Delhi High Court
Mrs. Sarita Saxena vs South Delhi Municipal ... on 16 September, 2016
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 16th September, 2016
+ W.P.(C) No.6105/2015, CM No.11103/2015 (for stay) & CM
No.11104/2015 (for direction).
M/S PAREENA ESTATE ..... Petitioner
Through: Mr. Anand Mishra & Mr. Hemant
Kumar, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Ms. Mansi Gupta, Adv.
AND
+ W.P.(C) No.6181/2015 & CM No.11237/2015 (for stay).
MRS. SARITA SAXENA ..... Petitioner
Through: Mr. Anand Mishra & Mr. Hemant
Kumar, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION
(SDMC) & ANR ..... Respondents
Through: Ms. Mansi Gupta, Adv. for R-1.
AND
+ W.P.(C) No.6186/2015, CM No.11240/2015 (for stay), CM
No.11241/2015 (for direction) & CM No.11242/2015 (for
exemption).
MR. RIPUDAMAN HARYAL ..... Petitioner
Through: Mr. Anand Mishra & Mr. Hemant
Kumar, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION
(SDMC) ..... Respondent
Through: Ms. Mansi Gupta, Adv.
AND
+ W.P.(C) No.6276/2015, CM No.11407/2015 (for stay) and CM
No.11408/2015 (for direction).
M/S CONSECIENT INFRASTRUCTURE ..... Petitioner
Through: Mr. Anand Mishra, Adv.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Ms. Mansi Gupta, Adv. for SDMC
AND
+ W.P.(C) 5983/2015 & CMs No.10849/2015 (for stay) & 10850/2015
(for direction)
SAHIL CHOPRA ..... Petitioner
Through: Mr. Rajshekhar Rao, Mr. Anand
Mishra and Mr. Om Swaroop, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Mr. Sarsha Peechara, Adv. for
SDMC.
AND
+ W.P.(C) 5985/2015 & CMs No.10854/2015 (for stay) & 10855/2015
(for direction)
SANJAY GUPTA ..... Petitioner
Through: Mr. Rajshekhar Rao, Mr. Anand
Mishra and Mr. Om Swaroop, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Mr. Sarsha Peechara, Adv. for
SDMC.
AND
+ W.P.(C) 5987/2015 & CMs No.10859/2015 (for stay) & 10860/2015
(for direction)
TARANJEET SAPRA ..... Petitioner
Through: Mr. Rajshekhar Rao, Mr. Anand
Mishra and Mr. Om Swaroop, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION ..... Respondent
Through: Mr. Sarsha Peechara, Adv. for
SDMC.
AND
+ W.P.(C) 5988/2015 & CMs No.10862/2015 (for stay) & 10863/2015
(for direction)
M/S. ALMASS INDIA ..... Petitioner
Through: Mr. Rajshekhar Rao, Mr. Anand
Mishra and Mr. Om Swaroop, Advs.
Versus
SOUTH DELHI MUNICIPAL CORPORATION
& ANR ......Respondents
Through: Mr. Sarsha Peechara, Adv. for
SDMC.
Mr. Ajay Arora and Mr. Kapil Dutta,
Advs. for MCD.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. All these petitions entail common questions of law and hence are
taken up together for decision.
2. This Court in Sports and Leisure Apparel Ltd. Vs. MCD AIR 2015
Del 15 held that various municipalities constituted under the Delhi
Municipal Corporation Act, 1957 (MCD Act) are not authorized by the
provisions of the MCD Act to levy any charges, whether by way of licence
fee for grant of No Objection Certificate (NOC) / permission for outdoor
advertising or by way of damages for outdoor advertising without such NOC
/ permission. It was further held that Section 142 of the MCD Act only
provides for levy of tax on display to public view of advertisement and
calculated at the rates not exceeding those specified in the Fifth Schedule of
the MCD Act and the charges by way of licence fee or damages were not
claimed in exercise of the said power.
3. LPA No.78/2015 preferred against the aforesaid judgment was
dismissed in limine vide judgment dated 18th February, 2015.
4. Though a special leave petition is informed to have been preferred to
the Supreme Court against the judgments aforesaid but there is no interim
order therein of stay of operation of the judgments of this Court.
