Municipal Corporation Of Delhi vs Pioneer Publicity Corporation
1997 Latest Caselaw 14 Del

JUDGMENT

M.S.A. Siddiqui, J.

(1) These appeals are directed against the common order dated 17.9.1993 passed by the Additional District Judge, Delhi on respondents' application under Order 39 Rules 1 and 2 Civil Procedure Code . for grant of interim injunction in civil suits bearing No.13, 32, 33, 49, 50, 60, 61, 80, 79, 74, 141 and 72 of 1993 filed by the respondents. By the order impugned in these appeals, pending the said suits, the appellants and its servants have been restrained from dismantling, removing or damaging any of the hoardings set up by the respondents during pendency of the suit. Since common questions of fact and law are involved in these appeals, the same are being disposed of by this common judgment.

(2) The respondents filed civil suits for permanent injunction and the accompanying application under Order 39 Rules 1 and 2 Civil Procedure Code . The respondents are carrying on the business of advertising and/or are displaying/advertising various products of their customers by placing hoardings/advertisements and sign boards at various sites. Some of sites belonging to private parties have been hired by the respondents for putting up hoardings/advertisements. The respondents applied and tendered to the appellant the advertisement tax alongwith site plan and the text of advertisement in respect of sites taken on lease from private owners. The respondents waited for reasonable time but they did not receive any permission from the appellants to set up their hoardings/advertisements. Thereafter, the respondents set up hoardings/advertisements. The petitioners employees came to the site and threatened to demolish, deface and remove the hoardings/advertisements. Consequently, the respondents filed civil suits for permanent injunction on the ground that the advertisements displayed by them did not violate any of the bye- laws framed by the petitioner and it also does not injuriously affect the amenities of any historic building and was in no way indecent or offensive of good taste and public sentiments.

(3) The appellant stoutly resisted the applications filed by the respondents under Order 39 Rules 1 and 2 Civil Procedure Code . However, the learned trial judge on the basis of the materials placed before him and also on the basis of the arguments advanced came to the conclusion that every application which is submitted for permission to set up hoardings/advertisements must be dealt with and if the same is not entertained, the person who applied and tendered advertisement tax and displays the advertisements is to be protected. He therefore allowed the respondents' applications under Order 39 Rules 1 and 2 Civil Procedure Code .

(4) Learned counsel for the appellants has submitted that the respondents had not obtained the requisite prior permission from the appellant for erecting the advertisements/hoardings and the trial court has no jurisdiction to entertain and try the suits filed by the respondents and as such the order granting interim injunction passed by the learned trial court is liable to be set aside.

(5) Admittedly the respondents had not obtained the requisite prior permission from the appellant for erecting the advertisements/hoardings. Under Section 481 of the Delhi Municipal Corporation Act 1957, the Corporation has been empowered to frame byelaws to regulate the posting of bills and advertisements. The power to regulate also includes the power to prevent the hazard placing of advertisements and for obtaining of the prior permission of the competent authority for setting up or erecting of posting of the bills and advertisements. Bye-law No.6 prescribes procedure for obtaining permission of the commissioner for erection of advertisement. It reads as under;- "6.PROCEDUREfor 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 othr wise offensive to good taste or public sentiment. (3)....... (4)....... (5)....... According to bye-law No.6, no advertisement shall be erected, exhibited, fixed or retained without the permission of the Commissioner. It has been held in Lahori Mal & Anr. Vs. N.D.M.C. & Ors. that before an hoarding/advertisement can be erected, two things have to be done namely tax has to be paid in advance and permission obtained. The requirement of the bye-laws for obtaining prior permission from the commissioner is in no way diluted. It is pertinent to mention here that similar question arose before this Court in C.S. No.1722 of 1996 (Advert Communications & another Vs. the M.C.D.) decided on 1.8.1996. The facts of the said case are that the plaintiff by letter dated 10.10.94 applied to the M.C.D. for permission to display advertisement/hoardings at the sites mentioned in schedule A to the plaint. Again on August 17, 1995, the plaintiff applied to the Mcd for permission to put a fresh hoardings at the sites mentioned in the schedule annexed with the plaint. The M.C.D. did not respond to the applications of the plaintiff. On may 6, 1996 the plaintiff intimated to the Mcd its intention to erect and display the hoardings at the sites mentioned in the schedule. The Mcd again did not respond to that application. Thereafter, the plaintiff erected the hoardings at the proposed sites. On July 18, 1996, while the employees of the plaintiff were repairing some of the hoardings, the employees of the Mcd came at the site and threatened to demolish and remove the hoardings. Aggrieved by the said action of the Mcd, the plaintiff filed a suit for permanent injunction for restraining the Mcd from removing, defacing, damaging or interfering in any manner with the display of the plaintiffs hoardings. The suit and the accompanying application under Order 39 Rules 1 and 2, Civil Procedure Code . were resisted by the Mcd on the ground that advertisements/hoardings cannot be erected without obtaining prior permission of the competent authority in accordance with the bye-laws framed by the MCD. The plaintiffs said suit was dismissed by the order dated 1.8.1996 on the ground that advertisement/hoardings can be erected only after obtaining prior permission under the bye-laws No.6. It was also held that before a hoarding/advertisement is erected, prior permission under Section 11(2) and (f) of the Delhi Urban Art Commission for erecting the same has to be obtained. I am in respectful agreement of the said view expressed by the learned Judge. Admittedly, it appears that the learned trial court has been very much carried away by the fact that the respondents applied and tendered advertisement tax to the Commissioner and since the Commissioner did not respond to the applications of the respondents, they are entitled protection of the court. I am unable to subscribe to the view taken by the learned trial court as there is no such deeming provisions contained in or envisaged by the bye-law No.6 of the tax on advertisements Bye-laws of the Municipal Corporation of Delhi. It is difficult to hold that on the facts and circumstances of the case, inaction on the part of the Commissioner, had created an indefeasible right in the respondents to erect the hoardings and to display the advertisements thereon. Consequently, I have no hesitation in coming to the conclusion that the hoardings erected by the respondents are unauthorised as not having been sanctioned by the competent authority and the learned trial court has acted capriciously and has ignored the provisions of the bye-laws and Section 11(2)(f) of the Delhi Urban Art Commission Act, 1973 in granting interim injunction in favour of the respondents. On the analysis and discussion in the foregoing paragraphs, it is my considered view that the impugned order is unsustainable and has to be set aside. Accordingly, the appeal is allowed and the order dated 17.9.1993 is set aside with costs. Counsel's fee is fixed at Rs.5,000.00 .