Outdoors Communication vs Pwd And Municipal Corporation Of Delhi on 31 August, 2007

[Cites 80, Cited by 1]

Delhi High Court

Outdoors Communication vs Pwd And Municipal Corporation Of Delhi on 31 August, 2007

Equivalent citations: 2007(2)CTLJ179(DEL)

1. The present case is a unique case where one governmental authority is complaining of an illegality by a statutory authority. Grievance has been made by the Public Works Department (hereinafter PWD) that the Municipal Corporation of Delhi (hereinafter MCD) has entered into a contract which is in violation of the law laid down by the Apex Court in several judgments and now by a Division Bench of this Court as well.

Interesting questions of law have arisen for consideration in the present case. It is not only the law laid down by the Apex Court but also statutory provisions which would require to be considered and also the public policy which is involved.

2. It is said that a great city is defined by its history and its people. Delhi is one such city. Known as a city of great resilience, it has been witness to a Page 2923 number of upheavals, battles and natural calamities in its long history, but has always emerged victorious. traveling through Delhi in the 1930s, Robert Byron, a traveller and the author has described Delhi thus:

The traveller drives out of Old Delhi, past the Jama Masjid and the Fort.A flat country brown, scrubby and broken - lies on either side. This country has been compared with the Roman Campagna: at every hand, tombs and mosques Mogul times and earlier, weathered to the color of the earth bear witness to former Empires. The road describes a curve and embarks imperceptibly on a gradient. Suddenly, on the right, a scape of towers and dome is lifted from the horizon, sunlit pink and cream dancing against the blue sky, fresh as a cup of milk, grand as Rome. Close at hand the foreground discloses a white arch. The motor turns off the arterial avenue, and skirting the low red base of the gigantic monument, comes to a stop. The traveller heaves a breath. Before his eyes, sloping gently upwards, runs a gravel way of such infinite perspective as to suggest the intervention of a diminishing glass; at whose end, reared above the green tree tops, glitters the seat of government, the seventh Delhi, four square upon an eminence - dome, tower, dome, tower, dome, red, pink, cream, and white washed gold and flashing in the morning sun. The traveller loses a breath, and with it his apprehensions and preconceptions. Here is something not merely worthy, but whose like has never been. With a shiver of impatience he shakes off contemporary standard, and makes ready to evoke those of Greece, of Renaissance, and the Moguls.

3. A unique city that has been built and re-built several times. Each time the builders have left their indelible imprint on the city. As a result Delhi has a magnificent architectural legacy, which is an amalgamation of the different cultural, religious and social experiences that the city has witnessed since its birth. From the towering magnificence of the Qutub Minar created by Qutb-al-din-Aibak; to the beautiful simplicity of India Gate,a touching memorial to fallen soldiers; the flowering blooms of the Lodi garden;the masterpiece that is Shah Jahan's Red Fort and the imperial grace of Lutyen's Delhi, all create the beauty that is Delhi, even though we sometimes fail to appreciate it. Tughlaqabad Fort, Humanyun Tomb, Jama Masjid are yet more architectural features which identify the Delhi skyline. Thus a city replete with ancient monuments; which had the highest per capita tree average in the world in the 1970s, whose inhabitants ensured and cared for what they had in heritage. The Lodi Garden is preserved and guarded so zealously, just as some concerned citizens ensured that the Lutyen bungalow zone in Delhi maintains its bungalow status and is not overridden and overcome by the builders' mafia 'developing' only for individual commercial interests.

4. The Delhi which used to be was the Delhi in which roads were not built because there were too many cars; flyovers did not come up because there was too much traffic on the roads which had to be eased. That Delhi which did not see valuable parks and grounds taken over because parking was Page 2924 needed. Lutyens built the Delhi which he planned. Citizens lived to the plan and the plan was not changed because the purpose of the moment required it to be so done. A citizen built his house in the city believing that he is building a residence in a residential area. Little did he realize because some people have violated the law, they will not be taken to task. Besides the law may be changed. Thus, 'houses' are re-worked and renamed as 'shops' and 'residential areas' as 'commercial area' and such an exercise is undertaken only because the house has been put to such a use. Planning policy changes are effected retrospectively, while the city bursts at its seams. Simultaneously, while houses are converted to commercial enterprises; unauthorised colonies spring up on public land and open spaces because housing is in short supply. An interesting paradox comes into existence while the state looks on.

While we clamour for decongestion of this beautiful city, simultaneously we put even more pressure on its existing facilities. Water and electricity remain in short supply. The warnings of global warming have deserved scant attention.

5. This case evidences a similar change in policy. It arises out of a notice inviting tender dated 30th June, 2006 published in the Hindustan Times, by the Municipal Corporation of Delhi(hereafter MCD) inviting sealed tenders for allotment of zone wise contracts for display of advertisements through motor vehicles at selected sites. The sites and the minimum reserve price was set out in this notice. By a similar notice inviting tender issued on 23rd June, 2006, the MCD also invited sealed tenders for allotment of ``Zone wise contracts for display of advertisements through Unipoles of the size 20 feet x 8 feet each, at the selected sites, for a period of three years from the date of allotment'` on approved terms and conditions. The minimum reserve price and the total number of sites was also mentioned in the notice. The notice mentioned that it 'shall be the sole responsibility of the allottee to obtain proper electricity connection from the concerned Discom for display of illuminated advertisement and pay dues against the same. MCD shall only issue a No Objection Certificate for grant of electricity connection, on the specific request of the allottee.'

6. The terms and conditions for allotment of rights for illuminated display of advertisements through Unipoles mentioned the period of allotment as three years from the date of allotment, extendable up to five years subject to satisfactory performance of the contractor and increase in the monthly license fee by 10% each year for the rest of the two years. Each unipole was required to be of the standard size of 20 feet x 08 feet horizontally and contain advertisement on one side only. The maximum size of the Unipoles could be extended to 40 feet x 08 feet with the prior written approval of the commissioner or such officer duly authorised for the purpose subject to availability of space at the particular site. At the bottom of the advertisement Unipoles were required to be at a height of 7 feet above from the surface of the ground and to be in proper alignment. The advertisement Unipoles were also required to be strictly in accordance with the specific provisions as laid down in the Delhi Municipal Corporation Page 2925 (Tax on Advertisement Other Than Advertisement Published In Newspapers) Bye-Laws, 1996.

7. The plaintiff had submitted a tender for display of advertisements through Unipoles in respect of the Shahdara (South) Zone of the MCD. The tender of the plaintiff was accepted by the defendant no. 2 by a letter dated 30th August, 2006 whereby the defendant no. 2 accepted the plaintiff's offer of monthly license fee at the rate of Rs.9,22,320/- for display of advertisements through Unipoles at selected sites in respect of Shahdara (South) Zone for a period of three years.

8. As per the terms of acceptance of the plaintiff's tender, the plaintiff was required to pay an amount equivalent to three months license fee as security and the monthly license fee in advance. Accordingly, the plaintiff deposited the sum of Rs.27,66,960/- on account of security deposit and Rs.9,22,320/- on account of one month advance license fee with advance advertisement tax payable under Section 142 of the DMC Act and the agreement in standard form were deposited with the MCD, defendant no. 2 by a letter dated 6th September, 2006. The MCD thereupon issued an allotment letter dated 11th September, 2006 to the plaintiff awarding the contract for the display of advertisements through Unipoles at the selected sites in Shahdara (South) Zone of the MCD for the period of three years from 16th September, 2006 to 15th September, 2009. Parties duly executed the formal agreement in this behalf.

9. This suit was necessitated inasmuch as on the 3rd November, 2006, the defendant no. 1/Public Works Department of the Government of NCT of Delhi was seen to be removing some of the Unipoles erected by the plaintiff in terms of the contract with the MCD. The plaintiff lodged a police complaint dated 2nd November, 2006 in this behalf with the local police and also filed the present suit seeking a decree for permanent injunction restraining the defendant, their agents, employees and servants etc. from in any manner taking any further act of demolition/bringing down of the Unipoles created by the plaintiff pursuant to the contract granted by the defendant no. 2 to the plaintiff and in any manner interfering with the erection of the Unipoles and display of advertisements in accordance with the tender by the plaintiffs. Further a decree for mandatory injunction was prayed for restraining the defendants, their agents, employees and servants from carrying out any further act of demolition/bringing down of the Unipoles created by the plaintiff pursuant to the contract granted by the defendant no. 2 to the plaintiff and in any manner interfering with the erection of the Unipoles and display of advertisements in accordance with the tender by the plaintiffs. The plaintiff has also prayed for decree of damages of Rs. 21,00,000/- or any other amounts as this Hon'ble Court may deem fit and proper under the present facts and circumstances.

10. Along with the suit, the plaintiff filed the present application being I.A. No. 12168/2006, an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure seeking interim protection. By an order passed on 3rd November, 2006, this Court granted an ex parte order of injunction restraining the defendant no. 1 from removing the Unipoles of the plaintiff Page 2926 installed at the sites at serial number 1 to 4, 7, 8 and 10 to 24 in the Shahdara South Zone as per list placed at page 11 of the plaintiff's documents.

11. Grant of this injunction has been vehemently opposed by the Public Works Department, defendant no. 1 which not only filed its written statement challenging the maintainability of the plaintiff's claim, but also filed I.A. No. 553/2007 under Order 39 Rule 4 of the Code of Civil Procedure seeking immediate vacation of the injunction. The parties were permitted to complete their pleadings and have been heard on these applications.

12. The plaintiff's principal ground of challenge to the action of the defendant no.1 is that the Unipoles have been installed pursuant to a legal, valid and binding contract with the MCD which alone has jurisdiction over hoardings by virtue of Sections 142, 143 and Section 298 of the Delhi Municipal Corporation Act, 1957(hereafter referred to as the 'DMC Act' for short). It has also been urged that the defendant no. 1 had no right to unilaterally demolish the Unipoles without issuing any notice to show cause or giving any opportunity to be heard in respect of the demolition action by the defendant no.1 which is, for these reasons, contrary to law and principles of natural justice.

13. The plaintiff has also placed reliance on the pronouncement of the Apex Court reported in 2001 4 SCC 3454 P. Narayana Bhatt v. State of Tamil Nadu and Ors. to urge that in the light of the principles laid down by the Apex Court in this judgment, the action of the defendant no. 1 is patently illegal and unsustainable.

14. Ms. Madhu Tewatia, learned Counsel appearing for the MCD, defendant no. 2 filed a short response supporting the plaintiff submitting that its action is lawful and based on the resolution no. 15 dated 22nd February, 2006 of the MCD approving the policy to allow display of advertisement through Unipoles. It has also urged that MCD alone has the jurisdiction over all public streets under Section 298 of the Delhi Municipal Corporation Act and that it is the sole authority to allow display of advertisements at any place in Delhi and that the defendant no. 1 has no jurisdiction in the matter. In this behalf reliance has been placed on the minutes of a meeting held on 20th December , 2006 with the Chief Secretary of Delhi to urge that the action of the PWD is without jurisdiction and it has supported the plaintiff on all issues.

15. On the other hand, Mr. Sunil Bagai, learned Counsel appearing for the PWD has vehemently opposed the maintainability of this suit and also grant of the interim injunction submitting that the same is contrary to the judgment of the Apex Court dated 29th September, 2006 in W.P.(C) No. 4677/1985 M.C. Mehta v. Union of India etc. and the directions issued by the Apex Court in M.C. Mehta v. UOI W.P.(C) No. 132029/1985 on 20th November, 1997 reported at and 10th December, 1997. Page 2927 Learned Counsel has also placed order of the Apex Court on 30th January, 2001 and 7th of September, 2006 before this Court. It has been urged that as the Supreme Court directed, the authorities are bound to ensure that road, public streets and pathways meant for the public are kept free and commercial activities are not extended thereupon.

16. Urging that the Unipoles and hoardings which have been permitted by the MCD have been installed in the right of way of the road which is maintained by PWD and that the permission given by MCD is contrary to the law laid down by the Apex Court, the defendant no. 2 assails the authority of the MCD to award contracts for erection of hoardings on PWD roads.

17. The further submission is that the notice inviting tenders by the defendant no. 1 is not only illegal but being in flagrant violation of the specific directions of the Apex Court, it is stated that the same is also contumacious. The defendant no. 1 has asserted that the contract between the plaintiff and the defendant no. 2 being violative of the law and opposed to public policy and that the same is void under Section 23 of the Contract Act, 1872 and hence barred. The defendant no. 1-PWD has assailed the action of the plaintiff as gross misuse of power and prayed that the plaint be rejected and the application for injunction of the plaintiff be dismissed.

18. Mr. Bagai, learned Counsel for the defendant no. 1 has also placed copies of several advertisements on Unipoles which have been permitted by the MCD have been placed before this Court to urge that the same are definitely distracting for the traffic and the drivers and hence imperil safety of road users.

19. I have heard learned counsels for the parties at length and considered the available record, the statutory provisions and the several judicial pronouncements on the issues raised.

Statutory provisions, Rules, Regulations and Policy

20. Before examining the law laid down by the Apex Court, it is necessary to examine the relevant statutory provisions which are in vogue with regard to advertisements in the city of Delhi. The entry on advertisements is to be found as Item 55 in list II of the Seventh Schedule of the Constitution of India. The New Delhi Municipal Council Act, 1994 provides for a taxation on advertisements other than newspaper advertisements in Section 60(1)(d) of the statute. Advertisements within the NDMC area are regulated by the Pasting of Bills and Advertisement Bye-Laws, 1993. These bye-laws bar the grant of permission to advertisements which are traffic hazards and the NDMC takes guidance from the opinion obtained from the traffic police in this behalf. It was submitted by all parties before this Court that roadside advertisements were not permitted by the NDMC.

21. It becomes necessary to also consider the statutory meaning given to different expressions and the statutory parameters within which the authorities are required to exercise jurisdiction. The Delhi Municipal Act was enacted in the year 1957 for the purposes of consolidating and amending Page 2928 the law relating to the Municipal Government of Delhi.

Section 2(57) defines a public street thus:

Section 2(57): 'street' includes any way, road, lane, square, court, alley, gully, passage, whether a thoroughfare or not and whether built upon or not, over which the public have a right of way and also the roadway or footway over any bridge or causeway

22. Sections 142 to 146 of the Delhi Municipal Corporation Act, 1957 permits taxation on advertisements other than those published in newspapers. No advertisement can be displayed to public view in areas which falls under the jurisdiction of the MCD without the prior permission of its Commissioner.

23. The present case is concerned with public land and public streets. The expression 'street' is defined under the Delhi Police Act, 1978 and reads thus:

Section 2(r): 'street' includes any highway, bridge, way over a causeway, viaduct or arch or any road, lane, footway, square, court, alley or passage accessible to the public, whether or not it is a thoroughfare Thus, a footway, a bridge etc. would be covered under the expression 'street' under this statute. A pavement is used as a passage by people on foot.

24. The Delhi Police is empowered under Section 28 to make regulations for regulating traffic and for preservation of order in public places etc. Amongst the other matters in respect of which it is empowered to frame regulations, the Police is specifically empowered under Section 28 (e) of the statute to make regulations for the following:

28. Power to make regulations for regulating traffic and for preservation of order in public places etc. - (1) The Commissioner of Police may, by notification in the official Gazette make regulations to provide for all or any of the following matters namely -

xxxx xxxx xxxx

(e) licensing, controlling or prohibiting the erection, exhibition fixation or retention of any sign, device or representation for the purpose of advertisement, which is visible against the sky from some point in any street and is hoisted or held aloft over any land, building or structure at such height as may be specified in the regulations, having regard to the traffic in the vicinity, and the likelihood of such sign, device or representation at that height being a distraction, or causing obstruction, to such traffic.

25. In exercise of the powers conferred on the Commissioner of police under Section 28(1)(e) read with the proviso to Sub-section 3 of Section 28 of the Delhi Police Act, 1978 and with the previous sanction of the Administrator of Union Territory of Delhi, the Commissioner made the Delhi Control of Erection or Exhibition of Advertising Devices Regulations, 1980. These regulations were published in the Delhi Gazette Part IV (Extraordinary) vide Notification No. F 5207/Spl. Cell dated 29th December, 1980. These statutory regulations thus bind the parties to the present suit.

