Hoarding Advertising People Welfare and Others vs Municipal Corporation Bhopal

Rajendra Menon, J—As common question of facts and law are involved in all these cases, they are being disposed of by this common order :

For the sake of convenience, the documents and pleadings available in the record of W.P. No. 4296/2007 and W.P. No. 2902/08 are being referred to in this order.

The petitioners herein are either associations juristic persons or individuals engaged in the business of displaying advertisement through boards and other means within the territorial jurisdiction of the Municipal Corporation of Bhopal. It is contended by them that in accordance to the bylaws formulated by the Municipal Corporation Bhopal namely the Bhopal Municipal Corporation (Advertisement) Bylaws, 1967, they were granted permission to exhibit, erect and displaying of advertisement. They have been granted permission and now vide letter Annexure P- 15 dated 12-03-2007 available in the record of W.P. No. 4296/2007, so also certain communications made to the petitioners, they have been informed that they cannot be permitted to display the advertisement any further until and unless a new policy is evolved for displaying advertisement in the Municipal Corporation, Bhopal. It is said that the petitioners have submitted applications for renewal of their contract and license granted, they have also deposited the license fee but instead of granting them permission for displaying advertisement and carrying on with their business, they are being denied the benefit of advertising through boards and hoardings.

It is their case that initially, permission was granted and now the permission is denied and their applications for renewal are not considered, therefore, all these writ petitions seeking a mandamus to the respondents to permit them to displaying advertisement through hoardings etc..

Apart from challenging the aforesaid action and contending that the petitioners are entitled for renewal of license or permission and further contending that in view of the law laid down by the Division Bench of this Court in the case of Krishore Gupta Vs. Municipal Corporation, Indore and another, (1979) JLJ 668 , they are entitled to the benefit. It is said that proposal, if any, of the Municipal Corporation to auction the advertisement and inviting tender is contrary to the by laws and the law laid down in the case of Kishore Gupta (supra), therefore, is unsustainable. That apart contending that the fixation of advertisement rate and charges for ground rent is exorbitant and on the higher side, challenge is made to the action of the Corporation.

These writ petitions were heard along with another writ petition being W.P. No. 3987/2008 (Hoarding Advertising People Welfare Vs. State of Madhya Pradesh) wherein constitutional validity of Section 133 of M.P. Municipal Corporation Act, 1956 has been challenged so also the act of the Municipal Corporation Bhopal in fixing the advertisement rate and ground rent was also challenged. This Bench heard all the petitions together and by a detailed order passed today, the said writ petition W.P. No. 3987/2008 has been dismissed. This Court has upheld the constitutional validity of Section 133 of M.P. Municipal Corporation Act, 1956 and has also upheld the fixation of advertisement tax, duty and ground rent by the Municipal Corporation.

That apart, certain resolution passed by the Bhopal Municipal Corporation in the matter on 29-04-06 and on 24-03-2008 so also on 19-03-2008 have been upheld by this Court in the said writ petition filed by Hoarding Advertising People Welfare. That being so, for the grounds and reasons already indicated in the said order, now similar relief claimed in this petition with regard to rate of advertisement tax, ground rent and the resolutions of the Municipal Corporation need not be considered again and for the same reason, these petitions to that extent stand rejected.

Accordingly, now the only ground and the relief claimed in the petition to be considered is with regard to non grant of permission or non renewal of the license.

Shri Sanjay Agrawal, learned counsel appearing for the petitioners invited our attention to the provisions of the Bhopal Municipal Corporation (Advertisement) Bylaws, 1967 and argued that permission was granted under Clause 4, petitioners'' right to carry on business under Article 19(1)(g) is adversely affected because now permission is not being granted. They referred to the provision of the bylaws, the judgment in the case of Kishore Gupta (supra), so also the judgment of the Division Bench of this Court in W.P. No. 13266/2006 (M/s. Sagardeep Advertising Vs. Municipal Corporation Jabalpur and others) Annexure P-13 available in the record of W.P. No. 4296/2007 to say that the action of the respondents is unsustainable. It is the case of the petitioners that the mandamus be issued to the respondents to renew the license, grant permission and the petitioners be permitted to carry out the activities of displaying advertisement without any hindrance.

