Karnataka High Court
M/S Lakshmi Enterprises vs State Of Karnataka on 5 September, 2023
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2023:KHC:32057
WP No. 17028 of 2013
C/W WP No. 17772 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO. 17028 OF 2013 (LB-BMP)
C/W
WRIT PETITION NO. 17772 OF 2013 (LB-BMP)
IN WP No.17028/2013
BETWEEN:
1. M/S LAKSHMI ENTERPRISES
BY ITS MANAGER,
NO.104, 10TH CROSS, 4TH MAIN,
MALLESHWARAM,
BANGALORE-560003.
2. M/S PRAKASH ARTS PVT. LTD.,
BY ITS SENIOR MANAGER,
NO.120/1, 2ND FLOOR, RAMSADAN COMPLEX,
INFANTRY ROAD,
BANGALORE-560001.
Digitally signed 3. M/S GURU ADVERTISEMENTS,
by BY ITS PARTNER,
NARAYANAPPA NO.123, 7TH CROSS,
LAKSHMAMMA
Location: HIGH
3RD MAIN, RAMAYYA LAYOUT,
COURT OF KACHARKANAHALLI,
KARNATAKA BANGALORE-560084.
4. M/S OUTDOOR EDGE SOLUTIONS PVT. LTD.,
BY ITS SENIOR MANAGER,
NO.311, 3RD FLOOR, BARTON CENTER,
MAGADI MAIN ROAD,
KAMAKSHIPALYA,
BANGALORE-560001.
5. M/S ASPIRE ADVERTISING
BY ITS PROPRIETOR,
NO.2, 8TH CROSS,
VRUSHABHAVATHINAGAR,
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WP No. 17028 of 2013
C/W WP No. 17772 of 2013
MAGADI MN RD, KAMAKSHIPALYA,
BANGALORE-560079.
6. M/S UNIQUE OUTDOOR ADVERTISERS
BY ITS MANAGER,
NO.A8, 80 FEET MN ROAD,
KHB COLONY, KORAMANGALA,
BANGALORE-560095.
7. M/S CYBER SIGNS
BY ITS MANAGER,
NO.A8, 80 FEET MN ROAD
KHB COLONY, KORAMANGALA
BANGALORE-560095.
8. M/S SPORTING AND OUTDOOR SOLUTIONS(PVT) LTD
BY ITS MANAGER,
NO.302, 3RD FLOOR, STERLING HEIGHTS,
139, INFANTRY RD, OPP THE HINDU,
BANGALORE-560001.
9. M/S CAUVERY ADVERTISING CORPORATION,
BY ITS DEVELOPMENT MANAGER,
NO.18, PRIMROSE ROAD,
RICHMOND TOWN,
BANGALORE-560001.
...PETITIONERS
(BY SMT. LAKSHMI HOLLA, ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY ITS PRINCIPAL SECRETARY
PANCHAYATH RAJ DEPARTMENT
VIKASA SOUDHA
DR. B. R. AMBEDKAR ROAD
BANGALORE-560001.
2. HUNASAMARANAHALLI GRAMA PANCHAYATH
REP BY PANCHAYATH DEVELOPMENT OFFICER
BANGALORE NORTH TALUK
BANGALORE URBAN DISTRICT-562157.
3. SONNAPPANAHALLI GRAMA PANCHAYATH
REP. BY PANCHAYATH DEVELOPMENT OFFICER
BANGALORE NORTH TALUK
BANGALORE URBAN DISTRICT-562157
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WP No. 17028 of 2013
C/W WP No. 17772 of 2013
4. CHIKKAJAL GRAMA PANCHAYATH
REP. BY PANCHAYATH DEVELOPMENT OFFICER
BANGALORE NORTH TALUK,
BANGALORE URBAN DISTRICT-562157
5. DODDAJAL GRAMA PANCHAYATH
REP. BY PANCHAYATH DEVELOPMENT OFFICER
BANGALORE NORTH TALUK
BANGALORE URBAN DISTRICT-562157.
6. CANNAMANGALA GRAMA PANCHAYATH
BANGALORE NORTH TALUK
BANGALORE RURAL DISTRICT-562110.
7. ANNESHWARA GRAMA PANCHAYATH
REP. BY PANCHAYATH DEVELOPMENT OFFICER
DEVANAHALLI TALUK
BANGALORE RURAL DISTRICT-562110.
