Partly allowed

M/S Creation v. State of Hp and Another

Himachal Pradesh HC7 Nov 2024CWP/7542/2023

Case brief

AI extract

What is this about?

Advertisers challenged recovery by Municipal Corporation, Solan under unenforced and unpublished bye-laws regulating hoardings. Holding that Section 116 is inoperative without published bye-laws and that the 2022 bye-laws' penalty conforms to Section 396, the court quashed recoveries prior to September 2022 but permitted fresh notices thereafter.

What did the court decide?

Recoveries sought from petitioners quashed; Corporation restrained from recovering for periods prior to September 2022; liberty to issue fresh notices per 2022 bye-laws.

M/S Creation Vs State of Hp and Another — Municipal and Town Planning | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:11044 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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CWP No. 7542 of 2023 a/w CWP No. 7543 of 2023 and CWP No. 8635 of 2023.

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Judgment Reserved on: 04.11.2024. Date of decision: 7.11.2024.

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1.CWP No. 7542 of 2023. M/s Creation, Deonghat Solan, Tehsil & Distri Versus	ct Solan H.P. …..Petitioner.
The State of Himachal Pradesh and another.	…..Respondents.
2.CWP No. 7543 of 2023.
M/s Uday Raj Advertisers Versus The State of Himachal Pradesh and another.	…..Petitioner. …..Respondents.
3.CWP No. 8635 of 2023.
Pawan Sahni and others Versus	…..Petitioners.
The State of Himachal Pradesh and another. *Coram*	…..Respondents.

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The Hon’ble Mr. Justice Tarlok Singh Chauhan, Acting Chief Justice. The Hon’ble Mr. Justice Satyen Vaidya, Judge.

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Neutral Citation No. ( 2024:HHC:11044 )

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Whether approved for reporting?¹ No

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For the Petitioner(s) : Mr. Navneet Kumar Bhalla, Advocate. For the Respondents : Mr. Anup Rattan, Advocate General with Mr. Rakesh Dhaulta, Mr. Pranay Pratap Singh, Mr. Gobind Korla, Additional Advocates General, Ms. Priyanka Chauhan, and Mr. Arsh Rattan, Deputy Advocates General, for respondent No.1-State in all petitions. None for respondent No.2, in all the petitions.

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Tarlok Singh Chauhan, Acting Chief Justice

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Since common question of facts and law are involved for determination in all these petitions, therefore, they were taken up together for consideration, given the fact that the factual matrix is otherwise not in dispute and, thus, the same are being disposed of by a common judgment.

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In order to maintain clarity, the facts of CWP No. 7542 of 2023 are being taken into consideration. The petitioner-firm herein is running a business of advertisements in the State of Himachal Pradesh. According to it, it has specialization in providing consultation and logistics for brand management of various business hubs and young startups. The petitioner-firm advertises crafts and

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1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes

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Neutral Citation No. ( 2024:HHC:11044 )

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creates flex banners bearing logos and name of business which are fixed at strategic points and locations in various parts of the State. It installs hoardings bearing advertisements of his clients. The hoardings are diligently fixed in such a manner that they are completely safe.

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The grievance of the petitioner is that despite the byelaws having not been published in the gazette of Himachal Pradesh and further not being notified, the same have been illegally enforced upon the petitioner. His further grievance is that the bye-laws, as framed, provide for a penalty other than the one prescribed under the Act and Rules and, therefore, to that extent, the bye-laws are unconstitutional. Hence, this petition.

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Respondent No.2 has filed its reply wherein it has been averred that the petitioner-firm is running a business of advertising products by installing hoardings, billboards within the Municipal Limits, that too, without the permission of the respondents in gross violation of Section 116 of Himachal Pradesh Municipal Corporation Act, 1994 (for short, “the Act”) and, therefore, has been rightly penalized. The averments qua non-publication of the bye-laws framed in the year 2008 have been admitted. However, it is submitted that in the year 2020, the Municipal Council, Solan, was reconstituted as Municipal Corporation and bye-laws regulating the

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Neutral Citation No. ( 2024:HHC:11044 )

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advertisements in the Municipal Area, Solan framed in September, 2022 and were published in the gazette on 10.02.2023. As per Section 116 of the Act, there is a provision of fine of 10,000/- for₹ first time violation and in case of continuous violation, there is a provision for imposing fine of 500/- per day. The bye-laws framed₹ in the year 2008 are not ultra-vires with the provision of Section 216 of the Act.

