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CASE NO.: Appeal (civil)  2702 of 2008

PETITIONER: Novva ADS

RESPONDENT: Secretary, Deptt. of Municipal Administration and Water Supply and Anr.

DATE OF JUDGMENT: 09/04/2008

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

JUDGMENT: J U D G M E N T (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

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       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

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 \021Act\022) and the Chennai City Municipal  Corporation (Licensing of Hoardings and Levy and Collection of  Advertisement Tax) Rules, 2003 (in short the \021Advertisement  Rules\022).

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

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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.  

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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  \021Constitution\022). 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 \021Acquisition Act\022) 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 P.  Narayana Bhat v. State of Tamil Nadu and Ors. (2001 (4) SCC  554).  However, all the hoardings are not to be treated as  hazardous. What is hazardous is to be decided. The time  period for making application for licence was fixed. In the year  2003 the Advertisement Rules have been enacted.  It is  submitted that the  Rules used the expression \021obstruction\022. It  was pointed out that  the obstruction refers to physical  obstruction. Challenge is also made to Rule 6 which relates to  the width of the road. There is no forum available for  questioning correctness of the adjudication by the authorities.   In any event it is submitted that the Rules cannot apply to  private sites. Construction of private buildings have been  excluded. It is pointed out that the concept of public order is  being introduced  but the same has to be relatable to the  parameters laid down in Dr. Ram Manohar Lohia v. State of  Bihar and Ors. (1966 (1) SCR 709). The public interest is  relatable to Article 19(1)(g) and not Article 19(1)(a). Hoardings  are nothing but material for advertisement. Rule 9 relates to  objectionable hoardings. Placing strong reliance on Tata Press  Ltd. Vs. M.T.N.L. and Ors. (1999 (5) SCC 139) it is contended  that hoarding partake the character of commercial speech.  Reference is also made to the decisions in Sakal Papers (P)  Ltd. And Ors. v. Union of India and Ors. (AIR  1962 SC 305)  and Bennett Coleman and Co. and Ors. v. Union of India and  Ors. (1972 (2) SCC 788) to contend that even if it is conceded  for the sake of arguments that the provisions are regulatory,  they must be relatable to the parameters of Article 19(2). The  regulation results in restriction on use of private land for  advertisement. It is submitted that as was noted in Sakal  Papers\022s case (supra) it curbs competition and in Bennett  Coleman\022s case (supra) there must be sufficient reason to curb  the freedom of speech. Even over-burdensome levy which  affects freedom of speech was held to be unconstitutional.   Reference is also made to Romesh Thappar v  The State of  Madras (AIR 1950 SC 124) and Brij Bhushan and Anr. v. The  State of Delhi (AIR 1950 SC 129) to contend that the  restriction  can be relatable to public interest and not to public  order. When commercial speech is protected there is no reason  to put restriction on putting hoardings.  Public order relates to

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violence and not law and order.  The basic difference, it is  submitted, between Articles 19(2) and 19(6) has not been kept  in view. In essence it is submitted that display of information  on hoardings whether it is commerce, political and social is  permitted by Article 19(1)(a) or no restriction can be placed  or  right to disseminate  information on the purported claim of  preventing obstruction  or hazard to movement of traffic which  is not covered by Article 19(2) as  public order is not affected.  The statutory rules are exhaustive of the restrictions and  restrictions do not apply to hoardings on a private land. Rules  are discriminatory in applying the same yardstick to public  roads and private properties as the same treats unequals as  equals. Even if Section 326J can be used later, it has to  specify reasons in the show cause notice,  has to be disposed  of by the reasoned order after opportunity and the right of  appearance can lead to a decision. It is  pointed out that  unsustainable discriminatory approach is adopted in  permitting hoardings of political parties which are certainly  more hazardous. A different yardstick is being adopted and  unguided power is given to the authorities to adopt different  norms.  

