Skip to content


Lahori Mal and anr. Vs. New Delhi Municipal Committee and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 3762 of 1993
Judge
Reported in1993IVAD(Delhi)522; 52(1993)DLT395; 1993(27)DRJ635
ActsPunjab Municipal Act, 1911 - Sections 144; Code of Civil Procedure (CPC), 1908 - Order 39, Rule 1
AppellantLahori Mal and anr.
RespondentNew Delhi Municipal Committee and ors.
Advocates: R.C. Chopra and; R.K. Agarwal, Advs
Excerpt:
punjab municipal act 1911 - section 144(n)-regulation-scope of-in respect of advertisements by sign boards etc.-bye law stipulating to obtain prior permission to put up such sign boards-valid-not ultra virus the powers given by statute.; section 188 empowers the committee to frame bye-laws and under clause (n) a bye-law could be framed in order to 'regulate the posting of bills and advertisements, and the positions, size, shape, and style of name-boards, sign-boards and sign-posts'. the word regulate has to be given a wide meaning. regulating the posting of bills and advertisements means that bye-laws can be framed laying down the guidelines with regard to the putting up of the bills and advertisements. by permitting bills and advertisements of a particular size to be erected at..........petition is whether the respondents can impose a ban on the display of hoardings/advertisements, sign-boards and other advertisements within its jurisdiction and whether any prior permission is necessary before the said advertisements are put up.(2) briefly stated the facts are that the petitioners are carrying on the business of advertising and/or are displaying/advertising various products of their customers by placing hoardings/advertisements, sign-boards, neon signs etc. at various sites. some of the sites belong to public undertakings like the railways while hoardings/advertisements are also put at sites owned by private parties.(3) under the provisions of the punjab municipal act, bye-laws relating to control and regulation of advertisements were framed by the new delhi municipal.....
Judgment:

B.N. Kirpal, J.

(1) The question which arises for consideration in this writ petition is whether the respondents can impose a ban on the display of hoardings/advertisements, sign-boards and other advertisements within its jurisdiction and whether any prior permission is necessary before the said advertisements are put up.

(2) Briefly stated the facts are that the petitioners are carrying on the business of advertising and/or are displaying/advertising various products of their customers by placing hoardings/advertisements, sign-boards, neon signs etc. at various sites. Some of the sites belong to public undertakings like the railways while hoardings/advertisements are also put at sites owned by private parties.

(3) Under the provisions of the Punjab Municipal Act, bye-laws relating to control and regulation of advertisements were framed by the New Delhi Municipal Committee vide Notification dated 17th September, 1960. According to the respondents bye-law No.6 thereof required prior permission of the NDMC before any hoarding/advertisement could be put up. The validity of this bye-law was challenged and the learned single Judge of this Court in the case of New Delhi Municipal Committee v. Netar Mohan Prakash Trehan in Rsa 287/61 held that the said bye-law to be ultra virus vide judgment dated 17th September, 1971.

(4) On 23rd July, 1993, the petitioners applied and tendered advertisement tax of Rs.3,000.00 in respect of three sites taken on lease/rent from railway authority and private owners. The petitioners have not been granted any permission to set up those hoardings/advertisements and that is why the present writ petition has been filed in which it is inter alias prayed that the respondents should be restrained from removing, demolishing etc. the hoardings/advertisements set up. The hoardings/advertisements have been set up and, thereforee, the plea of the petitioners is that the respondents should accept the tax and allow the petitioners to fix the displays, hoardings/advertisements etc.

(5) In the counter-affidavit, a preliminary objection has been raised to the effect that fresh bye-laws have been framed and notified vide Notification dated 15/3/1993 published in the Gazette on 25/3/1993 and the petitioners ought of have obtained prior permission from the NDMC before setting up the hoardings/advertisements. It is also submitted by the learned counsel for the respondents that the original bye-law was valid and the decision of the learned single Judge in Netar Mohan Prakash Trehan's case (supra) requires reconsideration.

