K. Govindarajan, J.
1. In all these writ petitions the petitioners are eager to retain the hoardings erected either in the public places or buildings belonging to the Government, Local bodies, corporations or in the private places, without being checked or regulated by any legislation.
2. The petitioners in W.P.Nos.11453 of 1998, 10747 of 1998 9908 of 1999 and 6808 of 2000 have filed the said writ petitions challenging provisions of Act 51 of 1998.
3. The petitioner-association in W.P.No.18928 of 1999 has challenged the public notices issued by the Commissioner, Corporation of Chennai as notified on 4.10.99 informing that the hoardings for which applications were not filed would be treated as unauthorised hoardings and the same will be removed exercising powers under Section 326 of Chennai City Municipal Corporation Act.
4. The petitioners in W.P.Nos.16614, 16618, 16621, 16631 and 16651 of 2000, 17888, 18218, 18219, 18220, 18646, 18647, 18661 & 18662 of 2000, 901, 908, 909, 937, 938, 947, 1609 and 1610 of 2001 have challenged the provisions of the Tamil Nadu Act 26 of 2000.
5. Before dealing with grievances and contentions of the petitioners, it is beneficial to narrate the necessary facts in a nutshell to appreciate the contentions made on behalf of the petitioners, properly.
6. On the basis of authority given in the Board Standing Order 23-A, various Departments leased out the vacant sites for erection of hoardings to the individuals or Companies on the basis of the lease amount fixed by the respective Departments. Equally, within the City of Chennai, the Collector of Madras used to give permission for temporary occupation of specified places fixing the annual lease rent for the purpose of erecting hoardings. In the order in G.O.Ms.No.3063, Revenue Department, dated 24.11.1972, the Government gave power to the Collector of Chennai to grant fresh lease in respect of road margins for a period of two years for erection of hoardings for advertisement purpose subject to the conditions stipulated therein.
7. When it was brought to the notice of the Government that some advertisers who displayed the hoardings did not pay the advertising charges either to the Government or to the Corporation of Chennai, another order in G.O.Ms.No.1672, P.W.D. Department dated 20.11.74 was passed to the effect that the Collector of Madras would be the authority to grant lease of all the lands of the Corporation and the public lands to advertising agencies and others to put up hoarding in the City of Chennai. A standing Committee was constituted for the purpose of locating the places in the City of Chennai for putting up hoardings and ascertaining the views of the Departments occupying the Government lands before deciding the sites for permitting the erection or such hoardings. It is also stated that the Committee should evolve the guidelines in order to ensure that the uniform criteria are adopted in assessing the suitability of the sites with particular reference to traffic including pedetrain traffic needs. The other conditions mentioned in the said Government Order are not necessary for the present purpose. So we are not referring the same.
8. Subsequently, in the order in G.O.Ms.No.908, Public Works Department Dated 21.6.76, the Government accepted the revised rate of lease rent for the period of one year initially for the new leases. The Standing Committee was given liberty to go into the matter and suggest different rates and guidelines also have been contemplated in the said Government Order for that purpose, in the annexture to the order, procedures were contemplated for allotting sites for advertisement of hoardings in Government, Corporation and public lands.
9. Similarly, in G.O.Ms.No.209 Rural Development and Local Administration Department dated 27.2.1978, the Commissioner, Corporation of Madras was also authorised to lease out the sites belonging to the Corporation, for the purpose of putting up Hoardings. Subsequently, by the order in G.O.Ms.No.575. Transport Department dated 12.7.1978, on the basis of the report of the Standing Committee on advertisement and hoardings, certain procedures were contemplated with respect to hoardings of Government lands, Corporation, public and private lands, in the Government. Order in G.O.Ms.No.172, Rural Development and Local Administration Department dated 30.1.80, the Government sanctioned "advertisement and signs' by-laws proposed to be made by the Council of Corporation of Madras
10. In June, 1979 when the Government wanted to remove all the hoardings for the purpose of auctioning the sites, some of the petitioners filed W.P.Nos.2589, 2597 of 79 etc. to restrain the authorities from removing the hoardings. They were disposed of on 25.1.80 after recording the statement of the authorities that the hoardings will not be demolished or thrown away except in accordance with law. In the letter dated 24.6.81, the Special Commissioner and Commissioner for Land Administration, Madras informed the Commissioner and Secretary to Government, transport Department that the said undertaking given before the Court is only to extend the continuation of the existing leases and terms of the lease could be varied in the period is expired and so there could be a fresh lease on fresh terms. On 21.8.82, the Commissioner, Corporation of Madras wrote to the Government advising the Collector of Madras not to grant or renew further lease for the purpose of erecting hoardings.
When the Corporation of Madras threatened to remove the hoardings for non-payment of tax as prescribed under the Tamil Nadu City Municipal Corporation Act, another batch of writ petitions were filed on the basis of the promise made by the Government in the earlier batch of writ petitions not to remove the hoardings.
11. At this stage, Tamil Nadu Acquisition of Hoardings Act, 1985, came to be passed. The assent of the President, was received on 31.7.85 and the said Act was published in the Tamil Nadu Government Gazette on 2.8.85. In view of the said Act, the batch or writ petitions challenging the action of the Madras Corporation filed earlier were withdrawn, and another batch of writ petitions challenging the said Act itself were filed.
12. The learned Judge of this Court in W.M.P. No. 12444 of 1985 etc.. in W.P.Nos.8258 of 1985 etc.. passed an order on 17.10.85 purported to be in the nature of general directions to be observed by all the parties pending disposal of the abovesaid writ petitions. The same are as follows;-
9. It is only with reference to Section 23. in the light of the undertaking given by the learned Advocate General, the following directions are given:
(1) Whatever information the Authorised Officer demands under Section 13 of the Act, petitioners are bound to furnish them.
(2) Any agreement or renewal of agreement entered into after 10.7.1985 are at the risk of the erstwhile owners of the hoardings, and merely because they are permitted to be in-charge of them in spite of vesting, they cannot claim that State is bound by their acts of commissions, and omissions in relation to them.
(3) Petitioners are liable to pay reasonable compensation to the State for use of the hoardings on and after 10.7.1985, in the event of the Act being upheld.
(4) No hoarding shall be removed or replaced, and if any attempt is made to this effect, it is open to the Authorised Officer to immediately take custody of the said hoardings. If any repair is to be carried out, it, could be done only after securing this written permission. For painting advertisements, no permission is required. Any contravention of this direction would result in the erstwhile owners being dispossessed of the hoarding forthwith.
(5) No hoarding, as defined in Section 3(g) could be used as it is a frame work, or support for any temporary canvass or wooden frames and the like, or to be used for pasting printed posters, as if they are hoardings within the meaning of section 3(e). This condition will be effective on and from 1.11.1985.
(6) In the preamble to the Act, it is stated that the Act is passed to prevent haphazard growth of hoardings and for matters incidental thereto. In moving the bill, it was claimed that many of the advertisements are obscene, and therefore, to eradicate this evil, the Act As is being passed. Mr.V.P.Raman, learned counsel for some of the petitioners, even at the outset had stated that it is not the intention of the petitioners to retain any such advertisements, and if they are identified, they would be removed. This sentiment was expressed by other counsel also and all of them agreed for removal of obscene posters. But, when certain materials had been collected by Corporation of Madras, they have come forward to place before Court the type of advertisements, seen in wail posters and the like. This only goes to show that unless all round firm steps are taken to prosecute transgressors, these erstwhile hoarding owners would always point out their fingers elsewhere, and try to justify what are found in their hoardings. This Court considers that at least during pendency of proceedings, one of the intentions behind the Act requires to be implemented, when erstwhile owners have agreed for their removal. Hence, order of this Court does not stand in the way of the Authorised Officer in taking appropriate action, to remove obscene materials in any of the hoardings, as they have already vested in the State. As petitioners are now only custodians of the property of the Government, there is no question of anyone of them to be hear, as to whether a particular advertisement exhibited on a hoarding is obscene or not. If a directive is issued by the Authorised Officer not to use a hoarding with an obscene advertisement, it cannot be interpreted to mean that the undertaking given by learned Advocate General is not in any manner complied with nor that the order of this Court is not adhered to. The under taking is confined to the retention of the hoardings as they are, but as these hoardings have already vested with the State, petitioners are only permitted by order of Court to act as custodians of the hoardings, but it cannot extend to defeat one of the objects sought to be achieved under the Act. It will be in their interest act with prudence and by properly understanding the situation that has developed, instead of getting into controversies whether a particular advertisement is an obscene one or not.
10. In the light of these directions given, the order of status quo is revoked, and those petitions are kept pending, and the parties to the proceedings are bound by the directions given above, pending disposal of the writ petitions, in the implementation of these directions, if there are any other difficulties experienced, it is open to both parties to move this Court for further directions. It is stated that Authorised Officer is not yet named. The State has to issue necessary notification on or before 21.10.1985, naming the Authorised Officer, so that he may effectively implement these directions."
13. But, unfortunately, as observed in the judgment of the Division Bench of this Court, while disposing the batch of writ petitions, the said directions were not kept in mind either by the State or by the petitioners and they were observed were in breach than by way of compliance. The Division Bench in the decision in Key Center, etc. & others v. Authorised Officer, Hoardings, 1996 W.L.R 765, upheld the validity of the Tamil Nadu Acquisition of hoardings Act 1985, hereinafter called the Acquisition Act, 1985 insofar its applicability to the public places are concerned, and further held that the words "private places' and "public places' shall have the same meaning as given to them in Section 3(h) and (i) of the Acquisition Act respectively. In other words in Sections 4 and 18 of the Acquisition Act 1965 " Private places" shall stand deleted. Similarly, an other Sections also the words "private places" shall stand deleted by the judgment. However, in the definition clause alone the words "private places" is retained. It is not in dispute that the aggrieved parties filed Appeals before the Apex Court, and the said Appeals are pending.
14. While the appeals are so pending before the Apex Court, an Ordinance to amend laws relating to Municipal Corporations and Municipalities in the State of Tamil Nadu insofar as it relates to the regulation of erection of hoardings was promulgated by Tamil Nadu Ordinance 2 of 1998. The same was notified in the Tamil Nadu Government Gazette on 23.7.98. The said Ordinance was promulgated with a view to regulate the erection of hoardings erected on the road side and over the buildings of the City of Chennai and in other urban areas of the State without proper licence. By the said Ordinance, certain provisions have been inserted in the Chennai City Municipal Corporation Act, 1919, Tamil Nadu District Municipalities Act, 1920, Madurai City Municipal Corporation Act, 1971 and in the Coimbatore City Municipal Corporation Act, 1981. The amendments made in the Coimbatore City Municipal Corporation Act, 1981 are made applicable to the newly created Corporations of Tiruchirapalli, Tirunelveli and Salem also. By inserting the new provisions under the said Acts, the Government have given power to the local bodies to regulate hoardings by issuance of licence. The said Ordinance subsequently was enacted as Act 51 of 1998 hereinafter called the Act 1998 Rules under the Act 1998 were also trained and notified on 11.10.98. They are named as Advertisement Tax Rules. Further amendment was introduced to the laws relating to the Municipal Corporations and Municipalities in the State of Tamil Nadu by enacting Tamil Nadu Municipal Laws (amendment) Act, 2000 (Act 26 of 2000) hereinafter called the Act of 2000 . The President assent was obtained on 5.9.2000 under Art. 201 of the Constitution of India.
15. Pursuant to the Act of 1998 and the Act of 2000, the authorities took steps exercising powers under the said Acts. Now, the above said writ petitions are filed, as stated supra, either challenging the Act 1998 or the proceedings of the authorities issued under the Acts and the provisions and proceedings taken under the Act of 2000.
