IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 25TH MARCH 2008 / 5TH CHAITHRA 1930 WP(C).No. 30668 of 2007(A) ----------------------------------------- PETITIONER: --------------------- V.VASANTHAN, PROPRIETOR, NEW LINE COMMUNICATIONS, FLAT NO.48/2410 A2, THANICKAL, ELAMAKARA, ERNAKULAM, KOCHI-682 026. BY ADV. SRI.RAJU JOSEPH RESPONDENTS: ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, THIRUVANANTHAPURAM. 2. THE MUNICIPAL CORPORATION,QUILON, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, MUNICPAL CORPORATION, QUILON. 4. THE EXECUTIVE ENGINEER,PWD (NATIONAL HIGH WAY) DIVISION,KOLLAM. 5. M/S.S&S. ENTERPRISES, FAIZAL CHAMBERS, NEAR KADAVIL COURT,PULLEPADY,ERNAKULAM, KOCHI-682 018. R1 & R4 BY GOVERNMENT PLEADER SRI. K.J.MOHAMMED ANZAR R2 & R3 BY ADV. SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM CORPN. R5 BY ADV. SRI.MURALI PURUSHOTHMAN SRI.DEEPU LAL MOHAN SRI.S.RAMESH BABU,S.C,KOCHI CORPN. SRI.THOMAS ANTONY KALLENPALLY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.30668/2007 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AGREEMENT DTD. 13/03/2006. EXT.P2: COPY OF THE AGREEMENT DTD. 17/06/2006. EXT.P3: COPY OF THE CERTIFICATE ISSUED BY THE 3RD RESPONDENT DTD. 17/07/2006. EXT.P4: COPY OF THE AGREEMENT DTD. 08/08/2006. EXT.P5: COPY OF THE PHOTOGRAPHS. EXT.P6: COPY OF THE RECEIPT DTD. 2/11/2006. EXT.P7: COPY OF THE RECEIPT SHOWING PAYMENT OF ADVERTISEMENT TAX DTD.22/03/2007. EXT.P8: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 3RD RESPONDENT ON 23/03/2007. EXT.P9: COPY OF THE ORDER DTD. 13/04/2007. EXT.P10: COPY OF THE INTERIM ORDER DTD. 02/05/2007. EXT.P11: COPY OF THE ORDER NO.AB1-414/07 DTD. 21/05/2007. EXT.P12: COPY OF THE COURT STATEMENT FILED BY THE 3RD RESPONDENT IN THE WP(C)12830/2007 DTD. 18/06/2007. EXT.P13: COPY OF THE AGREEMENT BETWEEN THE 3RD AND 5TH RESPONDENT DTD. 08/05/2006. EXT.P14: COPY OF THE LETTER NO.DB4-21/05 DTD. 21/07/2007. EXT.P15: COPY OF THE LETTER DTD. 24/07/2007. EXT.P16: COPY OF THE INTERIM ORDER PASSED BY THIS HON'BLE COURT ON 24/08/2007. EXT.P17: COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WP(C) 12830/2007 DTD. 10/09/2007. EXT.P18: COPY OF THE AGREEMENT DTD. 02/07/2002. Kss ..2/- ...2..... WPC.NO.30668/2007 A EXT.P19: COPY OF THE LETTER NO.D5-1277/07 DTD. 14/09/2007. EXT.P20: COPY OF THE AGREEMENT DTD. 17/06/2006. EXT.P21: COPY OF THE AGREEMENT DTD. 08/08/2006. EXT.P22: COPY OF THE AGREEMENT DTD. 13/03/2006. 4TH RESPONDENT'S EXHIBITS: EXT.R4(A): COPY OF NOTIFICATION NO.SO 76(E) DTD. 20/01/05. EXT.R4(B): COPY OF ENDORSEMENT. RESPONDENT'S ANNEXURES: ANNEXURE A: COPY OF THE JUDGMENT REPORTED IN 2005 (1) KLT 121 (VIMAL ARAKKAL V. CORPORATION OF COCHIN) ANNEXURE B: COOPY OF THE JUDGMENT REPORTED IN 2005 (4) KLT 220 (SUGIL V. SADANANDAN) /TRUE COPY/ P.S.TO JUDGE Kss PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 30668 OF 2007 ----------------------------------------------- Dated this the day of March, 2008 J U D G M E N T The petitioner in this writ petition under Article 226 of the Constitution of India, is the Proprietor of M/s. New Line Communication. He is engaged in undertaking beautification works for major cities and towns in Kerala. Construction of Children's Park, Comfort Stations, installation of street lights bus shelter and such other public utility services are said to be part of his works. He submits that considering his experience and expertise in the field,the second respondent Municipal Corporation of Kollam has entrusted with him the work of beautifying the Municipal Beach under its control. His agreement with second respondent in that regard will expire only in the year 2012. Petitioners refer to section 12 of the Kerala High Protection Act, 1999 and submit that all State Highways are properties of the Government of Kerala. Petitioner therefore submitted that a proposal to the 4th respondent viz., Executive Engineer PWD Highway Division Kollam for providing and maintaining road medians for a length of 68 metres in the then State Highway between the Government Guest House, Kollam and small bridge road passing in front of Musaliar Building at Chinnakkada on the basis of space WP(C)N0.30668/07 -2- marketing principle. The proposal was accepted and Ext.P1 agreement was executed between the petitioner and the Public Works Department. On the terms of Ext.P1 petitioner has to carry out the said work and maintain the same for three years from 13th March 2006. Pursuant to Ext.P1 the petitioner paid rent demanded in Ext.P1 and executed the work. Advertisement space was allotted by the petitioner to his various customers. Thereafter another agreement Ext.P2 was executed under which the petitioner had to construct a bus shelter on BOT basis at Taluk Office Junction, Kollam on the side of the State Highway. Ext.P2 as remain in force for five years and one of the conditions was one-third of the advertisement space should be reserved for National Savings etc. on free of cost. After so reserving one-third of the advertisement space the available advertisement space was utilised by the petitioner for various