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2021 DIGILAW 896 (GUJ)

CHITRA PUBLICITY COMPANY OOH GUJARAT THROGH PROPRIETOR ATUL KANTILAL MEHTA v. SURAT MUNICIPAL CORPORATION

2021-10-04

ASHUTOSH J.SHASTRI

body2021
ORDER : 1. By way of this group of petitions arising out of a similar controversy the petitioners under Article 226 of the Constitution of India have challenged the action of respondent authority in respect of recovering any amount towards the license fees for hoardings in private properties in Surat City for the period commencing from 22.03.2020 i.e the date of lockdown till normalcy is restored or at least for a period of six months from the said date i.e. 22.03.2020 and from demolishing the hoardings of the petitioners and taking any coercive action. 2. Since this group of petitions has raised identical issue it appears that these petitions have been clubbed together for its consideration and as such, a request is made by the learned advocates appearing on behalf of both the sides to dispose of by a common order. As a result of this, for the sake of convenience out of this group Special Civil Application No.7436 of 2021 is treated as a lead matter and facts are taken from the said petition. 3. The background of facts of this lead petition are that the petitioner is a proprietary concern, carrying on the business of advertising and in respect of such business for exhibiting advertisements in private properties the hoardings are being placed. In respect of such hoardings and the exhibition of advertisement, the respondent No.1 i.e. the Surat Municipal Corporation has started taking license fees and the same is being charged under Sections 386(2) of the Gujarat Provincial Municipal Corporations Act, 1949. 3.1 It is the case of the petitioner that pursuant to declaration of nation-wide lockdown initially for three weeks from 23.03.2020, the directions have been issued to take appropriate measures in the line of provisions of Disaster Management Act and the Epidemic Diseases Act, 1897 and because of this prevailing Pandemic COVID-19 situation, the said lockdown has resulted in restriction of movement of peoples. Not only the movement was barred totally but even offices were also to be closed including the petitioner's staff was also stopped from coming and practically the business of the petitioner was made to a standstill and this has happened with almost all persons across the country. Not only the movement was barred totally but even offices were also to be closed including the petitioner's staff was also stopped from coming and practically the business of the petitioner was made to a standstill and this has happened with almost all persons across the country. It is submitted that on account of this lockdown effect, the petitioner was also stopped receiving orders for placing advertisements and in the meantime before the imposition of lockdown, the Government of Gujarat was also requested by the petitioner and other similarly situated advertisers to display advertisements regarding COVID-19 on some of their hoardings placed in private properties which the petitioner willingly did. The respondent also did not supervise or regulate the hoardings in private properties during the entire period of lockdown. 3.2 It is the case of the petitioner that on account of this situation which is prevailing, the petitioner made a request to the respondent authority to grant some relief in the matter of payment of license fees for hoardings in private properties. The last in line, a representation dated 18.02.2021 and through the Advertisements Association also a request was made but the State Government on 28.04.2021 inter alia praying for relief and waiver of payment of license fees for the said period. On account of this situation which has abruptly occurred in the interregnum on 04.06.2020, the Chief Minister of the State of Gujarat also came out with an Atmanirbhar relief package granting relief to various industries / sectors / enterprises / public and the said relief package envisaged the relief in payment of property tax, staggered payment of electricity dues and various other reliefs to certain sectors / enterprises / persons. On account of this situation of crisis practically 90% sites of hoardings lying vacant of the petitioner. The petitioner despite aforesaid bona fides paid the license fees for a period of three months but then somehow it has found to be practically impossible to cope-up with such financial burden and after imposition of lockdown the petitioner started getting messages of cancellations of existing display of advertisement on their hoardings which has resulted in heavy revenue loss to the petitioner since the entire business of outdoor advertising has substantially reduced and serious financial crunch was being faced by the petitioner. As a result of this, the petitioner including several such affected persons have approached this Court by way of a petitions to pray for waiver or relaxation in respect of payment of license fees for hoardings which are placed in private properties in Surat City and as such, the petitioner who also approached by way of present petition has prayed for following reliefs: "7.