{"id":19468,"date":"2008-04-09T00:00:00","date_gmt":"2008-04-08T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/novva-ads-vs-secretary-deptt-of-municipal-on-9-april-2008"},"modified":"2019-01-04T11:15:21","modified_gmt":"2019-01-04T05:45:21","slug":"novva-ads-vs-secretary-deptt-of-municipal-on-9-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/novva-ads-vs-secretary-deptt-of-municipal-on-9-april-2008","title":{"rendered":"Novva Ads vs Secretary, Deptt. Of Municipal &#8230; on 9 April, 2008"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Novva Ads vs Secretary, Deptt. Of Municipal &#8230; on 9 April, 2008<\/div>\n<div class=\"doc_author\">Author: . A Pasayat<\/div>\n<div class=\"doc_bench\">Bench: Dr. Arijit Pasayat, S.H. Kapadia<\/div>\n<pre>           CASE NO.:\nAppeal (civil)  2702 of 2008\n\nPETITIONER:\nNovva ADS\n\nRESPONDENT:\nSecretary, Deptt. of Municipal Administration and Water Supply and Anr.\n\nDATE OF JUDGMENT: 09\/04\/2008\n\nBENCH:\nDr. ARIJIT PASAYAT &amp; S.H. KAPADIA\n\nJUDGMENT:\n<\/pre>\n<p>J U D G M E N T<br \/>\n(Arising out of SLP ) No. 16286 of 2006)<br \/>\nWITH<\/p>\n<p>\tCivil Appeal No. 2715\/2008 @ SLP (C) No. 15208\/2006<br \/>\n\tCivil Appeal No. 2574\/2008 @ SLP (C) No. 15210\/2006<br \/>\n\tCivil Appeal No.  2575\/2008 @ SLP (C) No. 15552\/2006<br \/>\n\tCivil Appeal No. 2576\/2008 @ SLP (C) No. 15676\/2006<br \/>\n\tCivil Appeal No. 2577\/2008 @ SLP (C) No. 16762\/2006<br \/>\n\tCivil Appeal No. 2580\/2008 @ SLP (C) No. 15691\/2006<br \/>\n\tCivil Appeal No. 2581\/2008 @ SLP (C) No. 15698\/2006<br \/>\n\tCivil Appeal No. 2582\/2008 @ SLP (C) No. 15761\/2006<br \/>\n\tCivil Appeal No. 2583\/2008 @ SLP (C) No. 16764\/2006<br \/>\n\tCivil Appeal No. 2584\/2008 @ SLP (C) No. 17556\/2006<br \/>\n\tCivil Appeal No. 2585\/2008 @ SLP (C) No. 1478\/2007<br \/>\n\tCivil Appeal No. 2623\/2008 @ SLP (C) No. 1479\/2007<br \/>\n\tCivil Appeal No. 2624\/2008 @ SLP (C) No. 1480\/2007<br \/>\n\tCivil Appeal No. 2625\/2008 @ SLP (C) No. 1481\/2007<br \/>\n\tCivil Appeal No. 2626\/2008 @ SLP (C) No. 1482\/2007<br \/>\nCivil Appeal No. 2628, 2629, 2631, 2632, 2633\/2008<br \/>\n@ SLP (C)No. 1483-87\/2007<br \/>\n\tCivil Appeal No. 2634\/2008 @ SLP (C) No. 1489\/2007<br \/>\n\tCivil Appeal No. 2635\/2008 @ SLP (C) No. 1490\/2007<\/p>\n<p>\tCivil Appeal No.2636\/2008 @ SLP (C) No. 1492\/2007<br \/>\n\tCivil Appeal No.2637\/2008 @ SLP (C) No. 1493\/2007<br \/>\n\tCivil Appeal No.2638\/2008 @ SLP (C) No. 1494\/2007<br \/>\n\tCivil Appeal No.2639\/2008 @ SLP (C) No. 1497\/2007<br \/>\n\tCivil Appeal No.2640\/2008 @ SLP (C) No. 1499\/2007<br \/>\n\tWrit Petition (C) No. 79\/2007<br \/>\n\tCivil Appeal No.2642\/2008 @ SLP (C) No. 4483\/2007<br \/>\n\tCivil Appeal No.2643\/2008 @ SLP (C) No. 2534\/2007<br \/>\n\tCivil Appeal No.2644\/2008 @ SLP (C) No. 1656\/2007<br \/>\n\tCivil Appeal No.2645\/2008 @ SLP (C) No. 1658\/2007<br \/>\n\tCivil Appeal No.2646\/2008 @ SLP (C) No. 1660\/2007<br \/>\n\tCivil Appeal No.2647\/2008 @ SLP (C) No. 1662\/2007<br \/>\n\tCivil Appeal No.2649\/2008 @ SLP (C) No. 4201\/2007<br \/>\n\tCivil Appeal No.2650\/2008 @ SLP (C) No.  3488\/2007<br \/>\nCivil Appeal Nos.2651, 2652, 2653, 2654\/2008<br \/>\n@ SLP (C) Nos. 3490-93\/2007<br \/>\n\tCivil Appeal No.2655\/2008 @ SLP (C) No. 2632\/2007<br \/>\n\tCivil Appeal No.2656\/2008 @ SLP (C) No. 3494\/2007<br \/>\n\tCivil Appeal No.2657\/2008 @ SLP (C) No. 3496\/2007<br \/>\n\tCivil Appeal No.2658\/2008 @ SLP (C) No. 3497\/2007<br \/>\n\tCivil Appeal No.2659\/2008 @ SLP (C) No. 3499\/2007<br \/>\n\tCivil Appeal No.2660\/2008 @ SLP (C) No. 4012\/2007<br \/>\n\tWrit Petition (C) No. 124\/2007<br \/>\n\tWrit Petition (C) No. 134\/2007<br \/>\n\tWrit Petition (C) No. 158\/2007<br \/>\n\tWrit Petition (C) No. 146\/2007<br \/>\n\tWrit Petition (C) No. 149\/2007<br \/>\n\tWrit Petition (C) No. 151\/2007<br \/>\n\tWrit Petition (C) Nos. 152-53\/2007<br \/>\n\tWrit Petition (C) Nos. 161-62\/2007<br \/>\n\tCivil Appeal No. 2716\/2008 @ SLP (C) No.16760\/2006<br \/>\n\tWrit Petition (C) No. 165\/2007<br \/>\n\tCon. Pet. No.5 of 2007 in SLP (C) No.15210\/2006<br \/>\n\tCivil Appeal No.2661\/2008 @ SLP (C) No.7515\/2007<br \/>\n\tCivil Appeal Nos.2662, 2663, 2664, 2665, 2666\/2008<br \/>\n        @ SLP (C) No. 7534-38\/2007<br \/>\n\tCivil Appeal No.2667\/2008 @ SLP (C) No. 7543\/2007<br \/>\n\tCivil Appeal No.2668\/2008 @ SLP (C) No. 7517\/2007<br \/>\n\tCivil Appeal No.2669\/2008 @ SLP (C) No. 7518\/2007<br \/>\n\tCivil Appeal No.2670\/2008 @ SLP (C) No. 5665\/2007<br \/>\n\tCivil Appeal No.2671\/2008 @ SLP (C) No. 5158\/2007<br \/>\n\tCivil Appeal No.2672\/2008 @ SLP (C) No. 5164\/2007<br \/>\n\tCivil Appeal No.2673\/2008 @ SLP (C) No. 5957\/2007<br \/>\n\tCivil Appeal No.2675\/2008 @ SLP (C) No. 5848\/2007<br \/>\n\tCivil Appeal No.2676\/2008 @ SLP (C) No. 7860\/2007<br \/>\n\tCivil Appeal No.2677\/2008 @ SLP (C) No. 7801\/2007<br \/>\n\tCivil Appeal No.2678\/2008 @ SLP (C) No. 7804\/2007<br \/>\n\tCivil Appeal No.2679\/2008 @ SLP (C) No. 9675\/2007<br \/>\n\tCivil Appeal No.2680\/2008 @ SLP (C) No. 7056\/2007<br \/>\n\tCivil Appeal No.2681\/2008 @ SLP (C) No. 11688\/2007<br \/>\n\tCivil Appeal No.2682\/2008 @ SLP (C) No. 1193\/2007<br \/>\n\tCivil Appeal No.2683, 2684, 2685, 2686, 2687\/2008<br \/>\n        @ SLP (C) No. 1195-1199\/2007<br \/>\n\tCivil Appeal No.2688\/2008 @ SLP (C) No. 1200\/2007<br \/>\n\tCivil Appeal No.2689, 2690, 2691, 2692\/2008<br \/>\n       @ SLP (C) No. 1202-05\/2007<br \/>\n\tCivil Appeal No. 2693\/2008 @ SLP (C) No. 14825\/2007<br \/>\n\tCivil Appeal No.2696\/2008 @ SLP (C) No. 13517\/2007<br \/>\n\tCivil Appeal No.2697\/2008 @ SLP (C) No. 13519\/2007<br \/>\n\tWrit Petition (C) Nos.504\/2007, 512\/2007, 524\/2007,<br \/>\n\t525\/2007, 515\/2007, 526\/2007<br \/>\n\tCivil Appeal No.2718\/2008 @ SLP (C) No. 19988\/2007<br \/>\n\tCivil Appeal No.2717\/2008 @ SLP (C) No. 20187\/2007<\/p>\n<p>Dr. ARIJIT PASAYAT, J.\n<\/p>\n<p>1.\tDelay condoned.\n<\/p>\n<p>2.\tLeave granted in the Special Leave Petitions.\n<\/p>\n<p>3.\tChallenge in these appeals and Writ Petitions is to the<br \/>\njudgment delivered by a Division Bench of the Madras High<br \/>\nCourt. In the writ petitions, challenge was to validity of<br \/>\nSections 326A to 326J of the Chennai City Municipal Act,<br \/>\n1919 (in short the Act) and the Chennai City Municipal<br \/>\nCorporation (Licensing of Hoardings and Levy and Collection of<br \/>\nAdvertisement Tax) Rules, 2003 (in short the Advertisement<br \/>\nRules).\n<\/p>\n<p>4.\tThe writ petitions were dismissed by the High Court. But<br \/>\na Committee was constituted for identifying and enumerating<br \/>\nthe places of historical importance or aesthetic value and<br \/>\npopular places of worship in and around the city of Chennai. It<br \/>\nwas also directed to oversee the operation of the removal of<br \/>\nillegal and unauthorized hoardings in the city of Chennai.  The<br \/>\nCommittee was directed to be headed by a retired Judge and<br \/>\nto consist of several other persons. The State Government was<br \/>\ndirected to provide necessary infrastructure and office to the<br \/>\nCommittee. The District Collector was directed to remove and<br \/>\ndemolish all the unauthorized hoardings which were erected<br \/>\nafter the cut off date and in respect of which no application<br \/>\nwas made to the District Collector within a period of 8 weeks.<br \/>\nThe District Collector and  the Tahsildar working in their<br \/>\nrespective zones were to be personally responsible for the<br \/>\nremoval of unauthorized hoardings in their respective zones.<br \/>\nThe Municipal Corporation  was directed to extend all<br \/>\nnecessary cooperation to the District Collector for removal of<br \/>\nthe hoardings in the city. The Commissioner was directed to<br \/>\nsupply to the District Collector the necessary equipment and<br \/>\nwork force for the purpose of such removal. The Police<br \/>\nCommissioner  was also directed to provide adequate police<br \/>\nforce to assist the demolition team. The State Government was<br \/>\ndirected to appoint two officers not below the rank of District<br \/>\nCollector as Special Officers vested with the necessary powers<br \/>\nof the District  Collector to make scrutiny of the applications<br \/>\npending before the Collector within a period of 4 weeks from<br \/>\nthe date of judgment. It was pointed out that no licence was to<br \/>\nbe granted and\/or renewed in respect of any hoarding which is<br \/>\nnot in conformity with the provisions of the Act and the<br \/>\nAdvertisement Rules. So far as the applicants who claimed to<br \/>\nbe existing hoarding owners, the District Collector\/Special<br \/>\nOfficer was required to call for the views of the Traffic police<br \/>\nand such views had to be communicated to the District<br \/>\nCollector within a particular period.  All the hoardings where<br \/>\nthe applications\/appeals were dismissed by the authorities<br \/>\nwere liable to be removed forthwith  and the concerned<br \/>\nauthorities to take appropriate steps for the purpose.\n<\/p>\n<p>5.\tThe District Collector and the Tahsildar were directed to<br \/>\ntake immediate steps for recovery of the advertisement tax, the<br \/>\nrent and the penalties from the hoarding owners whether<br \/>\nauthorized or unauthorized. The appeals against the decision<br \/>\nof the District Collector\/Special Officer were directed to be<br \/>\ndisposed of within 60 days as prescribed by the Advertisement<br \/>\nRules and for that purpose it was suggested that the<br \/>\nGovernment may consider appointment of one or more officers<br \/>\nat the Secretariat level, exclusively for the purpose.\n<\/p>\n<p>6.\tSo far as new applications are concerned, it was held<br \/>\nthat if the applicant had already constructed a hoarding in<br \/>\nthat case hoarding was liable to be removed and demolished<br \/>\nand the applicant was entitled to apply only after such<br \/>\nremoval and demolition of hoarding.