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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO.3519 OF 2023

1. M/s Sine Fine Advertising Pvt. Ltd.

A private Limited Company having its
office at Room No.74, 4th Floor,
Laxmi Insurance Building, Sir P. M. Road,
Fort, Mumbai 400 001

2. Devdas Kashinath Bandekar

Age 84 years, Indian Inhabitant of Mumbai
Being one of the Director of Petitioner No.1
hereinabove, having his office address at
Room No.74, 4th Floor, Laxmi Insurance Building
Sir P. M. Road, Fort, Mumbai 400001 … Petitioners

vs.

1. The Municipal Corporation of Brihan Mumbai

incorporated under the Mumbai Municipal
Corporation Act, 1888 having its office at
Mumbai Municipal Head Office building,
Mahapalika Marg, Mumbai 400 001

2. The Deputy Municipal Commissioner (Special)

having his Office at 3rd Floor, Municipal Head Office,
Mahapalika Marg, Mumbai 400 001 … Respondents

Dr Abhinav Chandrachud, Advocate with Mr Uttam Rane, Advocate for petitioners.

Ms Vaishali Mahadik, Advocate for respondents.

CORAM : A. S. CHANDURKAR AND M. W. CHANDWANI, JJ.

DATE : February 21, 2023

Judgment : (Per : A. S. Chandurkar, J.)

Rule. Rule made returnable forthwith and heard the learned counsel

for the parties.

The challenge raised in this writ petition is to the show cause notice
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dated 11/01/2023 issued by respondent No.2-Deputy Municipal

Commissioner of the respondent No.1-Municipal Corporation of Brihan

Mumbai principally on the ground that the said show-cause notice has been

issued in a premeditated manner as it conveys the decision already taken

by the respondent No.2-Deputy Municipal Commissioner without leaving

anything for the petitioner No.1-Company to show cause.

2. The facts that are not in dispute are that initially on 24/06/1981 the

Municipal Corporation granted no-objection to the display of two hoardings

to M/s We Two Advertisers. The Company claims to have purchased the

rights in that regard and on payment of monthly license fee to the Municipal

Corporation, it has been operating the said hoardings since then. By virtue of

having paid the hoarding fees till 31/03/2023, the company is entitled to

have the said hoardings in place at least till that date. On 11/01/2023, the

respondent No.2 issued a show-cause notice to the Company in which it was

stated that on 14/11/2022 a letter was received from the Maharashtra Rail

Infrastructure Development Corporation Ltd.-MRIDCL requesting the

Municipal Corporation to remove the hoardings since their existence was

infringing the proposed Railway Over Bridge (ROB) alignment and the work

of MRIDCL was being hampered. It was further stated that since the project

was in larger public interest, the renewal application for advertisement

permit of the Company would have to be revoked and obstruction of the said

structure would have to be removed immediately. It was further stated that

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without prejudice to the same, the Company would be directed to remove the

hoardings within thirty days. On failure to do so, the Company was required

to show sufficient cause as to why the hoarding permit should not be

revoked/cancelled. The Company on 30/01/2023 replied to the aforesaid

notice stating therein that it had already entered into contract with its clients

for a period of three years for which yearly advance had been taken. It was

further stated that there was no fair opportunity given to the Company to

submit its objection to the notice in question. It was stated that the show-

cause notice be therefore withdrawn. It is in this backdrop that the Company

has filed this writ petition under Article 226 of the Constitution of India

raising a challenge to the said show-cause notice dated 11/01/2023.

3. Dr Abhinav Chandrachud, learned counsel appearing for the

petitioners submitted that on a bare perusal of the show-cause notice it was

evident that the Municipal Corporation had merely made a show of issuing

such show-cause notice since it had already decided to revoke the hoarding

permit by stating so in the show-cause notice itself. By indicating the course

of action that was decided to be taken, it was clear that the impugned show

cause notice was merely to show that an opportunity was granted

notwithstanding the fact that an adverse decision had already been taken by

the Municipal Corporation. What remained to be given was merely a post-

decisional hearing to the petitioners. Though titled as a show-cause notice,

the impugned notice was in fact an order rejecting the hoarding permit.
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Placing reliance on the decision in H. L. Trehan and ors. vs. Union of India

and ors. (1989) 1 SCC 764, it was submitted that no fruitful purpose would

be served by the Municipal Corporation of now granting an opportunity of

hearing to the Company having decided to revoke the hoarding permit.

