RAFIQ, J. - (1.) ALL the aforesaid writ petitions filed by different advertising companies/agencies seek to a challenge similar notice issued to them by the Jaipur Municipal Corporation on similar grounds. They were therefore heard together and are being decided by this common judgment.
(2.) HEARD learned counsel for the petitioners, learned counsel for Municipal Corporation, Jaipur, State of Rajasthan and Union of India (Railways ). Learned Counsel for the petitioners argued that the hoardings which were put up by them on private buildings under due permission/licence from the respondent-Municipal Corporation are being abruptly sought to be removed by issuing a general notice dated 26. 4. 2007 which in fact is a similar notice in respect to all the petitioners and all hoardings in Jaipur. In the notice, it is stated that such hoardings, most of which are situated in densely populated areas, are posing thereat to public safety and proving hazardous to the traffic. Notice therefore required the petitioners to remove the hoardings within three days or else the Corporation shall proceed to do so at the cost of the petitioners. The notice lastly stated that if the petitioner wanted to advertise, they could do so by putting unipole at the same site and for that purpose, they should submit their proposals. Shri Sagar Mal Mehta, learned Senior Counsel appearing for the petitioners submitted that the respondents have arbitrarily decided to remove all these hoardings inasmuch as, the notices have been mechanically issued without reference to any particular site or hoarding and the kind of hazard which such hoarding was posing. No details have been furnished as to which hoarding at which site is deficient in what nature of parameters laid down by the bye-laws. Decision not to continue the hoardings at the private buildings has been taken at the executive level whereas the bye-laws issued by the Government under approval of this Court clearly provide for putting up the hoardings at private sites. It is contended that the respondents are wrongly relying on sub-clause (5) of clause 13 of the Jaipur Municipal Corporation (Advertisement) Bye-Laws, 2004 (for short "the Bye- laws") which is general in nature whereas special provision with regard to the private buildings is contained in clause 12 (2) (7) While, clause 13 (5) provides that both width and length of the hoarding will be 20 feet but its height from the surface of the ground shall not be above 7 feet but sub-clause (7) of clause 12 (2) has given different parameters for the hoardings to be put up on the private buildings by providing that it shall not be above 18 mtrs. from the surface of the ground. It is therefore contended that respondents are by arbitrary executive fiat trying to override the provisions of the Bye-laws. Their action is completely without the authority of law. Impugned-notices dated 26. 4. 2007 are liable to be set-aside because they have been issued without due application of mind. While on one hand, the said notice has stated that the hoardings have been put up by the petitioners without permission of the Municipal Corporation but on the other hand, the Corporation has been regularly accepting the licence fee from the petitioners and in view of that, allowing them to continue to display the hoardings at the disputed sites. The decision imposing a complete ban on the display of hoardings on private buildings being contrary to the Bye-laws is absolutely illegal, arbitrary and capricious. The petitioners had to rush to this Court as the remedy of appeal provided under clause 26 of the Bye-Laws is in fact no remedy in the eye of law because the appellate committee had no power to entertain and grant any interim relief inasmuch as, subsequent to implementation of the notice/order, this remedy would be a mere eye-wash. It was argued that in the facts of the case when it is evident that the decision has been taken by an incompetent authority and without affording any opportunity of hearing to the petitioners, the decision being completely lacking in jurisdiction, would be amenable to challenge before this Court in its writ jurisdiction. It is further submitted that in case respondents wanted the petitioners to adhere to a particular provision of the Bye-Laws in respect of any particular hoarding, they ought to have atleast required the petitioners by providing them reasonable opportunity to put up their case before them or if necessary, to make necessary amends so as to bring the same in conformity with such bye-laws but the decision having been taken abruptly and without opportunity of hearing cannot be allowed to be given effect to. It is therefore prayed that the impugned notices 26. 4. 2007 impugned in all these petitions being arbitrary and unreasonable violates article 14 and 19 (1) (g) of the Constitution of India and are therefore liable to be quashed and set-aside. Shri Ajeet Kumar Sharma, the learned counsel for the petitioners also submitted that when clause 12 (7) (2) of the Bye- laws has given a different parameter as to the height of a hoarding at private buildings being 18 mtrs. from the surface of the ground, the guidelines contained in clause 13 (5), which are general in nature restricting the height of the hoardings upto maximum 27 feet from the surface of the ground, cannot be applied particularly when the Municipal Corporation itself pursuant to the judgment dated 3. 8. 