) for normal use of land which has been used temporarily for other purposes; (viii) in case of land, normally used for one purpose and occasionally used for any other purpose, for the use of land for that other purpose on occasions; (ix) for use, for any purpose incidental to the use of a building for human habitation of any other building or land attached to such building. 31. The said section is of no assistance to the advertiser of the AAI and the privilege conferred on any Authority cannot be extended so as to demolish or render the planning of the city itself in doldrums. We are also not ready to accept the request of learned Advocate Dr. Sathe who have invited our attention to clause (iv) of proviso to Section 43 since carrying out of work by the Central or Local Authority, for which no permission is required is in regard to maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the State, save in so far as Parliament by law otherwise provides. The said argument is misconceived since the issue involved in the petition is not in relation to property of the Union and its revenue. However, on the said count, we have already noted that Article 285 has no application in the present case since it deals with the exemption of property of Union and we have already noted that the land on which the hoardings are sought to be erected is the property of AAI. The Entry 32, List I rather clarifies that as regards the property of Union situated in the State, subject to legislation by the State, save in so far as by otherwise provides parliament law. Thus, the law made by the Parliament in relation to property of the Union is made subject to legislation by the State except when the Parliament by law may otherwise provides. Thus, the property belonging to AAI will be subject to the local laws, since there is no indication to the contrary enacted in the Airports Authority of India Act, 1994. 32. Our attention was invited to a judgment delivered by this Court in relation to the property of railway and erection of hoardings on its property in a bunch of writ petitions de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd since under clause (d), it is also empowered to erect and construct such houses, warehouses, offices and other buildings, and such yards, stations, wharves, engines, machinery apparatus and other works and conveniences as the railway administration thinks proper; the hoardings which are erected by the railways on its land would not require the permission of the Corporation either under Section 328 or 328A of the MMC Act and consequently no license would be required under section 479. 34. The said judgment relied upon by the learned counsel for the advertisers is clearly distinguishable in view of the factum of existence of various provisions contained in the Railways Act, that the Corporation has no power to insist upon its permission for erection of such hoardings in respect of advertisements facing the street. This Court after analysing the entire scheme of the Railways Act, 1989 succeeding the Indian Railways Act, 1890 and by referring to the erstwhile Section 7 and the present Section 11 of the existing enactment, arrived at a conclusion that in view of the provisions contained in Section 11 which begins with non obstante clause and while constructing conflict between t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Corporation had power to issue licences or permissions for display of hoarding which is equally applicable to mobile hoarding vehicles. The Hon'ble High Court dealing with the power u/s. 328A of the Act made observation that the policy framed in exercise of powers conferred on the Corporation are guidelines framed by the Commissioner for exercising the discretion vested in it u/s. 328A of the Act. The Division Bench made an observation, on which the learned Counsel Dr. Milind Sathe placed heavy reliance to the effect that these guidelines cannot have any force of law per se and they are nothing but guidelines prepared for exercise of administrative power by the authorities concerned. The Division Bench issued the directions to regulate the parking of such mobile hoarding vehicles so that it would not obstruct free flow of traffic in any manner whatsoever. Direction was also issued to the State Government and the Corporation to frame appropriate regulations in exercise of their respective statutory powers and in consultation with appropriate bodies in relation to advertisement hoardings. The said judgment of this Hon'ble Court was tested by the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid policy highlights the growing tendency to scramble for hoardings and advertisement boards in every nook and corner of the city and arterial roads leading to undesirable consequences of the residents complaining of deprivation of light and ventilation, clandestine cutting of trees for better visibility of advertisements leading to environmental degradation, even touching the archaeological buildings and structures. The policy is also intended to prevent the haphazard erection of hoardings without consideration of the aesthetic aspect or the safety needs of the flowing traffic and pedestrians. Part II of the said policy prescribes the general norms for advertisement permission. It reads thus : No Agency, without the permission in writing from the Competent Authority, shall display any advertisement by means of hoarding, neon signs, wall paintings, balloons or display advertisements on business premises such as shops, show rooms, offices, petrol pumps, cinema theaters, malls etc. The norms guiding the grant of permission will be as detailed in this section. An agency displaying sky sign or advertisement unauthorizedly, without seeking permission of the Competent Authority a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l, historical or heritage importance as per DCR, Rule 48 (3). (h) No hoarding shall be permitted inside mangroves, creek or sea or within a distance of 200 meters of High Tide (HTL) as per DCR, Rule 59 (2). However, this restriction will not apply to hoardings on terraces of existing authorized structures on the landward side of existing road. (i) In case of illuminated/Neon-sign hoardings, following restrictions should be observed. (i) The level of luminance should not be exceed a source limit of 1 cd/cm square. Illumination shall not be continued after 11.00 p.m. (ii) The neon-signs in residential premises should not be flickering. No neon sign hoardings shall be permitted in Residential Zone/Localities. (iii) Neon-signs should be put off before 10.00 p.m. (iv) No video or moving digital advertisements will be allowed. LED displays etc. should be still only. Changing of images after minimum 10 seconds will only be permissible. (j) So far as the issue of more than one hoarding on a single plot is concerned, not more than one hoarding per 400 sq.mtrs. of plot area will be permitted on private properties or layouts. For having another hoarding, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Coastal Zone Management Plan (hereinafter referred to as CZMP ) identifying and classifying the CRZ areas in accordance with the guidelines given in the CRZ Notification and as per paragraph 3 (ii) of the CRZ Notification, 1991 all development activities within the CRZ area have to be regulated within the framework of such approved plan which includes development or construction activities in different categories. The hoarding sites on the land bearing CTS No. 940 and 958/1 and 958/2, according to the CRZ are situated in CRZ II as per Coastal Zone Management Plan of Greater Mumbai. The erection of hoardings is development activity on land which involves the construction by means of M.S. Angles and girders, excavation and constructing the foundation work for laying foundation for the hoardings. In such circumstances, since the said piece and parcel of land falls in CRZ area any activity or process of development/construction attracts the provision of CRZ Notification 2011 and any development taking place without seeking permission from the Competent Authority must face the consequences. 40. The Public Interest Litigation has highlighted before us the issue of safety of those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities on the ground that the hoardings are erected on the land belonging to AAI, and we have already discussed in detail as to why we say so. 42. We have dealt with the issue by considering rival contentions of the parties though the AAI did not take definite stand before us in writing by filing affidavit and orally argued and indicated that they would be bound by the provisions of law. Since we have now arrived at conclusion by interpreting the provisions of the AAI Act and the local laws that the hoardings to be erected by the AAI on concessionaire agreement with M/s. Guju Ads ought to have obtained the permission of MCZMA and the MCGM. The duty to obtain necessary permission, in the light of the conferment of advertising rights concession of developing and operating the advertisement board in the estate at Juhu Airport has been placed on the advertiser and the advertiser has failed to obtain such necessary permissions. Resultantly, the said hoardings erected by M/s. Guju Ads are unauthorized and are liable to be removed forthwith. The AAI is directed to ensure that the hoardings including structures which have been erected on CTS No. 940 and 958 by M/s. Guju Ads, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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