Ads Vs. Secretary, Deptt. of Municipal Administration and Water Su  INSC
611 (9 April 2008)
Dr. ARIJIT PASAYAT & S.H. KAPADIA
(Arising out of SLP ) No. 16286 of 2006) WITH
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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 Act) and the Chennai City Municipal
Corporation (Licensing of Hoardings and Levy and Collection of Advertisement
Tax) Rules, 2003 (in short the Advertisement Rules).
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 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.
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
Constitution). 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 Acquisition Act) 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 obstruction. 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 that hoarding partake the character of commercial
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 Paperss case (supra) it curbs competition and in
Bennett Colemans 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 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
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
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
17. In response, learned counsel for the respondent have 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. Narayans 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 hoardings to mean any screen or
board at any place whether public or private used or intended to be used for
exhibiting advertisements 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 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.
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
"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
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 obstruction 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
38. In Collector of Customs and Central Excise, Bhubneshwar v. Paradip Port
Trust and Another (1990 (4) SCC 250) this Court, construing the expression
appearing in Section 133 of the Customs Act, 1962
has been pleased to hold:
On 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
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
If the subject-matter that is displayed in such hoardings attracts attention
of the drivers of vehicles and which, in turn, impedes free and safe
movement of traffic such a hoarding would clearly come under the meaning
contemplated under Rule 3(iii) of the Rules.
40. It is to be noted that there is certainly some difference between
hazardous and obstruction 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 obstruction 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 No Objection Certificate 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.
Narayans 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
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 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 Thappars
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 Courts order
is clear to the effect that only after enumeration the demolition can be done.
48. It is to be noted that M.C. Mehtas 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:
2. 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.
51. The fact that the hoarding is on building or private land does not take
away the regulatory measures relating to 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.
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