10.     Some of the petitioners have pointed out that there was a  statutory cut off date fixed i.e. 23.7.1998 and the enumeration  was to be done to identify data as to which of the hoardings  existed prior to 23.7.1998 and the applicants may make an  application before the date extended.  

11.     It is submitted that Rule 6 is absolutely impracticable  because most of the roads are between 15 ft. to 50 ft. category.  A statutory right is made illusory because of the size  restriction. Visibility per se is not hazardous. Rule 10 contains  words which are imprecise and flexible and the listing has not  been done.  

12.     The statutory intention is to permit hoarding but by  putting unnecessary and unreasonable restrictions  the  provisions can be misused.

13.     The visibility concept is important. The size as provided  in Rule 6 has no basis  to ensure reasonable visibility and  therefore it impeaches the Act.  

14.     There is no rule to operationalise Section 326B. The Act,  the Advertisement Rules and the form have to be  operationalized as part of the composite scheme. It is pointed  out that right in question claimed by the appellants is a  constitutional right and not statutory right. What is  objectionable is content. It is, by way of clarification,  submitted that content is covered by Article 19(1) (a) as it  covers both antecedent steps and actual display.  The content  is not limited to words, colour, picture but also extent, form,   size and placement. While Rule 3(b)(ii) is a pre-censorship  concept, Rule 9 is post censorship.  The freedom of speech  relates both to pre and post censorship.  15.     The right claimed is a preferred right. While balancing  free speech against restriction,  shift of emphasis is to free  speech.

16.     In exercise of public power there has to be guided  discretion. In the instant case there is no guided discretion.  The right to regulate being exercised in the instant case is  restrictive and not regulatory.  

17.     In response,  learned counsel for the respondent have

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submitted that the appellants and many like them have  continued litigation frustrating regulation of hoardings in  Chennai. It is submitted that owners of advertisement  hoardings in the city of Chennai have persistently challenged  and resisted the regulation on the erection of hoardings for the  last two decades with the result that even today city of  Chennai presents the most deplorable huge advertisement  hoardings on major roads, which are not only aesthetically  objectionable but are hazardous and dangerous to traffic.  Even after continued failure to get any relief from the Court  the challenge is still continued.  

18.     Following the directions of this Court in M.C. Mehta v.  Union of India and Ors. (1998 (1) SCC 363), the Tamil Nadu  Legislature introduced the amendment in Section 326J by  Amendment Act 2000.  By an amendment, the  Commissioner  (later amended to District Collector) was empowered to remove  the existing hoardings which were dangerous and causing  disturbance to safe traffic movement, which adversely affect  free and safe flow of traffic.  The provision also empowers the   District Collector to refuse the license for such hazardous and  dangerous hoardings.  

19.     Earlier challenge was made to the Rules of 1998. Various  contentions were raised before the High Court including  reference to Tata Press case (supra). The High Court rejected  the contention that Section 326A was arbitrary and had laid  down no guidelines.  Correctness of the judgment was  questioned including the alleged infringement of Article  19(1)(a). This Court rejected the appeals stating that it was ad  idem with most of the conclusions arrived at by the High  Court in the impugned judgment before it. This Court  also  noted that before it very same stands were re-iterated. It was  noted that this Court was inclined to agree with the High  Court that Section 326J was neither ultra vires Article 14 nor  Article 19(1)(a) of the Constitution in view of the decision   given by the High Court. Despite this, the Advertisement Rules  were challenged before the High Court. The High Court  dismissed them subject to modifications.  

20.     It is to be noted that in P. Narayan\022s case (supra) this  Court had specifically held in concurring with the views of the  High Court that Article 19(1)(a) of the Constitution was not  violative.   21.     Section 326A defines \023hoardings\024 to mean \023any screen or  board at any place whether public or private used or intended  to be used for exhibiting advertisements\005\024 Sections 326B to  326J are provisions relating to licensing of hoardings. The Act  requires licences of hoardings; and it requires licences of  hoardings in both public and private places.

