K.R. Ramaswamy @ Traffic Ramaswamy v. Chennai District

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 28-04-2008CORAMTHE HONOURABLE MR.JUSTICE P.K.MISRAANDTHE HONOURABLE MR.JUSTICE K.K.SASIDHARANW.P.No.14965 of 2007andM.P.No.1 of 2007K.R.Ramaswamy @ Traffic RamaswamyFounder ChairmanTamilnadu Social Works Organization(Regd.755/07)6, Philips StreetFirst Floor, Chennai 600 001... PetitionervsState rep. by1.The Collector Chennai District Rajaji Salai Chennai 600 001.2.The Home Secretary Govt. of Tamilnadu Chennai 600 009.3.The Commissioner, Corporation of Chennai Rippon Building Chennai 600 003.4.The Commissioner of Police Greater Chennai City Egmore, Chennai 600 008... Respondents Writ petition filed under Article 226 of the Constitution ofIndia praying for a writ of mandamus to direct the respondents 1and 2 to ban erection of any Digital Banners in the pavements androadsides or to regulate by collecting Revenue as before underrevenue/Misc/SEC of City Municipal Act 1919 without obstructing themoment of traffic and pedestrian keeping in mind the safety of thepublic movement without risk in the road and pavements of TamilNadu, mainly in Greater Chennai City, at larger interest of public. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner: K.R.Ramasamy @ Traffic Ramasamy Party-in-personFor Respondents: Mr.P.S.Raman Additional Advocate General for Mr.M.Dhandapani Special Government Pleader Mr.T.Mohan Amicus Curiae- - -O R D E R(Order of the Court was made by P.K. MISRA, J)We had earlier heard the petitioner in person and thematter was posted for orders. Today, we have heard the learnedAdditional Advocate General and Mr.T. Mohan, Advocate, who had beenappointed as Amicus Curiae to assist the Court.2. The present writ petition has been filed in publicinterest by the petitioner, who has been expousing such causesparticularly relating to roads and traffic rules and regulations(That is how he has apparently acquired the pre-fix “Traffic”).The petitioner has prayed for issuing a Writ of Mandamus directingthe first and second respondents, namely, the State Government,represented by the Collector, Chennai District, and the HomeSecretary of the Government of Tamil Nadu, to ban erection of anyDigital Banners in the pavements and roadsides. The petitioner hasexpressed the apprehension that because of unregulated erection ofdigital banners, the users of the road face serious inconveniencewhile using the roads and pavements.3. Even though it has not been specifically so stated,the present writ petition has been filed to take follow-up actionin accordance with the judgment of a Division Bench of this Courtin W.P.Nos.7143 of 2006 and other connected matters (K. KANAGARAJv. DISTRICT COLLECTOR, CHENNAI AND OTHERS) disposed of on 10.8.2006(reported in2006(4) MLJ 1033). In the said decision, one of themain questions raised was relating to validity of the Chennai CityMunicipal Corporation Licensing of Hoardings and Levy andCollection of Advertisement Tax Rules, 2003. The Division Benchreferred to the provisions contained in the Chennai City MunicipalCorporation Act, 1919 and the Chennai City Municipal CorporationLicensing of Hoardings and Levy and Collection of Advertisement TaxRules, 2003 and upheld the validity of such rules. While issuingseveral directions as contained in paragraph 26 of the judgment,the Division Bench inter alia directed :-" ... (5)The District Collector is directed toremove and demolish all the unauthorised hoardings, whichhave been erected after the cut-off date and in respectof which no application have been made to the DistrictCollector, within a period of eight weeks. The District https://hcservices.ecourts.gov.in/hcservices/ Collector and the Tahsildar working in their respectivezones shall be personally responsible for the removal ofthe unauthorised hoardings in their respective areas.(6)The Municipal Commissioner shall extend all thenecessary co-operation to the District Collector forremoval of the hoardings in the city. The Commissioneris directed to supply to the District Collector thenecessary equipments and the work force for the purposeof removal of the unauthorised hoardings....(15) In case of non-removal of unauthorised orillegal hoardings and default in payment of rent and tax,the District Collector shall initiate prosecution againstthe hoarding owners in accordance with Section 326(i) ofthe Act."This judgment has been subsequently upheld by the SupremeCourt in the decision reported in 2008(3) MLJ 1058 (SC).4. The respondents were called upon to file a statusreport by order dated 31.1.2008 indicating various steps taken incompliance with the directions of the Division Bench in the abovecase. 