\n<\/p>\n<p>7.\tWith reference to Rule 3(i) of the Advertisement Rules it<br \/>\nwas held that the plan of the hoarding was to be approved by a<br \/>\nqualified structural Engineer. In case of non removal of<br \/>\nunauthorized or illegal hoardings the District Collector  was<br \/>\ndirected to initiate prosecution as permissible under the Act.<br \/>\nDirection was also given for demolition and removal of all<br \/>\nhoardings erected on or in front of any places of historical or<br \/>\naesthetical importance, popular places of worship as enlisted<br \/>\nby the Committee as well as on or in front of the educational<br \/>\ninstitutions and hospitals and in cases where  applications<br \/>\nwere made by any hoarding owner within the time prescribed<br \/>\nby this Court applications were to be decided and if the<br \/>\nhoardings were found to be illegal, they were to be removed<br \/>\nwithout further notice. It was directed that no Civil Court shall<br \/>\nentertain any application against demolition or removal of the<br \/>\nunauthorized hoardings and the writ petitions challenging the<br \/>\ndemolition were to be placed before the bench of the Chief<br \/>\nJustice of the High Court.\n<\/p>\n<p>8.\tIt was also directed that notwithstanding any order<br \/>\npassed by any Civil Court in the matter the directions given in<br \/>\nthe impugned order were to prevail.\n<\/p>\n<p>9.\tIn support of the appeals, various stands have been<br \/>\ntaken by the parties. Primarily it has been submitted that the<br \/>\nAdvertisement Rules are violative of Articles 19(1)(a) and<br \/>\n19(1)(b) of the Constitution of India, 1950 (in short the<br \/>\nConstitution). It was also violative of Article 14 because<br \/>\nprivate hoardings have been treated equally with public<br \/>\nhoardings, thereby treating unequals with equal. With<br \/>\nreference to the earlier Statute i.e. Tamil Nadu Acquisition of<br \/>\nHoarding Act, 1985 (in short the Acquisition Act) it was<br \/>\nsubmitted that the  acquisition of the public or private<br \/>\nproperty was held to be illegal. With effect from 23.7.1998<br \/>\namendment was made to the Act and Sections 326-A to 326-I<br \/>\nwere introduced. Section 326-B provides for the period of 30<br \/>\ndays within which the owners of the hoarding were to apply for<br \/>\nlicence. On 5.9.2000 the Act was amended and Section 326-J<br \/>\nwas introduced.  This provision permitted removal of all<br \/>\nhoardings which are hazardous in nature. Challenge was<br \/>\nmade to the same provision. The High Court by order dated<br \/>\n14.10.2001 upheld its validity. It was inter alia held that that<br \/>\nevery hoarding which is adjacent to the road is hazardous and<br \/>\nhas to be removed and the High Court judgment was affirmed<br \/>\nby this Court with certain modifications by this Court in <a href=\"\/doc\/1765312\/\">P.<br \/>\nNarayana Bhat v. State of Tamil Nadu and Ors.<\/a> (2001 (4) SCC\n<\/p>\n<p>554).  However, all the hoardings are not to be treated as<br \/>\nhazardous. What is hazardous is to be decided. The time<br \/>\nperiod for making application for licence was fixed. In the year<br \/>\n2003 the Advertisement Rules have been enacted.  It is<br \/>\nsubmitted that the  Rules used the expression obstruction. It<br \/>\nwas pointed out that  the obstruction refers to physical<br \/>\nobstruction. Challenge is also made to Rule 6 which relates to<br \/>\nthe width of the road. There is no forum available for<br \/>\nquestioning correctness of the adjudication by the authorities.<br \/>\nIn any event it is submitted that the Rules cannot apply to<br \/>\nprivate sites. Construction of private buildings have been<br \/>\nexcluded. It is pointed out that the concept of public order is<br \/>\nbeing introduced  but the same has to be relatable to the<br \/>\nparameters laid down in Dr. Ram Manohar Lohia v. State of<br \/>\nBihar and Ors. (1966 (1) SCR 709). The public interest is<br \/>\nrelatable to Article 19(1)(g) and not Article 19(1)(a). Hoardings<br \/>\nare nothing but material for advertisement. Rule 9 relates to<br \/>\nobjectionable hoardings. Placing strong reliance on Tata Press<br \/>\nLtd. Vs. M.T.N.L. and Ors. (1999 (5) SCC 139) it is contended<br \/>\nthat hoarding partake the character of commercial speech.<br \/>\nReference is also made to the decisions in <a href=\"\/doc\/243002\/\">Sakal Papers (P)<br \/>\nLtd. And Ors. v. Union of India and Ors. (AIR<\/a>  1962 SC 305)<br \/>\nand <a href=\"\/doc\/125596\/\">Bennett Coleman and Co. and Ors. v. Union of India and<br \/>\nOrs.<\/a> (1972 (2) SCC 788) to contend that even if it is conceded<br \/>\nfor the sake of arguments that the provisions are regulatory,<br \/>\nthey must be relatable to the parameters of Article 19(2). The<br \/>\nregulation results in restriction on use of private land for<br \/>\nadvertisement. It is submitted that as was noted in Sakal<br \/>\nPaperss case (supra) it curbs competition and in Bennett<br \/>\nColemans case (supra) there must be sufficient reason to curb<br \/>\nthe freedom of speech. Even over-burdensome levy which<br \/>\naffects freedom of speech was held to be unconstitutional.