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CASE NO.: Appeal (civil) 803  of  2001

PETITIONER: P. NARAYANA BHAT

       Vs.

RESPONDENT: STATE OF TAMIL NADU & ORS.

DATE OF JUDGMENT:       16/04/2001

BENCH: V.N. Khare & N. Santosh Hegde

JUDGMENT:

(With WP©No.159/2001,CANo 2804/2001@SLP©No  6412CC 2533/2001, CA No 2805/2001 @ SLP©No 64 13 CC 2543/2001, CA No 2806/2001 SLP©No 6414 CC 2646/2001, CA No 2807/2001 @ SLP©No.5840/2001, CA No 2808-2820/2001 @ SLP©No.5862-74/2001, CA No 2821- 2823/2001 @SLP©No.5887-89/2001, CA No 2824/2001 @ SLP©No.5899/2001, CANo 2825/2001 @ SLP©No.6125/2001, CA No 2826-2827/2001@SLP©No. 6180-81/2001, CA No 2828/2001 @ SLP©No.6187/2001, CA No 2829/2001 @ SLP©No.6188/2001 and CA No 2830/2001 @ SLP©No.6189/2001.)

J U D G M E N T

SANTOSH HEGDE, J.

Leave granted in all the SLPs.

Heard learned counsel for the parties.

L...I...T.......T.......T.......T.......T.......T.......T..J

   The appellants in these appeals having been unsuccessful in  their  challenge before the High Court of Judicature  at Madras  to the validity of Section 326 of the City Municipal Corporation  Act of the State of Tamil Nadu Act 51/1998  and Amended  Act 2/2000 (for short the Acts) and consequential notices issued under the Acts, have preferred these appeals.

   After hearing the parties concerned since we were at ad- idem  with  most of the conclusions arrived at by  the  High Court in its impugned judgment, we thought it appropriate to dispose of the appeals at this stage itself.

   Before  the  High  Court the appellants  challenged  the vires  of  Section  326(J) of the Act, inter  alia,  on  the following grounds :-

   (a)  Advertisement by hoardings was a fundamental  right of   the   appellants   under   Article  19(1)(a)   of   the Constitution;

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   (b)  Power given to the Commissioner under the  impugned Act  to remove any hoarding which he felt was hazardous  was arbitrary,  unreasonable, hence, was violative of Article 14 of the Constitution.

   (c)  The  limitation imposed under the Act for  applying for  licences  could not be enforced in the absence  of  any Rules  and  Forms  providing for  application  for  existing hoarding owners.

   The  High  Court  rejected the said contentions  of  the appellants holding:

   (i)  that  the  writ petitions are not  maintainable  on behalf  of  the  Association of Hoarding owners  since  such associations  had  no  fundamental   right  which  could  be enforced in a court of law;

   (ii) that the petitioners before it were only the owners of  the hoardings and not advertisers, therefore, they could not claim any fundamental right under Article 19(1)(a);

   (iii)  that no guidelines were necessary in the exercise of the power to remove the hoardings under Section 326(J) in view of the interpretation given by it to the said Section;

   (iv)  the  applications  for licences had  to  be  filed within  one month period given by the Commissioner by  means of an advertisement and such period could not be extended.

   Before  us,  the  very same grounds are  urged  and,  as stated  above, we are inclined to agree with the High  Court that  Section  326(J) of the Act is neither ultra  vires  of Article 14 nor Article 19(1)(a) of the Constitution, in view of  the interpretation given by the High Court.  However, we are  inclined to take somewhat a different view in regard to certain  observation  made  by  the High  Court  as  to  the requirement  of  Section 326(J) as also with regard  to  the right of the appellants to have sufficient time to apply for grant  of  licence and renewals under the provisions of  the impugned Amendment for the following reasons :

