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Judgment
Rajiv Sharma, A.C.J.
This P.I.L. highlights the problem caused to the road using public by illegal advertisements in urban centers of District Udham Singh Nagar. It is
alleged that Advertisers are putting up hoardings/signage etc. in public places and also on rooftops of private and public buildings without any sense of
responsibility which is not only leading to road accidents but is also spoiling the aesthetics of the towns/cities.
The Municipal Corporation Act, 1959 contains elaborate provisions regarding advertisements. Section 192 to 196 of the said Act are noteworthy,
which are extracted below:-
“192. Tax on Advertisements- Where a Corporation imposes a tax mentioned in clause (h) of sub-section 172, every person who erects, exhibits,
fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or who displays any advertisement to public view in any
manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or
displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions as may be provided by the Act or rules
made thereunder:
Provided that no tax shall be levied under this section on any advertisement or a notice-
(a) of public meetings, or
(b) of an election to any legislative body or the Corporation, or
(c) of a candidature in respect of such an election:
Provided also that no such tax shall be levied on any advertisement which is not a sky-sign and which-
(a) is exhibited within the window of any building, or
(b) relates to the trade or business carried on within the land or building upon or over which advertisement is exhibited, or to any sale or letting of such
land or building or any effects therein or to any sale, entertainment or meeting to be held upon or in the same, or
(c) relates to the name of the land or building upon or over which the advertisement is exhibited, or the name of the owner or occupier of such land or
building, or
(d) relates to the business of any railway administration, or
(e) is exhibited within any railway station or upon any wall or other property of a railway administration except any portion of the surface of such wall
or property fronting any street.
Explanation 1- The word “structure†in this section shall include any movable board on wheels used as an advertisement or an advertisement
medium.
Explanation 2- “Public place†shall, for the purpose of this section, mean any place which is open to the use and enjoyment of the public, whether
it is actually used or enjoyed by the public or not.
Prohibition of advertisement without written permission of [Municipal Commissioner]3 - (1) No advertisement shall, after the levy of the tax
under Section 192 has been determined upon by the Corporation, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding
or structure within the City or shall be displayed in any manner whatsoever in any place without the written permission of the [Municipal
Commissioner]4.
(2) The [Municipal Commissioner]5 shall not grant such permission if-
(i) the advertisement contravenes any bye-law made by the Corporation under 6[clause (48)] of Section 541, or
(ii) the tax, if any, due in respect of the advertisement has not been paid.
(3) Subject to the provisions of sub-section
(2) in the case of any advertisement liable to the advertisement tax, the [Municipal Commissioner]1 shall grant permission for the period to which the
payment of the tax relates and no fee shall be charged in respect of such permission:
Provided that the provisions of this section shall not apply to any advertisement erected, exhibited, fixed or retained on the railway premises or relating
to the business of any railway administration.
Permission of the [Municipal Commissioner]2 to become void in certain cases- The permission granted under Section 193 shall become void in
the following cases, namely:
(a) if the advertisement contravenes any bye-law made by the Corporation under 3[clause (48)] of Section 541;
(b) if any addition to the advertisement be made except for the purpose of making it secure under the direction of the [Municipal Commissioner];
(c) if any material change be made in the advertisement or any part thereof;
(d) if the advertisement or any part thereof falls otherwise than through accident;
(e) if any addition or alteration be made to, or in the building, wall or structure upon or over which the advertisement is erected, exhibited, fixed or
retained if such addition or alternation involves the disturbance of the advertisement or any part thereof; and
(f) if the building, wall or structure upon or over which the advertisement is erected, exhibited, fixed or retained be demolished or destroyed.
Beneficiary from advertisement to be deemed responsible- Where any advertisement shall be erected, exhibited, fixed or retained upon or over
any land, building, wall, hoarding or structure in contravention of the provisions of Section 192 or Section 193 or after the written permission for the
erection, exhibition, fixation or retention thereof for any period shall have expired or become void, the person for whom or for whose purposes the
advertisement has prima facie been so erected, exhibited, fixed or retained shall be deemed to be the person who has erected, exhibited, fixed or
retained such advertisement in such contravention unless he proves that such contravention was committed by a person not in his employment or
under his control or was committed without his connivance.
Removal of unauthorized advertisements- If any advertisement be erected, exhibited, fixed or retained contrary to the provisions of Section 192
or Section 193 or after the written permission for the erection, exhibition, fixation or retention thereof for any period shall have expired or become void,
the [Municipal Commissioner]1 may, by notice in writing, require the owner or occupier or the land, building, wall, hoarding or structure upon or over
which the same is erected, exhibited, fixed or retained to take down or remove such advertisement or may enter any building, land or property and
have the advertisement removed.’’
Government of Uttarakhand has framed statutory rules in exercise of power under Section 540 (2) of the Municipal Corporation Act, 1959 which
were notified on 16.02.2016. Rule 3 of the said Rules provides that a committee headed by the Municipal Commissioner shall identify the sites, which
are suitable for putting up advertisements. Rule 5 Provides that no advertisement shall be put up without prior permission of the Municipal
Commissioner. Rule 14 places absolute embargo on advertisements on rooftops of private and public buildings. The dimension of the
hoardings/signages, the material to be used in advertisement boards etc. have also been dealt with in the said Rules.
Since, the aforesaid Rules have been framed in exercise of powers under Municipal Corporation Act, 1959, therefore, they are not applicable to
Nagar Palika Parishads established under Municipalities Act, 1916. Some of the Nagar Palika Parishads have framed by- laws in exercise of power
under Section 298 of the Municipalities Act, 1916, however, the said by-laws were framed long back and they have become obsolete with the passage
of time and are not adequate to deal with the present day situation.
Public interest demands that advertisements /boards/signages must be put up at appropriate place, identified by the public authorities. Mushrooming
growth of advertisements cannot be permitted to go unabated.
We live in a civilized society where every sphere of human activity is regulated by Law. Therefore, advertising cannot be left unregulated. We can
take judicial notice of the fact that business houses are investing huge amount of money in advertisements through hoardings/signages for brand
building and also for marketing their products. Due to their money power, big business houses are successful in putting up advertisements wherever
they want. Such State of affairs cannot be permitted to continue.
In such view of the matter, we dispose of this writ petition with the following mandatory directions:-
(a). Mukhya Nagar Adhikari, Nagar Nigam Rudrapur shall ensure strict compliance of the provisions contained in the statutory rules dealing with
advertisements, which were notified by the State Government on 16.02.2016. He is directed to remove all advertisements/boards/signages/unipoles
etc., whether on rooftops or elsewhere, which have been put up in violation of the aforesaid Rules, in accordance with law, within two weeks.
(b) Till framing of suitable by-laws under Municipalities Act, Executive Officers of all Municipalities are directed to constitute committee for
identifying suitable sites for putting up advertisement within the municipal limits, within two weeks, which shall submit report within further two weeks.
The advertisements/hoardings put up at places other than those identified by the committee shall be removed in accordance with law, within one week
after receipt of report of the committee. The said committee shall consist of:
(i) An Officer of the Traffic Police/Police, not below the Rank of Deputy Superintendent of Police.
(ii) An Officer of State Public Works Department/National Highways Authority of India, not below the rank of Assistant Engineer.
(iii) An Officer of the District Development Authority, not below the rank of Assistant Engineer.
(iv) A representative of the Town Planner.
(v) A Public representative.
(c) Mukhya Nagar Adhikari/Executive Officer of all urban local bodies in Uttarakhand shall ensure that the advertisements/boards/signages/ unipoles
etc. set up within municipal limits do not distract attention of the motorists nor obstruct the view of the road, in any manner.