IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) tour,% & '.V THURSDAY ,THE FOURTEENTH DAY OF FEBRUARY * ) f MAR 2019 ! ^ TWO THOUSAND AND NINETEEN ^tA O.N0.33-26-UO.,. / J I, PRESENT
Honourable the acting chief justice c.praveen kuivHL. AND THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY
WRIT PETITION (PIU NO: 365 OF 2018
Between:
Y.V. Murali Krishna S/o Late Seetharamaiah Aged 55 years Occ business R/o H.No.9/386-D1 Sharada Residency Shanti nagar, Gudiwada, Krishna District 521301
... PETITIONER AND
1. The State of Andhra Pradesh,, rep. by its Principal Secretary Municipal Administration and Urban Development Department, Secretariat, at Velagapudi, Amaravathi, Guntur District. 2. The Director of Municipal Administration,, Sri Krishna Enclave, Gorantla, Guntur, Guntur District. 3. The District Collector,, Krishna. 4. The Gudiwada Municipality,, Rep. by its Commissioner, Gudiwada, Krishna District. 5. The Deputy Superintendent of Police,, Gudiwada Division, Gudiwada, Krishna District 6. The Andhra Pradesh, Pollution Control Board, represented by its Member Secretary, Andhra Pradesh. (RR6 is Suo Moto impleaded as per Court Order dated 04/12/2018 in WP. PIL. 365/2018.)
... RESPONDENTS
Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue writ or direction preferably Writ of Mandamus declaring the inaction of the respondents in taking appropriate steps for ensuring that no unauthorized cut outs, flexi boards, banners and posters are displayed on the main roads and main circles and also for immediate removal of the unauthorized flexi boards/cut outs that have been erected within the Gudiwada Municipal limits as illegal, arbitrary and violative of the orders of this Hon'ble High Court in W.P. No.28447/2008 dt.1-6-2015 and consequently direct the respondents to take immediate steps for removal of the unauthorized flexi boards/cut outs.
IA NO: 1 OF 2018
Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to direct the respondent nos. 2 to 5 to forthwith remove the unauthorized flexi boards/cut outs that have been erected on the main roads and main circles of Gudiwada Municipality pending disposal of the Writ Petition (PIL) in the interest of Justice. 41-
Counsel for the PetitionenSRI. MOHAMMED GAYASUDDIN
Counsel for the Respondent Nos. 1 & 2: GP FOR MUNCIPAL ADMN. & URBAN DEV.
Counsel for the Respondent No. 3: GP FOR REVENUE
Counsel for the Respondent No. 4: SRI. NIMMAGADDA VENKATESWARLU, SC FOR MUNICIPALITY
Counsel for the Respondent No. 5: GP FOR HOME
Counsel for the Respondent No. 6: SRI. RAMACHANDRA RAO GURRAM, SC FOR A.P. POLUTION BOARD
The Court made the following: ORDER
a. THE HON BLE THE ACTING CHIEF JUSTICE C. PRAVEEN KUMAR
AND
THE HON BLE SRI JUSTICE M. SATYANARAYANA MURTHY
WRIT PETITION (PIL) No.365 OF 2018
ORDER: (Per Hon'ble Sri Justice M. Satyanarayana Murthy)
Sri Y.V. Murali Krishna, a public spirited person filed this pro
bono litigation under Article 226 of the Constitution of India, to declare the inaction of the respondents in taking appropriate steps for ensuring that no unauthorized cutouts, flexi boards, banners and posters are displayed on the main roads and main circles and immediate removal of the unauthorized flexi boards/cut outs that have been erected within the Gudiwada Municipal limits as illegal and arbitrary and violative of directions issued by the High Court of
Judicature at Hyderabad in W.P.No.28447 of 2008 dated 01.06.2015,
issue direction to remove such Ilex boards etc.