customers after receiving payment from them. A third agreement Ext.P4 was also executed for providing median and handrail in front of Head Post Office, Chinnakkada in skew bridge Vellayittambalam Road at Taluk Office Junction, Kollam having a length of 116 metres. This work was also executed by the petitioner utilising his own funds and advertisement space was allotted by by the petitioner to various WP(C)N0.30668/07 -3- customers of his own receiving payment. Petitioner claims that all these works were executed by him in most beautiful manner spending huge amounts on the expectation that he would be able to recoup the amount during the currency of the contract. Ext.P5 photographs are relied on by the petitioner in this context to prove this claim. Advertisement tax as per section 271 of the Kerala Municipality Act was demanded by the contractor appointed by the Corporation for collection of such tax and the petitioner readily paid the tax and relied on Exts. P6 and P7 receipts in this regard. While so, on the basis of a complaint submitted by the 5th respondent the second respondent Corporation took steps for removing the structures which had been put up by the petitioner on the basis of ExtS.P1, P2 and P4. According to the Corporation, its secretary (R3) and the 5th respondent M/s. S & S Enterprises the Corporation had entered into an agreement with the 5th respondent for lighting certain areas of public streets in the corporation and the State Highway portion passing through the Corporation is also allotted to the 5th respondent. On coming to know that the stand of the Corporation is that they have the power to do so by virtue of Section 316 of the Kerala Municipality Act, 1994 to enter into contract for lighting of even State Highway portions already WP(C)N0.30668/07 -4- covered by the agreement between the petitioner and the 4th respondent. The petitioner submitted Ext.P8 representation before the Corporation. The petitioner since in spite of Ext.P8 it was seen that the Corporation is maintaining their earlier stand and took steps for removal of the structures put up by the petitioner the petitioner filed WP(C). No. 12830/07 before this court. This court passed Ext.P9 interim order allowing the Corporation to collect advertisement tax subject to result of the writ petition. Thereafter the petitioner submitted a representation before the Assistant Executive Engineer, PWD Road Sub Division, Kollam requesting him to enforce the terms of Exts.P1, P2, and P4 agreements. This court considering the request of the petitioner that the above representation be decided by the Assistant Executive Engineer passed Ext.P10 order directing the Assistant Executive Engineer to consider and pass orders on the petitioner's representation. Pursuant to Ext.P10, the Assistant Executive Engineer passed Ext.P11 order categorically finding that the Corporation has no power to remove structures erected by the petitioner since those structures are erected on State Highway which is not vested in the Corporation. In the writ petitioner in which Exts.P5 and P10 orders were passed the third respondent Secretary of Kollam WP(C)N0.30668/07 -5- Corporation filed Ext. P12 counter statement. The 5th respondent also filed a counter affidavit in that writ petition. Through the above counter statement and counter affidavit it was revealed that an agreement had executed between the Corporation and the 5th respondent on the terms of which the 5th respondent was to maintain and upkeep the street lights installed within the territory of Kollam Corporation at his costs and in return permission was given by the Corporation to the 5th respondent for installing advertisement display boards on the lamp posts, traffic islands handrails etc. Ext.P13 is copy of the agreement. When the terms of Ext.P3 are carefully read it will be seen that 5th respondent is getting the entire corporation area for displaying advertisements, free from tax and rent. The only obligation is to maintain the street light required materials are to be supplied by the Kerala State Electricity Board under instructions from the Corporation. After Ext.P11 order issued by the Assistant Executive Engineer by another interim order Ext.P16 this court directed the Secretary of the Corporation to take a decision in the matter of the advertisement displays made by the petitioner. In fact in Ext.P16 the direction of this court was that if the petitioner makes an application under ection 272 of the Municipalities Act before the Secretary of the WP(C)N0.30668/07 -6- Corporation regarding the advertisement in question. The secretary will take a decision in in accordance with law after hearing the petitioner and the 5th respondent. It is also clarified in Ext.P6 that the making of application and passage of orders as directed in Ext.P16 will be without prejudice to the rival contentions. According to the petitioner after Ext.P16 he had discussions with the Secretary and on the basis of the understanding reached between them the writ petition was withdrawn. The understanding was that the