Shyam Mallik v. South Delhi Municipal Corporation (Sdmc)

ORDER %

06.07.2015 W.P.rCl No.6233/2015 j

¶1On 3 July, 2015 when all these matters came up first before the Court, the following order was passed: "3. On first call, though passover was sought on behalf of the respondents but it was enquired fi'om the counsel for the petitioners whetherthese petitionsarethe same as W.P.(C)No.6105/2015and other connected petitions in which judgment has been reserved on T' Jply, 2015.

¶4The counsel for-the petitioners states that these matters are different and are with respect to advertisementsin public places as distinct from the advertisementsinstalledon private propertiesthough visiblefrom the street.With referenceto W.P.(C)No.6233/2015, it was argued that the same concernsflag signs. Attentionwas invitedto page 59 thereof,beingthe NOC and it is statedthat the petitionerhas paid up-to-date licence fee. A perusal of the NOC shows that the same is with respectto flag signsatMCD authorizedparkinglotatB.K.Dutta W.P.fC)No.6233/2015,W.P.(C)No.6257/2015,W.P.(C)No.6264/2015&W.P.(C)No.6276/2015 Page2ofl0 Market, Rajouri Garden, New Delhi (West Zone). The counsel for the petitionerhas next invitedattentionto the photographsat pages 60 to 62 to contend that the flag signs indeed are in the parking and not on the road, on which ground the NOC has now been withdrawn by the respondent SDMC.

¶5From a perusalofthe photographsit appearsthatthe flag signsare onthe portionofthe road demarcatedforparking.

¶6The matterson passovercouldnot reach.Liston 6"^ July,2015." Today,on requestofcounsels,thepetitionsare takenup separately.

¶3As far as W.P.(C) No.6233/2015is concerned,the counsel for the respondentSouth Delhi MunicipalCorporation(SDMC) has handed over photocopyof 11 photographsbut ofwhichviolationby installationofflag-sign on the footpathis shownonly in one. Howeveron enquirywhetherthe parking area with respectto which the NOC to display 10 flag-signshas been given is between the footpath and the road, the counsel for the respondentSDMC states that though the Superintendentof the SDMC is presentin Court but the concernedAdvertisingInspectorwho would be in the know is notpresent.

¶4It is howeverthe admittedpositionthat in this case no hearingbefore withdrawalofthe NOC has beengivento the petitioner.

¶5I The counselfor thepetitionerhas invitedattentionto the orderdated W.P.(C)NO.6233/20IS.fV.P.(C)No. 6257/2015,W.P.(C)No.6264/2015&WiP.fC)No.6276/20I5 Page3of10 th May, 2015 of the Division Bench in LPA No.384/2015 titled M/s OutdoorAssociates Vs. South Delhi Municipal Corporation by which SDMC was directed to inform the advertisers of deficiency in the advertisementswithinone day andthe advertiserwas giventwo daystimeto removethe deficienciesand it was directedthatifthe deficiencyis removed withintwo days, theNOC shallcontinuefor its duration.

¶6Accordingly,W.P.(C)No.6233/2015is disposedof with adirection thatajointinspectionbe carriedout ofthe flag-signswithrespectto which NOC was givento the petitioner,withinaperiodofone week oftodayand the deficienciesif any found be communicatedin writingto the petitioner within the said time and if the petitionerdoes not remove the deficiency withinaperiodoftwo days ofthe givingofsuch communication,to passa fresh reasonedorder ofwithdrawalofNOC. Needlessto state that in the lightofthe above,theimpugnedorderdated 17*^June,2015 standssetaside.

¶7It is arguedthat the Joint inspectionwill be carriedout on 8'^ July, 2015 at 1400 hours. W.P.ICl No.6257/2ni.S

¶8Thispetitionhas beenfiledimpugningthe orderdated8"^June,2015 W.P.(QNo.6233/201S,W.P.(C)No.6257/2015,W.P.(C)No.6264/2015&W.P.(QNo.6276/2015 Page4ofl0 of the respondent SDMC cancelling the contract with the petitioner with respect to Unipole SZ-66, Open Land opposite City Walk Mall, Khirki Village on the ground of the petitioner being in arrears of licence fee to the tune of Rs.33,54,982/-.