The facts in brief are that, the petitioner is a resident of
Gudiwada Town. Krishna District, he alleged that, in the recent past. hundreds of unauthorized flexi boards/banners are being erected on the main roads of Gudiwada Town. It is submitted that the dividers on the main road, main circles and cross roads are being flooded with unauthorized flexi boards and banners purportedly to which celebrities/politicians on their birthday/festival days etc. Recently several flexi boards/banners have mushroomed at the main circles of
Gudiwada Town i.e. Koganti Rajababaiah Chowk, Nehru Chowk,
Vasavi Chowk. Mudedla Rama Rao Chowk. Market Centre, Gowri
Shankar Talkies Centre, Kothi Bomma Centre and Vegetable Market
Centre, to convey birthday wishes to the Chairman of the Gudiwada
Municipality. It is also contended that, earlier plantations have been 2 HACJ MSM.J WP(PIL)_'365 oP2018
raised on the dividers on the main roads but recently banners have
been affixed even to the plants and due to the use of binding wires for
tying the banners, the plantation is being destroyed. Immediately, the
petitioner submitted a representation dated 23.11.2018 to the
Municipal Commissioner, requesting the officers to immediately
remove the unauthorized flexi boards, etc., as they are causing
inconvenience to the public commuting on the roads and also posing
serious traffic hazards. The petitioner protested before the offices of
the respondents, in order to sensitize them to remove the flexi boards
and also submitted another representation dated 28.11.2018 to the
Deputy Superintendent of Police, Gudiwada in this regard and also
sent whatsapp messages to the Director, Municipal Administration,
but, no positive steps have been taken till date for removal of the
same.
In W.P.No.28447 of 2008, High Court of Judicature at
Hyderabad had taken a serious view of the unregulated erection of
unauthorized llexi boards across the two States of Andhra Pradesh
and Telangana and had issues specific direction to the authorities to
ensure that no unauthorized cutouts, flexi boards, banners and
posters are displayed and that, if any complaint is made by any of the
citizens in this regard, the authorities are directed to take immediate
action for removal of those unauthorized erections. Inspite of the
directions issued by the High Court of Judicature at Hyderabad, the
respondents remained as mute spectators on account of their
patronage with highly placed persons in politics and therefore,
inaction ol the respondents is questioned and sought a direction
stated supra.
•1 3 IIACJ & MSM.J WP(PIL)_365 of 2018
The 4th respondent/Gudiwada Municipality, represented by its
Commissioner tiled counter, denying material allegations, inter alia contending that the 4th respondent is taking steps to remove unauthorized llexes/banners erected in the main roads in Gudiwada
Municipality and also removed unauthorized cutouts in Gudiwada
Munciipality. It is also submitted that, the Municipality initiated action to remove the banners and Ilexes when it noticed that some personnel erected banners and flexes without obtaining permissions from the municipality for birthday celebration function of M.L.A
Gudivada and thereafter, removed the banners/Ilexes pursuant to the orders of High Court of Judicature at Hyderabad in W.P.No.28447 of
2018. It is submitted that, banners/llexi boards have been removed at Koganti Rajababaiah Chowk. Nehru Chowk, Vasavi Chowk. Gowri
Talkies Centre and the Municipality is initiating action to remove the unauthorized boards/banners/flexes at Mudedla Rama Rao Chowk,
Market Centre, Kothi Bomma Centre and Vegetable Market Centre, as the 4[U respondent took action for removal of flexes/banners/cutouts. no further direction need be issued to the respondents and prayed to dismiss the writ petition.
The 4th respondent also filed additional counter, contending that, as per the interim order dated 18.12.2018 of the Court in
W.P.(PIL) No.365 of 2018. the 4th respondent submitted a report to the
Chairman, Mandal Legal Services Authority-cum-XI Additional
District & Sessions Judge, Gudivada listing 25 flexi boards/banners and posters on the main roads within the limits of Gudivada
Municipality. Basing on the above report, this Court directed the Sub-
Divisional Police Officer, Gudivada to remove the flexis in the centres mentioned above and report compliance by 21.12.2018. Accordingly. 4 HACJ & MSM.J WP(PIU 365 ol 2018
three teams were formed to remove the unauthorized advertisement
boards, posters, banners and flexis and the three teams removed 309
unauthorized advertisement boards, posters, banners and flexis in
total, at various places of Gudivada Municipality. It is submitted by
the 4ll‘ respondent in the additional counter that, when the 4Ul
respondent removed the unauthorized advertisement boards, posters,
banners and flexis and also proposed to take action against the
persons responsible for erection of those unauthorized advertisement
boards, posters, banners and flexis in contravention of the Rules.