Page 2929

26. Regulation 2 of the Delhi Control of Erection or Exhibition of Advertising Devices Regulations, 1980 reads thus:

Regulation 2. Control of advertising:- No person shall affix or exhibit or cause to be exhibited any sign, device or representation for the purpose of advertisement which-

(a) is visible against the sky at a height of less than 2.15 metres from the ground or as may be specified in the license by the licensing authority.

(b) is exhibited in traffic signal colours viz., red, amber and green; or

(c) is emitting any light in red, amber and green; or

(d) is likely to cause glare or in any other manners affect the vision of a driver or other person using the rod or streets; or

(e) consists of such picture or illustration which is likely to be a distraction to a driver of a vehicle on the road or street; or

(f) the Deputy Commissioner of Police, Traffic considers a traffic hazard on any ground that shall be recorded and communicated in writing to the person affixing or exhibiting it.

27. By an amendment notified in 1991 to these regulations i.e. The Delhi Control of Erection or Exhibition of Advertising Devices (Amendment) Regulations 1991, the DCP, Traffic was empowered to issue the directions to the following effect:

Regulation 4. Direction to remove a hoarding declared a traffic hazard by DCP/Traffic:

(a) Deputy Commissioner of Police, Traffic, may, when he deems fit, issue directions, in writing, to any person, who erects a hoarding/advertisement, which the Deputy Commissioner of Police, Traffic, considers hazardous to traffic and road safety to remove such hoarding/advertisement.

(b) Such a person shall remove the hoarding/advertisement within the time period specified by Deputy Commissioner of Police, Traffic.

(c) If the directions issued by Deputy Commissioner of Police, Traffic, are not complied with, Deputy Commissioner of Police shall arrange to remove hoarding/advertisement himself and realise the removal charges from the person concerned.

The amendment took effect from 13th May, 1991.

28. The Motor Vehicles Act, 1988 defines 'public place' in Section 2(34) and 'traffic signs' in Section 2(45) which reads thus:

Section 2 Definitions (34) 'public place' means a road, street, way or other place, whether a thoroughfare or not, to which the public have a right of access, and includes any place or stand at which passengers are picked up or set down by a stage carriage;

(45) 'traffic signs' includes all signals, warning sign posts, direction posts, markings on the road or other devices for the information guidance or direction of drivers of motor vehicles.

Page 2930

29. The decision as to whether an advertisement is hazardous or not, thus rests with the Delhi Police under the The Delhi Control of Erection Or Exhibition of Advertisement Devices Regulation, 1980.

30. The Indian Road Congress had also brought out the guidelines titled as 'Policy on Roadside Advertisements' which has been placed before this Court by the defendant no. 2. This document provides clear guidelines as to which advertisements would be considered objectionable. It also shows application of mind to the aspect of the reaction of drivers, time required in responding to the requirement to stop the vehicle etc.

31. It is pointed out that the standards were worked out by Indian Roads Congress in 1953 and were approved only in its 79th meeting which was reprinted in 1992 and came to be known as 'Policy on Roadside Advertisements'. This has also been noticed in the study placed on record by the plaintiff.

32. As per this Policy on Roadside Advertisements published by the Indian Roads Congress, 1992, the expression 'advertisement' is defined thus:

2.1 'Advertisement' in the following paragraphs, means any word, letter, model, sign placard, board, notice, device or representation, whether illuminated or not, in the nature of, and employed wholly or in part, for the purpose of advertisement, announcement or direction (excluding any such thing employed wholly as a memorial, road sign or railway signal). This policy lays the principles which were required to be applied before consent be given to erection of advertisements on the road, lands or on structures adjoining the road.

In Clause 2.2 of the policy, advertisement was explained to include any hoarding or similar structures used or adapted for the display of advertisements.

Clause 2.3 of the policy specifically stipulates that these principles would cover cases where advertisements are on private land adjoining a road which may destroy amenity or endanger public safety. The principle of advertisement control as provided in Chapter 3 of this policy are extremely important and reads thus:

3. Principles of Advertisement Control 3.1 What may be considered as Objectionable 3.1.1: In general, advertisements should not be permitted:

(1) at or within 100 m of any road junction, bridge or another crossing. In urban areas, this distances may be reduced to 50 m, provided there is no conflict with the requirements stated furtheron;

Note: The safe stopping distance for a vehicle traveling at a speed of 50 km/hr. Is 60 m. This should be the 'uninfluenced distances' for a driver approaching a junction. Assuming that 3 seconds is the time will be about 40 m. The sign should, therefore, be more than 100 m away from the junction. Hence 100 m is suggested.

(2) in such manner and at such places as to obstruct or interfere with the visibility of approaching, merging or intersecting traffic:

(3) within 10 m of the edge of a carriageway;

Page 2931 Note:- A distance of 10 m may be taken as the normal minimum setback from the edge of the carriageway, the maximum area of the advertisement being 0.3 sq.m. For every metre of setback.

(4) within 50 m along the road, of any sign board created for the regulation of traffic under the orders of a Public Authority such as a Traffic Authority, a Public Transport Authority, or a Local Authority;

(5) in such a form as well obscure or binder interpretation of any sign, signal or other device erected for traffic control by the Public Authorities. For instance, the advertisements should not imitate or resemble, in colour or shape, the standard legal traffic signs, or employ such words as 'STOP' in the same manner as used on traffic signs;

(6) on boards, placards, cloth banners or sheets hung across a road as they distract the attention of the driver and are, therefore, hazardous;

(7) in such form as will obstruct the path of pedestrians and hinder their visibility at crossings.

(8) within right-of-way of the road;

(9) when these will affect local amenity.

3.1.2. Illuminated advertisements of the following description are objectionable from the angle of traffic safety and should not be allowed:

(a) advertisements which contain, include or are illuminated by any flashing, intermittent or moving light or lights except those giving public service information such as time, temperature, weather or date;

(b) illuminated advertisements of such intensity or brilliance as to cause glare or impair vision of the driver or pedestrians, or which otherwise interfere with any operations of driving.

(c) advertisements illuminated in such a way as to obscure or diminish effectiveness of any official traffic sign, device or signal.

3.2 What may be considered as Affecting Amenity 3.2.1 From aesthetic considerations, the display of commercial advertisements should be strictly controlled where either the general characteristics of the locality are predominantly those of a residential neighborhood or where natural scenary or public improvements are thereby likely to be depreciated.

3.2.2 The frontage of buildings of a dignified and subdued character such as hospitals, educational institutions, public offices, memorials of national importance, places of worship, etc. should be protected from the vandalism of commercial advertisements.

This policy in public interest permits relaxation of the controls and permits installation of official warnings, signs, traffic directions, sign posting, and notices and advertisements posted or displayed by or under directions of any public or court officer in the performance of official or directed duties; direction signs to places of public mandates such as petrol pumps, first aid Page 2932 posts, police stations, fire stations and such like advertisements. Judgments, orders and directions of the Apex Court.

33. In order to adjudicate upon the respective contentions, it becomes necessary to first notice the directions of the Apex Court.

34. Shri M.C. Mehta v. Union of India Writ Petition (C) No. 13029/1995 was filed before the Apex Court relating to proper management and control of traffic in the national capital region and the national capital territory of Delhi to ensure maximum possible safeguards which are necessary for public safety. The need for urgent measures to prevent any further delay in enforcement of at least the existing provisions of law was noticed to be imperative which was accentuated by the alarming rise in the number of road accidents and the resulting deaths and bodily injuries caused thereby. The court also took note of the tragedy in which a school bus broke the parapet of a bridge and fell into the river a few days before the judgment was passed by the court. In its judgment delivered on 20th November, 1997 which has been reported at 1997 (8) SCC 770, the court had observed that keeping in view the seriousness of the issue, the Chief Secretary of Delhi and the Police Commissioner and the Commissioner (Traffic) had been joined in the proceedings to examine the matter at length. So far as interpretation of the existing statutory provisions to control and regulate road traffic is concerned, the court specifically noticed that 'it needs hardly be added that the claim of any right by an individual or even a few persons cannot override and must be subordinate to the larger public interest and this is how all provisions conferring any individual rights have to be concluded.'

35. Emphasising the urgency of the matter and the expressed inadequacy of the action on their part, the court considered the statutory provisions at length and had observed thus:

14. It is needless for us to add that the entire scope of this matter and particularly this aspect to which this order relates, namely, the control and regulation of traffic in NCR and NCT, Delhi, is a matter of paramount public safety and, therefore, is evidently within the ambit of Article 21 of the Constitution. That being so, the making of this order has become necessary and can no longer be delayed because of the obligation of this Court under Article 32 of the Constitution which is invoked with the aid of Article 142 to give the necessary directions given today separately.

36. After so observing, the court passed detailed directions in exercise of the power of the court under Article 32 read with Article 142 of the Constitution of India. So far as the issues raised before this Court are concerned, the following directions given by the court is required to be considered in extenso:

(i) The civic authorities including DDA, the Railways, the police and transport authorities, are directed to identify and remove all hoardings which are on roadsides and which are hazardous and a disturbance to safe traffic movement. In addition, steps be taken to put up road/traffic signs which facilitate free flow of traffic.

Page 2933

37. The court had expressed concern over the fact that this writ petition had been pending before the Apex Court since 1985 and no steps had been taken by the authorities. The court issued specific directions to the authorities to give publicity to the order passed by the court in the print and electronic media and had clearly declared that the publication of the order would be sufficient public notice to all concerned for due compliance. In this behalf, the following directions were issued:

B. We direct the Union of India to ensure that the contents of this order are suitably publicised in print as well as the electronic media not later than 22-11-1997 so that everybody is made aware of the directions contained in the order. Such publication would be sufficient public notice to all concerned for due compliance.

C. We direct that this order will be carried out notwithstanding any other order or directions by any authority, court or tribunal, and that no authority shall interfere with the functioning of the police and transport department insofar as implementation and execution of these directions is concerned.

38. The matter did not end here. It appears that the Delhi Outdoor Association filed an application being IA No.12 in WP (C) No. 13029/1985 M.C. Mehta v. Union of India. In this application, the Advertiser's Association made a prayer for clarification/modification of the afore-noticed order dated 20th November, 1997, so far as it relates to the directions given for removal of all hoardings on the roadside.

39. This application of the Advertiser's Association was disposed of by the order passed on 10th of December, 1997 by the Supreme Court. The court noticed the steps taken by the authorities in Delhi towards implementation of the directions thus:

We have perused the notice published by the commissioner of MCD warning all advertisers/...of hoardings in Delhi to remove such hoardings and also the notices issued thereafter as a result of non-compliance of the notice by some persons. We are satisfied that the steps taken are in the proper direction to identify and remove these hoardings.

40. On behalf of the Delhi Outdoor Advertisers Association, Mr. G. Ramaswamy, learned senior counsel had submitted that the order enables the authority to act arbitrarily and to remove any hoarding at their will which should not be permitted.

41. The Apex Court rejected the contentions raised by the applicant observing that the order dated 20th November, 1997 had been duly publicised as per the directions given by the court and was well known to everybody which was sufficient notice to every person and no further notice as was suggested on behalf of the applicant, was required. So far as the arbitrariness and the prayer for clarification that all hoardings which are on the roadside are not hazardous is concerned, the court clearly set out the principles thus:

2. ...The order dated November 20, 1997 is quite clear and has also been correctly understood by the authorities to remove all hoardings which are on road sides and which are hazardous and a disturbance Page 2934 to safe traffic movement. There is no ambiguity in the order. It is obvious that every hoarding, other than traffic signs and road signs on the road sides have to be removed irrespective of its kind; every hoarding irrespective of whether it is on the road-side or not which is hazardous and a disturbance to safe traffic movement so as to adversely affect free and safe flow of traffic is required to be identified by the authorities and promptly removed. Obviously, the hazardous hoarding which is a disturbance to safe traffic movement has to be a hoarding visible to the traffic on the road. No other detail or further guideline is required for appreciating this order and its implementation. Even though the order dated 20.11.1997 was explicit and very clear, yet these further observations are made to leave no one in any doubt of the content and requirement of our order.

3. We reiterate the direction given in our order dated November 20, 1997 that the order made by us even in respect of the hoardings is required to be implemented notwithstanding any other order or directions including stay orders/injunctions granted by any authority, court or tribunal to the contrary.

42. From the perusal of the above directions by the court, it is noteworthy that the court clearly defined a hoarding which would be 'hazardous and a disturbance to safe traffic movement so as to adversely affect free flow of traffic' and it was clearly stated that the hazardous hoarding which is a disturbance to safe traffic movement, has to be a hoarding visible to the road. Thereby, any discretion which the authorities could read unto themselves was also taken away in view of the clear directions of the Apex Court. The court also directed the authorities to remove 'every hoarding irrespective of whether it is on the roadside or not' which is hazardous and a disturbance to traffic; that is those which are visible to the traffic. Concealment of material fact

43. The entire consideration by the MCD and the written statement filed before this Court places strong reliance on the order passed on 16th April, 2001 by the Apex Court in the Narayana Bhat matter. Before this Court, reliance has also been placed to an interim order dated 26th October, 2004 by the Allahabad High Court in Writ No. 44317/2004 Ultra Media v. State of U.P. and Ors.

44. However, the MCD has concealed from this Court the further directions made by the Apex Court in Writ Petition (C) No. 13029/1985 M.C. Mehta v. Union of India on the subject in issue. In this matter, Mr. Harish Salve, the then Solicitor General of India had been appointed as an amices curiae in W.P.(C) No. 13029/1985. It appears that he had filed an application in the year 2001 on which, upon hearing counsels for the various parties, on 30th January, 2001 the court had recorded the following order:

I.A. No ...of 2001 (Filed on behalf of learned A.C. for directions) Taken on Board.

Concerned by the acute problem of air pollution which is not only a health hazard but is also environmental enemy as well increasing risk on account of unruly traffic, this Court has made orders from Page 2935 time to time and has issued directions tot he authorities to see that the directions issued by the Court are complied with. Some directions were given on 12th November, 1997 and again on 20th November, 1997. Whether it is the absence of will to enforce the orders of this Court as well as their statutory obligations or an attitude of complete indifference to the prevailing problem of air pollution and traffic hazards in Delhi, it appears that the authorities, after having taken some initial steps soon after orders were made, have gone into deep slumber with the result that not only those directions have remained unimplemented but an impression has gained currency that directions perhaps are no longer operative or relevant. It is indeed unfortunate and sad. This Court is monitoring the case only to ensure strict protection of Article 21 and to make the authorities realise their obligations under various statutes so that the intention of the Lagislatures is not allowed to be frustrated. We need not express our anguish in more stern terms.

We direct that notice of this application shall issue to the respondents for their response and in the meanwhile we emphasise that all directions issued by this Court from time to time and particularly the following directions:

xxxx xxxx

(f) All roads hoardings to be removed not late than 22nd November, 1997.

shall be implemented forthwith. The Commissioner of Police, Delhi shall personally ensure compliance of these directions and report compliance to this Court. We clarify that it shall not be given to mean that other directions issued by the Court from time to time have been given a go bye or are of less importance or not meant to be obeyed. All directions are meant to be complied with without fail.

The Apex Court had clearly directed the Commissioner of Police, Delhi to report the compliance to the court within two weeks of the date of the order.

45. These directions of the Apex Court on 30th January, 2001 have not found a mention in any pleading of either the plaintiff or the MCD before this Court. This certainly amounts to deliberate concealment of a material fact from this Court. The plaintiff and defendant no. 2 being aware of the orders dated 20th November, 1997 and 10th December, 1997 cannot plead ignorance of the order dated 30th January, 2001 in the same petition more so when they are aware of the order of 16th April, 2001 in another matter. Understanding of the directions and implementation from 1997 till 2005

46. It is also essential to notice as to how the directions of the Apex Court were construed by the highest echelons in Delhi including the MCD. The first document placed before this Court after the order of the Apex Court on 20th November, 1997 is a noting dated 24th November, 1997 of the Assistant Commissioner (Advertising), Municipal Corporation of Delhi. This noting refers to the discussion of the court order in the meeting of the Commissioners of MCD on the 22nd of November, 1997 in which all Heads of Departments were present. A decision had been taken to prepare a draft notice to sent to all allotted hoarding sites and to direct the advertisers to Page 2936 remove the hoardings within five to seven days. This draft notice, also placed before this Court, was approved with slight modifications by the chief officers of MCD and was thereafter duly circulated.

