Karnataka High Court
M/S Play Ads Advertisement Spaces Pvt ... vs State Of Karnataka on 16 December, 2024
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2024:KHC:51686
WP No. 26967 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO.26967 OF 2023 (LB-BMP)
BETWEEN:
M/S.PLAY ADS ADVERTISEMENT
SPACES PVT. LTD.
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF
INDIAN COMPANIES ACT, 2013
HAVING ITS REGISTERED OFFICE AT
NO.6/853(1), FIRST FLOOR
MAK BUILDING, JUDGE MUKKU
THRIKKAKKARA, ERNAKULAM
KERALA-682 021
AND ALSO
HAVING ITS BRANCH HEAD OFFICE
NO.777/V, 2ND CROSS
13TH MAIN, 2ND STAGE
INDIRA NAGAR, BENGALURU-560 008
REPRESENTED BY ITS
AUTHOIRZED SINGATORY AND
BENGALURU BRANCH HEAD &
Digitally PROJECT MANAGER
signed by
VANAMALA MR.P.M.T.ABDUL RAHAMAN
N
S/O.P.A.R.MOHAMED THAMBY
Location:
HIGH AGED ABOUT 56 YEARS
COURT OF ...PETITIONER
KARNATAKA
(BY SRI V.B.SHIVA KUMAR, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY ITS
CHIEF SECRETARY
DEPARTMENT OF
URBAN DEVELOPMENT
VIDHANA SOUDHA
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NC: 2024:KHC:51686
WP No. 26967 of 2023
VIDHANA VEEDHI
BENGALURU - 560 001
2. THE COMMISSIONER
BRUHAT BENGALURU
MAHANAGARA PALIKE
N.R.SQUARE, J.C.ROAD
BENGALURU-560 002
3. THE ASSISTANT COMMISSIONER
BRUHAT BENGALURU
MAHANAGARA PALIKE
N.R.SQUARE, J.C.ROAD
BENGALURU-560 002
...RESPONDENTS
(BY SRI SHIVAJI H.MANE, AGA FOR R-1;
SRI B.L.SANJEEV, ADVOCATE FOR R-2 AND R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA
PRAYING TO DIRECT RESPONDENT NOS.2 AND 3 TO
GRANT PERMISSION TO THE PETITIONER FOR
INSTALLATION OF LED SCREENS IN SELECT BPCL
RETAIL OUTLETS IN BANGALORE CITY AS PER
ANNEXURE-B DATED 04/11/2023 AND TO DIRECT THE
RESPONDENT AUTHORITIES TO COLLECT
CHARGES/TAXES THAT WOULD BE FIXED FOR
INSTALLATION OF LED SCREENS IN SELECT BPCL
RETAIL OUTLETS IN BENGALURU CITY.
THIS PETITION COMING ON FOR ORDERS, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD
ORAL ORDER
M/s Bharat Petroleum Corporation Ltd. [M/s BPCL] has issued the petitioner, a company -3- NC: 2024:KHC:51686 WP No. 26967 of 2023 incorporated under the provisions of the Indian Companies Act, 2013, with the Letter of Acceptance dated 29.11.2021 [Annexure-C] accepting the petitioner's bid to provide Digital Hoarding Boards for advertisement at its various retail outlets in Bengaluru for five (5) years subject to payment of the agreed signage fee. The petitioner contends that, after the Letter of Acceptance dated 29.11.2021, it has submitted a request with the second respondent [the Commissioner, Bruhat Bengaluru Mahanagara Palike] for licence to erect the Digital Hoarding Boards at M/s BPCL outlets, but no action is taken. The petitioner has therefore sought for directions to Bruhat Bengaluru Mahanagara Palike [BBMP] to permit construction of Digital Hoarding Boards at M/s BPCL's designated Retails Outlets.
2. Sri V.B. Shivakumar, the learned counsel for petitioner, has canvassed that M/s BPCL has issued the Letter of Acceptance in the year 2021 for -4- NC: 2024:KHC:51686 WP No. 26967 of 2023 five (5) years on the condition that the petitioner should secure BBMP's approval for constructing such Digital Hoarding Boards, and as such, the petitioner has been knocking at the BBMP's doors for approval but to no avail. Sri. V.B. Shivakumar, relying upon this Court's order dated 28.08.2023 and 26.09.2023 in WP.No.17225/2022 and WP.No.21627/2023, submits that despite the lapse of time that is stipulated by this Court, the petitioner's request has not been considered. Sri Shivaji H. Mane, the learned Additional Government Advocate for the first respondent, Sri B.S. Shrinivas, the learned counsel for Sri B.L. Sanjeev who is on record for the second and third respondents, are heard in the light of this submission.
