Facts
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In this case, the constitutionality of Sections 326-A to 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003 (in short “Advertisement Rules”) were challenged in the High Court via writ petitions.
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The writ petitions were dismissed by the High Court.
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Unauthorized hoardings were ordered to be removed by the authorities responsible.
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It was made clear that no licences would be issued or renewed for any hoarding that did not comply with the rules of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) and the Chennai City Municipal Corporation (Licensing of Hoardings and Collection of Advertisement Tax) Rules, 2003.
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In the city of Chennai, a committee was formed to monitor the process of removing illegal and unauthorised hoardings.
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The authorities were ordered to dismantle and demolish all hoardings placed on or in front of any historical or aesthetical landmarks, popular places of worship, educational institutions, and hospitals, as well as any other structures designated by the committee.
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It was further ordered that no Civil Court should hear any action opposing the destruction or removal of the unlawful hoardings and that any writ petitions opposing the destruction be filed with the High Court’s Chief Justice’s Bench.
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The current appeals and writ petitions challenged (attacked) the High Court’s above-mentioned decision.
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The Advertisement Rules were said to be in violation of Article 19(1)(a) of the Constitution. It was also argued that the rules were in violation of Article 14 of the Constitution since private and public hoardings were handled similarly, thereby treating unequal as equals.
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It was argued that the hoardings were nothing more than advertising material and that even if the requirements were accepted to be regulatory for the sake of argument, they had to be relevant to the boundaries of Article 19(2). As a result of the rules, the use of private land for advertising has been restricted.
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It was argued that Article 19(1)(a) allowed for the display of information on hoardings, whether commercial, political, or social, and that no restrictions could be placed on the right to disseminate information on the pretext of preventing obstruction or hazard to traffic movement, which was not covered by Article 19(2) because public order was not affected.
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It was pointed out that allowing hoardings of political groups that were more dangerous was an unsustainable discriminating policy. Authorities were allowed unguided power to adopt alternative rules and a separate yardstick was being used.
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Furthermore, it was claimed that the Advertisement Rules utilised the term “obstruction” to refer to bodily obstruction. Rule 6 and Rule 10 of the Advertisement Rules were also challenged. The right to regulate being exercised in this instance was claimed to be restricted rather than regulatory.
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The Supreme Court dismissed the writ petitions and appeals, held, Tthe permissible legislative abridgement of the right to free speech and expression has been set very narrow and stringently, owing to the realisation that freedom of speech and of the press lay at the foundation of all democratic organisations, because without free political discussion, no public education, which is so important for the proper functioning of popular processes, would be possible.
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In the present case, the relevant 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. Advertisement is not regulated by the Chennai City Municipal Corporation Act, 1919 (4 of 1919) or the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003. They prohibit the erection of any hoarding that is deemed to be unpleasant, damaging, or disruptive. It is impossible to claim that freedom of speech has been violated. The statute’s content, impact, and purpose all indicate that it was not meant to be that way.
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Hoarding licences are required in both public and private venues under the Chennai City Municipal Corporation Act, 1919 (4 of 1919).
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In terms of public spaces, the State has complete authority to control them since they are vested in the State as a trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.
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The District Collector is empowered under Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919) to prohibit the erection of hazardous hoardings and hoardings that are hazardous and disrupt safe traffic movement thus adversely affect the free and safe flow of traffic. The power granted by Section 326-J is not capricious. Any action taken under Section 326-J must be based on natural justice principles and backed up by evidence. Under Section 326-H, a District Collector’s order for action under Section 326-J can be appealed to the State Government. There can’t be a presumption of power abuse just because a public entity has a choice over how it exercises its power.
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Rule 6 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 imposed restrictions on the size, height, spacing, and other limits on hoardings, as well as the requirement that they are erected on steel frames.
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Rule 10 of the 2003 Rules prohibits hoardings from being placed in specific locations, including educational institutions, places of worship, hospitals, road corners, and in front of historical and aesthetic landmarks. As a result, the ability to licence is limited and directed by the factors mentioned above.
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The refusal to award or renew licences can be appealed to the State Government under Rule 11 of the 2003 Rules.