47. In the meantime, the second order of the Apex Court was passed on 10th of December, 1997 giving clear and unambiguous directions to the MCD.

48. From the record placed by MCD before this Court, it appears that pursuant to the directions given by the court, the Chief Secretary, GNCT of Delhi convened a meeting on 16th December, 1997 which was attended by the Commissioner (Transport), Additional Commissioner (Traffic Police), Secretary PWD, DCP (Traffic) and other officers. Pursuant to the meeting, Shri S.K. Jain, Assistant Commissioner (Advertising), MCD put up a noting that all structures which have been fixed on the municipal land and on private premises for the display of hoardings are also liable to be removed and sought a direction to all the DMCs to issue instructions to the owners/advertisers of such structures to remove the same within a period of seven days failing which the MCD would remove these structures. A draft public notice was also proposed in his noting dated 17th December, 1997. This noting was placed before the then Commissioner, MCD who on 18th December, 1997, endorsed his agreement with the proposal. The Commissioner, MCD had also dictated a note which has been placed before this Court as Exhibit DW2/A by Mr. Amiya Chandra, Additional Commissioner (Advertising) of the defendant no.2. It would be useful to set out this note of the Commissioner dated 18th December, 1997 in extenso which reads thus:

No. PSC/1990/97 In a recent review meeting I had directed that steel posts/iron scaffoldings from the hoardings which have been removed should also be dismantled and removed. Besides presenting an ugly look, these could also be a safely hazard. I presume action in this respect has already been started by the zones. Recently when the Outdoor Advertising Associations' representatives met me (when A.C. (Advt.) was also present), they agreed to remove the hoardings/scaffoldings themselves. As decided in the Chief Secretary's meeting, all hoardings visible from the roads to traffic are to be considered as hazardous and disturbing the traffic and must be removed. This includes hoardings which are on house tops/buildings etc. other than on the road sides. I have already cleared the Department's file on the subject and a public notice is being issued besides suitable advice to the Dy. Commissioners of the Zones. The next date of hearing in this case in Supreme Court is 6th of January, 1998. I have assured the Government that MCD will endeavor to make the city (MCD areas) generally hoarding free by 31st of December, 1997. I will be taking a review meeting on Saturday, the 3rd of January, 1998.

49. Pursuant to these conscious decisions taken by the MCD in conjunction with the Chief Secretary, GNCT of Delhi and all concerned authorities, the MCD published the following public notice in newspapers:

...Therefore, in compliance of the direction of the Hon'ble Supreme Court, all the hoarding which are visible from the roads, irrespective Page 2937 of the fact whether they are on the municipal land, in the right of way, on roof-tops or on/within the private premises including educational institutions, religious institutions etc. or on the land belonging to any other agency/department/institution are hazardous and adversely affect the safe and free flow of traffic and are to be removed.

All the members of the public are hereby given a notice of 48 hours (in the case of hoardings) and 07 days 9 in the case of hoarding structured) of the publication of this notice, to remove the hoarding(s)/structure(s) fixed on/in the properties owned by them, failing which the same shall be removed by the municipal authorities at the risk and cost of the concerned owner(s). Needless to state that non-compliance of the directions of the Hon'ble Supreme Court, shall attract contempt of court against the concerned owner(s) of the properties, as well as action under Section 188 I.P.C.

It is noteworthy that this public notice was published in various daily newspapers on the 19th of December, 1997.

50. Ms. Tewatia, learned Counsel for MCD has urged at great length that action taken reports received from the various zones were duly filed before the Apex Court through the Director (Transport) of the GNCT of Delhi. In the letter dated 6th November, 1998, the MCD had addressed a communication to the Additional Director (Transport) regarding removal of the 'Hoardings' and scaffoldings/structures from the territorial limits of the MCD and implementation of the directions of the Supreme Court in Writ Petition (C) No. 13029/1985 M.C. Mehta v. Union of India and written thus:

1. The Municipal Corporation of Delhi was directed to remove all the hoardings falling within its territorial jurisdiction, in view of the directions of the Hon'ble Supreme Court of India in the above mentioned case. MCD accordingly removed all the hoardings falling within the territorial jurisdiction, numbering about 1900. All the hoardings were removed, as they were visible to the traffic on the roads and were hazardous and a disturbance to safe traffic movement, as per the decision taken in the meeting held with Chief Secretary, Delhi, and communicated to the MCD.

2. MCD is also removing all the scaffolding/structures over which display was erected by the advertisers. All the hoardings which were located within the territorial limits of the MCD, have already been removed and almost all the structures on which such hoardings were displayed, have also been removed. A list of the hoardings which have been removed from the respective zone of the MCD is enclosed for information.

51. This understanding of the clear and unambiguous directions of the Apex Court of the MCD does not display any doubts and did not change till 2005. Change in stand after 2005

52. While no documents have been placed before this Court in this behalf, nor any submission made in the written statement, however, from some of the nothings placed before this Court, it appears that a discussion was held Page 2938 in the chamber of the Commissioner of MCD on 18th November, 2005 and an Urban Graphic Forum (which was subsequently renamed as Urban Project Development Group) was constituted by the MCD as a result on the 6th of October, 2003 to formulate a graphic policy for Delhi on the ground that the MCD had not been able to earn the desired revenues for years. However, this forum contributed little in formulating any advertisement policy or fulfillling its mandate. A smaller group within the UGF designated as Urban Project Development Group was thus formed on 20th January, 2005 with the mandate to develop specifications and design criteria for advertising graphic adjunct within a period of six months. This group also stated that it could not begin its work before March, 2005 when payment was made to them. Despite payment of Rs. 10 lakhs plus service tax to them, they failed to submit any report till the 18th of November, 2005. As on 17th November, 2005, they only made a presentation on the chapter headings of the proposed report and outlined the direction in which they were working. The MCD therefore, was of the view that this group had failed to fulfill its mandate and the extension of time granted to it had been detrimental to the purpose and mandate for which it had been set up. In these circumstances, in order to fill the gap for immediate revenue augmentation, the Commissioner, MCD, desired to set up a Committee comprising of the officers of the MCD.

The terms of reference of the committee were stated thus:

(i) Identification of advertising spaces in each of the 12 municipal zones.

(ii) Designing of structure and mode of display for graphics etc.

(iii) Standardization of shop signages, in terms of structure and revenue.

(iv) To evaluate different proposals regarding display of advertisement through different modes/adjuncts received by the MCD from time to time.

(v) To determine detailed specification of the Advertising Graphic Adjuncts of different types through which interventions can be realized, while providing for some new and some already existing city functions and services, for revenue augmentation.

These decisions have been noticed in the minutes put up by Mr. Amiya Chandra, Additional Deputy Director (Advertising) on the 24th November, 2005.

53. This Committee met on the 12th of December, 2005 which meeting was chaired by the Additional Commissioner (Rev.) who observed that the orders of the Apex Court dated 20th November and 10th December, 1997 were 'subject to interpretation' in terms of definition of 'hazardous' and that 'the order dated 16th April, 2001 in Civil Appeal No. 2803/2001 titled P. Narayan Bhat v. State of Tamil Nadu was very clear.' Observations from this order were reproduced in the noting recorded on this date noticing that the 'Commissioner, MCD had shown disappointment over lack of generation of revenues since 2001 through Outdoors Advertisement Graphic. Hence, the purpose of the Committee is to decide ways and means to augment revenue by identification of advertisement adjunct and also the modes of advertisement which are 'not hazardous'.' Page 2939

54. These observations failed to notice that the Apex Court keeping in view the peculiar status of the traffic in Delhi, so far as hoardings in Delhi were concerned, had clearly decided, as to what would constitute hazardous. These nothings and discussions also failed to notice that the orders dated 20th November and 10th December, 1997 were passed by a three Judge Bench of the Apex Court. All these authorities were clearly of the view that the directions were clear, unambiguous and required no interpretation. Conscious decisions and actions were taken in Delhi thereafter under the auspices of the Chief Secretary of the Government of NCT of Delhi by the then Commissioner of MCD. Based on these decisions, hoardings had been directed to be taken off and were actually taken down.

55. In view of the clear directions of the Apex Court, it does not lie in the mouth of the MCD or any other party to urge that any discretion was left to any person or authority as to decide which hoardings are to be removed and which are not. Furthermore, the manner in which the authorities including the MCD had understood the earlier order of 20th November, 1997 and 10th December, 1997 show that there was no doubt in their understanding that there was to be removal of all hoardings.

56. Further meetings were held on the 12th of December, 2005. It was also decided to call a meeting of registered advertisers, Deputy Commissioners of Zones and Heads of Community Service Department, Horticulture Department, Education Department, Health Department and Engineering Department for identification of sites in each zone. The draft proposal on display of advertisements was also approved.

In terms of this decision, a meeting was held on the 19th December, 2005 of all these departments. In this meeting, the various participants were required to co-ordinate and furnish suggestions so that sites and advertisement graphics could be finalized ``in consonance with the directions of the Hon'ble Supreme Court, as also to suit the aesthetic beauty of the city and revenue is generated for the Department to the maximum extent'`.

57. Finally, a meeting was held on 2nd February, 2006 wherein 450 sites were approved for display of advertising graphics. The proposal with regard to sites on certain specific private properties were discussed.

58. The Commissioner of MCD put up the proposal dated 20th March, 2006 for display of advertisement through Unipoles of the size of 20 feet by 8 feet each at selected sites on zone-wise basis to the Standing Committee. This proposal notices that it was estimated to generate 'an additional revenue of approximately Rs. 15 crore per annum through allotment of such contract'. By this proposal, it was noticed that MCD proposed to allow displays of illuminated advertisements through these Unipoles at the approved sites. The terms and conditions which were proposed were also placed before the standing committee. The proposal of the MCD received the approval of the Commissioner on the 20th of March, 2006.

59. The full house of the MCD also approved the proposal of the Commissioner as recommended by the standing committee as Resolution No. 15.

Page 2940

60. The MCD has placed before this Court the list of sites for display of illuminated advertisement through Unipoles. These sites include inter alia traffic islands near Lothian Bridge, Vands, Mataram Marg Crossing at Delhi Gate, Nehru Place; roundabouts at Pusa; Footpaths at Karampura, New Police Post Madipur, Vikas Puri, C-Block Gurdwara, T-point of Rani Jhansi Road and New Rohtak Road, Riddge Road and Simon Boliver Marg, Delhi Police School, Safdarjung Enclave, Park near Hanuman Mandir, Tilak Bridge, Park near Rao Travels - Basant Enclave, Park near 3 Cs Lajpat Nagar; Park near D.K. Vision Malviya Nagar; Tikona Park - Timarpur; Roundabouts at Pusa, Traffic Light intersections at Nehru Stadium, Bhisham Ptamah Marg, Crossing at Delhi Garge, Nehru Place near DDA Park, Kalkaji side, Footpaths at Karampura Terminal, near, P.S. Hari Nagar, Lajwanti Chowk, Distt. Park, Tilak Nagar, Indl. Area, Kirti Nagar etc.; Red Lights at Lala Ram Park near Dharam Pura etc,- Near schools and colleges at GTK Road, Nicholson Centenery near Ludlow Castle School Road, Near M.C. Pry School, Keshav Puram, Near Vivekanand Mahila College, Vivek Vihar, Shyam Lal College, G.T. Road, Shraddha Nand College, Alipur etc. This list consists of some of the most crowded areas in Delhi.

61. Before this Court, reliance has been placed on an affidavit dated March, 1998 purportedly sworn by Ms. Kiran Dhingra, Commissioner cum Secretary, Transport, and filed in CWP 13029/1985 MC. Mehta v. UOI and Ors. There is no explanation forthcoming as to the context in which this affidavit was filed. However the same appears to be in the nature of an action taken report. In para 9 of this affidavit, the deponent had sought directions relating to advertisement/hoardings and according to the MCD, had stated thus:

9. In view of the previous directions of this Hon'ble Court under its Orders dated 25.11.1997 and 16.12.1997 pertaining to advertisements/hoardings. It is necessary to seek appropriate directions from this Hon'ble Court to permit the following kinds of advertisement/hoardings.

(i) Kiosks or bill boards may be allowed on street light posts;

(ii) Advertisements by exhibiting the names etc of the sponsors Along with road signs may be allowed;

(iii) As also on DTC bus shelters with appropriate restrictions of size and colour. Such advertisements/hoardings will generate required funds for the agencies.

62. The directions which were sought had already been rejected by the Apex Court in its clear mandate in the order dated 30th January, 2001 which is not even referred to by the MCD in its pleadings or submissions. No mention thereof or of the directions made thereafter is to be found in its decision making process. The orders passed by the Apex Court on 30th January, 2001 is certainly a material fact which the MCD - defendant no. 2 has deliberately not considered.

63. In the meantime, it is noteworthy that on or about the 20th of November, 2001, Contempt Petition No. 1 of 2002 in W.P.(C) 13029/1985 M.C. Mehta v. UOI under Article 129 of the Constitution of India read with Section 12 of the Contempt of Court Act and rule 3(3) of Page 2941 the Supreme Court Rules was filed against the present defendants in the Apex Court with regard to their violating the directions made by the Apex Court in its earlier judgments with regard to the hoardings. Notices were issued to the present defendants and this petition is still pending against them before the Apex Court.

64. Along with its documents, the MCD has filed a copy of reply which has been filed by it before the Apex Court to this petition filed against it. The MCD has explained its conduct in this affidavit which has been sworn by Mr. Amiya Chandra in August, 2006:

Subsequent to removal of all hoardings from the city of Delhi, in terms of the order of this Hon'ble Court dated 20.11.1997 and 10.12.1997, no permission for display of advertisement through hoarding of the above descriptions, has been granted by the answering respondent.

It is further respectfully submitted that while submitting consolidated report before this Hon'ble court regarding implementation of the directions of this Hon'ble court given vide orders dated 20.11.1997 and 10.12.1997, Commissioner-cum-Secretary (Transport), Govt. of NCT of Delhi, vide affidavit dated 23.03.1998 had sought appropriate directions from this Hon'ble court to permit the following kind of advertisement/hoardings.

xxxx xxxx xxxx In this regard, no contrary directions were issued by this Hon'ble Court. Accordingly, MCD has been permitting display of advertisement through other modes, including kiosks on street light poles and DTC bus queue shelters, which do not constitute hoardings - hazardous or disturbance to safe traffic movement. It is further respectfully submitted that even in respect of the 'advertisement hoardings', in a judgment delivered on 16.04.2001 in Civil Appeal No. 2803 of 2001 titled P. Narayana Bhat v. State of Tamilnadu and Ors., this Hon'ble court has held as under:

xxx that the authorities concerned are empowered either to refuse to grant license/renewal or to remove the existing hoardings only if the same is hazardous and is disturbance to safe traffic movement which, in turn, should adversely affect free and safe flow of traffic, unless these impediments are present in the hoardings, merely because the said hoardings are visible to the traffic, cannot be a ground for either refusing the grant/renewal of license.'` It is thus apparent from the above that only the hoardings which are hazardous and disturbance to safe traffic movement, are not permissible. Even though it is difficult to exactly define 'hazardous hoardings', broad guidelines have been made to ensure that out of home displays are not hazardous.

xxxx xxxx xxxx

65. Even in this affidavit, there is not even a reference to the order dated 30th January, 2001 of the Apex Court. This affidavit would indicate, that the authority having failed to get a modification of the earlier orders passed Page 2942 by court and despite its understanding of the clear directions of the Apex Court, as noticed above, has proceeded on the assumption that the orders of the Apex Court do not bind it.

The MCD does not even disclose the list of sites identified by it. The orders of the Apex Court standing, bind the authorities.