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We have heard the learned counsel for the parties and have gone through the records of the case.

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In order to have better understanding of the case, it would be apt to re-produce Sections 116, 395, 396 and 397 of the Act which read as under:-

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“ 116. Prohibition of advertisement without written permission of Commissioner. - (1) No advertisement shall be erected, exhibited, fixed or retained upon or over any land, building, wall boarding, frame, post or structure or upon in any vehicle or shall be displayed in any manner, whatsoever in any place within the municipal area without the written permission of the Commissioner granted in accordance with bye-laws, made under this Act.

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(2) The Commissioner shall not grant such permission, if -

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(a) the advertisement contravenes any bye-law made under this Act; or

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Neutral Citation No. ( 2024:HHC:11044 )

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(b) the fee, if any, due in respect of advertisement has not been paid.

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(3) Subject to the provisions of sub-section (2) in the case if an advertisement liable to the advertisement fee, the Commissioner shall grant permission for the period to which the payment of the fee relates and no fee shall be charged in respect of such permission.

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395. Powers to make bye-laws .- Subject to the provisions of this Act, the Corporation may in addition to any bye-laws which it is empowered to make under any other provisions of this Act make bye-laws to provide for all or any of the following matters, namely:-

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A. Bye-laws relating to taxation.-

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(1) the maintenance of tax books and registers by the Commissioner and the particulars which such books and registers should contain;

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(2) the inspection of and the obtaining of copies and extracts from such books and registers and fees, if any, to be charged for the same;

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(3) the publication of rates, of taxes as determined by the Government from time to time;

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(4) the requisition by the Commissioner of information and returns from persons liable to pay taxes;

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(5) the notice to be given to the Commissioner by any person who becomes the owner or possessor or of a vehicle or animal in respect of which any tax is payable under this Act;

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(6) the wearing of badge by the driver of any such vehicle and the display of number plate on such vehicle;

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Neutral Citation No. ( 2024:HHC:11044 )

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(7) the submission of returns by the persons liable to pay any tax under this Act; and

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(8) any other matter relating to the levy, assessment, collection refund or remission of taxes under this Act. B . Bye-laws relating to water supply, drainage and sewage disposal.-

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(1) the power of the Commissioner to close water works for the supply of water, whether for domestic purposes or not, or for gratuitous use and to prohibit the same and use of water for the purpose of business;

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(2) the connection of supply pipes for conveying to any

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premises a supply of water from municipal water works;

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(3) the making and renewing connections with municipal water works;

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(4) the power of the Commissioner to take charge of private connection;

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(5) the power of the Commissioner to alter the position of connection;

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(6) the equitable distribution of water supplied to occupiers;

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(7) the size, material, quality, description and position of the pipes and fittings to be used for the purpose of any connection with or any communication from any municipal water works and the stamping of pipes and fittings and fees for such stamping;

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(8) the size, material, quality and description of pipes, cisterns and fittings which are found on an

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Neutral Citation No. ( 2024:HHC:11044 )

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examination under the provisions of this Act to be so defective that they cannot be effectively repaired;

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(9) the provision and maintenance of meters when water is supplied by measurement;

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(10) the prohibition of fraudulent and un-authorised use of water and the prohibition of fraud in connection with meters;

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(11) the maintenance of pipes, cisterns and other water works;

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(12) the regulation or prohibition of the discharge or deposit of offensive or obstructive matter, polluted water or other polluted and obnoxious matter into sewers;

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(13) the regulation in any manner not specifically provided for in this Act of the construction, alteration, maintenance, preservation, cleaning and repairs of drains, ventilation, shafts, pipes, latrines, urinals, cesspools and other drainage works;

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(14) the cleansing of drains;

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(15) the prohibition of erection of buildings over drains without the permission of the Commissioner;

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(16) the connection of private drains with municipal drains;

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(17) the location and construction of cesspools;

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(18) the covering and ventilation of cesspools;

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(19) the period or periods of the day during which trade effluent may be discharged from any trade premises into municipal drains;

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(20) the exclusion from trade effluent of all condensing water;

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Neutral Citation No. ( 2024:HHC:11044 )

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(21) the elimination from trade effluent, before it enters a municipal drain, of any constituent which in the opinion of the Corporation would, either alone or in combination with any matter with which it is likely to come into contact while passing through municipal drains, injure or obstruct those drains or make specially difficult or expensive the treatment or disposal of the sewage from those drains;