(A) Issue an appropriate writ, order or direction and quash and set aside the communications of the Respondents at Annexure-A and further restrain the Respondent from recovering any amount towards license fees for hoardings in the private properties in Surat City as per the list at Annexure D hereto for the period from 22/03/2020 i.e. the date of lockdown till normalcy is restored or at least for a period of six months from 22/03/2020 and from demolishing the hoardings of the Petitioner in private properties in Surat and further command the Respondents to grant relief and waiver to the Petitioner in payment of license fees for the hoardings in private properties. (B) During the pendency and final disposal of this petition, (i) Restrain the Respondents from coercively recovering any amount towards license fees for hoardings of the Petitioner in the private properties in the city of Surat as per the list at Annexure D hereto and from demolishing the said hoardings of the Petitioner in private properties in Surat. (ii) Direct the Respondents to consider the representations dated 1/6/2020, 8/7/2020, 10/8/2020 28/9/2020 and 18/2/2021 (at Annexure "B" hereto) and the representation from the Outdoor Publicity Owners Association Surat dated 15/6/2020, 20/3/2021 and 28/4/2021 (at Annexure "C" hereto) for relief and waiver in payment of license fees. (C) Award cost of this Petition. (D) Grant such other and further reliefs as may be deemed just and expedient." 4. It is submitted by learned advocate appearing on behalf respective petitioners that similar situation with minor variation of facts has occurred with respect to their business as well and almost similar reliefs have been prayed as has been prayed like in the lead matter. 5. This group of petitions appears to have been entertained by issuance of notice on various dates by Benches of this Court and after completion of pleadings in some of the matters and after filing appearance on behalf the respondents, the present group of petitions have come up for consideration before this Court. 6. 5. This group of petitions appears to have been entertained by issuance of notice on various dates by Benches of this Court and after completion of pleadings in some of the matters and after filing appearance on behalf the respondents, the present group of petitions have come up for consideration before this Court. 6. Mr.Amar Bhatt, learned advocate for Mr.Kunal P.Vaishnav, learned advocate appearing for the petitioner in the lead matter has led the submissions and raised the issue that inaction on the part of respondents in not considering the request is violative of fundamental rights of the petitioner precisely under Articles 14, 19(1) (g) and 21 of the Constitution of India and also the action of insistence for recovery is also violative of such including principles of natural justice. It has been contended that on account of such pandemic effect prevailing across the country including the State of Gujarat as a relief measure several concessions have been granted to various industries by the State of Gujarat in respect of payment of property tax, electricity dues and circulars are also issued by various authorities including Ahmedabad Municipal Corporation, Railways, Ministry of Finance, Airport Authority of India and Government of Rajasthan by invoking Force Majeure clause while granting relief and therefore, on the similar line the petitioners have also made the request to the authority but so far the same has not been adhered to. 6.1 It has further been submitted by Mr.Bhatt, learned advocate for the petitioners that advertisers of the Surat City are deprived of similar treatment and benefits as has been given to advertisers who are situated within the limits of Ahmedabad Municipal Corporation and therefore respondent authority i.e. S.M.C. has given a discriminatory treatment to the petitioners which violates Article 14 of the Constitution of India. By raising multiple submissions, Mr.Amar Bhatt, learned advocate has submitted that respondent authorities have not so far responded in respect of their pending representation and requests. Hence, ultimately, after submitting as above, he has requested to consider and grant the relief as prayed for or in the alternative has submitted that this petition itself be treated as representation by respondent authority and after due compliance of principles of natural justice the decision be taken by the respondent corporation in accordance with law by giving equal treatment as has been prayed for. For the purpose of substantiating his submissions, Mr.Bhatt, learned advocate for the petitioners has tendered a brief note indicating the details with regard to a request for giving equal treatment and by referring to one chart the decisions and the notification which have been issued by the various authorities have been brought to the notice of the Court which are placed in one Special Civil Application No.7439 of 2021 and following is the abstract of the said chart which is reproduced hereunder: Date Details Annexure Pages 30/07/2020 Rajasthan Government notification dated 30/7/2020 granting extension for 6 months to the Advertisement Agencies. E 30-31 30/07/2020 Circular of AMC invoking Force Majeure for its contract. E1 32 3/10/2020 Extension granted by AMTS and BRTS in the city of Ahmedabad. E2 33 3/8/2020 Times of India report dated 3/8/2020 that the Rajkot and other cities have been drop in usage of public