22.     So far as public places are concerned, the State has a full  right to regulate them, as they vest in the State as trustees for  the public. The State can impose such limitations on the user  of public places as may be necessary to protect the public  generally. (See Saghir Ahmed v. State of U.P. 1955 SCR 707).

23.     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. Hoarding erected on  a private building may obstruct public roads when put up on  private buildings; they may be dangerous to the building and  to the public; they may be hazardous and dangerous to the  smooth flow of traffic by distracting traffic, and their content

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may be obscene or objectionable. It is, therefore, not correct  that hoardings on private places do not require to be regulated  by licensing provisions.

24.     Rule 6 of the 2003 Rules put restrictions on the size of  hoardings, on their height, the spacing, etc. and the  requirement of erection on steel frames. Rule 10 restricts the  hoarding to be put on certain places such as educational  institutions, places of worship, hospitals, corners of roads, in  front of places of historical and aesthetic importance.

25.     The power to license is not unfettered and is guided by  the above considerations. Under Rule 11 an appeal lies to the  State Government for refusing the grant or renewal of licenses.  Section 326J of the Act empowers the District Collector to  prohibit the erection of hazardous hoardings and hoardings  which are hazardous and a disturbance to the safe traffic  movement so as to adversely affect the free and safe flow of  traffic. The power under Section 326J is not arbitrary as held  by the Supreme Court in M.C. Mehta v. Union of India (1998)  1 SCC 363) on an identical provision relating to case of  hoarding in New Delhi. Any action taken under Section 326 J  must be taken by observing the principles of natural justice  and supported by reasons. An appeal against the order of the  District Collector for action under Section 326J lies to the  State Government under Section 326H. There cannot be a  presumption of misuse of power merely because discretion is  conferred on a public authority for the exercise use of the  power. In Narayana Bhat’s case, this Court has negatived the  contention that the power of the licensing authorities is  arbitrary and unguided.

26.     Sections 326A to Section 326H and the 2003 Rules are  made in public interest for the purpose of (i)     Preventing haphazard erection and proliferation of  hoardings in the city. (ii)    For orderly and aesthetic appearance in the city. (iii) For safety and prevention of hazardous and  dangerous hoardings. 27.     Section 326-J of the Act prohibits erection of certain  hoardings which are hazardous. The expression "hazardous"  as an adjective, connotes something that is "risky" or  "dangerous" vide, Blacks Law Dictionary, Eighth Edition, page  736. 28.     Section 326-J provides that where the Commissioner is  satisfied that the erection of any hoarding visible to the traffic  on the road is hazardous and disturbance to the safe traffic  movement so as to adversely affect the free and safe flow of  traffic, he shall not grant any licence under Section 326-C.       29.     The Commissioner is also empowered to remove any such  hoarding which is erected in contravention of the provisions  thereof.

30.     The provisions contained in Rule 3 do not restrict or  control the scope of Section 326-J which operates on a wider  plain. While failure to obtain a no objection certificate in terms  of Rule 3(iii) itself would dis-entitle an applicant for the grant  of a licence to erect a hoarding, Section 326-J, prohibits  erection of hazardous hoardings and also mandates the  Commissioner (now District Collector) not to grant any licence  under Section 326-C in respect of such hoardings. It also  authorizes the Commissioner to order confiscation and  removal of such hoardings which are erected in contravention  of the mandate therein.

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 31.     A delegated legislation can be declared invalid by the  Court mainly on two grounds firstly that it violates any  provision of the Constitution and secondly it is violative of the  enabling Act. If the delegate which has been given a rule  making authority exceeds its authority and makes any  provision inconsistent with the Act and thus overrides it, it  can be held to be a case of violating the provisions of the  enabling Act but where the enabling Act itself permits ancillary  and subsidiary functions of the legislature to be performed by  the executive as its delegate, the delegated legislation cannot  be held to be in violation of the enabling Act.  (See Vide, State  of MP. and another v. Bhola Alias Bhairon Prasad Raghuvanshi  (2003) 3 SCC 1).