16. It is relevant to mention here that Public Interest Litigation in W.P.Nos.10747 of 1996 is also filed on the ground that there is mushroom growth or hoardings without any authorisation which are not only threat to traffic out also to human life, during cyclone etc., and they should not be allowed to exist by regularising the same under the Act 51 of 1998. The grievance of the petitioners in the said writ petitions is that though in the earlier proceedings, only 598 hoardings were identified, as on 10.7.85, Subsequently, in spite of the directions issued by this Court, and under takings given to remove the unauthorised hoardings which were erected without obtaining permission from the concerned authorities with respect to the space concerned, the officials did not take any steps either to prevent or remove the same as observed by the Division Bench in the decision in Key Center, etc. & others v. Authorised Officer, Hoardings, 1996 W.L.R. 765 but allowed to put up unauthorised hoardings.
17. Though there are number of writ petitions filed, only some of tha petitioners pressed their writ petitions through their counsel who have submitted their arguments to substantiate the grounds raised in the said writ petitions.
18. Mr. Shanthi Bhushan, learned senior counsel argued on behalf of the writ petitioners in W.P.No.11453 of 1998, 18928 of 1999 and 16631 of 2000.
19. Mr.Alagiriswami, learned senior counsel argued on behalf of the writ petitioners in W.P.Nos. 16551, 16598 to 16600 of 2000, 16611 to 16614, 16618 and 16621 of 2000.
20. Mr. Venkatachalapathy, learned senior counsel argued on behalf of the writ petitioners in W.P.Nos.9057, 9058, 9128, 9937 to 9940 of 1998, 676 to 681 of 1999, 1024, 1025 and 18059 of 1999.
21. Mr. Gnanadesikan, learned counsel made his submission on behalf of the writ petitioners in W.P.Nos. 18929, 14064 and 14065 of 1999.
22. Mr.K.Subramanian, learned Senior Counsel made his submission on behalf of the writ petitioners in W.P.Nos.901, 908, 909, 937, 938 and 947 of 2001.
23. Mr.S. Kannian, learned counsel made his submission on behalf of the writ petitioner in W. P. No. 11357 of 1993.
24. According to Mr.Shanthi Bhushan, learned Senior counsel, the members of the respective petitioner association are having fundamental right to advertise any matter to reach the public, as only the advertisement on hoardings is the cheapest method and it will reach the public. He further submitted that the provisions made under the Act 26 of 2000 cannot be construed as a reasonable restriction, and the definition "hoarding" given under Sec. 326-A of the Act of 1998 deals with only the Hoarding used or intended to be used for exhibiting advertisement and not with respect to any other hoarding, and the other hoardings cannot be dealt with under the said Act and so the provisions are liable to be struck down as they are discriminatory, and as they restrict only the hoarding used for exhibiting advertisement. It is his further submission that there is no nexus to achieve the object of the Act by making such restriction, as the restriction is only with reference to the hoardings exhibiting advertisement. He has also submitted that while amending the provisions by the Act of 1998, no provision has been made with reference to the hoardings erected with the permission of, the concerned authorities, and to that extent the Act of 1998 is bad. It is his further submission that since the members of the petitioner-association are having permission to erect the hoarding and so the question of making applications for licence again as contemplated under the Act of 1998 will not arise, His further submission is that if it is found that it is applicable even to those persons, the Act of 1998 is bad for not providing safeguards to persons who had already got such permission. Referring to the Act 26 of 2000, the learned senior counsel has submitted that unguided power is given to the Commissioner to remove the hoardings if he reels that the hoardings are hazardous to the traffic. According to him, in the absence of any guidelines to identify the hazardous hoardings, there is every possibility to take arbitrary decision, He has also submitted that before coming to such conclusion by the authority as to the hazardous nature or hoardings, the provision does not contemplate any opportunity to the person who erected the hoarding or who are being affected by the decision nor any appeal provision is contemplated. According to him, the authorities are given power only to issue notice to remove the hoardings within the prescribed person, and if they are not removed the authorities can also remove the same, and the person who erected the hoarding can approach the Court under Article 226 of the Constitution of India only after removal and thereby his rights are affected. Referring to the notice issued, the learned senior counsel has submitted that the Act contemplates only 30 days from 23.7.98, and the Rule was notified only on 10th August, 1998. Without Rules, the period mentioned under the Act cannot be insisted upon and so the cut-off date given under the notice cannot be sustained in law, and the same also not in-accordance with the Act. He has further submitted that Sec. 326-J of the Act inserted by the Act 26 of 2000 is beyond the scope of the definition under Sec. 326A of the Act 1998.
25. Mr.Alagiriswami, learned senior counsel appearing for the respective petitioners has submitted that the petitioners have applied for licence in time and the police authorities have given N.O.C. on traffic point, of view and so the authorities under the Act are not correct in issuing the notice under Sec. 326J of the City Municipal Corporation Act. He has further submitted that the object of the Act is only with reference to the advertisements made in the hoarding erected by the petitioners on traffic point of view, and not on the hoardings themselves, and so the provisions for removal of hoardings themselves are not in consonance with the object to be achieved under the Act.
26. Mr.Venkatachalapathy, learned senior counsel appearing for the respective petitioners has made his submission stating that the Legislature should not have passed the impugned Acts, in view of the enactment of the Act 9 of 1999, and the same has only been suspended by the Act 33 of 2000. According to him, when the Government themselves are not definite about the implementation of the Act 9 of 1999, the question or amending the repealed Act will not arise.
27. Mr. K. Subramanian, learned Senior Counsel appearing for the respective petitioners has submitted that regulating the hoardings on traffic point of view is covered under the Motor Vehicles Act, and as it happens to be the Central Act, the State Legislature has no legislative power to enact, the said provisions. He has also challenged the restrictions on the hoardings erected even on private lands. According to him, such hoardings form a class by themselves, and the clubbing the two types of hoardings, namely, hoardings erected on the public places' and the hoardings erected on the "private places and the hoardings erected on the private places would give difficulties for the authorities in enforcing the same. Referring to the decision MC.Mehta, v. Union of India and others, 1997 (8) SCO 770, he has also submitted that the same cannot be construed as a precedent, and the same will apply only to the facts of the said case. Referring to the Rules which were notified on 11.8.98, the learned senior counsel has further submitted that the said Rules cannot be relied on for want of compliance of certain procedures contemplated under Sec. 348(b) of the Chennai City Municipal Corporation Act.
28. Mr. Gnanadesikan, learned counsel appearing for the respective petitioners has submitted that there is no Rules with reference to the existing hoardings, and the Rules framed are only with reference to new hoardings. He has also referred to the provisions made under Sec. 326-J of the Act, giving power to the authorities to grant only maximum of 15 days time to the person to remove the hoardings, and submitted that such a maximum limit prescribed cannot be sustained in law.
29. Mr.A.L.Somayaji, learned senior counsel representing the State has submitted that the Act of 1998 is an Act to regulate the hoardings and the Act of such nature has been implemented only for the first time by enacting the Act of 1998. According to him, the permission or lease granted earlier by the authorities and relied on by the learned counsel for the petitioners is only in respect of the place on which hoardings are erected but it does not mean that it is a licence to have hoarding itself. The earlier Orders issued by the Government and relied on by the petitioners are only with respect to the lease of the places to erect hoardings themselves. So, the argument that since no provision has been made with reference to the existing hoardings under the Act of 1998 cannot be countenanced, and the provision will apply to all hoardings, as the provision for licence has been implemented only for the first time. He has also submitted that after the acquisition Act 1985 came into force, the leases were not extended though amounts were collected in certain cases. It is his further submission that though in the earlier proceedings it was identified that there were 598" hoardings as on 10.7.85, it cannot be said that all the said hoardings were authorised. According to him, to bring the erection of hoardings under the control of the Government or local authorities, the licensing provisions have been introduced under the impugned Act. Referring to the contentions regarding the period for making applications, the learned senior counsel has submitted that though the Ordinance was made" on 23.9.78, the Rules were framed only on 11.8.98, and, according to the Rules, licence fee was fixed on 22.8.98 which was modified with reference to the quantum of licence fee on 22.10.98. So, under the notification dated 20.11. 98. the date was fixed as 22.12.98 as the last date for making applications. While answering the submission made by the learned Senior Counsel appearing for the petitioners as to that the section 326.J of the Act of 2000 is contrary to the definition of Sec. 326A of the Act. Mr.Somayaji, learned senior counsel has submitted that the said provision itself contains definition of hoarding and would operate notwithstanding any other provision under the Act and so the said provision need not be read on the basis of the definition made under Sec. 326A of the Act. He has also submitted that though no separate guidelines are contemplated it can be gathered from the provisions itself or the guidelines are built in. in the Section itself. It is his submission that mere possibility or apprehension of misuse of power, cannot be a ground to challenge the provisions of the Act. Even with reference to the submission made on the side of the petitioners that there is no provision for observance of the principles of natural justice, the learned senior counsel has submitted that the same need not be followed in every case, and in a given case without even following such a principle, proceedings can be sustained. He has also brought to our notice that the petitioners have hot challenged the Rules as such at all.
30. Mr.N.R.Chandran, learned senior counsel appearing for the Chennai Corporation, while adopting the arguments of Mr.A.L.Somayaji. learned senior counsel representing the State has submitted that there is no change in the language employed in the definition under Act, 1955 and Act of 2000. When the Acquisition Act, 1985 was challenged, the petitioners have not challenged the definition on the ground of discrimination. So, at this stage, the petitioners cannot be allowed to challenge the said provision. He has also submitted that the Associations by filing writ petitions cannot make their grievance on the basis that the provisions will offend Article 19 of the Constitution, as if their fundamental rights are affected. It is his further submission that the petitioners themselves are not advertisers and so they cannot claim that their right to freedom of speech and expression as stipulated under Art. 9(1)(a) of the Constitution of India are affected. Referring to Metha's case, he has also submitted that the Act has been enacted on the basis of the decision of the Apex Court. According to him "hoardings" has been properly explained in the Section itself and so there cannot be any unreasonableness as contended by the learned senior counsel appearing for the petitioners. He has submitted that the submission regarding discrimination as if Sec. 326A will apply only to the hoardings used in advertisement cannot be correct as Sec. 326A will apply to all types of hoardings. It is also submitted by him that as on date nobody can make application for licence as the period mentioned under the Act and Rules was over, and if no application is made, the removal can be done without even issuing notice, as such hoardings are unauthorised.
31. Before considering the rival submissions made on both sides, it is necessary for us to look into the provisions of the Act to appreciate the relevant contentions properly.
32. After the Acquisition Act, 1985 was enacted most of the petitioners herein challenged the same by filing batch of writ petitions. The Division Bench of this Court, in the decision in Key Center, etc. & others v. Authorised Officer, Hoardings, 1996 WLR 765. has struck down the provisions insofar as they relate to hoardings erected in "private places", and upheld its applicability to the hoardings erected in the "public purposes" are concerned. While holding so, the Division Bench has directed the authorities to take further action in respect of the hoardings erected in each of the cases strictly in accordance with the said judgment. It is also relevant to mention here that the Appeals are pending before the Apex Court.
33. While so, the Government have decided to make provisions in the Tamil Nadu Urban Local Bodies Act, to regulate the hoardings by issuance of licences and for removal of hoardings which do not comply with the regulations. The said decision was taken on the basis of a large number of hoardings erected on the road margins and over the buildings of the City of Chennai and in urban areas of city without proper licence and that has led to serious inconvenience to the pedestrian traffic hazardous, accidents and creating an unsafe environment to the general public. Accordingly, the Government had decided to amend the Chennai City Municipal Corporation Act. Tamil Nadu District Municipalities Act, Madurai City Municipal Corporation Act, Coimbatore City Municipal Corporation Act suitably for the said purposes. Originally the Ordinance, called the Tamil Nadu Ordinance 2 of 1998 was promulgated and subsequently it was replaced by the Act 51 of 1998.
34. For convenience, we are referring only the provisions inserted in The Chennai Municipal Corporation Act, though similar provisions are inserted in the other Acts referred to above. Any decision on the provision inserted to the Chennai City Municipal Corporation Act would apply mutatis mutandis to the inserted provision of the other Acts.