5. It is the contention of the petitioners in these writ petitions that the
respondent South Delhi Municipal Corporation (SDMC), feeling frustrated
by denial of collection of such charges by way of licence fee and/or damages
for outdoor advertising as it was earlier collecting/demanding without any
authority, has illegally started withdrawing the NOC / permission earlier
granted to the petitioners, either for the reason of the term thereof having
lapsed or for the reason of violations of the terms on which the NOC /
permission was granted or for the reason of violation of the Outdoor
Advertisement Policy (OAP), 2007. It is further the contention of some of
the petitioners that the respondent SDMC, without even issuing
communications of withdrawal of NOC / permission, has been removing /
damaging the advertisements for which NOC / permission was granted
earlier or has been threatening to do so. It is yet further the contention that
the respondent SDMC is unilaterally drawing conclusion of violation of
terms on which NOC / permission was given or violation of OAP.
6. Arguments were heard on the aforesaid aspects and judgment reserved
and has remained reserved for long and from time to time applications for
interim relief or further directions have been filed in some of the petitions.
7. There is no need to narrate herein the facts of each individual case as
the same have no relevance to the outcome. The two questions which have
been raised by the counsels and on which judgment has been reserved and is
being pronounced are:
A. Whether the NOC/permission once granted by the municipality
for outdoor advertising at a particular site is for a particular
duration only or for perpetuity, capable of being withdrawn /
revoked only in the event of violation of the terms of the
NOC/permission or of the OAP being established?
B. What is the remedy, if any, of the person / advertiser to whom
NOC / permission has been granted by the municipality, against
the allegation of the municipality of violation by such person /
advertiser of the terms of the NOC / permission and / or of the
OAP?
8. Qua the first of the aforesaid questions, it is not in dispute that the
respondent SDMC had a policy of, simultaneously with the grant of
NOC/permission, make the recipient thereof execute an agreement, the term
whereof was stipulated as of five years and in which the rate at which
licence fee (which has been struck down as aforesaid) was payable was
stipulated. However the NOC/permission granted neither mentioned the term or period
for which it was granted nor contained any stipulation for payment of any
licence fee.
9. Qua the second of the aforesaid questions, the petitioners do not
challenge the authority of respondent SDMC to withdraw the NOC /
permission in the event of the terms of NOC/permission or of the OAP being
violated. The challenge is only to the procedure for doing the same. It is
contended that respondent SDMC has been unilaterally withdrawing the
NOC / permission alleging violation, without giving any show cause notice.
10. Section 143 of the MCD Act prohibits any advertisement from being
erected, exhibited, fixed or retained upon or over any land, building, wall,
hoarding, frame, post or structure or upon or in any vehicle or from being
displayed in any manner whatsoever in any place within Delhi without the
written permission of the Commissioner (of the respondent SDMC) granted
in accordance with bye-laws made under the Act. Sub-Section (2) thereof
prohibits the Commissioner of the municipality from granting such
permission if the advertisement contravenes any bye-law made under the
Act or if the tax if any due in respect of the advertisement has not been paid.
Sub-section (3) thereof, with respect to advertisements liable to
advertisement tax, provides for grant of such permission by the
Commissioner "for the period to which the payment of the tax relates".
11. Section 142 provides for "Tax on advertisements" and requires every
person who displays any advertisement to public view in any manner
whatsoever, visible from a public street or a public place, to pay a tax
calculated at such rates not exceeding those specified in the Fifth Schedule
as the municipality may determine. Though the proviso thereto provides for
certain exemptions but we are not concerned therewith.
12. Such tax, by virtue of Sub-Section (2) of Section 142, is payable in
advance in such number of installments and in such manner as may be
determined by the bye-laws made in this behalf.
13. The Fifth Schedule to the MCD Act provides for tax on
advertisements other than advertisements published in the newspapers at the
rates "per annum" prescribed thereunder. Thus the period for which the
Commissioner of the municipality, under Section 143, is empowered to
grant permission also has to be the period to which the payment of tax
relates i.e. "per annum".
14. Section 143(3) read with Section 142(1) and the Fifth Schedule to the
MCD Act leads to the unequivocal conclusion that the NOC/permission to
be granted by the Commissioner under Section 143(1), for erecting,
exhibiting, fixing, retaining any advertisement, is on annual basis.
