Full Judgment Text
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CASE NO.:
Appeal (civil) 2702 of 2008
PETITIONER:
Novva ADS
RESPONDENT:
Secretary, Deptt. of Municipal Administration and Water Supply and Anr.
DATE OF JUDGMENT: 09/04/2008
BENCH:
Dr. ARIJIT PASAYAT & S.H. KAPADIA
JUDGMENT:
J U D G M E N T
(Arising out of SLP ) No. 16286 of 2006)
WITH
Civil Appeal No. 2715/2008 @ SLP (C) No. 15208/2006
Civil Appeal No. 2574/2008 @ SLP (C) No. 15210/2006
Civil Appeal No. 2575/2008 @ SLP (C) No. 15552/2006
Civil Appeal No. 2576/2008 @ SLP (C) No. 15676/2006
Civil Appeal No. 2577/2008 @ SLP (C) No. 16762/2006
Civil Appeal No. 2580/2008 @ SLP (C) No. 15691/2006
Civil Appeal No. 2581/2008 @ SLP (C) No. 15698/2006
Civil Appeal No. 2582/2008 @ SLP (C) No. 15761/2006
Civil Appeal No. 2583/2008 @ SLP (C) No. 16764/2006
Civil Appeal No. 2584/2008 @ SLP (C) No. 17556/2006
Civil Appeal No. 2585/2008 @ SLP (C) No. 1478/2007
Civil Appeal No. 2623/2008 @ SLP (C) No. 1479/2007
Civil Appeal No. 2624/2008 @ SLP (C) No. 1480/2007
Civil Appeal No. 2625/2008 @ SLP (C) No. 1481/2007
Civil Appeal No. 2626/2008 @ SLP (C) No. 1482/2007
Civil Appeal No. 2628, 2629, 2631, 2632, 2633/2008
@ SLP (C)No. 1483-87/2007
Civil Appeal No. 2634/2008 @ SLP (C) No. 1489/2007
Civil Appeal No. 2635/2008 @ SLP (C) No. 1490/2007
Civil Appeal No.2636/2008 @ SLP (C) No. 1492/2007
Civil Appeal No.2637/2008 @ SLP (C) No. 1493/2007
Civil Appeal No.2638/2008 @ SLP (C) No. 1494/2007
Civil Appeal No.2639/2008 @ SLP (C) No. 1497/2007
Civil Appeal No.2640/2008 @ SLP (C) No. 1499/2007
Writ Petition (C) No. 79/2007
Civil Appeal No.2642/2008 @ SLP (C) No. 4483/2007
Civil Appeal No.2643/2008 @ SLP (C) No. 2534/2007
Civil Appeal No.2644/2008 @ SLP (C) No. 1656/2007
Civil Appeal No.2645/2008 @ SLP (C) No. 1658/2007
Civil Appeal No.2646/2008 @ SLP (C) No. 1660/2007
Civil Appeal No.2647/2008 @ SLP (C) No. 1662/2007
Civil Appeal No.2649/2008 @ SLP (C) No. 4201/2007
Civil Appeal No.2650/2008 @ SLP (C) No. 3488/2007
Civil Appeal Nos.2651, 2652, 2653, 2654/2008
@ SLP (C) Nos. 3490-93/2007
Civil Appeal No.2655/2008 @ SLP (C) No. 2632/2007
Civil Appeal No.2656/2008 @ SLP (C) No. 3494/2007
Civil Appeal No.2657/2008 @ SLP (C) No. 3496/2007
Civil Appeal No.2658/2008 @ SLP (C) No. 3497/2007
Civil Appeal No.2659/2008 @ SLP (C) No. 3499/2007
Civil Appeal No.2660/2008 @ SLP (C) No. 4012/2007
Writ Petition (C) No. 124/2007
Writ Petition (C) No. 134/2007
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Writ Petition (C) No. 158/2007
Writ Petition (C) No. 146/2007
Writ Petition (C) No. 149/2007
Writ Petition (C) No. 151/2007
Writ Petition (C) Nos. 152-53/2007
Writ Petition (C) Nos. 161-62/2007
Civil Appeal No. 2716/2008 @ SLP (C) No.16760/2006
Writ Petition (C) No. 165/2007
Con. Pet. No.5 of 2007 in SLP (C) No.15210/2006
Civil Appeal No.2661/2008 @ SLP (C) No.7515/2007
Civil Appeal Nos.2662, 2663, 2664, 2665, 2666/2008
@ SLP (C) No. 7534-38/2007
Civil Appeal No.2667/2008 @ SLP (C) No. 7543/2007
Civil Appeal No.2668/2008 @ SLP (C) No. 7517/2007
Civil Appeal No.2669/2008 @ SLP (C) No. 7518/2007
Civil Appeal No.2670/2008 @ SLP (C) No. 5665/2007
Civil Appeal No.2671/2008 @ SLP (C) No. 5158/2007
Civil Appeal No.2672/2008 @ SLP (C) No. 5164/2007
Civil Appeal No.2673/2008 @ SLP (C) No. 5957/2007
Civil Appeal No.2675/2008 @ SLP (C) No. 5848/2007
Civil Appeal No.2676/2008 @ SLP (C) No. 7860/2007
Civil Appeal No.2677/2008 @ SLP (C) No. 7801/2007
Civil Appeal No.2678/2008 @ SLP (C) No. 7804/2007
Civil Appeal No.2679/2008 @ SLP (C) No. 9675/2007