35. Under Section 326-A, Chapter-II-A. "hoarding" has been defined as follows;-
hoarding means any screen of boards or framework or other support:-
(i) intended for exhibiting advertisement, or
(ii) on which any advertisement has been exhibited, which is erected wholly or in part upon or over any land, building, wall or structure, which or any part of which shall be visible from some point in any public place or private place and includes all and every part of any such screen of boards, framework or other support"
According to the said definition, any hoarding used or intended to be used for exhibiting advertisements either in the public place or in the private place, it shall be subjected to the Regulation under the Act.
36. Section 326-B of the Act prohibits a person to erect hoardings in any place after the promulgation of Ordinance 2 of 1998 without obtaining licence. If any person who erected hoarding without obtaining licence and is in existence immediately before the date of commencement or the Ordinance, namely, 23.7.98 also shall apply for licence in accordance with the provisions of Chapter XII-A of the Act within 30 days from the date of commencement of the Act. This procedure for applying licence, is notwithstanding anything contained in the Acquisition Act of 1985. Section 326-C of the Act contemplates the procedure for giving licence. Under Sec. 326-D of the Act the, concerned authority is empowered to cancel or suspend the, licence already given. Under Sec. 326-E of the Act, the said authority can remove any hoarding without giving any notice, if it is erected without licence. The authority under Sec. 326F, can remove the hoarding if it is retained after the expiry of licence or if it is erected contrary to the conditions of licence. This should be done by giving notice in writing asking the licensee to remove such hoarding within the prescribed time limit. If it is not so removed, without any further notice, the authority concerned can remove the same and recover the expenditure incurred for such removal as an arrears of land revenue. Certain exemptions have been contemplated under Sec. 326-G of the Act. Appeal against the order of the concerned authority refusing to grant or refusing to renew or cancel or suspend the licence, is provided under Sec. 326-H of the Act. Under Sec. 326-I of the Act, levy of penalty also has been contemplated against the person who contravenes any of the provisions of the Chapter or any Rule or order made 'therein or obstruct lawful exercise of the power conferred by or under Chapter XII-A of the Act.
37. Exercising powers under Sec. 347 of the Chennai City Municipal Corporation Act, Sec. 303 of the Tamil Nadu District /municipalities Act, Sec. 441 of the Madurai City Municipal Corporation Act, Sec.430 or the Coimbatore City Municipal Corporation Act, read with Sec.3 of the Tiruchirapalli City Municipal Corporation Act and the Salem City Municipal Corporation Act, and in supersession of all provisions, orders and notifications, the Governor of Tamil Nadu in G.O.Ms.No.141 Municipal Administration (Water Supply) Election, dated 5.8.98 framed the Rules, and notified on 11.8.98 in the Tamil Nadu Government Gazette. Rule 3 of the Rules deals with the procedure for making applications to obtain licence. According to Rule 4, the licence issued shall be valid for one year from the 1st April to 31st March of the succeeding year. Under Rule 5, the applications can be made for renewal to the concerned authority. Rule 6 contemplates the maximum height and size of the hoardings to be erected. Rule 8 of the Rules deals with the procedure to be followed while canceling the licence or refusing renewal of licence. Under Rule 10 of the Rules, the Government could notify the area within the municipal limits as a prohibited area for erection of hoarding and empower the Commissioner not to grant licence for erection of hoardings in such area. If such notification is made even the existing hoardings should be removed within 15 days from the date of the notification. If they are not removed, the same can be removed and recovery of costs from the licensee concerned can be made without issuing notice. The procedure regarding Appeal has been contemplated under the Act and under Rule 11 of the Rules. Subsequently, by G.O.Ms.No.85 Municipal Administration (Water Supply) (MC) Department, 26.6.2000, the Governor of Tamil Nadu has amended the abovesaid Rules by inserting new Rule 3 to 6 in the place of Old Rule 3 to 6 of the Rules.
38. Thereafter, the State Legislature has amended the Chennai City Municipal Corporation Act and the other Acts set out above by inserting Section 326J of the Act etc.
39. According to the statement of Objects and Reasons, the reason for enacting of the Act 26 of 2000 is set out as follows:-
"STATEMENT OF OBJECTS AND REASONS: In the year 1998, the Government repealed the Tamil Nadu Acquisition of Hoardings Act, 1985 which provided for acquisition of hoardings by the Government in the urban local bodies, and made provisions in the existing Municipal and Corporation Acts to regulate the erection of such hoardings by issue of licence in accordance with the rules issued by the Government. This Act incidentally also became a compliance to High Court direction while disposing of a batch of writ petitions directing the Government to come out with a scheme to regulate such hoardings. However, against this new legislation, certain persons filed writ petitions IN THE HIGH COURT OF MADRAS and obtained stay for the provision relating to issue of licence by urban local bodies. This case is still pending disposal by the High Court.
2. While the State has thus not been able to successfully implement any scheme for regulating the hoardings, the Supreme. Court. New Delhi has delivered a judgment in the year 1998 directing the authorities to remove all hoardings in Delhi which are on road sides and therefore are hazardous and disturbance to safe traffic movement. The Government examined the whole case of regulating hoardings in the light of this judgment of the Supreme Court and have now decided to amend the Urban Local Bodies Acts in conformity with the judgment of the Supreme Court.
3. Accordingly, the Government have decided to amend the Chennai City Municipal Corporation Act, 1919 (Tamil Nadu Act IV of 1919), the Tamil Nadu District .Municipalities Act.1920 (Tamil Nadu Act V of 1920), the Madurai City Municipal Corporation Act.1971 (Tamil Nadu Act 15 of 1971). the Coimbatore City Municipal Corporation Act, 1981 (Tamil Nadu Act 9 of 1999) for the purpose to make a provision for removal of the hoardings erected within municipal limits on public or private or municipal or Government lands which are visible to the traffic on the road irrespective of whether they are on the road side or not."
40. To appreciate the issue raised it is better to extract only Section 326J of the Chennai City Municipal Corporation Act 1919, though other similar provisions have been inserted in other Acts. The said provision reads as follows:-
"326-J Prohibition of erection of certain hoardings: Notwithstanding anything contained in this Act or in any other law for the time being in force, or in any judgment, decree or order of any court, tribunal or other authority:-
(a) (i) where any hoarding (other than traffic sign and road sign) visible to the traffic on the road is hazardous and disturbance to the safe traffic movement, so as to adversely affect free and safe flow of traffic and which is in existence immediately before the date of the commencement of the Tamil Nadu Municipal Laws (Amendment) Act, 2000 (hereafter in this section referred to as the amendment Act), the Commissioner shall, by notice in writing, require the licensee or any person in possession of such hoarding, to remove such hoarding within such time as may be specified in the notice.
Provided that such time shall not exceed fifteen days from the date of issue of such notice.
(ii) where the hoarding referred to in sub-clause (i) is not removed within the time specified in the notice, the Commissioner shall, without further notice, remove such hoarding and recover the expenditure for such removal as an arrear of land revenue;
(b) (i) where the Commissioner is satisfied that the erection of any hoarding (other than traffic sign and road sign) visible to the traffic on the road is hazardous and disturbance to the safe traffic movement so as to adversely affect free and safe flow of traffic he shall not grant any licence under section 326-C and no such hoarding shall be erected, on and from the date of the commencement of the amendment Act by any person;
(ii) where any hoarding is erected in contravention of sub-clause (i), it shall be confiscated and removed by the Commissioner without any notice."
41. On the basis of the abovesaid provision in the Act and the arguments made at the Bar, the following issues arise for consideration:-
(1) Whether the associations, partnership firms business concerns and Companies who have filed the Writ Petition Nos.937 of 2001, 11453 of 1998, 16631 of 2000. 18928 of 1999. 901 of 2001, 908 of 2001, 16614 of 2000. 16621 of 2000, 909 of 2001, 938 of 2001, 947 of 2001, 16115 of 2001. 17888 of 2000,18646 of 2000, 16551 of 2000, 16618 of 2000 and 1609 of 2001 can sustain those writ petitions oh the ground that the impugned provisions of the Act violate the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India?
(2) Whether the abovesaid Act of 1998 and the Act of 2000 offend any fundamental right of the petitioners all the abovesaid writ petitions guaranteed under Article 19(1)(a) of the Constitution of India?
(3) Whether the provisions of the Act 1998 and the Act of 2000 impugned in these writ petitions violate the fundamental rights guaranteed under Article 19(1)(a) of the Constitution and whether the restrictions under the said provisions are within protective umbrella of the Article 19(2) of the Constitution of India?
(4) Whether the impugned provisions of the Acts are liable to be struck down on the ground of discrimination, as the impugned Acts only deal with the hoardings used or intended to be used for exhibiting advertisements and so the same have to be struck down?
(5) Whether Section 326-J of the Act and similar other provisions inserted in the Act are liable to be struck down on the ground of unguided power given to the authority under the said provisions without providing any guidelines and for want of any procedure to follow the principles of natural justice?
(6) While, the Act 9 of 1999 is only suspended under Ordinance 5 of 2000, in the interregnum, whether the State Legislature is justified in enacting the Act 26 of 2000?
(7) Whether the hoardings erected in the private lands would form a clause by itself and whether unequals are treated as equals under the impugned Acts though the Division Bench in 1996 WLR 765 directed the Government to have separate law for regulating the hoardings in the private land?
(8) Whether the date fixed for receiving application as published in the newspapers can be sustained, or it is contrary to Sec. 326B(2) of the Act?
1. MAINTAINABILITY Of WRIT PETITIONS FILED BY THE ASSO- CIATIONS;-
42. Some of the writ petitions are filed by the associations, challenging the provisions of the Act of 1998 and the Act of 2000 on the ground that they violate the fundamental rights guaranteed under Article 19(1)(a) of the Constitution of India.
43. Part III of the Constitution of India deals with the fundamental rights. Some fundamental rights are available to"any person", whereas other fundamental rights are available only to "all citizens". The rights given under Articles 14, 20, 21, 22, 27, 28 and 31 are available to "any person" irrespective of whether he is a citizen of India or an alien or whether a natural or artificial person, subject to the restrictions mentioned therein. Articles 15. 16, 18(2), 18(3) deal with only the citizens. Under Art. 19, all citizens have been guaranteed the rights mentioned therein. From the above, it is clear that the law makers of the Constitution deliberately and advisedly made a clear view of citizens fundamental right available to "any person", and those guaranteed to "all citizens". It is also clear from the above that all citizens are persons, but all persons cannot be citizens under the Constitution.
44. Even Art. 19, sub-clauses (a) to (e) contemplates the naturall persons. Though the word citizen has not been defined under Art. 19, its meaning in the context of Art. 19 must be found out. While doing so, the Hon'ble Judges of the Apex Court, in the decision in S.T.Corpn. of India v. Commercial Tax Officer, AIR 1963 S.C. 1811, have held as follows:-
'We must, therefore, hold that these two provisions are completely exhaustive of the citizens of this country and these citizens can only be natural persons. The fact that corporations may be nationals of the country for purposes of international law will not make them citizens of this country for purposes of municipal law or the Constitution. Nor do we think that the word "citizen" used in Article 19 of the Constitution was used in a different sense from that in which it was used in Part II of the Constitution. The first question, therefore, must be answered in the negative."
45. Following the earlier decisions of the Supreme Court, the Hon'ble Judges of the Supreme Court in the decision in Divisional Forest Officer v. Bishwanath Tea Co. Ltd., , while dealing with the right of a company to sustain the writ petition on the basis of violation of fundamental right claimed under Article 19(1)(g) of the Constitution of India; has held as follows:-
"The respondent not being a citizen was not entitled to complain of breach or violation of fundamental right under Art. 19(1)(g). (See State Trading Corporation of India Ltd. v. The Commercial Tax Officer Vishakhapatnam, and Tata Engineering and
Locomotive Co. v. State of Bihar or
. However, the shareholders of a company can
complain of infringement of their fundamental rights (See Benefit Coleman and Co. v. Union of India, . Such is not
the case pleaded. Therefore the writ petition on the allegation of infringement of fundamental right under Art. 19(1)(g) at the instance of respondent company alone was not maintainable.
