IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28.06.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.29239, 26051 and 26821 of 2010, 113, 114 and 10601 of 2011 and M.P.Nos.1,1 and 1 of 2010, 1,1 and 1 of 2011 M/s.Adview, rep by its Partner, Mr.K.Chandrasekaran, No.70-A, Kodambakkam Road, West Saidapet, Chennai-600 015. .. Petitioner in W.P.No.29239 of 2010 Tamil Nadu Wall Painting Advertisers Association, rep by its Secretary A.K.Hemachandran No.65,Anjugam Nagar 3rd Street, Ashok Nagar, Chennai-600 083. .. Petitioner in W.P.No.26051 of 2010 M/s.Focus Media, rep by its Partner, Mrs.K.Ramya 65,Anjugam Nagar 3rd Street, Ashok Nagar, Chennai-600 083. .. Petitioner in W.P.Nos.26821 of 2010 and 10601 of 2011 M/s.Supreme Publicities, rep by its Proprietor Mr.Madan Mohan Agarwal, No.11/4, 14th Street, Nandanam Extension, Chennai-600 035. .. Petitioner in W.P.No.113 of 2011 M/s.Mohan Ads, rep by its Proprietor Mr.Madan Mohan Agarwal, No.11/4, 14th Street, Nandanam Extension, Chennai-600 035. .. Petitioner in W.P.No.114 of 2011 Vs. 1.Government of Tamil Nadu, rep by its Secretary, MA&WS Department, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.The Commissioner, Corporation of Chennai, Chennai-600 003. 3.The Commissioner of Police, Egmore, Chennai-600 008. .. Respondents in W.P.Nos.29239, 26051, 26821 of 2010 and 113 and 114 of 2011 1.Government of Tamil Nadu, rep by its Secretary, MA&WS Department (Municipal Administration and Water Sewerage), Chennai-600 009. 2.The Collector, Kancheepuram District, Kancheepuram. 3.The Collector, Thiruvallur District, Thiruvallur. 4.The Commissioner of Police, Suburban Commissionerate, Chennai-600 016. .. Respondents in W.P.No.10601 of 2011 W.P.No.29239 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent not to interfere with advertisement through digital flex pasted in the walls of the Railway buildings or wall writing/painting in the walls of the Railway buildings in the city of Chennai belonging to the petitioner firm. W.P.No.26051 of 2010 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent not to interfere with the right of the members of the petitioner association to carry on their advertisement business through digital flex or wall writing or painting in the wall of the private buildings in the city of Chennai. W.P.No.26821/2010 : Praying to issue a Writ of Mandamus directing the 2nd respondent not to interfere with the right of the members of the petitioner to carry on their advertisement business through digital flex pasted in the wall of the private land owners building for displaying advertisement or wall writing/painting in the walls of the private land owners building belonging to the petitioner in the city of Chennai. https://hcservices.ecourts.gov.in/hcservices/ W.P.Nos.113 and 114 of 2011 have been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the second respondent not to interfre with the right of the petitioners company to carry on their advertisement business through digital flex vinyl sheets pasted in the walls of the private land owners building for displaying advertisement or wall writing/painting in the walls of the private land owners building belonging to the petitioner company in the City of Chennai. W.P.No.10601 of 2011 has been preferred under Article 226 of the Constitution of India praying for the issue of a writ of mandamus to direct the respondents 2 to 4 not to interfere with the right of the petitioner to carry on their advertisement business through digital fix or wall writing or painting in the wall of private buildings in Kancheepuram and Thiruvallur District. For Petitioners : Mr.B.S.Gnanadesikan, SC for M/s.B.S.G.Firm in all writ petitions For Respondents : Mr.V.Bharathidasan for R-2 in W.P.Nos.29239, 26051 and 26821 of 2010, 113 and 114 of 2011 Mr.R.Ravichandran, AGP for RR1 and 3 in W.P.Nos.29239, 26051 and 26821 of 2010, 113 and 114 of 2011 for respondents 1 to 4 in WP.10601/2011 COMMON ORDER Heard the arguments of Mr.B.S.Gnanadesikan, learned Senior Counsel appearing for M/s.B.S.G.Firm for petitioners, Mr.R.Ravichandran, learned Additional Government Pleader and Mr.V.Bharathidasan, learned cousnel for Corporation of Chennai. 2.In W.P.No.29239 of 2010, the petitioner is the advertising agency. They sought for a direction to the second respondent Corporation of Chennai not to interfre with the advertisements through digital flx pasted in the walls of the Railway buildings or wall writing/painting in the walls of the Railway buildings in the city of Chennai belonging to the petitioner firm. In that writ petition, after ordering notice, status quo was grantd for a limited period and the same was extended from time to time. 3.In W.P.No.26051 of 2010, the petitioner is the association of Wall Painting Advertisers represented by its Secretary. In other writ petitions, the petitioners are all different advertising agencies who have come before this court. In all these writ petitions, the action of the second respondent Corporation of Chennai and in W.P.No.10601 of 2011, the action of the District Collector, Kancheepuram and the District Collector, Thiruvallur in interfering with the right of the members of the https://hcservices.ecourts.gov.in/hcservices/ petitioners' association or the petitioner themselves from carrying out their advertisement business through digital flex or wall writing or painting in the walls of the private buildings in the city of Chennai was under question. In those cases also, this court had granted interim ordrs. 