Delhi High Court
Sanjeev K. Saroha & Anr. vs Ndmc on 20 August, 2018
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on:- 06.07.2018.
Date of Decision:- 20.08.2018
+ W.P.(C) No.8578/2017 & CM APPL. Nos. 35278/2017,
46886/2017
SANJEEV K. SAROHA & ANR. ..... Petitioners
Through : Mr. Amit Sibal, Senior
Advocate with Ms. Meenakshi Midha,
Mr. Kapil Midha, Mr. Narendera S.
Sagwan, Mr. Bhavya, Advocates.
Versus
NDMC .... Respondent
Through : Mr. Sri Harsha Peechara,
Standing Counsel for NDMC with
Mr.Aditya Vikram Singh and Ms.Vidhi
Jain, Advocates.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
JUDGMENT
1. The Petitioners, owners of the freehold commercial property
bearing no. F-7, Shankar Market, New Delhi, have filed the present writ
petition under Article 226 of the Constitution of India inter alia seeking
quashing of the notice dated 19.09.2017, whereby the Respondent has
cancelled their permission letter dated 21.05.2015 to display a
building/wall wrap on the said property. The Petitioners also seek a
direction to the Respondent to permit them to continue displaying a wall
wrap on the aforesaid property in terms of the permission letter dated
21.05.2015, and to reconsider their request for a waiver of the
requirement to share the revenue generated from the said wall wrap with
the Respondent.
2. The facts emerging from the record, as are necessary for deciding
the present petition are that the Petitioners, on 08.11.2010, made a
representation to the Respondent seeking permission to display a
building wrap on their self-owned commercial property bearing no. F-7,
Shankar Market, New Delhi (hereinafter referred to as the "Commercial
Property"). The representation remained unactioned at the end of the
Respondent. Being aggrieved by the Respondent's failure to respond to
their request for permission to display a wall wrap on the Commercial
Property, the Petitioners approached this Court by way of a writ petition
being Sanjeev K. Saroha and Anr v. NDMC [WP(C) No. 6004/2013].
This Court, vide its order dated 30.04.2015, directed the Respondent to
consider the said writ petition as a representation/application made on
behalf of the Petitioners and dispose of the same by passing a speaking
order thereon after giving the Petitioners an opportunity of being heard.
3. In compliance with this Court's order dated 30.04.2015, the
Respondent after giving the Petitioners an opportunity of being heard,
vide its letter dated 21.05.2015 granted them permission to display a
building wrap on their aforesaid Commercial Property, subject to the
following conditions:
1. The applicant has to comply with the terms and
stipulations as contained under Delhi Outdoor
Advertising Policy, 2008. In case of any violation thereof,
the permission shall be withdrawn immediately.
2. This permission is subject to the final decision by the
Council regarding revenue sharing method/formula.
3. The Applicant shall enter into an agreement for
revenue sharing as may be decided by the Council.
4. In the interregnum, the applicant may submit Rs.5
lakhs per annum, as provisional fee and also execute an
affidavit regarding compliance of the above terms and
conditions.
4. After the Petitioners started displaying a wall wrap on their
Commercial Property and also paid the prescribed fee of Rupees Five
Lakhs per annum to the Respondent in accordance with the permission
letter dated 21.05.2015, the Respondent, by this Court's order dated
16.03.2016 passed in Colonel Shivraj Kumar versus South Delhi
Municipal Corporation and Ors. [WP(C) No. 3367/2015], was directed
to take action against all those advertisements which were found to be in
violation of the orders passed by the Court. It is the Respondent's case
that, pursuant to this Court's aforesaid order dated 16.03.2016 as also a
complaint dated 26.03.2014, the Petitioners' Property was inspected on
18.04.2016 and it was inter alia found that the advertisement put up by
them measured 35 feet x 15 feet as opposed to the maximum permissible
dimensional limit of 20 feet x 10 feet, prescribed under Clause 6.1 of the
Delhi Outdoor Advertisement Policy 2008 (hereinafter referred to as
"DOAP 2008"), under which policy the Respondent vide letter dated
21.05.2015 had granted permission to the Petitioners to display a wall
wrap on the said Property. Consequently, the Respondent issued a show
cause notice dated 09.05.2016 (hereinafter referred to as the "First Show
Cause Notice") to the Petitioners, wherein it pointed out the following
alleged violations in respect of the building wrap displayed on the
Commercial Property:
a) The size of such display was found 35' X 15'
instead of the maximum limit of the area (6m X
3m) comes to 20' X 10' when converted into feet
for category-1 device.
b) The required certificate of the experienced and
practicing Structural Engineer about the design
and structure has not submitted to the NDMC.
c) The name of the Advertising Device license
holder is not placed in a conspicuous position on
the device.
d) The electrical test certificate about the
electrical connections and components in the
advertising device is not made available to the
NDMC.
e) No arrangement is made to promote
conservation of electricity and to draw power from
alternate renewable resources like solar power.
f) Allotment to the advertiser should be made on
tender basis. No such information Is given to the
NDMC so far.
g) A licensee/sign owner/applicant is required to
indemnify the NDMC for the designated
Advertising Device against all actions,
proceedings, claims, demands, costs, losses,
damages and expenses which may be brought
against or made upon the NDMC which arise as a
result of the installation of an advertising device.
No such indemnity is furnished to the NDMC so
far.
h) No evidence of public liability insurance of the
advertising device is given to the NDMC.
5. The Petitioners, on 11.05.2016, preferred a detailed reply to the
Respondent's First Show Cause Notice dated 09.05.2016. Upon receipt
of this reply, the Respondent proceeded to issue another show-cause
notice dated 20.07.2016 (hereinafter referred to as the "Second Show
Cause Notice") to the Petitioners, directing them to comply with Clause
6.1 of DOAP 2008 and ensure that the wall wrap displayed on the
Commercial Property was confined to the maximum permissible
dimensional limit of 6 meters x 3 meters, i.e., 20 feet x 10 feet,
prescribed thereunder. For the sake of ready reference, the relevant
portion of the Second Show Cause Notice dated 20.07.2016 is
reproduced herein below:
This is with reference to display of wall wrap at
your freehold property No.7, Shankar Market, New
Delhi. As per para 6.1 of the guidelines under Delhi
Outdoor Advertisement Policy 2008, the maximum size
that can be permitted for building wraps is 6m X 3m.
You are directed to conform to the above
guidelines with regard to display of wall wraps on your
property. Non compliance shall lead to withdrawal of
permission.
6. The Petitioners then preferred a reply dated 28.07.2016 to the
Respondent's Second Show Cause Notice dated 20.07.2016. On receipt
of this reply from the Petitioners, the Respondent on 28.02.2017 now
proceeded to issue a third show cause notice to the Petitioners, on the
ground that the wall wrap displayed on the Commercial Property was
bigger than the maximum dimensional limit allowed under DOAP 2008.
The third show cause notice, which was the final show cause notice
issued to the Petitioners, went on to state that, even otherwise, wall
wraps were permitted in the NDMC area only in respect of those who
substantially support social and charitable causes in the discretion of the
NDMC. For the sake of ready reference, this final show cause notice
dated 28.02.2017 is reproduced hereinbelow:
1. This is with reference to provisional permission given
to you vide letter dated 12.05.2015 for displaying the
advertisement through wall wrap/building wrap at F-7,
Shankar Market, Connaught Circus, New Delhi. The
provisional permission was granted subject to the
condition that in case of any violation, the permission
shall be withdrawn immediately.
2. Subsequently, the issue was examined pursuance to the
directions of the Court in the matter of "Col. Shivraj
Kumar v. SDMC". It is noticed that as far as
permissibility is concerned, the guiding principles are
enshrined under Delhi Outdoor Advertising Policy 2008.
Under this policy, 4 categories of advertisements have
been allowed, which are as under:
"Category 1: Large format advertisements mainly
fixed on billboards/unipoles and bridge and
flyover panels.
Category 2: Advertisements mounted on public
amenities like public toilets garbage condition
point etc.
Category 3: Fleets and transport related
infrastructure.
Category 4: Advertisement devices for self-
advertising in commercial areas"
3. The wall wraps, billboards, unipoles etc. come within
the category of Category-1.
4. Permissibility of advertising devices in various
categories is summarized at table 5.1 and table 6.1a of
Delhi Outdoor Advertising Policy 2008 in the table 5.1
titled summary of category-1 devices, building wraps have
been permitted as a matter of policy. However, the
specific permission criteria was provided under table 6.1
under category-1 as per Delhi Outdoor Advertising Policy
2008, under this large size of billboards which includes
wall wraps are not permitted in NDMC area other than
which substantially support social and charitable
activities in the discretion of NDMC.
5. As far as NDMC is concerned, in the recent Speaking
Orders with respect to "Greenline" it was viewed that
NDMC will not allow any commercial advertisement
unless supported by social or charitable cause since it
may create visual clutters.
6. Hence, the show cause notice is hereby issued as to why
large format advertisement displayed at F-7, Shankar
Market may not be removed as it is contrary to Delhi
Outdoor Advertising Policy 2008.
7. In response to the Respondent's aforesaid final show cause notice
dated 28.02.2017, the Petitioners on 09.03.2017 submitted a reply
stating inter alia that they are fully compliant with the conditions on
which they had been granted permission to display a wall wrap on the
Commercial Property by the NDMC after it had thoroughly scrutinized
their compliance with all the provisions contained in the DOAP 2008,
including the size of the advertisement. On 22.03.2017, the Petitioners
submitted an additional reply to the Respondent's final show cause
notice, categorically stating therein that they were running a registered
charitable trust named "Hindi Gyan Vigyan Kendra", which promotes
Hindi language as the mother-tongue of the country, and therefore they
were duly fulfilling the conditions stipulated under DOAP 2008 for
exhibiting a wall wrap on the Commercial Property.
8. It further emerges that, after submitting their two replies to the
aforesaid final show cause notice, the Petitioners on 19.06.2017 sent a
letter to the Secretary, Blind Relief Association, New Delhi informing
him that, should the Respondent exempt them from the annual
advertisement tax of Rupees Five Lakhs, they would in addition to their
existing support to the education of 29 blind students, commit the said
exempted sum of Rupees Five Lakhs also to the Blind Relief
Association. A copy of this letter was also marked to the Respondent for
its consideration of the Petitioners' aforementioned request to be
exempted from paying the annual advertisement tax levied on them in
respect of the wall wrap displayed on the Commercial Property. The
Petitioners' letter dated 19.06.2017 to the Blind Relief Association, was
also followed by their representation dated 10.08.2017 to the
Respondent with an identical request to be exempted from paying the
annual advertisement tax. It transpires that subsequently, the Petitioners
also entered into a Memorandum of Understanding (hereinafter referred
to as "MOU") with the Blind Relief Association on 24.08.2017, thereby
committing to pay a sum of Rs. 2,17,000/- per year towards scholarships
for 29 blind students for a period of five years from 2016 to 2021 with a
further commitment to pay the Blind Relief Association an additional
sum of Rs. 5,00,000/-, in the event the Respondent/NDMC exempted
them from paying the annual advertisement tax of the same amount
levied on them.
9. Having received no response to their representation dated
10.08.2017, the Petitioners preferred two further representations dated
04.09.2017 and 15.09.2017 to the Respondent, requesting it to waive
their obligation to share 50% of the revenue generated from the wall-
wrap as advertisement tax for the same, so as to enable them to use the
said amount to support the Blind Relief Association. While the aforesaid
representations remained unanswered, the Respondent on 19.09.2017,
issued the impugned notice cancelling the permission granted to the
Petitioners on the following grounds:-
1. Size of the impugned display is 35' X 15' instead of the
maximum limit (6m X 3m) i.e. 20' X 10' prescribed under
table 6.1 under category 1 of DOAP 2008.
2. No substantial support in social and charitable activities
has been done in the discretion of NDMC.
3. Mislead the provision under DOAP 2008 in the term of
"Building Wrap."
4. Violating the provision of DOAP 2008 for constructing
steel structure which can be termed as a bill board instead
of wall wrap.
10. Aggrieved by the Respondent's impugned cancellation notice
dated 19.09.2017, the Petitioners have approached this Court by way of
the present writ petition. When the matter was listed for preliminary
hearing on 25.09.2017, this Court had, by way of an interim order stayed
the impugned cancellation notice, which interim arrangement has
continued to operate during the pendency of the present petition.
11. Having set out the facts hereinabove, I may now refer to the rival
contentions of the parties.
12. At the outset, Mr. Amit Sibal, learned Senior Counsel for the
Petitioners, contends that while the impugned cancellation notice was a
consequence of the final show cause notice dated 28.02.2017, it cites
several additional and cryptic grounds for cancelling the permission
letter dated 21.05.2015 that did not find any mention in the said show
cause notice, which alone was the basis for issuing the impugned
cancellation notice. He contends that, although an objection to the size
of the building wrap was initially taken in the first two show cause
notices, the same was subsequently dropped by the Respondent in its
final show cause notice dated 28.02.2017 upon being satisfied with the
Petitioners' reply dated 28.07.2016 in response to the Second Show
Cause Notice dated 20.07.2016. Mr. Sibal's contention, thus, is that the
Respondent could not have taken an objection to the size of the building
wrap in the impugned cancellation notice dated 19.07.2017, since the
show cause notice on which it was based (i.e., show cause notice dated
28.02.2017) did not mention the said ground, and further because the
same had already been answered to the satisfaction of the Respondent
vide the Petitioners' reply dated 28.07.2016 to the Respondent's Second
Show Cause Notice dated 20.07.2016.
13. Taking his aforementioned plea further, Mr. Sibal submits that the
Respondent could not have taken an objection to the size of the building
wrap in the impugned cancellation notice as DOAP 2008, which is the
policy under which both the permission letter dated 21.05.2015 and
impugned cancellation notice were issued, for obvious reasons, does not
provide for any dimensional restrictions in respect of wall wraps. He
contends that, as the name suggests, wall wraps are advertisements that
entirely wrap the wall on which they are displayed and, therefore, the
sizes of such advertisements will necessarily vary with the sizes of the
wall on which they are exhibited, thereby making the prescription of a
uniform size for such advertisements impossible.
14. Without prejudice to his aforesaid contentions, Mr. Sibal submits
that photographs of the building wrap displayed on the Commercial
Property were annexed to the permission letter dated 21.05.2015 issued
by the Respondent. He, thus, contends that the Respondent must not
only be deemed to have known about the size of the wall wrap at the
time of granting permission to display the same but the said permission
must be deemed to be granted specifically for the size of the said wall
wrap/advertisement. In these circumstances, he submits, the Respondent
cannot cancel the permission letter dated 21.05.2015 on facts that were
specifically in its knowledge at the time it granted such permission.
15. Mr. Sibal further contends that the impugned cancellation notice
has been issued wholly without application of mind, inasmuch as it is
based on alleged violations that were neither prohibited by the
permission letter dated 21.05.2015 nor DOAP 2008, which as noted
above is the policy under which the aforesaid permission letter was
granted. He submits that there was no requirement to provide substantial
support to social and charitable activities in the discretion of the NDMC
for displaying wall wraps, either under DOAP 2008 or the permission
letter dated 21.05.2015. By placing reliance on Clause 6.1(a)(c) of
DOAP 2008, he further submits that the requirement to provide
substantial support to social and charitable activities is only applicable to
billboards and, therefore, the Respondent cannot take the Petitioners'
omission to comply with the same as a ground for cancelling their
permission to display a wall wrap.
16. Taking his aforementioned plea further, Mr. Sibal contends that a
perusal of the permission letter dated 21.05.2015 issued by the
Respondent in itself shows that it did not require the Petitioners to
provide any support to social and charitable activities, as is now sought
to be contended by the Respondent. By placing reliance on the
permission letter dated 21.05.2015 as also the internal notes of the
Respondent at the time of granting the said permission, he further
contends that the same was granted solely on a revenue sharing basis
and was not subject to the requirement of carrying out any social or
charitable activities. Mr. Sibal's contention, thus, is that the requirement
of providing substantial support to social and charitable activities in the
discretion of the NDMC was neither a condition to the grant of
permission to display a wall wrap on the Commercial Property nor a
factor considered by the Respondent while granting such permission to
the Petitioners and, therefore, the same cannot now be taken as a ground
to cancel the said permission.
17. Mr. Sibal further submits that the issue pertaining to supporting
social and charitable activities was raised for the first time only in the
final show cause notice dated 28.02.2017. He contends that a bare
perusal of the said Notice also reveals that even though there was no
such requirement to provide substantial support to social and charitable
activities under DOAP 2008, the said requirement had been necessitated
only by recent speaking orders issued with respect to the case of
'Greenline'. Therefore, he submits, it was only after the final show cause
notice was issued that the Petitioners were first made aware of the
aforesaid "requirement" and they immediately took steps to comply with
the same. In compliance with the aforesaid requirement, he contends, the
Petitioners vide representations dated 04.09.2017 and 15.09.2017 not
only furnished documentary evidence of their existing support to 29
blind students but in view of their charitable activities, also requested the
Respondent to waive off the annual Advertisement Tax/Revenue Share
payable by the Petitioners. However, he submits, the Respondent mala
fidely issued the impugned cancellation notice despite having received
the Petitioners' aforementioned representations dated 04.09.2017 and
15.09.2017.
18. Without prejudice to his aforesaid contentions, Mr. Sibal submits
that the Respondent's requirement to provide "substantial" support to
social and charitable activities "in the discretion of the NDMC" must be
tested on the touchstone of existing constitutional principles. Firstly, he
submits, the aforementioned requirement is vague insofar as there is no
intimation whatsoever from the Respondent as to what constitutes
"substantial" support to social and charitable activities. Secondly, he
submits, the discretion conferred on the NDMC to determine what
constitutes substantial support to social and charitable activities, must be
interpreted in light of the mandate of Article 14 of the Constitution of
India. By placing reliance on the decision of the Supreme Court in
Kedar Nath v. State of Bihar [AIR 1962 SC 955], he contends that the
Respondent cannot have unfettered discretion in deciding what
constitutes "substantial" support as this would inevitably lead to the
misuse of power. He further submits that in order to render its discretion
constitutional, the NDMC must either lay down guidelines for the same
or should have stipulated in their permission letter dated 21.05.2015
itself as to what "substantial" support the Petitioners were enjoined to
provide as a condition for continuing to display a wall wrap on their
Commercial Property.
19. Mr. Sibal further submits that similarly, the issue pertaining to the
steel structures mounted on the Commercial Property was also raised for
the first time in the impugned cancellation notice. Therefore, he
contends, the Petitioners had no opportunity to show cause against the
said ground before the impugned cancellation notice was issued to them.
He submits that not only has the said ground been taken in complete
violation of the principles of natural justice but, even otherwise, there is
no bar under DOAP 2008 against affixing steel structures on walls to
secure the building wraps on them, as is sought to be contended by the
Respondent.
20. In response to the contentions regarding DOAP 2017 raised by the
Respondent in its counter-affidavit, Mr. Sibal submits that
notwithstanding the fact that DOAP 2017 had already been enforced
vide the Supreme Court's order dated 03.08.2017 in M.C. Mehta v.
Union of India [W.P.(C) No. 13029/1985], the Respondent had
consciously issued the impugned cancellation notice on 19.09.2017
under DOAP 2008. Therefore, by placing reliance on the decision of the
Supreme Court in Mohinder Singh Gill and Anr. v. Chief Election
Commissioner, New Delhi and Ors. [(1978) 1 SCC 405], he submits
that the Respondent, having found that the Petitioners are not in
violation of DOAP 2008, cannot now rely on the provisions of DOAP
2017 to urge that the Petitioners are violating the latter policy, and
subsequently improve upon its case as specified in the impugned
cancellation notice. Even otherwise, he contends, no show cause notice
under DOAP 2017 has been issued to the Petitioners till date. By placing
reliance on the decision of the Supreme Court in Nagarjuna
Construction Company v. Government of Andhra Pradesh [(2008) 16
SCC 276], he submits that it was incumbent upon the Respondent to
comply with the principles of natural justice and give the Petitioners an
adequate opportunity of being heard with regard to any alleged violation
under DOAP 2017, by at least issuing a show cause notice to them under
DOAP 2017.
21. Without prejudice to his plea that the Petitioners were not given
any opportunity to show cause regarding the alleged violations of DOAP
2017, Mr. Sibal submits that the Petitioners are not in contravention of
DOAP 2017 and are, in fact, covered by the said policy. As per Clause
6.1(1.6) and Clause 7.1(c) of DOAP 2017, he submits, building wraps
are allowed in malls, the airport area, cinema halls, and metro station
buildings (except in the NDMC area), provided they substantially
support social and charitable activities in the discretion of the NDMC.
He contends that the Commercial Property, being situated in Shanker
Market, New Delhi, is part of a renowned mall, which is one of the sites
under DOAP 2017 where the exhibition of wall wraps is permissible. In
support of his aforesaid plea, Mr. Sibal urges this Court to not
contemplate the meaning of "mall" in terms of the multi-storied
buildings that have in the recent past come to be erected in many
urbanized corners of the city. Instead, he places reliance inter alia upon
the definition of "mall" in the Short Oxford English Dictionary (6th
Edition) as a shopping precinct closed to vehicles, and submits that as
per the said definition, Shanker Market is a mall within the meaning of
DOAP 2017. Thus, his contention is that the Petitioners fall squarely
within the scope of DOAP 2017 and, therefore, the Respondent has no
case to even rely on the said Policy to support its impugned cancellation
notice.
22. On the other hand, Mr. Sri Harsha Peechara, learned counsel for
the Respondent, while opposing the petition, submits that the same is
liable to be outrightly rejected as the Petitioners are in violation of
DOAP 2017, which as on date is the only advertising policy of the
Respondent applicable in the NDMC area. He submits that DOAP 2017
was implemented pursuant to the Supreme Court's order dated
03.08.2017 in M.C. Mehta (supra) and is now the new outdoor
advertising policy binding not only on the Petitioners but also on the
Respondent. According to Mr. Peechara, DOAP 2017 permits building
wraps only in malls, the airport area, cinema halls, and metro station
buildings (except in the NDMC area), and that too only if the revenue
generated therefrom is used substantially to provide support to social
and charitable activities in the discretion of the NDMC. He submits that
neither is the Commercial Property located in any of the areas where
building wraps are allowed to be exhibited nor do the Petitioners support
any social and charitable activities in the discretion of the NDMC.
Therefore, he contends, the Petitioners do not fulfill the criteria
stipulated under DOAP 2017 for grant or continuation of permission to
exhibit a building wrap on the Commercial Property. Thus, his
contention is that the Respondent cannot grant permission to the
Petitioners or allow them to continue displaying a building wrap on the
Commercial Property, when they do not fulfill the criteria for the same
in terms of the policy now applicable, i.e., DOAP 2017.
23. Mr. Peechara further submits that the Petitioners' contention that
the Commercial Property is located in a mall is wholly misconceived
since the literal definitions of "mall", as relied upon by Mr. Sibal, render
the expression practically otiose. He submits that if Shankar Market is
deemed to be a mall, as is sought to be contended by the Petitioners,
then every local market area in the NDMC area that is cordoned off to
vehicles will be deemed to be a mall, thereby rendering the expression
"mall" occurring in DOAP 2017 completely meaningless.
24. Mr. Peechara, while conceding that the Respondent had not issued
any show cause notice under DOAP 2017 to the Petitioners, further
submits that they were not in any way disadvantaged by the
Respondent's omission to send such a show cause notice to them. He
contends that even before the impugned cancellation notice was issued
on 19.09.2017, the Petitioners had themselves sent a representation
dated 15.09.2017 to the Respondent, clearly stating therein that they are
in compliance with DOAP 2017 since their advertisement is on a
property in Shankar Market, which is a mall. He, thus, contends that the
Petitioners' representation dated 15.09.2017 in itself shows that they
were aware of the issues in respect of their advertisement on the
Commercial Property, including the binding effect of DOAP 2017. He,
therefore, submits that there has been no violation of the principles of
natural justice, as it is not a case wherein the Petitioners did not have
prior notice of the Respondent's case against them.
25. Without prejudice to his plea that the Petitioners are in violation of
DOAP 2017 despite always being aware of the requirement to comply
with the same, Mr. Peechara places reliance on the decision of the
Supreme Court in Dharampal Satyapal Ltd. v. Deputy Commissioner of
Central Excise and Ors. [C.A. No. 4458-59/2015], in support of his
contention that in cases where the omission to issue a show cause notice
does not cause prejudice to the concerned party or would not change the
result of the decision to be taken by the authority in question, the
issuance of a show cause notice is not at all mandatory and would
merely be an empty formality. He submits that, in the facts of the present
case, it is evident that a wall wrap on the Petitioners' property is not
permissible under DOAP 2017, as the same does not fall in the areas
where wall wraps are permissible and, thus, the issuance of a show cause
notice under DOAP 2017 to the Petitioners would have been and
continues to remain an empty formality. He, therefore, contends that the
Respondent's omission to issue a show cause notice under DOAP 2017
did not cause any prejudice to the Petitioners as they were already aware
of the Respondent's case against them.
26. Mr. Peechara further submits that the Petitioners are in violation
not only of DOAP 2017 but also of DOAP 2008, the outdoor advertising
policy under which permission to display a wall wrap had been granted
to them, as the very size of the wall wrap exceeds the maximum size of
advertisements permissible under the latter policy. He submits that,
while Clause 6.1(c) of DOAP 2008 clearly stipulates the maximum
permissible size of building wraps as 20 feet x 10 feet, the Petitioners'
wall wrap on the Commercial Property admittedly measures 35 feet x 15
feet. In these circumstances, he contends, the Respondent cannot be
faulted for cancelling the Petitioners' permission letter dated 21.05.2015,
when their advertisement was found to be in violation of not only the
policy under which permission had been granted but also of the policy
presently applicable, i.e., DOAP 2017.
27. Mr. Peechara further contends that the permission to display a wall
wrap had been granted to the Petitioners vide letter dated 21.05.2015
only upon consideration of their representation dated 20.03.2015,
wherein they had categorically represented that they were running a
charitable institution named "Hindi Gyan Vigyan Kendra" and would
use the revenue from the advertisement to further their charitable
activities, which representation was patently false. He submits that after
the grant of permission to them vide letter dated 21.05.2015, while the
Petitioners promptly displayed the wall wrap on their property, they had
not submitted any evidence of their alleged social and charitable
activities. Taking his aforesaid plea further, he submits that the
documents filed with the present petition in themselves reveal that the
first ever contribution made by the Petitioners towards social and
charitable activities was in March 2017, i.e., after the issuance of the
final show cause notice. His contention, thus, is that the Petitioners only
started engaging in social and charitable activities subsequent to the
issuance of the final show cause notice and that too only as an
afterthought, making it evident that they were not carrying out any social
and charitable activities despite having made a specific representation to
the effect while seeking permission to display a wall wrap.
28. The final submission of Mr. Peechara is that the mere absence of
some of the grounds forming the basis of the impugned cancellation
notice in the final show cause notice cannot be fatal, as the Petitioners
were well aware of all the violations set out in the cancellation notice,
having been specifically put to notice in respect thereof through the
earlier two show cause notices itself. He submits that the Petitioners'
presumption that the grounds mentioned in the first two show cause
notices had been given up by the Respondent was wholly without any
basis and merely because the violations already mentioned in the first
two show cause notices were not repeated in the final show cause notice,
could not lead to the conclusion that they stood condoned or could not
form the basis of the cancellation notice.
29. Having heard the learned counsel for the parties at length and
considered their rival contentions, I find that the following issues arise
before this Court:
I. Whether the impugned cancellation notice dated 19.09.2017
can be said to be violative of the principles of natural justice,
insofar as it mentions grounds that were not taken in the
final show cause notice dated 28.02.2017?
II. Whether there are any dimensional restrictions for wall
wraps under Delhi Outdoor Advertising Policy 2008?
III. Whether it was mandatory for the Petitioners to provide
substantial support to social and charitable activities as a
condition to display a building wrap under the Delhi
Outdoor Advertising Policy 2008?
IV. Whether the Respondent can be permitted to justify its
impugned cancellation notice by placing reliance on the
Delhi Outdoor Advertising Policy 2017?
30. The first and foremost fact which emerges from the record is that,
while the impugned cancellation notice purports to be based on the
grounds taken in the final show cause notice dated 28.02.2017, the
Petitioners' reply whereto was not found to be satisfactory, it
specifically mentions grounds not only as referred to in this show cause
notice but also includes grounds not mentioned therein. While some of
these additional grounds were initially taken in the first two show cause
notices, some of them were never even mentioned by the Respondent in
any of the three show cause notices issued by it to the Petitioners. While
this factual position has not been denied by Mr. Peechara, he has tried to
justify the Respondent's action by contending that the Petitioners having
been put to notice of the additional grounds by way of the first two show
cause notices itself, the reliance by the Respondent on those grounds
while passing the impugned cancellation notice cannot be faulted as the
same were always within the knowledge of the Petitioners. He has
further tried to justify the inclusion of new grounds in the impugned
cancellation notice by contending that those grounds relate to violations
of the provisions of DOAP 2008 as also of DOAP 2017, which are not
only in the public domain but also within the specific knowledge of the
Petitioners themselves, and thus it could not be urged by them that the
principles of natural justice were violated.
31. In my view, as far as the grounds that were not taken in either of
the three show cause notices dated 09.05.2016, 20.07.2016 and
28.02.2017 are concerned, there can be no doubt that they could not
form the basis of the impugned cancellation notice since the Petitioners
did not have any prior notice of them and, therefore, never had any
opportunity to prefer any response to them. One of the most fundamental
requirements of audi alteram partem, a cardinal principle of natural
justice, is prior notice of the case that an authority has against a person,
without which one cannot exercise his/her right to a fair and effective
hearing. There is no gainsaying that an authority seeking to take action
resulting in civil consequences against a person, must equip the affected
person with information that is necessary to enable him/her to prefer an
informed representation against the proposed action. It is for this reason
that I find that the ground pertaining to the erection of steel structures on
the Commercial Property being violative of DOAP 2008, having never
been taken earlier, could not form the basis of the impugned cancellation
notice.
32. Similarly, the ground taken in the impugned cancellation notice,
i.e., "mislead the provision under DOAP 2008 in the term of "Building
Wrap"", having not been taken in any of the three show cause notices
issued by the Respondents, cannot be held to be a valid ground for
issuing the impugned cancellation notice. Even otherwise, this ground
being absolutely cryptic, conveys no logical sense to the reader and flies
in the face of the settled legal position that an effective notice issued by
an administrative authority must adequately convey to its recipient the
grounds for the same. It is obvious that a ground that does not convey its
contents sufficiently and does not provide the information necessary for
preferring an adequate reply, cannot be a legitimate basis for issuing a
notice. Thus, even the aforementioned ground is wholly unsustainable
and cannot be treated as a valid premise for issuing the impugned
cancellation notice.
33. Now, I may refer to those grounds that were initially taken either
in the First or Second Show Cause Notice but were subsequently
dropped in the final show cause notice, and are still the basis of the
impugned cancellation notice. In this regard, I am of the view that as a
corollary to adequate notice, a distinction needs to be drawn between
grounds that one has been able to explain to the satisfaction of the
concerned authority and of those that warrant the production of further
explanations and evidentiary materials by such person. In the absence of
such information, a person cannot be expected to build up his/her own
case with certainty by preferring a determinate and adequate response to
the show cause notice served on him/her by an administrative authority.
Thus, in my opinion, any ground taken in the earlier two show cause
notices but not mentioned in the final show cause notice, must
necessarily be treated as condoned/dropped and, therefore, as a corollary
thereof the same cannot legitimately form the basis of the impugned
cancellation notice. The ground pertaining to the size of the
advertisement, having admittedly not been taken in the final show cause
notice dated 28.02.2017, could thus not be taken as a ground for issuing
the impugned cancellation notice, especially when the impugned
cancellation notice only refers to the final show cause notice dated
28.02.2017.
