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Rex Advertisers Vs. Corporation of the City of Bangalore - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKarnataka High Court
Decided On
Case NumberW.P. Nos. 6078 and 6080 of 1985
Judge
Reported inILR1986KAR2323; 1985(2)KarLJ260
ActsKarnataka Municipal Corporations Act, 1976 - Sections 135 and 138
AppellantRex Advertisers
RespondentCorporation of the City of Bangalore
Appellant AdvocateV.K. Govindarajalu, Adv.
Respondent AdvocateR.C. Castelino, Adv.
Excerpt:
.....is erected, exhibited, fixed or retained to take down or remove such advertisement and for that purpose corporation authority is even empowered to enter any building, land or property, to have the advertisement hoardings removed, dismantled, taken down, spoiled, defaced or screened. this definitely causes injury and loss to the person who has put up the advertisement hoardings. therefore, it is necessary that before such action is taken, an opportunity to show cause and of hearing must be afforded to the person who has put up the advertisement hoardings..... the respondent or its authorised competent officer before decides to remove the advertisement hoardings on the grounds mentioned in section 138 of the act, it is necessary to issue notices to show cause as to why the advertisement..........is erected, exhibited, fixed or retained to take down or remove such advertisement and for that purpose corporation authority is even empowered to enter any building, land or property, to have the advertisement hoardings removed, dismantled, taken down, spoiled, defaced or screened. this definitely causes injury and loss to the person who has put up the advertisement hoardings. therefore, it is necessary that before such an action is taken, an opportunity, to show cause and of hearing must be afforded to the person who has put up the advertisement hoardings. in the instant case, no such notice has been given to the petitioners. of course, it may also be stated here that the impugned note is not issued to the petitioners, but it is issued to the executive engineers of the respondent.....
Judgment:
ORDER

K. A. Swami, J.

1. After service of notice, the respondent-Corporation, has put in appearance through its Standing Counsel Sri R.C. Castelino. The Statement of objections is also filed. Therefore, these petitions are taken up for final disposal.

2. In Writ Petition No. 6078 of 1985 the Note dated 9-4-1985 bearing No. ARO/ADVT/275/78-79 of the Deputy Commissioner (REV), Corporation of City of Bangalore produce as Annexure - 'L' is challenged. In the connected Writ Petition No. 6080 of 1985, the same note which is produced as Annexure 'K' is challenged. Hence, these petitions are disposed of by a common order.

3.1. The petitioners are advertising Agencies. They obtain the land on lease or licence from its owners for the purpose of putting up advertisement hoardings.

3.2. Accordingly, it is the case of the petitioners, that they had obtained certain sites on lease or licence from the respondent and put up the advertisement hoarding thereon.

It is also necessary to mention that on the expiry of the lease or licence of the land the Respondent Corporation initiated the proceedings under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, which went up before the City Civil Judge in M.A. Nos. 10 and 11 of 1981. The learned City Civil Judge has allowed the appeals, remitted the cases to the competent authority to issue fresh notice and dispose of the proceedings in accordance with law. These proceedings are now pending before the Competent Authority. Thus, according to the Respondent, lease or licence granted to the petitioners has expired long back and they have no right to remain in possession of land. This is one aspect of the matter.

In these petitions we are not concerned with the aforesaid proceedings pending before the Competent Authority. Learned Counsel for the Respondent also has made it clear that the proceeding relating to taking possession of the land is being pursued separately under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act 1974.

3.3 In the meanwhile the Respondent is contemplating to take action to remove the advertisement hoardings, put up by the petitioners on the aforesaid lands, the lease or licence pertaining to the same has already expired. It is, in this connection the impugned note Annexure-L is issued by the Deputy Commissioner (REV), Corporation of the City of Bangalore to the Executive Engineers of the Corporation.

4. The contention of Sri V. K. Govindarajulu, Learned Counsel appearing for the petitioners, is that as the lands in question on which the advertisement hoardings are put up by the petitioner have either been leased or licensed to the petitioners by the Respondent for the purpose of putting up the advertisement hoardings. it is not necessary to obtain a separate permission us per Section 135 of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as the Act). On the contrary, it is the contention of the Respondent that the action proposed to be taken is in accordance with the provisions contained in Section 138 of the Act, because the hoardings put, up by the petitioners are unauthorised as no permission from the Commissioner as required by Section 135 of the Act, is obtained at any point of time.

