Advert Communications And ... vs The Municipal Corporation Of ...
1996 Latest Caselaw 632 Del

JUDGMENT

1. The plaintiff has filed the instant suit for permanent injunction and the accompanying application for interim relief under O. 39, Rr. 1 and 2 read with S. 151 of the Code of Civil Procedure. The facts as asserted in the plaint arenas follows :

2. The plaintiff is a partnership firm engaged in the business of outdoor publicity. It displays hoardings within the Union Territory of Delhi and the surrounding areas. The plaintiff for the purpose of its business acquires and takes on rent or licence various sites and locations from private parties and also from the defendant Corporation. The plaintiff by letter dated October 10, 1994, applied to the defendant M.C.D. for permission to display advertisement hoardings at sites listed at serial Nos. 1 to 3 of Schedule 'A' . to the plaint. Again on August 17, 1995, the plaintiff applied to the defendant for permission to put up fresh hoardings at site listed at serial Nos. 4 to 6 of the same schedule. The defendant, however, did not respond to the applications of the plaintiff. The plaintiff contends that after the expiry of the statutory period prescribed under the Delhi Municipal Corporation Act, it erected the hoardings at the aforesaid sites.

3. On May 6, 1996, the plaintiff intimated to the M.C.D. its intention to erect and display the hoardings at the sites listed at serial Nos. 7 to 18 of Schedule 'A'. This time again the defendant failed to respond to the letter of the plaintiff. The plaintiff on the expiry of the statutory period erected the hoardings at the aforesaid sites. On July 18, 1996, while the employees of the plaintiff were repairing some of the hoardings, the representatives of the defendant came to the site listed at serial Nos. 7, 13, 17 and 19 of Schedule 'A' and threatened to demolish and remove the same. However, the representatives of the defendant left the site without removing or demolishing the hoardings due to the persuasion of the employees of the plaintiff.

4. The plaintiff seeks permanent injunction against the defendant from removing, defacing, damaging or interfering in any manner with the display of the plaintiff's hoardings at sites as mentioned in Schedule 'A' to the plaint.

5. Mr. Mukul Rohtagi, learned senior counsel appearing for the plaintiff submitted that under bye-law 6 of the Tax on Advertisements (Other than Advertisements published in newspapers) Bye-laws, 1959, the M.C.D. is required to decide the application for grant. of permission to erect a hoarding within seven days of the receipt of the same, and in case this is not done, the applicant acquires a statutory right to put up the same. Learned counsel further pointed out that the defendant MCD failed to respond to the letters of the plaintiff seeking permission to erect the hoardings on private lands and their inaction has created a vested right in the plaintiff to erect the hoardings and to display the advertisements thereon.

6. I have considered the submissions of the learned senior counsel for the plaintiff. Procedure for obtaining permission of the M.C.D. for erection of advertisements is given in bye-law 6 of the aforesaid bye-laws. Bye-law 6 in so far as it is relevant reads as under :--

"6. Procedure for obtaining permission of Commissioner for Erection etc. of Advertisements -

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

Provided that the Commissioner may, for reasons to be recorded in writing, reduce the time limit in special cases.

(2) The Commissioner shall within seven days from the date of receipt of the notice intimate to the applicant the tax due on the intended advertisement provided the Commissioner approves of the advertisement. The Commissioner may disapprove of an advertisement among others, on the ground that its contents or the manner of its display is indecent or otherwise offensive to good taste or public sentiment.

(3) to (5) ....."