portion of the road under National Highway will be executed from the agreement with the 5th respondent and permission will be granted to the petitioner to display advertisements on the National Highway provided if the writ petition will be withdrawn. But once the writ petition was withdrawn as per Ext.P17 judgment the Secretary of the Corporation on a faulty face issued a direction to disfigure the advertisements which petitioner had displayed. In the meanwhile State Highway portions were handed over to the National Highway and therefore agreements were executed between the National Highway authorities through the National Highway administration, viz., the 4th respondent and the petitioner. Ext.P19 letter of the Executive Engineer, National Highway and Exts.P20, P21 and P22 notices of the new agreements executed bay WP(C)N0.30668/07 -7- the petitioner with National Highway Division, Kollam are relied on by the petitioner. The petitioner submits that the sudden change in the attitude of the Secretary of the Corporation believing whose words only the writ petition No.12830/07 was withdrawn by the petitioner astonished him. He has produced Ext.P18 agreement between him and the Corporation regarding the Beach Beautification work. The period of the agreement was for 10 years and only half of the period is over. Petitioner could not even recoup 25% of the expenses he has incurred in connection with the works mentioned in Ext.P18. His work was appreciated by the Corporation authorities as well as by the general public. He is paying advertisement tax also to the Corporation. While so, the Corporation Authorities the Corporation Authorities all of a sudden came to the Beach and threatened the workers of the petitioner and they should quit immediately or else they will be forcibly removed. Third respondent was contacted. He was then told the petitioner that he is not in a position to give any permission as promised earlier regarding display of advertisement boards pursuant to Exts.P1, P2 and P4. Regarding the incidents on the beach he pretended ignorance. The petitioner is convinced that the Corporation has determined to help 5th respondent for reasons best WP(C)N0.30668/07 -8- known to themselves. Sudden change in the attitude of the third respondent also convinced the same. Petitioner is not complying with the directions in Ext.P16 order since no useful purpose will be served by approaching the Corporation under the above circumstances. According to the petitioner the Corporation cannot have any authority over the State Highway or National Highways passing through its area and hence has filed this writ petition seeking the following reliefs: 1. A writ of mandamus or any other writ direction or order directing 2nd and 3rd respondents not to remove the road medians, handrails and bus shelter constructed by the petitioner on the National Highway pursuant to Exts.P1, P2 & P4 agreements and the advertisement display on the same. 2. A declaration that the 2nd and 3rd respondents have no manner of right over National Highways and State Highways passing through the Municipal Corporation and as such no permission contemplated under Section 272 of the Muncipality Act 1994 is required to erect or display advertisements along with National Highway. 3. A declaration that Ext.P13 agreement entered into between the 3rd and 5th respondent will not have any legal force in so far as it dceals with National Highways and State Highways passing through the WP(C)N0.30668/07 -9- Municipal Corporation. 4. A declaration that Section 272 of the Kerala Municipality Act 1994 is void in so far as it gives power to the Municipal Corporation to give or deny permission to erect or display advertisements along the National Highway as ultra vires the legislative power vested with the State Legislature being violative of Article 246 read with Entry 23 of list 1 of 7th schedule to the Constitution of India. Standing counsel for the Corporation has filed a detailed statement. It is contended therein that the writ petition is to be dismissed in limine since the judgment in WP(C).12830/07 which was instituted on the very same cause of action operates as res judicata for any subsequent writ petition. National Highway and State Highways owned by the 4th respondent passes through the corporation and the hoardings erected on those highways are erected within the limits of the corporation. Under section 271 of the Municipalities Act every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding structure in a Municipal area any advertisement or who displays any advertisement public view in any manner whatsoever in any place in such area whether in public or private shall pay on every such advertisement a tax calculated at such WP(C)N0.30668/07 -10- rates and in such manner and subject to such exemptions as the council decides with the approval of the Government. All advertisements without the written permission of the Corporation are prohibited. Rule 3 of the Kerala Municipality (Erection of Arches and Setting up of Advertisement Boards in Public Streets