5. In view of the aforesaid contentions the point that arises for consideration in these Writ Petitions is, as to whether in respect of the land belonging to the Corporation leased or licensed to the advertising agency for the purpose of putting up advertisement hoardings, it is necessary to obtain a separate permission for putting up the advertisement hoardings under Section 135 of the Act.

6. It appears to me that it is not possible to accept the contention of Sri Govindarajulu, Learned Counsel for the petitioners. The right of the Respondent to lease the land or grant licence to use it for a particular purpose i.e., for putting up advertisement hoardings, is quite distinct and separate from the statutory liability of the petitioners to seek emission to put up the advertisement hoardings under lection 135 of the Act. If the contention of Sri Govindaajulu, is accepted it will be permissible for the lessees or licensees to put up any type of hoardings which will even be opposed to public morality, sense of modesty, interest of society and State etc. Therefore, in order to protect the interest of the State, Society and the people and institutions and safeguard and also to ensure that advertisement hoardings do not cause harm or injury to any one, permission is necessary. Section 135 of the Act provides that such a permission shall be obtained. Thus even in a case where he land is leased or licenced by the Corporation the permission to put up the advertisement hoardings shall have to be obtained from the Commissioner of the Corporation in respect of each hoarding. The Commissioner has to decide in respect of each hoarding whether permission has to be granted for putting up the same or not on the land leased or licensed for that purpose. Accordingly the contention of Sri Govindarajulu, Learned Counsel for the petitioners, is negatived.

7. If an advertisement hoarding is put up even on the and leased for that purpose, without obtaining permission under Section 135 of the Act, such a hoarding is nothing but an unauthorised hoarding It is contended on behalf of the Respondent that the action that is contemplated pursuant to the impugned note is in respect of the hoardings that are put up without obtaining the permission under Section 135 of the Act.

8. The next question for consideration is, even if it is assumed for the sake of argument that the advertisement hoardings are put up by the petitioners without obtaining the permission as required by Section 135 of the Act, is it permissible to the Respondent to straightaway remove them without affording an opportunity to the petitioners. No doubt, Section 138 of the Act which provides for removing unauthorised hoardings, does not in terms provide for issuing notice and affording an opportunity of hearing before directing the petitioners to take down or remove the advertisement hoardings. It only provides for issuing notice in writing, requiring the owner or occupier of the land, building, wall, hoarding or structure upon or over which the same is erected, exhibited, fixed or retained to take down or remove such advertisement and for that purpose Corporation Authority is even empowered to enter any building, land or property, to have the advertisement hoardings removed, dismantled, taken down, spoiled, defaced or screened. This definitely causes injury and loss to the person who has put up the advertisement hoardings. Therefore, it is necessary that before such an action is taken, an opportunity, to show cause and of hearing must be afforded to the person who has put up the advertisement hoardings. In the Instant case, no such notice has been given to the petitioners. Of course, it may also be stated here that the impugned note is not issued to the petitioners, but it is issued to the Executive Engineers of the respondent for the purpose of taking action in the matter. That being so, it is not necessary to quash the same. However, it is necessary, to make it clear that the Respondent or its authorised Competent Officer before decides to remove the advertisement hoardings in question on the grounds mentioned in Section 138 of the Act, it is necessary to issue notices to the petitioners to show cause as to why the advertisement hoardings put up by them should not be removed as the same are unauthorised and afford an opportunity of hearing.

9. Accordingly, these Writ Petitions are disposed of in the following terms :

i) It is not necessary to quash the impugned note because it is only an official note issued by the Executive Engineers of the Respondent and not a direction to the petitioners to remove the advertisement hoardings.

ii) The respondent or its authorised Competent Officer before decides and directs under Section 138 of the Act, to remove the advertisement hoardings, shall first issue notice to the petitioners to show cause, and if petitioners show cause, afford an opportunity of hearing and then proceed in the matter, in accordance with law.


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