8. NATIONAL HIGHWAY AUTHORITY OF INDIA,
REP. BY PROJECT DIRECTOR,
PROJECT IMPLEMENTATION UNIT,
BANGALORE,
SY. NO.13, 14 KM, NAGASANDRA,
BANGALORE-TUMKUR ROAD, (NH-4)
BANGALORE-560073.
...RESPONDENTS
(BY SRI PRADEEP C.S., AAG, A/W
SMT. SARITA KULKARNI, HCGP FOR R1;
SRI M. SHIVAPRAKASH, ADVOCATE FOR R2 TO R5;
SRI RAMESHCHANDRA, ADVOCATE FOR R6;
SRI A.V. GANGADHARAPPA, ADVOCATE FOR R7;
SRI LEJO JOSEPH GEORGE, ADVOCATE FOR R8)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
NOTIFICATION No.RDP 561 GPA 2012 DATED 16.2.2013 PUBLISHED
IN KARNATAKA GAZETTE DATED 18.2.2013 BY THE FIRST
RESPONDENT AS AT ANNEXURE-A IN SO FAR AS IT RELATES TO THE
PETITIONER.
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WP No. 17028 of 2013
C/W WP No. 17772 of 2013
IN WP No.17772/2013
BETWEEN:
1. SRI SHIVANNA
AGED ABOUT 41 YEARS,
S/O KALAPPA, R/O YERTIGANHALLI,
ANNESHWARA GRAMA PANCHAYAT
DEVANAHALLI TALUKA, DEVANAHALLI,
BANGALORE RURAL.
2. OUTDOOR ADVERTISING ASSOCIATION®
S 23, 80 FEET ROAD, KORAMANGALA,
BANGALORE 560095
REP: BY ITS SECRETARY,
SRI MANMOHAN SINGH MANN
AGED ABOUT 49 YEARS,
3. M/S GARUDA ADVERTISING
REPRESENTED BY ITS PROPRIETOR
NO.14/1, 1ST FLOOR, SIDDANNA LANE
NAGRARTH PETE CROSS, J.M. ROAD,
BANGALORE 560002.
BY ITS PROPRIETOR,
MR. CHANDRASHEKAR
S/O CHIKKANNA
AGED ABOUT 48 YEARS,
...PETITIONERS
(BY SRI V.V. GUNJAL, ADVOCATE)
AND:
1. STATE OF KARNATAKA,
REPRESENTED BY ITS PRINCIPAL SECRETARY,
URBAN DEVELOPMENT DEPARTMENT
MULTI STORIED BUILDING,
DR. B.R. AMBEDKAR VEEDHI,
BANGALORE560001.
2. STATE OF KARNATAKA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
RURAL DEVELOPMENT AND PANCHAYAT RAJ,
DR. B.R. AMBEDKAR VEEDHI,
BANGALORE560001.
...RESPONDENTS
(BY SMT. SARITA KULKARNI, HCGP FOR R1 AND R2)
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WP No. 17028 of 2013
C/W WP No. 17772 of 2013
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH KARNATAKA
PANCHAYAT RAJ [GRAMA PANCHAYAT CONTROL OVER ERECTION OF
ADVERTISEMENT & HOARDINGS] MODEL BYE LAW 2012 No. RDP
561 GPA 2012 BANGALORE DT.16.2.13, VIDE ANN-A & DRAFT RULES
OF KARNATAKA PANCHAYAT RAJ [GRAMA PANCHAYAT CONTROL
OVER ERECTION OF ADVERTISEMENT & HOARDINGS] MODEL BYE
LAW 2012 No. RDP 561 GPA 2012 BANGALORE DT.7.1.13, VIDE
ANN-B & CONSEQUENTIAL ORDER AS ILLEGAL & ARBITRARY, & SET
ASIDE THE SAME.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING
'B' GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. In both the above matters the petitioners are before this Court seeking for the following reliefs; In WP No.17028/2013 i. Issue a writ of certiorari or any other appropriate writ or order or direction quash notification No.RDP 561GPA 2012 dated 16.02.2013 published in Karnataka Gazette dated 18.02.2013 by the First Respondent as at Annexure-A and info far as it relate to the petitioners and;
ii. Grant all other consequential relief including cost deemed fit in the circumstances of the case. In WP No.17772/2013 i. The petitioner prays that this Hon'ble court be pleased to quash Karnataka Panchayat Raj (Grama Panchayat Control over Erection of Advertisement and Hoardings) Model Bye law 2012 v No.RDP 561 GPA 2012 Bangalore dated 16.02.2013 vide Annexure A and draft Rules of Karnataka Panchayat Raj (Grama Panchayat Control over Erection of Advertisement and Hoardings0 Model Bye law 2012 No.RDP 561 GPA 2012 Bangalore dated 7.1.2023 vide Annexure-B and consequential order as illegal and arbitrary, and set aside the same; -6-
NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 ii. Issue a writ in the nature of mandamus directing the Respondents to continue to renew the License and receive advertisement tax in exercise of power under Karnataka Panchayat Raj Act and 1993 and The Karnataka Panchayat Raj (Grama Panchayat Taxes and Fees) Rules 1994 (published in Karnataka Gazette dated 7.9.1995 Notification No.RDO 950 ZPS 94) vide Annexure F and not to precipitate the matter, including removal of the hoarding which are validly erected, till appropriate Bye-laws are framed.