Reason for the decision

66. The MCD has taken a stand before this Court that the present decision has been taken for the purposes of revenue augmentation of the MCD. It has also been urged at great length that the orders dated 20th November and 10th December, 1997 conferred the discretion on MCD to identify which hoardings were hazardous and which were not and that the direction of the Supreme Court was not to remove all hoardings. According to Ms. Tewatia, learned Counsel for the MCD, the decision to award the contract for setting up the Unipoles is a conscious decision taken by the MCD in compliance of the directions of the Apex Court and after identification of the sites where the hoardings would not be hazardous. Learned Counsel contends that such a decision taken in the larger interest of revenue augmentation of the MCD, cannot be urged to be as violative of the law.

67. Strong reliance has been placed by the MCD on an undated opinion obtained from a senior advocate. This opinion purportedly is dated 12th January, 1999.

68. This Court had called upon the MCD to produce the queries which were placed before the senior counsel. Only then it was informed by learned Counsel for the MCD that the opinion had not been solicited by the MCD but by the advertisers and that MCD only had a photocopy handed over by some advertisers! Certainly the advertisers association would be interested in furthering their commercial and business interests and encouraging the corporation to permit them to install the hoardings on the roadsides for purely commercial interest. Perusal of the copy of the opinion of the senior counsel which has been relied upon by the corporation shows that it does not even advert to the clear directions of the Apex Court. Such an opinion obtained by the Advertisers Association forms the basis of the decision making of the MCD and finds notice even in its minutes. Interestingly, the origin of this opinion obtained by the advertisers in 1999 or its existence is also not known to the MCD! This clearly underlines the concerted effort being made to overreach and get around the clear orders passed by the Apex Court on 20th November, 1997, 10th December, 1997 and 31st January, 2001.

69. In any case, the observations in this opinion lose all significance in view of the orders which was passed on 30th January, 2001 by the Apex Court. Decision in P. Narayan Bhat v. State of Tamil Nadu

70. The MCD has strongly relied on the decision rendered on 16th April, 2001 in Civil Appeal No. 2803/2001 titled P. Narayan Bhat v. State of Tamil Nadu and Ors. to justify that its action was in accordance with the directions of the Supreme Court. Perusal of the decision shows that this decision rendered in a case where the court was not concerned with regard to the safety of Page 2943 the traffic regulations in Delhi. This was a matter wherein the petitioner had challenged the refusal to grant him a license in the State of Tamil Nadu. There is no dispute that the pressure on the roads in Delhi has only increased between 1997 and 2005 when these meetings have taken place in the MCD. The factual situation so far as traffic in Delhi is concerned, is admittedly materially different from what is prevalent in Chennai. The observations made by the Two Judge Bench in P.Narayana Bhat case (supra) cannot be read out of context and applied to the factual situation which is prevalent in Delhi. The decisions and directions of the Apex Court on 20th November, 1997, 10th December, 1997 and 30th January, 2001 were not placed before the two judges bench of the Supreme Court hearing P. Narayan Bhat's case. The decisions dated 20th November, 1997 and 30th January, 2001 were rendered by three Judge Bench constituting of the Chief Justice of India, B.N. Kirpal, J and V.N. Khare, J. Furthermore, the plaintiffs have placed a report before this Court which has mentioned that the conditions of fatal accidents in Delhi are much worse than those in Chennai.

71. It is well settled that a decision has to be applied in the facts and circumstances of the case. In this behalf, in JT 2002 (1) SC 485 Haryana Financial Corporation v. Jagdamba Oil Mills, the Apex Court held thus:

19. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as Euclid's theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes, their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at P. 761, Lord Mac Dermot observed:

The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.

In Home Office v. Dorset Yacht Co. 1970 (2) AII ER 294 Lord Reid said, 'Lord Atkin's speech...is not to be treated as if it was a statute definition.

It will require qualification in new circumstances.Megarry, J. in (1971) 1 WLR 1062 observed: 'One must not, of course, construe even a reserved judgment of even Russell L.J. as if it were an Act of Parliament.' And, in Herrington v. British Parliament Board (1972) 2 WLR 537 Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.

Page 2944 Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

72. It is therefore well settled that a judgment has to be construed in the context of the facts and contentions raised before the court (Ref: 2003 VIII AD SC 468 Kesar Devi v. UOI; 109 (2004) DLT 763 M.C. Khullar v. UOI; 2004 (7) AD SC 109 U.P. Cooperative Central Union v. U.P. Sugar Mills)

73. The plaintiffs have placed reliance on the report titled 'Study of Road Accidents and Road Side Hoardings in Delhi Urban Area'. It is necessary to consider the same in some detail as it is the only material placed before this Court. This study report has been prepared by Professor P.K. Sarkar, Department of Transport School of Planning and Architecture in association with the Transport Planners Associates. This report records that the total number of motor vehicles registered in Delhi had exceeded the total number of motor vehicles registered together in Calcutta, Mumbai and Chennai. Thus, the number of road accidents and the number of deaths continue to experience an increasing trend and fatalities per 10000 motor vehicles and fatalities per 1,00,000 population are quite significant. It is further reported that amongst all the metros in India, Delhi exhibits the maximum accidents of the order of 10, 957. Significantly the report, as aforenoticed has mentioned that Delhi has the distinction of recording the highest number of fatalities per one lakh population which is to the order of 48.12 persons. Delhi is followed by Bangalore and Calcutta where the figures trail at 14.73 and 13.76 fatalities respectively.

74. In para 1.3 of this report, it is noted that the major attributes of road accidents in Delhi are a high growth of population coupled with significant growth of registered motor vehicles (11.43% per annum) and increased road density of the order of 233 vehicles per kilometer of road length. It is specifically mentioned that the total number of motor vehicles registered in Delhi had exceeded the total number of motor vehicles registered together in Calcutta, Mumbai and Chennai.

Analysing the road accidents in the various metropolitan cities, this report has pointed out inter alia that amongst all metros, Delhi exhibits maximum accidents of the order of 10,957 closely followed by Calcutta with 10,260; and that Delhi has the distinction of recording the highest number of fatalities per 1 lakh population of the order of 48.12 followed by Bangalore and Calcutta which to have only 14.73 and 13.76 respectively. Out of the various causes which have been noticed in this report as responsible for the occurrence of road accidents is the drivers negligence which constitutes a share ranging between 24.6% to 68.4% of the various causes for the road accidents which have been observed over a period of 1985 to 1987. Furthermore, between 15.6% to 43.16% of the total accidents are due to hit and run.

75. The basis of the observations so far as impact of road side advertisements and source of this information is not disclosed. The authors of this study have largely made recommendations with regard to the impact of new traffic schemes on accidents and based observations on opinion polls. The report Page 2945 states that no studies have been conducted and not a single literature is available identifying the impact of roadside displays/advertisements as a major factor for occurrence of accidents while overlooking the finding that the major cause of accidents has been identified as driver's negligence.

This report records that limited literature relating to the subject of hoardings/road side display and its relation to accidents are available. It specifically mentions that no studies relating to this subject have so far been reported in India. Reports which have been relied upon in this study are those where students were tested in a laboratory environment which simulated driving conditions in the USA and a study of the Australian Road Research Board in 1984 which also reviewed the results of studies conducted in the USA. This report also refers to an article of February, 1974 from Northern Carolina in the USA. Certainly such studies cannot form the basis of any planning or projections so far as India is concerned.

It is noteworthy that a laboratory environment with conscious participation by students in simulated conditions can certainly not provide an effective index so far as actual road conditions in Delhi are concerned. This report itself notices that causes and characteristics of road accidents in India are different as compared to those in developed countries due to differences in socio economic characteristics, easy access to driving licenses, types of vehicles, conditions of roads, little or no warnings towards traffic safety, traffic rules and regulations of the road users, poor adherence to traffic law and enforcements.

76. In any case, this report certainly establishes the difference between the traffic and accident position between Chennai and Delhi. It is significant that the directions dated 20th November, 1997, 30th December, 1997 and 30th January, 2001 were not placed before the two Judge Bench hearing P. Narayan Bhat v. State of Tamil Nadu. The court did not have the concerns or facts relating to Delhi before it.

77. So far as the defendants are concerned, the dicta of the Apex Court on the specific issue in question in the decisions rendered on 29th November, 1997, 10th December, 1997 and 30th January, 2001 would bind and guide them.

78. My attention has been drawn to a Division Bench pronouncement of this Court. It appears that the court took suo motu cognizance of newspaper reports relating to the status of the traffic in Delhi, the number of fatal accidents as effected by statistics placed in newspaper reports and the loss of life and governmental property by such accidents. This matter was registered as W.P. (C) No. 16565/2006 entitled Court on its own Motion v. Union of India and Ors. The court had joined the DTC, Government of NCT of Delhi, NDMC, MCD, private bus operators as well as Union of India as party respondents. After considering the various judgments pronounced by the Apex Court and the directions issued with regard to the subject matter of the consideration before the court, specific directions were made by the court on 26th of March, 2007 with regard to the hoarding and are given in para 43 and 44 of the judgment which reads thus:

43. ...Thus, it need to be reiterated that all the authorities concerned responsible for removal of hoardings particularly the MCD, NDMC, Page 2946 Delhi Metro, Railway Authorities and other bodies have violated the directions of the Court with impunity. This attitude must come to an end forthwith. They are obliged not to permit any hoardings especially on the main road, which are facing the road, as they have been held to be hazardous by the Supreme Court. It needs no further clarification. All hoardings on the main roads of Delhi should be removed within one month from today and no hoardings should be permitted in violation of the above judgment of the Supreme Court as well as in contravention to this direction. The roads of Delhi should have a free sky line as well as non-destructive driving routes in Delhi.

44. It does not stand to any reason that some senior officers of the Government have taken a decision permitting these hoardings in the teeth of the order of the Supreme Court. It is a clear misreading of the judgment of the Supreme Court and in fact ex-facie amounts to violation of the orders of the court. However, at this stage, we would refrain from taking any action but would direct to ensure compliance of the directions of this order, which is in conformity with the orders of the Supreme Court.

It is noteworthy that the order of the Apex Court dated 30th January, 2001 was not placed before the Division Bench even.

79. This Court has been informed that these directions are the subject matter of a petition before the Apex Court and certain orders have been made by the court. The orders passed by the Apex Court have not been placed before me.

80. The PWD has also placed before this Court the notice inviting tenders issued by the Municipal Corporation of Delhi dated 27th January, 2006 from advertisers registered with it for display of advertisements through kiosks on street light poles existing on all MCD roads including PWD maintained roads in respect of all the 12 municipal zones from the date of allotment. This notice was followed by a corrigendum dated 21st of February, 2006 whereby the MCD notified all proposed participants that the tender/contract should include only the 'MCD roads (excluding all PWD maintained roads)'. The MCD explained that the expression 'PWD maintained roads' shall mean all PWD roads presently being maintained by PWD.

81. Defendant no. 1 has vehemently objected that despite this position, the MCD has permitted installation of the hoardings on roads which are maintained by the PWD.

82. It appears that the experience in other cities have also compelled courts to consider the aspect of public display of hoardings on road sides. The Division Bench of the High Court of Punjab and Haryana at Chandigarh had an occasion to consider the issue of traffic in the Union Territory of Chandigarh in its judgment dated 22nd September, 2004 passed in W.P. (C) No. 7639/1995 entitled Namit Kumar v. UT Chandigarh Administration. The court had directed thus:

(22) xxxx xxxx Following the mandate of the Hon'ble Apex Court, we direct that all the sign Boards, hoardings, neon sign boards, advertisement boards, Page 2947 facing the highways, main road and the side roads/lanes shall be removed within a period of one month from the date of pronouncement of this judgment. Compliance report shall be submitted to the Registrar of this Court within 15 days thereafter. It is made clear that firstly the State administration/competent authority i.e. The State Transport Authority and the Municipal Corporation or Committee shall call upon the holder of such Boards to remove the same within 15 days. In the event of their failure to do so the State shall remove the same by its enforcement agencies. It shall be ensured that boards are removed and the iron or concrete pillars on which such boards are fixed are demolished or removed. The expense so incurred by the State shall be recovered from the owner of the land as arrears of land revenue, if not paid on demand.

This judgment was assailed before the Apex Court which appeal was disposed of by the judgment dated 27th September, 2004 reported at AIR 2005 SC 1386 Chandigarh Administration v. Namit Kumar.

83. In this case, the Government had taken a stand before the Apex Court that the directions of the High Court with regard to the advertisements would result in huge loss of revenue. It was further argued that the persons who were effected were not heard. In para 20, the Supreme Court has held that while dealing with the issues like environmental pollution and road hazards, there is no need for giving notice to all the persons effected. Despite the Government's plea that removal of the hoardings would result in loss of revenue, the court did not vary the directions. However, the court only permitted the State Government or the licensee to bring to the notice of the High Court that there were no safety hazards involved and to seek permission of the High Court.

In the instant case, the Apex Court has repeatedly pronounced on the hazard of hoardings so far as Delhi is concerned.

84. The plaintiff's challenge to the action of the defendants on the ground of failure to give notice and non-compliance of principles of natural justice in the case in hand would fail for these reasons. In any case, the orders of the Apex Court in 1997 and 2001 were well within the knowledge of all and would bind. Agreement forbidden by law and opposed to public policy and hence void

85. The contention of the defendant no. 1 before this Court that the agreement between the plaintiff and the defendant no. 2 was forbidden by law and was also opposed to public policy and for this reason, its object and consideration being unlawful, such agreement was void under Section 23 of the Indian Contract Act. This objection requires a consideration as to what would be considered as 'forbidden by law' and 'opposed to public policy'.

86. The expression 'object of an agreement' in Section 23 has fallen for consideration in several cases. In AIR 1994 Allahabad 298 (FB) Nutan Kumar v. IInd Additional District Judge, Banda, the Full Bench of the High Court of Judicature at Allahabad held that the word 'object' in Section 23 means 'purpose' or 'design' of the contract. In this behalf, reliance was placed on Page 2948 the meaning which has been given to the word 'object' by the Supreme Court in Gurmukh Singh v. Amar Singh wherein the Apex Court had observed that the word 'object' would mean the purpose and design which is the object of the contract, if it is opposed to public policy which tends to defeat any provision of law or purpose of law, it becomes unlawful and thereby it is void under Section 23 of the Contract Act.

87. It now becomes necessary as to intendment of the expression 'forbidden by law' or 'defeats the provisions of any law'. The expression 'law' has not been defined in the Indian Contract Act. The General Clauses Act, 1897 defines Indian Law' thus:

Section 3 (29) 'Indian law' shall mean any Act, Ordinance, Regulation, rule, order, bye-law or other instrument which before the commencement of the Constitution had the force of law in any Province of India or part thereof, or thereafter has the force of law in any Part A State or Part C State or part thereof, but does not include any Act of Parliament of the United Kingdom or any Order in Council, rule or other instrument made under such Act.

88. The Indian Contract Act was enacted in 1872 and hence is prior to the commencement of the General Clauses Act, 1897. In Abdul Hamid v. Mohd. Ishaaq , it was observed that even though the definition given under Section 3(29) of the expression 'law' in the General Clauses Act, 1897 would not directly apply to the Contract Act, but there appears to be no reason why the principles contained in the definition be not made applicable to even earlier enactments. Similar inference can be drawn from the provisions of Article 13 of the Constitution of India as well. Article 366 (10) of the Constitution defines existing law while by virtue of Article 367 (1), the General Clauses Act, 1897 is subject to such adaptations and modifications as may be made thereto. In this judgment, a distinction was drawn between an order of the District Magistrate which may have the 'force of law' but is not 'law' within the meaning of Section 23 of the Contract Act.

89. In the instant case, the issue which arises for consideration is the impact of the orders passed by the Apex Court on 20th November, 1997, 10th December, 1997, 30th January, 2001 and 7th of September, 2006 in exercise of its jurisdiction under Articles 32 and 142 of the Constitution of India.

