Delhi High Court
M/S. Arc Outdoor Media Ltd. vs East Delhi Municipal Corporation ... on 3 December, 2015
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 27th November, 2015
Date of decision: 03rd December, 2015
+ W.P.(C) No.2980/2015
M/S. ARC OUTDOOR MEDIA LTD. ..... Petitioner
Through: Mr. Karan Sharma, Advocate.
versus
EAST DELHI MUNICIPAL CORPORATION & ANR. .....Respondents
Through: Ms. Biji Rajesh with Mr. Mrinal
Beri, Advocate for R-1.
Mr. Anuj Aggarwal, Advocate for
R-2.
CORAM:
HON'BLE MR. JUSTICE VED PRAKASH VAISH
JUDGEMENT
1. By way of present petition, the petitioner seeks directions to
respondent No.1 to enforce the allotment of contract dated 09.03.2015 for
display of electric pole kiosks on East Delhi Municipal Corporation roads
and reinstall the electric pole kiosks removed by the respondent No.2.
The petitioners further seeks quashing of letter dated 16.03.2015 issued
by respondent No.2/PWD.
2. Succinctly stating the facts germane to the present petition are that
vide notice dated 27.11.2014 tenders were invited by respondent No.1 for
allotment of contracts for display of advertisement through Street Light
Pole Kiosk on the roads coming under the jurisdiction of respondent No.1
including all PWD maintained roads. The petitioner participated in the
tender process and vide letter dated 02.01.2015 respondent No.1
communicated the offer of allotment of contract for display of
advertisement for a period of two years extendable for one year to the
petitioner with directions to deposit one month‟s advance license fee
together with applicable taxes. Subsequently, on successful completion of
all formalities contained in the offer letter, vide letter dated 09.03.2015
respondent No.1 awarded the contract for display of advertisement
(illuminated/ non-illuminated) through kiosks on street light poles in
favor of the petitioner for a period of two years on a monthly license fee
of Rs.22,20,000/-. The petitioner vide letter dated 10.03.2015
communicated its acceptance of allotment letter of contract and started
the work of erecting pole kiosks. The pole kiosks installed by the
petitioner were removed by respondent No.2 on 10.03.2015. Petitioner
wrote letters dated 11.03.2015 and 12.03.2015 to respondent No.1 and
respondent No.2 respectively and also filed police complaint alleging that
action of respondent no.2 was illegal. Respondent No.2 vide its impugned
notice dated 16.03.2015 denied permission to install electric pole kiosk
on PWD maintained roads to the petitioner. Aggrieved by the action of
respondent No.2, the petitioner has filed the present writ petition.
3. Learned counsel for the petitioner urged that not only the action of
respondent No.2 in removing the legally installed poles from the sites
installed by petitioner is unjustified but also the impugned notice dated
16.03.2015 issued by respondent No.2 is arbitrary and illegal due to want
of jurisdiction. He also submits that the role of respondent No.2 is
confined only to maintenance of the roads in Delhi and the same does not
create any power or jurisdiction to remove the erected poles.
4. Learned counsel for the petitioner further contended that the
petitioner has not only paid the entire requisite license fee and security
deposits as per the conditions specified in the offer of allotment letter to
the respondent No.1 /EDMC but has also made huge investment on the
electric pole kiosks and thus such unwarranted act of the respondents is
resulting into irreparable loss and injury to the petitioner.
5. Per contra, learned counsel for respondent No.1 submitted that
Section 298 of Delhi Municipal Corporation Act, 1957 gives MCD the
jurisdiction over all public street in Delhi and further MCD alone is the
sole authority to allow display of advertisement at any place in Delhi and
no advertising rights over public streets vests with respondent No.2. She
also submits that the power of respondent No.1 to maintain, control and
regulate public streets as envisaged under Section 2 sub clause 44 of the
DMC Act encompasses the power to grant permission for placing
unipoles / advertisements/hoardings on such public streets in accordance
with the byelaws. She further submits that the petitioner‟s advertisements
are in conformity with the „Delhi Outdoor Policy‟.
6. Mr. Anuj Aggarwal, learned counsel for respondent No.2 urged
that none of the advertisements alleged to have been removed by officials
of respondent No.2 have been so removed. He placed reliance on the
notification F.No.13(02)/UD/MB/2011/593-599 dated 10.01.2012 issued
by the Govt. of NCT Delhi, Urban Development Department whereby the
Govt. Of NCT Delhi has been vested with powers of maintenance of
roads having Right of way (ROW) of 60 feet and above belonging to East
Delhi Municipal Corporation.
7. I have heard learned counsel for both the parties and have also
carefully gone through the material on record.