<br \/>\nReference is also made to Romesh Thappar v  The State of<br \/>\nMadras (AIR 1950 SC 124) and <a href=\"\/doc\/43023\/\">Brij Bhushan and Anr. v. The<br \/>\nState of Delhi (AIR<\/a> 1950 SC 129) to contend that the<br \/>\nrestriction  can be relatable to public interest and not to public<br \/>\norder. When commercial speech is protected there is no reason<br \/>\nto put restriction on putting hoardings.  Public order relates to<br \/>\nviolence and not law and order.  The basic difference, it is<br \/>\nsubmitted, between Articles 19(2) and 19(6) has not been kept<br \/>\nin view. In essence it is submitted that display of information<br \/>\non hoardings whether it is commerce, political and social is<br \/>\npermitted by Article 19(1)(a) or no restriction can be placed  or<br \/>\nright to disseminate  information on the purported claim of<br \/>\npreventing obstruction  or hazard to movement of traffic which<br \/>\nis not covered by Article 19(2) as  public order is not affected.<br \/>\nThe statutory rules are exhaustive of the restrictions and<br \/>\nrestrictions do not apply to hoardings on a private land. Rules<br \/>\nare discriminatory in applying the same yardstick to public<br \/>\nroads and private properties as the same treats unequals as<br \/>\nequals. Even if Section 326J can be used later, it has to<br \/>\nspecify reasons in the show cause notice,  has to be disposed<br \/>\nof by the reasoned order after opportunity and the right of<br \/>\nappearance can lead to a decision. It is  pointed out that<br \/>\nunsustainable discriminatory approach is adopted in<br \/>\npermitting hoardings of political parties which are certainly<br \/>\nmore hazardous. A different yardstick is being adopted and<br \/>\nunguided power is given to the authorities to adopt different<br \/>\nnorms.\n<\/p>\n<p>10.\tSome of the petitioners have pointed out that there was a<br \/>\nstatutory cut off date fixed i.e. 23.7.1998 and the enumeration<br \/>\nwas to be done to identify data as to which of the hoardings<br \/>\nexisted prior to 23.7.1998 and the applicants may make an<br \/>\napplication before the date extended.\n<\/p>\n<p>11.\tIt is submitted that Rule 6 is absolutely impracticable<br \/>\nbecause most of the roads are between 15 ft. to 50 ft. category.<br \/>\nA statutory right is made illusory because of the size<br \/>\nrestriction. Visibility per se is not hazardous. Rule 10 contains<br \/>\nwords which are imprecise and flexible and the listing has not<br \/>\nbeen done.\n<\/p>\n<p>12.\tThe statutory intention is to permit hoarding but by<br \/>\nputting unnecessary and unreasonable restrictions  the<br \/>\nprovisions can be misused.\n<\/p>\n<p>13.\tThe visibility concept is important. The size as provided<br \/>\nin Rule 6 has no basis  to ensure reasonable visibility and<br \/>\ntherefore it impeaches the Act.\n<\/p>\n<p>14.\tThere is no rule to operationalise Section 326B. The Act,<br \/>\nthe Advertisement Rules and the form have to be<br \/>\noperationalized as part of the composite scheme. It is pointed<br \/>\nout that right in question claimed by the appellants is a<br \/>\nconstitutional right and not statutory right. What is<br \/>\nobjectionable is content. It is, by way of clarification,<br \/>\nsubmitted that content is covered by Article 19(1) (a) as it<br \/>\ncovers both antecedent steps and actual display.  The content<br \/>\nis not limited to words, colour, picture but also extent, form,<br \/>\nsize and placement. While Rule 3(b)(ii) is a pre-censorship<br \/>\nconcept, Rule 9 is post censorship.  The freedom of speech<br \/>\nrelates both to pre and post censorship.\n<\/p>\n<p>15.\tThe right claimed is a preferred right. While balancing<br \/>\nfree speech against restriction,  shift of emphasis is to free<br \/>\nspeech.\n<\/p>\n<p>16.\tIn exercise of public power there has to be guided<br \/>\ndiscretion. In the instant case there is no guided discretion.<br \/>\nThe right to regulate being exercised in the instant case is<br \/>\nrestrictive and not regulatory.\n<\/p>\n<p>17.\tIn response,  learned counsel for the respondent have<br \/>\nsubmitted that the appellants and many like them have<br \/>\ncontinued litigation frustrating regulation of hoardings in<br \/>\nChennai. It is submitted that owners of advertisement<br \/>\nhoardings in the city of Chennai have persistently challenged<br \/>\nand resisted the regulation on the erection of hoardings for the<br \/>\nlast two decades with the result that even today city of<br \/>\nChennai presents the most deplorable huge advertisement<br \/>\nhoardings on major roads, which are not only aesthetically<br \/>\nobjectionable but are hazardous and dangerous to traffic.