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(22) the maximum quantity of trade effluent which may, without any consent or permission, be discharged from any trade premises into municipal drains on any one day and the highest rate at which trade effluent may, without such consent or permission, be discharged from any trade premises into municipal drains;

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(23) the regulation of the temperature of trade effluent at the time of its discharge into municipal drains and the securing of the neutrality of trade effluent (that is to

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say that is neither acid nor alkaline) at the time of such discharge;

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(24) the charges to be paid to the Corporation by occupiers of trade premises for the reception of trade effluent into municipal drains and disposal thereof;

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(25) the provisions and maintenance of such an inspection chamber or main hole as will enable a person readily to take at any time samples of what is passing into municipal drains from trade premises; and

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(26) the provision and maintenance of such meters as may be required to measure the volume of any trade

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Neutral Citation No. ( 2024:HHC:11044 )

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effluent being discharged from any trade premises into municipal drains, and the testing of such meters. C . Bye-laws relating to streets.-

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(1) the closure of streets when any work is in progress and alternative passage during the progress of such work;

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(2) the erections of a temporary nature during festivals;

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(3) the setting up of boards on buildings adjacent to streets during their construction or repair;

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(4) the precautions to be taken when permission is granted to any private individual for opening or breaking up any public street and the fees to be paid for the restoration of a street in its original sanction;

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(5) the permission, regulation or prohibition of use or occupation of any street or place by itinerant vendors or hawkers or by any person for the sale of articles or the exercise of any calling or the setting up of any booth or stall and the fees chargeable for such occupation,

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(6) any other matter in connection with the construction, repair, maintenance, naming, numbering and lighting of streets for which provision is necessary or should be made.

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D . Bye-laws relating to building.-

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(1) the regulation or restriction of the use of sites for buildings for different areas;

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(2) the regulation or restriction of buildings in different areas;

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Neutral Citation No. ( 2024:HHC:11044 )

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(3) the form of notice of erection of any building or execution of any work and the fee in respect of the same;

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(4) the plans and documents to be submitted together with such notice and the information and further information to be furnished;

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(5) the level and width of foundation, level of lowest floor and stability of structure;

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(6) the construction of buildings and the materials to be used in the construction of buildings;

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(7) the height of buildings whether absolute or relative to the width of streets or to different areas;

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(8) the number and height of storeys composing a building and the height of rooms and the dimensions of rooms intended for human habitation;

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(9) the provision of open spaces, external and internal and adequate means of light and ventilation;

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(10) the provision of means of egress in case of fire, fire escapes and water lifting devices;

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(11) the provision of secondary means of access for the removal of house refuse;

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(12) the materials and methods of construction of external and party walls, roofs and floors;

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(13) the position, materials and methods of construction of hearths, smoke escapes, chimneys, staircases, drains, latrines and cesspools;

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(14) the provisions of lifts;

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(15) the paving of yards;

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(16) the restrictions on the use of inflammable materials in buildings;

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(17) the restrictions on construction of foundation on

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Neutral Citation No. ( 2024:HHC:11044 )

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certain sites;

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(18) the measures to be taken to protect buildings from damp arising from sub-soil;

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(19) the wells, tanks and cisterns and pumps for the supply of water for human consumption in connection with buildings;

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(20) in the case of wells, the dimensions of the well, the manner of enclosing it and if the well is intended for drinking purposes the means which shall be used to prevent pollution of the water;

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(21) the supervision of buildings;

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(22) the setting back of garages and shops from the regular line of a street;

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(23) the construction of portable structures and permission for such construction.

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E . Bye-laws relating to sanitation and public health.-

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(1) the position of latrines and urinals;

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(2) the provision of air spaces between latrines and buildings of places used for various purposes;

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(3) the white washing of buildings;

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(4) the provision of living accommodation for sweepers in buildings newly erected requiring ten or more latrines;

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(5) the regulation or prohibition of the stabling or herding of animals or any class of animals so as to prevent danger to public health;

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(6) the seizure of ownerless animals straying within the limits of the municipal area and the regulation and control of ponds;

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(7) the fixing and regulation of the use of public bathing and washing places;

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Neutral Citation No. ( 2024:HHC:11044 )

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(8) the prevention of the spread of dangerous diseases;

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(9) the segregation in or the removal or expulsion from any part of the municipal area or the destruction of animals suffering or reasonably suspected to be suffering from any infectious or contagious disease; (10) the supervision, regulation, conservation and protection from injury, contamination or trespass of sources and means of public water supply and of appliances for the distribution of water;

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(11) the enforcement of compulsory vaccination and inoculation;

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(12) the proper disposal of corpses, the regulation and management of burning and burial places and other places for the disposal of corpses and the fees chargeable for the use of such places where the same are provided or maintained at the expense of the Corporation Fund.