5. The respondents have filed a status report.6. During pendency of the writ petition, certainstatements and D.O. letters had been issued, which prima facie gavean impression that such digital banners can be erected for a periodof six days i.e., three days before the event and two days afterthe event. Even in the counter affidavit filed by the DistrictCollector, it was indicated :-"3. It is submitted that as far as Chennai Districtis concerned all the digital banners of Political partiesand Communal Affiliated Groups are ordered to be removedimmediately. Apart from this all the digital hoardingsand even small digital hoardings erected in the median ofHighways are also ordered to be removed. Revenue andCorporation Officials along with Police authorities areremoving all these hoardings.4. With regard to event-related hoardings, theHon'ble Chief Minister has announced that the event-related hoardings may be erected 3 days prior to theevent and two days after the event, subject to such rulesand regulations as applicable."Therefore, the Chief Secretary was specifically called upon byorder dated 3.3.2008 to file affidavit explaining the rationalebehind the two press releases dated 29.8.2007 and 21.2.2008 and theD.O. Letter dated 30.8.2007 in the light of the judgment of theDivision Bench in W.P.Nos.7143 of 2006 & other connected mattersdated 10.8.2006. https://hcservices.ecourts.gov.in/hcservices/

7. An affidavit has been filed explaining the positionthat the aforesaid press releases and the D.O. letter were notmeant for giving permission to erect digital banners for a specificperiod, but were intended to be used as guidelines. As a matter offact, in course of hearing, the learned Addl. Advocate General hasclearly stated that those press releases or the D.O. letter neednot be considered as binding on the statutory authorities dealingwith the matter. 8.While entertaining the writ petition, the respondentshad been directed to file their counter. Subsequently, Mr.T.Mohan, Advocate, was appointed as Amicus Curiae. Learned AmicusCuriae had filed a memo giving certain suggestions.9. The respondents have filed a Memo reflecting the viewsof the Government on the suggestions.10.1 While responding to Suggestion No.1 of the AmicusCuriae to the effect that no digital banners shall be allowed to beerected on the pavements, it has been stated that, "Digitalbanners" is covered under the definition of 'Advertisement' in Rule2(b) of the Chennai City Municipal Corporation Licensing ofHoardings and Levy and Collection of Advertisement Tax Rules, 2003and, therefore, no specific direction is required to be issued.10.2 Rules 6(3) and 6(4) of the Chennai City MunicipalCorporation Licensing of Hoardings and Levy and Collection ofAdvertisement Tax Rules, 2003, being relevant, are extractedhereunder :-"6(3) No hoarding shall be permitted on both sidesof the roads with a footpath of less than ten feet width.In roads with no separate footpath, a minimum of ten feetwidth shall be available between the road margin and thehoarding for use of pedestrians.(4) The hoarding shall be erected only parallel tothe footpath or road and not across the footpath or roadmargin." 10.3 Learned Addl. Advocate General, while reiteratingthe aforesaid position, has submitted that the digital banners canbe erected only in accordance with Rule 6(4) of the Chennai CityMunicipal Corporation Licensing of Hoardings and Levy andCollection of Advertisement Tax Rules, 2003 and not otherwise andobviously action would be taken if there is any infraction.11. Dealing with Suggestion No.2 to maintain roads ingood condition, it has been indicated that Chapter IX of theChennai City Municipal Corporation Act deals with the matter and,therefore, no further clarification or direction is required.12. Regarding Suggestion No.3 to the effect that noperson shall be allowed to dig roads, streets or pavements for https://hcservices.ecourts.gov.in/hcservices/ erecting any digital banner, attention has been drawn to Section226 of the Chennai City Municipal Corporation Act, 1919 prohibitsmaking of holes and causing obstruction in public streets withoutthe permission of the Commissioner.13. Regarding Suggestion No.4 to the effect that anyperson causing damage to the pavement or the public road should bepunished under appropriate legal provisions, it has been submittedby the learned Additional Advocate General that though there is nospecific provision in the Chennai City Municipal Corporation Act,1919 to penalise such persons, the provisions of the Tamil NaduPublic Property (Prevention of Destruction and Loss) Act, 1982could be invoked and obviously the authorities would ensure strictcompliance with such provisions by initiating prosecution wherevernecessary.14. Regarding Suggestion No.5 to the effect that beforegranting license the concerned authority should take intoconsideration the purpose for which the banner has to be erected,it has been stated that license is given only to those hoardingswhich conform to the provisions of the Chennai City MunicipalCorporation Licensing of Hoardings and Levy and Collection ofAdvertisement Tax Rules, 2003 and since discretion is conferred onthe statutory authority, no further direction may be necessary.15. Regarding Suggestion No.6 to the effect that thelicensing authority should consider the width and the size of thepublic road, the level of traffic congestion, the size and the areaoccupied by the banners, the duration for which they have beenpermitted, it has been stated that adequate provision is alreadymade under Rule 6 of the Chennai City Municipal CorporationLicensing of Hoardings and Levy and Collection of Advertisement TaxRules, 2003.16. Regarding Suggestion No.7 to the effect that adistinct complaint cell should be set up to hear complaints, theGovernment