<br \/>\nEven after continued failure to get any relief from the Court<br \/>\nthe challenge is still continued.\n<\/p>\n<p>18.\tFollowing the directions of this Court in <a href=\"\/doc\/1208005\/\">M.C. Mehta v.<br \/>\nUnion of India and Ors.<\/a> (1998 (1) SCC 363), the Tamil Nadu<br \/>\nLegislature introduced the amendment in Section 326J by<br \/>\nAmendment Act 2000.  By an amendment, the  Commissioner<br \/>\n(later amended to District Collector) was empowered to remove<br \/>\nthe existing hoardings which were dangerous and causing<br \/>\ndisturbance to safe traffic movement, which adversely affect<br \/>\nfree and safe flow of traffic.  The provision also empowers the<br \/>\nDistrict Collector to refuse the license for such hazardous and<br \/>\ndangerous hoardings.\n<\/p>\n<p>19.\tEarlier challenge was made to the Rules of 1998. Various<br \/>\ncontentions were raised before the High Court including<br \/>\nreference to Tata Press case (supra). The High Court rejected<br \/>\nthe contention that Section 326A was arbitrary and had laid<br \/>\ndown no guidelines.  Correctness of the judgment was<br \/>\nquestioned including the alleged infringement of Article<br \/>\n19(1)(a). This Court rejected the appeals stating that it was ad<br \/>\nidem with most of the conclusions arrived at by the High<br \/>\nCourt in the impugned judgment before it. This Court  also<br \/>\nnoted that before it very same stands were re-iterated. It was<br \/>\nnoted that this Court was inclined to agree with the High<br \/>\nCourt that Section 326J was neither ultra vires Article 14 nor<br \/>\nArticle 19(1)(a) of the Constitution in view of the decision<br \/>\ngiven by the High Court. Despite this, the Advertisement Rules<br \/>\nwere challenged before the High Court. The High Court<br \/>\ndismissed them subject to modifications.\n<\/p>\n<p>20.\tIt is to be noted that in P. Narayans case (supra) this<br \/>\nCourt had specifically held in concurring with the views of the<br \/>\nHigh Court that Article 19(1)(a) of the Constitution was not<br \/>\nviolative.\n<\/p>\n<p>21.\tSection 326A defines hoardings to mean any screen or<br \/>\nboard at any place whether public or private used or intended<br \/>\nto be used for exhibiting advertisements Sections 326B to<br \/>\n326J are provisions relating to licensing of hoardings. The Act<br \/>\nrequires licences of hoardings; and it requires licences of<br \/>\nhoardings in both public and private places.\n<\/p>\n<p>22.\tSo far as public places are concerned, the State has a full<br \/>\nright to regulate them, as they vest in the State as trustees for<br \/>\nthe public. The State can impose such limitations on the user<br \/>\nof public places as may be necessary to protect the public<br \/>\ngenerally. (See Saghir Ahmed v. State of U.P. 1955 SCR 707).\n<\/p>\n<p>23.\tHoardings erected on private places also require to be<br \/>\nlicensed and regulated as they generally abut on and are<br \/>\nvisible on public roads and public places. Hoarding erected on<br \/>\na private building may obstruct public roads when put up on<br \/>\nprivate buildings; they may be dangerous to the building and<br \/>\nto the public; they may be hazardous and dangerous to the<br \/>\nsmooth flow of traffic by distracting traffic, and their content<br \/>\nmay be obscene or objectionable. It is, therefore, not correct<br \/>\nthat hoardings on private places do not require to be regulated<br \/>\nby licensing provisions.\n<\/p>\n<p>24.\tRule 6 of the 2003 Rules put restrictions on the size of<br \/>\nhoardings, on their height, the spacing, etc. and the<br \/>\nrequirement of erection on steel frames. Rule 10 restricts the<br \/>\nhoarding to be put on certain places such as educational<br \/>\ninstitutions, places of worship, hospitals, corners of roads, in<br \/>\nfront of places of historical and aesthetic importance.\n<\/p>\n<p>25.\tThe power to license is not unfettered and is guided by<br \/>\nthe above considerations. Under Rule 11 an appeal lies to the<br \/>\nState Government for refusing the grant or renewal of licenses.<br \/>\nSection 326J of the Act empowers the District Collector to<br \/>\nprohibit the erection of hazardous hoardings and hoardings<br \/>\nwhich are hazardous and a disturbance to the safe traffic<br \/>\nmovement so as to adversely affect the free and safe flow of<br \/>\ntraffic. The power under Section 326J is not arbitrary as held<br \/>\nby the Supreme Court in <a href=\"\/doc\/1208005\/\">M.C. Mehta v. Union of India<\/a> (1998)<br \/>\n1 SCC 363) on an identical provision relating to case of<br \/>\nhoarding in New Delhi. Any action taken under Section 326 J<br \/>\nmust be taken by observing the principles of natural justice<br \/>\nand supported by reasons. An appeal against the order of the<br \/>\nDistrict Collector for action under Section 326J lies to the<br \/>\nState Government under Section 326H. There cannot be a<br \/>\npresumption of misuse of power merely because discretion is<br \/>\nconferred on a public authority for the exercise use of the<br \/>\npower. In Narayana Bhat&#8217;s case, this Court has negatived the<br \/>\ncontention that the power of the licensing authorities is<br \/>\narbitrary and unguided.