iii. Pass such writ or order or directions this Hon'ble Court might deem fit in the Circumstance of the case, including one of costs, in the interest of justice and equity.
2. The only contention of the petitioners who are advertising agencies is that the draft notification which had been published by the State on 7.1.2013 was not disseminated adequately so has to enable the petitioners or anybody else similarly situate to file their objections in detail to the said draft notification and without such dissemination, the final notification came to be published on 16.2.2013 within a period of 40 days from the date of the Preliminary Notification from the date of the Daft Notification. Thus, in effect within 10 days of the period fixed for filing objections and the draft -7- NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 notification, the final notification had been published depriving the petitioner of their say in the matter and as such the right to say and practice business and professional in terms of Article 19(1)(G) has been adversely affected by the haste in which the respondents have acted.
3. In these regard Sri.V.V.Gunjal learned counsel for the petitioner reliefs upon a decision Division Bench of this Court 17.12.2003 in Dr.Biju Poulose & others vs. The Secretary for Medial Education1 and other connected matters more particularly para 21, 22 and 23 thereof, which are reproduced hereunder for easy reference;
21. On queries from us, the Learned AGA, on instructions from Sri Mohd. Rafeequlla, Assistant Director, Government Sub-urban Press clarified that when a Karnataka Gazette Extraordinary is issued, it is not made available for sale to general public, nor is it sent to any subscribers. He stated that the contents thereof will subsequently be printed in the weekly gazette and such weekly gazette will be made available for sale to the general public and to the subscribers. He thus made it clear that the Notification dated 13.6.2003 containing the draft of the PG Admission Rules was made available to the general public only on 3.7.2003 and the Notification dated 3.7.2003 containing the PG Admission Rules was made available to the public only 1 WP No.41058-41101/2003 -8- NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 on 24.7.2003. Though the Gazette copies of the Draft Rules and Final Rules were available to the concerned Government Department on 13-06-2003 and 3-7-2003 respectively.
22. Having regard to Section 23 of the General Clauses Act and the terms of the draft rules, if the draft rules had been made available to the public only on 3.7.2003, the last date for filing objections would be 15 days from the date of 'publication' in the official gazette. If the 15 days is to be reckoned from 13.6.2003 that would expire on 28.6.2003. If the draft rules were made available to the public only on 3.7.2003, the last date for filing objections/suggestions was 18-7-2003 in which event the PG Admission Rules issued and Gazette on 3-7-2003 would be invalid. What is significant is that the final Rules have been made and published on 3-7- 2003 itself, which is the date on which the draft rules were made available to public. There is therefore no 'previous publication' at all in the eye of law. As these petitions do not challenge the validity of the PG Rules there is no need to pronounce upon their validity. It is sufficient to notice that neither the State Government nor Respondents 2 to 5 can rely on the said PG Admission Rules to invalidate admissions made by the Sixth Respondent College for the academic year 2003- 2004 on the ground that the admissions violated the said Rules.
23. The next question for consideration is, even assuming that the PG Admission Rules are valid, what would be the date when they came into force or become effective. The said Rules state that they shall come into force on the date of their 'publication' in the Official Gazette. The question as to what will be the date of publication' where a Gazette is made available to the public on a date subsequent to what is mentioned in the Gazette has been considered in several decisions. We will refer to a few of them.
