Pioneer Publicity Corporation vs New Delhi Municipal Committee
1996 Latest Caselaw 130 Del

JUDGMENT

Manmohan Sarin, J.

(1) This is an application filed by the plaintiff under Order Xxxix rules 1 and 2 Cpc, alongwith the suit for perpetual injunction seeking inter alia to restrain the defendant No.1- New Delhi Municipal Committee now New Delhi Municipal Council, from demolishing, defacing, damaging or interfering in any manner with the advertisements/ hoardings put up by the plaintiff as detailed in annexure P-1 to the plaint.

(2) The plaintiffs case is that it had entered into a contract with defendant No.2 i.e. Northern Railways for display of hoardings at the sites owned by the latter. The plaintiff states that after due approval from defendant No.2 Northern Railway, it had put up the hoardings and had duly paid the entire rental for the same to the Northern Railways. The plaintiff had also paid the advertisement tax to defendant No.1. Once the said tax was paid, no impediment could be created by defendant No.1 in the display of advertisements/hoardings.

(3) The suit was filed in September, 1993 as the officials of defendant No.1 threatened to remove and demolish the hoardings on the site of Railways on the ground that no permission had been taken from the defendant No.1. The Court on 21-9- 1993, granted an ad interim ex- parte injunction restraining the defendant No.1 from demolishing, obstructing, defacing for interfering in any manner with the display and exhibition of the hoardings.

(4) The written statement was filed by the defendant No.l in July 1994. The case kept on getting adjourned from time to time and the present application was not disposed of. The main contention of the defendant No.l is that prior permission of the Committee is required for putting up any hoardings or advertisements under the Bye Laws framed by it. This was necessary despite any contract with the owner of the site to make the same available for display.

(5) Let me at this stage briefly notice the legal position regarding permission being required of the defendant No.1- Committee for putting up advertisement hoardings. In terms of Bye Law No. 6 framed vide notification dated 17-9-1960 prior permission of New Delhi Municipal Committee was required before any hoardings or advertisements could be put up. Learned Single Judge of this Court in New Delhi Municipal Committee Vs. Netra Mohan Prakash Trehan - Rfa 287 61 held the said Bye laws as being ultra vires. The situation therefore, after the judgment was that advertiser had to enter into a contract with the owner of the site, pay the advertisement tax and display the adverstisements/hoardings, without any requirement of prior permission from the New Delhi Municipal Committee.

The aforesaid judgment came to be considered by the Division Bench of this Court in Cw 3762/93 titled Lahori Mat & Others Vs. New Delhi Municipal Committee and Others. The Division Bench overruled the judgment of the Single Judge in New Delhi Municipal Committee Vs. Netra Mohan Prakash Trehan and upheld the vires of Bye Law No. 6. In the meantime, the New Delhi Municipal Committee pasting (Bills and Advertisement) Bye Laws 1992 had been notified in the Delhi Gazettee vide notification No. F-4 (29-91-LSG-3369 dated 15-3-1993). The Division Bench considered the above Bye Laws and observed that the same do not appear to be ultra vires. The said Bye Laws provided for prior permission being taken. The Court observed that the Bye Laws provided for regularization of the pasting of Bills and Advertisements.

(6) The legal position which emerged was that before hoarding or advertisements could be put up two things were required to be done "Tax had to be paid in advance and permission obtained for putting up the hoarding. The permission from the owner of the site alone was not sufficient. The Court also gave certain directions to deal with the advertisements and hoardings that had been displayed, without the permission pursuant to the decision of the Single Judge in Netra Mohan Prakash Trehan's case. Notices were issued to the existing advertisers. Notices were also directed to be pasted at the site. Public notice requiring existing advertisers to apply for permission were also to be taken out. The existing advertisers were required to apply for permission . within one month of the pasting of notice or its publication.

(7) The present Bye Laws provide for a procedure and prescribe the information and particulars to be furnished in terms of Clause 3 (2) of the Bye Laws for permission to be granted. The Bye Laws also provide for a deemed permission in case the New Delhi Municipal Committee fails to dispose of the permission within 60 days of the application.

It would therefore, be seen that in view of the legal position laid down in Lahori Mal's case as discussed above, the averment in the plaint and pleas to the effect that permission of defendant No. 1 was no required, cannot be entertained.

