Vikas Grover & Ors. v. State of Haryana & Ors.

CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA.

2. 3. Whether Reporters of local papers may be allowed to see the judgment? - Yes Whether to be referred to the reporters or not? - Yes Whether the judgment should be reported in the Digest? - Yes Present: Mr. H.N. Mehtani, Advocate for the petitioners. Ms.Kirti Singh, Deputy Advocate General, Haryana, for respondents No.1 and 2. Mr. Gaurav Singh Hooda, Advocate for respondent No.3. Kanwaljit Singh Ahluwalia, J. (Oral) The present writ petition has been filed with the prayer that the Municipal Authorities, Yamuna Nagar, be restrained from inviting tenders for displaying advertisement by putting hoarding, banners etc. on the private land or building falling within its jurisdiction. It is stated that the act of Municipal Authorities in inviting tenders for displaying the advertisements is not in consonance with Sub Clause (c) of Clause 5 of the Haryana Municipalities Outdoor Advertising Policy, 2010 (hereinafter referred to as “Policy”). Civil Writ Petition No. 8373 of 2010 2 Learned counsel for the petitioners, at the very outset, has submitted that he is not challenging the vires of the Policy, however, he seeks interpretation thereof. He has contended before this Court that on the private land, the Municipal Authorities have no role to play and their act in inviting tenders is not in consonance with the Policy dated

16.2.2010 (Annexure P5). To appreciate the arguments, raised by learned counsel for the petitioners, it will be necessary to notice brief facts of the case. It is the pleaded case of the petitioners that they are in the business of advertisement and after obtaining contracts from various manufacturers, the petitioners have been putting hoarding, banners etc. on the private land even in the residential area, which is the only source of their livelihood. The petitioners are made to bend before the monopolistic attitude of the Municipal Authorities and deprived of their livelihood, which is in violation of Article 19 of the Constitution of India. It is further submitted that prior to 5.5.2008, there was no restriction or requirement for getting a licence for doing the advertisement business viz. displaying the advertisements and the petitioners have been carrying out their business under the name and style of M/s Vimal Advertiser, Yamuna Nagar. At this juncture, it will be necessary to notice the broad features of the Policy. The Policy specifically states that it is not driven by the revenue imperatives but by town/city's development needs. The Municipal Authorities have assumed a role to state that the outdoor hoarding, so permitted, should not cause the traffic hazard and they should support town/city's public service development and enhance its Civil Writ Petition No. 8373 of 2010 3 aesthetics. To give effect to this vowed objective, it was envisaged that no advertisement can be put in the municipal area without its permission. The Policy further states that it will ensure that outdoor advertising should not cause traffic hazard and takes care of traffic control. The Policy further specified that the traffic should not be blocked. The Policy further prescribes self-regulatory control regarding the contents of advertisements. It gives the list of negative advertisements viz. nudity, racial advertisements, advertisements which promotes drugs, alcohol, cigarette and tobacco. It also prohibits advertisements having sexual overtone, advertisements propagating exploitation of the women and child. The list is exhaustive and this Court need not to mention the entire list. However, the above said nature of the advertisement is only noticed as an illustration. It further specified the safety measures which the Advertiser has to take so that by fall or otherwise the big billboard advertisement do not cause any injury. The same is noticed in Clause 3.3 of the Policy. Having specified the whole criteria, the policy further mention how the electricity is to be supplied and conservation of the ecology is to be taken care of. The Policy enumerates the procedure for grant of permission. It is specifically stated therein that the permission, for putting the advertisement on the municipal land/building, shall be granted by inviting tenders for a town/city as a whole. After the tenders are awarded, the Advertiser is left to opt for the location where the advertisement is to be put. In case the advertisement is to be put on a private land or building, the Advertising Agency is bound to obtain written permission of the land owner or the person who is legally authorized to accord such permission. It will be Civil Writ Petition No. 8373 of 2010 4 necessary to notice Clause 5(c) of the Policy upon which learned counsel for the petitioners has laid much emphasis. The same reads as under:- “...5(c) for putting of advertisement on private land or building, the agency shall obtain written permission from the land owner or the person legally authorized to accord such permission...” Learned counsel for the petitioners, interpreting Clause 5(c) of the Policy, has submitted that once he has to obtain permission of the private land owner, then there is no necessity for him to participate in the tenders and the Municipal Authorities have no role to play as such, therefore, inviting of tenders should be held as bad. The sovereign function to maintain the lands and areas is vested in the Municipal Authorities. The Municipal Authorities have to regulate its aesthetics, ensure cleanliness and smooth flow of the traffic. They not only act as regulators but preservers too. For putting the advertisement, they can prescribe a licence fee for discharge of the above functions. To grant the licence, process of auction/tender is the most transparent and accountable procedure. Once the licence fee is paid, right to advertisement is granted to the Advertiser. He has to pay for use of the land in whomsoever it vests, be it private owner or State or any authority. The payment for use of the land is nothing to do with the licence fee which one has to pay to the Municipal Authorities by way of auction/tender. If the advertisement is to be put on the Government land or on the private land, the owner of the land is to be paid user charges. The second argument raised that the act of the Municipal Civil Writ Petition No. 8373 of 2010 5 Authorities is violative of Article 19 of the Constitution of India, cannot be upheld. The right to livelihood is subject to some reasonable restrictions imposed by the Authorities. Since securing life of the individual is a prime duty of the State, therefore, the management of the traffic is its necessary function. If this objective is to be achieved, the right of livelihood of the individual must give weigh to the larger interest of the Society. Hence, there is no merit in the present writ petition and the same is hereby dismissed, with no orders as to cost. December 1, 2010 “DK” (Kanwaljit Singh Ahluwalia) Judge