Respondents have filed a detailed reply and they say that claim made by the petitioners in the matter of renewal of license or grant of further permission is not tenable. Learned counsel for the respondents/Municipal Corporation took us through the provisions of bylaws of 1967 and submitted that under the bylaws, there is no provision for renewal of license. It is said that the permission was granted on one or two occasions but now as the period, for which the permission was granted, is over, no further permission can be granted as a matter of right. It is pointed out by the respondents that the bylaws were framed in the year 1967 and now the entire scenario has changed. There is enough competition in the area of advertisement and many competitors have come forward, therefore, it becomes difficult to give permission for advertisement in accordance with the provisions of the bylaws, it is argued that under the changed scenario grant of permission as earlier done will be in violation to the requirement of Article 14 of the Constitution.

It is said that the Municipal Corporation Bhopal, looking to the existing and emerging need with the efflux of time is intending to introduce a new policy or bylaw for the purpose of giving of advertisement rights. It is said that while evolving the new policy, the concept of beautification of Bhopal, the environmental conditions, the dangers and hazards caused due to large hoardings being displayed in public places and it''s adverse effect on the traffic movement is also required to be considered. That apart, for the purpose of generating more revenue for the municipal corporation, steps have to be taken. Accordingly, it is the case of the Municipal Corporation that now there are going to evolve a new advertisement policy and is intending to create a new system either by introducing a new bylaw and taking such steps as may be permissible under law, it is said that the claim made by the petitioner for renewal cannot be permitted, particularly, when there is no provision for renewal in the bylaws.

We have heard learned counsel for the parties and perused the records. Primarily, it is the claim of the petitioners that they are entitled for renewal of the permission granted to them and they want a mandamus from this Court directing the Municipal Corporation Bhopal to renew their permission or license. Admittedly, petitioners were granted permission for advertisement in accordance with the provisions of Clause 4 of the bylaws of 1967 and the procedure for granting such permission is contained in Clause 5. Once the permission granted, which is for a fixed time, has lapsed, the petitioners now want renewal of the permission.

In the entire bylaws of 1967, there is no provision for renewal of a permission already granted after it''s lapse. In the alternate, it was suggested that once the permission is granted under Clause 4 & 5 of the bylaws, then the petitioners are entitled to retain possession after payment of fee.

As far as renewal is concerned, according to the Black''s Dictionary, ''Renewal'' means ''an act of restoring or re-establishing or re-creation of a legal relationship or re-placement of an old contract with a new one''. As far as the provisions of renewal is concerned, it is an admitted position that permission was granted and the legal relationship that was created because of the permission granted has come to an end and now it ceases to exist with the efflux of time. That being so, for the purpose of re-establishing this legal relationship or replacement of the old contract or permission, which was granted under the bylaws of 1967, until and unless there is a specific provision in the bylaws contemplating renewal of the license, permission or the contract, no mandamus can be issued by this Court for renewal. Renewal of a contract or restoration of permission or extension of permission after the period, for which it was granted, is over, is based on either the contract between the parties or the statutory provision based on which the contract or permission was granted. The permission granted to the petitioners, which are available on record, is for a fixed period. That period is over and there is nothing in this permission, which is a contract between the petitioners and the Municipal Corporation for it''s renewal nor is there any statutory provision, rule or law which warrants so. That apart, as indicated herein above, in the bylaws of 1967 also, there is no provision for renewal. In view of the above, this Court cannot issue any direction or writ for renewal of the contract.

As far as the claim made for retaining the possession for advertisement is concerned, once the possession was given to the petitioners to display the advertisement in a public place by virtue of the contract entered into or the permission granted and when the said permission and the period, for which it was granted, is already over, this Court cannot issue any mandamus in the matter for the same reasons as indicated in the preceding para.. Accordingly, In view of the same, this Court does not find any ground to grant any benefit to the petitioners for the purpose of granting renewal or retention of the license or permission. To that extent, no relief can be granted.