The hearing if granted, would only be with a view to indicate compliance

with the principles of natural justice. It was then submitted that the

Municipal Corporation failed to indicate any urgency whatsoever as a reason

for failure to grant an opportunity of hearing. While pre-decisional hearing

could be dispensed with if any immediate action was necessary, the material

on record did not indicate that any such immediate action was warranted.

The communication dated 14/11/2022 referred to in the show-cause notice

was also not supplied to the petitioners. No case therefore was made out by

the Municipal Corporation to dispense with grant of such pre-decisional

hearing. In that regard reliance was placed by the learned counsel on the

decision of the Division Bench in Writ Petition (L) No.1102/2013 (S.R. Sale

and Co. vs. Union of India and ors.) dated 09/05/2013. It was thus

submitted that the show-cause notice was liable to be set aside and the

Company was entitled to operate the hoarding permit till the date the license

fees have been paid which was 31/03/2023.

4. Ms Vaishali Mahadik, learned counsel for the Municipal Corporation

opposed aforesaid submissions. At the outset she submitted that the

respondent No.1 issued a show-cause notice to the Company and the

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Company having replied to the same, there was no reason whatsoever for

this Court to entertain the writ petition in which challenge was raised only to

the show-cause notice. A final decision on the said show-cause notice was

yet to be taken and without waiting for such final decision, a challenge was

raised to the said notice. In case any adverse orders were passed by the

Municipal Corporation, the remedy of appeal was available to the Company.

Without prejudice to the aforesaid it was submitted that in view of the

communication dated 14/11/2022 issued by MRIDCL, the Municipal

Corporation had proceeded to issue the show-cause notice to the Company.

It was proposed to revoke the hoarding permit since the same was causing

obstruction in the construction of the ROB. Time of thirty days was given to

the Company to remove the said hoardings and the show-cause notice ought

to be viewed in that context. It could not be said that even prior to issuance

of a show-cause notice, the Municipal Corporation had taken a decision to

revoke hoarding permit. In any case the Municipal Corporation was entitled

to rely upon the terms and conditions on which the hoarding permit was

issued and one such condition was revocation of the hoarding permit without

assigning any reason and without any previous notice. It was thus submitted

that there was no case made out to invoke writ jurisdiction especially since

what was under challenge was merely a show-cause notice.

5. We have heard the learned counsel for the parties and we have

perused the documents placed on record. It is true that challenge has been
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raised in the writ petition to the issuance of the show-cause notice dated

11/01/2023. This Court under Article 226 of the Constitution of India would

be slow in entertaining a challenge raised to a show-cause notice as it is

always open for the noticee to respond to such show-cause notice and put

forth its case before the Authority that has issued such show-cause notice. In

other words, unless any adverse decision is taken by the Authority issuing

the show-cause notice, a challenge to a show cause notice would be

premature. However, a limited scope that is available for the Court to

entertain such challenge under Article 226 of the Constitution of India is if

the challenge is raised to a show-cause notice on the ground that while

issuing the same, the said Authority has already made up its mind as regards

the decision to be taken and the show-cause notice has been issued merely to

indicate an attempt being made to comply with principles of natural justice.

In this regard we are guided by the observations in paragraphs 9 and 10 of

the decision in Siemens Ltd. vs. State of Maharashtra and ors. (2006) 12

SCC 33 which read as under :

“ 9. Although ordinarily a writ court may not exercise its discretionary

jurisdiction in entertaining a writ petition questions a notice to show
cause unless the same inter alia appears to have been without
jurisdiction as has been held by this Court in some decisions including
State of U.P. v. Brahm Datt Sharma (1087) 2 SCC 179, Special
Director v. Mohd. Ghulam Ghouse (2004) 3 SCC 440 and Union of
India v. Kunisetty Satyanarayana (2006) 12 SCC 28, but the question
herein has to be considered from a different angle viz. when a notice is
issued with premeditation, a writ petition would be maintainable. In
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such an event, even if the court directs the statutory authority to hear
the matter afresh, ordinarily such hearing would not yield any fruitful
purpose. (See K. I. Shephard v. Union of India (1987) 4 SCC 431). It
is evident in the instant case that the respondent has clearly made up
its mind. It explicitly said so both in the counter-affidavit as also in its
purported show-cause notice.

10. The said principle has been followed by this Court in V. C. Banaras
Hindu University vs. Shrikant (2006) 11 SCC 42 stating in paragraphs
48 and 49 as under :
48. The Vice-Chancellor appears to have made up his mind to
impose the punishment of dismissal on the respondent herein.
A post-decisional hearing given by the High Court was illusory
in this case.
49. In K. I. Shephard vs Union of India this Court held in
paragraph 16 as under :
It is common experience that once a decision has been
taken, there is a tendency to uphold it and a representation may
not really yield any fruitful purpose. (See also Shekhar Ghosh v.
Union of India (2007) 1 SCC 331 and Rajesh Kumar v. D.C.I.T.
(2007) 2 SCC 181 .”