¶9On enquiry, the counsel for the petitioner admits that there are arrears under the said contract but contends that the petitioner has applied for adjustmentof the amountadmittedlydue under the said contractas against the refund due to the petitionerunder the order dated 13^ April, 2015 in W.P.(C) No.3503/2015titled Shyam Mallik Vs. South Delhi Municipal Corporationand whichorderwas in terms ofthejudgmentdated 18""April, 2015 of this bench in W.P.(C) No.4436/2010 titled Sports & Leisure Apparel Ltd. Vs. MCD.

¶10The counselfor the respondentSDMC controvertsthat the petitioner is entitledto so adjustthe licencefee due withrespectto the saidsite,which was a tender site.

¶11The counselfor the petitionerat this stagedoes notpressthis petition and only seeks time of two weeks for clearingthe arrears. He however, thoughis not able to statethe amountdue accordingto the petitioner,states that the accounts need to be reconciled. fV.P.(C)No.6233/2015,W.P.(C)No. 62S7/20I5,W.P.(C)No.6264/2015&W.P.(C)No.6276/2015 Page5of10

¶12W.P.(C) No.6257/2015 is disposed of with an undertaking of the petitioner through advocate to pay 50% of the amount claimed of Rs.33,54,982/-to the respondentSDMC on orbefore 13^ July, 2015 and to within the said time approach the officials of the SDMC for re-conciliation ifany requiredofthe accountsand to on or before20^ July, 2015 pay either balance50% of Rs.33,54,982/-or any other lesseramount if found due on reconciliation.

¶13If the petitionercomplieswith each of his undertaking,the Unipole shall not be interferedwith by the SDMC. Howeverif the petitioneris in breachofany ofthe partsofthe undertaking,the respondentshallbe entitled to take appropriateactionwith respectto Unipole. The petitionerhas been made aware of the consequencesof breach of undertakinggiven to the Court. W.P.rCl No.6264/2015

¶14This petitionhas been filed seekingthe reliefofquashingofthe show cause notices dated 5"* June, 2015 and 9^^ June, 2015 issued by the respondent No.2 North Delhi Municipal Corporation (NrDMC) and the show causenoticesdated 9^*^ June, 2015 issuedby the respondentNo.l East DelhiMunicipalCorporation(EDMC)to the petitionerwithrespectto the W.P.(C)No.6233/20I5,W.P.(C)No.6257/2015,W.P.(C)No.6264/2015&W.P.(C)No.6276/2015 PageOoflO Vc; / p various advertising sites with respect to which NOCs were issued to the petitioner. The petitionalternativelyseeks a directionto therespondentsnot totake any coerciveactionagainstthe petitionerbeforepassingofany order in pursuance to the said show cause notices.

¶15The counsel for the respondent No.2 NrDMC informs that the show cause notices issued to the petitionerwere with respect to 13 Wall Wrap sites and on account of blatant violations of the terms on which the NOC was giveni.e. ofmakingadvertisinginstallationslargerthan for whichNOC was issuedand also puttingup hoardingsover the rooftopand which is not permissibleunderthe OutdoorAdvertisingPolicy.

¶16The counselfor therespondentNo.1EDMC statesthatthenoticesare withrespectto six sites and otherwisethe reasonfor issuingthe show cause was the same.

¶17The counselfor the respondentNo.2 NrDMCfurtherstatesthataction for removalofoffendingadvertisementhas alreadybeentakenwithrespect to nine out ofthe 13 sites with respectto which notices were issued. On enquiry,as to how the removalactioncouldbe takenbeforepassingany W.P.(C)No.6233/2015,W.P.(C)No.6257/2015,W.P.(C)No.6264/20I5&W.P.(C)No.6276/2015 Page7of10 . J order in pursuance to show cause notices, the counsel states that show cause notices are for cancellation / withdrawal of the NOC and the action of removal was in accordance with the direction contained in the order dated 6^*^ May, 2015 ofthe DivisionBenchofthis Courtin W.P.(C)No.3367/2015 tiledColonelShivrajKumar Vs. SouthDelhiMunicipalCorporation.

¶18The counsel for respondent No.l iEDMC, on instruction states that joint inspectionof some of the six sites has already taken place and the orders in pursuance to show cause notices shall be served.

¶19The counsel for the petitioner however invites attention to the order dated29"^ May, 2015 ofthe sameDivisionBenchin LPA No.384/2015tiled M/s OutdoorAssociatesVs. SouthDelhiMunicipalCorporationby which a modality for joint inspection and opportunity for removal of the deficienciesfound, beforetaking action in accordancewith the order dated th 6 May, 2015 (supra) was devised.

