2I &8 $-* IN THE HIGH COURT OF DELHI AT NEW DELHI 2l+ W.P.(C) 340812010 & CM No.6843/2010 (for interim relief) LALIT KUMAR ..... Petitioner Through: Mr. Raj K. Mittal & Mr. Nitin Mittal, Advocates. Versus " TITNICIPAL coRPo*fiIl".ff 3i:#tfl*)fu; *"'oo'dents AND 8+ W.P.(C) 2081/2010 & CM No.4181/2010 (for interim relief) GRAPHISADS PRIVATE LIMITED ..... Petitioner Through: Mr. Raj K. Mittal & Mr. Nitin Mittal, Advocates. Versus MLINICIPAL CORPORATION OF DELHI & ANR ..... Respondents Through: Ms. Mansi Gupt4 Adv. CORAM: HON'BLE MR. JUSTICE RAJTV SAIIAI ENDLAW ORDER a ' % 1,6.12.2010 1. The two writ petitions entail similar questions of law and fact and have been taken up together for consideration. 2. The writ petitions were filed impugning the action of the respondent MCD of impounding the vehicles of each of the petitioners. Vide interim orders in each of the writ petitions, the vehicles were directed to be released u5 Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified on payment of composition fee only but without necessity of payment of storage charges of the vehicles also claimed by MCD. 3. It is the case of each of the petitioners that their respective vehicles were parked temporarily by the road side when the driver alighted for a short time and during which time they were impounded. 4, MCD in its counter affidavit filed in W.P.(C) No.208ll20l0 (and the counsel for the respondent MCD stated that the position is the same in W.P.(C) No.3408/2010) has stated that the vehicles were found parked displaying advertisements and without any license in this regard and were thus in violation of Sections 143, 146 & 322 of the DMC Act, L957 and of Section 3 of the Delhi Prevention of Defacement of Properly Act,2007 and were thus impounded. 5. Section 143 prohibits erection, exhibition, fixation, retention upon or over any land, building, wall, hoardiog, frame, post or structure or upon or in any vehicle of any advertisement for display in any manner whatsoever without written permission of the MCD. 6. Section 146 enables the MCD to require the owner or occupier of any land, building, wall, hoarding, frame, post or structure or vehicle on which advertisement is so erected or exhibited to take down the same and to 2ts t t I/o L remove such advertisement and to enter any land, building, properly or vehicle for the pu{poses of dismantling, removing or defacing the advertisement. 7 . Section 322 provides for removal of anyttring in contravention of the Act. i 8. Not finding any power to impound the vehicle in either of the said provisions, it was enquired from the counsel for the respondent MCD as to in exercise of what power, the vehicle even if displaying the advertisements were impounded, inasmuch as it appears that the only power under the provisions aforesaid was to either direct the vehicles displaying the advertisements to l'eave the site or to remove the advertisement therefrom. 9. The counsel for the respondent MCD has drawn attention to Section 326 of the DMC Act which empowers the MCD to take into possession anything which inspite of being directed to be removed, is not taken back by the owner thereof. 10. The counsel for the petitioners has rejoined by contending that Section 326 would not be applicable being under the heading "Provision concerning execution of works in or near the streets." 11. The petitioners though have not filed any rejoinder to the counter L 3t5 r- ", //r/ affidavit aforesaid of the MCD controvert the pleas in the counter affidavit of the vehicles being parked for the pu{poses of display/exhibition of advertisements. 12. The aforesaid disputed questions of fact cannot be adjudicated in this writ petition. Th.q question whether the vehicles were parked displaying/ exhibiting advertisement as averred by MCD OR were in transit when seized, will have to be determined on examination and cross-examination of witresses. 13. The contention of the counsel for the petitioners that Section 326 enabling the MCD to take the vehicle with it if not claimed by the owner, for the reason of being under the head of 'Provision concerning execution of works in or near the streets' cannot be accepted. Though under the said heading, but Sectio n 326 deals with things required to be done "under this Chapter". Both Sections 322 and 326 though under different heads are under the same Chapter 15. Thus it cannot be said that Section326 applies only to disposal or removal of things coming in the way of execution of any work of MCD in or near to the street. Even otherwise, the language of the Section 326 does not wa:rant any such restricted meaning thereof. It thus cannot be said that MCD had no power whatsoever of impounding of the 4ts ( /> vehicle. However the power of impounding in Section 326 is subject to the owner not taking back the vehicle. It is again a question of fact whether the owner/driver of the vehicle when action thereto was taken as claimed aforesaid by the MCD, was willing to remove the vehicle or the advertisement stated to have been exhibited thereon or not. If the l' owner/driver was not so willing, then MCD was justified in impounding the vehicle. 14. Thus while dismissing the writ petitions as not maintainable for the aforesaid reasons, it is not necessary to restore the possession of the vehicles which was ordered to be released under interim orders to the MCD and the vehicles are allowed to be retained by the petitioners. The composition charges for illegal display of advertisement have already been paid by the petitioners under oid"r, of this Court. The question of claim of the MCD for storage charges and the claim of the petitioners for damages for illegal retention of the vehicle are left to be adjudicated in the proceedings by either party instituted before a fora where the enquiry in the facts can be conducted. i I No order as to costs. RAJIV SAIIAI ENDLAW, J DECEMBER 16,20L 5/5