and Public Places) Rules, 1999 contemplates licence from the Municipality by applying the person who erects any type of advertisement on any public space within the municipal area. The definition given under section 2(34) of the Municipalities Act the public street takes in property belonging to the Government also. Therefore irrespective of the fact that whether the road belongs to the National Highway or any private person in the limits of the Corporation, tax is leviable and no advertisement shall be erected, exhibited within the Corporation area without the written permission of the Secretary. The statement goes on repudiate the contention of the petitioner that Section 272 of the Kerala Municipalities Act is void in so far as it gives power to the Corporation to give or deny permission to erect or display advertisement along with National Highway as ultra vires the legislative power of the State Legislature and violative of Article 246 read with entry 23 of list one of 7th schedule. Vires or constitutionality of the Act is to be decided on WP(C)N0.30668/07 -11- grounds of patent illegality inconsistency unreasonableness or arbitrariness. Statement refers to Division Bench decision of this court in Vimal Arackkal v. Corporation of Cochin, 2005(1) KLT 121 and contends that the requirement of permission from the Corporation is mandatory before displaying any advertisement / hoardings in the Corporation limits. The statement goes on refuting the contention raised bay the petitioner that by virtue of Section 207 of the National Highway Act, State Highway or major District Roads do not come under the purview of the Municipalities Act. Purpose and object of Section 207, it is contended, is entirely different. Refuting the contention that the petitioner is entitled to obtain permission from the Corporation that he is ready and willing to pay tax the statement relies on the judgment of this court in Joseph Thomas v. Changanassery Municipality, 2002(2) KLT 6. Permission of the Corporation is required for exhibiting or erecting an advertisement within the area of the local authority. Lastly the statement justifies Corporations agreement with the 5th respondent. It is submitted that the above agreement has been entered upon on such an event when the Corporation has endeavouring to find out a way to overcome the crisis of maintaining street lights in the Corporation area which, in spite of earnest efforts WP(C)N0.30668/07 -12- the Corporation could not provide adequate lights in the Corporation area without complaint. It is submitted that the Corporation came to know about the private participation in Corporation of Cochin in lighting and maintenance of street lights. Corporation also thought about the same device and has taken steps to earmark particular area in the Corporation to 5th respondent for erecting hoardings and to light the entire street lights in the Corporation area. The above agreement has been entered into on the basis of a resolution passed by the Corporation council. The Corporation fetches a revenue gain of more than 20 lakhs by executing the above agreement. Corporation is diligently examining the efficacy of the new device. Petitioner has no right to make any objection against the Corporation in entering into such a venture. Corporation is concerned only with public interest. Public interest will not be served if the petitioner is erecting hoardings. The 5th respondent in his counter affidavit denies the various asseverations of the petitioner and goes to refute the various grounds raised by the petitioner. The 4th respondent Executive Engineer, National Highway Kollam Division has filed a counter affidavit . The above counter affidavit to a considerable extent supports the case of the petitioner. It is submitted therein that as per Municipality Act WP(C)N0.30668/07 -13- 1994 the Municipality or Corporation has every right to impose advertisement tax for the advertisement boards displayed within its jurisdiction. But the ownership over the land is vested with the Executive Engineer who is designated as Highway authority as per the Highway Protection Act, 1999. The Municipality / Corporation has no right to allow structures on PWD roads but only has right to impose tax on the sanctioned display boards. The median, handrails and bus shelter were constructed by the petitioner as per approved drawings of PWD and pursuant agreements validly executed with the public works department. The Government of India by notification No.SO 76 (E) dt. 20-1-2005 entrusted the PWD (NH) Department to develop and maintain the National Highway in the State of Kerala. The Executive Engineer (NH) Kollam has been appointed as Highway Administration. The control of National Highway (land and traffic ) Act 2002, empowers the Highway Administration to exercise such powers and discharge such functions as may be necessary for the upkeep and maintenance of National Highways. The jurisdiction of the 4th respondent takes in the entire stretch of N.H.47 connecting Selem to Kanyakumari (which passage takes in the Kollam