90. The power of the court under Article 32 read with Article 142 has fallen for consideration in its pronouncement reported at Vineet Narain v. Union of India , where the Apex Court held that ample powers were conferred by Article 32 read with Article 142 to make orders which Page 2949 which have the effect of law by virtue of Article 141 and there is a mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the Constitution. It also noticed the fact that by a catena of decisions of the Apex Court, this power had been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role. Thus, it was recognised that under Article 32 read with Article 142, the Supreme Court was empowered to issue such directions as may be necessary for doing complete justice in any cause or matter and that all authorities are mandated by Article 144 to act in aid of orders passed by the Supreme Court. (Ref: Prakash Singh v. Union of India ).

91. It is equally well settled that under Article 142 of the Constitution of India, the Supreme Court is empowered to take aid and assistance of any authorities for doing complete justice in any cause or matter pending before it. (Ref: M.C. Mehta v. Union of India ).

92. In P.V. George v. State of Kerala , it was held that the Apex Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution may declare a law to have a prospective effect.

93. In Nair Service Society v. State of Kerala 2007 (6) JT 103, the Apex Court held that 'in terms of Article 141 of the Constitution of India, the declaration of law made by this Court is binding on all courts, a' fortiori such directions would also be binding on all authorities. Article 142 empowers this Court to pass such order as is necessary to do complete justice to any cause or matter pending before it and Article 144 enjoins all authorities, civil and judicial, to act in aid of the Supreme Court.' It was noticed that the Apex Court had repeatedly held that under Article 144, the State was bound to act strictly in terms of the decisions of the Apex Court and even if it has reservations about some of its directions, it could approach the court, and that it could not have acted otherwise.

94. In Palitana Sugar Mills Pvt. Ltd. and Anr. v. Vilasiniben Ramachandran 2007 (5) JT 83, the court already stated that judgments of the Apex Court are binding on all authorities under Article 141 of the Constitution and it was not open to any authority to ignore a binding judgment of the court on the ground that the full facts have not been placed before the court and/or the judgment of the Supreme Court in the earlier proceedings had only collaterally or incidentally decided the issues raised in the show cause notices.

Page 2950

95. The pronouncement of the Apex Court in Vishaka v. State of Rajasthan reported at laid down guidelines in exercise of the power under Article 141 and Article 32 of the Constitution of India in all cases relating to sexual harassment of women at the workplace. In this case, the Apex Court had specifically declared thus:

16. In view of the above, and the absence of enacted law to provide for the effective enforcement of the basic human right of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces, we lay down the guidelines and norms specified hereinafter for due observance at all workplaces or other institutions, until a legislation is enacted for the purpose. This is done in exercise of the power available under Article 32 of the Constitution for enforcement of the fundamental rights and it is further emphasised that this would be treated as the law declared by this Court under Article 141 of the Constitution.

96. It is today well settled that even when a particular field is specifically covered by a statute, it would be the judge who interprets the provisions of the statute. In the process of such interpretation, the judge attempts to find out the intention of the legislature and consequently, it is his final word as to what the legislature intended and thus, what the law is. Placing reliance on the theory promulgated by Dworkin and words of Benjamin N. Cardozo, in the judgment reported at Microsoft Corporation v. Ms. K. Mayuri and Ors., the principles have been stated thus:

21. ...Dworkin promulgated interpretative theory of law in 1980s. Accounting for the concept of law, he claims, is inevitably tied up with the considerations about what the law is there to settle. Cardozo acknowledges in his classic ``The Nature of the Judicial Process' - ``I take judge-made law as one of the existing realities of life'`, and that - ``no system of jus scriptum has been able to escape the need of it'` and he elaborates: ``It is true that codes and statutes do not render the judge superfluous, nor his work perfunctory and mechanical. There are gaps to be filled. There are hardships and wrongs to be mitigated if not avoided.'` Interpretation is often spoken of as if it were nothing but the search and the discovery of a meaning which, however, obscure and latent, had nonetheless a real and ascertainable pre-existence in the legislator's mind. Thus, there can be no manner of doubt that the pronouncement of the Apex Court on the subject issue would be law within the meaning of Section 23 of the Contract Act.

97. This Court is bound by these settled principles of law. In this view of the matter, I have no hesitation in holding that the principles laid down and the directions of the Apex Court in its judgments dated 20th November, 1997, 10th December, 1997 and 30th January, 2001 are law within the meaning of the expression in Section 23 of the Contract Act.

Page 2951

98. There is yet another reason for holding that the object of the agreement is unlawful for the reason that it defeats the specific provisions of law. The Master Plan of Delhi provides the permissible users of the different areas in Delhi. The Master Plan and the Zonal Development Plans are notified under the provisions of Sections 7 to 11 of the Delhi Development Act, 1957. The Master Plan is a statutory document and is binding on all authorities and persons. The Municipal Corporation of Delhi has no right or jurisdiction whatsoever to permit commercial use of any area unless the same is specifically so permitted by the master plan. The permission to set up commercial Unipoles, graphic displays, hoardings and advertisements in parks, round abouts, traffic islands, pavements on buildings etc. is certainly permitting commercial use of these areas.

In case the land or building is in a residential area or not permitted to be used for commercial purposes, then the same certainly cannot be utilized for display of advertisements.

99. On a query put to Ms. Madhu Tewatia, learned Counsel for the MCD, the court was informed that the MCD charges property tax at commercial rates for properties where advertisements and Unipoles are displayed.

100. In G.N. Khajuria and Ors. v. DDA and Ors., the court did not permit use of land earmarked as a park for the purposes of a nursery school even.

101. Parks, roundabouts, pavements, traffic islands, schools are not commercial areas or buildings and consequently, commercial use thereof may be prohibited even under the statutory master plan.

102. It is even more significant to notice that the Apex Court has passed directions in a case other than those cases wherein it was directly concerned with traffic and public safety in Delhi. In the public interest litigation wherein the court was considering commercial activities in residential areas in Delhi, the Apex Court passed a detailed judgment on 29th September, 2006 in W.P (C) No. 4677/1985 entitled M.C. Mehta v. Union of India. The observations of the Apex Court in this judgment deserves to be considered in extenso and reads thus:

The city of Delhi is an example of a classical case, which, for the last number of years, has been a witness of flagrant violations of municipal laws, town planning laws and norms, master plan and environmental laws. It is borne out from various orders and judgments passed by this Court and Delhi High Court, whether in a case of shifting of hazardous and polluting industries or providing cleaner fuel (CNG) or encroachment of public land and streets or massive unauthorised construction and misuse of properties. It is a common knowledge that these illegal activities are also one of the main sources of corruption.

103. In this case, the court was concerned with the power of the Municipal Corporation of Delhi to seal premises being used illegally for commercial purposes in residential areas. A notification dated 7th September, 2006 Page 2952 had been issued by the Government permitting commercial user in residential premises which was being considered by the court. The traders had sought stay of the sealing action of the premises being used for commercial purposes as directed by the court. While considering such premises for which protection was not extended by the notification dated 7th September, 2006, the directions made by the court with regard to misuse of public land or public street are pertinent and clearly apply to the present case. In this behalf, the court had directed thus:

There shall be no misuse of public land or public street. The authorities shall ensure that the Roads, Public Streets and pathways meant for public is kept free for their use and the commercial activity is not extended thereupon. The commercial user in contravention of judgment in M.C. Mehta's case (supra), order dated 10th August, 2006 and Notifications dated 7th September, 2006 and 15th September, 2006 subject to what is stated in this order shall be liable to be sealed.

104. It is therefore apparent that the Municipal Corporation of Delhi can permit commercial activity only in commercial areas. The land and the other areas meant for other purposes cannot be put to commercial use. It certainly cannot be contended by the Municipal Corporation of Delhi that permitting the advertiser to carry out their commercial activity of displaying hoarding or advertisements on round abouts, pavements, parks, on top of the buildings etc. would not amount to permitting commercial activities where it would be prohibited under the statutory Master Plan for Delhi and also by the clear dicta of the Apex Court in the afore-noticed judgment dated 29th September, 2006.

105. Apart from the above one other glaring instance of lack of concern for the law and social justice on the part of defendant no. 2 is evidenced. Pursuant to a proclamation on full participation and equality of the people with disabilities in the Asia and Pacific region held in Beijing on 1st to 5th December, 1992, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 was enacted and brought into force with effect from 7th February, 1996. Sections 45 and 46 of this statute mandate upon the appropriate Governments and the local authorities to provide certain facilities and a barrier-free environment for persons with disabilities. These statutory provisions deserve to be considered in extenso and read thus:

45. Non-discrimination on the road- The appropriate Governments and the local authorities shall, within the limits of their economic capacity and development, provide for -

(a) installation of auditory signals at red lights in the public roads for the benefit of persons with visual handicap;

(b) causing curb cuts and slopes to be made in pavements for the easy access of wheel chair users;

(c) engraving on the surface of the zebra crossing for the blind or for persons with low vision;

(d) engraving on the edges of railway platforms for the blind or for persons with low vision;

Page 2953

(e) devising appropriate symbols of disability;

(f) warning signals at appropriate places.

Therefore, installation of Unipoles on pavements would be in the teeth of the mandate of Section 45 of this statute as well.

106. It is noteworthy that Section 2(57) of the Delhi Municipal Corporation Act, 1957 defines a 'street' which would include a footway.

107. Section 317 of the DMC Act clearly prohibits any kind of projection upon any street which includes a passage over which the public have a right of way and also the roadway or footway over any bridge or cause way. The projections which are prohibited under Section 317 include anything which may overhang, jut or project into, or in any way encroach upon and obstruct in any way the safe or convenient passage of the public along any street. The Unipoles extending upon any street would thus be violative of Section 317 of the Delhi Municipal Corporation Act, 1957. It could be urged that the contract between the MCD and the advertisers amounts to the requisite permission under Section 142 of the Delhi Municipal Act.

108. However, the object of the agreement in question is thus specifically forbidden by the clear and unambiguous directions of the Apex Court and also violative of the specific statutory provisions. Consequently, it has to be held that the agreement between the plaintiff and defendant no. 2 was an agreement of which the object was unlawful and is consequently void. There is also admitted non-compliance of the provisions of the Delhi Police Act and the regulations framed there under.

Agreement opposed to public policy

109. In the instant case, in my view, the submissions of plaintiff and the defendant no. 1 would fail for yet another reason. It has been urged that the agreement is also void under Section 23 of the Contract Act for the reason that it is opposed to public policy. The aforenoticed principles and directions relating to Delhi were laid down by the Apex Court purely in larger public interest.

110. The spirit, intendment, scope and meaning of the expression 'public policy' though not statutorily defined, has been explained in binding judicial pronouncements.

111. In a landmark judgment reported at Murlidhar Agarwal and Anr. v. State of U.P. and Ors., the Apex Court was concerned with the question as to whether Section 3 of the UP (Temporary) Control of Rent and Eviction Act, 1947 was enacted only for the benefit of tenants or whether there was a public policy underlying which precluded the tenants from waiving its benefit. Noticing the distinction between 'public policy' and 'policy of law', the Supreme Court observed thus:

28. The expression 'public policy' has an entirely different meaning from 'policy of the law' and one much more extensive. Nevertheless, the term 'public policy' is used by the House of Lords itself apparently as synonymous with the policy of the law or the policy of a statute Page 2954 (see Hollinshead v. Hazleton 1916 AC 428). Yet it is clearly so used without intent to repudiate or disregard the distinction so clearly drawn in Egerton v. Brownlow (1853) 4 HLC 1 at p. 105. It seems clear that the conception of public policy is not only now quite distinct from that of the policy of law but has in fact always been so except in some exceptional instances of confusion which have had no substantial effect on the general course of authority. See W.S.M. Knight, 'Public Policy in English Law', 38, Law Quarterly Rev., 207, at pp. 217-218.

29. The Courts have often repeated Mr. Justice Burrough's metaphor about public policy being an unruly horse. Some Judges appear to have thought it more like a tiger and have refused to mount it at all, perhaps because they feared the fate of the young lady of Riga. Others have regarded it like Balsam's ass which would carry its rider nowhere. But none, at any rate at the present day, has looked upon it as a Pegasus that might soar beyond the momentary needs of the community. There is nothing remarkable in this because the topic itself is so elusive. See Percy H. Winfield, 'Public Policy in English Common Law,' 42, Harvard Law Rev. 76.

The court considered the classic text by Winfield and laid down the parameters within which the courts would weigh the interests of the community.

30. 'Public Policy' has been defined by Winfield as 'a principle of judicial legislation or interpretation founded on the current needs of the community'. (See Percy H. Winfield, 'Public Policy in English Common Law', 42 Harvard Law Rev. 76). Now, this would show that the interests of the whole public must be taken into account; but it leads in practice to the paradox that in many cases what seems to be in contemplation is the interest of one section only of the public, and a small section at that. The explanation of the paradox is that the courts must certainly weigh the interests of the whole community as well as the interests of a considerable section of it, such as tenants, for instance, as a class as in this case. If the decision is in their favor, it means no more than that there is nothing in their conduct which is prejudicial to the nation as a whole. Nor is the benefit of the whole community always a more tacit consideration. The courts may have to strike a balance in express terms between community interests and sectional interests. So, here we are concerned with the general freedom of contract which everyone possesses as against the principle that this freedom shall not be used to subject a class, to the harassment of suits without valid or reasonable grounds. Though there is considerable support in judicial dicta for the view that courts cannot create new heads of public policy, see Gherulal Paraka v. Mahadeodas Maiya , there is also no lack of judicial authority for the view that the categories of heads of public policy are not closed and that there remains a broad field within which courts can apply a variable Page 2955 notion of policy as a principle of judicial legislation or interpretation founded on the current needs of the community. See Dennis Lloyd, 'Public Policy', (1953), pp. 112-113.

31. Public policy does not remain static in any given community. It may vary from generation to generation and even in the same generation. Public policy would be almost useless if it were to remain in fixed moulds for all time.

112. The Apex Court also made extremely valuable observations as to the manner in which the welfare of the community has to be perceived by the court in para 32 of the judgment which reads thus:

32. If it is variable, it it depends on the welfare of the community at any given time, how are the courts to ascertain it' The judges are more to be trusted as interpreters of the law than as expounders of public policy. However, there is no alternative under our system but to vest this power with judges. The difficulty of discovering what public policy is at any given moment certainly does not absolve the judges from the duty of doing so. In conducting an enquiry, as already stated, judges are not hide-bound by precedent. The judges must look beyond the narrow field of past precedents, though this still leaves open the question, in which direction he must cast his gaze. The judges are to base their decision on the opinions of men of the world, as distinguished from opinions based on legal learning. In other words, the judges will have to look beyond the jurisprudence and that in so doing, they must consult not their own personal standards or predilections but those of the dominant opinion at a given moment, or what has been termed customary morality. The judges must consider the social consequences of the rule propounded, especially in the light of the factual evidence available as to its probable results. Of course, it is not to be expected that men of the world are to be subpoenaed as expert witnesses in the trial of every action raising a question of public policy. It is not open to the judges to make a sort of referendum or hear evidence or conduct an inquiry as to the prevailing moral concept. Such an extended extra judicial enquiry is wholly outside the tradition of courts where the tendency is to 'trust the judge to be a typical representative of his day and generation'. Our law relies, on the implied insight of the judge on such matters. It is the judges themselves, assisted by the bar, who here represent the highest common factor of public sentiment and intelligence. See Percy H. Winfield, 'Public Policy in English Common Law', 42 Harvard Law Rev. 76; and also, Dennis Lloyd, 'Public Policy' (1953), pp. 124-125. No doubt, there is no assurance that judges will interpret the mores of their day more wisely and truly than other men. But this is beside the point. The point is rather that this power must be lodged somewhere and under our Constitution and laws, it has been lodged in the judges and if they have to fulfilll their function as judges, it could hardly be lodged elsewhere. See Cardozo, 'The Nature of Judicial Process', pp. 135-136.

Page 2956

113. I find that the principles laid down by the Apex Court in State of Rajasthan and Ors. v. Basant Nahata are not only topical but extremely instructive on the considerations which would require to be borne in mind while examining the issues in the present case and arriving at a just conclusion on this issue. The Apex Court held thus:

PUBLIC POLICY:

13. The words 'Public policy' or 'opposed to public policy', inter alia, find reference in Section 23 of the Indian Contract Act, Section 7(1)(b)(ii) of Foreign Awards (Recognition and Enforcement) Act 1961, Section 3(1) of U.P. (Temporary Control of Rent and Evictions) Act, 1947 and Section 34 of Arbitration and Conciliation Act, 1996.