\n<\/p>\n<p>26.\tSections 326A to Section 326H and the 2003 Rules are<br \/>\nmade in public interest for the purpose of\n<\/p>\n<p>(i)\tPreventing haphazard erection and proliferation of<br \/>\nhoardings in the city.\n<\/p>\n<p>(ii)\tFor orderly and aesthetic appearance in the city.\n<\/p>\n<p>(iii) For safety and prevention of hazardous and<br \/>\ndangerous hoardings.\n<\/p>\n<p>27.\tSection 326-J of the Act prohibits erection of certain<br \/>\nhoardings which are hazardous. The expression &#8220;hazardous&#8221;<br \/>\nas an adjective, connotes something that is &#8220;risky&#8221; or<br \/>\n&#8220;dangerous&#8221; vide, Blacks Law Dictionary, Eighth Edition, page\n<\/p>\n<p>736.\n<\/p>\n<p>28.\tSection 326-J provides that where the Commissioner is<br \/>\nsatisfied that the erection of any hoarding visible to the traffic<br \/>\non the road is hazardous and disturbance to the safe traffic<br \/>\nmovement so as to adversely affect the free and safe flow of<br \/>\ntraffic, he shall not grant any licence under Section 326-C.\n<\/p>\n<p>29.\tThe Commissioner is also empowered to remove any such<br \/>\nhoarding which is erected in contravention of the provisions<br \/>\nthereof.\n<\/p>\n<p>30.\tThe provisions contained in Rule 3 do not restrict or<br \/>\ncontrol the scope of Section 326-J which operates on a wider<br \/>\nplain. While failure to obtain a no objection certificate in terms<br \/>\nof Rule 3(iii) itself would dis-entitle an applicant for the grant<br \/>\nof a licence to erect a hoarding, Section 326-J, prohibits<br \/>\nerection of hazardous hoardings and also mandates the<br \/>\nCommissioner (now District Collector) not to grant any licence<br \/>\nunder Section 326-C in respect of such hoardings. It also<br \/>\nauthorizes the Commissioner to order confiscation and<br \/>\nremoval of such hoardings which are erected in contravention<br \/>\nof the mandate therein.\n<\/p>\n<p>31.\tA delegated legislation can be declared invalid by the<br \/>\nCourt mainly on two grounds firstly that it violates any<br \/>\nprovision of the Constitution and secondly it is violative of the<br \/>\nenabling Act. If the delegate which has been given a rule<br \/>\nmaking authority exceeds its authority and makes any<br \/>\nprovision inconsistent with the Act and thus overrides it, it<br \/>\ncan be held to be a case of violating the provisions of the<br \/>\nenabling Act but where the enabling Act itself permits ancillary<br \/>\nand subsidiary functions of the legislature to be performed by<br \/>\nthe executive as its delegate, the delegated legislation cannot<br \/>\nbe held to be in violation of the enabling Act.  (See Vide, State<br \/>\nof MP. and another v. Bhola Alias Bhairon Prasad Raghuvanshi<br \/>\n(2003) 3 SCC 1).\n<\/p>\n<p>32. \t<a href=\"\/doc\/633712\/\">In St. Johns Teachers Training Institute v. Regional<br \/>\nDirector, National Council<\/a> for Teacher Education and Another<br \/>\n(2003) 3 SCC 321, this Court has held that:\n<\/p>\n<p>&#8220;Delegated legislation permits utilization of<br \/>\nexperience and consultation with interests<br \/>\naffected by the practical operation of statutes.<br \/>\nRules and Regulations made by reason of the<br \/>\nspecific power conferred by the Statutes to<br \/>\nmake Rules and Regulations establish the<br \/>\npattern of conduct to be followed. Regulations<br \/>\nare in aid of enforcement of the provisions of<br \/>\nthe Statute. The process of legislation by<br \/>\ndepartmental Regulations saves time and is<br \/>\nintended to deal with local variations and the<br \/>\npower to legislate by statutory instrument in<br \/>\nthe form of Rules and Regulations is conferred<br \/>\nby Parliament. The main justification for<br \/>\ndelegated legislation is that the legislature<br \/>\nbeing over burdened and the needs of the<br \/>\nmodern day society being complex it can not<br \/>\npossibly foresee every administrative difficulty<br \/>\nthat may arise after the Statute has begun to<br \/>\noperate. Delegated legislation fills those<br \/>\nneeds&#8221;.\n<\/p>\n<p>33.\tIt is well settled that a delegated legislation would have to<br \/>\nbe read in the context of the primary statute under which it is<br \/>\nmade and, in case of any conflict, it is primary legislation that<br \/>\nwill prevail.\n<\/p>\n<p>34.\t<a href=\"\/doc\/1305345\/\">In ITW Signode India Ltd. v. Collector of Central Excise<\/a><br \/>\n(2004) 3 SCC 48) this Court has held as under:<br \/>\n&#8220;It is well settled principle of law that in case of<br \/>\na conflict between a substantive Act and<br \/>\ndelegated legislation, the former shall prevail<br \/>\ninasmuch as delegated legislation must be<br \/>\nread in the context of the primary\/legislative<br \/>\nAct and not vice versa&#8221;.