4.The learned Senior Counsel had stated that the petitioners have been carrying on lawful business. In case of railways, they were permitted by railways to use their walls. However, suddenly the officials of the Corporation had startd preventing the petitioners from advertising in the walls. The news along with photographs were widely published in the newspapers. In one such photograph, Mayor of the Chennai was found along with other persons when the advertisement was removed. It is stated by the petitioners that the action of the respondents was contrary to the provisions of the Tamil Nadu Ooen Places (Prevention of Disfigurment) Act, 1959. The Corporation has no power under the said Act to prevent the wall wiring in any place. Under the said enactment, it is the police who can prosecute before the competent court. The action of the petitioners are protected by freedom of speech guaranteed under Article 19(1)(a) of the Constitution of India. Even if the corporation for some reason wants to prohibit them, they can do so only after getting an opinion of the Transport Committee. In the 1959 Act, there is no provision for getting permission for the pasting of digital flex board in private places. Therefore, the action of the respondents should be interfered with. 5.However, Mr.V.Bharathidasan, learned counsel for the Corporation of Chennai stated that there is no cause of action for the petitioners to rush to this court by filig writ petitions. The Corporation is not taking action as alleged by the petitioners in any event, not in terms of Tamil Nadu Open Places (Prevention of Disfigurment) Act, 1959. It is only in case where the police lodged the complaint, the action is contemplated under the 1959 Act. It is not only as if that is the only Act applicable. In fact the entire issue relating to putting up hoardings came to be considered by a division bench of this court presided by A.P.Shah, C.J. (as he then was) in W.P.No.19057 of 2003 and batch cases, dated 10.8.2006. 6.The matter was taken to the Supreme Court. The Supreme Court had rejected the appeal filed by an advertising agency in Novva Ads Vs. Secretary, Department of Municipal Administration and Water Supply and another reported in (2008) 8 SCC 42. In that judgment, the relevant provision found in Chapter XII-A under the Chennai City Municipal Corporation Act, 1919 came to be considered. The term "hoarding" is defined under Section 326-A which reads as follows: "326-A. Difinition.-In this Chapter, “hoarding” means any screen of boards at any place, whether public or private 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, visible to public wholly or partly." https://hcservices.ecourts.gov.in/hcservices/ 7.The said Chapter regulates as well as prohibites erection of hoardings in both public and private places. Further, it is necessary to refer to the following passages found in paragraphs 28,29,30,33,35,36,42,43,44,46,49,51,58 and 59 from the judgment of the Supreme Court found in Novva Ads case (cited supra) which reads as follows: 28.Section 326-A 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 326-B to 326-J 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. 29.So far as public places are concerned, the State has a full right to regulate them, as they vest in the State as trustee 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 Ahmad v. State of U.P.9) 30.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. Hoardings 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. 33.Sections 326-A to Section 326-H 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 of the city. (iii) For safety and prevention of hazardous and dangerous hoardings. 35.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. 36.The Commissioner is also empowered to remove any such hoarding which is erected in contravention of the provisions thereof. 42.The expression “obstruction” means “something that impedes or hinders”. The expression, however, has https://hcservices.ecourts.gov.in/hcservices/ varied sets of meaning and is not necessarily confined to physical obstructions only. 43.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. Sheldon13. 44.Obstruction has a wider meaning than mere physical obstruction and it includes tangible and identifiable obstruction and even a protest is obstructing. 46.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 hoardings. 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 of “obstruction” contemplated under Rule 3(iii) of the Rules. 49.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. Narayana case1 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. 51.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. 58.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 up of any hoarding which is found to be objectionable, https://hcservices.ecourts.gov.in/hcservices/ destructive or obstructive in character. 59.It cannot be said that there is infringement of freedom of speech. The content, effect and the purpose of the statute clearly show that it is not intended to be so. 8.If it is seen in the above angle, the contentions raised by the petitioners cannot be accepted. Even a digital flex pasted on the wall or the wall writing or painting either in the buildings of the Central Government or in any private buildings are also covered by the provisions of the Chennai City Municipal Corporation Act, 1919. It cannot be said that the Corporation lacks totally any power in dealing with the same. 9.The exemption with regard to the property of the Union of India from the levy of State tax found in Section 285 will only relate to tax to be levied and not for observations of others municipal laws. Since Chapter XII-A was upheld by this court and confirmed by the Supreme Court, the writ petitions are devoid of merits and miscoceived. Accordingly, all writ petitions will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar vvk To 1.The Secretary, Government of Tamil Nadu, MA&WS Department, Chennai-600 009. 2.The Commissioner, Corporation of Chennai, Chennai-600 003. 3.The Commissioner of Police, Egmore, Chennai-600 008. 4.The Collector, Kancheepuram District, Kancheepuram. 5.The Collector, Thiruvallur District, Thiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 6.The Commissioner of Police, Suburban Commissionerate, Chennai-600 016. 1 cc To M/s.B.S.G.Firm, Advocate, SR.38147. W.P.NOs.29239, 26051 and 26821 of 2010, 113, 114 and 10601 of 2011 PKB(CO) RVL 12.07.2011 https://hcservices.ecourts.gov.in/hcservices/