A municipal advertising allottee sought protection against removal of hoardings and return of removed boards. The Court disposed of the petition recording the Corporation's stand that permitted hoardings had not been removed, and directed removal of hoardings exceeding permission or violating applicable provisions and judicial directions.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
TUESDAY, THE 02ND DAY OF JULY 2019 / 11TH ASHADHA, 1941
WP(C).No.14814 of 2019
PETITIONER:
A.H.SADHIQUE AGED 54 YEARS S/O. HAMEED, SOPANAM ALUNKAL HOUSE, ARANGATH CROSS ROAD, PULLEPPADY, ELAMKULAM VILLAGE, ERNAKULAM.
BY ADV. SRI.RAJESH VIJAYAN
RESPONDENTS:
1 KOCHI MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, ERNAKULAM-682011.
2 RESECRETARY, KOCHI MUNICIPAL CORPORATION, CORPORATION OFFICE, ERNAKULAM-682011.
BY ADV. SRI.K.ANAND, SC, COCHIN CORPN.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
The petitioner, who is stated to the highest bidder in the auction conducted by the 1st respondent Municipal Corporation for erecting advertisement boards/hoardings at the places specified in that notification, for the period from 01.04.2018 to 31.03.2020, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of mandamus commanding the respondents not to remove any advertisement boards erected by him in the authorised areas, as per Ext.P3 to P11 agreements, i.e., (i) near Kaloor Stadium, (ii) near Kaloor Cancer Centre (iii) near Usha Tourist Home, Kacheripady, (iv) near Mullassery Canal Road, (v) near Yathra Auditorium - South side, (vi) near Hospital Road, east end north side (vii) near South Railway Station Road, (viii) near western side of Luciya Hotel, (ix) near Mattanchery Boat Jetty Park, Thoppumpady Bus Stop - Ernakulam side, Thoppumpady Bus Stop - Edakochi side, Thoppumpady BOT Bridge. The petitioner has also sought for a writ of mandamus commanding the respondents to return all advertisement boards removed by the respondent from the authorised area allotted to the petitioner.
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opposing the reliefs sought for in this writ petition. Paragraph 3 to 5 of the said counter affidavit reads thus;
"3. It is submitted that Cochin Corporation Finance Standing Committee has recommended the Corporation Council to invite tenders vide decision dated 15.03.2017 Serial No12 to erect hoardings for advertisement in the public places within the jurisdiction of Cochin Corporation for the period 2017-2018. On 14.06.2017 vide Serial No 160 Corporation Council has agreed the recommendation of Corporation Finance Standing Committee and has invited tenders for erecting hoarding within the jurisdiction of Cochin Corporation. Tenders were invited for 22 places
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in the eastern region and 4 places in the western region. True copy of the tender condition vide MOR10/615/17 dated 08.12.2017 along with place of hoardings is produced herewith and marked as Exhibit R1.
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has removed the hoarding from the places not allotted to the petitioner at the expense of the corporation considering it as unauthorized hoardings."
others [2019 (2) KHC 19] and none of the authorised hoardings have been removed.
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erecting hoardings in 22 places in the Eastern Zone and 4 places in the Western Zone, subject to Ext.R1 tender conditions dated 08.12.2017, the petitioner was permitted to erect hoardings at the places mentioned in Ext.R2 table. The petitioner remitted the requisite fee for the year 2018-19, vide Ext.P1 cash receipts and that for the period 2019-2020, vide Ext.P2 cash receipts. Exts.P3 to P11 are agreements dated 01.04.2018 executed between the petitioner and the respondents for erecting hoardings at the respective places. The places, the size and number of hoardings, which the petitioner is permitted to erect is specifically mentioned in Ext.R2 table. In the counter affidavit filed by the respondents,
the specific stand is that the Corporation has removed only unauthorised hoardings and banners, in pursuance to the judgment of this Court and also the Government orders governing the field and that, the Corporation has not removed any hoardings allotted to the petitioner.
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the term 'Municipality' to mean a Town Panchayat, a Municipal Council or a Municipal Corporation. As per Rule 3, no person shall erect any type of arches or set up advertisement boards in or upon any public street, road or public places within the municipal area except with the licence of the Municipality. Rule 4 deals with procedure for granting permission and Rule 5 deals with power of the Secretary to demolish unauthorised arches and advertisement boards. Rule 6 deals with levy of fees for erecting arches and setting up of advertisement boards.