   The  High Court though rightly held that the  principles of  natural justice is fundamental in Administrative Law and these principles of natural justice even if not found on the face of the Statute, could be deduced from the object of the Act  and  the Rules, erred in coming to the conclusion  that the  authorities were duty bound to remove all the hoardings simply  because  they  are  visible   to  traffic  and   the authorities  had  no  option  but to  remove  all  such  the hoardings  which  are  visible  to  the  traffic.   By  this finding,  the  High Court came to the conclusion  that  mere visibility of the hoarding to the traffic was sufficient for either  removing the hoarding or will be a sufficient ground to  refuse to grant/renewal of a licence.  This  conclusion, in  our opinion, is contrary to the very wording of  Section 326(J) of the Act which reads thus :

   where  any  hoarding (other than traffic sign and  road sign)  visible  to the traffic on the road is hazardous  and disturbance to the safe traffic movement, so as to adversely affect free and safe flow of traffic x x x.

(emphasis supplied).

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   A  plain  reading  of  this   Section  shows  that   the authorities  concerned  are  empowered either to  refuse  to grant  licence/renewal  or to remove the existing  hoardings only  if the same is hazardous and is a disturbance to  safe traffic  movement  which, in turn, should  adversely  affect free  and safe flow of traffic, unless these impediments are present  in the hoardings, merely because the said hoardings are  visible  to the traffic, cannot be a ground for  either refusing the grant/renewal of licence.

   We  are  also  of  the opinion that  in  the  facts  and circumstances of this case, to comply with the principles of natural  justice,  there is a need to grant some  reasonable time  to  the appellants to make necessary applications  for applying  for grant/renewal of the licences as  contemplated under  the  Act  because  of the fact that  there  was  some practical  difficulty for the intending applicants to  apply within the statutory period for such licences/renewals under the  Act.   It  is  to  be  seen  that  under  the  Act,  an application for licence had to be made within 30 days of the Act  coming  into force (i.e.  23.7.1998) but the  necessary procedure  to  be  followed  for  complying  with  the  said direction  was not incorporated in the Act and the same came into  force when the concerned Rules were notified which was done  only  on 10.8.1998.  Because of this delay, we  notice from  the pleadings that the concerned authorities  extended the  said  time  to apply for licences  by  publishing  such extension  of time by notification in the newspaper, but for various  reasons,  we find many of the intending  applicants had   difficulties  in  applying   for  grant  of  licences, therefore,  to do complete justice, we are of the considered opinion  that  such applicants should be given a  reasonable opportunity of applying for licences.

   We  are also of the opinion till such extended time  for applying  for  the licences/renewals and till such  time  as their  applications are decided the Statusquo as existing on today should continue.

   For  the  reasons  stated  above,  while  upholding  the validity  of the Act, we modify the order of the High  Court and  direct that such of the persons intending to apply  for grant of licence/renewal should be permitted to do so within 30  days from today and in such an event, their applications will   be  considered  by   the  concerned  authorities   in accordance  with  Section  326(J),  as  interpreted  by   us hereinabove,  within a reasonable time and till such time as their  applications  are  considered and  disposed  of,  the existing  hoardings shall not be removed.  For the foregoing reasons,  we modify the conclusions and directions issued by the High Court in Para 93 of its judgment as follows:-

   (1)  We  hold that the provisions of Act 51/98  and  Act 2/2000  are valid and intra vires of the Constitution.   The persons  desirous of obtaining a hoarding licence under  the Act  be given 30 days time from today to make the necessary application  in  the  prescribed  form  and  on  payment  of prescribed  fee  and on such applications being  filed,  the licensing  authority  shall consider the same in  accordance with Section 326(J) of the Act, as interpreted by us.

   (2)  If no application for grant of licence is  received within  30 days as stipulated by us hereinabove by any owner of  the existing hoarding, the same shall be removed without

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further  notice  and  also if the application for  grant  of licence  is  rejected in accordance with law, the  necessary consequences contemplated under the Act will follow.

The appeals are, thus, disposed of in above terms.

WP No.159/2001 :

   In  view  of  the order passed in  the  aforesaid  Civil Appeals,  this writ petition is also disposed of in  similar terms.