3. Sri B.S. Shrinivas submits that the second respondent has observed restraint in considering the petitioner's request for issuance of the licence to construct Digital Hoarding Boards because of the -5- NC: 2024:KHC:51686 WP No. 26967 of 2023 pending proceedings in WP.No.57990/2017 - a public interest litigation as against the construction of illegal Flex Hoardings and the different orders that have been issued in such proceedings. The learned counsel also submits that the second respondent has forwarded the draft of Bruhat Bengaluru Mahanagara Palike Advertisement Bye-Laws, 2023 [the Byelaws, 2023] to the State Government, which is yet to notify these Byelaws while emphasizing that the Byelaws have been framed in the light of the different orders passed by the Division Bench in the aforesaid writ proceedings to avoid Flex Hoardings.
4. In rejoinder, Sri V.B. Shivakumar submits that neither the pendency of the aforesaid writ petitions [or the orders in such petition] nor the Byelaws, 2023 can be a reason to refuse licence as is sought for by the petitioner. The learned counsel argues that the petitioner seeks permission to construct Digital Hoarding Boards for M/s BPCL at -6- NC: 2024:KHC:51686 WP No. 26967 of 2023 its Outlets for its purposes and not erect Flex Boards for third party advertisement and that the Byelaws, 2023, which prohibit unauthorized advertisements, do not prohibit display for self-advertisements.
5. This Court must at the outset observe that the assertion that the proceedings before the Division Bench in WP. No.57990/2017 relates only to the Flex Hoardings [for advertisements and otherwise], is not contested, and it is also not contested that the petitioner has a time bound contract for constructing Digital Hoarding Boards for M/s BPCL at its outlets. This Court, in the earlier petitions in WP.No.17225/2022 and WP.No.21627/2023, has directed the second respondent to consider the petitioner's request, but the petitioner is not informed about the decision on its request. This Court's order in WP.No.21627/2023 reads as follows:
"Taking into account that there is no such policy and taking into account the submission made by the learned counsel for BBMP, 75 days' time -7- NC: 2024:KHC:51686 WP No. 26967 of 2023 was granted for formulation of the policy and thereafter consider the application of the petitioner. The order having been passed on 28.08.2023 in W.P.No.17225/2022, the period of 75 days not having elapsed, the above petition is premature and cannot be considered at this stage. As such, no grounds being made out, the Writ Petition stands dismissed."
These are material circumstances, and the merits of the petitioner's request for permission to construct Digital Hoarding Boards at M/s BPCL's Outlets must be considered in the context of these circumstances as well.
6. Further, it is seen from the Letter of Acceptance dated 29.11.2021 that 80% of the screen time must only be for M/s BPCL with the stipulation that 20% of screen time will be given to Oil Manufacturing Companies [OMC] and that M/s BPCL's contents must be accordingly configured for peak hours and non-peak hour display as mutually -8- NC: 2024:KHC:51686 WP No. 26967 of 2023 agreed1. Therefore, it is indisputable that the petitioner upon constructing Digital Hoarding Boards at M/s BPCL Outlets cannot allow screen time for third party advertisement and will have to dedicate 80% of the screen time for M/s BPCL's content with 20% of the screen time for other OMCs/Government messages. As such, the construction of the Digital Hoarding Boards by the petitioner for M/s BPCL at its outlets, in terms of the Letter of Acceptance, will differ from illegal Flex Hoardings monitored in the public interest litigation.
7. This Court must next observe that the display for self-advertisements is permitted because there is no commercial aspect as is mentioned in the definition clause of 'Advertisement2' in the Byelaws, 1 20% of screen time will be given to OMC out of total operating hours on hour-to-hour basis. BPCL contents shall be suitably configured for peak hours and non-peak hour display on mutually agreed basis.