(6) We will first examine the position in law prior to promulgation of the new bye-laws in 1993. As already stated the original bye-laws were notified vide Notification dated 17th September, 1960. Bye-law Nos.6 and 7 which are relevant for our purposes are as follows:-

'6.No advertisement, as aforesaid shall be erected, exhibited fixed or retained without the written permission of the Secretary, New Delhi Municipal Committee granted in accordance with the bye-laws framed by the New Delhi Municipal Committee from time to time under Section 188(n) of the Punjab Municipal Act, 1911. Provided that no such permission shall be granted by the Secretary for any advertisement the tax in respect of which has not been paid. Provided further that if any advertisement without permission is dismantled, taken down or removed, spoiled, defaced or screened by the Committee as being without permission as aforesaid, or in consequence of a contravention of any of the bye-laws framed by the Committee under Section 188(n) Supra, the Advertisement, tax notwithstanding the said action of the Committee shall be payable up to the date of advertisement is actually dismantled, taken down or defaced or screen removed or spoiled, as aforesaid. The tax shall not be payable on the following categories of advertisements:- (a) Name-boards displayed by the traders on their own premises provided the board is purely a name-board and it does not contain any item of advertisement. (b) Advertisements displayed in Delhi Transport Service, Buses, both inside and outside. (c) Advertisement which relates to a public meeting or to an election to Parliament or the Corporation or to Candidature in respect of such election. (d) Advertisement which is exhibited within the window of any building if the advertisement relates to the trade profession or business carried on in that building. (e) Advertisement which relates to the trade, profession or business carried on within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or any sale, entertainment or meeting to be held on or upon or in the same. Provided that exemption under this item shall apply only to one board displayed by the owner or his agent. (f) Advertisement which relates to the name of the land or building upon or over which the advertisement is exhibited or to the name of the owner or occupier or such land or building. (g) Advertisement which relates to the business of a Railway Administration and is exhibited within any Rly. Station or upon any wall or other property of a Rly. Administration. (h) Advertisement which relates to any activity of the Central Government or the Corporation or other Municipalities and Statutory bodies. 'Explanation:- The word 'advertisement means any word, letter, model, sign, placard, notice device or representation, whether illuminated or not, in the nature of any employed wholly or in part for the purpose of advertisement, announcement or direction.'

(7) BYE-LAW No.6 clearly provides that no advertisement shall be erected, exhibited, fixed or retained without the permission of the Secretary, NDMC. The proviso contains the requirement of payment of tax without which the permission cannot be granted. Bye-law No.7 provides for various types of advertisements in respect of which no tax is payable. What is, however, important is the Explanationn in Bye-law No.7 which defines as to what is the meaning of the word 'advertisement'. It is necessary to lay emphasis on the provisions of bye-law No.7 and the Explanationn inparticular, in view of the fact that the learned single Judge of this Court in Netar Mohan Prakash Trehan's case (supra) struck down bye-law No.6 without taking into consideration the provisions of bye-law No.7. Two reasons seem to have been given by the learned single Judge in holding bye-law No. to be ultra vires. Firstly, it was held that the requirement for asking the permission of the Secretary, NDMC to put up an advertisement cannot come within the concept of 'regulation' and, thereforee, it was not valid bye-law. We find it difficult to agree with this. Section 188empowerstheCommittee to frame bye-laws and under clause (n) a bye-law could be framed in order to 'regulate the posting of bills and advertisements, and the positions, size, shape, and style of name-boards, sign-boards and signposts'. The word regulate has to be given a wide meaning. Regulating the posting of bills and advertisements means that bye-laws can be framed laying down the guidelines with regard to the putting up of the bills and advertisements. By permitting bills and advertisements of a particular size to be erected at specified areas or not to be erected at other areas would amount to regulating the posting of bills and advertisements. The power to regulate would include the power to prevent the haphazard placing of advertisement and for obtaining of the prior permission of the Committee for setting up or erecting of posting of the bills and advertisement. This is precisely what was done by bye-law No.6 and, thereforee, it is difficult for us to conclude that the said bye-law was in excess of the powers contained in Section 188(n).

(8) The second reason given by the learned single Judge for holding the bye-law to be ultra virus is as follows:-

'IN my view the submission of the appellant's counsel to the effect that the bye-law No.6 should be given full effect and that in every case permission of the Secretary of the New Delhi Municipal Committee is required in order to post a bill, advertisement, or to put up a name-board, or sign-board has such disadvantages for the Municipal Committee that it does not deserve to be usefully considered. For example, every shopkeeper and practically every house owner or occupier puts up a name-board, sign-board, etc. It would unnecessarily increase the work of the New Delhi Municipal Committee if every time such an advertisement, bill, sign-board,name-boardetc.,hastobeput,the Secretary to the New Delhi Municipal Committee would be called upon to visit the spot to determine whether the sign-board, name-board, etc., should be put up in the premises. This makes the rule utterly unworkable. The bye-law must thereforee be restricted to cases in which special dispensation is required from the normal regulations concerning bills, advertisements and sign-board etc. If such a limitation is put on bye-law No.6, it will be rendered valid. However, as it now stands, it goes beyond the rule making power specified in Section 188(n) of the Punjab Municipal Act, 1911 and is thereforee rendered ultra vires. It should be the aim of the court to read the bye-law in such a way that it is rendered valid. In order to do so, it is necessary to read the bye-law as one not rendering the advertisement invalid but as merely regulatory concerning the putting up of an advertisement. In other words, bye-law No.6 is merely directory and not mandatory. It has only a regulatory purpose and if an advertisement like the one involved in this appeal is put up without written permission, it is only a breach of regulation i.e., a breach of a directory and not a mandatory provision. This means that the Committee cannot order the Board to be removed merely because of lack of permission but on account of the infringement of some other bye-law regulating the size or position of such advertisement.'

(9) The learned single Judge emphasizes the fact that if the contention of the Committee was accepted then there would be a heavy workload on the Secretary. He would be required to consider applications for setting up of name-boards, sign-boards set up by shopkeepers or house owners and there would be unnecessary increase in the work of the NDMC. With respect, the learned single Judge overlooked the Explanationn to bye-law No.7, which would also be applicable to bye-law No.6 wherein the word advertisement has been defined to mean word, letter, model, sign etc. in the nature of any employed wholly or in part for the purpose of advertisements, announcements or directions. A mere sign-board displayed by a trader outside the shop in the nature of a name-board or a name-plate by a resident would not be regarded as an advertisement within the meaning of the said expression. Informing a person as to where he lives by putting up a sign board or indicating the name of a shop with the help of a small board, for which no tax is payable under bye-law No.7, is not advertisement. Be that as it may, even if it be assumed that every sign-board or name-plate did tantamount to an advertisement that would not render the bye-laws to be ultra virus merely because the result of the same may be an overload of work for the NDMC.

(10) The matter may be looked from another angle. Bye-law No.7 specifies those categories of advertisements in respect of which tax is not payable. Bye-law No.6 required permission to be obtained in respect of those advertisements for which tax has to be paid. The scheme of the respondents is that along with an application for grant of permission, the tax should be paid so that the respondents do not thereafter have to recover the tax. In respect of those types of advertisements for which no tax is to bepaid, the bye-laws did not contemplate the obtaining a permission. In respect of name-boards, sign-boards etc. bye-law No.7 does not require the payment of tax and, as such, those types of sign-boards or advertisements which came within the purview of bye-law No.7 no permission is required under bye-law No.6. Bye-law No.6 and Bye-law No.7 are mutually exclusive. Viewed from this angle,it becomes clear that, irrespective of what may be the meaning of the word 'advertisement', those hoardings/advertisements which require the payment of advertisement tax, can be elected only after getting prior permission under bye-law No.6. With respect thereof we cannot agree with the reasons of the learned single Judge and, in our opinion, Netar Mohan Prakash Trehan's case (supra) was not correctly decided.

(11) In our opinion even under the bye-laws of 1960, except in those categories covered under bye-law No.7, prior permission had to be obtained before setting up of an advertisement.

(12) The next question which arises for consideration is whether the position has undergone a change with the promulgation of the new bye-laws. The answer to the same is in the negative. Bye-law No.3 deals with the regulation of advertisement signs and sub-bye-law I enables the Committee to regulate the size, position etc. of the advertisement material. Sub-bye-law 2 requires an application to be filed in the prescribed form and sub- bye-law 3 gives the power to the Committee to either sanction or refuse to sanction erection, alternation of dispaly of the sign. It is, however, important to note that this sub- bye-laws inter alias provides that within 60 days of receiving of an application if the Committee fails to intimate to the applicant-in writing then the application is deemed to be sanctioned. Sub-bye-law 6 provides for those types of display structures for which no sanction is required from the Committee and this is similar to the old bye-law No-7 of 1960.

(13) These bye-laws, as is evident from the Notification, have been promulgated under Section 188(n) of the Punjab Municipal Act and came into effect on the expiry of six months from the date of the publication in the Delhi Gazette. The bye-laws were published in the Delhi Gazette on 25/3/1993 and, thereforee, as of today, they are in operation. These bye-laws do not appear to us to be in no way ultra virus the. Act and they provide for the regulation of the posting of bills and advertisements and provide for the position, size, shape and style of name-boards, sign-boards and sign-posts. The effect of these bye-laws is the same. Before an hoarding/advertisement is erected, which is of commercial nature and to which the provisions of sub-bye-law 6 are not attracted, prior permission has to be obtained. An application in the prescribed form has to be made, advertisement tax paid and permission obtained. In other words, before an hoarding/advertisement can be erected, two things have to be done namely tax has to be paid in advance and permission obtained.