\n<\/p>\n<p>35.\tThe expression obstruction means &#8220;something that<br \/>\nimpedes or hinders&#8221;. The expression, however, has varied sets<br \/>\nof meaning and is not necessarily confined to physical<br \/>\nobstructions only.\n<\/p>\n<p>36.\tIt has been held that &#8220;Obstructing&#8221; the police, includes<br \/>\nanything which makes it more difficult for the police to carry<br \/>\nout their duties and is not confined to mere physical<br \/>\nobstructions, vide Hinchliffe v. Sheldon,(1955) 1 WLR 1203\n<\/p>\n<p>37.\tObstruction has a wider meaning than mere physical<br \/>\nobstruction and it includes tangible and identifiable<br \/>\nobstruction and even a protest is obstructing.\n<\/p>\n<p>38.\t<a href=\"\/doc\/918266\/\">In Collector of Customs and Central Excise,<br \/>\nBhubneshwar v. Paradip Port Trust and Another<\/a>  (1990 (4)<br \/>\nSCC 250) this Court, construing the expression &#8220;obstruction&#8221;<br \/>\nappearing in Section 133 of the Customs Act, 1962 has been<br \/>\npleased to hold:\n<\/p>\n<p>On the authority of Hinchliffe v. Sheldon it<br \/>\ncan be said that obstruction is not confined to<br \/>\nphysical obstruction and it includes anything<br \/>\nwhich makes it more difficult for the police or<br \/>\npublic servant to carry out their duties. <\/p>\n<p>39.\tThe expression `obstruction&#8217; in Rule 3(iii) would,<br \/>\ntherefore, include any act which impedes the free and safe<br \/>\nmovement of the traffic, pedestrians and vehicles. Such an act<br \/>\nmay well be, by reason of what is displayed on the hoardings.<br \/>\nIf the subject-matter that is displayed in such hoardings<br \/>\nattracts attention of the drivers of vehicles and which, in turn,<br \/>\nimpedes free and safe movement of traffic such a hoarding<br \/>\nwould clearly come under the meaning &#8220;obstruction&#8221;<br \/>\ncontemplated under Rule 3(iii) of the Rules.\n<\/p>\n<p>40.\tIt is to be noted that there is certainly some difference<br \/>\nbetween hazardous and obstruction though there may be<br \/>\nsome amount of overlapping. What is hazardous cannot have<br \/>\ndefinite terms. So in that sense, Legislature had thought it<br \/>\nwise to use the expression obstruction so that it can be<br \/>\nbrought within manageable standards. The ultimate objective<br \/>\nis safe traffic movement and  free and safe flow of traffic.\n<\/p>\n<p>41.\tIt can be seen in applying Section 326J, the authority<br \/>\nempowered can give No Objection Certificate and looking at<br \/>\nthe fact situation in a given case say obstruction has been<br \/>\ncaused. What is physical distortion or destruction can also be<br \/>\nconsidered.  But the conclusions can be challenged.\n<\/p>\n<p>42.\tThe problem can be looked at from another angle.  Even<br \/>\nif there is no obstruction but there is distraction that is also to<br \/>\nbe considered. As was considered  by this Court in P.<br \/>\nNarayans case (supra) the provisions like appeal and the rules<br \/>\nto bring in the principles of natural justice can be pressed into<br \/>\nservice. That will be a right step to avoid arbitrariness. It has<br \/>\nbeen contended emphatically that private hoardings shall not<br \/>\ncause any physical obstruction. But this plea is, as noted<br \/>\nabove, without any substance. In our view there may  not be<br \/>\nphysical obstruction but it can be hazardous. The right to<br \/>\nregulate and control is inherent in exercise of power.\n<\/p>\n<p>43.\tOne other thing which needs to be noted is that the<br \/>\nauthority is not examining the contents of hoardings, size etc.<br \/>\nThe licence is for putting the hoardings. It depends upon the<br \/>\nsize and at that stage the question of content does not come<br \/>\ninto picture.  If it is distraction, the question whether it is<br \/>\nhazardous or creates obstruction comes later.\n<\/p>\n<p>44.\tUnder Rule 9 the District Collector can suo motu take<br \/>\naction if he finds hoardings to be objectionable. The provisions<br \/>\nappear to be not restrictive but are regulatory. There is no ban<br \/>\non advertisement hoardings but obstructive and destructive<br \/>\nones are to be prohibited.\n<\/p>\n<p>45.\tThe apprehended arbitrariness can be well taken care of.<br \/>\nIf show cause notice is issued, it should specify the reasons as<br \/>\nto why the action is proposed to be taken in respect of any<br \/>\nhoarding or hoardings.  The principles of natural justice can<br \/>\nalso be complied with if reasons are indicated in the show<br \/>\ncause notice and there is scope for reply to be given.<br \/>\nThereafter, reasoned adjudication can be made by the<br \/>\nauthorities. It goes without saying that objectivity has to be<br \/>\nthere, even though initially at the stage of issuing show cause<br \/>\nnotice there is subjectivity.\n<\/p>\n<p>46.