By reason of the said provisions the judiciary has been conferred with power to determine as to the factors of public policy which may form the basis for interference with a contract or award.

It may not be necessary for us to deal with extensively the case laws dealing with the relevant provisions of the said statutes but it would not, in our opinion, be correct to contend that public policy is capable of being given a precise definition. What is 'opposed to public policy' would be a matter depending upon the nature of the transaction. The pleadings of the parties and the materials brought on record would be relevant so as to enable the court to judge the concept as to what is for public good or in the public interest or what would be injurious or harmful to the public good or the public interest at the relevant point of time as contra-distinguished from the policy of a particular government. A law dealing with the rights of a citizen is required to be clear and unambiguous. Doctrine of public policy is contained in a branch of common law, it is governed by precedents.

The principles have been crystallized under different heads and though it may be possible for the courts to expound and apply them to different situations but it is trite that the said doctrine should not be taken recourse to in 'clear and incontestable cases of harm to the public though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world'. [See Gherulal Parakh v. Mahadeodas Maiya and Ors.

In Zoroastrian Cooperative Housing Society Ltd. and Anr. v. District Registrar, Cooperative societies (Urban) and Ors. , however, this Court observed:

In the context of Section 23 of the Contract Act something more than a possible or plausible argument based on the constitutional scheme is necessary to nullify an agreement voluntarily entered into by a person.'` It was further observed:

Normally, as stated by this Court in Gherulal Parakh v. Mahadeodas Maiya, the doctrine of public policy is governed by Page 2957 precedents, its principles have been crystalised under the different heads and though it was permissible to expound and apply them to different situations it could be applied only to clear and undeniable cases of harm to the public. Although, theoretically it was permissible to evolve a new head of public policy in exceptional circumstances, such a course would be inadvisable in the interest of stability of society.

14. A contract being ``opposed to public policy'` is a defense under Section 23 of the Indian contract Act and the courts while deciding the validity of a contract has to consider:

a) Pleadings in terms of Order VI Rule of the Code of Civil Procedure

b) Statute governing the case

c) Provisions of Part III and IV of the Constitution of India

d) Expert evidence, if any.

e) The materials brought on record of the case.

f) Other relevant factors, if any.

A party in a suit against whom illegality is pleaded also gets an opportunity to defend himself. Hence this essential function to decide on what is public policy can not be delegated to executive through a subordinate legislation. The legislature of a State, however, may lay down as to which acts would be immoral being injurious to the society. Such a legislation being substantive in nature must receive the legislative sanction specifically and not through a subordinate legislation or executive instructions. The phraseology 'opposed to public policy' may embrace within its fold such acts which are likely to deprave, corrupt or injurious to the public morality and, thus, essentially should be a matter of legislative policy. The said phraseology came up for consideration before this Court in Central Inland Water Transport Corporation Limited and Anr. v. Brojo Nath Ganguly and Anr. etc. where a note of caution has been sounded that it being a 'very unruly horse', once when gets astride one does not know how far it would carry him. The question as to whether the statement as regard the validity of a contract on the ground that it is opposed to public policy must normally be viewed within the parameters fixed therefore by longstanding authorities or precedents but in deciding a case it may not be covered by such authorities and lacking precedents, the preamble of the Constitution or the principles underlying the fundamental rights and the Directive Principles in our Constitution can be taken recourse to.

xxxxx It was further observed:

All courts have at one time or the other felt the need to bridge the gap between what is and what is intended to be. The courts cannot in such circumstances shirk from their duly and refuse to fill the gap. In performing this duty they do not foist upon the society their value judgments. They respect and accept the prevailing values, and do what is expected of them. The courts will, on the Page 2958 other hand, fail in their duty if they do not rise to the occasion but approve helplessly of an interpretation of a statute or a document or of an action of an individual which is certain to subvert the societal goals and endanger the public good.

In Chitty on Contracts, 28th edition at page 838, it is stated:

Objects which on grounds of public policy invalidate contracts may, for convenience, be generally classified into five groups: first objects which are illegal by common law or by legislation: secondly, objects injurious to good government either in the field of domestic or foreign affairs: thirdly, objects which interfere with the proper working of the machinery of justice; fourthly, objects, injurious to marriage and morality; and fifthly, objects economically against the public interest. This classification is adopted primarily for case of exposition. Certain cases do not fit clearly into any of these five categories.

The learned author observed that doctrine of public policy is somewhat open- textured and flexible which has been the cause of judicial censure of the doctrine and has been seen by the courts as being vague and unsatisfactory, a treacherous ground for legal decision, a very unstable and dangerous foundation on which to build until made safe by decision as also being not immutable, stating that the commercial practice which was once permissible may be found to be mischievous and vice-versa.

In Cheshire, Fitbut and Furmston in their Law of Contract Fourteenth Edition at page 407 states:

Assuming, then, that contracts vitiated by some improper element must be divided into two classes, how are the more serious examples of 'illegality' at common law to be distinguished from the less serious 'Which of the contracts that have been frowned upon by the courts are so patently reprehensible - so obviously contrary to public policy - that they must be peremptorily styled illegal' Judicial authority is lacking, but it is submitted that the epithet 'illegal' may aptly and correctly be applied to the following six types of contract:

 xxxx           xxxx              xxxx
 

A contract to the prejudice of the public safety.
 xxxx            xxxx             xxxx

Prof. Winfield in his article ``Public Policy in the English Common Law'` reported in 42 Harvard Law Review 76 stated:

First among these is the principle that it cannot conflict with existing Parliamentary legislation. It may be useful in resolving a doubtful point in the interpretation of an enactment. But there cannot be public policy leading to one conclusion when there is a statute directing a precisely opposite conclusion. Moreover, where a rule of the common law is itself clear, arguments based upon public policy are beside the mark, however useful and admissible Page 2959 they may be where a new or doubtful question arises. There has been a noticeable tendency to regard public policy as a last resort for moulding the law.

15. Despite the words of caution that the court's duty is to expound the law and not expand, new heads of illegality of contract being opposed to public policy have been found out and in any event there exists such a possibility. [See Nagle v. Feilden (1966) 2 QB 633 and Newcastle Diocese (Church Property Trustees v. Ebbeck (1960) 34 ALJR 413]....

114. Placing reliance on Maxwell in 'Interpretation of Statutes', the Apex Court further expanded the meaning given to public policy in yet another pronouncement. In India Financial Association Seventh Day Adventists v. M.A. Unneerikutty and Anr. , the court stated thus:

13. The term 'public policy has an entirely different and more extensive meaning from the policy of the law. Winfield defined it as a principle of judicial legislation or interpretation founded on the current needs of the community. It does not remain static in any given community and varies from generation to generation. Judges, as trusted interpreters of the law, have to interpret it. While doing so precedents will also guide them to a substantial extent.

14. The following passage from Maxwell ``Interpretation of Statutes'` ,may also he quoted to advantage here:

Every one has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or pubic policy. Where there is no express prohibition against contracting out of it, it is necessary to consider whether the Act is one which is intended to deal with private rights only or whether it is an Act which is intended as a matter of public policy....

15. The doctrine of public policy may be summarized thus: Public policy or the policy of the law is an illusive concept: it has been described as ``untrustworthy guide'`. ``variable quality'`. ``uncertain one'`, ``unruly house'`, etc., the primary duty of a Court of a law is to enforce a promise which the parties have made and to uphold the sanctity of contract which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on what is called the public policy, but the doctrine is extended not only to harmful cases but also to harmful tendencies. This Page 3304 doctrine of public policy is only a branch of common law, and just like any other branch of common law it is governed by precedents. The principles have been crystallised under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public.

Page 2960

115. So far as the effect of an agreement which has been held to be offending the law or public policy or forbidden by law is concerned, I find the observations of the Full Bench of the High Court of Judicature at Allahabad useful. In its pronouncement Nutan Kumar v. IInd Additional District Judge, Banda reported at , the majority view laid down the principles thus:

22. An agreement offending a Statute or public policy or forbidden by law is not merely void but it is invalid from nativity. It cannot become valid even if the parties thereto agree to it.

23. The concept that an agreement may be void in relation to a specified person and may be valid or voidable between the parties thereto is not applicable to an agreement the very formation whereof law interdicts; or which is of such a character that, if permitted, it would frustrate the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral or opposed to public policy. Neither party can enforce said agreement. No legal relations come into being from an agreement offending a Stature or public policy.

116. As per Section 2(g) and Section 10 of the Indian Contract Act, every agreement of which the object or consideration is unlawful is void. An agreement which is void is not enforceable by law.

117. The Apex Court has repeatedly emphasised that the health of the people is a right provided and protected by Article 21 of the Constitution of India. The Courts have also held that directions which are required to be passed for protection of such rights of the citizens of the country would override the provisions of the Motor Vehicles Act or any other Act. The Division Bench pronouncement of the Bombay High Court reported in 2003 (1) Maharashtra Law Journal 120 Smoke Effected Residents' Forum v. Municipal Corporation of Greater Mumbai authoritatively states so.

118. In reiteration of this view, the Apex Court on the 5th of April, 2002 reported at M.C. Mehta v. Union of India, in para 1 of its directions held that Articles 39(e), 47 and 48(A) of the Constitution of India, by themselves and collectively, cast a duty on the State to secure the health of the people, improve public health and protect and improve the environment.

119. Therefore, concerns of the life of the citizens and protection of their person and all aspects of their environment is an inherent constituent of public policy and a natural concomitant of state authority. As such, these concerns are an integral part of public policy.

120. Degeneration of the environment in the capital of Delhi and impact of congestion on the health of the citizen, protection of their lives from all sources of threat are thus prime concerns constitutionally mandated and Page 2961 an integral part of public policy decisions. Undoubtedly moulded by current needs of society, they are required to be shaped by public interest. Normally tested and subjected to judicial scrutiny in writ jurisdiction, this Court has been called upon to examine the legality and validity of the decision of a statutory corporation and the contract awarded pursuant thereto at the instance of another governmental authority.

121. Be that as it may from the catena of judicial pronouncements noticed above the issue raised before this Court not only permits but mandates an examination as to whether the decision and the contract subverts societal goals and endangers public good from any angle. It would not be unrealistic to state that, but for court interventions, this city would have completely lost any indentity towards heritage or pride in its natural wealth. A comparison of the words of Robert Byron in the 1930s with the State of Delhi as reflected in the repeated observations of the Apex Court only underlines the imperative concerns of what ought to be public policy regarding Delhi.

122. The Supreme Court has repeatedly had occasion to observe the damage which has been caused to the health of the city of Delhi and its environment for almost three decades. In its pronouncement M.C. Mehta v. Union of India reported at , while directing the closure of stone crushers in the city of Delhi as back as on 15th of May, 1992, the Apex Court had observed thus:

2. We are conscious that environmental changes are the inevitable consequence of industrial development in our country, but at the same time the quality of environment cannot be permitted to be damaged by polluting the air, water and land to such an extent that it becomes a health hazard for the residents of the area. We are constrained to record that Delhi Development Authority, Municipal Corporation of Delhi, Central Pollution Control Board and Delhi Pollution Control Committee have been wholly remiss in the performance of their statutory duties and have failed to protect the environments and control air pollution in the Union territory of Delhi. Utter disregard to environment has placed Delhi in an unenviable position of being the world's third grubbiest, most polluted and unhealthy city as per a study conducted by the World Health Organisation. Needless to say that every citizen has a right to fresh air and to live in pollution-free environments.

123. In this very case, about three years later on the 24th of March, 1995, the court observed as under:

9. ...A very grim picture emerges regarding increase of pollution in the city of Delhi from the two affidavits filed by Shri D.S. Negi, Secretary (Environment), Government of Delhi. He has pointed out that the population of Delhi which was about 17 lakhs in 1951 has gone up to more than 94 lakhs as per the 1991 census. In fact, more Page 2962 than 4 lakh people are being added to the population of Delhi every year out of which about 3 lakhs are migrants. Delhi has been categorised as the fourth most polluted city in the world with respect to concentration of Suspended Particular Metal (SPM) in the ambient atmosphere as per World Health Organisation Report, 1989. From NEERI's annual report 1991 it is obvious that the major contributions, so far as air pollution is concerned, is of the vehicular traffic but the industries in the city are also contributing about 30% of the air pollution. So far as the discharge of effluent in Yamuna is concerned, the industries are the prime contributors apart from the MCD and NDMC which are also discharging sewage directly into the River Yamuna. We are dealing with the sewage problems in separate proceedings.

124. In a later pronouncement, the Apex Court again commented on the extent of pollution, intense contamination of the water quality in Delhi which is neither fit for drinking nor bathing. On 29th November, 1995, in the case Jai Narain and Ors. v. Union of India and Ors. reported at , the court observed thus:

11. Delhi 'the capital of India' one of the world's great and historic cities has come to be listed as third/fourth most polluted and grubbiest city in the world. Apart from air pollution, the waters of River Yamuna are wholly contaminated. It is a paradox that the Delhites 'despite River Yamuna being the primary source of water supply' are discharging almost totality of untreated sewage into the river. There are eighteen drains including Najafgarh drain which carry industrial and domestic waste including sewage to river Yamuna. Thirty-eight smaller drains fall into Najafgarh drain. The Najafgarh drain basin is the biggest polluter of River Yamuna. Eight of the drains including Najafgarh drain are untrapped, four fully trapped and remaining six are partially trapped. All these eighteen drains, by and large, carry untreated industrial and domestic wastes and fall into River Yamuna. The River Yamuna enters Delhi at Wazirabad in the North and leaves at the South after traveling a distance of about twenty-five kilometres. The water of River Yamuna till it enters Najafgarh is fit for drinking after treatment, but the confluence of Najafgarh drain and seventeen other drains makes the water heavily polluted. The water quality of Yamuna, in Delhi stretch, is neither fit for drinking nor for bathing. The BioChemical Oxygen Demand (BOD) level in the river has gone so high that no flora or fauna can survive. It is of utmost importance and urgency to complete the construction of the STPs in the city of Delhi. The project is of great importance. It is indeed of national importance. We take judicial notice of the fact that there was utmost urgency to acquire the land in dispute and as such the emergency provisions of the Act were rightly invoked. We reject the first contention raised by the learned Counsel.

Page 2963

125. It is noteworthy that it is on account of the concern of the Apex Court with the status of the environment and the river in Delhi that imperative directions have been issued to construct sewage treatment plants to prevent untreated industrial waste from being released into the river Yamuna. There are several other matters where the Apex Court is still concerned with the river Yamuna which is considered as a lifeline for Delhites.

126. Let us further see what we have done to this historic city. Nothing can be expressed better than the observations of the Apex Court in some of the judicial pronouncements. In a Writ Petition (C) No. 286/1994 Dr. B.L. Wadhera v. Union of India and Ors., the court was concerned the failure of the MCD and NDMC about the statutory duties in relation to the collection, removal and disposal of garbage and other waste. The final pronouncement of the court has been reported in AIR 1996 SC 2969 Dr. B.L. Wadehra v. UOI and Ors. The opening words of the Apex Court noticing the rights of the citizens of the city and the failure of the authorities to discharge their statutory duties and public law obligations are require to be considered in extenso and read thus:

1. Historic city of Delhi - the Capital of India - is one of the most polluted cities in the world. The authorities, responsible for pollution control and environment protection have not been able to provide clean and healthy environment to the residents of Delhi. The ambient air is so much polluted that it is difficult to breathe. More and more Delhi-ites are suffering from respiratory-dis-eases and throat-infections. River Yamuna - the main source of drinking-water supply - is the free dumpting-place for untreated sewage and industrial waste. Apart from Air and Water pollution, the city is virtually an open dust-bin. Garbage strewn all over Delhi is a common sight. The Municipal corporation of Delhi (the MCD) constituted under the Delhi Municipal Corporation Act, 1957 (Delhi Act) and the New Delhi Municipal Corporation Act, 1994 (New Delhi Act) are wholly remiss in the discharge of their duties under law. It is no doubt correct that rapid industrial development, urbanisation and regular flow of persons from rural to urban areas have made major contribution towards environmental degradation but at the same time the Authorities - entrusted with the work of pollution control - cannot be permitted to sit back with folded hands on the pretext that they have no financial or other means to control pollution and protect the environment. Apart from Article 21 of the Constitution of India, which guarantees right to life, Articles 48A and 51A (g) of the Constitution are as under:

48A. Protection and improvement of environment and safeguarding of forests and wild life. The State shall endeavor to protect and improve the environment and to safeguard the forests and wild life of the country.