2 "Advertisement" means and includes any display, device or representation by word, direction, abbreviation, letter, logo, symbol, model, image, or a combination thereof sign -9- NC: 2024:KHC:51686 WP No. 26967 of 2023 2023. Even if the policy on advertisement [now encapsulated in the Byelaws, 2023 in compliance with the different orders in such proceedings] is implemented, the display for self-advertisements will be permissible provided the prescribed fee is paid and the display conforms to the requirements under the provisions of the Byelaws, 20233.
by means of billboards, hoarding, banners, temporary arches, electronic display, name boards, direction boards, pamphlets, flags or any other visible or audible media, displayed in or in view of any place or spot visible to public, to promote a product or service in a commercial sense under categories covered in these definitions. This does not include signage installed for the identification and naming of places, buildings and tenant business names.
3 Advertisments or Displays for which neither permission nor payment is required.
The following types of advertisements exluding illuminated advertisements and sky-signs, are not required to obtain permission or make payment provided their size is within the limits prescribed under these Bye-Laws.
(a) Self-Advertisements displayed within window of a building; or
(b) Self-Advertisemnts or the Advertisement related to the trade or business carried on within the land or building upon or over which such advertisement is exhibited, or to sale or letting of such land or building or any effects therein or to sale, entertainement or meeting to be held upon in such land or building; or
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NC: 2024:KHC:51686 WP No. 26967 of 2023
8. This Court, therefore, does not see any legal impediment in considering the petitioner's request for construction of Digital Hoarding Boards for M/s BPCL at its retail outlets for its purposes as it is contemplated under the Letter of Acceptance, but the petitioner must be made known of the restrictions in terms of the size of the display and the fee that would be payable according to the existing Rules subject to any change that would be as and when the Bye-Laws, 2023 are notified.
9. Sri V.B. Shivakumar emphasizes that the petitioner will only be paid fee for erecting and
(c) Advertisements or display related to the name of the land or building of occupier or owner, upon or over which the advertisement or display is exhibited; or
(d) Advertisement or display related to the own activities by any railways including metro or state transport or any Government owned agencies or departments; or
(e) Advertisements exhibited inside the train or metro coaches.
In case the free advertisements exceed the maximum permissible area permitted for an individual advertisement, the full advertisement shall become liable for payment of advertisement fee as already explained in Bye Law 3.
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NC: 2024:KHC:51686 WP No. 26967 of 2023 maintaining the hoardings and cannot independently charge the other OMC and the petitioner will not be privy to any contract that could be between M/s BPCL and other oil manufacturing companies. This Court is of the view that if the petitioner proposes to construct Display Hoardings in terms of the Letter of Acceptance at M/s BPCL outlets for the limited purpose of display of self-advertisements for M/s BPCL or for Government or for any social message, it must be at liberty to seek licence for the same and such request must be considered. However, if the petitioner proposes to seek licence to display advertisement for other OMCs, it must be at liberty to file a separate application, and the second respondent must consider the same after calling for all such information as would be necessary to ascertain that there is no commercial aspect. In the light of the afore, the following:
ORDER [A] The petition stands disposed of.
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NC: 2024:KHC:51686 WP No. 26967 of 2023 [B] The petitioner is permitted to file a certified copy of this order with the second respondent within a period of four (4) weeks from the date of receipt thereof along with an application for licence to construct Digital Hoarding Boards at M/s BPCL outlets in terms of the Letter of Acceptance dated 29.11.2021 for self-advertisements dedicated to M/s BPCL.
[C] If the petitioner files such application, the second respondent shall consider the same and inform the petitioner about the licence fee payable and other restrictions.
[D] The petitioner shall be informed about such decision within a period of eight (8) weeks from the date of receipt of a certified copy and the application as aforesaid.
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NC: 2024:KHC:51686 WP No. 26967 of 2023 [E] The petitioner is reserved with liberty to file a separate application for displaying any percentage of screen time on the Digital Hoarding Boards for other Oil Manufacturing Companies [OMC] or third parties and the second respondent is directed to consider the same in terms of the extant requirements and the provision of the Bye-Laws 2023 as and when notified.
All pending Interlocutory Applications stand disposed of accordingly.
Sd/-
(B M SHYAM PRASAD) JUDGE LB List No.: 1 Sl No.: 18