IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.7.2008 CORAM: THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN A.S.No.99 of 1999 Sima Publicities .. Appellant/plaintiff -vs- The Divisional Engineer HRW,Saidapet Dn., Chennai-6 .. Respondent/defendant This appeal is filed against the Judgment and decree of the learned XIII Assistant Judge, City Civil Court, Madras dated 9.10.1996 made in O.S.No.5134 of 1993. For appellant : : Mr.M.S.Palaniswamy, Advocate For respondent : : No appearance. JUDGMENT The unsuccessful plaintiff before the trial Court is the appellant herein. This appeal has been directed against the Judgment and decree in O.S.No.5134 of 1993 on the file of XIII Assistant Judge, City Civil Court,Madras 2. The averments in the plaint sans irrelevant particulars are as follows: The plaintiff is an out-door advertising agency carrying on business by erection of hoarding on the sites on road margins, platforms, canal banks etc. Those strips of land are leased out to the plaintiff by the Government Department, local bodies and railways and private individuals and the plaintiff has been paying rents for the same. The plaintiff used to erect hoardings on the leased out sites/strips of land by erecting iron girders, poles and frame over which zinc plate is fixed to enable the painters to paint the advertisements of various customers. The cost of each hoarding will run to several thousands. The plaintiff has been doing the said business for quite a long time. On 24.4.1987, the plaintiff has been granted lease in respect of five sites including the four sites described in the schedule hereto, in pursuance of G.O.Ms.No.9089 P.W.D. Dated 21.6.1976, on an annual rent of Rs.1,400/- per strip of land, over which hoardings are erected by the plaintiff. The plaintiff also sent necessary lease rent on 12.5.1987 to the defendant for the lease period from 24.4.1987 to 23.4.1988 which was duly acknowledged and accepted by the defendant, by letter dated https://hcservices.ecourts.gov.in/hcservices/ 9.7.1987. For the period from 24.4.1988 to 23.4.1989 also rent was paid by the plaintiff and acknowledged by the defendant. So also for the periods from 24.4.1989 to 23.4.1990,24.4.1990 to 23.4.1991, 24.4.1991 to 23.4.1992, 24.4.1992 to 23.4.1993 and 24.4.1993 to 23.4.1994 rents have been paid by the plaintiff. The above said documents will go to show that the plaintiff is having a valid lease in respect of the schedule in the suit to the plaint and he has paid the rent upto 23.4.1994. For the seventh year in succession, the plaintiff has been enjoying the suit sites as lessee. On 29.4.1993, the defendant returned to the plaintiff the draft representing the rent for the period from 24.4.1993 to 23.4.1994 without assigning any reason whatsoever. When the plaintiff went and enquired about the same, there was no proper reply on the other hand he was informed that steps are being taken to remove the plaintiff's hoardings from the suit sites. The plaintiff is a lessee of the defendant of the suit sites as evidenced by the documents filed herewith and he cannot be disturbed so long as he pays the rent. There has been no notice of termination of tenancy. The leases of strips of land for the purpose of putting up hoardings have been held to be leases within the meaning of Transfer of Property Act as decided in Sarojini's case by this Court. The lease is subsisting but the part of the rent paid in advance after 23.4.1994 was unjustly returned by the defendant. There has been no termination of the tenancy in writing by defendant. The defendant is now threatening to remove the hoardings illegally. The plaintiff is left with no option but to file the suit for injunction restraining the defendant from disturbing the plaintiff's peaceful possession of hoardings on the sites set out in the plaint schedule. Hence the suit for permanent injunction and for costs. 