34. I may now proceed to examine whether the Petitioners are in
violation of the Delhi Outdoor Advertising Policy 2008, under which
policy they were granted permission to exhibit the wall wrap. In
determining the aforesaid aspect, it would be necessary to first examine
the relevant provisions of the Delhi Outdoor Advertising Policy 2008;
violation whereof is attributed to the Petitioners. The relevant extracts of
the policy read as under:-
5. Summary of permissibility of different category of advertising devices
5.1 Summary for Category 1 Devices
S.No. Description of device Status
Permitted Not Permitted
Subject to General and
Specific Permission
Criteria
1.1 Billboards/Unipoles/
Bipoles
i Industrial area Permitted
ii Commercial area Permitted
xxx xxx xxx xxx
1.2 Trivision Not Permitted
1.3 Railway Bridge Panels Permitted
1.4 Flyover Panels Permitted
1.5 Building Wraps
I Commercial area Permitted
II Recreational areas Permitted
III Other areas like Not permitted
residential area,
industrial, institutional
heritage, monument etc
including mixed alnd
use areas.
6. Specific conditions for different category of advertising devices
6.1 Specific conditions: Category 1
S.N Type General Descriptio- Specific parameters
o description n of device
-n
Length Width Max Min
Height Grou
-nd
Clea-
rance
1.1 Cate- Large Billboards/ 6m 3m 8m 2.5m
gory - format Unipole 14m for
one outdoor Railways
advertising * (*Not
device permitted
in NDMC
areas)
1.2 Trivision NA NA NA NA
1.3 Railway 18m 3m - -
Bridge
panels
1.4 Flyover 18m 3m - -
panels
6.1 a Specific Permission Criteria: Category 1
a. Lateral placement xxx
b. Longitudinal Placement xxx
c. Other placements In NDMC areas, unipoles will not
be allowed along railway bridges.
In NDMC areas, no large size
(category 1) billboards will be allowed,
other than those billboards which
substantially support social and
charitable activities in the discretion of
the NDMC.
In major arterial roads of the city,
like Ring Road, with high traffic volumes
and designed to promote speed of
movement (without intersections), large
size hoardings (category 1) will not be
permitted. The decision on adding roads
will be taken jointly with the Delhi Traffic
Police and the MCD.
The locations where large format
outdoor devices are placed along the
sides of the railway bridge, flyover than
maximum height of the device from the
road level shall be measured clearly from
the top of flyover and centre of the flyover
Building wrap or large format
advertisement (6m X 3m) will be
permitted strictly in commercial areas.
Not permitted in residential areas
Not permitted within 75 m of
another category 1 device.
Not permitted within 75 m of
category 1 and category 2 devices.
35. What transpires from a perusal of DOAP 2008 is that Clause 5.1
while summarizing the various types of Category-I advertising devices,
places billboards at serial no. 1.1 and building wraps at serial no. 1.5. In
other words, DOAP 2008 treats building wraps and billboards as two
separate types of advertisements within the same category (i.e.,
Category-I) of advertising devices. Furthermore, while laying down the
specific conditions for displaying different types of advertising devices,
Clause 6 stipulates certain dimensional restrictions on all Category-I
advertising devices, expect for trivisions and building wraps. In fact,
Clause 6.1, which is the provision creating restrictions on the size of
Category-I advertising devices, makes no mention of billboards at all.
Thus, it appears that DOAP 2008 while imposing restrictions on the size
of billboards, does not envisage any dimensional restrictions on wall
wraps. Though Mr. Peechara has, by placing reliance on Clause 6.1a(c),
contended that both building wraps as also large format advertisements
can at most measure 6 meters x 3 meters, I am of the considered view
that it is Clause 6.1 and not Clause 6.1a(c) that specifically lays down
the maximum permissible parameters for Category-I advertisements. All
that the relevant portion of Clause 6.1a(c) stipulates is that large format
advertisements measuring 6 meters x 3 meters as also building wraps,
are only permitted in commercial areas. It does not in any way provide
for the maximum permissible parameters of Category-I advertising
devices, for which purpose one must turn only to Clause 6.1. Therefore,
I find nothing in DOAP 2008 that creates dimensional restrictions on
wall wraps, as a result of which even the ground objecting to the size of
the wall wrap/advertisement in the impugned cancellation notice dated
19.09.2017 is wholly unsustainable.
36. Now, coming to the requirement to provide substantial support to
social and charitable activities, which has allegedly not been fulfilled by
the Petitioners, it may be noted that Clause 6.1a(c), which provides for
support to social and charitable activities especially states that "in
NDMC areas, no large size (category 1) billboards will be allowed,
other than those billboards which substantially support social and
charitable activities in the discretion of the NDMC." Thus, it emerges
that the use of the expression "category 1" in the context of support to
social and charitable social activities is specifically qualified by the
word 'billboards', making it evident that the aforesaid requirement
designedly refers only to large-size billboards falling in Category-I, and
not to all types of advertising devices falling under the said category.
When the policy itself does not impose any such condition on the
exhibition of buildings wraps, it is unfathomable how even such a
condition could have been a factor considered by the Respondent while
granting permission to the Petitioners to display a building wrap on the
Commercial Property, or consequently a ground for cancelling such
permission. In the light of the aforesaid specific clause of the policy, I
am unable to persuade myself to accept Mr. Peechara's contention that
the permission letter dated 21.05.2015 was granted to the Petitioners on
the basis of their representation dated 20.03.2015, wherein they stated
their intention to use the proceeds from the advertisement to further the
charitable activities of their institution "Hindi Gyan Vigyan Kendra".