8. Before examining the merits of the present case, it is necessary to
consider the relevant provisions of the Delhi Municipal Corporation Act,
1957 (DMC Act), Section 298 of DMC Act 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) ..............................
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
leveled, metalled or paved, channeled, 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 lace and keep in repair fences and posts for the safety of
foot-passengers:
Provided that no widening, extension or other improvement
of a public street, the aggregate cost of which will exceed
five thousand rupees, shall be undertaken by the
Commissioner except with the previous sanction of [a
Corporation].
(2) ................................"
9. Section 143 of DMC Act prohibits placing of advertisement on any
land building, structure, etc. without prior permission of the
Commissioner, which 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.
(2) ..............................
(3) ......................................"
10. The "public street" is defined in sub-section (44) of Section 2 of
the DMC Act, which reads as under: -
"2(44) "public street" means any street which vests in [a
Corporation] as a public street or the soil below the surface
of which vests in [a Corporation] or which under the
provisions of this Act becomes, or is declared to be, a
public street;"
Sub-section (57) of Section 2 of the DMC Act defines the "street"
as under: -
"2(57) "street" includes any way, road, lane, square, court,
alley, gully, passage, whether a thoroughfare or not and
whether built upon or not, over which the public have a
right of way and also the roadway or footway over any
bridge or causeway"
11. A combined reading of above provisions makes it clear that that as
far as „public streets‟ and their pavements in the areas to which DMC Act
applies are concerned, the power and jurisdiction to maintain, control and
regulate such public streets lies with the concerned Municipal
Corporation. Further, the Corporation has power to grant license in
respect of erection, exhibition, fixing or retention of advertisements on
public streets as defined in Section 2(44) of the Act. However, no
permission can be granted by the Commissioner for exhibited, fixing or
retaining any advertisement on any land, building, wall, structure, etc. if
such permission would contravene the provisions of the bye-laws made in
this regard.
12. In so far as the public streets and their pavements in the area to
which the 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. Under the
provisions of the DMC Act, the Corporation has the power to maintain,
control and regulate public streets which include the power to grant
permission for placing unipoles/ hoardings on such public streets.
13. Reverting back to the facts of the present case, it is an admitted fact
that the advertisement boards installed by the petitioner falls under the
category of „public street‟ as the notice inviting tenders dated 27.11.2014
issued by respondent No.1 categorically states that the agreement is in
respect of display of advertisement through Street Light pole kiosk
existing on EDMC roads including PWD maintained roads. The power to
grant permission for placing unipoles/ hoardings on the PWD maintained
public streets vest solely with respondent No.1 in accordance with the
byelaws under the provisions of DMC Act. Further, it is not disputed by
respondent No.2 that the petitioner‟s advertisements are not in conformity
with the Delhi Outdoor Advertisement Policy 2007.
14. The said outdoor advertisement policy 2007 was approved by the
Apex Court in „M.C. Mehta vs. Union of India', W.P.(C)
No.13029/1995 and the learned counsel for the MCD stated that the
contracts are being granted strictly in accordance with the said policy and
the relevant bye-laws.
15. A similar issue was dealt by this Court vide its judgment dated
10.09.2013 in W.P.(C)No.5118/2013 titled, 'M/S Brite Neon Signs Pvt.
Ltd. v. Public Wirks Deptt. & Anr.' (Supra) wherein this Court inter
alia held:
"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."
16. Reliance placed by learned counsel for respondent No.2 on the
notification dated 10.01.2012 issued by the Government of NCT of Delhi,
Urban Development Department is misconceived and misplaced as
perusal of the same clearly shows no mention of jurisdiction or power to
grant license in respect of erection, exhibition, fixing or retention of
advertisements on public streets on the Government of NCT of Delhi. It
only suggests that Govt. of NCT of Delhi has been vested with the
powers to ensure proper maintenance and upkeep of roads. The display
of electric pole kiosks has been pursuant to a legal, valid and binding
contract with the MCD, which alone has the jurisdiction over hoardings
by virtue of Section 142, 143 and 298 of DMC Act.
17. In view of the foregoing observations, this Court finds no infirmity
in the letter of allotment dated 9th March, 2015 issued by respondent No.1
awarding contract for display of advertisement to the petitioner.
Consequently, the letter dated 16.03.2015 issued by respondent No.2 is
set aside and respondent No.2 is directed to stop removing the electric
pole kiosks of the petitioner from the sites allotted by the respondent
No.1.
18. The writ petition stands disposed of accordingly. No order as to
costs.
C.M. Appl. Nos.5334/2015, 8325/2015, 9090/2015 & 15973/2015
The applications are dismissed as infructuous.
(VED PRAKASH VAISH)
JUDGE
DECEMBER 03rd, 2015
hs
