Gauhati High Court
M/S. Omega Advertising Agency (Press) ... vs The State Of Assam And Ors on 1 December, 2015
Author: Hrishikesh Roy
Bench: Hrishikesh Roy
IN THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
WP(C) No.2212/2008
1. M/s Omega Advertising Agency (Press) Pvt. Ltd.,
A Company incorporated under the Companies Act, 1956
Having its Registered Office at G.S. Road, Guwahati - 781005
Represented by its Authorized Signatory and Media Executive
Shri Reghu Nadhan Nair
2. Shri Reghu Nadhan Nair,
S/o Late Bhaskaran Nair,
Authorized Signatory and Media Executive of
M/s Omega Advertising Agency (Press) Pvt. Ltd.,
G.S. Road, Guwahati - 781005. ... Petitioner.
VERSUS
1. The State of Assam,
Represented by the Chief Secretary,
Government of Assam,
Dispur, Guwahati-6,
2 The Commissioner & Secretary to the Govt. of Assam,
Guwahati Development Deptt, Dispur, Ghy-6
3 The Commissioner and Special Secy. to the Govt. of Assam,
PWD, Assam, Dispur, Ghy-6, Assam
4 The Secy. to the Govt. of Assam,,
PWD Deptt, Assam Dispur, Ghy-6,Assam
5 The Addl. Chief Engineer,
PWD, (Electrical) Assam, Chandmari, Ghy-3
6 The Executive Engineer,
PWD, Guwahati Electrical Divn, Chandmari, Ghy-3
7 The Superintending Engineer,
PWD Guwahati Electrical Circle, Fancy Bazar, Ghy -1
8 The Asstt. Executive Engineer
PWD, T.C.C. Electrical Sub Divn, Dispur, Ghy-6
9 The Guwahati Municipal Corpn,
Panbazar, Ghy-1, Rep. by its Commissioner.
10 The Commissioner,
Guwahati Municipal Corpn, Panbazar, Ghy-1. ...Respondents.
BEFORE THE HON'BLE MR JUSTICE HRISHIKESH ROY For the petitioner : Mr. J. Deka.
Mr. T.K. Bhuyan ... Advocates.
For the respondent No.1 & 2 : Mr. B. Talukdar ... G.A., Assam.
For the respondents 3-8 : Mr. Y.S. Mannan, ...SC, PWD. For the
For the respondents 9 & 10 : Mr. A.B. Choudhury ...Sr. Advocate
WP(C) No.2212/2008
Page 1 of 5
2
Date of hearing and Judgment : 1.12.2015.
JUDGMENT AND ORDER
Heard Mr. J. Deka, the learned Counsel appearing for the petitioners. The respondents 1 & 2 are represented by Mr. B. Talukdar, the learned Government Advocate. The learned Standing Counsel for the PWD Mr. Y.S. Mannan appears for the respondents 3 - 8. The Guwahati Municipal Corporation (GMC) and their Commissioner are represented by the learned Senior Counsel Mr. A.B. Choudhury.
2. The petitioner No.1 company is operating in the field of advertisement. They are aggrieved by the steps taken by the GMC to remove the Hoardings and Bill-Boards installed by the petitioners in different locations and road dividers of the Guwahati city. According to the petitioners, the Bill-Boards on the electricity poles were installed with due authorization of the PWD with concurrence of the GMC authorities and the Hoardings too were installed with approval of the GMC and for both categories of display, advertisement tax was being paid by the petitioners. But despite the authorization given by the authorities, the GMC arbitrarily removed few of the Hoardings/ Bill-Boards, without affording any opportunity to the affected party.
3. On the other hand, the respondents contend that advertisement tax for the installed Bill-Boards/Hoardings were in arrears despite the demand notice served upon the advertising agency and that is why impugned action was taken. The removal of few displays was projected to be on account of their interference with the free movement of pedestrian and vehicular traffic.
4. But the respondent PWD takes a different stand as can be noted from the counter affidavit filed by the Executive Engineer. According to the averments the advertisement on the road divider light poles were approved by the Government and the PWD. Moreover the GMC too through their letter dated 19.9.2007 had accorded permission for installation of advertisement on the central verge lights as the Corporation was unable to maintain those lights with their meagre financial resources. Therefore erection of Bill-Boards of specified size was permitted to the agency through a tender process and the formal work order was issued to the petitioners on 1.9.2005.
WP(C) No.2212/2008 Page 2 of 5 35. Mr. J. Deka, the learned Counsel submits that the petitioners with due permission of the GMC had installed the Bill-Boards and the Hoardings and they are also paying the advertisement tax to the GMC. The learned Counsel argues that the petitioners were not provided any hearing or opportunity and the impugned action was taken by the GMC in breach of the principles of audi alteram partem. The demand notice for realisation of the alleged arrear advertisement dues was never served on the petitioners and Mr. Deka refers to Section 389 of the Gauhati Municipal Act, 1971 (hereinafter referred to as "the GMC Act") to contend that the GMC failed to serve notice through due process and in fact the demand notice mentioned in the GMC's counter affidavit, was never received by the petitioner.
