Delhi High Court
Brite Advertising & Marketing vs Public Works Department (Pwd) & ... on 10 September, 2013
Author: V. K. Jain
$~46,10,14,23 to 28 and 40&41
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 10.09.2013
+ W.P.(C) 5118/2013 & CM 11517/2013
M/S BRITE NEON SIGNS PVT. LTD.
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PUBLIC WORKS DEPTT. & ANR
..... Respondent
Through: Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 869/2012
BRITE NEON SIGNS PVT LTD
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PUBLIC WORKS DEPARTMENT (PWD) & ANR
..... Respondent
Through:
Mr. Amar Nath Saini, Adv.
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2524/2013 & CM 4782/2013
M/S TRIPLE ESS COMMUNICATION PVT. LTD
..... Petitioner
Through: Mr. Abul Sattar, Adv.
versus
PUBLIC WORKS DEPARTMENT AND ANR
..... Respondent
Through: Mr. Amiet Andlay and Mr. Arun K. Sharma,
Adv. for R-1
W.P.(C) 5118/2013&other connected matters Page 1 of 10
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2409/2011 & CM 5111/2011 (stay)
PRITHVI ASSOCIATES
..... Petitioner
Through: Mr. Avadh Kaushik, Adv.
versus
PWD & ANR.
..... Respondent
Through: Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2478/2011 & CM 5287/2011 (stay)
JR CREATIONS ADVERTISING PVT LTD
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PWD AND ANR
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2493/2011 & CM 5312/2011 (stay)
PRATIBHA ADVERTISING PVT LTD
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PWD AND ANR
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
W.P.(C) 5118/2013&other connected matters Page 2 of 10
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2494/2011 & CM No.5313/2011 (stay)
SARVESH KUMAR
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PWD AND ANR
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2495/2011 & CM 5314/2011 (stay)
ROHIT SHARMA
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PWD AND ANR
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 232/2012 & CM 484/2012 (stay)
BRITE ADVERTISING & MARKETING
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PUBLIC WORKS DEPARTMENT (PWD) & ANR
..... Respondent
W.P.(C) 5118/2013&other connected matters Page 3 of 10
Through:
Ms. Zubeda Begum, Standing Counsel with
Ms. Ruchi Sindhwani, ASC with Ms.
Bandana Shukla and for PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2257/2011 & CM Nos.4804/2011 (stay). 7415/2011 & 700/2012
EXPLO MEDIA PVT LTD
..... Petitioner
Through: Mr. Avadh Kaushik, Adv.
versus
PWD AND ANR
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
+ W.P.(C) 2398/2011 & CM Nos.5095/2011 & 499/2012
LANDMARK OUTDOOR MEDIA SERVICES P LTD
..... Petitioner
Through: Mr. Alok Gupta, Adv.
versus
PUBLIC WORKS DEPARTMENT AND ORS.
..... Respondent
Through: Ms. Zubeda Begum, Standing Counsel for
PWD
Ms. Pinky Anand, Sr. Adv. with Ms. Mini
Pushkarna, Standing Counsel and Ms.
Namrata Sharma, Advs. for MCD
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
W.P.(C) 5118/2013&other connected matters Page 4 of 10
JUDGMENT
V.K.JAIN, J. (ORAL)
Vide notice dated 16.8.2011, the Municipal Corporation of Delhi invited
tenders for allotment of contracts for display at the existing structures of unipoles,
within the jurisdiction of several zones. The petitioners before this Court submitted
their respective tenders and the offers given by them was accepted by MCD. They
were awarded contracts for display of advertisement through unipoles of the size
20ft. x8 ft at the sites mentioned in the allotment letters issued to them. The
allotment carried an obligation on the part of the tenderers to pay the prescribed
license fee to MCD and comply with the terms and conditions of allotment. The
grievance of the petitioners is that despite award of contracts to them by MCD, the
Public Works Department (PWD) of Delhi Government is objecting to the
installation of the unipoles in terms of the allotment made to them by MCD. Being
aggrieved from the objections being raised by PWD to the unipoles installed by
them in terms of the contracts awarded by MCD, the petitioners are before this
Court, inter alia, seeking directions to PWD not to remove or threaten to remove
their advertisement unipoles.
2. Section 298 of the Delhi Municipal Corporation Act, 1951, to the extent it is
relevant for our purpose, reads as under:
298. Vesting of public streets in [a Corporation].--
(1) All streets within the jurisdiction of each Corporation
constituted under sub-section (1) of section 3 of this Act which
are or at any time become public streets, and the pavements,
stones and other materials thereof shall vest in such
Corporation:
Provided that no public street which immediately before the
commencement of the Delhi Municipal Corporation
(Amendment) Act, 2011 vested in the Union shall, unless the
Central Government with the consent of the concerned
Corporation so directs, vest in such Corporation by virtue of this
sub-section.
(2) All public streets vesting in [ a Corporation] shall be under
the control of the Commissioner and shall be maintained,
controlled and regulated by him in accordance with the bye-
laws made in this behalf.
(3) xxx"
Section 299 of the said Act obligates the municipal corporation to level,
metal or pave, channel, alter or repair public streets and to the extent it is relevant,
the said section reads as under:
299. Functions of Commissioner in respect of public streets:-(1)
The Commissioner shall, from time to time, cause all public
streets vested in [a Corporation] to be levelled, metalled or
paved, channelled, altered or repaired, and may widen, extend
or otherwise improve any such street or cause the soil thereof to
be raised, lowered or altered or may place and keep in repair
fences and posts for the safety of foot-passengers:
Section 143 of the Delhi Municipal Corporation Act, prohibits placing of
advertisement on any land, building, structure, etc. without prior permission of the
Commissioner and the said provision to the extent it is relevant reads as under:
143. Prohibition of advertisements without written permission
of the Commissioner.- (1) No advertisement shall be erected,
exhibited, fixed or retained upon or over any land, building,
wall, hoarding, frame, post or structure or upon or in any
vehicle or shall be displayed in any manner whatsoever in any
place within Delhi without the written permission of the
Commissioner granted in accordance with bye-laws made under
this Act.
