Tax Law; Novva ADS Vs. Secretary, Deptt. of Municipal Administration and Water Supply [Supreme Court of India, 09-04-2008]

Constitution of India, 1950 – Arts. 14, 19(1)(a) & 19(1)(b) – Chennai City Municipal Act, 1919 – Ss. 326A to 326J – Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 – Rr. 3 (i) & (iii), 6, 9, 10 and 11 – License for erection of hoardings at public places – Held, State has a right to regulate the public places as trustee and can impose such limitation on the user as are necessary to protect the public generally. Hoardings erected at private places need to be regulated as they obstruct public roads and could be dangerous to buildings and public.

Administrative Law – `Delegated legislation’ – Scope of ` Discussed.

`Hazardous’ and `Obstruction’ – Distinction between in the context of licensing of hoardings – Discussed.

Words and Phrases: `Hazardous hoardings’ – Meaning of in the context of s.326J of the Chennai City Municipal Act, 1919. `Obstruction’ – Meaning of in the context of s.3(iii) of Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003.

AIR 2008 SC 2941 : 2008 (6) SCR 334 : (2008) 8 SCC 42 : 2008 (6) SCALE 721 : JT 2008 (6) SC 95 2008 : AIR 2008 SCW 4946 : 2008 (3) MLJ 1058 : 2008 (2) MLW 978

IN THE SUPREME COURT OF INDIA

BENCH: Dr. ARIJIT PASAYAT & S.H. KAPADIA JJ.

Appeal (civil) 2702 of 2008

Novva ADS v. Secretary, Deptt. of Municipal Administration and Water Supply and Anr.

