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The Code Of Civil Procedure (Amendment) Act, 2002
The Delhi Laws Act, 1912
Section 143 in The Code Of Criminal Procedure, 1973
Section 144 in The Code Of Criminal Procedure, 1973
Section 146 in The Code Of Criminal Procedure, 1973

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Delhi High Court
P.C. Advertising vs The Municipal Corporation Of ... on 1 April, 1998
Equivalent citations: 1998 IIIAD Delhi 133, 73 (1998) DLT 259, 1998 RLR 301
Author: S Kapoor
Bench: S Kapoor

ORDER

S.N. Kapoor, J.

1. The plaintiff has filed the instant suit for permanent injunction and accompanying application No. 1736/96 for interim relief under O. 39, Rule 1 & 2 read with Section 151 Cr.P.C. The defendant has filed an application No. 8460/96 under O. 39, R.4. The plaintiff has also filed I.A. 10109/97 for improving its case without specifying the amendments excepting that the plaintiff has got his registration renewed as registered advertiser and paid advertisement tax for the year 1997-98. All these applications being inter-connected are required to be taken together.

2. The relevant facts in brief are as under:

The plaintiff M/s. P.C. Advertising is sole proprietorship concern of Mr. Shyam Malik. In the course of his business the plaintiff has acquired number of sites from various sources some of which form subject matter of the present suit as detailed in Schedule 'A'. It indicates following properties:

S. No. Location/Site

1. Three single faced hoardings of the size 14' x 20' each at the Cremation Ground, Lala Lajpat Rai Marg, New Delhi.

2. One single-faced hoarding of the size 24' x 16' on the roof top of the property known as U-like Studio (opposite Moti Cinema, Chandni Chowk, Delhi).

3. One single-faced hoarding of the size 30' x 30' at property/shop No. 3, Vasant Enclave Market, New Delhi.

4. Four single faced hoardings of the size 40' x 20' each on the property at 'Satimandir, Panchkuian Road, New Delhi.

5. One single faced hoarding of the size 50' x 30' at Pratap Market,Jangpura, Bhogal.

3. The said premises where the hoardings are put up belong to different private individuals who have entered into agreements with the plaintiff to display advertisement boards/hoardings thereon for different periods. The plaintiff under the cover of its communication dated December 28, 1995 by Registered acknowledgement due post, informed the defendant of its intention to erect and display the advertisement hoardings and had also sent a cheque towards the one year estimated advertisement tax, chargeable or leviable for the display of the intended hoardings. Since the defendant did not reply the plaintiff has acquired the rights to erect for itself or its clients, use and benefit, the hoarding structures etc. in the premises owned by the individuals as detailed in Schedule 'A' and to display the advertisement hoardings thereon. Since the defendant had not raised any objection as to the quantum of tax payable or otherwise, the plaintiff had reasons to believe that there was no objection from the defendant with respect to the erection of the hoardings at the site. The defendant-Corporation thus had made clear and unequivocal promise to the plaintiff to create a legal relationship and it has in fact been so acted upon by the plaintiff who has spent a huge amount of money to erect the hoardings, in the expectation of being allowed to exhibit the said hoardings. As such, even the equity would, not allow the expectation so created, inter alia by the conduct of the defendant Corporation to be defeated. On 18th January, 1996, 20th January, 1996 and on 5th February,1996 the employees and officials of the defendant visited the hoarding sites and threatened and attempted to demolish the hoardings, to remove the hoarding boards and cut the structures thereof. But the plaintiff succeeded in persuading these officials to leave the hoardings intact with the help of property owners and occupiers of the respective premises and properties. After first two visits the plaintiff visited the office and was assured by the concerned official that they will look into the matter and an intimation would be sent in due ourse.

4. Feeling dissatisfied the present suit was filed on 19th February, 1996 claiming permanent injunction restraining the defendant Corporation from removing, defacing, damaging and/or interfering in any manner whatsoever with the display of the plaintiff's hoardings at the sites as detailed in Schedule 'A' to the plaint.

5. The defendant is not only contesting the suit and IA No. 1736/96 but has also filed an application 8460/96 under O. 39, R. 4 CPC for vacation of the ad interim stay granted on 20th February, 1996. According to the defendant Corporation the present suit is not maintainable against the defendant for want of service of statutory notice under Section 478 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as 'The Act'). The suit which is based on deemed permission is not maintainable inasmuch as there is no such deeming provision in Section 143 of the Act or the relevant Bye-Laws framed thereunder. The plaintiff does not have the mandatory permission of the Commissioner of MCD under Section 143 of the Act. The issues raised in the said suit are no longer res integra for the matter has been decided in Suit No. 1722/96 in Advert Communications vs. M.C.D. and MCD Vs. Pioneer publicity 1997 1 AD (DELHI) 711.

6. The plaintiff is not a registered advertiser with the MCD for the year 1996-1998 which is a condition precedent for the display of advertisement hoardings on behalf of others in Delhi. Section 144 envisages that the permission of the Commissioner would become void in case the advertisement hoardings contravenes any bye-law under this Act. Section 146 of the Act envisages that in case of contravention of the provisions of Section 143 the Commissioner may require the owner or occupier of the land, building, wall, hoarding, frame, post of structure or vehicle upon, or in which the same is erected, exhibited, fixed or retained to take down or remove such advertisement or may enter any land, building property or vehicle and have the advertisement dismantled taken down or removed or spoiled, defaced or screened.

7. It is further submitted that in Civil Writ petition No. 3762 of 1993 titled M/s. Lahori Mal and Anr. Vs. N.D.M.C. & Ors. it was held that no injunction against demolition of advertisements/hoardings put up without permission of the Municipal Authority should be granted by Civil Court. The permission from private person only enables an advertiser to use those premises for erection of an advertisement which can be done only after obtaining permission from M.C.D. and by following provisions of D.M.C. Act and the Bye-Laws framed thereunder. The hoardings have been displayed at private site under Bye-Laws 5 & 6 of the Old Advertisement Bye-Laws, 1959 and the display of hoardings is patently illegal and contrary to law. The plaintiff has neither sent any letter, N.O.C., site plan, advertisement tax nor has taken any prior permission of the M.C.d. before erection of the hoardings. The plaintiff being a violator of law deserve no relief from this Court. On the basis of these very pleas application for vacation of the ad interim stay has also been moved.

8. Though I.A. No. 10109/97 it is dated 18th January, 1998 but it has been filed on 18th October, 1997 to take note of certain subsequent events specially the new bye-laws. the fact that the plaintiff has paid registration charges of sum of Rs. 5,500/- inclusive of security of Rs. 5000/- vide receipt No. 200 dated 11th March, 1996. The plaintiff had paid advertisement tax for the year 1997-98 amounting to Rs. 8,100/- vide cheque No. 542505 dated 21st March, 1997 and sent the same by Regd. acknowledgement due. The plaintiff also seek to challenge the new bye-laws on the ground of violation of fundamental right to carry on business etc. The prayer in the application reads as under: "It is, therefore, respectfully prayed that your Lordships may be graciously pleased to permit the plaintiff to incorporate suitable amendments in the plaint and may pass such further order as may do complete justice in the facts and circumstances of the case."

9. The prayer clause itself clarifies that the application for amendment is as vague as it could be for the plaintiff is not very sure as to what amendment is sought to be incorporated and what amendment is not required to be incorporated.

10. Moreover it appears that firstly the suit filed by the plaintiff is itself defective in the sense the suit has been filed in the name of M/s. P.C. Advertising which is neither a firm nor a registered company nor it is a joint Hindu family concern which can be said to be covered under O. 30, R. 10 CPC and there is no prayer for amendment to allow the sole proprietor Mr.Shyam Malik to sue in his own name. Secondly accordingly to the plaint case the tax was sent on 28th December, 1995 and in terms of the letter (copy of which has been produced) a cheque for a sum of Rs. 5,440/- was sent towards advance Advertisement Tax for the period from 1.1.1996 to 31.12.1996. That year has expired. The plaintiff had virtually succeeded in getting the entire relief under the order dated 20th February, 1996. Seeing the plaint case itself there could be an injunction only till 31st December, 1996. It appears that the vague application for amendment has been moved only to cause delay and to confuse the issues.

11. It may further be seen that admittedly the sole proprietor of the plaintiff concern is not a licenced advertiser. Clause 8 of 1959 Bye-Laws reads as under:

"8. Licenced advertisers - (1) Persons or agencies who undertake the display of advertisement on behalf of others shall enroll themselves as licensed advertisers on payments of a security deposit of not more than Rs. 100/- and less than Rs. 50/- each as the Commissioner may decide for the due observance of these byelaws.

(2) Persons intending to entrust the work of displaying advertisements on their behalf to other parties shall not entrust it to any party other than a licensed advertiser.

(3) A licensed advertiser shall before displaying or causing the display of advertisements, satisfy himself that the tax due thereon has been paid and the Commissioner's approval obtained therefore.

(4) A licensed advertiser shall maintain proper accounts and produce the same whenever required for inspection by the Commissioner."

12. An unlicensed advertiser therefore could not enter into any contract putting up advertisement hoardings for display advertisement of others. If he so enters neither the law nor the Courts would recognise such a contract being in violation of the Bye-Laws. On 28th December, 1995 the plaintiff was not a licenced advertiser specially in view of the admission in para 6 of the application for amendment. The fact that he has moved an application for renewal dated 21st March, 1996 would not authorise him to act as a licenced advertiser on 28th December, 1995 and thereafter till the date of his enrollment.

13. Section 143 of the Act requires written permission of the Commissioner granted in accordance with Bye-Laws made under the Act and it further provides that the Commissioner in case of contravention of any Bye-Law made under the Act or in case of non-payment of any tax due in respect of advertisement can refuse to grant such permission. It is an admitted case that there is no such written permission. Since Section 143 of the Act requires written permission, there could not be any deemed permission specially when permission is sought against the provision of the bye-laws and in case of non-payment of tax.