Photographs pertaining to removal of unauthorized advertisement
boards, posters, banners and flexis, debris and solid waste are filed
along with the additional counter. Copy of proceedings of the
Municipal Commissioner, Gudivada dated 19.12.2018 and press note
are also annexed to the counter affidavit.
The petitioner filed reply to the counter & additional affidavit
reiterating the interim orders passed by the High Court of Judicature
on 18.12.2018, directing the 4th respondent and its officials to get the
list of details of all authorized and unauthorized flexis or any
advertisement, banners etc, erected in the town and further directed
to remove all the unauthorized ones and file compliance of their actions taken by them on 21.12.2018, as such, the 4th respondent filed additional counter on 27.12.2018 with details of action taken by
them in complying the orders of the Court. The petitioner submitted in the reply affidavit stating that the respondents/authorities have not completed the exercise and it is only name sake action, thereby, the violators are erecting the unauthorized flexis, banners in the town again after removal of the same, thereby, the order issued by this
Court was not substantially complied with and no action has taken 5 HACJ & MSM.J WP(PIL)_365 of 2018
place for removal of flexis, banners, cutouts and no penalty was
imposed as per Rule 20 of the Advertisement Tax and Regulation of
Advertisements in Municipalities Rules, 1967 (henceforth ‘the Rules’), and requested this Court to take appropriate steps for levying fine under Rule 20 of the Rules and also requested to take necessary action for treatment of solid waste.
During hearing, learned counsel for the petitioner fairly
conceded that, most of the banners/llexis are removed at the relevant centres as alleged in the petition. But. no action was taken lor
imposing penalty against the persons who erected the
banners/cutouts, flexis etc, strictly adhering to Rule 20 of the Rules
framed thereunder. A report submitted to Chairman, Mandal Legal
Services Authority-cum-XI Additional District & Sessions Judge.
Gudivada is also supporting the same, including the photographs
produced before this Court. Therefore, there is substantial compliance
of interim direction issued by this Court and the
respondents/authorities at relevant centres complained in the writ
petition.
Section 35 of the Andhra Pradesh Municipalities Act, 1965 (‘Act’
for short) deals with vesting of public streets and appurtenances in
the council and according to it, (1) All public streets in any
municipality with the pavements, stones and other materials thereof
and all works, materials and other things provided for such streets.
all sewers, drains, drainage works, tunnels and culverts, whether
made at the cost of the municipal fund or otherwise, in, along-side or
under any street, whether public or private, and all works, materials
and things appertaining thereto shall vest in the council. (2) The
Government may, after consultation with the council, by notification 6 HACJ & MSM.J WP(PIL)_365 of2018
in the Andhra Pradesh Gazette, withdraw any such street, sewer, drain, drainage work, tunnel or culvert from the control of the council.
According to Section 37 of the Act, on and from the date of the commencement of the Act, all vacant lands belonging to or under the control of the Government situated within the local limits of a municipality shall, subject to the provisions of Sub-section (2) and (3) and to such conditions as may be prescribed, be deemed to be in the possession or under the control of the council concerned for purposes of this Act. For the purpose of this section "vacant land" includes a poramboke, donka or kunta. The council shall keep all such vacant lands free from encumbrances and shall restore the possession or control of any such land to the Government free of cost whenever it is required by the Government for lheir use for any public purpose or for purpose of alienation to any person or local authority. The council shall not (a) construct or permit the construction of any building or other structure on any such vacant land: (b) use or permit the use of such vacant land for any permanent purpose; (c) alienate such vacant land to any third party, unless the prior permission of the
Government is obtained by the council therefor, after furnishing such information as the Government may require, including the usefulness of the land or any housing scheme.;
Thus, the public streets and appurtenances, including vacant land belonging to the government situated in the Municipal area are deemed to have vested in the Municipality. Similarly, the vacant lands belonging to the government situated within the municipality to be in possession and control of the Municipality. 7 HACJ & MSM.J WP(PIL)_365 of 2018
The main circles of Gudiwada Town i.e. Koganti Rajababaiah
Chowk. Nehru Chowk. Vasavi Chowk, Mudedla Rama Rao Chowk,
Market Centre. Gowri Talkies Centre, Kothi Bomma Centre and
Vegetable Market Centre, referred in the petition are already vested in the Municipality in terms of Section 35 of the Act and at the same time. Municipality is maintaining the streets for the use of public.