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Specifications and Standards Committee; Bridges Specifications and Standards Committee; and General Specifications and Standards Committee. There are Technical Committees under each Apex Committees. The Director General (Road Development) and Special Secretary, MoRTH; the President and Secretary General of Indian Road Congress are Ex-Officio members of all Technical Committees.
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distance may be reduced to 50m, provided there is no conflict with the requirements stated further on. As per the Note to sub-para (1) of Para.3.1.1, the safe stopping distance for a vehicle travelling at a speed of 50km/hr, is 60m. This should be the 'uninfluenced distance' for a driver approaching a junction. Assuming that 3 seconds is the time during which the influence of an advertisement board persists, the distance travelled in this time will be about 40m. The sign should, therefore, be more than 100m away from the junction.
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Transport Authority, or a Local Authority; and as per sub-para (5), in such a form as will obscure or hinder interpretation of any sign, signal or other device erected for traffic control by Public Authorities.
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of the cases for which the maximum area of advertisement is specified in clause 3.1.1. Para.5 of IRC:46-1972, which deals with conditions for permits.
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Officers within their jurisdiction shall inspect the National Highways by prioritising heavily traffic National Highways and other National Highways in stages and submit inspection reports to the Ministry for further necessary action, along with their monthly reports. However, reports from the Regional Officers/Engineering Liasoning Officers are not being received by the Ministry and therefore, the Ministry vide letter dated 07.09.2016 directed all the implementing agencies and Regional Officers/Engineering Liasoning Officers to do joint inspection of all National Highways within their jurisdiction and sent a consolidated report regarding advertisement hoardings to the Ministry for further necessary action. A copy of the said letter is addressed to all Engineers-in-Chief and Chief Engineers of Public Works Departments of State/Union Territories dealing with National Highways and other Centrally Sponsored Schemes.
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margins and recover the costs from those responsible for erecting the same, and also to erect and establish proper destination boards and traffic signals in the public roads leading to Sabarimala. In the said writ petition, the State Police Chief filed a counter affidavit through the Assistant Inspector General of Police, Thiruvananthapuram admitting the large number of unauthorised advertisements and hoardings in National Highways as well as in State Highways, blocking the line of sight of drivers and also causing distraction to the drivers. In the counter affidavit, it has also been stated that all District Police Chiefs have been alerted to take appropriate actions to see that advertisement/sign boards which are obstructing the vision of the road users shall be removed by seeking assistance of other Departments. Reports have been called for from the District Police Chiefs regarding the cases registered in connection with the erection of illegal boards or flex boards on road margins, etc.
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their toes in ensuring safety of the users of National Highways and State Highways as also other roads, particularly, in the context of the danger caused by unauthorised erection of the hoardings and advertisement boards. The Division Bench observed that the grievance of the petitioner Society stands redressed for the present and the State would act in accordance with the statements in the counter affidavit made on behalf of the State Police Chief. But looking at the totality of the circumstances, the Division Bench deemed it fit to direct the 3rd respondent Transport Commissioner, to take appropriate action through the officers deployed towards the end of law and order administration and ensure that the various enactments referred to in the counter affidavit filed on behalf of the State Police Chief and in Ext.P1 petition filed by the petitioner therein are implemented with the zeal and promptitude the situation calls for and in appropriate circumstances and situations; co- ordinate with the Local Self Government Institutions to prohibit erection of advertisement boards and hoardings completely or partially according to the need of a particular location. In the said judgment, the Division Bench has also noted the stand of the National Highway Authority of India that the Local Self Government
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Institutions have absolutely no authority to sanction erection of the hoardings or advertisement boards in National Highways. Paragraphs 4, 5 and also the last paragraph of the judgment of the Division Bench dated 21.02.2013 in W.P(C)No.27011 of 2012, read thus;
“ 4. In the context of the counter affidavit filed and the statements made therein, we are of the opinion that the State and its law and order administration are on their toes in ensuring safety of the users of the National and State highways as also other roads particularly in the context of the danger caused by unauthorised erection of the hoardings and advertisement boards. We are sure that the grievance of the petitioner stands redressed for the present and the State would act in accordance with the statements in the counter affidavit, made on behalf of the Police Chief.