As far as the judgment in the case of Kisore Gupta (supra) and the benefit out of the said judgment is concerned, the said judgment pertains to certain provisions of the bylaws applicable in the Indore Municipal Corporation and the claim made for fixing the rate for setting up boards and advertisement. The aspect is already dealt with and rejected by this Court in W.P. No. 3987/2008 (Hoarding Advertising People Welfare Vs. State of Madhya Pradesh).

As far as the judgment in the case of Sagardeep (supra) is concerned, in that case, the action of the Municipal Corporation Jabalpur in issuing a tender notice and proposing to give the right of display of advertisement by tendering process was challenged. In the light of the law laid down in the case of Kishore Gupta (supra), a Division Bench of this Court examined the matter and found that in the absence of any statutory bylaw being applicable in the Municipal Corporation Jabalpur, as was applicable in Indore Municipal Corporation, which was considered in the case of Kisore Gupta (supra), the action of issuing the tender cannot be interfered with and it was held that so long as there is no provision under the Municipal Corporation Act, which expressively either permits or prohibits allotment of advertisement sight by adopting tender process, interference cannot be made. It is not know as to how, the said judgment will help the petitioners.

In this petition, the petitioners have not challenged any tender process initiated by the Bhopal Municipal Corporation and it is not their case that the tender process initiated for allotment of advertisement is contrary to the law laid down in the case of Kisore Gupta (supra) or Sagardeep (supra). It is only their case that they are entitled for renewal. This aspect of the matter has been considered and rejected. That apart, from the return filed by the respondents, it is clear that the respondents are taking action because now material and large scale change has taken place after the bylaws were enacted in the year 1967. It is said that concept of advertisement has changed, the public requirement, public safety and traffic movement and safety requirements with regard to traffic, hazards and dangers of displaying hoardings and advertisement sign in public place have all undergone change and taking note of all these circumstances, it is seen that the Municipal Corporation is going to evolve a new policy for the purpose of advertisement and pending finalization of the new policy, they have stopped the process of renewal.

After the cases were heard and closed for judgment on /02/2015, the written submissions have been given on 09-03-2015 wherein various submissions made have already been considered. However, the petitioners have also stated that in view of provisions of Section 366 of the M.P. Municipal Corporation Act, 1956, which provides for grant of license and permission and by referring to Sections 366(6) and 366(7), a claim is tried to be made out for renewal of the permission. Section 366 of the M.P. Municipal Corporation Act, 1956 pertains for renewal of licence or written permission, this is a general provision and once for the purpose advertisement a specific statutory provision i.e., the Municipal Corporation Bhopal Bylaws are available., the general provisions of Section 366 cannot be applied, in the matter of grant of permission licence and renewal of advertisement licence, the provisions of bylaws will have to be applied and not the provision of Section 366, which is general in nature and is applicable only to such grant of permission or licence which is not controlled by any other statutory regulation or byelaws. That apart reference is made to byelaws 4, 5 and 6 and by emphasizing on the word ''retention of the permission'' as stipulated in bye- laws 6.1, an argument is tried to be built up by saying that the petitioners can retain the right to advertisement. However, we have already considered this aspect of the matter while dealing with the question of renewal and has rejected this contention. In view of the above, no further indulgence in this regard is called for. Reference is also made to the Hindi version of Clause -4 of the Bylaws to say that as per this version if the advertisement is permitted to be displayed, which cannot be removed and the same should permitted to be continued and cannot be displaced, we are unable to accept this broad proposition made for interpreting Clause-4. Once the permission granted and the licence given is for a specific period and when the said period is already over, no further permission for retaining the advertisement board can be granted. Clause-4 of the bylaws cannot be interpreted in a manner as suggested by the petitioners in para 14 of their written argument.

This being the factual position, this Court does not find any ground to interfere into the matter. Basically, it is the case of the petitioner that they are entitled for renewal of the license and once this Court has found that there is no provision for renewal of license and renewal of license or permission cannot be permitted, no relief can be granted to the petitioners in this writ petition.

Accordingly, finding no case for interference, this petition stands dismissed.