Civil Appeal No.2680/2008 @ SLP (C) No. 7056/2007
Civil Appeal No.2681/2008 @ SLP (C) No. 11688/2007
Civil Appeal No.2682/2008 @ SLP (C) No. 1193/2007
Civil Appeal No.2683, 2684, 2685, 2686, 2687/2008
@ SLP (C) No. 1195-1199/2007
Civil Appeal No.2688/2008 @ SLP (C) No. 1200/2007
Civil Appeal No.2689, 2690, 2691, 2692/2008
@ SLP (C) No. 1202-05/2007
Civil Appeal No. 2693/2008 @ SLP (C) No. 14825/2007
Civil Appeal No.2696/2008 @ SLP (C) No. 13517/2007
Civil Appeal No.2697/2008 @ SLP (C) No. 13519/2007
Writ Petition (C) Nos.504/2007, 512/2007, 524/2007,
525/2007, 515/2007, 526/2007
Civil Appeal No.2718/2008 @ SLP (C) No. 19988/2007
Civil Appeal No.2717/2008 @ SLP (C) No. 20187/2007
Dr. ARIJIT PASAYAT, J.
1. Delay condoned.
2. Leave granted in the Special Leave Petitions.
3. Challenge in these appeals and Writ Petitions is to the
judgment delivered by a Division Bench of the Madras High
Court. In the writ petitions, challenge was to validity of
Sections 326A to 326J of the Chennai City Municipal Act,
1919 (in short the \021Act\022) and the Chennai City Municipal
Corporation (Licensing of Hoardings and Levy and Collection of
Advertisement Tax) Rules, 2003 (in short the \021Advertisement
Rules\022).
4. The writ petitions were dismissed by the High Court. But
a Committee was constituted for identifying and enumerating
the places of historical importance or aesthetic value and
popular places of worship in and around the city of Chennai. It
was also directed to oversee the operation of the removal of
illegal and unauthorized hoardings in the city of Chennai. The
Committee was directed to be headed by a retired Judge and
to consist of several other persons. The State Government was
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directed to provide necessary infrastructure and office to the
Committee. The District Collector was directed to remove and
demolish all the unauthorized hoardings which were erected
after the cut off date and in respect of which no application
was made to the District Collector within a period of 8 weeks.
The District Collector and the Tahsildar working in their
respective zones were to be personally responsible for the
removal of unauthorized hoardings in their respective zones.
The Municipal Corporation was directed to extend all
necessary cooperation to the District Collector for removal of
the hoardings in the city. The Commissioner was directed to
supply to the District Collector the necessary equipment and
work force for the purpose of such removal. The Police
Commissioner was also directed to provide adequate police
force to assist the demolition team. The State Government was
directed to appoint two officers not below the rank of District
Collector as Special Officers vested with the necessary powers
of the District Collector to make scrutiny of the applications
pending before the Collector within a period of 4 weeks from
the date of judgment. It was pointed out that no licence was to
be granted and/or renewed in respect of any hoarding which is
not in conformity with the provisions of the Act and the
Advertisement Rules. So far as the applicants who claimed to
be existing hoarding owners, the District Collector/Special
Officer was required to call for the views of the Traffic police
and such views had to be communicated to the District
Collector within a particular period. All the hoardings where
the applications/appeals were dismissed by the authorities
were liable to be removed forthwith and the concerned
authorities to take appropriate steps for the purpose.