DATE OF JUDGMENT: 09/04/2008

(Arising out of SLP ) No. 16286 of 2006) WITH Civil Appeal No. 2715/2008 @ SLP (C) No. 15208/2006 Civil Appeal No. 2574/2008 @ SLP (C) No. 15210/2006 Civil Appeal No. 2575/2008 @ SLP (C) No. 15552/2006 Civil Appeal No. 2576/2008 @ SLP (C) No. 15676/2006 Civil Appeal No. 2577/2008 @ SLP (C) No. 16762/2006 Civil Appeal No. 2580/2008 @ SLP (C) No. 15691/2006 Civil Appeal No. 2581/2008 @ SLP (C) No. 15698/2006 Civil Appeal No. 2582/2008 @ SLP (C) No. 15761/2006 Civil Appeal No. 2583/2008 @ SLP (C) No. 16764/2006 Civil Appeal No. 2584/2008 @ SLP (C) No. 17556/2006 Civil Appeal No. 2585/2008 @ SLP (C) No. 1478/2007 Civil Appeal No. 2623/2008 @ SLP (C) No. 1479/2007 Civil Appeal No. 2624/2008 @ SLP (C) No. 1480/2007 Civil Appeal No. 2625/2008 @ SLP (C) No. 1481/2007 Civil Appeal No. 2626/2008 @ SLP (C) No. 1482/2007 Civil Appeal No. 2628, 2629, 2631, 2632, 2633/2008 @ SLP (C)No. 1483-87/2007 Civil Appeal No. 2634/2008 @ SLP (C) No. 1489/2007 Civil Appeal No. 2635/2008 @ SLP (C) No. 1490/2007 Civil Appeal No.2636/2008 @ SLP (C) No. 1492/2007 Civil Appeal No.2637/2008 @ SLP (C) No. 1493/2007 Civil Appeal No.2638/2008 @ SLP (C) No. 1494/2007 Civil Appeal No.2639/2008 @ SLP (C) No. 1497/2007 Civil Appeal No.2640/2008 @ SLP (C) No. 1499/2007 Writ Petition (C) No. 79/2007 Civil Appeal No.2642/2008 @ SLP (C) No. 4483/2007 Civil Appeal No.2643/2008 @ SLP (C) No. 2534/2007 Civil Appeal No.2644/2008 @ SLP (C) No. 1656/2007 Civil Appeal No.2645/2008 @ SLP (C) No. 1658/2007 Civil Appeal No.2646/2008 @ SLP (C) No. 1660/2007 Civil Appeal No.2647/2008 @ SLP (C) No. 1662/2007 Civil Appeal No.2649/2008 @ SLP (C) No. 4201/2007 Civil Appeal No.2650/2008 @ SLP (C) No. 3488/2007 Civil Appeal Nos.2651, 2652, 2653, 2654/2008 @ SLP (C) Nos. 3490-93/2007 Civil Appeal No.2655/2008 @ SLP (C) No. 2632/2007 Civil Appeal No.2656/2008 @ SLP (C) No. 3494/2007 Civil Appeal No.2657/2008 @ SLP (C) No. 3496/2007 Civil Appeal No.2658/2008 @ SLP (C) No. 3497/2007 Civil Appeal No.2659/2008 @ SLP (C) No. 3499/2007 Civil Appeal No.2660/2008 @ SLP (C) No. 4012/2007 Writ Petition (C) No. 124/2007 Writ Petition (C) No. 134/2007 Writ Petition (C) No. 158/2007 Writ Petition (C) No. 146/2007 Writ Petition (C) No. 149/2007 Writ Petition (C) No. 151/2007 Writ Petition (C) Nos. 152-53/2007 Writ Petition (C) Nos. 161-62/2007 Civil Appeal No. 2716/2008 @ SLP (C) No.16760/2006 Writ Petition (C) No. 165/2007 Con. Pet. No.5 of 2007 in SLP (C) No.15210/2006 Civil Appeal No.2661/2008 @ SLP (C) No.7515/2007 Civil Appeal Nos.2662, 2663, 2664, 2665, 2666/2008 @ SLP (C) No. 7534-38/2007 Civil Appeal No.2667/2008 @ SLP (C) No. 7543/2007 Civil Appeal No.2668/2008 @ SLP (C) No. 7517/2007 Civil Appeal No.2669/2008 @ SLP (C) No. 7518/2007 Civil Appeal No.2670/2008 @ SLP (C) No. 5665/2007 Civil Appeal No.2671/2008 @ SLP (C) No. 5158/2007 Civil Appeal No.2672/2008 @ SLP (C) No. 5164/2007 Civil Appeal No.2673/2008 @ SLP (C) No. 5957/2007 Civil Appeal No.2675/2008 @ SLP (C) No. 5848/2007 Civil Appeal No.2676/2008 @ SLP (C) No. 7860/2007 Civil Appeal No.2677/2008 @ SLP (C) No. 7801/2007 Civil Appeal No.2678/2008 @ SLP (C) No. 7804/2007 Civil Appeal No.2679/2008 @ SLP (C) No. 9675/2007 Civil Appeal No.2680/2008 @ SLP (C) No. 7056/2007 Civil Appeal No.2681/2008 @ SLP (C) No. 11688/2007 Civil Appeal No.2682/2008 @ SLP (C) No. 1193/2007 Civil Appeal No.2683, 2684, 2685, 2686, 2687/2008 @ SLP (C) No. 1195-1199/2007 Civil Appeal No.2688/2008 @ SLP (C) No. 1200/2007 Civil Appeal No.2689, 2690, 2691, 2692/2008 @ SLP (C) No. 1202-05/2007 Civil Appeal No. 2693/2008 @ SLP (C) No. 14825/2007 Civil Appeal No.2696/2008 @ SLP (C) No. 13517/2007 Civil Appeal No.2697/2008 @ SLP (C) No. 13519/2007 Writ Petition (C) Nos.504/2007, 512/2007, 524/2007, 525/2007, 515/2007, 526/2007 Civil Appeal No.2718/2008 @ SLP (C) No. 19988/2007 Civil Appeal No.2717/2008 @ SLP (C) No. 20187/2007

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Delay condoned.

2. Leave granted in the Special Leave Petitions.

3. Challenge in these appeals and Writ Petitions is to the judgment delivered by a Division Bench of the Madras High Court. In the writ petitions, challenge was to validity of

Sections 326A to 326J of the Chennai City Municipal Act, 1919

(in short the ‘Act’) and the

Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003

(in short the ‘Advertisement Rules’).