¶20The counsel for petitionercontrovertsthat NrDMC has taken action withrespectto nine sites,thoughadmitsthat actionwith respectto someof the siteshas takenplacebut is unableto statewithrespectto how many. He also givesup the firstreliefclaimedin the petition,ofchallengeto the show cause notice. W.P.(C)No.6233/201S,W.P.(C)No.6257/2015,W.P.(C)No.6264/2015&W.P.(C)No.6276/2015 PageSoflO

¶21As far as the legality of the action if any already taken by the NrDMC, it is open to the petitionerto claim the appropriatereliefwith respecttheretoin the appropriateproceedingsand no directionwith respect theretois to be issuedherein. Thispetitionis accordinglydisposedofwitha directionto NrDMC as well as EDMC to, with respect to the sites with respectto whichremovalactionhas not beentakentill now, withinaperiod of 10 days from today, conductjointinspectionand iffind any deficiency therein,give opportunityto petitionerto removethe same and to pass orders in pursuanceto show cause notices issued. Ifhoweversuch an inspection has alreadybeen carriedout and opportunityto rectifybeen given,then the process need not be repeated. Unless the orders are in favour of the petitionerand / or the respondentsagree with the petitionerremovingthe deficiency,further action for removal of the advertisementsshall be taken onlyafteraperiodof10 days fi-omtoday.

¶22The petitionerto visit the office of the respondentNo.l EDMC at 1100 hours on 8''' July, 2015 and officeofthe respondentNrDMC at 1400 hours on 9^^ July,2015 in thisregard. The petitionis disposedof. W.P.(C)No.6233/2015,fV.P.(C)No. 6257/2015,fV.P.(C)No.6264/2015&tV.P.fC)No.6276/2015 Page9of10 r ri, /3 W.P.ra No.6276/2015

¶23The counsels state that the position in this petition is the same as in W.P.(C) No.6105/2015 titled M/s Pareena Estate Vs. South Delhi Municipal Corporation and other connected petitions in which orders have beenreservedon 1®^ July, 2015.

¶24Arguments heard.

¶25Judgment reserved, to be pronounced along with judgment in W.P.(C) No.6105/2015 and other connected petitions. Dasti under signature of the Court Master. RAJIV SAHAIENDLAW, J JULY 06, 2015 'gsr' W.P.(C)No.6233/2015,WiP.(C)No. 6257/2015\w.P.(C)No.6264/2015&W.P.(C)No.6276/2015 Page10of10

I, $-20 to 23 * IN THE HIGH COURT OF DELHI AT NEW DELHI 20+ W.P.(C) No.6233/2015, CM No.l1350/2015 (for stay) & CM No.l1351/2015(fordirection). SUNILKUMARKHULLAR Petitioner Through: Mr. AnandMishra,Adv. versus SOUTHDELHIMUNICIPALCORPORATION Respondent Through: Mr. MukeshGupta,Adv. for SDMC. AND 21+ W.P.(C)No. 6257/2015&CM No.l1381/2015(forstay). MR.SHYAMMALLIK petitioner Through: Mr. AnandMishra,Adv. versus SOUTH DELHI MUNICIPAL CORPORATION(SDMC) Respondent Through: Ms. MansiGupta,Adv. for SDMC AND 22+ W.P.(C)No.6264/2015&CM No.l1388/2015(forstay). M/S PIONEERPUBLICITYCORPORATION Through: Mr. AnandMishra,Adv. versus EASTDELHIMUNICIPALCORPORATION &ANR Respondents Through: Mr. ArvindSharma,Addl. Standing Counsel for R-l/EDMC. Ms. MiniPushkama& Ms. Yoothica Pallavi,Advs. for R-2/NrDMC. AND W.P.(C)No.6233/20,5.W.P.(QNo.6257/2015,W.P.(C)No.6264/2015&W.P.(QNo.6276/20,5 Page,of10 23+ W.P.(C) No.6276/2015, CM No.l1407/2015 (for stay) and CM No.11408/2015 (for direction). M/S CONSECIENT INFRASTRUCTURE Petitioner Through: Mr. Anand Mishra, Adv. versus SOUTH DELHI MUNICIPAL CORPORATION Respondent Through: Ms. Mansi Gupta, Adv. for SDMC. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAIENDLAW