Delhi High Court
M/S Delhi Outdoor Advertisers ... vs South Delhi Municipal ... on 27 August, 2018
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 27.08.2018
+ W.P.(C) 11398/2016
M/S DELHI OUTDOOR ADVERTISERS ASSOCIATION (REGD.)
..... Petitioner
Through: Mr.Anand Mishra and Ms.Vandita
Nain, Advocates.
versus
SOUTH DELHI MUNICIPAL CORPORATION & ORS
..... Respondents
Through: Mr.Sanjay Poddar, Sr. Advocate with
Mr.Mukesh Gupta and Mr.Govind
Kumar, Advocates for
respondent/SDMC.
Mr.Shashank Tiwari, Advocate for
Mr.S.K.Tripathi, ASC (Civil),
GNCTD for respondent no.4.
Mr.Mukesh Gupta, Standing Cousnel
for respondent/EDMC.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A. K. CHAWLA
HON'BLE MR. JUSTICE S. RAVINDRA BHAT (ORAL)
%
The petitioner challenges Bye-law 13(5) of the Delhi Municipal
Corporation Tax on Advertisements (Other Than Advertisement
Published in Newspaper) Bye-laws, 1996 (hereinafter „Bye-laws').
These regulations require individuals and concerns, which are
desirous of fixing, retaining or displaying the advertisements, to apply
to the Commissioner as specified in Regulation 13(1) of the Bye-laws.
The petitioner challenges Regulation 13(5) of the Bye-laws which
stipulates that no permission can be deemed if the period fixed by
Regulation 13(1) of the Bye-laws, i.e. 30 days, lapses.
2. The relevant provisions are as follows:-
"Procedure for grant of permission for erection,
exhibition, fixation, retention or display of
advertisements
(13)(1) Every person desiring to erect, exhibit, fix,
retain or display an advertisement shall send or
cause to be sent to the Commissioner an
application for permission in the form annexed
to these Bye-laws which shall be available in
the Zonal Offices of the Corporation against
payment of fee as prescribed by the
Commissioner. The said application form duly
completed in all respects shall be submitted or
cause to be submitted by the applicant in the
Concerned Zonal Office against a proper
receipt. The Commissioner may after making
such inspection as may be necessary and within
thirty days after the receipt of the application,
grant, refuse, renew or cancel the permission,
as the case may be, in accordance with the
provisions of the Act and the bye-laws made
thereunder.
(13)(2) The Commissioner may disapprove an
advertisement on, among others, the ground
that its contents or the manner of its display is
indecent or otherwise offensive to good taste or
public sentiments.
(13)(3) No application shall be valid until and unless it
is submitted in the manner determined by the
Commissioner from time to time on the
prescribed proforma along with all the
documents as are required by the
Commissioner from time to time and fee of
twenty five rupees against proper receipt
obtained from the Corporation.
(13)(4) No application shall be considered by the
Commissioner, if it is not submitted in the
prescribed proforma along with all the
documents as are required by the
Commissioner and the fee of twenty five rupees
against proper receipt obtained from the
Corporation and in the manner prescribed by
the Commissioner from time to time. Any
application submitted in any other manner shall
be deemed to be rejected without any notice and
no person shall exhibit, erect, fix or retain upon
or over any land, building, wall etc. any
advertisement and display any advertisement to
public view on the basis of the same.
(13)(5) There shall be no deemed permission even after
the expiry of 30 days of the submission of
application in the prescribed proforma along
with all the documents."
3. It is urged by learned counsel for the petitioner that Regulation
13 of the Bye-laws enables the advertisers to apply for permission and
therefore, such applications have to be considered on their merits
having regard to the applicable Bye-laws and the restrictive conditions
contained in the Delhi Municipal Corporation Act, 1957 (hereinafter
„the Act‟) notably Section 143 of the Act. It is submitted that given
these circumstances and the fact that Regulation 13(1) of the Bye-laws
conclusively stipulates 30 days‟ period for consideration of the
application and grant of appropriate licence/issuance of order
granting, refusing, renewing or cancelling permission; further
stipulations by the impugned Regulation that lapse of the period
prescribed would not result in a deemed permission, is arbitrary.
4. Learned counsel endeavours to submit that the twin stipulations,
which Section 143 of the Act postulates are pertinent, in that, the
advertiser is to obtain permission and can be denied such permission
on the ground of unpaid dues/taxes or the proposed advertisement
violates any Regulation. It is submitted that given these express
stipulations by the Statute, the wide discretion, worked out through
Regulation 13(5) of the Bye-laws, virtually dilutes and renders 30
days‟ period ineffective, inasmuch as it results in vesting the
Authorities with the discretion for an indefinite period.