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F . Bye-laws relating to public safety and suppression of nuisances.-

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the regulation or prohibition for the purposes of sanitation or the prevention of disease or the promotion of public safety or conveniences of any act which occasions or is likely to occasion a nuisance and for the regulation or prohibition of which no provision is made elsewhere by this Act.

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G . Bye-laws relating to markets, slaughter houses, trades and occupations.-

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(1) the day on, and the hours during which any market or slaughter house may be kept open for use;

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Neutral Citation No. ( 2024:HHC:11044 )

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(2) the regulation of the design, ventilation and drainage of markets and slaughter houses and the materials to be used in the construction thereof;

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(3) the keeping of markets and slaughter houses and the lands and buildings appertaining thereto in a clean and sanitary condition, the removal of filth, rubbish and other polluted and obnoxious matter therefrom and the supply therein of pure water and of a sufficient number of latrines and urinals for the use of persons using or frequenting the same;

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(4) the manner in which animals shall be admitted in slaughter houses;

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(5) the manner in which animals may be slaughtered; (6) the provision of passage of sufficient width between the stalls in market buildings and market places for the convenient use of the public and the prevention of encroachment of such passage;

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(7) the setting apart of separate areas for different classes of articles in market building and market places;

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(8) the disposal or destruction of animals offered for slaughter which are, from disease or any other cause, unfit for human consumption;

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(9) the destruction of carcasses which from any disease or any other cause are found after slaughter to be unfit for human consumption;

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(10) the regulation of the entry of animal into slaughter house and bringing out of the carcasses of such animals safer slaughter and the fee to be paid for use of slaughter houses;

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Neutral Citation No. ( 2024:HHC:11044 )

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(11) the proper custody and care of animals for the keeping of which licences are granted under section 324;

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(12) the regulation of the import of animals and flesh within the municipal area;

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(13) the rendering necessity of licences for the use of premises within the municipal area as stables or cow houses or as an accommodation for sheep, goat or buffalo and the fees payable for such licences and the conditions subject to which such licences may be granted, refused, suspended or revoked;

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(14) the regulation of sarais, hotels, dak bungalows, lodging houses, boarding houses, buildings, let-intenements, residential clubs, restaurants, eating houses, cafes, refreshment rooms and places of public;

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(15) recreation, entertainment or resorts;

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(16) the control and supervision of places where dangerous offensive trades are carried on so as to secure cleanliness therein or to minimise injurious, offensive or dangerous effects arising or likely to arise therefrom;

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(17) the regulation of the posting of bills and advertisements and of the position, size, shade or style of the name boards, signing boards and signposts;

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(18) the fixation of a method for the sale of articles whether by measure, weight, piece or any other method;

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(19) the procedure regarding grant of permit to establish a factory, workshop or trade premises;

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Neutral Citation No. ( 2024:HHC:11044 )

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(20) the regulation of smoke in factories, workshop and trade premises;

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(21) the regulation of sanitary conditions in factories, workshops and trade premises;

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(22) the regulation of the use in any factories, workshops or trade premises of, whistle, trumper, siren or horn worked by steam, compressed air, electricity or other mechanical means;

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(23) the prevention of nuisance in any market building, market place, slaughter house or any factory, workshop or trade premises;

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H . Bye-laws relating to improvement.-

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(1) the form and contents of an improvement scheme or a rehousing scheme;

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(2) the procedure to be followed in connection with the framing, submission, approval and sanction of such scheme;

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(3) the local inquiries and other hearings that may be held before a scheme is framed, approved or sanctioned;

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(4) the alteration of an improvement scheme or a rehousing scheme after approval and sanction.

