In the High Court of Judicature at Madras
W.P.No.6913 of 2019
Civil Appeal Nos 9367-9369 of 2011
Chennai Hoardings Association
The Secretary to Government of Tamil Nadu
Date of Judgement
11th March 2020
The Hon'ble Mr.A.P.Sahi, Chief Justice; The Hon'ble Mr.Justice Subramonium Prasad
The Hon’ble High Court of Madras quashes ban on placing hoardings on land not belonging to Municipal Corporation.
Facts of the Case:
- A challenge has been occasioned on account of the phrase “belonging to the Corporation” having been included in the definition clause of hoarding whereby the place on which a hoarding can now exist has to necessarily belong to the Corporation to the exclusion of any private person at large or any other class of land either belonging to the Union or the State Government. We are mentioning this fact as one of the petitions relates to the setting up of hoarding on railway land belonging to the Union Railways where permission has been granted, but on account of the said amendment, the request for grant/renewal of license for setting up of hoarding stands denied to the petitioner.
- The petitioners are running advertising agencies. As the State Government have introduced the Act No.40 of 2018 – Tamil Nadu Municipal Laws (Fifth Amendment) Act, 2018, dated 16.07.2018, to amend the definition of ‘hoarding’ and also to implement certain other changes to Section 410-A under Chapter XIII-A of Coimbatore City Municipal Corporation Act, 1981, pursuant to which, the definition of ‘hoarding’ reads as under,
“(a) “hoarding” means any screen of boards, other than digital banner and placard, at any place, used or intended to be used for exhibiting advertisement, including the frame work or other support, erected, wholly or in part upon or over any land, building, wall or structure, belonging to the Corporation, visible to public wholly or partly.”.
The petitioners have come forward with the present writ petitions stating that the aforesaid amendment has completely taken away the rights of the private advertisers to resort to the business of erecting hoardings.
- It is the grievance of the petitioners that the introduction of the said amendment is a direct curb of every citizen to practice any trade of his choice in as much as it is violative of Article 19(1) (g) of the Constitution of India. Moreover, the amendment to Section 410-A of the Coimbatore City Municipal Corporation Act, 1981, stating that ‘any screen of boards, other than digital banner and placard, at any place, used or intended to be used for exhibiting advertisement, including the frame work or other support, erected, wholly or in part upon or over any land, building, wall or structure, belonging to the Corporation, visible to public wholly or partly’, is also violative of Article 14 of the Constitution of India therefore, the said writ petition.
1. Whether there was a violation of Article 19(1) (a) of the Indian Constitution.
2. Whether the term “belonging to the corporation” is violate of Article 14 of the Indian Constitution.
3. Whether by adopting a law for setting up of hoardings only on Corporation land is the only practical and possible manner of regulation to control hoardings.
Arguments in favor of Petitioners:
The amendment is not only arbitrary and irrational, but has no rational nexus with any object that may be sought to be achieved, in as much the Act itself is inclusive of all provisions including the power to restrict which can be imposed on setting up of hoardings at any particular place. The extent of powers that are available to the Municipal Corporations and Municipal Bodies is sufficient to protect any apprehended hazard or environmental violation or being contrary to the aesthetics or ambience of a town or city.
Arguments in favor of the Respondent’s:
This is not a prohibition and rather it regulates setting up of hoardings only and does not impinge upon the right of any person who is in the trade and business of advertisement. This distinction has to be understood in as much the impugned amendment does not prohibit any advertisement but rather defines only the places where hoardings can be set up for advertisement, which is in consonance with the policy that was adopted after consulting experts and after examining such material that was relevant for the said purpose. He contends that this is not an exercise in haste, nor it has been done without any valid reason, but is an outcome of an exercise that is based on rationality and keeping in view public interest at large.
Therefore, clearly a case where the impugned phrase “belonging to the Corporation” is manifestly arbitrary and violative of Article 14 of the Constitution of India and also impinges upon the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. We, however, do not agree with the argument of the learned counsel for the petitioners that there is a violation of Article 19(1)(a) of the Constitution, in as much as the law which has been brought out and which is under challenge is on setting up of hoardings and not in relation to banning of advertisements.
The words “belonging to the Corporation” occurring in the impugned provisions as notified on 31.1.2019, with effect from 1.2.2019, are struck down. We clarify that the striking down of the said provision will not automatically entitle any private land owner or otherwise to claim a revival of his application for grant of license, until either the Corporation frames appropriate Bye-laws or the substantive provisions in question or the Rules framed thereunder are suitably modified in tune with the guidelines that have already been formulated through the Government Order dated 5.6.2018. This exercise may be concluded by the respondents preferably within one month from today so that the process of licensing or otherwise may not be delayed any further.
Edited by Sree Ramya
Approved & Published – Sakshi Raje