6. Representing the GMC, the learned Senior Counsel Mr. A.B. Choudhury submits that the petitioners are liable to pay the advertisement tax to the GMC and in the instant case, removal of the Hoardings was ordered not only for default of tax but also to clear the obstructions for free movement of people and vehicles.
7. The concerned Bye-Laws, for regulation and levy of tax on advertisement, was notified in 1975 by the GMC and Clause 7 of the 1975 Bye- Laws specifies the procedure for obtaining permission for advertisement. Whenever breach of the Bye-Laws is committed by the permitted advertiser, they are punishable with fine, as provided under Clause 11 of the Bye-Laws. That apart if any advertisement is erected in contravention of Section 174 of the GMC Act, the Commissioner is conferred with the power under Section 177, to pull down such offending advertisement. But the question is whether any penal action can be taken against the advertiser who installed the Hoardings/ Bill- Boards with due permission and whether such action should be preceded by an opportunity to the affected party. In fact the damage suffered by a party for wrongful exercise of power by the GMC, can lead to a claim for compensation, under Section 394 of the GMC Act.
8. It can be seen from the letter dated 26.10.1999 of the PWD Commissioner that the advertisement on the light poles on the road divider were approved as a test case by the Government and the Commissioner, GMC also gave permission to erect such advertisements, subject to the condition that the WP(C) No.2212/2008 Page 3 of 5 4 GMC is made free of its burden to maintain the streetlights. The petitioner advertising agency was selected for display of advertisement through a tender process and the size and numbers of Bill-Boards were also specified by the PWD. The realization of advertisement tax from the petitioners by the GMC in respect of the installed display is found to be established from the case papers. These measures therefore clearly indicate that the work done by agency was through a due process and concurrence of the authorities is clearly discernible.
9. But notwithstanding the permission and also the realisation of advertisement tax from the agency, steps were taken to remove some of the Hoardings/ Bill-Boards without any notice to the petitioners. In the counter affidavit filed by the Secretary of the GMC, hazardous display and tax default is cited as the cause for the removal exercise. But such explanation given in the counter affidavit can't be the basis to judge the legality of the impugned action. If any bonafide reason was available with the GMC, the same should have been intimated to the affected party and their reply should have been considered. But in the absence of any such exercise, the respondents can't be permitted to supply their reason in the form of the counter affidavit filed in the Court. In Mohinder Singh Gill vs. Chief Election Commissioner, New Delhi reported in (1978) 1 SCC 405, it was declared that the validity of the action of the statutory authority must be judged by the disclosed reason but the same can't be provided subsequently in the Court, through affidavit or otherwise. In other words, the legality of action taken by the GMC can't be tested on the basis of subsequent explanation as that will enable the Corporation to act with impunity and thereafter supply acceptable reason, when their actions are challenged in the Court.
10. The case papers here shows that the advertising agency installed the Hoardings/ Bill-Boards with due permission of both the PWD and the GMC and the Corporation realised advertisement tax from the petitioners. Therefore if there was any exigency for removal of the displays, either because of the default of payment or in the interest of public safety, the reasons should have been disclosed through a notice and the reply of the agency should have been WP(C) No.2212/2008 Page 4 of 5 5 considered. But since no such opportunity was afforded, it has to be declared that the impugned action is not in accordance with the due process. If the installed advertisements were actually obstructing the free movement of pedestrian or vehicles, the GMC could have surely acted in the interest of public safety. But in that situation, the reason why the proposed action is to be taken in respect of any such obstructive displays, should have been conveyed through a notice. If reasons are disclosed in the show-cause-notice and provisions are made for consideration of reply and steps are then taken, complain of arbitrary action could have been avoided but unfortunately in the present case, no such procedure was followed and the Corporation straightway resorted to removal of the advertisements installed by the petitioners.
11. In the above circumstances, the impugned action of the GMC is found to be illegal. In so far as the claim for compensation, such claims can be entertained by the Commissioner under Section 394 of the GMC Act. Therefore the petitioners, if so advised, may address their claim to the competent authority who is ordered to decide on the matter with a speaking order in accordance with law. However if any of the Hoardings/ Bill-Boards are found to be installed by the agency without due permission or the permitted period has expired or there are other public exigencies, the GMC is at liberty to take appropriate action, after serving notice and affording hearing to the affected party and it is ordered accordingly.
12. With the above order and declaration, the case stands allowed by leaving the parties to bear their respective cost.
JUDGE Datta.
WP(C) No.2212/2008 Page 5 of 5