has indicated that such suggestion may be accepted andthe Commissioner, Corporation of Chennai, may be directedaccordingly.17. Regarding Suggestion No.8 to the effect thatencroachment check squads should be appointed to remove all theobstructions and encroachments, the Government has responded bystating that the suggestion may be accepted.18. Regarding Suggestion No.9 relating to payment ofcompensation to any person who suffers any injury on account ofobstruction or destruction caused by the digital banners, it hasbeen stated that no such rule is available.19. Having regard to all these aspects and keeping inview the earlier directions given by the Division Bench inW.P.Nos.7143 of 2006 & other connected matters, we dispose of thepresent writ petition with the following observations anddirections :- https://hcservices.ecourts.gov.in/hcservices/ (a) Erection of digital banners without appropriate licensewould attract the provisions of the Chennai City MunicipalCorporation Licensing of Hoardings and Levy and Collection ofAdvertisement Tax Rules, 2003 and no digital banner can be erected,whether for a temporary period or for a more extended period,without license from the appropriate authority. If there is anyviolation, obviously the appropriate authorities can take action inaccordance with the provisions contained in the Chennai CityMunicipal Corporation Act, 1919, the Tamil Nadu Public Property(Prevention of Destruction and Loss) Act,1982 and the Chennai CityMunicipal Corporation Licensing of Hoardings and Levy andCollection of Advertisement Tax Rules, 2003. (b) Since the digital banners are covered under the definitionof 'advertisement' under Section 2(b) of the Chennai City MunicipalCorporation Licensing of Hoardings and Levy and Collection ofAdvertisement Tax Rules, 2003, it is obvious that no digital bannercan be erected on pavement having a width of less than 10 feet asspecifically contemplated in Rule 6(3). So far as the pavementshaving more than 10 feet are concerned, Rule 6(4) enables thelicensing authority to give license for display of advertisement orerection of hoardings including digital banners. However, ascontemplated in such rule, it can be erected only parallel to thefootpath or road margin and not across the footpath or the roadmargin. Since the footpaths are primarily meant for the use ofpedestrians, the licensing authority, while considering anyapplication under Rule 6(4), has to ensure that no inconvenience iscaused to the users of the footpath.(c) Sections 220 and 226 of the Chennai City MunicipalCorporation Act,1919, envisage that no person can dig roads,streets or pavements without the permission of the Commissioner.It is obvious that while considering the question of granting suchpermission, the Commissioner has to carefully consider the purposefor seeking such permission and has to use his discretion in aproper manner. Even though there is no specific provision underthe Chennai City Municipal Corporation Act, it does not mean thatthose who dig roads, streets or pavements can go scot-free. It isthe duty of the appropriate authority to prosecute such violatorsunder the Tamil Nadu Public Property (Prevention of Destruction andLoss) Act, 1982.(d) The press releases No.558 dated 29.8.2007 and No.132 dated21.2.2008 should not be construed as giving universal permissionfor erection of such banners nor it should be construed that theperson shall have right to erect such banners for six days. Sincestatutory power is given to the Collector, it is for the Collectorto decide whether such license should be given and for how manydays and the Collector need not feel bogged down by such pressreleases or the D.O. letter issued by the Chief Secretary. If anydigital banner is erected without permission, even temporarily, itis the duty of the concerned authorities to take appropriate actionincluding removal of such unauthorised digital banner as well aslaunching of prosecution against the violators. https://hcservices.ecourts.gov.in/hcservices/ (e) In case of erection of illuminated hoarding or electronicdisplay with the use of electricity, the licensing authority shouldensure that there is no pilferage of electric energy andappropriate permission is to be obtained from the State ElectricityBoard.20. Apart from the above directions, one another aspectis required to be noted. Learned Amicus Curiae has pointed outthat at times, Poly Vinyl Chloride (P.V.C.) sheets are used, whichmay be harmful to the environment. Since using of such materialsmay be hazardous for the health and environment, appropriateauthority should keep the above aspect in mind while consideringthe question of grant of permission.21. In the result, the writ petition is disposed of,subject to the aforesaid directions. No costs. Consequently, theconnected Miscellaneous Petition is closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. nsv/dpkTo:1.The Collector Chennai District Rajaji Salai Chennai 600 001.2.The Home Secretary Govt. of Tamilnadu Chennai 600 009.3.The Commissioner, Corporation of Chennai Rippon Building Chennai 600 003.4.The Commissioner of Police Greater Chennai City Egmore, Chennai 600 008.+ 2 CC to the Government Pleader SR NO.24942, 18780WP No.14965 of 2007TS {CO}TP/1.9.08.