5. The learned counsel for the respondent urged that mere
stipulation of an outer limit per se would not mean that on the lapse of
that period, the benefit or privilege sought should be deemed to be
granted. It is submitted that each of the instance, which Regulation 13
(1) of the Bye-laws talks about i.e. grant, refusal, renewal or
cancellation depends upon application of mind, after taking into
consideration the circumstances of each case or each application; in
other words, the standard required of the Administrative Authority i.e.
the Commissioner is that the concerned applications with the
necessary stipulated inputs such as inspection, field reports etc., are to
be gone into. If these requirements are not mandated, such exercise
would be academic, if, an application, which is not even considered
but deemed granted, if the petitioner‟s arguments were to be accepted.
Learned counsel urges that Regulation 13(5) of the Bye-laws merely
clarifies the ambiguity, if any, which arises on account of 30 days
stipulation in Regulation 13(1) of the Bye-laws that the benefit of
permission is not a right but a privilege and therefore, a permissible
regulation under Article 19(6) of the Constitution of India.
6. Section 143 of the Act reads as follows:-
"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 whosoever in any place within Delhi
without the written permission of the Commissioner
granted in accordance with bye-laws made under this
Act.
(2) The Commissioner shall not grant such permission
if--
(a) the advertisement contravenes any bye-law made
under this Act; or
(b) the tax, if any, due in respect of the advertisement
has not been paid.
(3) Subject to the provisions of sub-section (2), in the
case of an advertisement liable to the advertisement tax,
the Commissioner shall grant permission for the period
to which the payment of the tax relates and no fee shall
be charged in respect of such permission."
7. A con-joint consideration of the Bye-laws and the relevant
provisions would show firstly that the Parliament enacted a bar by
stating in the first instance that "no advertisement shall be erected,
exhibited, fixed or retained upon or over any land, building....." etc.
without the written permission of the Commissioner. This provision -
enacted under the Statute, in no uncertain terms says that but for the
permission to be granted - significantly, in positive terms, no
individual has a right, so to speak, to place an advertisement over "any
land, building......." etc. This provision itself clarifies that an
individual or a citizen does not have an unrestricted right - rather,
right with respect to the putting up advertisements in any place, is
subject to the control and regulation of the Commissioner. The
regulations, in this regard, contained in Regulation 13 of the Bye-laws
are to be considered in the light of this restriction, which is
considerably not under challenge. The Regulation 13(1) of the Bye-
laws facilitates the permission, that Section 143(1) of the Act speaks
of, by stating that the power of the Commissioner or the concerned
designated officer, authorised to grant permission is to be exercised in
an untrammelled manner - with respect to the grant, refusal, renewal,
cancellation etc. of any permission. The outer limit, as is contended
by the petitioner, is only by way of a note of caution, which is to be
addressed by the concerned Officers and kept in mind, while dealing
with the application. This outer limit, in the opinion of the Court,
irrespective of the existence or otherwise of the restriction impugned
in this case, did not and could not have meant that a deemed
permission could be inferred by the Courts, if, the period stipulated in
Regulation 13(1) of the Bye-laws expired. This is for the simple
reason that Section 143(1) of the Act stipulates that grant of the
permission should be by the Commissioner or the designated officer.
8. The Legislature or the concerned delegated rule making
authority, may in given cases, stipulate that upon expiry of a certain
period, a consequence might follow. Often such provisions lead the
Courts to infer that the stipulation is mandatory - in other cases, in the
absence of any such stipulation, though a time limit is prescribed, the
Courts shall infer it to be merely directive. In the present case,
Regulation 13(5) of the Bye-laws, which stipulates that the expiration
of the time period [in Regulation 13(1) of the Bye-laws] would not
mean that a deemed permission is to be inferred, in the opinion of this
Court, does not, in any manner, affect or take away any right or
privilege which the petitioner or for that matter any applicant, can
assert. This Court is unpersuaded to accept the petitioner‟s arguments
in this case because of the very nature of the privilege sought, having
regard to the imperative of Section 143 of the Act which in uncertain
terms speaks of no individual or entity possessing the right to put an
advertisement.
9. For the above reasons, the Court is of the opinion that there is
no merit in the petition; the challenge to Regulation 13(5) of the Bye-
laws has to fail. The writ petition is dismissed.
S. RAVINDRA BHAT, J
A. K. CHAWLA, J
AUGUST 27, 2018
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