\tVery narrow and stringent limits have been set to<br \/>\npermissible legislative abridgment of the right of free speech<br \/>\nand expression, and this was doubtless due to the realisation<br \/>\nthat freedom of speech and of the press lay at the foundation<br \/>\nof all democratic organizations, for without free political<br \/>\ndiscussion no public education, so essential for the proper<br \/>\nfunctioning of the processes of popular government, is<br \/>\npossible. A freedom of such amplitude might involve risk of<br \/>\nabuse. But the framers of the Constitution may well have<br \/>\nreflected, with Madison who was &#8220;the leading spirit in the<br \/>\npreparation of the First Amendment of the Federal<br \/>\nConstitution,&#8221; that &#8220;it is better to leave a few of its noxious<br \/>\nbranches to their luxuriant growth, than, by pruning them<br \/>\naway, to injure the vigour of those yielding the proper fruits&#8221; :<br \/>\n[Quoted in Near v. Minnesotta [283 U.S. 607) (Also See<br \/>\nRomesh Thappars case (supra).\n<\/p>\n<p>47.\tSo far as the question relating to enumeration in Rule 10,<br \/>\nthe High Court has taken care of that problem by appointing a<br \/>\nCommittee to identify the places, it was submitted that some<br \/>\nof the directions need to be clarified.  Though it is conceded<br \/>\nthat the directions are not wrong it is submitted that they but<br \/>\nneed clarification.  It is open to the appellants if so advised to<br \/>\nmove the High Court if any clarification is necessary. But in<br \/>\nour view the directions cannot be faulted. It is submitted that<br \/>\ndirection No.16 relates to forthwith demolition.  It needs no re-<br \/>\niteration that the High Courts order is clear to the effect that<br \/>\nonly after enumeration the demolition can be done.\n<\/p>\n<p>48.\tIt is to be noted that M.C. Mehtas judgment (i.e. 1998 (1)<br \/>\nSCC 363) resulted in amendment of the Act. In  the said case<br \/>\nthe direction given in <a href=\"\/doc\/1208005\/\">M.C. Mehta v. Union of India and Ors.<\/a><br \/>\n(1997 (8) SCC 770) has been quoted. The Advertisement Rules<br \/>\nin essence constitute a Code for regulating erection of<br \/>\nhoardings and do not deal with content except where it is<br \/>\nfound to be obscene or objectionable.\n<\/p>\n<p>49.\tThere are two tier arrangements in Rule 3 (b). One<br \/>\nrelating to NOC by the police and the other the power of the<br \/>\nDistrict Collector to see whether the hoardings fall foul of<br \/>\nSection 326J and was in line with it. It needs no emphasis<br \/>\nthat the size is the yardstick and smaller the road the bigger is<br \/>\nthe hazard because the unregulated size can lead to chaos.\n<\/p>\n<p>50.\t<a href=\"\/doc\/283660\/\">In Saghir Ahmad v. State of U.P. and Ors.<\/a> (1955 (11) SCR\n<\/p>\n<p>707) it was held as follows:\n<\/p>\n<p>2. In view of this pronouncement of law, the<br \/>\nState Government, which wanted to have the<br \/>\nexclusive right to operate Road Transport<br \/>\nServices within its territory, sought the<br \/>\nassistance of the Legislature and the U.P. Road<br \/>\nTransport Act (Act II of 1951) was passed and<br \/>\nbecame law on and from the 10th of February,<br \/>\n1951. It is the constitutional validity of this<br \/>\nenactment which is the subject-matter of<br \/>\ncontest in these present proceedings.\n<\/p>\n<p>51.\tThe fact that the hoarding is on building or private land<br \/>\ndoes not take away the regulatory measures relating to<br \/>\nhoardings. There can be cases where because of the size and<br \/>\nthe height, it can be dangerous to public and also be<br \/>\nhazardous. There is no structural safeguard in respect of such<br \/>\nhoardings. There has to be regulatory measures. As has been<br \/>\nrightly contended by learned counsel for the respondents, the<br \/>\nAct and the Advertisement Rules do not regulate<br \/>\nadvertisement. They regulate putting of the hoarding which is<br \/>\nfound to be objectionable, destructive or obstructive in<br \/>\ncharacter.\n<\/p>\n<p>52.\tIt cannot be said that there is infringement of freedom of<br \/>\nspeech. The content, effect and the purpose of statute clearly<br \/>\nshow that it is not intended to be so.\n<\/p>\n<p>53.\tThe inevitable result is that the appeals and writ<br \/>\npetitions are without merit and deserve to be dismissed which<br \/>\nwe direct.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Novva Ads vs Secretary, Deptt. Of Municipal &#8230; on 9 April, 2008 Author: . A Pasayat Bench: Dr. Arijit Pasayat, S.H. Kapadia CASE NO.: Appeal (civil) 2702 of 2008 PETITIONER: Novva ADS RESPONDENT: Secretary, Deptt. of Municipal Administration and Water Supply and Anr. DATE OF JUDGMENT: 09\/04\/2008 BENCH: Dr. ARIJIT PASAYAT [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-19468","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Novva Ads vs Secretary, Deptt. 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