Telangana High Court

Haritha Ads, vs The Union Of India, on 4 September, 2024

      THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY


      WRIT PETITION Nos.13829, 13949, 14092, 14160, 14206,
     14255, 14300, 14301, 14303, 14304, 14310, 14312, 14319,
       14324, 14325, 14326, 14327, 14329, 14332, 14358 and
                          15269 of 2024

COMMON ORDER:

The issue involved in these writ petitions is intrinsically

interconnected and therefore, they are taken up and heard together

and are being disposed of by this common order.

2. This batch of cases has been filed by the petitioners seeking to

declare the action of respondent No.2 in issuing impugned notices

directing the petitioners to remove the advertisement hoardings on

their respective premises situated at Secunderabad, as bad in law,

illegal, discriminatory and violative of Article 14 of the Constitution of

India and consequently prayed this Court to direct the respondent

No.2 to restrain from removing the advertisement hoardings from the

respective premises and for other appropriate reliefs.

3. Writ Petition No.13829 of 2024 is taken up as a leading case to

decide the lis in this batch of cases.

4. It is the case of the petitioner that it is an advertising agency,

operating business under the name and style as "the Ad-Space". It is

stated by the petitioner that in addition to the hoarding business, he

is also doing business of newspapers, digital media like TV, Radio

and having several hoardings in various places and in the process of

its business, it entered into an agreement for erection of

advertisement hoarding at Plot No.2, Ravi CHS, SSR Arcade,

Trimulgherry, Secunderabad on rooftop of the building and carrying

out business without any hindrance from any corner by taking

utmost care without causing any difficulty to the public for the last

several years. The grievance of the petitioner is that the respondent

No.2 without conducting any inspection and without there being any

evidence that the advertisement hoarding installed by it is causing

endanger to the public safety, issued the impugned notice for

removal of the hoardings and the said action on the part of

respondents amounts to violation of Articles 14, 19 and 21 of the

Constitution of India and prayed to grant the relief as sought for.

5. The Chief Executive Officer of the respondent No.2 has filed

counter affidavit inter alia stating that the Secunderabad

Cantonment Board (for short "the Board") is an authority constituted

under the Cantonments Act, 2006 (hereinafter referred as "Act") and

it is competent to exercise all the powers as a local authority. It is

stated that under Section 66 of the Act, the Board is empowered to

impose taxes viz., Property Tax, Tax on Trades, Professions Callings

and Employments. It is also stated that under Section 67 of the Act,

the Board is empowered to charge license fee on advertisements,

other than advertisements in newspapers along with other license

fees as mentioned in the said Section. Section 348 of the Act enables

the Board to make bye-laws and rules to effectively function in terms

of the provisions of the Act. It is stated that under Section 348 of the

Act, the Board has framed Bye-laws. Bye-law No.17 authorizes the

Board to take all measures such as control and supervision of the

places where dangerous or offensive trades are carried on, so as to

secure cleanliness therein or to minimize any injurious, offensive or

dangerous effects arising or likely to arise thereon. Bye-law No.18

states about regulation of erection of any enclosure or other

temporary structures of whatsoever material or nature on any land

within the Cantonment and fee chargeable in respect thereof. It is

further stated that the advertisement elements which are at huge

heights from the ground level have collapsed a number of times in

the recent past, although certified as stable, thereby creating havoc.