4. The writ petitions were dismissed by the High Court. But a Committee was constituted for identifying and enumerating the places of historical importance or aesthetic value and popular places of worship in and around the city of Chennai. It was also directed to oversee the operation of the removal of illegal and unauthorized hoardings in the city of Chennai. The Committee was directed to be headed by a retired Judge and to consist of several other persons. The State Government was directed to provide necessary infrastructure and office to the Committee. The District Collector was directed to remove and demolish all the unauthorized hoardings which were erected after the cut off date and in respect of which no application was made to the District Collector within a period of 8 weeks. The District Collector and the Tahsildar working in their respective zones were to be personally responsible for the removal of unauthorized hoardings in their respective zones. The Municipal Corporation was directed to extend all necessary cooperation to the District Collector for removal of the hoardings in the city. The Commissioner was directed to supply to the District Collector the necessary equipment and work force for the purpose of such removal. The Police Commissioner was also directed to provide adequate police force to assist the demolition team. The State Government was directed to appoint two officers not below the rank of District Collector as Special Officers vested with the necessary powers of the District Collector to make scrutiny of the applications pending before the Collector within a period of 4 weeks from the date of judgment. It was pointed out that no licence was to be granted and/or renewed in respect of any hoarding which is not in conformity with the provisions of the Act and the Advertisement Rules. So far as the applicants who claimed to be existing hoarding owners, the District Collector/Special Officer was required to call for the views of the Traffic police and such views had to be communicated to the District Collector within a particular period. All the hoardings where the applications/appeals were dismissed by the authorities were liable to be removed forthwith and the concerned authorities to take appropriate steps for the purpose.

5. The District Collector and the Tahsildar were directed to take immediate steps for recovery of the advertisement tax, the rent and the penalties from the hoarding owners whether authorized or unauthorized. The appeals against the decision of the District Collector/Special Officer were directed to be disposed of within 60 days as prescribed by the Advertisement Rules and for that purpose it was suggested that the Government may consider appointment of one or more officers at the Secretariat level, exclusively for the purpose.

6. So far as new applications are concerned, it was held that if the applicant had already constructed a hoarding in that case hoarding was liable to be removed and demolished and the applicant was entitled to apply only after such removal and demolition of hoarding.

7. With reference to Rule 3(i) of the Advertisement Rules it was held that the plan of the hoarding was to be approved by a qualified structural Engineer. In case of non removal of unauthorized or illegal hoardings the District Collector was directed to initiate prosecution as permissible under the Act. Direction was also given for demolition and removal of all hoardings erected on or in front of any places of historical or aesthetical importance, popular places of worship as enlisted by the Committee as well as on or in front of the educational institutions and hospitals and in cases where applications were made by any hoarding owner within the time prescribed by this Court applications were to be decided and if the hoardings were found to be illegal, they were to be removed without further notice. It was directed that no Civil Court shall entertain any application against demolition or removal of the unauthorized hoardings and the writ petitions challenging the demolition were to be placed before the bench of the Chief Justice of the High Court.

8. It was also directed that notwithstanding any order passed by any Civil Court in the matter the directions given in the impugned order were to prevail.

9. In support of the appeals, various stands have been taken by the parties. Primarily it has been submitted that the Advertisement Rules are violative of Articles 19(1)(a) and 19(1)(b) of the Constitution of India, 1950 (in short the ‘Constitution’). It was also violative of Article 14 because private hoardings have been treated equally with public hoardings, thereby treating unequals with equal. With reference to the earlier Statute i.e. Tamil Nadu Acquisition of Hoarding Act, 1985 (in short the ‘Acquisition Act’) it was submitted that the acquisition of the public or private property was held to be illegal. With effect from 23.7.1998 amendment was made to the Act and Sections 326-A to 326-I were introduced. Section 326-B provides for the period of 30 days within which the owners of the hoarding were to apply for licence. On 5.9.2000 the Act was amended and Section 326-J was introduced. This provision permitted removal of all hoardings which are hazardous in nature. Challenge was made to the same provision. The High Court by order dated 14.10.2001 upheld its validity. It was inter alia held that that every hoarding which is adjacent to the road is hazardous and has to be removed and the High Court judgment was affirmed by this Court with certain modifications by this Court in