15. Though Delhi Municipal Corporation Tax on Advertisements (Other
Than Advertisement Published in Newspapers) Bye-Laws, 1996 are found to
have been framed but not found to contain any provision as to the period for
which NOC can be issued or is to be issued granting permission for outdoor
advertising. Bhatia‟s Compendium on Delhi Municipal Laws 2 nd Edition
(2012) is found to contain a number of circulars / directives issued by the
Advertisement Department of the Municipal Corporation of Delhi but none
of them also are found to be dealing with the said aspect.
16. The petitioner in each of the petitions has filed the NOC / permission
issued by the respondent SDMC to them. A perusal thereof shows (i) that no
time / period for which the NOC / permission has been granted is mentioned
therein; (ii) that some of the NOCs grant permission "consequent upon
deposit of advertisement tax" without specifying for which year; and, (iii)
that other NOCs grant permission "consequent upon deposit of
advertisement tax" for the year in which the NOC has been issued.
17. It is also not the case in any of the petitions that advertisement tax for
more than a year has been accepted at the time of issuance of the NOC.
18. In the aforesaid scenario it has but to be held that the NOC /
permission granted by the respondent SDMC to each of the petitioners was
for that year only and not for the period of five years or for any period more
than one year, as indeed it could not have been in accordance with Section
143(3) of the MCD Act. Also, in the light of the said statutory provision, the
grant of NOC / permission by the respondent SDMC to the petitioners or any
of them for a period of more than one year and / or beyond the year for
which it was granted in any case being contrary to the statute, would be bad.
19. I may in this regard also notice that grant of NOC / permission in
perpetuity, as contended by the counsel for the petitioners, would also be
contrary to public interest. The advertising sites and avenues in the city are
limited. Grant of NOC / permission with respect to any site to any person
disentitles others from applying therefor. The respondent SDMC as State
within the meaning of Article 12 of the Constitution of India cannot be seen
as granting NOC / licence to any person for ever, closing the rights of others
to apply for advertising from the said site. The same would also lead to
monopolistic and restrictive trade practice and would be violative of the
rights of others to carry on business from the said site. For this reason also,
the said contention of the counsel for the petitioners cannot be accepted.
20. Once it is found and held to be so, it has but to follow that none of the
petitioners today have any valid NOC / permissions in their favour inasmuch
as the judgment itself in these petitions has remained reserved for slightly
more than a year. Thus, unless any of the petitioners have been granted a
fresh NOC / permission during the pendency of these petitions, none of the
petitioners would today be entitled to continue with the advertisements qua
which these petitions were filed under the NOC/permission earlier granted to
them as under the statutory provisions aforesaid there can be no
advertisement without such permission.
21. The petitions for this reason alone have become infrcutous.
22. I thus answer the first of the aforesaid questions framed by holding
that the NOC/permissions granted under Section 143 (1) for erecting,
exhibiting, fixing or retaining any advertisement over any land, building,
wall, hoarding, frame, post or structure and without which no advertisement
can be erected are valid for a period of one year from grant thereof and
under Section 143(3) the Commissioner of the respondent SDMC is not
empowered to grant any permission for a period more than one year.
23. Though in view of the above, the need to answer the second question
aforesaid does not arise but for the sake of completeness, I proceed to
answer the same.
24. Section 144 provides that permission granted by the Commissioner
under Section 143(1) shall become void if the advertisement contravenes
any bye-law made under the Act or if any material change is made in the
advertisement or any part thereof without the previous permission of the
Commissioner or if the advertisement or any part thereof falls otherwise than
through accident or if any addition or alteration is made to or in the building,
wall, hoarding, frame, post or structure upon or over which the
advertisement is erected, exhibited, fixed or retained if such addition or
alteration involves the disturbance of the advertisement or any part thereof
or if the building, wall, hoarding, frame, post or structure over which the
advertisement is erected, exhibited, fixed or retained is demolished or
destroyed.
25. Section 145 provides that any advertising in contravention of the
provisions of the MCD Act or bye-laws made thereunder raises a statutory
presumption, unless and until the contrary is proved, that the contravention
has been committed by the person on whose behalf the advertisement
purports to be.
26. Finally, Section 146, in the cluster of Sections, commencing from
Section 142 supra under the head "Tax on advertisements other than
advertisements published in the newspapers" under Chapter-VIII of the
MCD Act titled "Taxation", empowers the Commissioner, if any
advertisement is erected, exhibited, fixed or retained in contravention of the
provision of Section 143, to require the owner / occupier of the land,
building, wall, hording, frame, post or structure upon which the
advertisement is erected, exhibited, retained, to take down or remove such
advertisement or enter into any land, building, property or vehicle and have
the advertisement dismantled, taken down or removed or spoiled, defaced or
screened.