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I. Bye-laws relating to miscellaneous matters.-

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(1) the prevention and extinction of fire;

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(2) the circumstances and the manner in which owners of land or building in the municipal area temporarily absent therefrom or not resident therein may be required to appoint as their agents for all or any of the purposes of this Act or of any bye-laws made thereunder, persons residing within or near the municipal area;

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Neutral Citation No. ( 2024:HHC:11044 )

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(3) the regulation and control of Corporation hospitals and dispensaries;

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(4) the rendering of necessary licences-

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(a) for the proprietors or drivers of hackneycarriages, cycles rickshaws, thetas, the rehries kept or plying for hire or used for hawking articles;

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(b) for persons working as job porters for the conveyance of goods;

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(5) the classification of cinema theatres for the purposes of levying theatre-tax;

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(6) any other matter which is to be or may be prescribed by bye-laws made under this Act or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Corporation, necessary for the efficient municipal government of the municipal area.

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396. Penalty for breaches of bye-laws .-¹ [(1)] Any bye-laws made under this Act may provide that a contravention thereof shall be punishable,-

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(a) with fine which may extend to 2 [fifty thousand rupees]; or

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(b) with fine which may extend to 3 [fifty thousand rupees] and in the case of continuing contravention, with an additional fine which may extend to 4 [five thousand rupees]for every day during which such contravention continues after conviction for the first contravention; or

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(c) with fine which may extend to 5 [five thousand rupees] for every day during which the contravention continues, after the receipt of a notice from the Commissioner or any

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Neutral Citation No. ( 2024:HHC:11044 )

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Corporation Officer duly authorised in that behalf by the person contravening the bye-law requiring such person to discontinue such contravention. (2) Any such bye-law may also provide that a person contravening the same shall be required to remedy, so far as lies in his power, the mischief if any caused by such contravention.

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397. Supplemental provisions respecting byelaws .- Any power to make bye-laws conferred by this Act is conferred subject to the condition that bye- laws being made after previous publication by the Corporation, after having been published in Official Gazette for inviting public objections:

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Provided that State Government may cancel any such bye-law if found to be contrary to the provisions of this Act or the rules made thereunder and thereupon the bye-law shall cease to have effect.]”

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A perusal of Section 116 of the Act (supra) would go to indicate that this provision is virtually toothless in absence of byelaws. As regards the bye-laws, it would be noticed that as per the respondents themselves, the bye-laws framed in the year 2008 were never published and even in the year 2020 when the Municipal Council, Solan was reconstituted as Municipal Corporation, the bye-laws regulating the advertisements of Municipal Area, Solan, though framed in September, 2022, actually came to be published on 10.02.2023 and would, therefore, essentially in terms

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Neutral Citation No. ( 2024:HHC:11044 )

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of Section 397 of the Act came into force from the date of publication. Meaning thereby that the respondent No.2-Corporation cannot and could not have enforced the provisions of Section 116 of the Act or for that matter the bye-laws against the petitioner uptill the said date and it is only thereafter that respondent No.2 could have enforced its claim regarding violation of the provisions of the Act and the bye-laws against the petitioner.

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As regards the contention that the bye-laws, as framed, are contrary to the provisions of the Act, we find no force in such contention since the bye-laws as framed in the year 2008, as observed above, could not be enforced against the petitioner(s) as the same were not published at that relevant point of time. However, thereafter, respondent No.2 has framed Municipal Corporation, Solan Outdoor Advertisements Bye-laws 2022, which are now being enforced against the petitioner, wherein as per bye-law 18, penalty for breach of bye-laws is 10,000/- and in continuous breach,₹ ₹500/- per day, which in no manner can be said to be contrary to the Act, as is evident from perusal of Section 396 of the Act (supra), which provides for a fine extending upto 50,000/- and in case of₹ continuous contravention, additional fine extending to 5,000/- for₹ every day during which such contravention continues.

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Neutral Citation No. ( 2024:HHC:11044 )

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In view of the aforesaid discussion and for the reasons stated above, all the petitions are partly allowed. The recoveries, as sought, to be effected from the petitioner(s) are quashed and setaside. However, this order will not come in the way of respondent No.2 in case it chooses to issue fresh notice for recovery against the petitioner(s), which needless to say, shall be strictly in accordance with the bye-laws, 2022 and such recoveries can be effected only from September, 2022 onwards and respondent No.2 is restrained from effecting any recoveries from the petitioner(s) prior to the said date.

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All pending application(s), if any, shall also stand disposed of.

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(Tarlok Singh Chauhan) Acting Chief Justice

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(Satyen Vaidya) Judge

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7^th November, 2024. ( krt )

M/S Creation v. State of Hp and Another

Case brief

What is this about?

What did the court decide?

M/S Creation v. State of Hp and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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