5. The District Collector and the Tahsildar were directed to
take immediate steps for recovery of the advertisement tax, the
rent and the penalties from the hoarding owners whether
authorized or unauthorized. The appeals against the decision
of the District Collector/Special Officer were directed to be
disposed of within 60 days as prescribed by the Advertisement
Rules and for that purpose it was suggested that the
Government may consider appointment of one or more officers
at the Secretariat level, exclusively for the purpose.
6. So far as new applications are concerned, it was held
that if the applicant had already constructed a hoarding in
that case hoarding was liable to be removed and demolished
and the applicant was entitled to apply only after such
removal and demolition of hoarding.
7. With reference to Rule 3(i) of the Advertisement Rules it
was held that the plan of the hoarding was to be approved by a
qualified structural Engineer. In case of non removal of
unauthorized or illegal hoardings the District Collector was
directed to initiate prosecution as permissible under the Act.
Direction was also given for demolition and removal of all
hoardings erected on or in front of any places of historical or
aesthetical importance, popular places of worship as enlisted
by the Committee as well as on or in front of the educational
institutions and hospitals and in cases where applications
were made by any hoarding owner within the time prescribed
by this Court applications were to be decided and if the
hoardings were found to be illegal, they were to be removed
without further notice. It was directed that no Civil Court shall
entertain any application against demolition or removal of the
unauthorized hoardings and the writ petitions challenging the
demolition were to be placed before the bench of the Chief
Justice of the High Court.
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8. It was also directed that notwithstanding any order
passed by any Civil Court in the matter the directions given in
the impugned order were to prevail.
9. In support of the appeals, various stands have been
taken by the parties. Primarily it has been submitted that the
Advertisement Rules are violative of Articles 19(1)(a) and
19(1)(b) of the Constitution of India, 1950 (in short the
\021Constitution\022). It was also violative of Article 14 because
private hoardings have been treated equally with public
hoardings, thereby treating unequals with equal. With
reference to the earlier Statute i.e. Tamil Nadu Acquisition of
Hoarding Act, 1985 (in short the \021Acquisition Act\022) it was
submitted that the acquisition of the public or private
property was held to be illegal. With effect from 23.7.1998
amendment was made to the Act and Sections 326-A to 326-I
were introduced. Section 326-B provides for the period of 30
days within which the owners of the hoarding were to apply for
licence. On 5.9.2000 the Act was amended and Section 326-J
was introduced. This provision permitted removal of all
hoardings which are hazardous in nature. Challenge was
made to the same provision. The High Court by order dated
14.10.2001 upheld its validity. It was inter alia held that that
every hoarding which is adjacent to the road is hazardous and
has to be removed and the High Court judgment was affirmed
by this Court with certain modifications by this Court in P.
Narayana Bhat v. State of Tamil Nadu and Ors. (2001 (4) SCC
554). However, all the hoardings are not to be treated as
hazardous. What is hazardous is to be decided. The time
period for making application for licence was fixed. In the year
2003 the Advertisement Rules have been enacted. It is
submitted that the Rules used the expression \021obstruction\022. It
was pointed out that the obstruction refers to physical
obstruction. Challenge is also made to Rule 6 which relates to
the width of the road. There is no forum available for
questioning correctness of the adjudication by the authorities.
In any event it is submitted that the Rules cannot apply to
private sites. Construction of private buildings have been
excluded. It is pointed out that the concept of public order is
being introduced but the same has to be relatable to the
parameters laid down in Dr. Ram Manohar Lohia v. State of
Bihar and Ors. (1966 (1) SCR 709). The public interest is
relatable to Article 19(1)(g) and not Article 19(1)(a). Hoardings
are nothing but material for advertisement. Rule 9 relates to
objectionable hoardings. Placing strong reliance on Tata Press
Ltd. Vs. M.T.N.L. and Ors. (1999 (5) SCC 139) it is contended
that hoarding partake the character of commercial speech.