2005 of the Single Bench of this court in S. B. Civil Writ Petition No. 2390/05 (N. S. Publicity Agencies & Ors. vs. State of Rajasthan & Ors.) permitted the petitioners to display hoardings at those places without any objection as to the height. It is argued that the notice having been issued by the concerned Commissioner in excess and outside the scope of his powers is liable to be set-aside. When the Bye-laws envisage and in fact provide for putting up hoardings on private buildings, blanket ban like the one, which has been imposed by the Municipal Corporation in the impugned notices, cannot be sustained in law. It is argued that no opportunity of hearing was provided to the petitioners prior to passing of the aforesaid order which although styled as notice, partakes the character of a final order vitally affecting the petitioners right specially their right specially their right to trade guaranteed vide Article 19 (1) (g) of the Constitution of India. These hoardings are located at a certain height from surface of the ground, therefore, the direction contained in the said notice requiring the petitioners to submit alternative proposals for putting up unipoles model of the hoarding at these very sites, suffers from total non-application of mind because the respondents themselves are permitting the unipoles only on the surface of the ground. It is contended that the ostensible reason given in the order/notice that the hoardings have been displayed without due permission, is pulpably false because the respondents have been regularly accepting the license fee from the petitioners and have been permitting the hoardings to continue on the disputed sites. When the hoardings were not unsafe till now and were not causing any threat to public safety, how suddenly they can become hazardous or unsafe, is difficult to understand. Such an assumption is completely unfounded inasmuch as, the respondents have to indicate with reference to the site of the individual hoarding as to how and in what manner it violates the safety conditions as provided in the bye-laws. Cited reason thus lacks in bonafides because if at all the respondents wanted to adhere to such a requirement, they could require the petitioners to remove the defects so as to bring the hoardings at a private site in dispute as per the measures provided for in the Bye-laws. The appeal is not efficacious remedy because appellate committee has no power to grant interim-relief inasmuch as, the appellate committee consists of those who have taken a decision to remove those hoardings therefore such a remedy would be a mere eye-wash. On the other hand, Shri Manish Bhandari, learned counsel appearing for the Municipal Corporation submitted that the action is being taken in the interest of public at large so as to ensure that they are not exposed to risk and hazard to their life. Action in fact is in conformity with the judgment of the Division Bench of this Court in D. B. Civil Review Petition No. 2116/2004 decided on 31. 3. 2005 in which this Court noticed and approved clause No. 13 (5) of the Bye-Laws which requires the width and length of the hoardings to be 20 feet each with 7 feet extra being allowed from the surface of the ground thus, permitting maximum 27 feet height. Shri Manish Bhandari referred to certain photographs to show that the hoardings at various places have been put up in an indiscriminate manner regardless of load bearing capacity of the building and at certain places, in breach of the aforesaid clause 13 (5) with regard to its height which was noticed and approved by the Division Bench. It was argued that the clause 13 of the Bye-laws shall have to be interpreted keeping in mind the public safety and the risk involved in continuing the hoardings at the disputed sites. The respondents have taken a uniform policy decision not to allow any hoarding, irrespective of the nature of hoarding and title of the property, whether Government or private, beyond the height of 27 feet from the surface of the ground, with the size of 20 feet wide and 20 feet high with distance of atleast 1 feet from one another. The respondents have for safety reasons now decided to adopt the policy of advertising by putting up Unipoles on the surface of the ground. It was argued that the petitioners have the remedy of appeal under clause 26 of the Bye-laws which is an effective and efficacious remedy and if ultimately, the appellate committee is convinced that a particular hoarding is in conformity with this policy, it can always direct for its restoration. It was argued that as per the survey conducted by the respondents, there are in all 47 such sites of hoardings on different private buildings which are violating the provisions of clause 13 (5) and directions of the Division Bench and as of now the respondents are proceeding to remove hoardings from only such 47 sites whereat cluster of hoardings have been put up by the petitioners and others. It was argued that in the original judgment passed by the Division Bench in Suo Motu vs. State of Rajasthan and Ors. : DBCWP No. 4783/2003 on 20. 10. 2004, the Division Bench observed that the Jaipur Municipal Corporation, the National Highway Authority of India Ltd. and the Railways shall not permit hoardings on the roads and buildings, except at (a) tree-guards and railings which are raised on the dividers provided they are small, circular or rectangular in nature and (b) BOT type toilets (c) Bus shelters/stops.