23.1) in HARLA vs STATE OF RAJASTHAN (AIR 1951 SC 467), the Supreme Court held as follows:
"Natural Justice requires that before a law can become operative it must be promulgated or published. It must be broadcast in some -9- NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 recognisable way so that all men may know what it is, or, at the very least, there must be some special rule or regulation or customary channel by or thrugh which such knowledge can be acquired with the exercise of due and reasonable diligence. The thought that a decision reached in the secret recesses of a chamber to which the public have no access and to which even their accredited representatives have no access and of which they can normally know nothing, can nevertheless affect their lives. liberty and property by the mere passing of a resolution without anything more is abhorrent to civilised man. It shocks his conscience. In the absence therefore of any law, rule, regulation or custom. we hold that a law Cannot come into being in this way, cannot come into being in this way. Promulgation or publication of some reasonable sort is essential."
23.2) in B.K. SRINIVASAN vs STATE OF KARNATAKA (AIR 1987 SC 1050), the Supreme Court observed:
"But, unlike Parliamentary legislation which is publicly made, delegated or subordinate legislation is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary. It is therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner. whether such publication or promulgation is prescribed by the parent statute are not. It will then take effect from the date of such publication or promulgation. Where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable. If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publication, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or publication some other reasonable mode of publication."
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NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 23.3) In STATE OF MADHYRA PRADESH -VS- RAM RAGUBIR PRASAD AGARWAL (AIR 1979 SC 888), the Supreme Court held that the term 'publication' means more than mere communication to concerned officials or departments and that it means offering to public notice or rendering it accessible to public scrutiny.
23.4) In RKV MOTORS & TIMBERS (P) LTD. -VS- REGIONAL TRANSPORT OFFICER (AIR 1982 Kerala
156). a Full Bench of the Kerala High Court held:
"It is doubtful whether the proposition that the subordinate legislation by a delegated authority would be binding on and can affect the rights of the citizen. even without there being any reasonable means for the citizens to know about its issue or existence (let alone the contents), would pass muster when tested on the principles of reasonableness and absence arbitrariness...."
23.5) In GRACY-VS-STATE OF KERALA (1972 Lab- IC1367), the difference between statutes passed by the legislature and sub-ordinate Registration made by authorities to whom power of legislation is delegated by statutes was brought out in this context:
"During the process of its motion through the legislative anvil there is publicity for the measure. The matter is debated in the legislature and discussed in the press and sometimes in the platforms. But this is not the case with subordinate legislation which often issue from the Secretariat of the government or other Offices. The citizen to whom it is directed is not expected to have notice of it automatically so as to call for his obedience to it unless it is accompanied by such publicity as would normally bring it to his notice. It is open to the statute under which such subordinate legislation is made to prescribe the mode in which publication is to be made....
(emphasis supplied)
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NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 23.6) In R.NARAYAN -VS- STATE OF ANDHRA PRADESH (1972 Lab. [c.1370), Chinnappa Reddy J., as he then was observed thus:
"I most respectfully agree that the idea that a person may be governed by a law that cannot be known by him because it is not published or promulgated is revolting to judicial conscience and civilised thought. It has with it a strong odour of totalitarianism and of the Gestapo. It is repugnant to the Principles of Justice, Freedom, Equality and Fraternity, cherished by all lovers of Democracy and enshrined in our Constitution,"
23.7) In COMMISSIONER OF INCOME TAX -VS- S.RATNAM PILLAI (188 I.T.R. 492), the Kerala High Court held that the subordinate legislation can be effective only from the date when it is published and made available to the public.
23.8) In ASIA TOBACCO COMPANY LTD. -VS- UNION OF INDIA (19 ELT 152), the Madras High Court held thus:
"The mere printing of the official gazette containing the relevant notification and without making the same available for circulation and putting it on sale to the public will not amount to "notification..... It would be a mockery of the rule to state that it would suffice the purpose of the notification if the notification is merely printed in the Official Gazette, without making the same available for circulation to the public or putting it on sale to the public... It is not a case of printing, (may be anterior to the publishing) and releasing to the public, the notification, on the same date which the Official Gazette bears. Neither the date of the notification nor the date of printing nor the date of the Gazette counts for notification' within the meaning of the rule, but only the date when the public gets notified in the sense, the concerned gazette is made available to the public. The date of release of the publication is the decisive date to make the notification effective. Printing the Official Gazette and stacking them without releasing to the public would not amount to notification at all."