Reference is also made to the decisions in Sakal Papers (P)
Ltd. And Ors. v. Union of India and Ors. (AIR 1962 SC 305)
and Bennett Coleman and Co. and Ors. v. Union of India and
Ors. (1972 (2) SCC 788) to contend that even if it is conceded
for the sake of arguments that the provisions are regulatory,
they must be relatable to the parameters of Article 19(2). The
regulation results in restriction on use of private land for
advertisement. It is submitted that as was noted in Sakal
Papers\022s case (supra) it curbs competition and in Bennett
Coleman\022s case (supra) there must be sufficient reason to curb
the freedom of speech. Even over-burdensome levy which
affects freedom of speech was held to be unconstitutional.
Reference is also made to Romesh Thappar v The State of
Madras (AIR 1950 SC 124) and Brij Bhushan and Anr. v. The
State of Delhi (AIR 1950 SC 129) to contend that the
restriction can be relatable to public interest and not to public
order. When commercial speech is protected there is no reason
to put restriction on putting hoardings. Public order relates to
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violence and not law and order. The basic difference, it is
submitted, between Articles 19(2) and 19(6) has not been kept
in view. In essence it is submitted that display of information
on hoardings whether it is commerce, political and social is
permitted by Article 19(1)(a) or no restriction can be placed or
right to disseminate information on the purported claim of
preventing obstruction or hazard to movement of traffic which
is not covered by Article 19(2) as public order is not affected.
The statutory rules are exhaustive of the restrictions and
restrictions do not apply to hoardings on a private land. Rules
are discriminatory in applying the same yardstick to public
roads and private properties as the same treats unequals as
equals. Even if Section 326J can be used later, it has to
specify reasons in the show cause notice, has to be disposed
of by the reasoned order after opportunity and the right of
appearance can lead to a decision. It is pointed out that
unsustainable discriminatory approach is adopted in
permitting hoardings of political parties which are certainly
more hazardous. A different yardstick is being adopted and
unguided power is given to the authorities to adopt different
norms.
10. Some of the petitioners have pointed out that there was a
statutory cut off date fixed i.e. 23.7.1998 and the enumeration
was to be done to identify data as to which of the hoardings
existed prior to 23.7.1998 and the applicants may make an
application before the date extended.
11. It is submitted that Rule 6 is absolutely impracticable
because most of the roads are between 15 ft. to 50 ft. category.
A statutory right is made illusory because of the size
restriction. Visibility per se is not hazardous. Rule 10 contains
words which are imprecise and flexible and the listing has not
been done.
12. The statutory intention is to permit hoarding but by
putting unnecessary and unreasonable restrictions the
provisions can be misused.
13. The visibility concept is important. The size as provided
in Rule 6 has no basis to ensure reasonable visibility and
therefore it impeaches the Act.
14. There is no rule to operationalise Section 326B. The Act,
the Advertisement Rules and the form have to be
operationalized as part of the composite scheme. It is pointed
out that right in question claimed by the appellants is a
constitutional right and not statutory right. What is
objectionable is content. It is, by way of clarification,
submitted that content is covered by Article 19(1) (a) as it
covers both antecedent steps and actual display. The content
is not limited to words, colour, picture but also extent, form,
size and placement. While Rule 3(b)(ii) is a pre-censorship
concept, Rule 9 is post censorship. The freedom of speech
relates both to pre and post censorship.
15. The right claimed is a preferred right. While balancing
free speech against restriction, shift of emphasis is to free
speech.
16. In exercise of public power there has to be guided
discretion. In the instant case there is no guided discretion.
The right to regulate being exercised in the instant case is
restrictive and not regulatory.
17. In response, learned counsel for the respondent have
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submitted that the appellants and many like them have
continued litigation frustrating regulation of hoardings in
Chennai. It is submitted that owners of advertisement
hoardings in the city of Chennai have persistently challenged
and resisted the regulation on the erection of hoardings for the
last two decades with the result that even today city of
Chennai presents the most deplorable huge advertisement
hoardings on major roads, which are not only aesthetically
objectionable but are hazardous and dangerous to traffic.
Even after continued failure to get any relief from the Court
the challenge is still continued.
18. Following the directions of this Court in M.C. Mehta v.
Union of India and Ors. (1998 (1) SCC 363), the Tamil Nadu
Legislature introduced the amendment in Section 326J by
Amendment Act 2000. By an amendment, the Commissioner
(later amended to District Collector) was empowered to remove
the existing hoardings which were dangerous and causing
disturbance to safe traffic movement, which adversely affect
free and safe flow of traffic. The provision also empowers the
District Collector to refuse the license for such hazardous and
dangerous hoardings.
