IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 28-04-2008 CORAM THE HONOURABLE MR.JUSTICE P.K.MISRA AND THE HONOURABLE MR.JUSTICE K.K.SASIDHARAN W.P.No.14965 of 2007 and M.P.No.1 of 2007 K.R.Ramaswamy @ Traffic Ramaswamy Founder Chairman Tamilnadu Social Works Organization (Regd.755/07) 6, Philips Street First Floor, Chennai 600 001. .. Petitioner vs State rep. by 1.The Collector Chennai District Rajaji Salai Chennai 600 001. 2.The Home Secretary Govt. of Tamilnadu Chennai 600 009. 3.The Commissioner, Corporation of Chennai Rippon Building Chennai 600 003. 4.The Commissioner of Police Greater Chennai City Egmore, Chennai 600 008. .. Respondents Writ petition filed under Article 226 of the Constitution of India praying for a writ of mandamus to direct the respondents 1 and 2 to ban erection of any Digital Banners in the pavements and roadsides or to regulate by collecting Revenue as before under revenue/Misc/SEC of City Municipal Act 1919 without obstructing the moment of traffic and pedestrian keeping in mind the safety of the public movement without risk in the road and pavements of Tamil Nadu, mainly in Greater Chennai City, at larger interest of public. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : K.R.Ramasamy @ Traffic Ramasamy Party-in-person For Respondents: Mr.P.S.Raman Additional Advocate General for Mr.M.Dhandapani Special Government Pleader Mr.T.Mohan Amicus Curiae - - - O R D E R (Order of the Court was made by P.K. MISRA, J) We had earlier heard the petitioner in person and the matter was posted for orders. Today, we have heard the learned Additional Advocate General and Mr.T. Mohan, Advocate, who had been appointed as Amicus Curiae to assist the Court. 2. The present writ petition has been filed in public interest by the petitioner, who has been expousing such causes particularly relating to roads and traffic rules and regulations (That is how he has apparently acquired the pre-fix “Traffic”). The petitioner has prayed for issuing a Writ of Mandamus directing the first and second respondents, namely, the State Government, represented by the Collector, Chennai District, and the Home Secretary of the Government of Tamil Nadu, to ban erection of any Digital Banners in the pavements and roadsides. The petitioner has expressed the apprehension that because of unregulated erection of digital banners, the users of the road face serious inconvenience while using the roads and pavements. 3. Even though it has not been specifically so stated, the present writ petition has been filed to take follow-up action in accordance with the judgment of a Division Bench of this Court in W.P.Nos.7143 of 2006 and other connected matters (K. KANAGARAJ v. DISTRICT COLLECTOR, CHENNAI AND OTHERS) disposed of on 10.8.2006 (reported in 2006(4) MLJ 1033). In the said decision, one of the main questions raised was relating to validity of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003. The Division Bench referred to the provisions contained in the Chennai City Municipal Corporation Act, 1919 and the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003 and upheld the validity of such rules. While issuing several directions as contained in paragraph 26 of the judgment, the Division Bench inter alia directed :- " ... (5)The District Collector is directed to remove and demolish all the unauthorised hoardings, which have been erected after the cut-off date and in respect of which no application have been made to the District Collector, within a period of eight weeks. The District https://hcservices.ecourts.gov.in/hcservices/ Collector and the Tahsildar working in their respective zones shall be personally responsible for the removal of the unauthorised hoardings in their respective areas. (6)The Municipal Commissioner shall extend all the necessary co-operation to the District Collector for removal of the hoardings in the city. The Commissioner is directed to supply to the District Collector the necessary equipments and the work force for the purpose of removal of the unauthorised hoardings. ... (15) In case of non-removal of unauthorised or illegal hoardings and default in payment of rent and tax, the District Collector shall initiate prosecution against the hoarding owners in accordance with Section 326(i) of the Act." This judgment has been subsequently upheld by the Supreme Court in the decision reported in 2008(3) MLJ 1058 (SC). 4. The respondents were called upon to file a status report by order dated 31.1.2008 indicating various steps taken in compliance with the directions of the Division Bench in the above case. 5. The respondents have filed a status report. 6. During pendency of the writ petition, certain statements and D.O. letters had been issued, which prima facie gave an impression that such digital banners can be erected for a period of six days i.e., three days before the event and two days after the event. Even in the counter affidavit filed by the District Collector, it was indicated :- "3. It is submitted that as far as Chennai District is concerned all the digital banners of Political parties and Communal Affiliated Groups are ordered to be removed immediately. Apart from this all the digital hoardings and even small digital hoardings erected in the median of Highways are also ordered to be removed. Revenue and Corporation Officials along with Police authorities are removing all these hoardings. 