Telangana High Court
Sky Media vs The Union Of India, on 4 September, 2024
THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY
WRIT PETITION Nos.13829, 13949, 14092, 14160, 14206,
14255, 14300, 14301, 14303, 14304, 14310, 14312, 14319,
14324, 14325, 14326, 14327, 14329, 14332, 14358 and
15269 of 2024
COMMON ORDER:
The issue involved in these writ petitions is intrinsically interconnected and therefore, they are taken up and heard together and are being disposed of by this common order.
2. This batch of cases has been filed by the petitioners seeking to declare the action of respondent No.2 in issuing impugned notices directing the petitioners to remove the advertisement hoardings on their respective premises situated at Secunderabad, as bad in law, illegal, discriminatory and violative of Article 14 of the Constitution of India and consequently prayed this Court to direct the respondent No.2 to restrain from removing the advertisement hoardings from the respective premises and for other appropriate reliefs.
3. Writ Petition No.13829 of 2024 is taken up as a leading case to decide the lis in this batch of cases.
4. It is the case of the petitioner that it is an advertising agency, operating business under the name and style as "the Ad-Space". It is stated by the petitioner that in addition to the hoarding business, he 2 is also doing business of newspapers, digital media like TV, Radio and having several hoardings in various places and in the process of its business, it entered into an agreement for erection of advertisement hoarding at Plot No.2, Ravi CHS, SSR Arcade, Trimulgherry, Secunderabad on rooftop of the building and carrying out business without any hindrance from any corner by taking utmost care without causing any difficulty to the public for the last several years. The grievance of the petitioner is that the respondent No.2 without conducting any inspection and without there being any evidence that the advertisement hoarding installed by it is causing endanger to the public safety, issued the impugned notice for removal of the hoardings and the said action on the part of respondents amounts to violation of Articles 14, 19 and 21 of the Constitution of India and prayed to grant the relief as sought for.
5. The Chief Executive Officer of the respondent No.2 has filed counter affidavit inter alia stating that the Secunderabad Cantonment Board (for short "the Board") is an authority constituted under the Cantonments Act, 2006 (hereinafter referred as "Act") and it is competent to exercise all the powers as a local authority. It is stated that under Section 66 of the Act, the Board is empowered to impose taxes viz., Property Tax, Tax on Trades, Professions Callings and Employments. It is also stated that under Section 67 of the Act, 3 the Board is empowered to charge license fee on advertisements, other than advertisements in newspapers along with other license fees as mentioned in the said Section. Section 348 of the Act enables the Board to make bye-laws and rules to effectively function in terms of the provisions of the Act. It is stated that under Section 348 of the Act, the Board has framed Bye-laws. Bye-law No.17 authorizes the Board to take all measures such as control and supervision of the places where dangerous or offensive trades are carried on, so as to secure cleanliness therein or to minimize any injurious, offensive or dangerous effects arising or likely to arise thereon. Bye-law No.18 states about regulation of erection of any enclosure or other temporary structures of whatsoever material or nature on any land within the Cantonment and fee chargeable in respect thereof. It is further stated that the advertisement elements which are at huge heights from the ground level have collapsed a number of times in the recent past, although certified as stable, thereby creating havoc. It is further stated that the State Government has issued G.O.Ms.No.68 dated 20.04.2020 prescribing certain operative guidelines for granting permissions for advertisement elements which are below 15 feet from ground level and also regulating existing advertisement elements. It is further stated in the counter affidavit that the respondent No.2 Board in its meeting dated 01.08.2022 had proposed to levy penalty on unauthorized advertisement hoardings, 4 flexies, so as erection of banners and cutouts within the area of Secunderabad Cantonment. The Board in its meeting dated 29.09.2022 vide CBR No.26 dated 01.08.2022 had resolved to approve the authorized spaces for erections of flexies/banners as per the prices fixed therein. It is further stated that issues regarding regulating advertisement hoardings on rooftop of private buildings, was discussed at length in the Board Meeting held on 10.05.2023 and in the said meeting, the Board taking into consideration the New Advertisement Policy of Government of Telangana issued vide G.O.Ms.No.68 dated 20.04.2020 and the safety and security of residents of the Secunderabad Cantonment Area and even though there is a loss of revenue of Rs.One Crore per annum to the Board, resolved that all the rooftop hoardings along with structures be removed by on or before 30.06.2023 failing which action would be initiated as per the provisions of the Cantonments Act, 2006. Subsequent to the said Resolution, the Board has published a public notice on 12.06.2023 in various newspapers. It is stated that questioning the said notice, the petitioners and others have instituted W.P.Nos.16637 of 2023 and batch seeking to declare the newspaper publication dated 12.06.2023 as illegal, arbitrary and unconstitutional and this Court vide order dated 11.12.2023 while allowing the said Writ Petitions filed by the petitioners therein permitted the respondent No.2 to take any appropriate action in 5 accordance to law as per the provisions of Cantonments Act, 2006 by following the procedure as contemplated under Section 297, 318 of the Cantonments Act. It is the case of the respondent No.2 that in compliance of the directions issued by this Court in W.P.No.16637 of 2023 and batch, they have issued notice under Section 297 of the Act and the same does not suffer from any legal infirmities warranting interference of this Court under Article 226 of Constitution of India and prayed for dismissal of the same.
6. I have carefully considered the submissions of learned counsel for the respective parties and perused the record.
7. The petitioners herein in this batch of cases are the owners/ advertisement agencies. It is their case that they have erected advertisement hoardings on the respective premises by obtaining necessary permissions and the respondents are regularly collecting the advertisement charges/fee as per the provisions of the Cantonments Act. It is further case of the petitioners that even though erection of advertisement hoardings would not cause any inconvenience to the public in general and inhabitants in particular, the respondents have issued impugned notices with a malafide intention. It is further case of the petitioners that the policy enunciated by the State Government vide G.O.Ms.No.68 dated 20.04.2020 for allowing the erection of advertisements elements 6 below 15 feet height from the ground level and the said policy does not apply for erection of the hoardings on high rise buildings. It is their further case that Government policy and guidelines framed thereunder are applicable to the erection of Unipoles, which are dangerous and the said parameters are not applicable to the hoardings installed by the petitioners and thus prayed this Court to set aside the impugned notices.
8. The respondent No.2 is a Board constituted under the provisions of the Cantonments Act, 2006 and a local authority as defined under Article 243-P(e) of the Constitution of India. Part IX and IXA of the Constitution confers power on the local self- Government, a complete autonomy. Section 10(2) of the Act provides for constitution of the Cantonment Board. Under Section 66 of the Act, the Board has power and authority to impose taxes, viz., property tax, tax on trades and etc., Section 67 of the Act, enables the Board to issue appropriate orders for collecting necessary charges/license fee and other fees on advertisements and etc. Section 348 of the Act empowers the Board to frame necessary Rules/Regulations/Bye-laws for effective discharge of the responsibilities assigned under the provisions of the Act. The respondent No.2-Board while exercising its discretion in terms of the powers conferred under Section 348 of the Act has conducted a 7 meeting and passed a resolution dated 10.05.2023 to adopt the State Government policy enunciated in G.O.Ms.No.68 dated 20.04.2020 for allowing the hoardings upto 15 feet height from the Ground level. In terms of the policy adopted by the respondent No.2-Board, a general notice has been published in the newspapers for removal of the hoardings even though the said action results in loss of revenue to the tune of Rs.One Crore per annum. It is to be seen that the policy framed by the State Government in G.O.Ms.No.68 dated 20.04.2020 has been assailed before this Court in W.P.No.36328 of 2022 and batch and this Court duly taking note of the erections of the advertisement Boards within the vicinity of twin cities and after referring catena of judgments, upheld the power of the State Government to issue G.O Ms.No.68 dated 20.04.2020, except imposing of the penalties. The Secunderabad Cantonment area is located in the twin cities of Hyderabad and Secunderabad and interchange of the traffic to reach their destinations. The Board considering that the hazardous hoardings would cause inconvenience to the public at large and adversely affect free flow of traffic, has taken a decision to remove the hoardings. When initially, the respondent No.2-Board has not followed the procedure as contemplated under Section 297 r/w 318 of the Act, this Court while allowing the writ petitions, directed the respondent No.2 to follow the procedure contemplated under the Act.
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9. The respondents in compliance of the orders issued by this Court have issued notices to the petitioners and their tenants/lease holders to submit an explanation specifying the reasons therein that the rooftop hoardings erected by the petitioners/tenants/lease holders are dangerous to the persons passing-by/dwelling or working in the neighborhood and such danger is imminent during heavy rains. It is stated that some of the petitioners have submitted explanation to the said notices.
10. Be that as it may, it is to be seen that the respondents have adhered to the procedure by issuing impugned notices to the petitioners. The power of the respondents is traceable under Section 297 of the Act. The respondent-board while exercising the said power has adopted the G.O.Ms.No.68 dated 20.04.2020 issued by the State Government. The petitioners in this batch of writ petitions have not questioned the resolution passed by the Board dated 10.05.2023 for adopting the said G.O. It is not the case of the petitioners that respondent/State while adopting the policy has shown discrimination.
11. In the similar circumstances, the Hon'ble Apex Court in M.C.Mehta vs. Union of India and others 1 observed as follows: 1
(1998) 1 SCC 363 9 "It is obvious that every hoarding, other than traffic signs and road signs on the road-sides have to be removed irrespective of its kind; every hoarding irrespective of whether it is on the road-side or not which is hazardous and a disturbance to safe traffic movement so as to adversely affect free and safe flow of traffic is required to be identified by the authorities and promptly removed. Obviously, the hazardous hoarding which is a disturbance to safe traffic movement has to be a hoarding visible to the traffic on the road. No other detail or further guideline is required for appreciating this order and its implementation. Even though the order dated 20.11.1997 was explicit and very clear, yet these further observations are made to leave no one in any doubt of the content and requirement of our order."
12. In Tamil Nadu Outdoor Advertising Association rep. by its Secretary Thiru vs. Government of Tamil Nadu 2, the Division Bench of Madras High Court, has expressed its opinion that the Government has to take stringent action with reference to hoardings which are endanger to the public safety.
13. In Novva ADS vs. Secretary, Department of Municipal Administration and Water Supply and another 3, the Hon'ble Apex Court observed as follows:
"Para 49: The problem can be looked at from another angle. Even if there is no obstruction but there is distraction that is also to be considered. As was considered by this Court in P. Narayan s case (supra) the provisions like appeal and the rules to bring in the principles of natural justice can be pressed into service. That will be a right step to avoid arbitrariness. It has been contended emphatically that private hoardings shall not cause any physical obstruction. But this plea is, as noted above, without any substance. In our view there may not be physical obstruction but it can be hazardous. The right to regulate and control is inherent in exercise of power."
14. In the instant case, admittedly, the respondents have adopted the policy of the Government and followed the procedure 2 2001 (2) CTC 103 : 2001 Supreme (Mad) 330 3 (2008) 8 SCC 42 10 contemplated under the provisions of the Act. The petitioners miserably failed to place any evidence that the policy adopted by the respondent No.2-Board is discriminatory. The regulatory powers have been conferred on the respondent No.2-Board to prescribe the size and height of the advertisement hoarding to prevent any untoward incident and keep the object of the public safety as the priority. It is a settled principle of law that individual interests will not prevail over the public interest, especially when regulatory powers are exercised by Respondent No.2 to enforce policy.
15. For the aforementioned reasons, this Court finds no fault with the actions initiated by the respondents. Consequently, the writ petitions filed by the petitioners are devoid of merit.
16. Accordingly, these writ petitions are dismissed. However, the petitioners are at liberty to submit a representation to the respondents requesting reasonable time for removal of the hoardings. On filing such representation(s), the respondents are directed to consider the same.
As a sequel, miscellaneous applications pending if any in these writ petitions, shall stand closed. No order as to costs.
} __________________________ C.V. BHASKAR REDDY, J Date: 04.09.2024 SCS