(3.) NUMBER of review petitioners came to be filed by the affected parties and therefore the Division Bench while partly allowing the review petitions modified the direction No. 16 in the terms as indicated in the judgment dated 31. 3. 2005. Shri Manish Bhandari argued that the petitioners are their licensees and they have no absolute right to insist on continuation of the license and their right to trade is always subject to reasonable restrictions. Public safety being of utmost of importance, the petitioners cannot be permitted to continue with the hoardings at sites which are likely to prove hazardous to public safety, besides being contrary to the orders of the Division Bench referred to above. It was lastly argued that if at all there was any seeming contradiction between the direction given by this Court and the Bye-laws, the same shall be taken care of in the amendment which has already been proposed and is underway. Shri Sagar Mal Mehta, learned Sr. Advocate for the petitioners rejoined and submitted that subsequent to the judgment of the Division Bench relied on by the respondents in the context of similar ban imposed upon display of hoardings by the respondents, a learned Single Bench of this Court vide order dated 3. 8. 2005 directed the respondents to proceed in accordance with the provisions of law and observed that the notification putting such ban shall not come in the way. It was argued that Division Bench in the cited case was not dealing with the case of hoardings put up on private buildings. In fact, the court only noticed clause 13 and did not at all notice clause 12. Judgment of the Division Bench therefore cannot be relied on to remove the hoardings in question. Learned counsel appearing for the Railways argued that the so far as the hoardings at the railway sites are concerned, they are located on the land owned by the railway and all the specified sites are approved under the technical supervision and after undertaking a thorough study by experts keeping in mind the hazard and risk it involves to public safety. He referred to the letter dated 4. 5. 2007 addressed by the Sr. Divisional Commercial Manager North Western Railway Jaipur to Commissioner (Revenue) Nagar Nigam, Jaipur in which it was contended that it was not justified on the part of the Municipal Corporation to say that the hoardings on railway sites are unsafe on account of the traffic movement. It was stated that if the Corporation feels that any particular hoarding on a particular location is unfringing the safe traffic movement, the same can be advised so as to take necessary action for getting the same in order. It was also stated in the letter that any undue course of action taken by Nagar Nigam will adversely affect the coordination between the two departments for which the responsibility would be of Nagar Nigam, Jaipur only and therefore it was suggested that the deadlock should be resolved through communication only so that harmonious relationship shall be ensured between the two departments. The letter dated 4. 5. 2007 is placed on record. Learned counsel for the Railways also cited the map prepared on 7. 2. 2006 according to which, sites of the hoardings were identified under the supervision of the engineering experts. He therefore submitted that retention of the hoarding at those sites does not involve any risk to public safety and traffic movement. It is submitted that the Railway being a government organization, funds collected by display of the hoardings are spent by them for public good and therefore they cannot be equated with the private advertising agencies and for that matter, their sites cannot be equated with private buildings. In substance, learned counsel submits that the impugned notices issued by the Corporation imposing ban may be quashed and set-aside. ;