4. With regard to event-related hoardings, the Hon'ble Chief Minister has announced that the event- related hoardings may be erected 3 days prior to the event and two days after the event, subject to such rules and regulations as applicable." Therefore, the Chief Secretary was specifically called upon by order dated 3.3.2008 to file affidavit explaining the rationale behind the two press releases dated 29.8.2007 and 21.2.2008 and the D.O. Letter dated 30.8.2007 in the light of the judgment of the Division Bench in W.P.Nos.7143 of 2006 & other connected matters dated 10.8.2006. https://hcservices.ecourts.gov.in/hcservices/ 7. An affidavit has been filed explaining the position that the aforesaid press releases and the D.O. letter were not meant for giving permission to erect digital banners for a specific period, but were intended to be used as guidelines. As a matter of fact, in course of hearing, the learned Addl. Advocate General has clearly stated that those press releases or the D.O. letter need not be considered as binding on the statutory authorities dealing with the matter. 8.While entertaining the writ petition, the respondents had been directed to file their counter. Subsequently, Mr.T. Mohan, Advocate, was appointed as Amicus Curiae. Learned Amicus Curiae had filed a memo giving certain suggestions. 9. The respondents have filed a Memo reflecting the views of the Government on the suggestions. 10.1 While responding to Suggestion No.1 of the Amicus Curiae to the effect that no digital banners shall be allowed to be erected on the pavements, it has been stated that, "Digital banners" is covered under the definition of 'Advertisement' in Rule 2(b) of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003 and, therefore, no specific direction is required to be issued. 10.2 Rules 6(3) and 6(4) of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003, being relevant, are extracted hereunder :- "6(3) No hoarding shall be permitted on both sides of the roads with a footpath of less than ten feet width. In roads with no separate footpath, a minimum of ten feet width shall be available between the road margin and the hoarding for use of pedestrians. (4) The hoarding shall be erected only parallel to the footpath or road and not across the footpath or road margin." 10.3 Learned Addl. Advocate General, while reiterating the aforesaid position, has submitted that the digital banners can be erected only in accordance with Rule 6(4) of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003 and not otherwise and obviously action would be taken if there is any infraction. 11. Dealing with Suggestion No.2 to maintain roads in good condition, it has been indicated that Chapter IX of the Chennai City Municipal Corporation Act deals with the matter and, therefore, no further clarification or direction is required. 12. Regarding Suggestion No.3 to the effect that no person shall be allowed to dig roads, streets or pavements for https://hcservices.ecourts.gov.in/hcservices/ erecting any digital banner, attention has been drawn to Section 226 of the Chennai City Municipal Corporation Act, 1919 prohibits making of holes and causing obstruction in public streets without the permission of the Commissioner. 13. Regarding Suggestion No.4 to the effect that any person causing damage to the pavement or the public road should be punished under appropriate legal provisions, it has been submitted by the learned Additional Advocate General that though there is no specific provision in the Chennai City Municipal Corporation Act, 1919 to penalise such persons, the provisions of the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act, 1982 could be invoked and obviously the authorities would ensure strict compliance with such provisions by initiating prosecution wherever necessary. 14. Regarding Suggestion No.5 to the effect that before granting license the concerned authority should take into consideration the purpose for which the banner has to be erected, it has been stated that license is given only to those hoardings which conform to the provisions of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003 and since discretion is conferred on the statutory authority, no further direction may be necessary. 15. Regarding Suggestion No.6 to the effect that the licensing authority should consider the width and the size of the public road, the level of traffic congestion, the size and the area occupied by the banners, the duration for which they have been permitted, it has been stated that adequate provision is already made under Rule 6 of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003. 16. Regarding Suggestion No.7 to the effect that a distinct complaint cell should be set up to hear complaints, the Government has indicated that such suggestion may be accepted and the Commissioner, Corporation of Chennai, may be directed accordingly. 