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In the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003, the term “obstruction” refers to any conduct that obstructs the free and safe passage of traffic, pedestrians, and automobiles. However, it has a wide range of meanings and isn’t always limited to physical impediments. If the subject matter shown in such hoardings draws the attention of drivers of vehicles and, as a result, obstructs free and safe traffic movement, such a hoarding would plainly fall under the definition of “obstruction foreseen under Rule 3 of the Act.”
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Rule 3 of the Chennai City Municipal Corporation (Licensing of Hoardings and Levy and Collection of Advertisement Tax) Rules, 2003 does not limit or govern the extent of Section 326-J of the Chennai City Municipal Corporation Act, 1919 (4 of 1919), which works on a larger scale.
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On failure to obtain a no-objection certificate in accordance with Rule 3(iii) would disqualify an applicant for a licence to erect a hoarding in and of itself, Section 326-J prohibits the erection of hazardous hoardings and directs the Commissioner (now District Collector) not to issue any licence under Section 326-C in respect of such hoardings. It also empowers the Commissioner to order the confiscation and removal of any hoardings built in violation of the mandate contained therein.
Issues
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Whether the provisions of 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, alleging that they were in violation of Article 19(1)(a) and Article 14 because private and public hoardings were treated equally, effectively treating unequal as equals.
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Whether the legislation that restricted private land use and that display of information on hoardings, whether commercial, political, or social, was permissible under Article 19(1)(a).
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Whether the right to transmit information could not be restricted on the pretext of preventing hindrance or hazard to traffic flow, and the law was not protected by Article 19(2) since public order was not harmed.
Important citations
Sagir Ahmad v. State of U.P., AIR 1954 SC 728 1 SCR707
In this case, the Court concluded in this decision that the state has complete control over public areas because they are vested in the state as trustee for the public. The state has the authority to impose such restrictions on users of public spaces as are required to safeguard the general public.
P. Narayana Bhat v. State of T.N., (2001) 4 SCC 554
In this case, the Court held that there can’t be a presumption of power abuse just because a public authority has a choice over how it exercises or uses its power.
ITW Signode India Ltd. v. CCE
In this case, the Court concluded in this decision that in the event of a disagreement between a substantive Act and delegated legislation, the former will win since delegated legislation must be understood in the context of the primary/legislative Act and not vice versa.
Hinchliffe v. Sheldon (1955) 1 WLR 1203
In this case, the Court concluded in this decision that “obstructing” the police encompasses anything that makes it more difficult for the officers to carry out their responsibilities and is not limited to physical impediments.
Judgment
Bench: Dr. Arijit Pasayat, S.H. Kapadia
The Supreme Court of India held:
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that, while very narrow and stringent limits had been set for permissible legislative abridgment of the right to free speech and expression, the challenged provisions were regulatory rather than restrictive – there was no ban on advertisements or hoardings, but obstructive and destructive ones were to be prohibited;
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that the State has complete authority to regulate public spaces because they vest in the State as trustees for the public, and the State can impose such restrictions on public place users as may be required to safeguard the public as a whole.
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that hoardings placed on private property must be registered and controlled since they frequently abut and are visible on public roadways and public spaces.
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that hoardings constructed on private buildings may restrict public highways, be unsafe to the building and the public, be hazardous and harmful to the smooth flow of traffic by distracting cars and include obscene or unpleasant content.
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that the fact that the hoarding is on private property does not excuse the government from enforcing hoarding regulations.
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As a result, the Supreme Court determined that it is incorrect to assert that hoardings on private property are not subject to licencing requirements.
Conclusion
Hence, there is no logic in completely excluding private land, state government territory, or land owned by the federal government, such as the railways. The decision to give a licence or not is still up to the municipal corporation, and any breach of the limits set might still result in an application. It went on to say that such exclusion of lands amounted to prohibition and that such restrictions infringe on the basic rights of private landowners to enjoy their properties if a permit for hoardings could be given.
References
The article is written by Sneha Mahawar, a law student at Ramaiah Institute of Legal Studies. This article discusses the right to put hoardings as a constitutional right in accordance with the laws of municipal corporations. It further enhances the case law of Novva Ads vs. Secretary, Department of Municipal Administration and Water Supply, and Another.