5. However, we confess to a disquiet and foreboding in our minds, more so, by what we see on the roads on a daily basis. We are not for a moment doubting the statement made in the counter affidavit nor are we importing our personal knowledge into deciding this issue. But looking at the totality of the circumstances, we deem it fit that we direct the 3rd respondent to take appropriate action through the officers deployed towards the end of law and order administration and ensure that various enactments referred to in the counter affidavit and Ext.P1 are implemented with the zeal, and promptitude the situation calls for and in appropriate circumstances and
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situations; coordinate with the Local Self Government Institutions to prohibit erection of advertisement boards and hoardings completely or partially according to the need of a particular location. We also had the benefit of hearing the learned counsel for the National Highway Authority of India, who has stated before us that the Local Self Government Institutions have absolutely no authority to sanction erection of the hoardings or advertisement boards in the national highways. We need not alert the authority of the National Highway Authority of India in the State, to bring such incidents to the notice of the 3rd respondent; who is duty bound to prohibit the same.
In the circumstances, and in the context of the statements made in the counter affidavit, we close the writ petition with the aforementioned directions. The parties are left to suffer their costs.”
20. In St.Stephens Malankara Catholic Church's case
(supra) this Court has issued various directions to control the hazard of unauthorised boards/flexs/banners at public places. Paragraph 10 of the said decision reads thus;
"10.Certainly, therefore, the time has come for this Court, to take cognizance of this and issue orders. I, therefore, order: (a) That all unauthorised flex boards / advertisement boards / banners / flags / hoardings which are now remaining on the public spaces / streets in this State shall be forthwith removed by the Secretaries of the concerned Local Self
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Government Institutions within a period of 10 days from today.
(b) Every unauthorised board / banner / flag / hoarding which remains after 10 days from today will become the personal responsibility of the concerned Secretary / Field Staff of the Local Self Government Institutions; and as I have already cautioned in my earlier order dated 23/10/2018, the advertisement tariff and penalties for such boards will be recovered from such officers, through a personal recovery action to be initiated under the provisions of law, including the Revenue Recovery Act.
(c) Since the State Government, as has been stated before me by Shri. K. V. Sohan, has virtually adopted the stand that they have no effective mechanism in enforcing orders against the Secretaries of the Local Self Government Institutions, and consequently, that the entire responsibility to enforce such orders / directives are on such officers, I order that the District Collectors of the respective districts shall, after a period of 10 days from today, cause an inspection of the territory under them and initiate action with respect to each unauthorised board / banner / flag / hoarding and make the concerned Secretary / Field Staff of the said Institution personally responsible and initiate action against them. (d) The concerned Secretary / Staff of the Local Government Institution shall, within the next 10 days, remove each of the unauthorised boards / banners / flags / hoardings, but shall not deposit them in the public disposal system and shall return each of them to the persons / entities who place or
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erect it illegally. They shall also, in addition to this, charge these persons / entities the applicable Tariff and Penalty and initiate action for recovery, failing which they will become responsible for such amounts. I further order that when any unauthorised board / flag / banner / hoarding is detected and consequentially removed and returned to the entity / person, an appropriate criminal case, either under the IPC or under the Highway Act or under the Police Act or all of them shall be charged and registered against the persons / entities responsible for its erection and the Station House Officer of the Local Police Station will be responsible for the registration and investigation of such offences, once information to that effect is given by the Local Self Government Institutions to them.
(e) The State Police Chief will ensure that all Station House Officers of the Police Stations under him are adequately instructed to register cases against the entities / persons who erect such unauthorised boards / banners / flags / hoardings, once such information is given to them by the Authorities of the Local Self Government Institutions and that investigation into such crime shall be conducted without fear or favour. (f) State Police Chief will also instruct the Station House Officers of all Police Stations to afford effective and adequate protection to the Secretaries, Field Staff and other employees of the Local Self Government Institutions, whenever such a requisition is made, so as to enable such persons to act in terms of this order without intimidation. (g) Even though the Government has appointed two officers
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at the highest level as the "Nodal Officers" the experience in the past few months has shown that these officers have thoroughly failed in what was entrusted to them; and I, therefore, am of the firm opinion that a Nodal Officer for each district now becomes imperative. I, resultantly direct the Government to appoint the respective Deputy Directors of Panchayaths and Regional Joint Directors of Urban Affairs to be the Nodal Officers, who will oversee the implementation of the orders of this Court as well as the Circulars and Orders of the Government and they will be in overall supervision and control over the entire exercise in future. The notification for this purpose shall be issued by the Principal Secretary, Local Government Institutions, within a period of one week from the date of receipt of copy of this order.