51 A(g) - to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures.

Page 2964

127. This consideration would be incomplete without referring to two more instances of the valuable and irreplaceable role of court intervention and judicial scrutiny. The Delhi Plastic Bag (Manufacture, Sales and Usages) and Non-Biodegradable Garbage (Central ) Act, 2000 took effect on 2nd of October, 2001. No action thereon was taken by the authorities till directions by the Division Bench in May 2004 in W.P.(C) No. 6160/2003, a writ petition before this Court. The court noticed the penal statutory provisions which would bind all authorities in Delhi. It is only as a consequence that the green and blue garbage bins were installed.

Similarly, addressing imperative concerns on recharge of ground water, this Court has passed several directions on rain-water harvesting as well as on protection and maintenance of water bodies. All these orders have manifested the concern of the courts with the constitutional and statutory rights of the citizens relating to environmental and ecological issues and discharge of statutory duties and public law obligations by the state machinery.

128. Fatal road accidents have resulted in increasing loss of life and it is only again on account of directions of the Apex Court or this Court that some semblance is being attempted to be brought to the vehicles or traffic in Delhi. Stringent traffic regulations are unable to enforce any discipline in the road users. Traffic licenses find their way into the hands of those who are ineligible or incompetent or both.

129. It now becomes necessary to consider as to whether the issues in the present case would be covered under concerns of 'public policy'. Undoubtedly, the Apex Court was concerned with the issue of fatal accidents and contributory causes when it passed the judgments and direction on 20th November, 1997, 10th December, 1997 and 30th January, 2001. The directions made on 29th September, 2006 stem from an abiding concern of court with regard to illegal construction and misuser. Decongestion of the city, impact of congestion on health and life of the citizen, pressure on over burdened services and facilities which is clearly founded on needs of that community, intended to achieve societal goals and prevent such actions which endanger public good, are all concerns which form an essential part of public policy.

130. An integral and essential question which arises for adjudication on which neither the petitioner nor the MCD could throw any light is as to the meaning of the expression 'hoarding or advertisement'. The MCD attempted to get away by saying that after 1997 (i.e. after the pronouncements of the Apex Court), the MCD does not use the word advertisement for hoarding, but is now using glamourised expressions as 'out-of-home advertisements, advertisement adjuncts, Unipoles and graphic displays'.

The question remains is as to what is a hoarding/advertisement/graphic display/unipole statutorily not defined, some dictionaries have defined these expressions thus:

a. Hoarding has been defined by the The American Heritage Dictionary of the English Language, Fourth Edition as 'A temporary wooden fence around a building or structure under construction or repair; Chiefly British A billboard.' Further it has been defined by the Cambridge Page 2965 International Dictionary of English as a very large board on which advertisements are shown esp. at the side of a road b. Adjunct has been defined by the The American Heritage Dictionary of the English Language, Fourth Edition as Something attached to another in a dependent or subordinate position. See Synonyms at appendage....

It has been defined in Cambridge International Dictionary of English As something added or connected to a larger or more important thing c. Advertisement has been defined in The Concise Oxford Dictionary as a public notice or announcement esp one advertising goods or services in newspapers,or posters or in broadcasts;...the act or process of advertising....

d) Webster's Dictionary of the English Language defines it as...public notice or announcement, usually offering goods or services for sale....

'Unipoles' or 'graphic display' are not defined in any of these dictionaries. Admittedly they are not statutorily defined.

131. However, the essence of such a display, whether called a hoarding or an advertisement or a graphic display or a unipole is something that it is meant to attract the attention of those who can view it and be so attractive or attention getting so as to certainly compel the viewer to continue to look at it so as to absorb or understand the contents of the display. Whether or not the same is absorbed, the spirit, purpose and intendment of such a display is certainly to ensure that the viewer is adequately attracted to the display to view/read its contents. For this purpose, the advertiser utilizes every medium possible so as to make the display either visually so eye-catching so that a viewer is compelled to look at it not once but repeatedly or to make it so interesting, whether by incorporating humour or by incorporating such content so as to call the attention of the viewer. The hoardings include pictures of actors, sports person or any other person who is enjoying not only a position of importance but social popularity or cartoon figures as well as the products of the advertiser.

Decision making process

132. Inasmuch as this Court has been called upon to consider an argument that the action of the plaintiff and the defendant no. 2 was opposed to public policy, it is necessary to also consider the decision making process in the instant case.

133. During the course of arguments, learned Counsel was unable to give clarifications on some of the issues raised by the MCD and the record relating to the issues was also not available so as to give the necessary clarifications. Accordingly, by an order passed on 20th April, 2007, Mr. Amiya Chandra, Additional Deputy Commissioner (Advertising), who had signed and verified the written statement filed by MCD was called upon to appear in the case. The court was also informed as he is the officer in the MCD concerned with the issues before the court. Consequently, by an order passed on 20th April, 2007, Mr. Amiya Chandra, Additional Deputy Commissioner (Advertising) was directed to appear in court so as to elucidate the matters in controversy in accordance with the provisions of the Order 10 of the CPC.

Page 2966

134. Mr. Amiya Chandra had appeared before this Court on 26th April, 2007 when his statement was recorded. The statement given by this knowledgeable officer of the MCD, who was at the helm of the decision making, throws valuable light on the questions raised and reads thus:

CS(OS) No. 2055/2066

Statement of Mr. Amiya Chandra, S/o Shri Chandrika Prasad, aged 43 years, R/o D- 2/298 Vinay Marg, Chanakya Puri, New Delhi On SA I have been appointed as an Additional Deputy Commissioner (Advertising Department), Municipal Corporation of Delhi since 1st August, 2005. I am conversant with the facts of the case. I have seen the original files which have been maintained by the MCD and have perused the nothings and decisions taken after the passing of the orders dated 20th November, 1997 and 10th December, 1997 by the Supreme Court of India.

The note referred to by the Commissioner, MCD in the noting dated 18th December, 1997 is available in the file. A copy of this noting is placed before this Court as Exhibit D-2/A. Pursuant to the orders passed by the Supreme Court and the decision taken by the Chief Commissioner, Delhi and the Commissioner, MCD, all hoardings in Delhi were removed.

The expression 'advertisement', 'hoardings' and 'Unipoles' are not defined under any statutory provisions. We stopped using word 'hoarding' after the year 1997.

The expressions used by MCD are out-of-home advertisement; advertisement adjuncts, Unipoles and graphic displays. The purpose of all these activities is commercial and is to display through graphics the products being sold by different persons in the city.

After the passing of the orders by the Supreme Court on 20th November, 1997 and 10th December, 1997, the only order which was passed by the Apex Court was dated 16th April, 2001 in P. Narayan Bhat v. State of Tamil Nadu. After the passing of this order, Mr. Rakesh Mehta, the then Commissioner of MCD appointed a committee known as Urban Graphics Forum on the 6th October, 2003. The purpose of the forum was to study the existing flows in the advertisement practices being adopted by the MCD; to intervene for identification of sites, modes of display, types of displays and adjunct advertisement graphics. It also had the mandate to study the proposals being submitted by advertisers for approval and to enlist the advertisers in the panels for allotment of advertisement as a business to them by the MCD. It has drawn as its members Professor I.M. Chisti, School of Planning and Architecture, Shir Anando Dutta, Graphic Designer, Shri Arun Rewal, Urban Designer, Shri D.V.K. Bugga, Chief Town Planner etc. I was the Member Secretary of this Forum since I took over Advertising Department. In 2005, the group was re-named as Urban Projects Development Group (UPDG).

A decision was taken by the Commissioner to constitute a sub-committee to look into the aspect of revenue augmentation known as 'Revenue Augmentation Committee' to consider proposals for 'graphic displays'. Page 2967 This committee consisted of the Additional Commissioner (Revenue) as Chairperson; Engineer-in- chief as Member; Chief Town Planner as Member; Additional Deputy Commissioner (Advertisement) as Member Secretary; Joint Director (CSE) as Member; and Chief Architect as Member. I was also a member of this committee.

This committee called all advertisers and the Deputy Commissioners of the various zones of the MCD in its deliberations to identify unipole sites and modes. Three parameters were examined for the purposes of taking a decision. The guidelines of the Apex Court were required to be strictly followed. The structural safety of the displays was to be considered as also the content of the display. This committee had received lists from the various advertisers and the Deputy Commissioners of the various zones and after scrutinising the same, 250 sites for Unipoles were identified by it. This list of 250 sites was placed before the standing committee which had approved the proposal of the Commissioner on the 29th March, 2006. It was subsequently approved by the Full House of the MCD as Resolution No. 15. The list of 250 sites includes graphic displays traffic islands, crossings, intersections, parks, round abouts. It is a fact that in 2005-2006 when decision was taken by the MCD, it did not have any report from the UGF, (renamed as UPDG in 2005) before it. I have had an occasion to visit some of the sites which were identified in the list. However, it is not possible to state as to what is the distance of the 250 unipole sites from the road/intersections/crossings or a traffic island. It is also not possible to identify the exact location of the graphic display or even to state as to whether the display would be located on the pavement. It is a fact that no member of the public or any other organisation including the traffic police was joined in the decision making in 2005-2006 by the MCD. As per the decision taken by the MCD, the MCD has permitted illuminated display of advertisements through Unipoles at these selected sites. The Revenue Augmentation Committee which was appointed in December, 2005 and the MCD have not undertaken any assessment of the electricity which would be consumed by an advertisement/graphic display/Unipoles. From the record which is available, no assessment has been undertaken also of the electricity which has been consumed in the past on kiosks or hoardings and the advertisements. It is a fact that there is a shortfall of the total electricity available for the citizens of Delhi.

The MCD does not permit any tree cutting for the purposes of installation of any graphic display/Unipoles. However, from the record of the MCD, I am unable to state as to whether installation of the Unipoles would impact trees or vegetation at the location of the unipole.

In case, a complaint is being received that a unipole is effecting the rights of the residents, the MCD is changing its site. The MCD has fixed the maximum height of unipole as being 7 feet from the surface of the ground.

From the record of the MCD, it is not possible to state as to what was revenue shortfall which had to be made good at the time of decision making in 2005-2006. The MCD has recovered the dues from most of the advertisers who were noticed as defaulters in Page 2968 the order of Lokayukta dated 25th September, 2001. Though the impact of the Unipoles on pedestrians had not been taken into consideration at the time of the recommendations of the Revenue Augmentation Committee and the decision taken in March, 2006, however, the MCD is endeavoring to ensure that no inconvenience is caused to the pedestrians. RO and AC

135. It is well settled that administrative decisions have to be based on material on record and on relevant considerations (Ref: Commissioner of Police, Bombay v. Gordhandas Bhanji; and Mohinder Singh Gill and Anr. v. The Chief Election Commissioner, New Delhi and Ors.). This would be even more imperative so far as policy matters are concerned. Concerns of the environment and health of citizens is receiving paramount consideration the world over. The same has been the focus of the attention of the Apex Court and the court which has resulted in far reaching decisions. Therefore, the deliberations and the considerations of the MCD when it took the decision to permit outdoor advertising assumes even more importance.

136. Perusal of the statement of Mr. Amiya Chandra reproduced hereinabove as well as various documents placed by MCD would reflect that MCD had no material before it for taking the decision. The claim of the MCD that the decision has been taken for purposes of revenue augmentation is based on no material at all. Merely repeating 'revenue augmentation' on the record without any statistics or imperical data would not lend weight or substance to the decision taken.

137. Assuming that MCD had material with regard to the need for revenue augmentation, even then the Apex Court has held that concerns of health, environment and community would over ride revenue issues.

138. In this behalf, in M.C. Mehta v. Union of India, the concern of the Apex Court in passing various orders since 1986 had been only one, namely, to protect the health of the people of Delhi. With this objective in mind, directions have been issued in an effort to persuade the governmental authorities to take such steps as would reduce the air pollution. Despite existence of norms of emission of fuel having existed for two decades, the state of the environment was dismal.

139. The court rejected the plea of the Government that the alternative fuel that is CNG (Compressed Natural Gas) was in short supply and that it was unable to supply adequate quantity to the transporters and held that this plea was a deliberate attempt to frustrate the orders passed by the Supreme Court. It had also been pleaded that the CNG was needed for industrial use including the power sector. In this behalf, in para 16 of the pronouncement, the court observed on the conflict of the interest between the interest of the industry vis-a-vis public health that, if there is a short Page 2969 supply of an essential commodity, then the priority must be of public health, as opposed to the health of the balance sheet of a public company. To enable industries to cut their losses or make more profits at the cost of public health is not a sign of good governance, and this is contrary to the constitutional mandate of Articles 39(e), 47 and 48(A) of the Constitution of India.

140. The pleas taken by the MCD in the present case before this Court are similar to those which were then set up in this case before the Apex Court. Before this Court, the MCD has vehemently urged that the decision is in a public interest inasmuch as the same is necessary for revenue augmentation of the Corporation. In all these cases, the Apex Court has held that the interest of the environment and that of the public at large shall override all commercial interest. This is evidenced by some of the directions made by the Supreme Court till date which include inter alia, the following:

In M.C. Mehta v. Union of India , the Apex Court directed shifting/re-location of 168 industries identified as hazardous and industries operating in Delhi as well as the other towns of National Capital Region as per the master plan on 2001.

In M.C. Mehta v. Union of India, the Apex Court passed other directions for preventing air pollution in Delhi while re-affirming the need for a public transport system to run on CNG, freezing out of diesel buses in a time-bound manner was mandated.

In M.C. Mehta v. Union of India, the Apex Court took note of the environmental pollution due to stone-crushing activities in and around Delhi, Faridabad and Vallabgarh and directed for re-location of such units within six months.

141. Apart from these matters relating to Delhi, in Nihit Kumar Mathur v. Union of India, the court's intervention was sought to prevent pollution of River Gomati in U.P. due to discharge of influence from the distillery of Mohan Mackens Ltd. The court imposed a fine of Rs. 5 lakhs on the company and directed removal of deficiencies in the plant.

In Jagannath v. Union of India, the court held that the shrimp industry in was to be permitted only after passing a strict environmental test.

In Vellore Citizens Welfare Forum v. Union of India and Ors., the Court was required to deal with the problem of pollution being caused by the enormous discharge of untreated affluents by tanneries and other industries in the State of Tamil Nadu into rivers and directions were passed. Page 2970 In Indian Council for Enviro-Legal Action v. Union of India and Ors. , the Apex Court inter alia directed closure of plants and factories of Chemical industries located in Bichhari Village in Udaipur district of Rajasthan which were discharging highly toxic affluents from the sulphuric acid plant leading to soil and water pollution. Again, in M.C. Mehta v. Union of India, the court imposed a fine and directed relocation/shifting of tanneries in Calcutta, located at Tangra, Tizola, Topsia and Pagla Danga, the four adjoining areas in the eastern fringe of the city of Calcutta, causing water pollution by discharging highly toxic affluents all over the area.

142. Therefore, the concerns of life and limb of the citizen requiring all measures to reduce the possibility of accidents would override all concerns based on the balance sheet and revenue.

143. Certainly, there is no consideration about the issues which have been raised before the Apex Court so far as the city of Delhi, the environmental problems being faced by the citizens or the pressure on the existing infrastructure in Delhi is concerned. There is no consideration of the requirements under the Delhi Control of Erection or Exhibition of Advertising Devices Regulations, 1980. An insular decision taken without even inspecting the sites where the graphic displays are to be permitted. Certainly the same was taken without joining the traffic experts or environmentalists or educationists.