32.     In St. Johns Teachers Training Institute v. Regional  Director, National Council for Teacher Education and Another  (2003) 3 SCC 321, this Court has held that:

"Delegated legislation permits utilization of  experience and consultation with interests  affected by the practical operation of statutes.  Rules and Regulations made by reason of the  specific power conferred by the Statutes to  make Rules and Regulations establish the  pattern of conduct to be followed. Regulations  are in aid of enforcement of the provisions of  the Statute. The process of legislation by  departmental Regulations saves time and is  intended to deal with local variations and the  power to legislate by statutory instrument in  the form of Rules and Regulations is conferred  by Parliament. The main justification for  delegated legislation is that the legislature  being over burdened and the needs of the  modern day society being complex it can not  possibly foresee every administrative difficulty  that may arise after the Statute has begun to  operate. Delegated legislation fills those  needs".

33.     It is well settled that a delegated legislation would have to  be read in the context of the primary statute under which it is  made and, in case of any conflict, it is primary legislation that  will prevail.  34.     In ITW Signode India Ltd. v. Collector of Central Excise  (2004) 3 SCC 48) this Court has held as under: "It is well settled principle of law that in case of  a conflict between a substantive Act and  delegated legislation, the former shall prevail  inasmuch as delegated legislation must be  read in the context of the primary/legislative  Act and not vice versa".

35.     The expression \021obstruction\022 means "something that  impedes or hinders". The expression, however, has varied sets  of meaning and is not necessarily confined to physical  obstructions only. 36.     It has been held that "Obstructing" the police, includes  anything which makes it more difficult for the police to carry  out their duties and is not confined to mere physical  obstructions, vide Hinchliffe v. Sheldon,(1955) 1 WLR 1203 37.     Obstruction has a wider meaning than mere physical  obstruction and it includes tangible and identifiable  obstruction and even a protest is obstructing.

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38.     In Collector of Customs and Central Excise,  Bhubneshwar v. Paradip Port Trust and Another  (1990 (4)  SCC 250) this Court, construing the expression "obstruction"  appearing in Section 133 of the Customs Act, 1962 has been  pleased to hold:  \023On the authority of Hinchliffe v. Sheldon it  can be said that obstruction is not confined to  physical obstruction and it includes anything  which makes it more difficult for the police or  public servant to carry out their duties.\024        39.     The expression ‘obstruction’ in Rule 3(iii) would,  therefore, include any act which impedes the free and safe  movement of the traffic, pedestrians and vehicles. Such an act  may well be, by reason of what is displayed on the hoardings.  If the subject-matter that is displayed in such hoardings  attracts attention of the drivers of vehicles and which, \021in turn,  impedes free and safe movement of traffic such a hoarding  would clearly come under the meaning "obstruction"  contemplated under Rule 3(iii) of the Rules.

40.     It is to be noted that there is certainly some difference  between \023hazardous\024 and \023obstruction\024 though there may be  some amount of overlapping. What is hazardous cannot have  definite terms. So in that sense, Legislature had thought it  wise to use the expression \021obstruction\022 so that it can be  brought within manageable standards. The ultimate objective  is safe traffic movement and  free and safe flow of traffic.

41.     It can be seen in applying Section 326J, the authority  empowered can give \021No Objection Certificate\022 and looking at  the fact situation in a given case say obstruction has been  caused. What is physical distortion or destruction can also be  considered.  But the conclusions can be challenged.  

42.     The problem can be looked at from another angle.  Even  if there is no obstruction but there is distraction that is also to  be considered. As was considered  by this Court in P.  Narayan\022s case (supra) the provisions like appeal and the rules  to bring in the principles of natural justice can be pressed into  service. That will be a right step to avoid arbitrariness. It has  been contended emphatically that private hoardings shall not  cause any physical obstruction. But this plea is, as noted  above, without any substance. In our view there may  not be  physical obstruction but it can be hazardous. The right to  regulate and control is inherent in exercise of power.  