46. Recently, following the above said decision the Division Bench of this Court in the decision in Seaways Shippings Ltd. v. The Board of Trustees of the Port of Madras Port, 1999 (3) CTC 318, has held as follows:-
"49. The learned senior counsel for the third respondent Mr.Habibullah Badsha also pointed out a technical snag as regards Article 19(1)(g) by referring to a decision of the Supreme Court reported in The Divisional Forest Officer v. Bishwanath Tea Co. Ltd., . He pointed out that this petition was only by a company and not by a citizen and, therefore, technically the petitioner could not argue of any violation of Article 19(1)(g) as that right was available only to a citizen and not to a company. The argument is undoubtedly correct."
47. Mr.K.Subramanian, learned Senior counsel appearing for the respective petitioners has relied on the decisions in A.B.S.K.Sangh (Rly.) v. Union of India, , in T.N.P.D.O.Association v. Secretary to Government of India, T.N.R.D. & L.A. Department, AIR 1989 Had. 224 and in Umeshchand v. Krishi Upandan Mandi Samiti, , to sustain his submission that the association can sustain the writ petitions. There cannot be any doubt that the associations can sustain the writ petitions. As stated already, the Associations have filed the writ petitions on the ground that their fundamental rights guaranteed under Article 19(1)(g) of the Constitution have been violated. The above cited decisions are not answer to the issue in question. On the other hand, in view of the direct decisions of the Apex Court, the writ petitions filed by the Associations, partnership firms, business concerns and companies on the basis of violation of fundamental rights cannot be sustained as they are not citizens. So, those writ petitions are liable to be dismissed on these grounds also.
II. FREEDOM OF SPEECH AND EXPRESSION - VIOLATION OF ARTICLE 19(1)(a) OF THE CONSTITUTION OF INDIA UNREASONABLE RESTRICTION:
48. Mr.Shanthi Bhushan, learned Senior Counsel appearing for the respective petitioners has advanced his arguments in the batch of writ petitions, basing on violation of fundamental right guaranteed under the Constitution of India. According to him, commercial advertisements through hoardings are the cheapest one which can reach the common people, and they would be beneficial for them. To claim protection under Article 19(1)(a) of the Constitution, he has submitted that commercial advertisement are part of commercial speech and so unless the State is able to bring the Act within the ambit of Article 19(2) of the Constitution of India, they cannot save the Act. On the other hand, any violation of right guaranteed under Article 19(1)(a) of the Constitution can be saved only if the restrictions enacted in the Statute fall within the four corners of Article 19(2) of the Constitution of India. The State cannot rely on the protection contemplated under Article 19(6) of the Constitution of India. He has further submitted that the question of reasonableness of the restrictions have to be decided on the background of the existing law, and whether there was any need for passing the impugned Legislature.
49. Freedom of speech and expression means the right to express ones convictions and opinions freely by word of mouth, writing, painting, picture or electronic media or in any other manner addressed to the eyes and ears. The right to freedom of speech and expression includes the right to educate, to inform and to entertain and also the right to be educated, informed and entertained. Commercial advertisement is a form of speech guaranteed under Article 19(1)(a) of the Constitution.
50. When testing the constitutionality of the Drugs and Magic Remedies (Objectionable Advertisements) Act (1954), enacted to control the advertisement of drugs in certain cases, and to prohibit the advertisement for certain purposes of remedies, alleged to possess magic qualities and to provide for matters connected therewith, in the decision in Hamdard Dawakhana v. Union of India, , it is held as follows:-
"17. An advertisement is no doubt a form of speech but its true character is reflected by the object for the promotion of which it is employed. It assumes the attributes and elements of the activity under Art. 19(1) which it seeks to aid by bringing it to the notice of the public. When it takes the form of a commercial advertisement which has an element of trade or commerce it no longer falls within the concept of freedom of speech for the object is not propagation of ideas - social political or economic or furtherance of literature or human thought, but as in the present case the commendation of the efficacy, value and importance in treatment of particular diseases by certain drugs and medicines.
... ...... .......
18. It cannot be said therefore that every, advertisement, is a matter dealing with freedom of speech nor can it be said that it is an expression of ideas, in every case one has to see what is the nature of the advertisement and what activity falling under Art. 19(1) it seeks to further. The advertisements in the instant case relate to commerce or trade and not to propagating of ideas; and advertising of prohibited drugs or commodities of which the sale is not in the interest of the general public cannot be speech within the meaning of freedom of speech and would not fall within Art. 19(1)(a). The main purpose and true intent and aim, object and scope of the Act is to prevent self-medication or self-treatment and for that purpose advertisements commending certain drugs and medicines have been prohibited. Can it be said that this, is an abridgement of the petitioners right of free speech."
51. The Hon'ble Judges have relied on the decision in John W. Rast v. Van Demon and Lewis Company, 1915 (60) Law Ed. 679 at p.690, in which it is held that "Advertisement is merely identification and description, apprising of quality and place. It has no other object than to draw attention to the article to be sold and the acquisition of the article to be sold constitutes the only inducement to its purchase. Relying on the said decision, the Apex Court has further held as follows:-
"As we have said above advertisement takes the same attributes as the object it seeks to promote or bring to the notice of the public to be used by it. Examples can be multiplied which would show that advertisement dealing with trade and business has relation with the item "business or trade' and not with "freedom of speech". Thus advertisements sought to be banned do not fall under Art. 19(1)(a)."
52. Further, in the decision in Sakal Papers (P) Ltd. v. Union of India, , the Hon'ble Judges of the Apex Court have dealt with the validity of the provisions of Newspaper (Price and Page) Act, 1956 and Daily Newspaper (Price and Page Order, 1960. It was the case of the petitioners therein that the impugned Act and Order would have the effect of either compelling them to increase the price or to reduce the number of pages of practically every newspaper in the country as also of preventing them from publishing supplements without extraneous restrictions which they are able to do at present. Varying from the view of the abovesaid decision, the Apex Court has held that the right of freedom of speech cannot be taken away with the object of placing restrictions on the business activities of the citizen, and it further held as follows:-
"38. Viewing the question from this angle it would be seen that the reference to the Press being a business and to the restriction imposed by the impugned Act being referable or justified as a proper restriction on the right to carry on the business of publishing a newspaper would be wholly irrelevant for considering whether the impugned Act infringes or does not infringe the freedom guaranteed under Art. 19(1)(a)."
Ultimately, the Apex Court, in the abovesaid decision has held as follows:-
42. Its object thus is to regulate something which, as already stated, is directly related to the circulation of a newspaper. Since circulation of a newspaper is a part of the right of freedom of speech the Act must be regarded as one directed against the freedom of speech. It has selected the fact or thing which is an essential and basic attribute of the conception of the freedom of speech, viz., the right to circulate ones view to all whom one can reach or care to reach for the imposition of a restriction. It seeks to achieve its object of enabling what are termed the smaller newspapers to secure larger circulation by provisions which without disguise are aimed at restricting the circulation of what are termed the larger papers with better financial strength. The impugned law far from being one, which merely interferes with the right of freedom of speech incidentally, does so directly though it seeks to achieve the end by purporting to regulate the business aspect of a newspaper. Such a course is not permissible and the courts must be ever vigilant in guarding perhaps the most precious of all the freedom guaranteed by our Constitution."
53. The next case on the point is Odyssey Communications Pvt. Ltd., v. Lokvidayan Sanghatana, . In this case, the right of a citizen to exhibit films on the Doordarshan was tested in the light of the right guaranteed under Article 19(1)(a) of the Constitution of India, while considering the correctness of the injunction issued by the High Court of Bombay, Aurangapad Bench preventing the telecast of episodes 12 and 13 of a serial entitled Honi Anthoni on the ground that the serial was likely to spread false, blind and superstitious beliefs among the public, the Apex Court set aside the said order, holding as follows:-
"It can no longer be disputed that the right of a citizen to exhibit films on the Doordarshan subject to the terms and conditions to be imposed by the Doordarshan is a part of the fundamental right of freedom of expression guaranteed under Article 19(1)(a) of the Constitution of India which can be curtailed only under circumstances which are set out in clause (2) of Article 19 of the Constitution of India. The right is similar to the right of a citizen to publish his views through any other media such as newspapers, magazines, advertisement, hoardings, etc. subject to the terms and conditions of the owners of the media. We hasten to add that what we have observed does not mean that a citizen has a fundamental right to establish a private broadcasting station, or television centre. On this question we reserve our opinion."
54. Ultimately, the Apex Court, in the abovesaid decision has not expressed about the right of a citizen to publish private broadcasting station or television centre and it was reserved to an appropriate case.
55. In the decision in Rangarajan v. Jagajivanram, , the Hon'ble judges of the Apex Court has dealt with the scope of freedom of speech under Article 19(1)(a) of the Constitution of India, and it was held that it means the right to express one's opinion by words of mouth, writing, printing, picture or any other manner. It would thus include the freedom of communication and the right to propagate or public opinion, the communication. But this right is subject to reasonable expression in the larger interest of the community and the country as set out under Article 19(2) of the Constitution.
56. Though these restrictions are intended to strike appropriate balance between liberty guaranteed and the social interest specified in Article 19(2) of the Constitution, relying on U.S. decisions in Mutual Film Corporation v. Industrial Commission, 1914 (238) U.S. 230 etc., the Hon'ble Supreme Court has held that Court cannot balance the two interests as if they are of equal weights. The Court's commitment to freedom of expression demands that it cannot be suppressed unless the situation created by allowing freedom are pressing and the community interest is endangered.
57. While considering the scope of freedom of press, in the decision in Printers (Mysore) Ltd, v. Assistant Commercial Tax Officer, . on the basis of Article 19(1)(a) of the
Constitution, the Apex Court has held that special treatment should be given to the newspapers as it has philosophy and historical background. It is also held that the freedom of press has been placed on a higher footing than other enterprises. They nave also approved the draft description of newspaper as a fourth estate.
58. Even in the decision in Life Insurance Corpn. of India v. Manubhaib Shah, , the Apex Court has held as follows:-
"8. The words "freedom of speech and expression" must, therefore, be broadly construed to include the freedom to circulate one's views by words of mouth or in writing or through audio-visual instrumentalities. It, therefore, includes the right to propagate one's views through the print media or through any other communication channel e.g. the radio and the television. Every citizen of this free country, therefore, has the right to air his or her views through the printing and/or the electronic media subject of course to permissible restrictions imposed under Article 19(2) of the Constitution. The print media, the radio and the tiny screen play the role of public educators, so vital to the growth of a healthy democracy. Freedom to air one's views is the lifeline of any democractic institution and any attempt to stifle, suffocate or gag this right would sound a death-knell to democracy and would help usher in autocracy or dictatorship. It cannot be gainsaid that modem communication mediums advance public interest by informing the public of the events and developments that have taken place and thereby educating the voters, a role considered significant for the vibrant functioning of a democracy. Therefore, in any set-up, more so in a democratic set-up, like ours, dissemination of news and views for popular consumption is a must and any attempt to deny the same must be frowned upon unless it falls within the mischief of Article 19(2) of the Constitution. It follows that a citizen for propagation of his or her ideas has a right to publish for circulation his views in periodicals, magazines and journals or through the electronic media since it is well known that these communication channels are great purveyors of news and views and make considerable impact on the minds of the readers and viewers and are known to mould public opinion on vital issues of national importance. Once it is conceded, and it cannot indeed be disputed, that freedom of speech and expression includes freedom of circulation and propagation of ideas, there can be nodoubt that the right extends to the citizen being permitted to use the media to answer the criticism levelled against the view propagated by him. Every free citizen has an undoubted right to lay what sentiments be pleases before the public, to forbid this, except to the extent permitted by Article 19(2). would be an inroad on his freedom. This freedom must, however, be exercised with circumspection and care must be taken not to trench on the rights of other citizens or to jeopardise public interest. It is manifest from Article 19(2) that the right conferred by Article 19(1)(a) is subject to imposition of reasonable restrictions in the interest of, amongst others, public order, decency or morality or in relation to defamation or incitement to an offence. It is, therefore, obvious that subject to reasonable restrictions placed under Article 19(2) a citizen has a right to publish, circulate and disseminate his views and any attempt to thwart or deny the same would offend Article 19(1)(a).