17. Regarding Suggestion No.8 to the effect that encroachment check squads should be appointed to remove all the obstructions and encroachments, the Government has responded by stating that the suggestion may be accepted. 18. Regarding Suggestion No.9 relating to payment of compensation to any person who suffers any injury on account of obstruction or destruction caused by the digital banners, it has been stated that no such rule is available. 19. Having regard to all these aspects and keeping in view the earlier directions given by the Division Bench in W.P.Nos.7143 of 2006 & other connected matters, we dispose of the present writ petition with the following observations and directions :- https://hcservices.ecourts.gov.in/hcservices/ (a) Erection of digital banners without appropriate license would attract the provisions of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003 and no digital banner can be erected, whether for a temporary period or for a more extended period, without license from the appropriate authority. If there is any violation, obviously the appropriate authorities can take action in accordance with the provisions contained in the Chennai City Municipal Corporation Act, 1919, the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act,1982 and the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003. (b) Since the digital banners are covered under the definition of 'advertisement' under Section 2(b) of the Chennai City Municipal Corporation Licensing of Hoardings and Levy and Collection of Advertisement Tax Rules, 2003, it is obvious that no digital banner can be erected on pavement having a width of less than 10 feet as specifically contemplated in Rule 6(3). So far as the pavements having more than 10 feet are concerned, Rule 6(4) enables the licensing authority to give license for display of advertisement or erection of hoardings including digital banners. However, as contemplated in such rule, it can be erected only parallel to the footpath or road margin and not across the footpath or the road margin. Since the footpaths are primarily meant for the use of pedestrians, the licensing authority, while considering any application under Rule 6(4), has to ensure that no inconvenience is caused to the users of the footpath. (c) Sections 220 and 226 of the Chennai City Municipal Corporation Act,1919, envisage that no person can dig roads, streets or pavements without the permission of the Commissioner. It is obvious that while considering the question of granting such permission, the Commissioner has to carefully consider the purpose for seeking such permission and has to use his discretion in a proper manner. Even though there is no specific provision under the Chennai City Municipal Corporation Act, it does not mean that those who dig roads, streets or pavements can go scot-free. It is the duty of the appropriate authority to prosecute such violators under the Tamil Nadu Public Property (Prevention of Destruction and Loss) Act, 1982. (d) The press releases No.558 dated 29.8.2007 and No.132 dated 21.2.2008 should not be construed as giving universal permission for erection of such banners nor it should be construed that the person shall have right to erect such banners for six days. Since statutory power is given to the Collector, it is for the Collector to decide whether such license should be given and for how many days and the Collector need not feel bogged down by such press releases or the D.O. letter issued by the Chief Secretary. If any digital banner is erected without permission, even temporarily, it is the duty of the concerned authorities to take appropriate action including removal of such unauthorised digital banner as well as launching of prosecution against the violators. https://hcservices.ecourts.gov.in/hcservices/ (e) In case of erection of illuminated hoarding or electronic display with the use of electricity, the licensing authority should ensure that there is no pilferage of electric energy and appropriate permission is to be obtained from the State Electricity Board. 20. Apart from the above directions, one another aspect is required to be noted. Learned Amicus Curiae has pointed out that at times, Poly Vinyl Chloride (P.V.C.) sheets are used, which may be harmful to the environment. Since using of such materials may be hazardous for the health and environment, appropriate authority should keep the above aspect in mind while considering the question of grant of permission. 21. In the result, the writ petition is disposed of, subject to the aforesaid directions. No costs. Consequently, the connected Miscellaneous Petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/dpk To: 1.The Collector Chennai District Rajaji Salai Chennai 600 001. 2.The Home Secretary Govt. of Tamilnadu Chennai 600 009. 3.The Commissioner, Corporation of Chennai Rippon Building Chennai 600 003. 4.The Commissioner of Police Greater Chennai City Egmore, Chennai 600 008. + 2 CC to the Government Pleader SR NO.24942, 18780 WP No.14965 of 2007 TS {CO} TP/1.9.08. https://hcservices.ecourts.gov.in/hcservices/