19. Earlier challenge was made to the Rules of 1998. Various
contentions were raised before the High Court including
reference to Tata Press case (supra). The High Court rejected
the contention that Section 326A was arbitrary and had laid
down no guidelines. Correctness of the judgment was
questioned including the alleged infringement of Article
19(1)(a). This Court rejected the appeals stating that it was ad
idem with most of the conclusions arrived at by the High
Court in the impugned judgment before it. This Court also
noted that before it very same stands were re-iterated. It was
noted that this Court was inclined to agree with the High
Court that Section 326J was neither ultra vires Article 14 nor
Article 19(1)(a) of the Constitution in view of the decision
given by the High Court. Despite this, the Advertisement Rules
were challenged before the High Court. The High Court
dismissed them subject to modifications.
20. It is to be noted that in P. Narayan\022s case (supra) this
Court had specifically held in concurring with the views of the
High Court that Article 19(1)(a) of the Constitution was not
violative.
21. Section 326A defines \023hoardings\024 to mean \023any screen or
board at any place whether public or private used or intended
to be used for exhibiting advertisements\005\024 Sections 326B to
326J are provisions relating to licensing of hoardings. The Act
requires licences of hoardings; and it requires licences of
hoardings in both public and private places.
22. So far as public places are concerned, the State has a full
right to regulate them, as they vest in the State as trustees for
the public. The State can impose such limitations on the user
of public places as may be necessary to protect the public
generally. (See Saghir Ahmed v. State of U.P. 1955 SCR 707).
23. Hoardings erected on private places also require to be
licensed and regulated as they generally abut on and are
visible on public roads and public places. Hoarding erected on
a private building may obstruct public roads when put up on
private buildings; they may be dangerous to the building and
to the public; they may be hazardous and dangerous to the
smooth flow of traffic by distracting traffic, and their content
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may be obscene or objectionable. It is, therefore, not correct
that hoardings on private places do not require to be regulated
by licensing provisions.
24. Rule 6 of the 2003 Rules put restrictions on the size of
hoardings, on their height, the spacing, etc. and the
requirement of erection on steel frames. Rule 10 restricts the
hoarding to be put on certain places such as educational
institutions, places of worship, hospitals, corners of roads, in
front of places of historical and aesthetic importance.
25. The power to license is not unfettered and is guided by
the above considerations. Under Rule 11 an appeal lies to the
State Government for refusing the grant or renewal of licenses.
Section 326J of the Act empowers the District Collector to
prohibit the erection of hazardous hoardings and hoardings
which are hazardous and a disturbance to the safe traffic
movement so as to adversely affect the free and safe flow of
traffic. The power under Section 326J is not arbitrary as held
by the Supreme Court in M.C. Mehta v. Union of India (1998)
1 SCC 363) on an identical provision relating to case of
hoarding in New Delhi. Any action taken under Section 326 J
must be taken by observing the principles of natural justice
and supported by reasons. An appeal against the order of the
District Collector for action under Section 326J lies to the
State Government under Section 326H. There cannot be a
presumption of misuse of power merely because discretion is
conferred on a public authority for the exercise use of the
power. In Narayana Bhat’s case, this Court has negatived the
contention that the power of the licensing authorities is
arbitrary and unguided.
26. Sections 326A to Section 326H and the 2003 Rules are
made in public interest for the purpose of
(i) Preventing haphazard erection and proliferation of
hoardings in the city.
(ii) For orderly and aesthetic appearance in the city.
(iii) For safety and prevention of hazardous and
dangerous hoardings.
27. Section 326-J of the Act prohibits erection of certain
hoardings which are hazardous. The expression "hazardous"
as an adjective, connotes something that is "risky" or
"dangerous" vide, Blacks Law Dictionary, Eighth Edition, page
736.
28. Section 326-J provides that where the Commissioner is
satisfied that the erection of any hoarding visible to the traffic
on the road is hazardous and disturbance to the safe traffic
movement so as to adversely affect the free and safe flow of
traffic, he shall not grant any licence under Section 326-C.
29. The Commissioner is also empowered to remove any such
hoarding which is erected in contravention of the provisions
thereof.