Bye-Law 6 of the Old Bye-Laws, 1959 requires that:

"Every person desiring to erect, exhibit, fix, retain or display an advertisement shall send or cause to be sent to the Commissioner, not less than ten clear days before advertisement is to be displayed and in time before printing copies of advertisements or painting advertisements or exhibiting them in any manner, a notice in duplicate in writing in such form as may be determined by the Commissioner with all the particulars required therein together with a copy of the matter to be advertised."

14. The Commissioner may disapprove of an advertisement, among others, on the ground that its contents or the manner of its display is indecent or otherwise offensive to good taste or public sentiment.

15. It is not the case of the plaintiff that ten days clear requisite notice was given in duplicate in writing was sent on the prescribed form with all the particulars required therein together with a copy of the matter to be advertised. If the Commissioner has to apply his mind on the application to ascertain whether contents or the manner of display of any of these advertisement is indecent or otherwise offensive to good taste or public sentiment he has to know the contents of the advertisement. From the letter dated December 28, 1995, it does not appear that necessary particulars of any of these advertisements were sent along with the letter. The letter reads as under:

December 28, 1995

To,

The Commercial Officer,

Advertisement Section,

Municipal Corporation of Delhi,

DELHI.

Subject: Permission to put up Advertisement hoardings.

Respected Sir,

We propose to set up following hoarding sites on private buildings.

S.No. LOCATION No. OF SITES

1. BHOGAL BRIDGE 1

2. GREMATION GROUND LALA LAJPAT RAI MARG 3

3. RING ROAD VASANT ENCLAVE MKT. 1.

4. SATI MANDIR PUNCHKUIAN ROAD CROSSING 4.

5. ON ROOF OF STUDIO U LIKE CHANDNI CHOWK 1.

We are herewith enclosing the copies of agreement with landlords.

We are also enclosing the text to be displayed on the sites.

As required we are herewith enclosing our cheque for a sum of Rs. 5,440.00 towards advance advertisement tax for the period of one year from 01-01-96 to 31-12-96.

Kindly grant us the requisite permission to put up the hoardings and oblige.

Thanking you,

Yours faithfully,

for P.C. ADVERTISING,

PROPRIETOR

The letter does neither indicate any size of the hoarding nor contents of any of these hoardings. Consequently the plaintiff had no right to put up any hoarding in absence of written permission.

16. The contention that none of the hoardings were on the land of the MCD but on the lands of private individuals and MCD has nothing to do with these plots of land or buildings is not tenable in view of the language of Section 143 of the Act. Whether it is MCD land or a private land no advertisement hoarding can be displayed without taking written permission of the Commissioner. It is not possible to accept the submission that Section 143 applies only to MCD land and not to the land and buildings belonging to private individuals.

17. The case of M/s. Pioneer Publicity Corporation & Anr. Vs. N.D.M.C. & Anr. 1996 I AD (DELHI) 576 with reference to deemed permission under the bye-laws of the New Delhi Municipal Committee is not applicable for before this court the question is of application of Section 143 of the Act and the old bye-laws made thereunder.

18. It appears this plaint does not disclose cause of action for a number of reasons. Firstly, the plaint discloses that Shyam Malik is sole proprietor of PC Advertising, but he has not filed the suit in his own name. the plaintiff's concern is neither a partnership firm nor HUF concern which would be covered by Order 30 Rule 10 CPC. Since there is misdescription of plaintiff in the title of the suit, the plaint does not fulfill the requirement of O. 7, R. 1 nor of Order 30. R.10. Secondly the plaintiff was not a licenced registered advertiser in terms of the Rules referred to above at the time of moving the alleged application. Thirdly neither the size nor other particulars and contents of the advertisements were disclosed in the application. As such the application was not in terms of Bye-Law 6 of the old Bye-Laws, 1959. Fourthly the plaintiff has no right at all to put up any advertisement hoardings at any place without any written permission of the Commissioner. Fifthly in terms of Section 11 of the Delhi Urban Areas Commission Act, 1973 and in terms of judgment in Harish Gupta & Ors. Vs. N.D.M.C., 1995 III AD (DELHI) 1001 proposal for hoarding has to be placed before the Delhi Urban Areas Commission Act and no permission has been sought. Consequently the plaintiff has got no cause of action to file the present suit. If the plaint does not show any cause of action there is no other option but to reject the plaint specially when the plaintiff has abused the process of the Court by taking undue shelter under the ad interim order by misleading the Court in respect of the entire year of 1996 and the fact that the suit has also become infructuous for the suit was confined to the year 1996 only and not beyond it.

19. Consequently now to allow unspecified alleged 'suitable amendments' would amount to further abuse of the process of the Court. Accordingly I reject I.A. 10197/97 & I.A. 1736/96 along with plaint in Suit No. 440/96 with cost of Rs. 5000/- to the respondent.