corporation area) Ext.R4(a) is copy of above notification and R4(b) is copy of the endorsement made bay the WP(C)N0.30668/07 -14- Chief Engineer, National Highway, Trivandrum. The statement refers to Sections 23, 24(1) and 25 of the Control of National Highways (land and Traffic) Act 2002 and submits that it is the Highway Administration which alone is empowered to lease out or licence out highway lands to others on temporary use. Section 207 of the Municipalities Act empowering vesting of public roads in local bodies cannot apply to public roads coming under the jurisdiction of Highway Administration/Highway authority. The statement goes on to point out that if the local bodies are empowered with control over the National Highways/State Highways it will have far reaching consequences. For each and every development activities on the National Highway, the Highway Administration should seek the prior permission of the concerned local body. Highways are passing through the jurisdiction of numerous local bodies it will be a herculean task to obtain prior permission for such developmental activities. The local bodies including the corporation can collect tax on display boards put up within its jurisdiction. Petitioner had put up median and executed other developmental activities with the prior approval of the Highway Administration and agreement was executed as per Ext.P20, P21 and P22. The 2nd and 3rd respondent have no authority to order removal WP(C)N0.30668/07 -15- of the road median, handrails and bus shelter constructed by the petitioner with the approval from the Municipality The 4th respondent has executed agreement with the writ petitioner with definite conditions and it is the prerogative of the 4th respondent to see that all the conditions are scrupulously followed by the petitioner. A very detailed counter affidavit has been filed by the 5th respondent. It is stated therein that the 5th respondent approached the Kollam Corporation bringing to the notice of that Corporation that the Corporation of Cochin had permitted them to carry out the maintenance work of the entire street lights installed within the territory of Cochin Corporation at their costs for a period of three years commencing from 14-4-2002 and that for enabling them to recoup the expenses incurred by them in connection with the execution of maintenance works of street lights they had been granted the right to install advertisement boards on the street lights installed within the territory of Cochin Corporation. It was in view our our experience and performance in the Cochin Corporation that the council of the Kollam Corporation resolved as resolution No.1 to accept the 5th respondents proposal and to permit them to do the maintenance of entire street lights with the territory of Kollam Corporation. Pursuant WP(C)N0.30668/07 -16- to that, the Secretary of the Kollam Corporation, the third entered into Ext.P13 agreement of licence with the 5th respondent. Fifth respondent refers to Article 243W of the Constitution and points out that as far as the 12th schedule that under that article it is the Municipality's prerogative to perform the functions as are entrusted with them in relation to matters listed in the 12th schedule and that public amenities including street lighting are included as the 17th entry in the 12th schedule. The counter affidavit also refers to section 30(1) of the Municipalities Act and contends that in relation to matters enumerated in the first schedule to the Municipality Act there is absolute vesting with the Municipality and points out that as item No. 15 in the first schedule to the Municipalities Act street lighting and maintenance is included. It is accordingly contended that street lighting and maintenance is the domain of the Municipality alone and this was why resolution No.1 was passed and the 5th respondent was granted permission to do the maintenance work of all the street lights within the territory of the Kollam Corporation. The counter affidavit refers to sections 271, 272, 274 and 275 of the Municipalities Act and provides that on the terms of those sections Municipality has got the right to collect tax on advertisements to prohibit advertisements WP(C)N0.30668/07 -17- without permission of the Secretary and also that the Municipality has got power to remove unauthorised advertisements. Counter affidavit refers to Kerala Municipality (Erection of Arches and Setting up of Advertisement Boards in Public Streets and Public Places) Rules, 1999 and points out that licence from the Corporation is necessary for putting up advertisement boards within the Corporation areas. It is contended that concededly no written permission from the Secretary of the Corporation obtained by the writ petitioner for erecting the advertisement structures. Remittance of advertisement tax to the contractor who has been given the right to collect advertisement tax within the area of the Corporation will not amount to any permission from the Municipality to erect advertisement structures. So long as there is no written permission