43.     One other thing which needs to be noted is that the  authority is not examining the contents of hoardings, size etc.   The licence is for putting the hoardings. It depends upon the  size and at that stage the question of content does not come  into picture.  If it is distraction, the question whether it is   hazardous or creates obstruction comes later.  

44.     Under Rule 9 the District Collector can suo motu take  action if he finds hoardings to be objectionable. The provisions  appear to be not restrictive but are regulatory. There is no ban  on advertisement hoardings but obstructive and destructive  ones are to be prohibited.  

45.     The apprehended arbitrariness can be well taken care of.  If show cause notice is issued, it should specify the reasons as  to why the action is proposed to be taken in respect of any  hoarding or hoardings.  The principles of natural justice can

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also be complied with if reasons are indicated in the show  cause notice and there is scope for reply to be given.   Thereafter, reasoned adjudication can be made by the  authorities. It goes without saying that objectivity has to be  there, even though initially at the stage of issuing show cause  notice there is subjectivity.  46.     Very narrow and stringent limits have been set to  permissible legislative abridgment of the right of free speech  and expression, and this was doubtless due to the realisation  that freedom of speech and of the press lay at the foundation  of all democratic organizations, for without free political  discussion no public education, so essential for the proper  functioning of the processes of popular government, is  possible. A freedom of such amplitude might involve risk of  abuse. But the framers of the Constitution may well have  reflected, with Madison who was "the leading spirit in the  preparation of the First Amendment of the Federal  Constitution," that "it is better to leave a few of its noxious  branches to their luxuriant growth, than, by pruning them  away, to injure the vigour of those yielding the proper fruits" :  [Quoted in Near v. Minnesotta [283 U.S. 607) (Also See  Romesh Thappar\022s case (supra).  47.     So far as the question relating to enumeration in Rule 10,  the High Court has taken care of that problem by appointing a  Committee to identify the places, it was submitted that some  of the directions need to be clarified.  Though it is conceded  that the directions are not wrong it is submitted that they but  need clarification.  It is open to the appellants if so advised to  move the High Court if any clarification is necessary. But in  our view the directions cannot be faulted. It is submitted that  direction No.16 relates to forthwith demolition.  It needs no re- iteration that the High Court\022s order is clear to the effect that  only after enumeration the demolition can be done.  48.     It is to be noted that M.C. Mehta\022s judgment (i.e. 1998 (1)  SCC 363) resulted in amendment of the Act. In  the said case   the direction given in M.C. Mehta v. Union of India and Ors.  (1997 (8) SCC 770) has been quoted. The Advertisement Rules  in essence constitute a Code for regulating erection of  hoardings and do not deal with content except where it is  found to be obscene or objectionable.  

49.     There are two tier arrangements in Rule 3 (b). One  relating to NOC by the police and the other the power of the  District Collector to see whether the hoardings fall foul of   Section 326J and was in line with it. It needs no emphasis  that the size is the yardstick and smaller the road the bigger is  the hazard because the unregulated size can lead to chaos.  

50.     In Saghir Ahmad v. State of U.P. and Ors. (1955 (11) SCR  707) it was held as follows:  

\0232. In view of this pronouncement of law, the  State Government, which wanted to have the  exclusive right to operate Road Transport  Services within its territory, sought the  assistance of the Legislature and the U.P. Road  Transport Act (Act II of 1951) was passed and  became law on and from the 10th of February,  1951. It is the constitutional validity of this  enactment which is the subject-matter of  contest in these present proceedings\024.          

51.     The fact that the hoarding is on building or private land  does not take away the regulatory measures relating to

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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. There has to be regulatory measures. As has been  rightly contended by learned counsel for the respondents, the  Act and the Advertisement Rules do not regulate  advertisement. They regulate putting of the hoarding which is  found to be objectionable, destructive or obstructive in  character.  

52.     It cannot be said that there is infringement of freedom of  speech. The content, effect and the purpose of statute clearly  show that it is not intended to be so.  53.     The inevitable result is that the appeals and writ  petitions are without merit and deserve to be dismissed which  we direct.