59. The Apex Court in the decision in Secretary, Ministry of I & B. v. Cricket Assocn., Bengal, , after relying on earlier decisions on the issue, summarised the law on freedom of speech and expression under Article 19(1)(a) of the Constitution as restricted the same by Article 19(2) and held as follows:-
"11. We may now summarise the law on the freedom of speech and expression under Article 19(1)(a) as restricted by Article 19(2). The freedom of speech and expression includes right to acquire information and to disseminate it. Freedom of speech and expression is necessary, for self-expression which is an important means of free conscience and self-fulfilment. It enables people to contribute to debates of social and moral issues. It is the best way to find a truest model of anything, since it is only through it, that the widest possible range of ideas can circulate. It is the only vehicle of political discourse so essential to democracy. Equally important is the role it plays in facilitating artistic and scholarly endeavours of all sorts. The right to communicate, therefore, includes right to communicate through any media that is available whether print or electronic or audio-visual such as advertisement, movie, article, speech etc. That is why freedom of speech and expression includes freedom of the press. The freedom of the press in terms includes right to circulate and also to determine the volume of such circulation. This freedom includes the freedom to communicate or circulate one's opinion without interference to as large a population in the country as well as abroad as is possible to reach.
This fundamental right can be limited only by reasonable restrictions under a law made for the purposes mentioned in Article 19(2) of the Constitution.
The burden is on the authority to justify the restrictions. Public order is not the same thing as public safety and hence no restrictions can be placed on the right to freedom of speech and expression on the ground that public safety is endangered. Unlike in the American Constitution, on limitations on fundamental rights are specifically spelt out under Article 19(2) of our Constitution. Hence no restrictions can be placed on the right to freedom of speech and expression on grounds other than those specified under Article 19(2)."
60. The Hon'ble Judges distinguished businessman and newspaper publishing advertisements and have held as follows;-
"Merely because an organisation may earn profit from an activity whose character is predominantly covered under Article 19(1)(a), it would not convert the activity into one involving Article 19(1)(g). The test of predominant character of the activity has to be applied. It has also to be ascertained as to who is the person who is utilizing the activity. If a businessman were to put in an advertisement for simpliciter commercial activity, it may render the activity, the one covered by Article 19(1)(g). But even newspapers or a film telecast or sports event telecast will be protected by Article 19(1)(g) merely because it earns money from advertisements in the process.
Similarly, if the cricket match is telecast and profit is earned by the licensing of telecasting right and receipts from advertisements, it will be an essential element for utilization and fulfilment of its object. The said object cannot be achieved without such revenue." Ultimately, the Hon'ble Judges have held as follows;
"24. We, therefore, hold as follows:- (i) The airwaves or frequencies are a public property. Their use has to be controlled and regulated by a public authority in the interest of the public and to prevent the invasion of their rights. Since the electronic media involves the use of the airwaves, this factor creates an in-built restriction on its use as in the case of any other public property.
(ii) The right to impart and receive information is a species of the rights of freedom of speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen has a fundamental right to use the best means of imparting and receiving information and as such to have an access to telecasting for the purpose. However, this right to have an access to telecasting has limitations on account of the use of the public property, viz., the airwaves, involved in the exercise of the right and can be controlled and regulated by the public authority. This limitation imposed by the nature of the public property involved in the use of the electronic media is in addition to the restrictions imposed on the right to freedom of speech and expression under Article 19(2) of the Constitution."
61. Another important decision that is relied on by the learned senior counsel appearing for the petitioners is that the decision in TATA Press Ltd. v. Mahanagar Telephone Nigam Ltd., . The said decision arises out of civil suit instituted before the Bombay City Civil Court at Bombay by Mahanagar Telephone Nigam Ltd., and the Union of India for declaration that they alone have the right to print, edit and publish the list of telephone subscribers and that the same cannot be printed or published by any other person without express permission of Nigam/Union of India. Further declaration was also sought that Tata Press Ltd. has no right whatsoever to print edit publish and circulate the compilation called "Tata Press Yellow Pages". While considering the arguments of the learned counsel appearing for the appellant that the commercial speech is protected under Article 19(1)(a) of the Constitution, the Apex Court ultimately held that commercial speech is a part of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution. Deviating from the earlier decisions, the Hon'ble Judges of the Apex Court in the said decision, following the decisions in Hanard Dawakhana v. Union of India, , and in Indian Express Newspapers (Bombay) Private Lid. v. Union of India, , have come to the conclusion that commercial speech cannot be denied protection under Article 19(1)(a) of the Constitution, merely because the same are issued by businessman. The reason for such conclusion as set out in the said decision is as follows:-
"19. Advertisement is considered to be the cornerstone of our economic system. Low prices for consumers are dependent upon mass production, mass production is dependent upon volume 1956. The said Act empowered the Government to regulate the prices of newspaper in relation to their pages and sizes and to regulate allocation of space for advertisement matter. This Court held that the Act placed restraints on the freedom of press to circulate. This Court further held that the curtailment of the advertisements would bring down the circulation of the newspaper and as such would be hit by Article 19(1)(a) of the Constitution of India. In Sakal Paper's case, . it was argued before this Court that the
publication of advertisements was a trading activity. The diminution of advertisement revenue could not be regarded as an infringement of the right under Article 19(1)(a). It was further argued before this Court that devoting large volume of space to advertisements could not be the lawful exercise of the right of freedom to speech and expression or the right of dissemination of news and views. It was also contended that instead of raising the price of the newspaper the object could be achieved by reducing the advertisements. This Court rejected the contention and held as under (para 33 and 34 of AIR):--
"Again S.3(1) of the Act in so far as it permits the allocation of space to advertisements also directly affects freedom of circulation. If the area for advertisements is curtailed the price of the newspaper will be forced up. If that happens, the circulation will inevitably go down. This would be no remote; but a direct consequence of curtailment of advertisements. If. on the other hand, the space for advertisement is reduced the earnings of a newspaper would go down and it would either have to run at a loss or close down or raise its price. The object of the Act in regulating the space for advertisements is stated to be to prevent "unfair" competition. It is thus directed against circulation of a newspaper. When a law is intended to bring about this result there would be a direct interference with the right of freedom of speech and expression guaranteed under Article 19(1)(a).
21. This Court in Bennen Coleman & Co. v. Union of India, held as under:-
"The law which lays excessive and prohibitive burden which would restrict the circulation of a newspaper will not be saved by Article 19(2). If the area of advertisements is restricted, price of paper goes up. If the price goes up circulation will go down. This was held in Sakal Papers Case, to be the direct
consequence of curtailment of advertisement. The freedom of a newspaper to publish any number of pages or to circulate it to any number of persons has been held by this Court to be an integral part of the freedom of speech and expression. This freedom is violated by placing restraints upon it or by placing restraints upon something which is an essential part of that freedom. A restraint on the number of pages, a restraint on circulation and a restraint on advertisements would affect the fundamental right under Article 19(1)(a) on the aspects of propagation, publication and circulation."
22. Advertising as a "commercial speech" has two facets. Advertising which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product- advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech". In relation to the publication and circulation of newspapers, this Court in Indian Express Newspaper's case, AIR 1966 SC 515, Sakal Paper case, and
Bennett Colemna's case, , has authoritatively held that any restraint or curtailment of advertisement would affect the fundamental right under Article 19(1)(a) on the aspects or propagation, publication and circulation.
23. Examined from another angle, the public at large has a right to receive the "commercial speech". Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The receipient of "commercial speech" may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.
24. We, therefore, hold that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution.'
On the basis of the abovesaid decisions, the learned senior counsel appearing for the respective petitioners has contended that the petitioners are protected under Article 19(1)(a) of the Constitution, though subject to Article 19(2) of the Constitution. According to him, though it is a commercial advertisement, as held by the Apex Court in the decision of the Apex Court in TATA Press Ltd. v. Mahanagar Telephone Nigam Ltd., they are entitled to protection under Article 19(1)(a) of the Constitution, as the hoardings of the petitioners are being used for commercial advertisements, and on that basis the learned senior counsel has submitted that the impugned provisions cannot be protected under Article 19(2) of the Constitution, as they are unreasonable, and the purpose of such enactment has no nexus to the object to be achieved.
62. The said submission of the learned senior counsel and other counsel appearing for the petitioners, who supported the abovesaid submission cannot be sustained, in view of the admitted fact that all the petitioners are the owners of the hoardings only; i.e. they own the hoardings as structures. They are not authors of the context of the advertisements, and they are not concerned with the advertisements. After erection, of hoardings, they have given permission to the advertisers to advertise the matter, for a particular period. In some cases, at the request of the advertisers and on payment, they are simply engaging the painters to paint the text of the advertisements found in the board. So, when the petitioners are nothing to do with the advertisements, they cannot claim any right on the basis of the advertisements, merely because the hoardings are being used as base for the advertisements. The petitioners who have erected the hoardings cannot claim any right under Art. 19(1)(a) of the Constitution so as to challenge the provisions, as they have violated any one of the rights given under Article 19(1)(a) of the Constitution, and no argument was advanced on the basis of Article 19(1)(g) of the Constitution. Since the petitioners are not guaranteed with the rights under Art. 19(1)(a) of the Constitution, the basis on which the challenge has been made regarding the constitutionality of the impugned provisions cannot be sustained. On the other hand, the petitioners are not having any locus-standi to challenge the constitutionality of the impugned Acts under the guise of; violation of the rights alleged to have been conferred under Art. 19(1)(a) of the Constitution.
63. Though the learned counsel appearing for the respective petitioners have tried to rely on Sakal Papers Pvt. Ltd., case, ; Indian Express Newspapers case, AIR 1966 SC 515 and Tata Press Ltd, case, in support of their submission that since
hoardings are the basis for the advertisements, and they are also entitled for protection under Article 19(1)(a) of the Constitution, we are not inclined to accept the said argument. With respect to the newspapers, the Apex Court has categorically held that without advertising the resources available on the expenditure "news" would decline which may lead to an erosion of quality and quantity and the cost of "news" to the public would increase thereby restricting the democratic availability, it was further held that the curtailment of the advertisements would bring down the circulation of newspapers and as such it would be hit by Article 19(1)(a) of the Constitution. So, the conclusion of the Hon'ble Judges only on the basis that newspaper itself is having protection under Article 19(1)(b) of the Constitution and any curtailment by way of restriction of the advertisements, will affect the said right of the newspaper.
64. The abovesaid decisions of the Apex Court answer the important issue raised in the present cases, namely, whether the Government could place restrictions on the hoardings even if they are protected under Article 19(1)(a) of the Constitution within the ambit of Article 19(2) of the Constitution? But as already discussed the Hoardings by themselves are not protected under Article 19(1)(a) of the Constitution. The entire argument was focused only on the basis of the advertisements which are protected under Art. 19(1)(a) of the Constitution. It is not their case that that the hoardings are protected under Article 19(1)(a) of the Constitution. The petitioners are nothing to do with the advertisements, except giving permission to third parties for advertising the matters.
65. It is also relevant to mention here that the persons who advertised on the hoardings are not before this Court and they have not challenged the provisions. Moreover, the impugned Act relates only to regulate the erection of hoardings, and not with reference to the advertisement itself. When the persons who have advertised the matter which has to reach the public have not challenged the provisions, as the impugned provisions are only regulating the erection of hoardings, the petitioners have no locus-standi to come forward with the plea that by removal of hoardings for the reasons set out in the impugned provisions, their fundamental right under Art. 19(1)(a) is affected. In our considered view the petitioners cannot claim any such right at all. No right can be claimed by the petitioners under Article 19(1)(a) of the Constitution, as they are only persons who had erected the hoardings.