37. At this stage, it may also be important to note that no objection to
the Petitioners' social and charitable activities (or rather absence thereof)
was taken by the Respondents in the First and Second Show Cause
Notices, which itself appears to be attributable to the lack of any such
precondition in the policy for the grant of permission to exhibit a wall
wrap. It is only in the final show cause notice that the aforesaid ground
was taken for the first time, a perusal of which Notice reveals that the
condition had been imposed vide some recent speaking orders passed by
the Respondent in relation to the case of 'Greenline', and had no basis in
the statutory policy. There appears to be no reason to conclude that, as
per DOAP 2008, the Petitioners were legally obligated to carry out
social and charitable activities in the discretion of the NDMC to display
a building wrap on the Commercial Property. For the aforementioned
reasons, I find that the Petitioners' lack of substantial support to social
and charitable activities as a ground for cancelling the permission is not
borne out from the requirements of DOAP 2008 and, therefore, could
not also be a legitimate premise for issuing the impugned cancellation
notice.
38. I may now move on to examine whether the Respondents can, at
this stage, rely on DOAP 2017 to justify the impugned cancellation
notice. What can be gathered from Mr. Peechara's stand before this
Court is that the primary reason why the Petitioners cannot at this stage
be allowed to exhibit a building wrap on the Commercial Property, is
that they do not fulfill the criteria for the grant or continuation of such
permission under DOAP 2017, which is admittedly the advertising
policy now binding on the Respondent as also the Petitioners.
39. Even though Mr. Sibal has contended that the permission granted
to the Petitioners has to be tested only in accordance with DOAP 2008, I
am of the opinion that, although the impugned cancellation notice and
the permission letter dated 21.05.2015 were no doubt issued under
DOAP 2008, the Respondent would be entitled to cancel the permission
incase it was found that the wall wrap of the Petitioners was in violation
of the policy now applicable. The Petitioners cannot be permitted to
continue displaying a wall wrap on the Commercial Property forever
merely because they are not found to be in violation of the policy under
which permission was granted to them. It is evident that the grant of
permission vide letter dated 21.05.2015, does not create any vested right
in the Petitioners to continue displaying a wall wrap on the Commercial
Property in perpetuity, and the same has to necessarily be subject to the
changing laws of the land. It being an undisputed position that the
DOAP 2008, under which permission was granted, is no longer in force,
the right of the Petitioners to continue exhibiting the wall wrap has to be
necessarily tested on the parameters prescribed in the DOAP 2017.
40. However, whether or not the Petitioners are compliant with the
provisions of the new policy, i.e., DOAP 2017, still remains to be
determined. In this regard, the first and foremost fact to be noted is that
it is the Respondent's own admitted case that it had not given any notice
to the Petitioners regarding their alleged non-compliance with DOAP
2017, before cancelling their permission letter dated 21.05.2015. In fact,
even the impugned cancellation notice was issued to them on the basis
of alleged infractions in respect of DOAP 2008, although DOAP 2017
had by then already been implemented on 03.08.2017. In my opinion,
merely because the Petitioners on 15.09.2017 had submitted a
representation to the Respondent stating that they are in compliance with
DOAP 2017, it cannot be said that they already had adequate notice of
the Respondent's case against them in respect of their alleged violations
under DOAP 2017. I find nothing in the representation dated 15.09.2017
that reveals, by implication or otherwise, that the Petitioners knew that
their Commercial Property was not, as per the Respondent's case, a mall
within the meaning of the expression under DOAP 2017.
41. Even though, Mr. Peechara has strenuously contended that the
issuance of a fresh show cause notice under DOAP 2017 would be an
empty formality, in my opinion, whether a party has been prejudicially
affected by an authority's omission to issue a show cause notice cannot
be put in a straightjacket formula and is a question of fact that needs to
be determined in the context of a given case. Therefore, the issue which
essentially needs to be considered is, whether in the facts of the present
case, grant of an opportunity to the Petitioners to show cause in respect
of the alleged violations of DOAP 2017 would be an empty formality or
a necessary pre-requisite for taking any action against them.
42. From the rival contentions of the parties, it emerges that to test
whether the Petitioners are in violation of DOAP 2017, the primary issue
which would need to be determined is as to whether their Commercial
Property is a mall or a type of property on which building wraps are
permitted to be exhibited under DOAP 2017. In case, it were to be found
that a wall wrap per se, is not permissible under DOAP 2017 on
buildings of the type of the Petitioners' Commercial Property, the
permission granted to the Petitioners would necessarily have to be
cancelled after following due procedure. However, in the event it is
found otherwise, only then the issue as to whether the Petitioners are
compliant with the conditions imposed by DOAP 2017 on exhibition of
wall wraps would arise. In these circumstances, I am unable to persuade
myself to accept Mr. Peechara's contention that in the facts of the
present case, the issuance of a show cause notice under DOAP 2017 by
the Respondent to the Petitioners would be an empty formality.
43. The Petitioners not having been given any opportunity to show that
their property is one of the kinds of buildings on which wall wraps are
permitted under DOAP 2017, it cannot be said that the Petitioners were
not prejudicially affected by the Respondent's omission to issue a show
cause notice to them in this regard under DOAP 2017. In fact, whether
or not the Petitioners are in violation of DOAP 2017 is a question of fact
that has to be determined by the Respondent only after duly complying
with the principles of natural justice, including the issuance of an
adequate notice to them. It is for this reason that the Court, at this stage,
has refrained from examining the conditions imposed on displaying wall
wraps under DOAP 2017, as also the question as to whether the
Petitioners are in violation thereof.
44. For all the aforementioned reasons, the impugned cancellation
notice is quashed. This would, however, not preclude the Respondent
from taking action against the Petitioners, by unequivocally informing
them of the grounds on which the permission to display a building wrap
on the Commercial Property is sought to be cancelled, and taking further
action as deemed necessary after following the principles of natural
justice.
45. The writ petition is allowed in the aforementioned terms with no
order as to costs.
AUGUST 20, 2018/ss/nm (REKHA PALLI)
JUDGE