Section 114 of the Act deals with Tax on advertisements.
According to it, every person who erects, exhibits, fixes, or retains upon or over, any land, building, wall, hoarding or structure, any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed. retained or displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions as the council may. with the approval of the Government, by resolution determine:
Provided that the rates shall be subject to the maximum and minimum laid down by the Government in this behalf: Provided further that no tax shall be levied under this section on any advertisement or a notice—
(a) of a public meeting; or
(b) of an election to any legislative body or to the council: or
(c) of a candidature in respect of such an election: Provided also that no such tax shall be levied on any advertisement which is not a sky- sign and which—
(a) is exhibited within the window of any building; or 8 11ACJ & MSM.J WP(PILL365 of 2018
(b) relates to the trade 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 to any sale, entertainment or meeting to be held upon
or in the same; or
(c) 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 of such land or building; or
(d) relates to the business of any railway administration; or
(e) is exhibited within any railway station or upon any wall or other
property of a railway administration except any portion of the surface
of such wall or property fronting any street
Therefore, advertisement to public can be erected with the
permission of the municipality. Advertisements can be made either on
private buildings or on the roads. But, permission for advertisement is
mandatory under Section 115 of the Act to erect such advertisements.
In certain circumstances, permission granted by the Commissioner
under Section 1 15 of the Act shall become void in the following cases:
(a) if the advertisement contravenes any bye-law made by the council
under clause (30) of Section 330;
(b) ii any addition to the advertisement be made except for the
purpose of making it secure under the direction of Municipal
Engineer, or the Commissioner;
(c) it any material change be made in the advertisement or any part
thereof; 9 HACJ & MSM.J WP(PIL)_365 of 2018
(d) if the advertisement or any part thereof falls otherwise than through accident;
(e) if any addition or alteration be made to or in the building, wall or structure upon or over which the advertisement is erected, exhibited. fixed or retained, if such addition or alteration involves the disturbance of the advertisement or any part thereof; and
(1] if the building, wall or structure upon or over which the advertisement is erected, exhibited, fixed or retained, be demolished or destroyed.
The dispute before us is with regard to removal of unauthorized advertisements, banners, ilexis, cutouts etc.
Section 118 of the Act deals with removal of unauthorized advertisements and according to Section 118 of the Act, if any advertisement is erected, exhibited, fixed or retained contrary to the provisions of Section 114 or Section 115 or after the written permission for the erection, exhibition, fixation or retention thereof for any period has expired or become void, the Commissioner may, by notice in writing require the owner or occupier of the land, building. wall, hoarding or structure upon or over which the same is erected. exhibited, fixed or retained, to take down or remove such advertisement or may enter any building, land or property and have the advertisement removed, and the costs thereof shall be recoverable in the same manner as property tax.
In pursuance of Sections 114 to 118 of the Act, Government of
Andhra Pradesh framed the Andhra Pradesh Municipalities
(Advertisement Tax) Rules. 1967 (for short ‘the Rules’), prescribing
Collection of Advertisement Tax and Regulation of Advertisements in 10 HACJ & MSM.J WP(PIL)_365 of 2018
Municipalities (vide G.O.Ms.No.472 Municipal Administration dated
24.07.1967 and G.O.Ms.No.899 M.A. dated 26.11.1969]. Part-I Rule
3 articulates Tax on Advertisements. These Rules fixed certain
guidelines for collection of Advertisement Tax and regulating
advertisements in Municipalities.