(14) It has been contended that the sign-boards have been erected after permission has been obtained from the railways or the private parties. This is of no assistance to the petitioners. In order to put up a sign-board, firstly a place is required and secondly permission has to be obtained. The permission from the railways or the private owners only enables an advertiser to be able to use those premises for erection of an advertisement. There requirement of the bye-laws for obtaining prior permission from the NDMC is in no way diluted. The provisions of the new bye-law No.3 and the old bye-law No.6 of 1960 have to be complied with and prior permission obtained. Whether the place of erection of the advertisement has been purchased by the advertiser or taken on lease or license is wholly immaterial as far as the respondent Committee is concerned.

(15) The respondent Committee, in order to effectively regulate the posting of the bills or erection of the advertisements must formulate a policy or a scheme with regard to the places where hoarding/advertisement can be displayed. This, of course, should be made known to the public so that applications are made only with regard to those areas where it is permissible to erect hoardings/advertisements. No city whether it be the capital of the country or a small muffasil town can be allowed to become a jungle of hoardings/advertisements without regard to any esthetic sense or safety of the drivers of vehicles or convenience of the pedestrian. The desire of the advertising agents to make money by taking from their clients or the wish of the advertisers to advertise their products cannot supersede the need for orderly display of advertisement materials. Unfortunately, this is not happening, at least in this city, so far and the Committee shall be duty bound to ensure that the bye-laws are strictly complied with.

(16) The position which emerges from the aforesaid discussion, thereforee, is that even prior to the promulgation of the bye-laws in March 1993, prior permission had to be taken before .such advertisements could be erected. Unfortunately, in view of the aforesaid decision in Netar Mohan Prakash Trehan's case (supra) no such permission was being obtained. We have now held that such permission was required to be obtained and the legal effect of the same would be that all those advertisements, which had been set up without obtaining the permission, were not in accordance with law. The advertisers, however, cannot be, under the circumstances enumerated above, seriously prejudiced. Inasmuch as the law as now explained clearly postulates the requirement of obtaining permission, liberty must be granted to the existing advertisers to try and regularise their advertisements.

(17) We, thereforee, direct the NDMC to make a list of advertisements in the NDMC area which requires permission of being set up. This list should be prepared within one month from today and notices issued to those advertisers and advertising agents, and they should also be pasted outside at sites, requiring the owners of the advertisements/hoardings of the sites to apply to the Committee for grant of permission, if the advertisers want to continue to use the site for advertisement. The NDMC will also publish advertisement in all the leading newspapers in Delhi requiring the existing advertisers to apply for regularisation of and permission for their advertisements/hoardings. This advertisement should also notify the prospective advertisers about the said requirement. This publication of the notice will also be deemed to be a notice to the existing advertisers. Such applications for permission must be filed within one month of the receipt or publication of the notice or pasting of the notice whichever is earlier, and such applications must be disposed of within 60 days of the receipt of the applications. These directions will apply with regard to the existing hoardings/advertisements. Along with application for permission, the requisite fee will have to be paid but the payment of such tax will not amount to the automatic grant of permission and the NDMC will be free to refuse permission if it deems fit and proper.

(18) For those persons who want to set up advertisements/hoardings in future, they will have to comply with the provisions of bye-law No.3 of the 1993 bye-laws and prior permission will have to be obtained before any hoarding/advertisement is set up. If any hoarding is erected without obtaining the necessary permission, the NDMC will be at liberty, and indeed would be duty bound, to demolish the same and no Civil Court shall grant any injunction temporary or otherwise unless and until it is satisfied on the basis of documentary evidence that the requisite prior permission for erecting the advertisements/hoardings has been obtained.

(19) We are informed that a large number of Civil Suits have been filed and injnunctions obtained restraining the respondents from removing the advertisements even though no permission has been obtained. The NDMC shall within two months from today apply to all those Courts who have granted injunction where no permission has been obtained and on such applications being filed, those Courts shall finally dispose of the said applications for vacation of injunction order within a period of three months of the receipt of the application. In this way, we hope the advertisements/hoardings at least in the NDMC area would beregulated.

(20) It is clarified that with regard to those hoardings/advertisements which exist as of today and for which time has been granted to apply for regularisation and permission, the same shall not be removed for a period of four months from today.

(21) This petition is disposed of in the aforesaid terms. There will be no order as to costs. Copy of this order be given dusty to counsel for the parties.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //