TMI Blog2008 (4) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se (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 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 traffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by distracting traffic, and their content 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoardings. If the subject-matter that is displayed in such hoardings attracts attention of the drivers of vehicles and which, in 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 hazardous and obstruction 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 obstruction 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 No Objection Certificate 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 Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etter 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 s 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 s 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 s 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 es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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