Part-II of the Rules deals with Prohibition and Regulation of
Advertisements, consisting of Rules 10 to 20.
Rule 10 permits places for erecting etc., of advertisements and
according to it, the council may, by notification:- (a) prohibit the
erection, exhibition, fixation, retention of display of all or any class of
advertisements in or around any street, heavy traffic points or
important road junctions or public parks or part thereof, in any place
of public resort, place of workshop, historic public buildings including
monuments and in purely residential localities; and (b) regulate the
erection, exhibition, fixation, retention for display of advertisement in
any manner in non-prohibited areas.
Rule 1 1 deals with Advertisement, Hoarding, Cinema and Poster
Boards and according to it, (1) Once a regulated hoarding has been
allowed at any of the approved sites, all subsequent advertisements
shall be required to conform thereto in the matter of size, position
alignment, etc., of their hoardings. (2) The permissible sizes of each
hoarding shall be as under: Size of hoardings (in Metres) Nature of
election (i) 10x4 (ii) 6x3 (iii) 4.5 x 2.5 To be erected in horizontal
length and verticle height (iv) 4 x 2.5 (v) 3 x 2 (vi) 2.5 x 2 provided that
no hoardings of different sizes shall be allowed at any one place. (3)
The lower base or the bottom of a hoarding at an approved site shall
be at a height of not less than 2.44 metres from the surface of the
r 11 HACJ & MSM.J WP(PIL)_365 of 2018
ground below it and it shall be in correct alignment with the other approved hoardings, if any. previously put up on the site. (4) The supports of all such hoardings shall be of steel or other metal ol sound quality timber of about 11.1 11.1 cm. thickness firmly embedded in the ground and suitably painted. (5) Before an advertisement hoarding is permitted to be erected at an approved site, the advertiser shall be required to submit to the Commissioner, a copy of the design showing the sizes, dimensions, etc., of the hoarding and supports, and the design and colour scheme of the matter to be advertised and no advertisement shall be allowed if is not in harmony with the background or offends good taste, public moral etc.
Rule 12 deals with Sign or Signboards. According to it.
(1) No person shall without or otherwise, than in conformity with the terms of a permission granted by the Commissioner retain, place, put
up or fixed or cause or permit to be retained, placed, put up or fixed any sign or signboard, projecting in, on. over or across a public street or any public place.
(2) No sign or signboard shall be retained, placed, put up, fixed, hung or caused or permitted to be retained, placed, put up, fixed or hung:
(a) so as to project in, on, over or across a public street which is
not more than 41/2 metres wide or which has no foot path or
drain or aquaduct under the projection: Provided that sign and
signboards against the face of a building in a portion included
to the face may be allowed if they do not project more than 15
cm. into the street and are atleast 2.44 metres above the metres
above the street level, or at such height as the Commissioner
may from time to time prescribe; or 12 HACJ & MSM.J WP(PIL) .365 of 2018
(b) on, or to or against a projecting or support varandah over a
public street so as to project, in, over or across such street
beyond the footpath appertaining thereto.
Rule 13 dealt with Sky-signs:
(1) The Commissioner may remove any sky-sign or advertisement or order to shift to another site if, in his opinion, such a course is needed to ensure public safety or convenience.
(2) No sky-sign or advertisement, frame, for other contrivance securely fixed to or one the cornice or block course of any wall or to the ridge of a roof or to the screen shall project behind 0.91 metres into the street.
Rule 14 dealt with Neon-Signs: An application for a permit for neon-sign shall accompany a sketch drawn to measurement from the man u factu rers.
According to Rule 15 deals with Advertisements to bear the permit number etc., and,
(1) All the advertisements for which permission has been accorded by the Commissioner in the form prescribed in Annexure II to these rules shall bear the permit number under which and the period for which the display has been permitted.