It is further stated that the State Government has issued

G.O.Ms.No.68 dated 20.04.2020 prescribing certain operative

guidelines for granting permissions for advertisement elements which

are below 15 feet from ground level and also regulating existing

advertisement elements. It is further stated in the counter affidavit

that the respondent No.2 Board in its meeting dated 01.08.2022 had

proposed to levy penalty on unauthorized advertisement hoardings,

flexies, so as erection of banners and cutouts within the area of

Secunderabad Cantonment. The Board in its meeting dated

29.09.2022 vide CBR No.26 dated 01.08.2022 had resolved to

approve the authorized spaces for erections of flexies/banners as per

the prices fixed therein. It is further stated that issues regarding

regulating advertisement hoardings on rooftop of private buildings,

was discussed at length in the Board Meeting held on 10.05.2023

and in the said meeting, the Board taking into consideration the New

Advertisement Policy of Government of Telangana issued vide

G.O.Ms.No.68 dated 20.04.2020 and the safety and security of

residents of the Secunderabad Cantonment Area and even though

there is a loss of revenue of Rs.One Crore per annum to the Board,

resolved that all the rooftop hoardings along with structures be

removed by on or before 30.06.2023 failing which action would be

initiated as per the provisions of the Cantonments Act, 2006.

Subsequent to the said Resolution, the Board has published a public

notice on 12.06.2023 in various newspapers. It is stated that

questioning the said notice, the petitioners and others have

instituted W.P.Nos.16637 of 2023 and batch seeking to declare the

newspaper publication dated 12.06.2023 as illegal, arbitrary and

unconstitutional and this Court vide order dated 11.12.2023 while

allowing the said Writ Petitions filed by the petitioners therein

permitted the respondent No.2 to take any appropriate action in

accordance to law as per the provisions of Cantonments Act, 2006 by

following the procedure as contemplated under Section 297, 318 of

the Cantonments Act. It is the case of the respondent No.2 that in

compliance of the directions issued by this Court in W.P.No.16637 of

2023 and batch, they have issued notice under Section 297 of the

Act and the same does not suffer from any legal infirmities

warranting interference of this Court under Article 226 of

Constitution of India and prayed for dismissal of the same.

6. I have carefully considered the submissions of learned counsel

for the respective parties and perused the record.

7. The petitioners herein in this batch of cases are the owners/

advertisement agencies. It is their case that they have erected

advertisement hoardings on the respective premises by obtaining

necessary permissions and the respondents are regularly collecting

the advertisement charges/fee as per the provisions of the

Cantonments Act. It is further case of the petitioners that even

though erection of advertisement hoardings would not cause any

inconvenience to the public in general and inhabitants in particular,

the respondents have issued impugned notices with a malafide

intention. It is further case of the petitioners that the policy

enunciated by the State Government vide G.O.Ms.No.68 dated

20.04.2020 for allowing the erection of advertisements elements

below 15 feet height from the ground level and the said policy does

not apply for erection of the hoardings on high rise buildings. It is

their further case that Government policy and guidelines framed

thereunder are applicable to the erection of Unipoles, which are

dangerous and the said parameters are not applicable to the

hoardings installed by the petitioners and thus prayed this Court to

set aside the impugned notices.

8. The respondent No.2 is a Board constituted under the

provisions of the Cantonments Act, 2006 and a local authority as

defined under Article 243-P(e) of the Constitution of India. Part IX

and IXA of the Constitution confers power on the local self-

Government, a complete autonomy. Section 10(2) of the Act provides

for constitution of the Cantonment Board. Under Section 66 of the

Act, the Board has power and authority to impose taxes, viz.,

property tax, tax on trades and etc., Section 67 of the Act, enables

the Board to issue appropriate orders for collecting necessary

charges/license fee and other fees on advertisements and etc.