30. The provisions contained in Rule 3 do not restrict or
control the scope of Section 326-J which operates on a wider
plain. While failure to obtain a no objection certificate in terms
of Rule 3(iii) itself would dis-entitle an applicant for the grant
of a licence to erect a hoarding, Section 326-J, prohibits
erection of hazardous hoardings and also mandates the
Commissioner (now District Collector) not to grant any licence
under Section 326-C in respect of such hoardings. It also
authorizes the Commissioner to order confiscation and
removal of such hoardings which are erected in contravention
of the mandate therein.
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31. A delegated legislation can be declared invalid by the
Court mainly on two grounds firstly that it violates any
provision of the Constitution and secondly it is violative of the
enabling Act. If the delegate which has been given a rule
making authority exceeds its authority and makes any
provision inconsistent with the Act and thus overrides it, it
can be held to be a case of violating the provisions of the
enabling Act but where the enabling Act itself permits ancillary
and subsidiary functions of the legislature to be performed by
the executive as its delegate, the delegated legislation cannot
be held to be in violation of the enabling Act. (See Vide, State
of MP. and another v. Bhola Alias Bhairon Prasad Raghuvanshi
(2003) 3 SCC 1).
32. In St. Johns Teachers Training Institute v. Regional
Director, National Council for Teacher Education and Another
(2003) 3 SCC 321, this Court has held that:
"Delegated legislation permits utilization of
experience and consultation with interests
affected by the practical operation of statutes.
Rules and Regulations made by reason of the
specific power conferred by the Statutes to
make Rules and Regulations establish the
pattern of conduct to be followed. Regulations
are in aid of enforcement of the provisions of
the Statute. The process of legislation by
departmental Regulations saves time and is
intended to deal with local variations and the
power to legislate by statutory instrument in
the form of Rules and Regulations is conferred
by Parliament. The main justification for
delegated legislation is that the legislature
being over burdened and the needs of the
modern day society being complex it can not
possibly foresee every administrative difficulty
that may arise after the Statute has begun to
operate. Delegated legislation fills those
needs".
33. It is well settled that a delegated legislation would have to
be read in the context of the primary statute under which it is
made and, in case of any conflict, it is primary legislation that
will prevail.
34. In ITW Signode India Ltd. v. Collector of Central Excise
(2004) 3 SCC 48) this Court has held as under:
"It is well settled principle of law that in case of
a conflict between a substantive Act and
delegated legislation, the former shall prevail
inasmuch as delegated legislation must be
read in the context of the primary/legislative
Act and not vice versa".
35. The expression \021obstruction\022 means "something that
impedes or hinders". The expression, however, has varied sets
of meaning and is not necessarily confined to physical
obstructions only.
36. It has been held that "Obstructing" the police, includes
anything which makes it more difficult for the police to carry
out their duties and is not confined to mere physical
obstructions, vide Hinchliffe v. Sheldon,(1955) 1 WLR 1203
37. Obstruction has a wider meaning than mere physical
obstruction and it includes tangible and identifiable
obstruction and even a protest is obstructing.
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38. In Collector of Customs and Central Excise,
Bhubneshwar v. Paradip Port Trust and Another (1990 (4)
SCC 250) this Court, construing the expression "obstruction"
appearing in Section 133 of the Customs Act, 1962 has been
pleased to hold:
\023On the authority of Hinchliffe v. Sheldon it
can be said that obstruction is not confined to
physical obstruction and it includes anything
which makes it more difficult for the police or
public servant to carry out their duties.\024
39. The expression ‘obstruction’ in Rule 3(iii) would,
therefore, include any act which impedes the free and safe
movement of the traffic, pedestrians and vehicles. Such an act
may well be, by reason of what is displayed on the hoardings.
If the subject-matter that is displayed in such hoardings
attracts attention of the drivers of vehicles and which, \021in turn,
impedes free and safe movement of traffic such a hoarding
would clearly come under the meaning "obstruction"
contemplated under Rule 3(iii) of the Rules.
40. It is to be noted that there is certainly some difference
between \023hazardous\024 and \023obstruction\024 though there may be
some amount of overlapping. What is hazardous cannot have
definite terms. So in that sense, Legislature had thought it
wise to use the expression \021obstruction\022 so that it can be
brought within manageable standards. The ultimate objective
is safe traffic movement and free and safe flow of traffic.