3. The defendant in his written statement would contend that the lease sanction was accorded to the plaintiff for four hoardings mentioned in the plaint schedule on 24.4.1987 and the renewal was done by the defendant only upto the period 23.4.1990. The right of renewal of the lease is vested with the defendant and the plaintiff cannot question the right of the defendant. In the meanwhile, the Chief Engineer(H & R.W) Madras-5 had issued an order vide his memo No.42750/ Thalavadam.4/88 dated 16.7.1990 stating that for the display of hoardings in the major six roads, branching from the Madras City , advertising agents concerned should obtain the order of Government directly from the Government. As the four plaint hoardings in question are being erected in Mount-Poonamallee Road which is one of the six roads banned by the Chief Engineer(H &RW) the request of the plaintiff for the renewal of the above hoardings were not complied with since 16.7.1990. Regarding further renewal request of the plaintiff the Superintending Engineer's(H & RW) direction was sought for. The demand drafts received from the plaintiff after 16.7.1990 towards the renewal of hoardings were acknowledged surely in order to ensure the receipt of the demand drafts which was nothing to do with the renewal and nothing was committed by the defendant in the letter of acknowledgment for renewal. Further it was clearly explained to the plaintiff orally, when he approached the defendant's office that the demand draft had been returned as no further direction in this regard was received from the Superintending Engineer(Highways). Upto 23.4.1990, the plaintiff's lease was renewed and the renewal order itself had been stated clearly that further renewal may or may not be done and the plaintiff should not make any https://hcservices.ecourts.gov.in/hcservices/ claim in case of refusal or renewal. Further it was vividly pointed out that, in case, if the defendant did not agree for renewal, the plaintiff should remove his hoardings at his own cost, restore the land to the normal condition and hand over back to the Department. Despite these conditions, the plaintiff has approached this Court for injunction when there is no legal grounds for him to do so. No notice of termination of tenancy is needed as the validity of the tenancy was terminated by itself as on 23.4.1990 ie., the last date of previous lease period. Returning back the demand draft further confirms the refusal of renewal of lease and termination of previous lease. Even after knowing that the validity of the lease expired as on 23.4.1990, holding the Government land in possession by the plaintiff itself not sustainable in law. After, 23.4.1990, the lease for hoardings in question is absolutely invalid. After the termination of the lease, the plaintiff cannot withhold the possession of the land in question which is required for the Government for the department purpose. When permission for renewal was not accorded, retaining the demand draft could serve no purpose. Hence the suit is liable to be dismissed. 4. Before the trial Court, the Proprietor of the plaintiff's Company was examined as P.W.1 and Exs A1 to A17 were marked. On the side of the defendant, neither oral nor documentary evidence was let in. After going through the evidence both oral and documentary, the learned trial Judge after arriving at a conclusion that there is no prima facie case made out to grant injunction in favour of the plaintiff has dismissed the suit but without costs. Aggrieved by the findings of the learned trial Judge, the plaintiff has preferred this appeal. 5. The following points arose for determination in this appeal a) Is there any prima facie case made out by the plaintiff to grant injunction in favour of him as prayed for? b) Whether the Judgment and decree of the learned Trial Judge in O.S.No.5134/93 on the file of XIII Assistant Judge, City Civil Court, Chennai is liable to be set aside for the reasons stated in the memorandum of appeal? 6. Point No.1 : As per Ex A1, the defendant had permitted the plaintiff to erect hoardings in five places in Mount-Poonamallee Road as per G.O.Ms.No.908 P.W.D dated 21.6.1976 at the rate of Rs. 1,400/- per hoarding. The place at which the hoardings are to be exhibited are also mentioned in the plan annexed to Ex A1 letter. The prescribed fee as per Ex A1 was paid by the plaintiff under Ex A2 by way of demand draft which was acknowledged by the defendant under Ex A3. Due to the objections raised by Sri Ramachandra Medical College authorities, the plaintiff could not erect one of the hoardings as per Ex A1 specification, he has addressed under the original of Ex A4 dated 23.6.1988 to the defendant for allotment of alternative site for erecting the remaining one hoarding. The rent for the period from 1988-89 was also paid by the plaintiff which is seen from Ex A5 letter of acknowledgment. The lease was subsequently, renewed for further one year from 24.4.1988 to 23.4.1989 in favour of the https://hcservices.ecourts.gov.in/hcservices/ plaintiff under Ex A6. Under Ex A7, the plaintiff has asked for renewal of licence