7. According to the aforesaid bye-law, any person interested to display, exhibit, fix or erect an advertisement is required to send to the Commissioner, M.C.D., a notice at least 10 days before the advertisement is intended to be displayed. According to bye-law 6(2), the Commissioner is required to intimate to the applicant within seven days from the date of the receipt of the notice the tax due on the intended advertisement provided the Commissioner approves of the advertisement. The Commissioner has been vested with power to disapprove of an advertisement on the ground that its contents or the manner of display is indecent or otherwise offensive to good taste or public sentiment. It is significant to note that the Commissioner is to intimate within seven days from the date of the receipt of the notice the tax due on the intended advertisement only if the Commissioner approves of the advertisement. There is no duty cast on the Commissioner to intimate to the applicant the tax due on the intended advertisement if the Commissioner has not accorded approval to the advertisement. The bye-law does not mention the consequences arising from the delay in approving or disapproving the request of the applicant. There is nothing in bye-law 6 to suggest that in case the Commissioner does not respond to the notice of the applicant within seven days, the applicant would get an indefeasible right to display an advertisement or to erect and display a hoarding. Unlike New Delhi Municipal Committee (Pasting of Bills and Advertisements) Bye-laws, 1992, the instant bye-law does not have a deeming provision. Under bye-law 3(2) of the New Delhi Municipal Committee Bye-laws, the Committee on receipt of an application for putting up a sign board for the purpose of displaying an advertisement, etc., is required to communicate the decision to the applicant within sixty days. In case the Committee fails to communicate the decision within sixty days of the receipt of the application to, the applicant, the application is deemed to have been sanctioned because of the legal fiction created by bye-law 3(3) of New Delhi Municipal Committee Bye-laws.* However, deeming fiction would not come into operation if the hoarding comes up in violation of the law or if the application seeking permission was defective and not made in accordance with the bye-laws.

8. At this stage, it will be convenient to extract bye-law 3(3) of the New Delhi Municipal Committee Bye-laws :--

"The Committee may on receipt of an application referred to above sanction with or without modification or sanction subject to certain conditions or refuse to sanction, the erection, alteration or display of the sign, as may be deemed proper and shall communicate the decision to the applicant. If within sixty days of receiving an application, the Committee fails to intimate in writing to the applicant, the application shall be deemed to have been sanctioned."

9. From a comparison of bye-law 3(3) of the New Delhi Municipal Committee Bye-laws and bye-law 6(2) of the Tax on Advertisements Bye-laws it is evident that unlike the provisions creating deeming fiction contained in bye-law 3(3) of the New Delhi Municipal Committee Bye-laws, there is no such deeming provision contained in or envisaged by bye-law 6(2) of the Tax on Advertisements Bye-laws of the Municipal Corporation of Delhi. It is difficult to hold that if the Commissioner does not decide the application within seven days of the receipt of the notice the applicant would get a right to erect a hoarding for the purposes of exhibiting an advertisement. In bye-law 3(3) of the New Delhi Municipal Committee Bye-laws a period of 60 days has been prescribed, which seems to be reasonable, for the purpose of taking a decision in regard to matter of approving or disapproving an advertising sign. In case the Commissioner is to decide the applications regarding display of hoardings within seven days he would then be doing only this work and other urgent and pressing matters would have to be put off. It could never be the intention of the framers of the bye-law 6(2) to create a right in an applicant to put up a hoarding in case the Commissioner fails to respond within seven days of the receipt of the notice. It is not disputed by the plaintiff that it had erected the hoarding without the receipt of approval from the Commissioner. The haphazard growth of hoardings in the city is a result of a misconceived notion that an applicant applying for exhibiting an advertisement is entitled to erect a hoarding if he does not receive intimation from the Commissioner, M.C.D., within seven days of the receipt of the aforesaid application, even when the application may still be lying with the receipt clerk in the office of the Commissioner. owners of such hoardings which have come up because they did not receive the aforesaid intimation within seven days have no right to maintain the suit for raising the seven days wonders and continuing with them. It appears to me that bye-law 6 does not deal with erection of hoarding at all. It comes into operation after permission of the Commissioner is obtained for erecting a display hoarding on which an advertisement is to be displayed or exhibited. The display hoardings are dealt within bye-law 5. The bye-law reads as follows :--

"5. Advertisement hoardings :

(i) shall not be more than 30 feet high from the ground level;

(ii) shall not project, or be on or over the public way more than 6 inches beyond the general line of buildings in the street for which a regular line of street has been prescribed;

(iii) shall not be within 30 yards from any public park or pleasure promenade; and

(iv) shall not, in the opinion of the Commissioner be disproportionately large in comparison with the size of the land or building on which they are displayed."

 10.    As would be seen from above, the bye-law lays down the conditions in consonance with which display hoardings can be erected. Therefore,    before an advertisement or a display hoarding is put up, the Commissioner
must be satisfied that the applicant would comply with the aforesaid bye-law. 
 