66. The learned senior counsel referring to Sec. 326A of the Act 51 of 1998 has submitted that under the said provision, only the screens or boards intended to be used or used for exhibiting advertisements alone have been defined as hoardings, and if the said screens or boards are used for any other purpose such as political purpose or for any other information by the departments, they will not come under the said definition. On that basis the learned senior counsel has submitted that there is a discrimination, and the same offends Article 14 of the Constitution of India. The said submission is not available to the petitioners.
67. In Webster Dictionary, 1989 Edition, "advertisement" has been defined as follows;-
"A public notice especially in print action making generally known the calling to the attention of the public."
Advertisement can be a commercial one or a general one. The word advertisement mentioned under Sec. 326-A of the Act should be understood as it means the matters published for the purpose of attracting the public attention in general.
68. From the above, it is clear that the said definition cannot be given restricted meaning applying only to the commercial advertisements alone. It will apply to any other information also by advertisement, through hoarding. So, while amending the Rule in G.O.Ms. No. 85, Municipal Administration and Water Supply, dated 26.6.2000, it is stated that any person including State or Central Government Department intending to have hoarding in the municipal limit either in State or Central or municipal or private land or in public land "exhibiting advertisements or for exhibiting information" shall apply to the Commissioner for licence. Even in Sec. 326-J of the Act, which was inserted by Act of 2000, it is stated that the said provision will apply to any hoarding other than traffic sign and road sign. Moreover, the Act has to be read along with the Rules. If it is so, Sec. 326-A alone cannot be taken in isolation to understand the definition. Such a view has been taken by the Apex Court in P.Kasilingam v. P.S.G.College of Technology, 1995 Supp. (2) SCC 348, in which it is held as follows:-
"20. The Rules have been made in exercise of the power conferred by Section 53 of the Act. Under Section 54(2) of the Act every rule made under the Act is required to be placed on the table of both Houses of the Legislature as soon as possible after it is made. It is accepted principle of statutory construction and "rules made under a statute are a legitimate aid to construction of the statute as contemporanea expositio." (See : Crates on Statute Law, 7th Edn., pp.157 - 158, Tata Engineering and Locomotive Co. Ltd. v. Gram Panchayat, Pimpri Waghere, . Rule 2(b) and Rule
2(d) defining the expression "College" and "Director" can, therefore, be taken into consideration as contemporanea expositio for construing the expression "private college" in Section 2(8) of the Act. Moreover, the Act and the Rules form part of a composite scheme. Many of the provisions of the Act can be put into operation only after the relevant provision or form is prescribed in the Rules. In the absence of the Rules the Act cannot be enforced. If it is held that Rules do not apply to technical educational institutions the provisions of the Act cannot be entered in respect of such institutions. There is, therefore, no escape from the conclusion that professional and technical educational institutions are excluded from the ambit of the Act and the High Court has rightly taken the said view.
Since we agree with the view of the High Court that professional and technical educational institutions are not covered by the Act and the Rules, we do not consider it necessary to go into the question whether the provisions of the Act fall within the ambit of Entry 25 of List III and do not relate to Entry 66 of List I."
69. In view of the above, the submission on the basis of discrimination cannot be sustained in law.
IV. APPLICABILITY Of THE ACT 51 OF 1998 TO THE HOARDINGS WHICH ARE IN EXISTENCE ON THE DATE OF THE ACT CAME INTO FORCE;
70. Mr.Shanthi Ehushan, learned senior counsel appearing for the petitioners has submitted that the hoardings erected by the petitioners were on the basis of the licence/permission given by the concerned authorities. But, in the impugned provisions no safeguard has been made to such persons. According to him. Sec. 326-A will apply only to the persons who are going to erect the hoardings on or after the date of commencement of the Act. Sec. 326-B of the Act will apply to the persons who had erected any hoarding without obtaining a licence and which was not in existence immediately before the date of commencement of the Ordinance. Referring to the said provisions, the learned Senior Counsel has submitted that both the provisions will not apply to the petitioners for whom the learned senior counsel is appearing. According to him, without enacting a provision which could be made applicable to them, the authorities should nol be allowed to interfere with such hoardings especially when the Apex Court has granted status-quo to be maintained. We are not able to accept the said submission also for the following reasons.
71. For the first time in the State, the provisions for granting licence to the hoardings were introduced by Ordinance No.2 of 1998. It cannot be said that the petitioners will come under Sec. 326-B. Sec. 326-B of the Act will apply only to the persons who got licence to have the hoardings. Even according to the petitioners, they have got permission from the concerned authorities only to use the particular site on which the hoardings have been erected. It does not mean that the same has to be treated as licence to have the hoardings themselves. The Government to regulate the hoardings have introduced the licensing provisions. So, even the petitioners who have erected hoardings before the date of commencement of the Act by obtaining of permission in respect of the site, have to apply for licence in accordance with the said Act. Permission given to use the site for erection of hoardings cannot be construed as licence to erect hoardings themselves. So, the said submission also cannot be sustained.
V. NO GUIDELINES TO IMPLEMENT THE ACTS
72. Referring to the impugned provisions, Mr.Shanthi Bhushan, learned senior counsel and other learned counsel appearing for the petitioners have submitted that no guideline is contemplated to implement the provisions of the Act, and to discharge their functions under the said provisions. According to the learned counsel, before exercise of power and passing orders under Sec. 326-J of the Act, no notice need be given, and there is no provision to challenge the order by filing Appeal. Under Sec. 326-J of the Act, power is given to the Commissioner to remove any hoardings, other than traffic sign and road sign, visible to the traffic on the road which are hazardous and disturbance to the safe traffic movement so as to adversely affect free and safe flow of traffic. Referring to the said provision, the learned counsel have submitted that in the absence of any guideline for exercising the powers by the delegated authority, the same will lead the authority, to act according to his own will, and arbitrarily.
73. The learned senior counsel has relied on the decision in A.M.Parasuraman v. State of Tamil Nadu, , in support of his submission. In the said decision, the Apex Court has dealt with the scope of Sec.22 of the Tamil Nadu Private Educational Institutions (Regulation) Act, 1966, under which the power to exempt any institution from the provisions of the said Act was given to the State Government. The said Section was impugned on the ground that it does not lay down any guidelines for exercising the powers by the delegated authority. The Apex Court, following the earlier decisions in the State of West Bengal v. Anwar Ali Sarkar, and in Harakchand
Ratanchand v. Union of India, , declared the impugned Sections of the said Act held invalid. The reason for coming to such conclusion is as follows:-
"6. The purpose of the Act is said to regulate the private educational institutions but does not give any idea as to the manner in which the control over the institutions can be exercised. The Preamble which describes the Act "for regulation" is not helpful at all. Learned counsel for the State said that the Objects and the Reasons for the Act are to eradicate corrupt practices in private educational institutions. The expression "private educational institution" has been defined as meaning any college, school or other institution "established and run with the object of preparing, training or guiding its students for any certificate, degree or diploma", and it can, therefore, be readily inferred that the purpose of the Act is to see that such institutions do not exploit the students; and while they impart training and guidance to the students of a standard which may effectively improve their knowledge so as to do well at the examination, they do not charge exorbitantly for their services. But the question is as to how this objective can be achieved. Section 6 which empowers the competent authority to grant or refuse to grant the permission for establishing and running an institution does not give any idea as to the conditions which it has to fulfil before it can apply for permission under the Act, nor are the tests indicated for refusing permission or cancelling under Section 7 of an already granted permission. The authority concerned has been left with unrestricted and unguided discretion which renders the provisions unfair and discriminatory."
74. But, the validity of the provisions for want of guidelines cannot be agitated by stereo-typed Rule. The guidelines can be impliedly provided by the Act itself. Sec. 326-J of the Act provides power to remove all the hoardings which are visible to the traffic. This view of ours is supported by the decision in Corpn. of Calcutta v. Liberty Cinema, , in which it is held as follows:-
"31. The portion in the judgment in Bhana Mal Gulzari Mal's case, quoted in the preceding paragraph will show that
the validity of the guidance required to make delegation of power good cannot be judged by a stereotyped rule. With respect, we entirely agree with this view. The guidance furnished must be held to be good if it leads to the achievement of the object of the statute which delegated the power. The validity of the power to fix rates of taxes delegated to the Corporation by Section 548 of the Act must be judged by the same standard. Now there is no dispute that all taxes, including the one under this section can be collected and used by the Corporation only for discharging its functions under the Act. The Corporation, subject to certain controls with which we are not concerned, is an autonomous body. It has to perform various statutory functions. It is often given power to decide when and in what manner the functions are to be performed. For all this it needs money and its needs will vary from time to time with the prevailing exigencies. Its power to collect tax, however, is necessarily limited by the expenses required to discharge those functions. It has, therefore, where rates have not been specified in the statute, to fix such rates as may be necessary to meet its needs. That, we think, would be sufficient guidance to make the exercise of its power to fix the rates valid. The case is as if the statute had required the Corporation to perform duties A, B, and C give power to levy taxes to meet the costs to be incurred for the discharge of these duties and then said that, "provided, however, that the rates of the taxes shall be such as would bring into the Corporation's hands the amount necessary to defray the costs of discharging the duties." We should suppose, this would have been a valid guidance. We mink the Act in the present case impliedly provides the same guidance; see S. 127(3) and (4). It would be impracticable to insist on a more rigid guidance. In the case of a self-governing body with taxing powers, a large amount of flexibility in the guidance to be provided for the exercise of that power must exist. It is hardly necessary to point out that, as in the cases under Essential Supplies (Temporary Powers) Act, 1946, so in the case of a big municipality like that of Calcutta, its needs would depend on various and changing circumstances. There are epidemics, influx of refugees, labour strikes, new amenities to be provided for such as hospitals, schools - and various other such things may be mentioned which make it necessary for a colossal municipal Corporation like that of Calcutta to have a large amount of flexibility in its taxing powers. These considerations lead us to the view that S.548 is valid legislation. There is sufficient guidance in the Act as to how the rate of the levy is to be fixed."
75. Also in T.R.Thandur v. Union of India, , it is held as follows:-
"Cases falling under Clause (b) for grant of exemption may be rare, but it cannot be said that the enactment of Clause (b) is an exercise in futility which does not permit grant of exemption in any case of undue hardship with permissions also to transfer. Whether there is undue hardship of the kind envisaged therein, is a question of fact in each case. The entire provisions in Clause (b) has to be given full effect and in a case falling within the ambit of Clause (b), the effect of the order of exception is to exempt such vacant land from the provisions of Chapter III and, therefore, also from the restriction on transfer of such land. To hold that any land exempted under Clause (b) cannot be transferred irrespective of the conditions of the exemption is to rewrite the provision which enacts that, subject to the conditions specified in the order of exemption, such vacant land would be exempt from the provisions of Chapter III, which means the exemption is also from provisions prohibiting transfer enacted in Chapter III. It is clear that any case which can legitimate fall within Clause (b) would be outside the ambit of Clause (a), and Clause (b) is restricted in its application. Whether a case fails within the ambit of Clause (b) is again a question of fact and if any dispute arises it will have to be tested judicially on the facts of that case. Similarly, the validity of the exercise of power of exemption under Clause (b) would also depend on the facts of each case as it would in respect Clause (a). But that is different from saying that a case of undue economic hardship to the owner resulting from the application of the provisions of Chapter III can in no case fall under Clause (b) to empower the State Government to grant exemption thereunder subject to appropriate conditions attached to the order of exemption."