(2) No person shall deface or cause to be defaced any sign or mark or letter or words put up by the Commissioner or any other officers authorised by him on the advertisements in token of their having been permitted or approved by him and of the tax having been paid thereon. 13 HACJ & MSM.J WP(PIL)_365 of 2018
(3) Advertisements that do not bear the permit number shall be treated as unauthorized and shall be liable for removal.
Thus, it is mandatory that every advertisement shall contain the permit number and the period for which the display has been permitted and if, any advertisement does not bear the permit number, the same shall be treated as unauthorized and shall be liable for removal. It is noticed that this Rule has not been applied by any of the permit holders and those advertisements which are erected strictly not in compliance of Rule 15 of the Rules, shall be removed in view of the deeming provision i.e. Sub-Rule (3) of Rule 15 of the Rules.
Rule 18 further specified about Safety of advertisements.
(1) The Commissioner or any other officer authorised by him may remove any advertisement or sky-sign which, in his opinion has been displayed in contravention of the provisions of the Act, rules or bye laws made thereunder.
(2) The Municipal Council shall not be responsible for the safety of any advertisement displayed on any public street or land. No suit or claim for damages shall lie against the Municipal Council for any loss or damage to and such advertisement or on account of loss damage caused to a third party by such advertisement of sky-sign.
The word “sky-sign" is defined in Explanation II of Section 114 of the Act, meaning advertisement, supported on or attached to any post. pole, standard, frame-work or other support wholly or in part upon or over any land, building, wall or structure, which, or any part of which, shall be visible against the sky from some point in any public place and includes all and every part of any such post, pole. standard, frame-work or other support. The expression "sky-sign” 14 MACJ & MSM.J vVP(P1L)_365 of 2018
shall also include any balloon, parachute or other similar device
employed wholly or in part for the purposes of any advertisement
upon or over any land, building or structure or upon or over any
public place but shall not include—
(a) any flagstaff, pole, vane or weathercock, unless adapted or used
wholly or in part for the purpose of any advertisement: or
(b) any sign or any board, frame or other contrivance securely fixed
to or on the top of the wall or parapet of any building or on the
cornice or blocking course of any wall or to the ridge of a roof:
Provided that such board, frame or other contrivance be of one
continuous face and not open work, and does not extend in height
more than one metre above any part of the wall, or parapet or
ridge, to against or on which it is fixed or supported: or (c) any
advertisement relating 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 of such land or building: or (d) any
advertisement relating exclusively to the business of a railway
administration and placed wholly upon or over any railway, railway
station, yard, platform or station approach belonging to a railway
administration and so placed that it cannot fall into any street or
public place; or (e) any notice of land or building to be sold or let.
placed upon such land or building.
The penalty prescribed under Rule 20 of the Rules, for contravention of any provisions of any of the foregoing rules or fails to
comply with any order or direction lawfully given to him under any of w the said rules shall, in addition to the liability of tax, be punishable
with a fine which may extend up to one hundred rupees. 15 HACJ & MSM.J WP(PIL) 365 of 2018
As seen from the counter and additional counter filed by the 4h respondent, unauthorized advertisements were removed at various centres complained in the petition. But. no penalty was imposed for the simple reason that the person(s) who erected such
Hexies/banners/cutouts by way of advertisements are not identifiable either by name or address and no details were available in the advertisements. It is no doubt a difficult task to the Municipality or its
officials to identify the persons who erected such unauthorized
advertisements of any kind to impose penalty, as permitted under
Rule 20 of the Rules. At the same time, if any penalty is imposed, it will be credited to the exchequer of the Municipality that can be used
for the benefit of the public at large, within the municipal area and
thereby, the public injury complained is remote. Failure to impose
penalty is a clear inaction on the part of the officials concerned. But,
in view of the circumstances stated, it is difficult to impose such
penalty on unidentifiable persons who erected such unauthorized
flexies/banners/cutouts. Therefore, insistence on the Municipality to impose penalty against unidentifiable persons who erected advertisements is nothing but futile direction .