144. The PWD has placed a report reflecting the thousands of fatal accidents which occur on the roads of Delhi every year. In these circumstances, it certainly cannot be contended that any action which may have the impact of distracting a road user from the road is permissible merely because no figures of the contribution of such distraction to the number of accidents is available. Firstly, it would be extremely difficult to arrive at objective imperical data on this aspect. Secondly, admittedly no such study has been effected either in Delhi or any where in the world. Laboratory conditions may attempt to replicate the road conditions by simulation. But the same can bear no comparison to the real condition and distractions which exist on the roads or the reaction of persons of varying intelligence and sensitivities.

145. The directions of the Apex Court were made in the context of the rights of the citizens of Delhi under Article 21 of the Constitution of India. The orders were passed bearing in mind the paramount importance which requires to be given to the life of the citizens of Delhi. A propounded object of revenue augmentation of a statutory authority cannot be permitted to override the applicant's interest in securing safety of limb and life to the citizens of Delhi. The court passed its directions in larger public interest keeping in view the appalling state of traffic in this city. Despite the repeated directions, there is hardly any improvement. The PWD has placed figures Page 2971 of the large number of fatal accidents in Delhi. In the light of the principles laid down in Jai Narain's case (supra), certainly, judicial notice can also be taken of the position of the traffic evidenced by the chaos on streets and growing reports of fatal accidents occurring on the roads everyday. One has only to step out on the road to see the haphazard driving and the complete go by given to traffic regulations. The inability of the authorities to enforce basic and simple rules, which are also first principles of driving, as lane driving, pillion riding, user of helmets and seat belts, no horn stipulations, speed limits etc. show the scant respect of the citizenry for the law or the rights of the road users.

146. Permitting graphic displays/Unipoles, or by any other name, advertisements in such an environment has been held by the Apex Court to be hazardous to safe driving. Certainly, the same would amount to action which may impinge upon or have the effect of distracting a driver's attention from the road. The distraction may be in any manner or for any length of time and ought not to be countenanced. Traffic displays, Unipoles, advertisements or hoardings at round abouts at traffic intersections, at traffic islands or on pavements certainly are intended to attract the attention of the road users. There is not even a pretence of consideration of black spots and vision blocks which are bound to come into existence or of the impact of additional structures roundabout, traffic island, etc. in an already pressurised environment.

147. The pavement by its very definition is meant for the use of pedestrians. The pedestrian is as much a user of the road or the circulation system of the city as a bus, a truck or a luxurious car. Delhi traffic includes even bicycles and there is a growing clamour for making pathways and parking provisions for cyclists. Pedestrians include the healthy citizens and also the unhealthy. It includes physically handicapped people and may also include the visually impaired. This Court has put a question to Mr. Amiya Chandra, Additional Commissioner, Advertising when he had appeared before the court as to the plight of the handicapped pedestrian on the pavement which was dotted with Unipoles. The answer was that the MCD was making provision for pedestrians in wheel chairs to have sufficient passage. He however, could not answer as to what was the arrangement being made so that a visually impaired pedestrian knows that there was a UNIPOLE blocking his passage as he chose to pass on the pavement.

148. In the present case, this Court is concerned with Unipoles or hoardings. What is there to be said of a city where the pavements, crossings and corners are peppered with florists, shops, milk booths have turned into grocery stores, STD booths, pan and cigarette vendors etc. Each one of these has mushroomed into a drive in or drive up mini-super market by itself with indiscriminate parking by the customers on all busy roads. Whither go concerns of either the roads or the pavements; of either the drivers or the pedestrians. It certainly would be enlightening to know if the traffic police sanctioned these.

149. The 'Study of Road Accidents and Road Side Hoardings in Delhi Urban Area' while considering the relationship between accidents and advertisements, the report has based its observations on the experience of disciplined and developed economies, such as the United States of America Page 2972 and Australia. It has extensively dwelt on the review of road signs advertising science in New South Wales where population is scanty, people are temperamentally disciplined, follow traffic rules and regulations and law enforcement is extremely stringent. The study has relied on the studies conducted in Iowa, Okhlahama, North Carolina in the USA which certainly would have no bearing on the peculiarities of the traffic in India. These areas are scantily populated and people are intrinsically law abiding and disciplined. This study however notices that the Texas University, Austin Council for Advance Transportation Studies, Austin Texas, USA conducted a study in 1997. The results of this study indicated that large size commercial signs have some influence on the occurrence of road accidents at stop signs and priority intersections.

The report cited instances of 'Central Business Hubs' and the instances cited are those of Times Square in the USA; Piccadilly Circus in the United Kingdom and Ginza in Tokyo which are all prime business locations and the hoardings have been installed in such commercial hubs and not on roundabouts, road intersections, parks or along the road as in the instant case.

150. Significantly this report records that in 1998 all hoardings in Delhi had been removed. No date of the report is available. It also notes that its data is the collection of first information reports on road accidents recorded and maintained in the police stations. Certainly, the consultant would be handicapped because of lack of information relating to the impact of the hoardings on the road accidents and especially with regard to identification of black spots as location of the hoardings were not available when the report was formulated. The data which have been utilised relates to the period up to 1991 when the hoardings were not in the same numbers and appears to be a patchwork exercise to facilitate the recommendations and the observations advocated by advertisers.

In my view therefore, this study does not further the case of the plaintiff in any manner.

151. Since the plaintiff has placed reliance of a report referring to experiences in other countries, it would be interesting to notice three examples of traffic management and attempts by authorities to decongest the cities. In Beijing, to bring your own car into the city, a person needs an import license which can be obtained only from a car purchase office. Thus, even a Chinese cannot bring a car into Beijing without the import license. The Greater London (Central Zone) Congestion Charging Order 2004 lays down the scheme which requires drivers to pay '8 per day if they wish to continue driving in central London during the scheme's hours of operation. Research undertaken by Transport for London has shown that congestion charging will lead to reduced traffic levels which are equivalent to those currently enjoyed during the school holidays. The Singapore government implemented a number of measures within 1972 to 1992 for decongestion. These include private vehicle ownership restriction by high import duty, additional registration fee (ARF) and vehicle quota system, private vehicle use restriction in city centers by Area Licensing System (ALS), expansion of expressway systems and 67 km of rail based MRT. The Page 2973 efforts of controlling traffic congestion through travel demand management (TDM) was principally achieved through four major instruments, which limits the number of private cars as well their uses; (i) fiscal measures of car restraining (ii) Vehicle Quota System (VQS) (iii) Area Licensing System (ALS) which is recently upgraded to Electronic Road Pricing (ERP) system, and (iv) efficient and affordable public transportation system.

152. The element of national pride and community concerns override all individual interests in these communities. The citizen with alacrity contributes to state effort and makes his individual sacrifice in community interest. Before this Court there was no answer to the query from the court as to an instance of any other city where indiscriminately every corner, irrespective of its location, was lined with commercial hoardings; street, round abouts or intersections were lined with commercial hoardings; where all railway tracks were bounded by 'graphic displays' and where metro lines were used for commercial displays reducing the entire environment to ribbons of hoardings.

153. The unique aspect of the issues raised in the present case is the spirit, purpose and intendment of regulations as the traffic regulations. Just as the building bye-laws cast a restriction on the property owner from indiscriminately constructing and using his property, which restrictions are cast in public interest and require even a sacrifice by a property owner in public interest, similarly, prohibition such as those contained in the Motor Vehicles Act or under any traffic regulations are incorporated as preventive and regulatory mechanism.

Thus, you are required to drive at a speed limit of 55 km. per hour not because if you drive at 56 km per hour, there is bound to be an accident but because having considered all aspects scientifically, the experts have concluded that there is a greater likelihood of a driver not being able to control a car at a speed over 55 km. per hour and consequently, the limit which is provided is in public interest.

154. Certainly the propensity to overshoot the zebra crossing at a traffic signal because you were distracted in any manner is greater than if there was no such distraction. While you admire or are distracted by an attractive graphic display/advertisement, you may also overlook a pedestrian. Prohibitions as in traffic regulations and street management are not to be found from figures but are based on the expected conduct of the ordinary and reasonable man. Merely because no accident may occur because of speeding would not justify that the prohibition on the speed limit be removed. It is the propensity to distract which has to be avoided, apart from other considerations relating to pavement users, the health of the citizens which includes mental and psychological concerns, considerations of environment, constraints of space etc which have gone into the formulation and implementation of these provisions and policies.

155. So far as the instant case is concerned, the defendant no. 1 has submitted that the Unipoles and advertisements permitted by the MCD to the plaintiff had prohibited the defendant no. 1 from widening National Highway No. 24 and the U.P. Link Road which is imperatively required to be done. It is further urged that this is a major requirement even for the object Page 2974 of the country in getting congestion-free circulation in the city which is hosting the Common Wealth Games, an international sporting event scheduled to be held in Delhi in 2010.

The PWD has pointed out that no hoardings are allowed on PWD roads and that the MCD has no right to permit the same on land belonging to the PWD. In respect of National Highway No. 24, the right of way of the road is 90 metres and for UP Link Road, the right of way is 60 metres. These measurements are stated to be approved by the Master Plan of Delhi. According to the respondent No. 2, the MCD has illegally permitted installation of Unipoles within this right of way.

156. Mr. Sunil Bagai, learned Counsel for defendant no. 1 has vehemently urged that without their consent, the plaintiff and MCD cannot act on their agreement which is void.

157. There is not even a reference to any of the documents, policy or regulations afore-noticed in the decision making by the MCD. Despite availability of specific guidelines on the material aspects laid down by the Indian Roads Congress which require consideration, these have been completely ignored. Extraneous and irrelevant factors have been examined in order to make the recommendations.

158. The plaintiff has placed before this Court a copy of the order which was passed in CS(OS) No. 2244/2006 in a similar matter which was listed before this Court on 5th December, 2006. Prima facie on consideration of the issues raised, it was considered appropriate to refer the matter to the Chief Secretary. In that suit, different authorities including MCD, DMRC, PWD were concerned and this Court had directed as follows:

xxx Mr. Ajay Arora, learned Counsel representing Municipal Corporation of Delhi has submitted that the action of the Public Works Division is without jurisdiction inasmuch as the roads are owned by and vest only in the Municipal Corporation of Delhi and are handed over to the Public Works Division only for the purposes of maintenance.

This position is strongly controverter by Mr. V.K. Tandon, learned Counsel representing the PWD.

It is evident that on this conflicting stand by two public authorities, a situation has emerged whereby contractual rights of the plaintiffs have been created which may impair the larger interest of the public at large and road safety of which both the authorities ought to have been equally concerned. In the light of the decision taken by the Municipal Corporation of Delhi before this Court, it is in the interest of justice that the larger public issue be resolved by the authorities inasmuch as the same impacts public interest and the safety of users of the road as well as the interest of persons as the plaintiffs who have been persuaded to part with huge amounts of money to the authorities as part of the terms of the contract. It has also to be borne in mind that these persons are undertaking a function which was a public law obligation of the Municipal Corporation of Delhi and its statutory duty of collection and removal of Page 2975 garbage. Obviously some method would be required to be found in order to balance the two interests. However, there can be no doubt that the pronouncements of the Apex Court have to be strictly abided by and public safety deserves supremacy in consideration and cannot be compromised in any manner. While aesthetics need to be borne in mind as well, it is equally well settled that commercial interests of revenue alone cannot guide decision making. As mandated by the Supreme Court, safety is the primary consideration. Advertisements by their very nature are intended to attract attention and hence may take attention of drivers away from driving. It is pointed out that indiscriminate hoardings have been permitted in areas such as bus queue shelters and areas which have been allocated for cremation and have been earmarked as burials and other buildings.

Consideration in the present matter would require the defendants to place the correct position on these matters before this Court. In view of the stand taken by the two defendants who have appeared today and the issues raised, a direction is issued to the Chief Secretary of Government of NCT of Delhi to convene and chair a meeting in which the Commissioner, Municipal Corporation of Delhi; Vice Chairman, DDA; General Manager, Northern Railways; Chairman, DMRC; Chairperson NDMC; Secretary, Transport; Chairman, DTC and DCP, Traffic shall participate. The Chief Commissioner may join any other authority or person concerned in the deliberations. These authorities shall examine the matter and arrive at a decision with regard to their jurisdiction; the permissible sites where hoardings or advertisements would be permissible bearing in mind the principles of law laid down by the Apex Court; as well as size and other aspects of the hoardings. Such sites shall be identified by markings on appropriate maps so that there is no possibility of any ambiguity by any lower functionary. The exact sites and number of permissible hoardings shall be fixed so that no arbitrary discretion is left to any person. Needless to say, all authorities shall abide by the decisions which are taken in such meetings so far as permissions to install hoardings or to permit continuance of hoardings is concerned. The decision in this behalf shall be taken within a period of six weeks from today and placed before this Court on affidavit by the defendant No. 1.

xxx

159. The plaintiff places reliance on the minutes of the meeting held by the Chief Secretary on 3rd January, 2007 which have been placed before this Court wherein it was decided that advertising rights on all public streets vest in the MCD and are installed with the permission of the Commissioner, MCD. It was noticed further that as per the provisions of Sections 142 and 143 of the DMC Act, no advertisement can be displayed to public view in any manner whatsoever, without the approval of the Commissioner, MCD. These authorities have again failed to consider the specific orders of the Apex Court and this Court. Thus, according to the plaintiff and the defendant no. 2, MCD is the only authority who is required to approve the display of advertisements.

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160. I find that the prior decisions of the authorities in 1997, the statutory provisions as well as regulations framed there under were not considered by the participants in this meeting. Certainly all the pronouncements of the Apex Court especially of 2001 and 2006 and of this Court have admittedly not been considered by the authorities. While the MCD would have the right to collect tax on advertisements, certainly, the statutory power of the police under the Delhi Police Act and the Regulations framed there under cannot be taken away by any administrative act or even by executive order. It is for the authorities to consider and arrive at a mechanism where the statutory provisions can be implemented meaningfully and effectively. It cannot be ignored that the traffic police is the expert so far as traffic and safe driving is concerned. Similarly the MCD cannot claim to the expert over content of the hoardings, more so when it is recommending placing them at school sites, parks etc. Consequently, the decision placed before this Court in the minutes dated 3rd of January, 2007 is clearly in the teeth of the binding mandate of the directions of the Apex Court and of statutory provisions noticed hereinabove.

161. The plaintiff and the defendant no. 2 have deliberately suppressed material facts. The decisions taken are based on no material and are illegal also because they are without jurisdiction.

162. In this background, I have no hesitation in holding that in view of the principles laid down by the Apex Court, the agreement between the plaintiff and defendant no. 2 permitting the plaintiff to install Unipoles is opposed to public policy and is unlawful as well.

163. Ms. Shweta Bharti, learned Counsel for the plaintiff has made a vehement submission that in case this Court arrives at a conclusion that the contract in the instant case is barred by law or opposed to public policy, then the plaintiff would be entitled to restitution and consequently, the MCD would require to refund the amounts which have been received. There is no such claim in the plaint which has been filed by the plaintiff. It is well settled that relief at this stage cannot be beyond the prayer made by the plaintiff in the suit. Needless to say, as a consequence of the findings of this Court, it shall be open for the plaintiff to seek appropriate relief as it may be entitled to.

164. In view of the above discussion, the defendant no. 1 has pointed out that road widening is impacted by the unipoles. The contract of the plaintiff with the defendant no. 1 has been found to be contrary to law and opposed to public policy. There is thus no equity in favor of the plaintiff. In view of the principles laid down by the Apex Court and the orders of the Apex Court, grave and irreparable loss shall ensure to the public at large in case the relief is granted to the plaintiff. There is also no balance of convenience in favor of the plaintiff.

165. It is well settled that larger interest of the environment and of the public would override all individual concerns as has been repeatedly held by the Apex Court as noticed above.

For all the foregoing reasons, I.A. No. 553/2007 is allowed and the order dated 3rd November, 2006 is hereby vacated. I.A. No. 12168/2006 is hereby dismissed.

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