76. While rejecting the argument of the learned senior counsel to the effect that Sec.172(2) of the U.P.Nagar Mahapalika Adhiniayam, 1959, is unconstitutional, on the basis that the power
delegated was unguided and uncanalised, the Apex Court has held as
"7..... We do not agree with the learned counsel. S.172(2) of the Act authorises the Mahapalikas to impose the taxes mentioned therein, "for the purposes of this Act", the obligations and functions cast upon the Mahapalikas are laid down in various provisions of the Act. The taxes under S.172(2) of the Act, therefore, can be levied by the Mahapalikas only for implementing those purposes and for no other purpose. The Mahapalikas have to provide special civic amenities at the places where cinemas/theatres are situated. So long as the tax has a reasonable relation to the purposes of the Act the same cannot be held to be arbitrary. The rate of tax to be levied and the persons or the class of persons liable to pay the same is determined by inviting objections which are finally considered and decided by the Slate Government. There is no force in the argument that the Legislature has abdicated its function to the Mahapalikas. The tax is levied in accordance with the statutory rules framed by the State Government and the said rules are laid before each House of the State Legislature for not less than 14 days and are subject to such modifications as the Legislature may make during the session they are so laid. The view we have taken, we are supported by the judgments of this Court, in Goopal Narain v. State of Uttar Pradesn, and The
Western India Theatres Limited v. Municipal Corporation of the City of Poona, . We, therefore, reject the contention
raised by the learned counsel for the petitioners."
From the abovesaid decisions, it is clear that guidelines can be derived from the Act itself. As stated already, the authorities are having power to remove all the hoardings which are visible to traffic and so the question of giving power to decide about the nature and type of hoardings to be removed will not arise. The delegated authority has no other option except to remove all the hoardings which are visible to the traffic as they are hazardous and disturbance to the traffic movement. So the submission that Sec. 326-J of the Act has to be struck down for want of guidelines cannot be countenanced.
77. It is the case of the petitioners that wide power has been given to the authorities and no in-built check revealed from the Sections. On that basis, it was contended that the impugned provisions are liable to be struck down. Referring to Sec. 326-J of the Act, Mr. Somayaji, learned Senior Counsel appearing for the petitioners has submitted that power is given to the authorities to remove all the hoardings which are visible to the road traffic, and no discretion is given to the authorities. Even if such power is given, on that ground alone, the impugned Acts cannot be struck down. The said submission is supported by the decision of the Apex Court in Consumer Action Group v. State of T.N., , wherein the Apex Court, relying on the
decision in A.N.Parasuracan v. State of T.N., , has held as follows:-
"30. When such a wide power is vested in the Government it has to be exercised with greater circumspection. Greater is the power, greater should be the caution. No power is absolute, it is hedged by the checks in the statute itself. Existence of power does not mean to give one on his mere asking. The entrustment of such power is neither to act in benevolence nor in the extra-statutory field. Entrustment of such a power is only for the public good and for the public cause. While exercising such a power the authority has to keep in mind the purpose and the policy of the Act and while granting relief has to equate the resultant effect of such a grant on both, viz. the public and the individual. So long as it does not materially affect the public cause, the grant would be to eliminate individual hardship which would be within the permissible limit of the exercise of power. But where it erodes the public safety, public convenience, public health etc. the exercise of power could not be for the furtherance of the purpose of the Act. Minor abrasion here and there to eliminate greater hardship, may in a given case, be justified but in no case affecting the public at large. So every time the Government exercises its power it has to examine and balance this before exercising such a power. Even otherwise, every individual right including fundamental right is within reasonable limit but if it makes inroads into public rights leading to public inconveniences it has to be curtailed to that extent. So no exemption should be granted affecting the public at large. Various development rules and restrictions under it are made toward off possible public inconvenience and safety."
So the impugned provisions cannot be struck down only on the ground that guidelines have not been specifically provided for to implement the provisions.
VI- PRINCIPLES OF NATURAL JUSTICE:-
78. The next submission of the learned senior counsel is that power is given to the delegated authority to pass orders to remove the hoardings without even giving opportunity to the concerned party. So, the said Section, namely, 326-J of the Act has to be struck down as it is against the principles of natural justice. He has also submitted that no appeal provision is provided against the order of the delegated authority. Mr.Somayaji, learned Senior Counsel appearing for the State has submitted that in all the cases, such principle of natural justice need not be followed. He has cited the decisions of the Apex Court in , Liberty Oil Hills v. Union of India,
and in Luga Shipping Corporation v. Board of
Trustees, Port of Cochin. In the said decisions, the Hon'ble Judges of the Apex Court have held that the principles of natural justice need not be followed in a given case. In cases where the matters are urgent and if order is not passed immediately, it wilt prejudice the parties. But, the abovesaid decisions will not apply to the facts of the present cases.
79. In administrative law, the rule or principles of natural justice is fundamental, and the law is now well settled that, even when the principles of natural justice are part of the legal and nature of procedures. It is also well settled that even when the provisions themselves do not provide for it, the doctrine of principles of natural justice will apply on such occasions. There are number of decisions where application of principles of natural justice in the decision-making process on administrative body having civil consequences have been upheld by the Apex Court. So, it is clear that even the provision does not contemplate such opportunity, the same has to be followed by the concerned authority before passing the order to remove the hoardings, and, we have to read the Section only to that effect. In view of this finding, nobody is going to be affected merely because under Sec. 326-J of the Act power is given only for a maximum period of 15 days to the authority to remove the hoardings. So, we are not dealing with the said submission.
80. But, such procedure need not be applied to the persons who have erected hoardings unauthorisedly or keeping the hoardings without even taking steps to get it regularised the same under the provisions of the impugned Act by getting licence. Such hoardings can be removed by the authorities without following the principles of natural justice. This view of has been taken on the basis of the decision in M.C.O. v. Delhi Outdoor Advertisers Assn., . in which it is held as follows:-
"2. Heard the learned counsel for the parties. Since the hoardings have been removed, the grievance of the MCD does not survive so far as that aspect is concerned. However, the learned counsel for the MCO contends that the Division Bench of the High Court was wrong in Holding that before removal of the hoardings a show-cause notice is a must. We think that the learned counsel for the MCD is on a firm ground sofar as this contention is concerned because once the period of the contract comes to an end by efflux of time the right to advertise ceases and the hoardings ought to be removed and there is no question of the removal being preceded by a show-cause notice. Therefore, the observation of the Division Bench to this extent does not appear to be correct. The appeal will stand disposed of with this modification in the order. There will be no order as to costs."
81. The learned Senior Counsel has submitted that no appeal provision is provided against the order of the concerned authority and so the said provision has to be struck down on that ground. Similar plea has been rejected by the Apex Court in the decision in C.Lingar v. Government of India, , in which it is held as
"6..... At any rate it has been pointed out in more than one decision of this court that when the power had to be exercised by one or the highest officers of the Stale that no appeal has been provided for is a matter of no moment; See K.L.Gupta v. Bombay Municipal Corporation, . It may also be remembered (hat emphasis was laid in Pannalal Binjraj v. Union of India, on the power being vested not in any minor
official but in top-ranking authority. It was said that though the power was discretionary but it was not necessarily discriminatory and abuse of power could not be easily assumed. There was moreover a presumption that public officials would discharge their duties honestly and in accordance with rules of law."
So, the said submission made on behalf of the petitioners cannot be sustained.
VII. THE IMPUGNED ACTS ARE ACT UNNECESSARY IN THE VIEW OF THE ACT 2 of 1999
82. Mr.Venkatachalapathy, learned Senior Counsel appearing for the respective petitioners has submitted that as repealing the Chennai, Madurai, Coimbatore, Tiruchirapalli, Tirunelveli and Salem Municipal Corporation Act and Tamil Nadu District Municipalities Act, 1920 and some of the related provisions of the other Acts are applicable to the municipalities, the Tamil Nadu Urban Local Bodies Act, 1998 (Act 9 of 1999) was enacted. As a temporary measure it has been suspended under Ordinance 5 of 2000 and then under Act 33 of 2000. According to the learned senior counsel, in view of the enactment of Act 9 of 1999, the present amendments are unnecessary and especially when the said Act was only kept under suspension and not repealed. Such a submission cannot be accepted. It cannot be disputed that in view of the Act 33 of 2000, various Municipal Corporation Acts and Tamil Nadu District Municipalities Act of 1920 are in force. When the said Acts are in force the legislature can make amendments. It is not the case of the learned senior counsel that the State Legislature has no power to make such amendments. The Act 33 of 2000 cannot be construed as only a suspension. It has to be taken only as a temporary repeal of the Act 9 of 1999. This view of ours is based on the decision in Arunshanker, V. v. State of Tamil Nadu, 2000 (1) CTC 33 in which, following the decision in State of V.P. v. Hindustan Aluminium Corpn.. . Ordinance 5 of 2000 was upheld, on the following reasons:-
"13. In the present case, the Governor has promulgated the said Ordinance suspending the existing Act. The power of legislature has to be construed in both ways, namely, positive and negative. The positive power is to make law. The negative power is to repeal a law or making the law inoperative. In either case, the power of legislature is only with the power given under the Constitution.
As the legislature is having such power, the Ordinance 5 of 2000, dated 23.8.2000, making the Act IX of 1999 inoperative cannot be assailed on the ground that the Governor has no power to suspend the said Act cannot be countenanced.
VIII. AVAILABILITY OF OTHER PROVISIONS :--
83. Referring to Sec. 116(4) of the Motor Vehicles Act, 1988, Mr.Subramaniam, learned Senior Counsel has submitted that enough regulations have been made under the said provisions with reference to the hoardings and so the present provisions are overlapping on the traffic point of, view. To appreciate the said submission on the face of the said provision itself, it is beneficial to extract the said provision, which is as follows:-
116. Power to erect traffic signs: -
(4) A State Government may, by notification in the Official Gazette, empower any police officer not below the rank of a Superintendent of Police to remove or cause to be removed any sign or advertisement which is so placed in his opinion as to obscure any traffic sign from view or any sign or advertisement which is in his opinion so similar in appearance to a traffic sign as to be misleading or which in his opinion is likely to distract the attention or concentration of the driver."
The said provision does not deal with hoardings but it deals with sign or advertisement itself that too it is only with reference to any traffic sign. So, it cannot be said that the impugned provisions have been enacted for the same purpose. Hence this submission of the learned senior counsel appearing for the petitioners in this regard cannot be countenanced.
84. Mr.K.Subramanian, the learned senior counsel appearing for the respective petitioners has also referred to Sec. 258 of the Chennai City Municipal Corporation Act and submits that already the Commissioner has given power to regulate the hoardings and the present provisions need not be enacted for the same purpose. Sec. 258 of the said Act reads as follows;-
"258. Precautions in case of dangerous structures:- (1) If any (structure) be deemed by the commissioner to be in a ruinous state or dangerous to passers by or to the occupiers of neighbouring structures, the commissioner may by notice require the owner or occupier to fence off, take down, secure or repair such (structure) so as to prevent any danger therefrom.
(2) If immediate action is necessary the commissioner may himself before giving such notice or before the period of notice expires fence off, take down, secure or repair such (structure) or fence off a part of any street or take such temporary measures as he thinks fit to prevent danger and the cost of doing so shall be recoverable from the owner or occupier in the manner provided in section 387.
(3) It in the commissioner's opinion, the said (structure) is imminently dangerous to the inmate thereof, the commissioner shall order the immediate evacuation thereof and any person disobeying may be removed by any police officer."
From a reading of the said provision, it is clear that the same has been enacted for different purpose. The Commissioner can remove the structures if he is of the opinion that it is in ruinous state or dangerous to passers-by, etc. Hence the contention as stated above cannot be sustained. The same view has also been taken by another Division Bench in paragraph 45 of the judgment in Key Centre, & others v. Authorised Officer, Hoardings, 1996 W.L.R. 765.