6. On perusal of the aforesaid paragraphs it becomes clear that if from

the show-cause notice it is evident that the Authority issuing the same has

already indicated its mind and has formed an opinion of the action proposed

to be taken, there would hardly be any scope for the noticee to offer an

explanation. Grant of any opportunity of hearing thereafter could be shown

to be an empty formality. It is in the aforesaid legal premise that a challenge

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to a show-cause notice could be entertained. It would therefore be necessary

to consider whether the impugned show-cause notice dated 11/01/2023 falls

foul of the law laid down in the aforesaid decision.

7. Since it is urged that the Municipal Corporation in the show-cause

notice dated 11/01/2023 had already taken a decision to revoke the renewal

application as well as for removal of the structure in question, it would be

necessary to refer to the show-cause notice that reads as under :

“ M/s Sine Fine Advertising Pvt. Ltd. Initially was granted

2 advertisement Hoardings 20’ X 20’ situated on the Ground/Top
of Mhasoba Temple, B.J. Road, Byculla (W), Mumbai 400008 at
the aforesaid location vide Permit No.76111190 and 761111569.
MRIDC vide it’s letter No.MRIDC/PROJ/FO/MCGM/2021-
212/1844 dt.14/11/2022 has requested this office to remove the
subject hoardings as existence of this advertisement hoarding
near to LP6 foundation location adjacent to Mhasoba temple is
infringing with the proposed ROB alignment and the work of
MRIDC will be hampered due to existence of said hoardings.
It is pertinent to mention here that M/s Sine Fine
Advertising Pvt. Ltd. Granted permission of subject hoardings
from size 20” X 20” (Back to Back) subject to following condition
which has been issued with permit copy:- “That the Municipal
Commissioner in his discretion may at anytime without previous
notice revoke or withdraw this permission without assigning any
reason and that the revocation and withdrawal of this
permission for any reason shall not prejudice or affect any claim
or demand whatsoever of the Municipal Commissioner
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hereunder or otherwise not shall the permit holder in the event

of revocation and withdrawal of his permission be entitle to any
payment whatsoever made hereunder.”
As the project is in large public interest your renewal
application of Advertisement Permit No.76111590 and
76111569 (Back to Back) of M/s Sine Fine Advertising Pvt. Ltd.
should have to be revoked and the obstruction of this structure
should have to be removed immediately.
Without prejudice in view of above you are directed to
remove the subject hoarding within 30 days. If you fail to
remove the same you have to show sufficient cause as why the
hoardings bearing permit No.761111590 & 761111569 of size
20’ X 20’ (Back to Back) situated on the Ground/Top of Mhasoba
Temple, B. J. Road, Byculla (W), Mumbai-400008 should not be
revoked/cancelled if you fail to remove the structure within
period of 30 days as mentioned herein above the permit issued
under no.761111590 and 761111569 shall stand revoked and
cancelled and the hoardings along with complete structure shall
be removed by BMC entirely at your risk, cost and consequences,
which please note. (emphasis supplied)

On a plain reading of the show-cause notice it can be seen that the

Deputy Municipal Commissioner has referred to the communication dated

14/11/2022 issued by MRIDCL which contain a request to remove the

subject hoardings since they were infringing the proposed ROB alignment

and thus hamper the work of MRIDCL. It then referred to a condition in the

communication by which permission was granted to operate the hoardings to

the effect that permission could be withdrawn without assigning any reason
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and at any time. However, thereafter it has been stated that the petitioners’

renewal application would have to be revoked and obstruction of the

hoardings would have to be removed immediately. It is further stated that

without prejudice to the aforesaid, the petitioners were to remove the

hoardings within thirty days and on failure to remove the same, the

petitioners were required to show sufficient cause why the permit should not

be revoked/cancelled.

8. The learned counsel for the Municipal Corporation tendered the

relevant file leading to the issuing of the show-cause notice. On perusal of

the said file, it can be seen that the Company had been issued hoarding

renewal receipt that is valid up to 31/03/2023. The License Department has

renewed the license till 31/03/2023. On 14/11/2022 the MRIDCL has

informed the Municipal Corporation that the construction work of the

proposed ROB was in progress and that the existence of the hoardings in

question was infringing the proposed bridge alignment. The Municipal

Corporation was informed of the aforesaid and necessary action for removal

of the hoarding was expected. After issuance of the impugned show-cause

notice, the Municipal Corporation has received another communication dated

09/02/2023 from MRIDCL in which it has been stated that the work of

foundation and substructure of the proposed ROB would start from

01/03/2023 and it would be completed by 31/05/2023. After completion of

substructure work, the work of superstructure would be started from

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01/06/2023. It is then stated that since the hoardings were infringing with

the superstructure of the proposed ROB, the same be removed before

31/05/2023 for smooth progress of the work.