27. The statutory provisions particularly Sections 144, 145 and 146
dealing with "Permission of the Commissioner to become void in certain
cases", "Presumption in case of contravention" and "Power of
Commissioner in case of contravention" respectively noticed above, do not
provide for any procedure to be followed by the municipality in the event of
the advertisement contravening the terms of the permission or any bye-laws
or any policy, but void the NOC/permission granted, thereby making the
advertisement unauthorized and empower the Commissioner/SDMC to
require the owner or occupier to remove the advertisement and/or to itself
remove the advertisement. No opportunity of hearing has been provided to
be given.
28. No provision in any bye-laws made with respect to advertisements or
in the OAP in this respect also has been cited by the counsels. I however
find Bye-law 16 of the Bye-laws aforesaid to be providing that whosoever
contravenes any provision of the MCD Act or the Bye-laws and the terms
and conditions or directions given shall be punishable with a fine of twenty
rupees for each day during which such contravention or failure continues
and that if the contravention still continues, the Commissioner shall require
the owner or occupier to take down or remove such advertisement or to enter
into any land, building or property and have the advertisement removed.
Qua advertisements put up unauthorisedly i.e. without obtaining any NOC /
permission, Bye-law 13(7) provides that the same will be removed without
any notice whatsoever.
29. The position under the Bye-laws is thus the same as in Section 146
noticed above.
30. I am of the view that the provisions of Section 146 and the Bye-laws
empowering the Commissioner / SDMC to, in the event of violation of any
terms on which NOC / permission has been given or violation of any Bye-
laws or policy, either require removal of the advertisement or to remove the
advertisement, cannot be read as vesting an unguided discretion in the
Commissioner / SDMC, to be exercised at the ipse dixit of the
Commissioner / SDMC. In my view, the proper course for the
Commissioner, in exercise of power under Section 146 would be to, if the
advertisement has been put up without the requisite permission under
Section 143(1) or if the period for which permission has been granted has
expired to, without any notice, enter into any land or building or property
and have the advertisement taken down, or removed or spoiled and in cases
where NOC / permission has been granted and is in force but the terms
thereof have been contravened , to require the owner or occupier to remove
the violations and only if the same is not done to enter into any land or
building or property and have the advertisement removed.
31. Section 441 of the MCD Act provides that where any notice or order
is issued or made under this Act requiring anything to be done or for the
doing of which no time is fixed in the MCD Act or any Rule or Regulation
framed thereunder, specify reasonable time for doing the same.
Accordingly, the Commissioner, MCD in any exercise of powers under
Section 146 requiring an advertisement to be removed should fix a
reasonable time for doing the same. Considering that the permission under
Section 143(1) is valid for a period of one year only, in my view, the period
of seven days inclusive of any holidays in between would be reasonable.
During the said period of seven days, it would be open to the person who has
put up the advertisement or is responsible for the advertisement qua which a
notice has been given, to represent to the respondent SDMC that there is no
contravention and respondent SDMC, as a State within the meaning of
Article 12 of the Constitution of India is expected to upon such
representation being made deal with the same. The best course of action to
be followed in such cases would be to have a joint inspection of the site
demarcating the violations and simultaneous correction. It cannot be
forgotten that the aspect of outdoor advertising has been the subject matter
of a large number of litigations and the OAP was ultimately framed in terms
of the directions issued by the Supreme Court of India. The said Policy is
driven by city development imperatives and hoardings are permitted only if
they are not a road safety hazard or if they support the city‟s public service
development and enhance its aesthetics. Thus if the permissions / NOCs
granted in terms of OAP are found to contravene, no long drawn enquiry in
the name of compliance of principles of natural justice can be permitted or
directed to be held. Continuance of advertisements in violation of the terms
on which the same have been permitted causes a public injury which cannot
be compensated in terms of money and thus calls for quick action.
32. I answer the second question framed above as aforesaid.
The petitions are disposed of.
No costs.
RAJIV SAHAI ENDLAW, J.
SEPTEMBER 16, 2016
„gsr‟/bs..