11. The up shoot of the discussion is that before a person can erect a display hoarding for purposes of fixing an advertisement thereon he would have to make a proper application giving the various particulars and satisfying the Commissioner that the intended hoarding would be as per the requirements laid down in bye-law 5. It is only after the erection of display hoarding has been approved, that the stage for obtaining permission of the Commissioner for exhibiting an advertisement thereon comes. It is at this stage that a notice in writing together with the matter to be advertised is required to be sent to the Commissioner under bye-law 6(2). The Commissioner may disapprove the advertisement if its display would be indecent or otherwise offensive to good taste or public sentiment. In case the Commissioner does not accord approval or does not act within a reasonable time, the applicant is not remediless. He can invoke the provisions of Art. 226 of the Constitution for seeking the requisite relief. Taking cue from the bye-law 3(3) of the New Delhi Municipal Committee Bye-laws, the Commissioner, Municipal Corporation of Delhi would be well advised to decide the applications regarding erection of display hoardings within 60 days of the receipt thereof as in the capital city similar time limit should apply in deciding such matters by the civic authorities, whether the area falls within the jurisdiction of New Delhi Municipal Committee or Municipal Corporation of Delhi.

12. Therefore, having regard to the aforesaid discussion, I am of the view that the hoardings erected by the plaintiff are unauthorised as not having been sanctioned by the competent authority. It also needs to be noted that it is not pleaded by the plaintiff that the advertisement hoardings erected by it comply with the provisions of bye-law 5 of the Tax on Advertisement Bye-laws. There is not even a whisper in the plaint that the hoardings erected by the plaintiff comply with the four conditions laid down in the aforesaid bye-law 5. The chaotic display of hoardings is the result of misinterpreting the provisions of bye-law 6(2) of Tax on Advertisement Bye-laws. Photograph at page 76 would show that some of the hoarding which have been erected on the roof tops of the buildings or houses, appear to be more than 30 feet high from the ground level which cannot be permitted in view of aforesaid bye-law.

13. There is another aspect of the matter. Assuming that the interpretation placed by the learned counsel for the plaintiff on bye-law 6(2) is correct even then the plaintiff does not have any right to erect the hoardings and to display the advertisements as admittedly no permission had been given by the Delhi Urban Art Commission for erecting the same. According to S. 11(2)(f) of the Delhi Urban Art Commission Act, 1993, proposal for erection of a hoarding must be placed before the Delhi Urban Art Commission. At this stage, S. 11, in so far as it is relevant, may be quoted :--

"11. Functions of the Commission -

 (1) xx     xx     xx 
 

 (2) Subject to the provisions of sub-section (1), it shall be the duty of the Commission to scrutinise, approve, reject or modify proposals in respect of the following matters, namely - 
   xx     xx     xx
 

 (f) under-passes and over-passes regulations of street furniture and hoardings; 
   xx     xx     xx              " 
 

14. In Harsh Gupta v. New Delhi Municipal Committee, 1995 (3) AD (Delhi) 1001, the provisions of the Delhi Urban Art Commission Act, 1973, specially S. 11 thereof, came for interpretation of this Court. It was pointed out that under this section it is the function of the Commission to advise the Central Government in the matter of preserving, developing and maintaining the aesthetic quality of Delhi and also its environmental design, and also to advise and render guidance to the local authority in respect of building operations or development proposals which affect the sky-line or the quality of surroundings or any public amenity. It was pointed out that under S. 11(2)(f) proposal for street furniture and hoardings has to be placed before the Delhi Urban Art Commission for approval. In this regard it was held as follows :--

"Thus, under sub-sec. (2)(h) of S. 11 any project or lay out which is calculated to beautify Delhi or to add to its cultural vitality or to enhance the quality of surroundings thereof is covered under the Urban Art Commission Act. Therefore, any project which is meant to enhance the beauty of Delhi or to increase its cultural vitality must receive the approval of the Delhi Urban Art Commission. In other words, if any action of the authority detracts from the provisions of S. 11(2)(h) it cannot be allowed by the Commission. For example, where a project instead of increasing the beauty of Delhi or adding to its cultural vitality or enhancing the quality of its surroundings mars its beauty, saps its cultural vitality and destroys the quality of its surroundings must be placed before the Commission for scrutiny. Otherwise, the object and the spirit being the provisions of the enactment would be defeated. As the provisions are meant to protect the beauty, cultural vitality and the quality of the surroundings of Delhi, each and every project which involves building operations or development proposals must be placed for approval before the Delhi Urban Art Commission. It would be seen that under sub-clause (f) of S. 11(2) of the Delhi Urban Art Commission Act proposal for street furniture and hoarding has to be placed before the Delhi Urban Art Commission."