Section 348 of the Act empowers the Board to frame necessary

Rules/Regulations/Bye-laws for effective discharge of the

responsibilities assigned under the provisions of the Act. The

respondent No.2-Board while exercising its discretion in terms of the

powers conferred under Section 348 of the Act has conducted a

meeting and passed a resolution dated 10.05.2023 to adopt the State

Government policy enunciated in G.O.Ms.No.68 dated 20.04.2020 for

allowing the hoardings upto 15 feet height from the Ground level. In

terms of the policy adopted by the respondent No.2-Board, a general

notice has been published in the newspapers for removal of the

hoardings even though the said action results in loss of revenue to

the tune of Rs.One Crore per annum. It is to be seen that the policy

framed by the State Government in G.O.Ms.No.68 dated 20.04.2020

has been assailed before this Court in W.P.No.36328 of 2022 and

batch and this Court duly taking note of the erections of the

advertisement Boards within the vicinity of twin cities and after

referring catena of judgments, upheld the power of the State

Government to issue G.O Ms.No.68 dated 20.04.2020, except

imposing of the penalties. The Secunderabad Cantonment area is

located in the twin cities of Hyderabad and Secunderabad and

interchange of the traffic to reach their destinations. The Board

considering that the hazardous hoardings would cause

inconvenience to the public at large and adversely affect free flow of

traffic, has taken a decision to remove the hoardings. When initially,

the respondent No.2-Board has not followed the procedure as

contemplated under Section 297 r/w 318 of the Act, this Court while

allowing the writ petitions, directed the respondent No.2 to follow the

procedure contemplated under the Act.

9. The respondents in compliance of the orders issued by this

Court have issued notices to the petitioners and their tenants/lease

holders to submit an explanation specifying the reasons therein that

the rooftop hoardings erected by the petitioners/tenants/lease

holders are dangerous to the persons passing-by/dwelling or working

in the neighborhood and such danger is imminent during heavy

rains. It is stated that some of the petitioners have submitted

explanation to the said notices.

10. Be that as it may, it is to be seen that the respondents have

adhered to the procedure by issuing impugned notices to the

petitioners. The power of the respondents is traceable under Section

297 of the Act. The respondent-board while exercising the said power

has adopted the G.O.Ms.No.68 dated 20.04.2020 issued by the State

Government. The petitioners in this batch of writ petitions have not

questioned the resolution passed by the Board dated 10.05.2023 for

adopting the said G.O. It is not the case of the petitioners that

respondent/State while adopting the policy has shown

discrimination.

11. In the similar circumstances, the Hon'ble Apex Court in

M.C.Mehta vs. Union of India and others 1 observed as follows:

(1998) 1 SCC 363

"It is obvious that every hoarding, other than traffic signs and road signs on the road-sides have to be removed irrespective of its kind; every hoarding irrespective of whether it is on the road-side or not which is hazardous and a disturbance to safe traffic movement so as to adversely affect free and safe flow of traffic is required to be identified by the authorities and promptly removed. Obviously, the hazardous hoarding which is a disturbance to safe traffic movement has to be a hoarding visible to the traffic on the road. No other detail or further guideline is required for appreciating this order and its implementation. Even though the order dated 20.11.1997 was explicit and very clear, yet these further observations are made to leave no one in any doubt of the content and requirement of our order."

12. In Tamil Nadu Outdoor Advertising Association rep. by its

Secretary Thiru vs. Government of Tamil Nadu 2, the Division

Bench of Madras High Court, has expressed its opinion that the

Government has to take stringent action with reference to hoardings

which are endanger to the public safety.

13. In Novva ADS vs. Secretary, Department of Municipal

Administration and Water Supply and another 3, the Hon'ble

Apex Court observed as follows:

"Para 49: The problem can be looked at from another angle. Even if there is no obstruction but there is distraction that is also to be considered. As was considered by this Court in P. Narayan s case (supra) the provisions like appeal and the rules to bring in the principles of natural justice can be pressed into service. That will be a right step to avoid arbitrariness. It has been contended emphatically that private hoardings shall not cause any physical obstruction. But this plea is, as noted above, without any substance. In our view there may not be physical obstruction but it can be hazardous. The right to regulate and control is inherent in exercise of power."

14. In the instant case, admittedly, the respondents have adopted

the policy of the Government and followed the procedure

2001 (2) CTC 103 : 2001 Supreme (Mad) 330

(2008) 8 SCC 42

contemplated under the provisions of the Act. The petitioners

miserably failed to place any evidence that the policy adopted by the

respondent No.2-Board is discriminatory. The regulatory powers

have been conferred on the respondent No.2-Board to prescribe the

size and height of the advertisement hoarding to prevent any

untoward incident and keep the object of the public safety as the

priority. It is a settled principle of law that individual interests will

not prevail over the public interest, especially when regulatory