Similar question came up for consideration before the Division
Bench of the High Court of A.P in Trust for Social Justice v. State
of Andhra Pradesh1, the Division Bench of High Court of Andhra
Pradesh at Hyderabad issued a direction to Greater Hyderabad
Municipal Corporation and Commissioner of Police to remove all the
cutouts, banners and sign boards which are erected without
permission of the Greater Hyderabad Municipal Corporation and the
Commissioner of Police shall issue notice to the persons identifiable
1 2015(5) ALD 58 16 HACJ & MSM.J WP(PIL)_365 of 2018
who erected unauthorized cutouts, banners, hoardings, sign boards to remove them at their own cost.
When similar question came up for consideration in K.R.
Ramaswamy @ Traffic Ramaswamy v. The Collector, Chennai
District2, the Madras High Court followed the view of the Supreme
Court in Nowa ADS v. Secretary, Department of Municipal
Administration and Water Supply and others3 and having considered the facts and circumstances, including the suggestions
issued following directions enumerated in paragraph 19 as follows:
“19. Having regard to all these aspects and keeping in view the earlier directions given by the Division Bench in W.P.Nos.7143 of 2006 & other connected matters, we dispose of the present writ petition with the following observations and directions :
(a) Erection of digital banners without appropriate license would attract the provisions of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement 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 any violation, obviously the appropriate authorities can take action in accordance with the provisions contained in the Chennai City Municipal Corporation Act, 1919, the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act. 1982 and the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003.
(b) Since the digital banners are covered under the definition of advertisement' under Section 2(b) of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003, it is obvious that no digital banner can be erected on pavement having a width of less than 10 feet as specifically contemplated in Rule 6(3). So far as the pavements having more than 10 feet are concerned. Rule 6(4) enables the licensing authority to give license for display of advertisement or erection of hoardings including digital banners. However, as contemplated in such rule, it can be erected only parallel to the footpath or road margin and not across the footpath or the road margin. Since the footpaths are primarily meant for the use of pedestrians, the licensing authority, while considering any application under Rule 6(4), has to ensure that no inconvenience is caused to the users of the footpath.
(c) Sections 220 and 226 of the Chennai City Municipal Corporation 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 such permission, the-* Commissioner has to carefully consider the purpose for seeking such permission and has to use his discretion in a proper manner. Even though there is no specific provision
2 W.P.No.14965 of 2007 dated 28.04.2008 3 AIR 2008 SC 2941 17 HACJ & MSM.J WP(PIL)_365 of 2018
under the Chennai City Municipal Corporation Act. it does not mean that those who dig roads, streets or pavements can go scot- free. It is the duty of the appropriate authority to prosecute such violators under the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act. 1982.
(d) The press releases No.558 dated 29.8.2007 and No. 132 dated 21.2.2008 should not be construed as giving universal permission for erection of such banners nor it should be construed that the person shall have right to erect such banners for six days. Since statutory power is given to the Collector, it is for the Collector to decide whether such license should be given and for how many days and the Collector need not feel bogged down by such press releases or the D.O. letter issued by the Chief Secretary. If any digital banner is erected without permission, even temporarily, it is the duty of the concerned authorities to take appropriate action including removal of such unauthorised digital banner as well as launching of prosecution against the violators.
(e) In case of erection of illuminated hoarding or electronic display with the use of electricity, the licensing authority should ensure that there is no pilferage of electric energy and appropriate permission is to be obtained from the State Electricity Board."
In P.S. Ismath Inoon v. The Commissioner, Tirunelveli
Corporation4, the Madras High Court reiterated the same principles laid down in K.R. Ramaswamy @ Traffic Ramaswamy v. The
Collector, Chennai District (referred supra).
In Nowa ADS v. Secretary, Department of Municipal
Administration and Water Supply and others (referred supra), the
Supreme Court had an occasion to deal with the legality of the guidelines framed by the Municipal Corporation to regulate the advertisements under the Madras Municipal Corporation Act and upheld the guidelines laid down by the Municipal Corporation on advertisements, more particularly. Sections 326-A to Section 327-J. which prescribed certain limitations about the signs of such advertisements.