This Court also examined the objectives and guidelines issued by the Delhi Urban Art Commission and the relevant portion of the introduction to the objectives and guidelines. In this regard it was observed as follows :--

"As is clear from above, the objectives note that despite the operation of the Master Plan and the functioning of the Delhi Development Authority for a longtime, there has been no progress in making Delhi a better place aesthetically and functionally. If the Commission also turns a Nelson's eye to what is happening in Delhi and to the haphazard setting up of the structures for commercial purposes, Delhi, which is already at the edge of a dark abyss, will be hurtled into" it. The objectives of the commission as set but above show that the Commission would function with a view to preserving, developing and maintaining the aesthetic design of Delhi."

15. Learned counsel for the plaintiff submitted that the decision in Harsh Gupta's case (1995 (3) AD (Delhi) 1001) (supra) was not rendered in regard to the erection of hoardings. He pointed out that in that case the action of the N.D.M.C. in constructing kiosks in the vicinity of the cultural hub of the city was challenged as being violative of the Delhi Development Act and the provisions of S. 11 of the Urban Act Commission Act. This may be so, but the fact remains that in that case the question was also examined with reference to the provisions of S. 11(2)(f) which deals with erection of the hoardings. One of the photographs placed at page 77 of the record shows large number of hoardings contiguous to the road and fixed in close proximity to each other. It also shows hoardings placed on roof tops of the buildings. To say the least, the hoardings and the iron frames constructed to fix the same give a horrendous look and the same detract from the aesthetic quality of the city. These, hoardings also spoil the skyline. Again photographs filed by the plaintiff at page 78 depict the same position. It is the duty of the civic bodies to strictly comply with the provisions of law relating to maintaining the beauty and the aesthetic quality of the capital city so that it cannot only boast of a glorious past but also of the present and the future. Besides so many display hoardings depicting various advertisements for promoting goods and services at one place can divert the attention of the motorists and drivers of heavy vehicles resulting in accidents. The civil authorities must regulate the erection of the hoardings and the fixing of advertisement thereon having regard to urban aesthetics, public safety, morality, public sentiments and other relevant factors.

16. Learned counsel for the plaintiff canvassed that sub-sec. (2)(f) of S. 11 does not envisage going to the Urban Art Commission for seeking permission for erection of every hoarding. He submitted that the true meaning and import of sub-section (2)(i) of Section 11 is that it requires the civic body to consult the Urban Art Commission in regard to the general policy regarding putting up of the hoardings in the city. Assuming this to be so that plaintiff has failed to plead and allege that proposal for erecting the hoardings as a matter of general policy was approved by the defendant.

17. Learned Counsel for the plaintiff submitted that the plaintiff cannot approach the Urban Art Commission for permission of general policy to erect the hoardings and it is the duty of the civic body to seek such a permission. As a sequitur he submitted that since the civic body failed to refer the matter to Urban Art Commission or procure the permission from it, the plaintiff should not be penalised for the default of the authority. The submission of the learned Counsel, if taken to its logical conclusion, will mean that since the civic body has failed in doing its public duty in securing the permission of the Urban Art Commission, the plaintiff would be entitled to put up a hoarding if he does not receive the intimation in this regard within seven days of the application. This argument of the learned Counsel does not appeal to me. If the civic body has failed to act according to law no advantage can be taken by the plaintiff. When a public authority is entrusted with a public duty, in the performance of which the community at large is vitally interested, failure to perform the same cannot be allowed to be used for the advantage of a person or persons to the common department of the society.

18. Having regard to the aforesaid discussion, the plaintiff has failed to disclose a cause of action against the defendant for grant of permanent injunction. Accordingly, the suit is dismissed under Order 7, Rule 11, C.P.C.

19. Order accordingly.