for the period from 24.4.1989 to 23.4.1990. From 24.4.90 to 23.4.1991, the lease in favour of the plaintiff was renewed under Ex A8. Ex A9 is the acknowledgment for having received the demand draft dated 24.4.1990 for Rs.5,200/- by the defendant. Under Ex A10, from 24.4.1991 to 23.4.1992, the prescribed licence fee for renewal of the licence made by the plaintiff. Ex A11 is the another renewal of licence from 24.4.1992 to 23.4.1993 . Ex A12 is the acknowledgment for having received the prescribed licence fee for the renewal for the year 1992-93. Under Ex A13, the plaintiff has paid the prescribed fee for renewal of the hoardings for the period from 24.4.1993 to 23.4.1994. Ex A14 is the letter issued by the defendant returning demand draft bearing No.279167 dated 20.4.1993 for Rs.5,200/-. Under Ex A15, the plaintiff has paid the renewal fee of Rs.15,600/- relating to the period from 24.4.1993 to 23.4.1994, 24.4.1994 to 23.4.1995 and 23.4.1995 to 24.4.1996 ie for three years. Under ex A16, the defendant had received the said pay order sent along with Ex A15 and without prejudice to his defence taken in O.S.No.5134 of 1993(present suit). Ex A17 , the plaintiff has sent the renewal fee for the period from 24.4.1996 to 23.4.1997. 6a) In the written statement, the defendant has stated that the Chief Engineer(H & RW) had issued an order vide his memo No.42750/Thalavadam.4/88/dated 16.7.1990 stated therein that for the display of hoardings in the major five roads, branching from the Madras city, advertising agents concerned should obtain the order of the Government directly from the Government and that the Mount- Poonamallee road in which the plaintiff has sought for erection of hoardings is also one of six roads banned by the Chief Engineer. So after 23.4.1990, the licence for the plaintiff for display of hoardings cannot be renewed . In this connection, the March of law is to the effect that display of hoardings 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. As per the latest ruling of the Honourable Supreme Court, the hoardings in the City of Madras has been removed. In Novva ADS -v- Secretary , Department of Municipal Administration and Water Supply and another(2008(3) M.L.J.1058 (SC). The ratio is 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 and also as hoarding erected on a private building may obstruct public roads when pup up on private buildings and may be hazardous and dangerous to the smooth flow of traffic by distracting traffic and their content may be obscene or objectionable....(ii) The power under Section 3256 J of the Chennai City Municipal Corporation Act is not arbitrary. Any action taken under said provision must be taken by observing the principles of natural justice and supported by reasons. There cannot be a presumption of misuse of power merely because discretion is conferred on a public authority for the exercise of power."(iii) The Chennai City Municipal Corporation Act,1919 and the Advertisement Rules, 2003 do not regulate advertisement. They regulate putting of the hoarding which is found to be objectionable, destructive or obstructive in character. The Advertisement Rules in essence constitute a code for regulating erection of hoardings and do not https://hcservices.ecourts.gov.in/hcservices/ deal with content except where it is found to be obscene or objectionable. As such, it cannot be said that there is infringement of freedom of speech and expression. Hence, the said Act and Rules are constitutionally valid." Under such circumstances, nothing survives in the appeal. I hold on point No.1 that there is no prima facie case made out by the plaintiff to grant injunction in this case. Point No.1 is answered accordingly. 7. Point No.2: In view of my discussion and finding in the earlier paragraphs, I do not find any reason to interfere with the well considered findings of the learned trial Judge in O.S.No.5134 of 1993 on the file of XIII Assistant Judge, City Civil Court, Chennai. Point No.2 is answered accordingly. 8. In fine, the appeal fails and the same is hereby dismissed confirming the Decree and Judgment of the learned trial Judge in O.S.No.5134 of 1993 on the file of XIII Assistant Judge, City Civil Court, Chennai. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sg To 1. The Registrar, City Civil Court, Chennai 2. XIII Assistant.Judge City Civil Court, chennai 3. The Record Keeper, V.R.Section, High Court, Madras. A.S.NO.99 of 1999 vm(co) pmk/12.8.2008. https://hcservices.ecourts.gov.in/hcservices/