No doubt, the State of Andhra Pradesh issued certain guidelines considering the then prevailing circumstances in 1967. But. after lapse of more than 50 years, there is a lot of change in the type of
4 W.P.(MD) No.2467 of 2011 dated 26.02.2014 20 HACJ & MSM.J WP(PIL)_365 of 2018
solid waste. The 4th respondent contended that, steps were taken to treat the solid waste by entering into contract with M/s. Balaji
Cement Works, Budawada Village, Jaggayyapet Mandal, Krishna
District and a copy of letter dated 23.08.2018 i.e agreement entered by the 4th respondent with Municipality after obtaining permission from A.P. Pollution Control Board for treatment of solid waste is placed on record. Therefore, the solid waste is being treated and no further directions need be issued. However, the 1st and 2nd respondents are directed to take appropriate steps to amend the
Rules, suitable to the present situation to ensure safety to the public and avoid loss to the exchequer of the Municipality or State and continue to endeavour for treatment of solid waste.
It is needless to state that, the unauthorized banners/llexis/cutouts of any kind is allowed to continue, the 4lh respondent shall reap serious consequences that How from such lethargic attitude of its officials for violation of such direction.
The municipality is further directed not to allow any unauthorized banners of any kind, subject to Section 114 to Section
118 of the Act and exceptions contained therein and Rules 15, 16 &
18 of the Rules thereof. The Municipality is directed to continue monitoring of removal of unauthorized Ilexes, banners etc by its subordinates.
In view of our foregoing discussion, there is no need to continuously monitor the proceedings by this Court, as the 4,h respondent removed the unauthorized banners/flexis in substantial compliance of interim direction dated 18.12.2018, as reported by the 21 HACJ & MSM.J WP(PIL)_365 of 2018
4lh respondent and the Chairman, Mandal Legal Services Authority
cum-XI Additional District & Sessions Judge, Gudivada.
Hence, with the above directions, writ petition is disposed of.
Consequently, miscellaneous applications pending if any, shall
stand closed.
Sd/- K. AMMAJJI \ ASSISTANT REGISTRAR i //TRUE COPY//
SECTION OFFICER
One Fair copy to the Hon’ble the Acting Chief Justice C. Praveen Kumar (For His Lordships Kind Perusal)
One Fair copy to the Hon’ble Sri Justice M. Satyanarayana Murthy (For His Lordships Kind Perusal)
To,
1. The Principal Secretary Municipal Administration and Urban Development Department, State of Andhra Pradesh, Secretariat, at Velagapudi, Amaravathi, Guntur District. 2. The Director of Municipal Administration,, Sri Krishna Enclave, Gorantla, Guntur, Guntur District. 3. The District Collector,, Krishna. 4. The Commissioner, Gudiwada Municipality, Gudiwada, Krishna District. 5. The Deputy Superintendent of Police,, Gudiwada Division, Gudiwada, Krishna District ^J^fhe Member Secretary, Pollution Control Board, Andhra Pradesh, Andhra Pradesh. 7. Nine L.R. Copies 8. The Under Secretary, Union of India, Ministry of Law, Justice and Company Affairs, New Delhi. 9. The Secretary, Advocatess Association Library, High Court of A.P. 10. One CC to Sri. Mohammed Gayasuddin, Advocate (OPUC) 11. One CC to Sri. Nimmagadda Venkateswarlu, SC for Municipalities (OPUC) 12. One CC to Sri. Ramachandra Rao Gurram, SC for AP Pollution Board (OPUC) 13.Two CCs to the GP for Municipal Admn. & Urban Dev., High Court of A.P. (OUT) 14. Two CCs to the GP for Revenue, High Court of A.P. (OUT) 15.Two CCs to the GP for Home, High Court of A.P. (OUT) 16.Two CD Copies. HIGH COURT
DATED: 14/02/2019
ORDER
WP(PlL).No.365 of 2018
Disposing of the WP(PIL) Without costs.
23 7^
«r
mmmmsss