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NC: 2023:KHC:32057 WP No. 17028 of 2013 C/W WP No. 17772 of 2013 (emphasis supplied) 23.9) Division Bench of this Court in INDO NISSIN FOODS LTD. - VS-APPRAISER OF CUSTOMS (ILR 1993 Kar.1548), held that the words by notification in the Official Gazette" means:
"that the process or the manner of notifying or publishing through Official Gazette; if so, the process of and the manner of notifying will not be complete unless the Gazette is made available to the public to read it. A purported Notification merely printed in the Gazette and kept within the four walls of the Government Press would not be available for the public to read it: it cannot result in notifying the contents to the public. ...... The purpose of the Notification could be held as achieved when it is made available to the public, at a place, where normally such a Notification is made available; it is the accessibility to the Gazette that makes its contents an effective Notification....... If the purported Notification is printed on a particular day in the Gazette, antedating the date of Gazette, can it be said that the Notification became effective on the date printed on the Gazette as the date of its publication?........ if the prescribed procedure (for publication) is followed, subject to other considerations as to reasonableness. validity, etc., the Notification would become effective and operative. If no procedure is prescribed the Court has to consider whether the purported Notification or any other subordinate legislation was issued in a manner, from which, its due publication to the public could be inferred."
(emphasis supplsied)
4. By relying on the above, he submits that the previous publication of the draft rules is no publication at all, inasmuch as the petitioners were not put to knowledge of the same.
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5. Learned Additional Advocate General would, however submit that there is adequate and more than enough time which had been granted. The draft publication having been made on 7.1.2013, the final publication was made on 16.2.2013, after examining 16 objections which were received in relation thereto and as such several persons having objected to, there was no obstacle for the petitioner to have filed its objection on the Gazette Notification being issued. Once a notification under the Gazette is published, it is deemed to the knowledge of all concerned and it is for those persons to have filed their objections if they had any, the same not having been done. Having considered the objection which has been filed within the period of 30 days prescribed, the final notification was published on 16.2.2013, which cannot be found fault with by the petitioners.
6. The counsels for the other respondent, Grama Panchayat, adopt the submission of the Learned Additional Advocate General.
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7. Heard Sri.V.V.Gunjal., learned counsel appearing for the petitioner in WP No.17772/2013. Smt.Lakshmi Holla., learned counsel appearing for the petitioner, Sri.Pradeep.C.S., learned AAG along with Smt.Sarita Kulkarni, learned HCGP appearing for respondent No.1, Sri.M.Shivaprakash., learned counsel appearing for respondents No.2 to 5, Sri.Ramesh Chandra., learned counsel appearing for respondent No.6 and Sri.Lejo Joseph George., learned counsel appearing for respondent No.8. Perused papers.
8. The short question in the present matter is whether between the draft publication and the final notification there was adequate time granted for the petitioners and/or similarly situated persons to file their objections.
9. Admittedly, the draft publication was made on 7.1.2013 in the Gazette and the final notification was published on 16.2.2013 after a gap of 40 days and it is after 10 days of the period fixed for filing. objection.
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10. In the decision relied upon by Sri.V.V.Gunjal in Dr.Biju Poulose Supra, the Division Bench of this Court has examined the fact that the draft dated 13.06.2003 was made available to the public only on 3.7.2003 and another notification dated 03.07.2003 was made available only on 24.07.2003 without giving 15 days time for filing of the objections the final notifications were published on 3.7.2003 thereby not giving any time to the public to file their objections.
11. The said decision would not be applicable to the present facts, since the dates have been clearly specified herein above, which would indicate a gap of 30 days from the date of publication of the draft rules to the final rules.
12. Be that as it may, what has been published is a model Bye-laws which are not the final Bye-laws and it is for the concerned Gram Panchayat to suitably adopt or adapt the said model Bye-laws to the requirements of each of the Village Panchayat.
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13. That being the case, apart from the aspect of the period between the draft publication and final publication, no other argument being raised or no other discrepancy being pointed out in the said notification violative Article 19(1)(G) as contended. I am of the considered opinion that there are no grounds which have been made out in both the above petitions. As such, I pass the following;
ORDER The writ petitions stand dismissed.
Sd/-
JUDGE SR List No.: 1 Sl No.: 43