transport. E3 34 4/8/2020 Airport Authority of India's notification dated 4/8/2020 has given concession to various contractors. E4 35-36 19/2/2020 Memorandum of Ministry of Finance dated 19/2/2020 clarifying the Pandemic should be treated as natural calamity. E5 37 22/6/2020 Central Railway's circular dated 22/6/2020 clarifying that the period of lock down for which the earnings contracts were not in operational shall be treated as non dies non and the contract period may be extended. E6 38 29/1/2021 Ahmedabad Municipal Corporation has given waiver for 6 months vide its circular E7 39 6.2 After referring to these details, Mr.Bhatt, learned advocate has submitted that the decision be taken by the respondent corporation by considering all details with respect to petitioners and in the meantime, the interim protection which has been granted or continued in the relevant matters be extended till the authority takes the decision. It has been candidly submitted that the relaxation is prayed for, for a very brief period of six months commencing from 22.03.2020 till September, 2020 in almost all matters in present group and as such, no coercive steps be taken till decision by the authority for this interregnum period only as indicated. With these submissions, Mr.Bhatt, learned advocate ultimately has reiterated that the petitions be treated as representation and corporation may be directed to take decision within some reasonable period of time for which the petitioners will cooperate when the opportunity will be given. No other submissions have been made. 7. With these submissions, Mr.Bhatt, learned advocate ultimately has reiterated that the petitions be treated as representation and corporation may be directed to take decision within some reasonable period of time for which the petitioners will cooperate when the opportunity will be given. No other submissions have been made. 7. As against this, Mr.Dhaval Nanavati, learned advocate appearing on behalf of the respondent corporation has submitted that as a matter of right the petitioners are not entitled to seek any such relief but in view of the fact that practically in all matters the protection has been extended by the Court and now the request is made to treat the petitions as representation to which the authority will not have any objection to take decision on such pending representation in accordance with law but has insisted upon, that time schedule be prescribed so as to see that the petitioners may not continue to enjoy the relief which have been extended in their favour from time to time. As a result of this, it appears that the present group of petitions is to be disposed of with broad consensus with appropriate direction as prayed for. 8. Since this situation is prevailing almost in all the individual petitions of this group upon request of respective learned advocates of those petitions, the Court is inclined to consider the broad submissions by consent of both the learned advocates appearing for the respective parties and to pass following order in common which would meet the ends of justice governing all these petitioners of group: (i) The petitioners are permitted to approach respondent No.1 - Corporation within a period of two weeks from today with a request to examine the pending representation and to treat this petition itself as a representation in the context of relief which has been prayed for, for the relevant period of six months commencing from 22.03.2020 till September, 2020 either for waiving or relaxation in respect of payment of license fees for hoardings placed in private properties in the City. (ii) The petitioners are also permitted to place on record the relevant documents within the aforesaid period and upon such as and when such request is made the respondent authority namely respondent No.1 - Corporation is directed to examine, deal with and decide the grievance of the petitioners as indicated above after compliance of principles of natural justice. (ii) The petitioners are also permitted to place on record the relevant documents within the aforesaid period and upon such as and when such request is made the respondent authority namely respondent No.1 - Corporation is directed to examine, deal with and decide the grievance of the petitioners as indicated above after compliance of principles of natural justice. (iii) It goes without saying that while taking decision, the respondent authority shall consider all details which are contained in the petitions, to be treated as representation or which may be provided in the aforesaid time schedule and shall take appropriate decision within a period of eight weeks from the date of receipt of the said request by the petitioners. (iv) It is made clear that this Court has not expressed any opinion on merit with regard to grievance raised in the petitions. It is independently open for the authority to take appropriate decision in accordance with law on the basis of material available on record and it is made clear that as agreed upon till the decision is taken no coercive steps will be taken against petitioners and if the decision is against the petitioner, the same can be challenged by way of proceedings before the appropriate forum. 9. With these observations and directions, this group of petitions stand disposed of. Direct service is permitted.