(8) The plaintiff confronted with this situation has belatedly on 14-02-1996, moved an amendment application I.A. No. 1688 of 1996. The plaintiff by this amendment application sought to incorporate alleged subsequent events in the plaint. The averments sought to be incorporated were to the effect that following the judgment in Lahori Mal's case in Cw 37262/93 and receipt of notice from Ndmc, the plaintiff applied in the prescribed format and sent to the defendant No.l an application, site plan, structural drawings, dimensions of advertisements and details of the materials used alongwith "No objection" from Railway and/or allotment received from them. The application is said to have been filed in the first quarter of 1994 and acknowledgement was received in writing. The plaintiff further averred that as it was under a bonafide doubt as to whether structural drawing submitted to the defendant No.1 included the certificate of the Chartered Accountant or not, it therefore, again applied for regularization in the first quarter of 1994. It was further averred that since no reply had been received from the defendant and since more than 60 days had already passed, the permission is deemed to have been granted.

(9) The amendment application had come up on 19-2-1996, when counsel for both the parties agreed that the interim application under Order Xxxix Rule I and 2 Cpc could be disposed of and for this purpose the pleas raised by the plaintiff in the application and documents in support thereof could be considered. Mr. Chandhiok then submitted that the documents were not with the plaintiff and had been seized by the Income Tax authorities. He then wanted the hearing of the interim application under Order Xxxix Rule 1 and 2 Civil Procedure Code to be deferred till the documents were received from the Income Tax authorities or notice was issued to the Income Tax authorities for production of the said documents. This prayer was declined and arguments were heard and order reserved.

As noticed above, the legal position is that prior permission from defendant No. 1 and approval of the advertisement/hoardings was required. For the purposes of disposal of the interim injunction application, I am considering the pleas taken in the amendment application, even though the same has not yet been allowed. The suit was filed on 17-9-1993. The plea taken by the plaintiff was that prior permission was not required. The plaintiff in the amendment application gives no particulars as to when the notice from New Delhi Municipal Committee was received as to the existing advertisement sites. He gives no particulars regarding the date on which the application was filed by the plaintiff with the defendant No.l. It is simply mentioned as October, 1994. Neither the copy of the said alleged application nor acknowledgement thereof or copies the said structural drawings, plans and dimensions as filed have been produced. The explanation given is that the records and documents had been seized by the Income Tax Authorities on 27-10-1995. Accordingly, the plaintiff is not in a position to produce the said application.

(10) Mr. H.A. Ahmadi has correctly urged that no credence can be given to the plaintiffs plea of having applied for permission. The same was totally vague and on the basis of such vague averments, the plaintiff cannot be given the benefit of a deemed approval. The said plea was argued was a false one and no application had been submmited by the plaintiff.

(11) I am in agreement with the submissions made by the learned counsel for the defendant. The Income Tax department is said to have seized the papers on 27-10-1995. No seizure memo has been produced on record so as to show that the documents seized included the notice received and the application made for approval of advertisements/hoardings to the defendant No. 1. Mr. Chandhiok very fairly admitted during the course of arguments that the seizure memo merely mentions loose papers which also has not been filed on record. There is no explanation whatsoever as to why the plaintiff did not move the Court immediately for bringing on record the application allegedly submitted pursuant to the Lahori Mal judgment. This is specially so when the plaintiff claims to have received a notice from New Delhi Municipal Committee. and acted there upon. The plaintiff had all the opportunity during 1994 and 1995, to move the application and file the documents on record specially since it claims the same were seized on 27-10-1995 only. There is no explanation as to why the plaintiff, who would have become entitled to deemed permission did not bring these developments on record, when the matter had been adjourned at his request number of times. There is nothing produced on record to show that return of the seized documents i.e the alleged application etc had been sought from Income Tax Authorities. The plea seems to be the last ditch effort of the plaintiff to flog a dead horse into life.

(12) The plea of the plaintiff does not deserve any credence, leave aside the plaintiff becoming entitled to the benefit of the deemed permission pursuant to the alleged application. For availing the benefit of deemed permission, the plaintiff must prima facie show the receipt of notice, submission of the applications as required, and non action by the New Delhi Municipal Committee for a period of 60 days. The plaintiff has failed to do so. The plaintiff accordingly, does not have any prima facie case so as to be entitled to the discretionary relief of injunction. The balance of convenience is also against the grant of injunction in as much the plaintiff does suffer any irreparable injury which cannot be compensated by damages. The plaintiff cannot be permitted to continue to display the hoardings/advertisements for which he has failed to prima facie show the permission. The application has no merit and is dismissed.