IX. UNEQUALS ARE TREATED AS EQUALS:-
85. Mr. K.Subramanian, learned Senior Counsel appearing for the respective petitioners has submitted that the hoardings erected in the private land cannot be treated as equal to the hoardings erected in the public places. He has sought the help of the decision of the Division Bench judgment of this Court in Key Centre, & others v. Authorised Officer. Hoardings, 1996 Writ L.R. 765 in support of his submission that both type of Hoardings nave to be treated differently, and the common provision to regulate the hoardings cannot be sustained. In the said decision, the Hon'ble Judges have dealt with the constitutionality of the provisions of the Tamil Nadu Acquisition of Hoardings Act 1985. While considering the validity of the law relating to the acquisition of hoardings in private places, the Hon'ble Judges have come to the conclusion that acquisition of hoardings in private places violate the fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. Further, it is held that they are also arbitrary, unreasonable and violative of Article 14 of the Constitution. While holding so, the learned Judges have observed that "hoarding in private places can easily be controlled by passing appropriate regulatory measures."
86. The submission of the learned senior counsel cannot be accepted on the basis that the learned Judges in the said decision have treated both the hoardings differently. In the said decision, the conclusion was made on the basis of the rights of the parties and not on the basis of the hoardings, as the said Act was enacted to acquire the hoardings. But the present provisions are only to regulate the hoardings by issuing licence. The Division Bench, itself has observed that such regulations' are necessary. While regulating the hoardings, all the hoardings either in the public place or in the private place are one and the same, and the question of differentiating the said hoardings will not arise. Though he tried to submit that private hoardings will not come under the impugned provisions, he is not in a position to substantiate the same.
X. TIME LIMIT PRESCRIBED UNDER SEC. 326-B(2) OF THE ACT FOR FILING APPLICATION. CANNOT BE ENFORCED:
87. Under Sec. 326(B2) of the Act, every person who has erected any hoardings, which are in existence, before the said date, shall apply for licence in accordance with the provisions, within 30 days from the said date, namely, 23.7.98. The submission of the learned counsel appearing for the petitioners is that the rule was framed and came into force only on 11.8.98 and so the authorities cannot enforce the said duration mentioned in the said provision. They have also submitted that in view of the said confusion, this Court should extend the period to receive applications from the petitioners, who have not yet applied for the same.
88. The Act came into force on 23.7.98. The Rules under the said Act were framed and came into force on 11.8.98. According to Rule 3(2)(a) of the Rules, licence fee has to be fixed by the council concerned. Though originally licence fee was fixed on 22.8.98, the same was modified subsequently on 22.10.98. So, the Notification was made on 20.11.98 in all leading newspapers stating that application forms are available and the same could be obtained from 21.11.98. According to Mr.N.R.Chandran, learned senior counsel appearing for the Corporation, they received 1286 applications pursuant to the said notification. He has also submitted that time cannot be extended further as the time contemplated is a condition, precedent, for getting licence. He has further submitted that though particular period, is mentioned in the Act, it will be extended pursuant to the framing of Rules. In support of his submission, the learned senior counsel has relied on the decision in Simpson & Co. Ltd. v. Joint Commissioner Labour, 1997 (1) L.L.J. 161. In the said decision, it is held as follows:-
"46. Question No, 2: The application was filed on 19.5.1976. But it was returned for certain technical compliances. For instance furnishing proper number of copies for service. They were complied with and duly represented. I am of the view that the rule is merely directory and cannot be construed as mandatory. For instance in the decision reported in Arunachala v. Muthu Sadasiva, I.L.R. 950 Mad. 651, a similar rule relating to filing of certified copy of the decree along with the execution petition was held to be not mandatory. Of course in a case which arose under the representation of Peoples Act in Ch.Subbarao v. Member, Election Tribunal, Hyderabad, AIR 1954 S.C. 1027, a similar provision was held as mandatory having regard to the language of S. 85 of the presentation of Peoples Act of 1951 which is to the following effect; "85. If the provisions of S. 81 or S. 82 of S. 117 have not been complied with, the Election Commission shall dismiss the petition."
Section 81(3) requires an election petition to be accompanied by as many copies thereof as there are respondents in the petition. That case, therefore, stands on a different footing. This apart, there has not been any lack or bona fides on the part of the petitioner in that it cannot be said that he purposely delayed the representation to gain some undue advantage, this is because from 1.8.1976 the workmen are being paid full wages, from 8.9.1976 they have been on actual service. So much so, there is no unjust or unfair consequence for the workmen if the application is to be treated as an application made on 19.5.1976. This I conclude answering question No.2 that the application filed on 19.5.1976 was a valid application and is within time.
47. Having regard to the above findings it is not necessary for me to consider whether by the operation of the deeming provision, it should be held the petitioner had been granted permission, since there is no refusal within the period of two months under S.25N(4) of the Act."
89. As submitted by Mr.N.R.Chandran learned senior counsel, the time limit contemplated under the Rule cannot be extended beyond the period notified as per the Rule. While considering the rejection of application for renewal of lease filed beyond the prescribed period under Sec. 9(2) of the Tamil Nadu Minor Mineral Concession Rules, 1959 the Division Bench of this Court in the decision in Easwara Murthi. A. v The Government of Tamil Nadu, 1990 W.L.R. 89. has held as follows:-
"16. In Nagarajan v. The Commissioner HR & CE, AIR 1985 SC 1279, ELABORATELY CONSIDERS as to what are the facts which could be taken into account to consider whether an authority functions is a court or not, and when the second respondent in the instant case does not satisfy the test laid down therein; in view of the decision in Sakaru v. Tanoji, 1983 T.L.N.J. 155, Rule 9(2); is not a rule of limitation, but is only a condition to be complied with for filing a renewal application, and therefore S, 5 of the Limitation Act cannot be invoked, if the applications are not filed within the time as prescribed therein. Therefore, the first point fails."
In view of the abovesaid settled principles of law, the request of the petitioners that the time contemplated for making application has to be extended cannot be sustained. If the application is filed beyond the stipulated period the petitioners have no right to make application and the authorities also have no jurisdiction to entertain any application filed beyond the stipulated period.
XI. NO NECESSITY TO ENACT THE IMPUGNED PROVISIONS:-
90. As submitted by the learned counsel appearing for the writ petitioner in W. P. No.10747 of 1998, in spite of the directions of and the undertakings before this Court there are mushroom grow in of hoardings under the guise of interim orders from various Courts. They are able to keep the hoardings without any disturbance, though otherwise they are not entitled. When the persons, seek a right to erect the hoardings for the purpose of advertisement, in view of the settled principles of law enunciated in the abovesaid decisions, they are liable to be regulated and so the Government have certainly right to impose regulations to control the same, having the interest of the public in mind. It is obvious that the haphazard growth of hoarding causes great nuisance and an eyesore to the public at large on the traffic point of view. The learned senior counsel appearing on the side of the petitioners though submitted that the hoardings alone cannot be taken as the reason for accidents, they have not disputed that the same are also one of the reasons for accidents. Even in the decision in Key Centre, & others v. Authorised Officer Hoardings, 1996 W.L.R. 765 the Hon'ble Judges have expressed concern about the haphazard growth of hoardings, and observed as follows:-
"In fact, it is a matter of argument by Mr.Sriram Panchu on behalf of one of the petitioners, that an area meant for preserving greenery by the Agricultural Department opposite to the Gemini Fly-over has been completely blocked from the view of the public by huge advertisement hoardings. Infact some of the local areas cannot at all be recognised because of the familiar buildings by which the places are recognised, are blocked by huge advertisement Boards. Just opposite to the High Court in front of the Bar Council Office there is an advertisement board which is placed across the pavement, causing nuisance to the traffic and the pedestrians. If one goes down the Nungambakkam Bridge towards Poonamallee High Road, one can see a long advertisement board which must be about 300 feet in length. It is not known whether such a huge advertisement hoarding has been permitted by the authorities or it is an unauthorised hoarding, we are only trying to point out that public places are being utilised for erection of hoarding, indiscriminately without due regard to traffic requirements and public order. It goes without saying that in the matter of using public places for pulling up hoardings for advertisement there must be certain restrictions imposed by the Government. There are some pending writ petitions which we will lake up after disposing of the question of viability, wherein these questions have been raised. For instance W.P.No.11546 of 1995 has been filed by the owner of the fourth floor of a Tower Block located at 759, Anna Salai. He has had paid a total consideration of Rs.4,21,78,500 for the entire fourth floor. In front of the Tower block the fourth respondent in that case, who is one of the petitioners herein had erected a hoarding blocking the entire frontal view of the building. What is more, fourth respondent had filed O.S.No.5788 of 1995 and obtained an interim injunction restraining anybody from interfering with the hoarding. The writ petition is to direct the authorities to prevent the grant of authorisation for the said hoarding under the Act. Similarly, W.P.No.18838 of 1994 is against a hoarding in a public place and obstructing the view of the petitioner's own hoarding in his private complex. In this connection the observation of the Apex Court in (cited supra) may be remembered. It is said that
an Englishman's freedom stops where the Frenchman's nose begins. So also the right, of the petitioners as well as the adversaries to erect hoardings in public places, certainly ends where the safety and morality of the public are involved."
91. Even the Apex Court in the decision in 1997 (9) Supreme 418, and in 1997 (1) Supreme 317. Mehta's case the Hon'ble Judges of the Apex Court, taking into consideration the existence of the hoardings on traffic point of view, have directed to remove all the hoardings. The learned counsel appearing for the petitioners tried to submit that the said decisions cannot be construed as a precedent. Even if it is so, the same was taken into consideration by the Legislature as a basis and they enacted the law. The difficulties due to hazardous growth of hoardings on the safety of traffic point of view was taken into consideration and such direction was given. So, the reasoning given by the Apex Court for giving such direction can be taken for help to decide the validity of the Act. So, it cannot be submitted at this stage that there is no necessity to pass such legislation, more so when the hoardings are one of the reasons for road accidents. When the Government wants to take steps in the interest of public, the petitioners cannot challenge the same stating that the said legislation is not necessary, especially when the hoardings are put up in such a manner causing obstruction to traffic and offend public order. So, the reason for enacting the impugned provisions cannot be said as such, it has no nexus to the object to be achieved.
92. The Division Bench in the said decision Key Centre, & others v. Authorised Officer Hoardings, 1996 W.L.R. 765, has also expressed their opinion that the Government has to take stringent action with reference to hoardings, holding therein as follows:-
"But in actual reality as seen from the various Writ Petitions complaining of Haphazard growth of the hoardings and the hoardings in the City which are visible to the naked eye and which the Court can take judicial notice of, these provisions were not sufficient enough to give power to the Government to remove unauthorised hoardings and to control and prevent the haphazard growth of hoardings. There was no statute enabling the Government to take stringent action. Further all these provisions were considered and in the interest of the public it Was decided to acquire the hoarding and to prevent erection of hoarding by persons other than the Government so that the entire illegal activity can be put an end to."
So, the submission of the learned counsel appearing for the respective petitioners that there is no need to enact such provisions, cannot be countenanced.
93. On the basis of the above discussion, the following are our conclusion:-
(1) The provisions of The Act 51 of 1998 and The Act 26 of 2000 are upheld;
(2) The Notification issued on 4.10.1999 prescribing the time-limit for making applications is also upheld, and the same is enforceable;
(3) The applications filed under The Act 51 of 1998 have to be considered strictly by the authorities on the basis of the scope of Sec. 326J of the Act; otherwise the authorities have to take steps to remove the hoardings, if they are visible to the road traffic, after issuance of licence, which can be avoided even while considering the applications themselves as prevention is better than cure;
(4) The authorities are expected to take immediate further action to enforce the provisions of the Acts, strictly in accordance with the observations made in this order. This observation is given only because of the earlier inaction on the part, of the authorities in complying with the undertakings and directions;
(5) The provisions of the impugned Acts have to be implemented notwithstanding any interim orders of any Court, except the direction of the Apex Court, if any.
With the above directions and observations, these writ petitions are dismissed accordingly. No costs. Connected W.M.Ps. are also dismissed.