3. It would thus be seen that as far as the 'public streets' and their pavements in
the areas to which Delhi Municipal Corporation Act, 1957 applies are concerned,
the same vests solely in the concerned Municipal Corporation and are required to
be maintained, controlled and regulated by them. The power of the corporation to
maintain, control and regulate public streets would also include the power to grant
permission for placing unipoles/ hoardings on such public streets though, of course,
in accordance with the byelaws made in this regard under the provisions of Delhi
Municipal Corporation Act. No permission can be granted by the Commissioner for
exhibiting, fixing or retaining any advertisement on any land, building, wall,
structure etc if such permission would contravene the provisions of the byelaws
made in this regard.
4. The learned senior counsel appearing for MCD states that in fact they have
formulated a policy called 'Outdoor Advertisement Policy, 2007', which was
approved by the Apex Court in M.C. Mehta versus Union of India [Writ Petition
(Civil No.13029/1995] and the contracts are being granted strictly in accordance
with the said policy and the relevant byelaws.
5. In my view, so long as unipoles/ hoardings sought to be installed on public
streets, section 2 of sub section 57 of Delhi Municipal Act, 1957, PWD can have no
objection to such installation and would have no legal right to remove any unipole,
hoardings, etc which conforms to the licence granted by MCD in this regard. To
this extent, the grievance of the petitioners is fully justified.
6. However, MCD would have no jurisdiction to grant any license in place
unipoles/ hoardings on any land, building or other structure which does not come
within the purview of 'public streets' as defined in section 2(57) of the Delhi
Municipal Corporation Act and if permission is granted for installation of
unipoles/hoardings etc on such land, building or structure, and the management and
control of that land, building or structure vests in PWD, it would be competent for
the said department to remove such unipoles/ hoardings.
7. The learned senior counsel appearing for MCD states that MCD would have
jurisdiction to grant license for installation of such unipoles/ hoardings/
advertisements not only on public streets, but on any public place throughout Delhi.
I, however, cannot accept the said contention. Section 143 of the DMC Act on
which reliance is placed by the learned senior counsel for MCD only prohibits
errection, exhibition, fixing or retention of any advertisement on any land, building,
wall etc. except in accordance with the written permission of the Commissioner
granted in accordance with the byelaws made under the MCD Act. This provision
does not empower MCD to grant licenses for erection, exhibition or fixing of
advertisements on any public place throughout the city. What actually it means is
that no person can put any advertisement at any place in Delhi, without obtaining
such permission, but that would not empower MCD to grant license for erecting,
exhibiting or fixing such advertisements on any place of its choice. The power to
permit installation of advertisements, hoardings etc, to my mind, comes only on
account of the 'public streets' vesting in the corporation in terms of Section 298 of
Delhi Municipal Corporation Act and, therefore, the licence can be granted only in
respect of erection, exhibition, fixing or retention of advertisements on public
streets as defined in Section 2(57) of the Act.
8. The learned counsel appearing for PWD states that in some cases, unipoles/
hoardings have been installed at the place other than the place for which the
contract/ license was awarded by MCD. Obviously, the contractors cannot place
unipoles/ hoardings at a place other than the place for which permission was
granted to him by MCD. It is an obligation of MCD to remove any such unipoles/
hoardings, from any public street.
9. In some cases there may be dispute between MCD and some other agencies
such as PWD as to whether the land, building or structure, subject matter of the
licences granted by MCD are 'public streets' within the meaning of Section 2(57)
of DMC Act or not. It is not possible for the Court to go into such disputed
questions of facts in the writ petitions. However, some mechanism needs to be
created to resolve any dispute between MCD and the agency such as PWD in this
regard.
10. For the reasons stated hereinabove, all the aforesaid writ petitions are
disposed of with the following directions:
(i) A joint survey of the sites on which unipoles/ hoardings/
advertisements have been installed by the petitioners before this Court
shall be carried out by the nominees of the Commissioners of the
concerned Municipal Corporation and Principal Secretary, PWD,
Govt. of NCT of Delhi, along with the representative of the concerned
contractor. If it is found during the course of the said survey that the
unipoles/ advertisements/ hoardings have been installed on a public
street and at the same place for which permission was granted by
MCD to the contractor, PWD shall not interfere with such
unipoles/hoardings/ advertisements;
(ii) If it is found that any hoarding has been installed at a place different
from the place for which license was granted by MCD to the
contractor, it shall be the duty of MCD to remove such
unipoles/advertisements/ hoardings within one week of identifying
such hoardings.
(iii) If there is dispute between MCD and PWD as to whether any
particular place for which permission has been granted by MCD to
install unipoles/ advertisements/ hoardings is a public street within the
meaning of section 2(57) of the DMC Act or not, the issue would be
referred for decision of the Chief Secretary, Government of NCT of
Delhi or his nominee and his decision in this regard would be final and
binding on MCD as well as on PWD.
(iv) If it is found that MCD has granted license for installing unipoles/
advertisements on any place which is not a public street within the
meaning of Section 2(57) of the MCD Act, the contractor to whom
such a permission is granted can have such remedy as is open to him
in law in this regard against MCD, but, he cannot install unipoles/
hoardings at such a place.
There shall be no orders as to cost.
V.K. JAIN, J
SEPTEMBER 10, 2013/rd