The communication dated 09/02/2023 thus makes it clear that

MRIDCL required removal of the hoardings before 31/05/2023 since the

work of the superstructure was to be started from 01/06/2023 and that the

hoardings were infringing the superstructure of the proposed ROB.

9. In S.R. Sale and Co. (supra) it has been held by the Division Bench

that one of the reasons for dispensing with grant of an opportunity of pre-

decisional hearing is when immediate action is required to be taken and

grant of hearing would defeat the requirement of public interest in the

matter. However where immediate action is not required, a prohibitory order

can await compliance with the requirements of natural justice. Ordinarily, a

pre-decisional hearing must be the rule while its dispensation ought to be an

exception. Examining the matter in this context, it can be immediately

gathered that even according to the MRIDCL it requires the removal of the

hoardings in question by 31/05/2023 since the work of the superstructure

that was being infringed by the hoardings was to start from 01/06/2023. In

other words, there was no need of any immediate action of removal of the

subject hoardings so as to dispense with pre-decisional hearing in the matter.

It is to be noted that despite the initial communication dated 14/11/2022

issued by MRIDCL in the matter, the Municipal Corporation waited till

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11/01/2023 which is a period of almost two months when the show-cause

notice was issued and the decision to revoke the permit as well as removal of

the hoardings was indicated therein. The latter communication dated

09/02/2023 clarified that the work of the superstructure was to start from

01/06/2023 and hence removal of the hoardings was sought by 31/05/2023.

In these facts we are satisfied that the Municipal Corporation ought to have

firstly issued a show-cause notice merely calling upon the petitioner to show

cause why the renewal application of its permit for the year 2023-2024 ought

not be refused instead of indicating revocation of the permit and directing

removal of the hoardings in the show-cause notice itself. Since the show-

cause notice has been issued in the light of the communication dated

14/11/2022 and MRIDCL itself as clarified on 09/02/2023 that the

obstruction ought to be removed by 31/05/2023, there is hardly any

justification on the part of the Municipal Corporation in issuing the

premeditated show-cause notice.

10. For aforesaid reasons we are satisfied that a case for interference in

exercise of writ jurisdiction under Article 226 of the Constitution of India is

made out. In that view of the matter, the following order would serve the

ends of justice :

(a) The following words “your renewal application of Advertisement

Permit No.76111590 and 76111569 (Back to Back) of M/s Sine

Fine Advertising Pvt. Ltd. should have to be revoked and the

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obstruction of this structure should have to be removed

immediately.

Without prejudice in view of above you are directed to

remove the subject hoarding within 30 days. If you fail to

remove the same ” and “ if you fail to remove the structure

within period of 30 days as mentioned herein above the permit

issued under no.761111590 and 761111569 shall stand revoked

and cancelled and the hoardings along with complete structure

shall be removed by BMC entirely at your risk, cost and

consequences, which please note ” in the show-cause notice

dated 11/01/2023 shall stand removed. The show-cause notice

shall operate after deletion of the aforesaid lines.

(b) The Deputy Municipal Commissioner (Special) shall consider the

petitioners’ reply to the show cause notice dated 30/01/2023

and after granting an opportunity of hearing to the authorised

representative of the Company take a decision on the show-cause

notice within a period of ten days thereafter.

(c) To enable consideration or the petitioners’ reply and with a view

to grant an opportunity of hearing, the authorised representative

of the petitioners shall appear before the Deputy Municipal

Commissioner (Special) on 28/02/2023.

(d) The decision taken be communicated to the petitioners. Until

such decision is taken by the Deputy Municipal Commissioner,

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the action proposed in the show-cause notice dated 11/01/2023

shall not be taken.

(e) It is clarified that the observations made in the judgment are

only for considering the legality of the challenge to the show-

cause notice and the Deputy Municipal Commissioner (Special)

is free to take the decision in accordance with law.

Rule is made absolute in aforesaid terms with no order as to

costs.

Digitally signed (M. W. CHANDWANI, J.) (A. S. CHANDURKAR, J.)

AARTI by AARTI G
PALKAR
G Date:
PALKAR 2023.02.24
16:55:19 +0530

Asmita