(h) The respective Deputy Directors of Panchayaths and the Regional Joint Directors of Urban Affairs will publish their phone numbers, e - mail addresses and whatsapp numbers, if available, by making suitable notifications and publications, so that any member of the public and the citizenry of this State can approach said officers, whenever a violation is noticed by them. This shall be done by the respective officers without any delay but within a period of three days after the Government notifies them as the Nodal Officers."
streets and other places has to be made strictly in accordance with the provisions referred to hereinbefore and also the law laid down in the decision referred to supra. If the petitioner has chosen to exhibit
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advertisements at the places mentioned in Ext.R2 table, beyond the permission granted under Exts.P3 to P11 agreements, or in violation of the provisions referred to hereinbefore or the law laid down in the decisions referred to supra, the officials of the 1 st respondent Corporation can certainly remove those hoardings.
In such circumstances, this writ petition is disposed of recording the stand taken in the counter affidavit filed by the respondents that they have not removed any hoarding erected by the petitioner, as permitted in Ext.R2 table. If the petitioner has exhibited advertisements at the places mentioned in Ext.R2 table, beyond the permission granted under Exts.P3 to P10 agreements, or in violation of the provisions referred to hereinbefore or the law laid down in the decisions referred to supra, the officials of the 1 st respondent Corporation shall remove those hoardings.
Sd/-
ANIL K.NARENDRAN
JUDGE
sru
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APPENDIX
PETITIONER'S EXHIBITS:
| EXHIBIT P1 | TRUE COPY OF TWO CASH RECEIPTS SHOWING THE PAYMENT FOR THE YEAR 2018-2019. |
|---|---|
| EXHIBIT P2 | TRUE COPY OF THE CASH RECEIPTS FOR THE PERIOD 2019-2010. |
| EXHIBIT P3 | TRUE COPY OF THE AGREEMENT DATED 01.04.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS FOR THE AREA NEAR THE KALOOR STADIUM. |
| EXHIBIT P4 | TUE COPY OF THE AGREEMENT DATED 01.04.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR KALOOR CANCER CENTRE. |
| EXHIBIT P5 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR USHA TOURIST HOME, KACHERIPPADY. |
| EXHIBIT P6 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR MULLASSERY CANAL ROAD. |
| EXHIBIT P7 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR YATHRA AUDITORIUM SOUTH SIDE. |
| EXHIBIT P8 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR HOSPITAL ROAD, EAST END NORTH SIDE. |
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| 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR SOUTH RAILWAY STATION ROAD. |
|
|---|---|
| EXHIBIT P10 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR WESTERN SIDE OF LUCIYA HOTEL. |
| EXHIBIT P11 | TRUE COPY OF THE AGREEMENT DATED 01.10.2018 EXECUTED BETWEEN THE PETITIONER AND THE 1ST RESPONDENT FOR ERECTING ADVERTISEMENT BOARDS NEAR MATTANCHERY BOAT JETTY PARK, THOPPUMPADY BUS STOP ERNAKULAM SIDE, THOPPUMPADY BUS STOP EDAKOCHI SIDE, THOPPUMPADY BOT BRIDGE. |
| EXHIBIT P12 | TRUE COPY OF THE REPRESENTATION PREFERRED BY THE PETITIONER BEFORE THE 2ND RESPONDENT SECRETARY OF COCHIN CORPORATION. |
| EXHIBIT R1 | TRUE COPY OF THE TENDER CONDITION VIDE MOR 10/6157/2017 DATED 08.12.2017 |
| EXHIBIT R2 | TRUE COPY OF THE TABLE STATING THE PLACES ALLOTTED |
1 issue framed by the court
Could the Corporation remove hoardings at allotted locations if they exceeded contractual permission or violated applicable provisions and judicial directions?
Colour shows how this judgement treated each authority
St.Stephens Malankara Catholic Church v. State of Kerala and othersApplied¶72
[2019 (2) KHC 19]
Centre for Consumer EducationRelied on¶62
W.P.(C) No.27011 of 2012
2 provisions across 1 enactments
A.H.SADHIQUE
KOCHI MUNICIPAL CORPORATION
RESECRETARY, KOCHI MUNICIPAL CORPORATION
ANIL K.NARENDRAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