41. It can be seen in applying Section 326J, the authority
empowered can give \021No Objection Certificate\022 and looking at
the fact situation in a given case say obstruction has been
caused. What is physical distortion or destruction can also be
considered. But the conclusions can be challenged.
42. 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\022s 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.
43. One other thing which needs to be noted is that the
authority is not examining the contents of hoardings, size etc.
The licence is for putting the hoardings. It depends upon the
size and at that stage the question of content does not come
into picture. If it is distraction, the question whether it is
hazardous or creates obstruction comes later.
44. Under Rule 9 the District Collector can suo motu take
action if he finds hoardings to be objectionable. The provisions
appear to be not restrictive but are regulatory. There is no ban
on advertisement hoardings but obstructive and destructive
ones are to be prohibited.
45. The apprehended arbitrariness can be well taken care of.
If show cause notice is issued, it should specify the reasons as
to why the action is proposed to be taken in respect of any
hoarding or hoardings. The principles of natural justice can
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also be complied with if reasons are indicated in the show
cause notice and there is scope for reply to be given.
Thereafter, reasoned adjudication can be made by the
authorities. It goes without saying that objectivity has to be
there, even though initially at the stage of issuing show cause
notice there is subjectivity.
46. Very narrow and stringent limits have been set to
permissible legislative abridgment of the right of free speech
and expression, and this was doubtless due to the realisation
that freedom of speech and of the press lay at the foundation
of all democratic organizations, for without free political
discussion no public education, so essential for the proper
functioning of the processes of popular government, is
possible. A freedom of such amplitude might involve risk of
abuse. But the framers of the Constitution may well have
reflected, with Madison who was "the leading spirit in the
preparation of the First Amendment of the Federal
Constitution," that "it is better to leave a few of its noxious
branches to their luxuriant growth, than, by pruning them
away, to injure the vigour of those yielding the proper fruits" :
[Quoted in Near v. Minnesotta [283 U.S. 607) (Also See
Romesh Thappar\022s case (supra).
47. So far as the question relating to enumeration in Rule 10,
the High Court has taken care of that problem by appointing a
Committee to identify the places, it was submitted that some
of the directions need to be clarified. Though it is conceded
that the directions are not wrong it is submitted that they but
need clarification. It is open to the appellants if so advised to
move the High Court if any clarification is necessary. But in
our view the directions cannot be faulted. It is submitted that
direction No.16 relates to forthwith demolition. It needs no re-
iteration that the High Court\022s order is clear to the effect that
only after enumeration the demolition can be done.
48. It is to be noted that M.C. Mehta\022s judgment (i.e. 1998 (1)
SCC 363) resulted in amendment of the Act. In the said case
the direction given in M.C. Mehta v. Union of India and Ors.
(1997 (8) SCC 770) has been quoted. The Advertisement Rules
in essence constitute a Code for regulating erection of
hoardings and do not deal with content except where it is
found to be obscene or objectionable.
49. There are two tier arrangements in Rule 3 (b). One
relating to NOC by the police and the other the power of the
District Collector to see whether the hoardings fall foul of
Section 326J and was in line with it. It needs no emphasis
that the size is the yardstick and smaller the road the bigger is
the hazard because the unregulated size can lead to chaos.
50. In Saghir Ahmad v. State of U.P. and Ors. (1955 (11) SCR
707) it was held as follows:
\0232. In view of this pronouncement of law, the
State Government, which wanted to have the
exclusive right to operate Road Transport
Services within its territory, sought the
assistance of the Legislature and the U.P. Road
Transport Act (Act II of 1951) was passed and
became law on and from the 10th of February,
1951. It is the constitutional validity of this
enactment which is the subject-matter of
contest in these present proceedings\024.
51. The fact that the hoarding is on building or private land
does not take away the regulatory measures relating to
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hoardings. There can be cases where because of the size and
the height, it can be dangerous to public and also be
hazardous. There is no structural safeguard in respect of such
hoardings. There has to be regulatory measures. As has been
rightly contended by learned counsel for the respondents, the
Act and the Advertisement Rules do not regulate
advertisement. They regulate putting of the hoarding which is
found to be objectionable, destructive or obstructive in
character.
52. It cannot be said that there is infringement of freedom of
speech. The content, effect and the purpose of statute clearly
show that it is not intended to be so.
53. The inevitable result is that the appeals and writ
petitions are without merit and deserve to be dismissed which
we direct.