Karnataka High Court
M/S. Outdoor Advertising Association vs State Of Karnataka on 1 March, 2023
Author: Hemant Chandangoudar
Bench: Hemant Chandangoudar
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WP No. 6674 of 2021
C/W WP No. 3458 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
WRIT PETITION NO. 6674 OF 2021 (LB-BMP)
C/W
WRIT PETITION NO. 3458 OF 2020 (LB-BMP)
IN WRIT PETITION NO. 6674 OF 2021:
BETWEEN:
1. IN AND OUT ADVERTISING PVT. LTD.,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956,
HAVING ITS BENGALURU OFFICE AT 408,
LEVEL-4, PRESTIGE CENTER POINT,
CUNNINGHAM ROAD,
BENGALURU-560 052,
REPRESENTED BY ITS MANAGING DIRECTOR
Digitally signed by
R HEMALATHA
MR A.V. GOPALAKRISHNAN IYER.
Location: HIGH
COURT OF
KARNATAKA 2. MR. A.V. GOPALAKRISHNAN IYER
AGED ABOUT 72 YEARS
MANAGING DIRECTOR
IN AND OUT ADVERTISING PVT. LTD.,
A COMPANY INCORPORATED
UNDER THE PROVISIONS OF THE
COMPANIES ACT, 1956,
HAVING ITS BENGALURU OFFICE AT 408,
LEVEL-4, PRESTIGE CENTER POINT,
CUNNINGHAM ROAD, BENGALURU-560 052.
...PETITIONERS
(BY SRI. B.V. SHANKAR NARAYANA RAO, SENIOR COUNSEL FOR
SRI CHANDRASHEKAR T.A., ADVOCATE)
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WP No. 6674 of 2021
C/W WP No. 3458 of 2020
AND:
1. STATE OF KARNATAKA
REPRESENTED BY THE PRINCIPAL SECRETARY
URBAN DEVELOPMENT DEPARTMENT
VIKASA SOUDHA
AMBEDKAR VEEDHI
BENGALURU-560 001.
2. THE CHIEF COMMISSIONER
BRUHAT BENGALURU MAHANAGARA PALIKE
(CONSTITUTED UNDER THE BRUHAT BENGALURU
MAHANAGARA PALIKE ACT, 2020)
N.R. ROAD, BENGALURU-560 002.
3. THE DIVISIONAL CONTROLLER
BANGALORE METROPOLITAN TRANSPORT
CORPORATION, TRAFFIC COMMERCIAL DEPARTMENT
DIVISIONAL OFFICES, CENTRAL DIVISION
SUBHASH NAGAR, BENGALURU.
4. ITI LIMITED
ITI BHAVAN
DOORVANINAGAR
BENGALURU-560 016
(REPRESENTED BY ITS MANAGING DIRECTOR).
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, AAG A/W
SRI R. SRINIVAS GOWDA, AGA FOR R-1;
SRI H. DEVENDRAPPA, ADVOCATE FOR R-2;
SRI M.S. NARAYAN, ADVOCATE FOR R-4;
SRI HAREESH BHANDARY T., ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET
ASIDE THE BRUHAT BENGALURU MAHANAGARA PALIKE
OUTDOOR SIGNAGE AND PUBLIC MESSAGING BYE-LAWS, 2018
PUBLISHED BY THE R-2 IN THE OFFICIAL GAZETTE IN
NOTIFICATION DATED 06.09.2019 (ANNEXURE-S) WHILE
DECLARING THE SAME TO BE ULTRA-VIRES, VOID AB INITIO
AND INOPERATIV AND ETC.
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WP No. 6674 of 2021
C/W WP No. 3458 of 2020
IN WRIT PETITION NO. 3458 OF 2020:
BETWEEN:
M/S. OUTDOOR ADVERTISING ASSOCIATION,
BANGALORE, A REGISTERED BODY OF
ADVERTISING AGENCIES,
HAVING ITS OFFICE AT NO.S-23,
80 FEET ROAD, KORAMANGALA,
BANGALORE, REPRESENTED BY ITS SECRETARY,
SRI MANMOHAN SINGH MAAN
AGED 52 YEARS, S/O HARBANS SINGH MAAN.
...PETITIONER
(BY PROF. RAVI VARMA KUMAR, SENIOR COUNSEL A/W
MS. PRIYANKA YAVAGAL, ADVOCATE)
AND:
1. STATE OF KARNATAKA
VIDHANA SOUDHA,
AMBEDKAR VEEDHI,
BENGALURU-560 001,
REPRESENTED BY ITS CHIEF SECRETARY.
2. BRUHAT BENGALURU MAHANAGARA PALIKE
N.R. ROAD,
BENGALURU-560 002,
REPRESENTED BY ITS COMMISSIONER.
...RESPONDENTS
(BY SRI. DHYAN CHINNAPPA, AAG A/W
SRI R. SRINIVAS GOWDA, AGA/STATE FOR R1/ STATE)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
DECLARE THE BRUHAT BENGALURU MAHANAGARA PALIKE
OUTDOOR SIGNAGE AND PUBLIC MESSAGING BYE-LAWS, 2018
PUBLISHED BY THE RESPONDENT CORPORATION IN THE
OFFICIAL GAZETTE IN NOTIFICATION DATED 06.09.2019 AS
PER ANNEXURE-A, AS BEING ILLEGAL, VOID AND
INOPERATIVE; AND ETC.
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WP No. 6674 of 2021
C/W WP No. 3458 of 2020
THESE PETITIONS, COMING ON FOR DICTATING
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
These petitions have been filed challenging the validity of the Bruhath Bengaluru Mahanagara Palike Outdoor Signage and Public Messaging Byelaws, 2019 published by the respondent- BBMP in the official gazette vide notification dated 5.9.2019.
2. Since the issues involved in these petitions are similar, they are taken up and heard together, and disposed of by a common order.
3. The petitioner in WP No.3458/2020 is a registered body of advertising agencies comprising of about two hundred outdoor media and about two hundred members, all duly licensed to carry out trade and business under the Karnataka Municipal Corporations Act, 1976 (for short `Act, 1976') and the erstwhile advertising Bylaws, 2006.
4. The petitioner No.1 in WP No.6674/2021 is the company incorporated under the Indian Companies Act, 1956 and is engaged in the business of advertising and publicity, both indoor and outdoor to all kinds of media in multiple cities across the country. The petitioner No.2 is the Managing Director of the petitioner No.1 - Company.
5. The petitioners were registered under the Bengaluru Mahanagara Palike Advertisement Byelaws, 2006 for erecting and displaying of commercial hoardings in the City of -5- WP No. 6674 of 2021 C/W WP No. 3458 of 2020 Bengaluru. In the light of the order passed by the Division Bench of this Court in WP No.57009/2016 (PIL) in the matter of use of flex, the 2nd respondent-Corporation passed a resolution dated 6.8.2018 prohibiting the putting up of any flexes, banner, buntings, illegal advertisement board wall writing, posters, hoardings, gantries flex paintings and all other type of advertisements for a period of one year stating that they affect the city's aesthetic beauty, caused public nuisance and are responsible for road accidents etc.
6. Thereafter draft of the 2018 Byelaws was published and circulated seeking public opinion and inviting objection. The petitioners claim that they had represented the respondent- Corporation in discriminating against the petitioners by prohibiting outdoor advertisement on private properties.
7. The petitioners' claim that without considering the objections, and without providing sufficient opportunity to voice their opinion, the Byelaws 2018 were published on 5.9.2018 in the official gazette. The petitioners aggrieved by the prohibition to carry out outdoor advertisement on private properties have filed these instant petitions.
8. Prof.Ravivarma Kumar, learned Senior Counsel for the petitioners' counsel in WP No.3458/2020 would make the following submissions:
a) Section 135 of the Act, 1976 deals with prohibition of advertisement without written submission of the Commissioner and Section 136 of the Act, 1976 -6- WP No. 6674 of 2021 C/W WP No. 3458 of 2020 enumerates the cases under which the permission of the Commissioner becomes void. Section 423 of the Act, 1976 deals with the power of the Corporation to make Byelaws. The said provisions do not authorize respondent No.2 to impose complete ban on outdoor advertisement on private residential properties. Hence, the impugned Byelaws, 2018 is ultra vires the provisions of Karnataka Municipal Corporations Act, 1976 and also the provisions of Karnataka Open Places (Prevention of Disfigurement) Act, 1981, since the field of advertisement is fully occupied under the provisions of the said enactment.
b) The prohibition to carry out outdoor advertisement on the private residential properties is arbitrary and violates the rights guaranteed under Article 14 of the Constitution of India, since the impugned Byelaws does not apply to Public Private Partnership (for short `PPP') project creating infrastructure for bus shelters, pedestrian walkways, skywalks, road medians, by private residential properties using their own funds in which, advertisement facilities are given by BBMP to defray the cost incurred by the private party. The entrustment of creating infrastructure under the PPP project is with an intention to create monopoly in favour of large entities and deprive the small entities from participating in the tender process for creating infrastructure. The impugned Byelaws provides for political or noncommercial messaging approved by the -7- WP No. 6674 of 2021 C/W WP No. 3458 of 2020 BBMP. The impugned Byelaws provides for outdoor advertisement under various categories except commercial advertisement on private residential properties which is per se arbitrary and in violation of Articles 14 of the Constitution of India.
c) The prohibition to carry out outdoor advertisement on private residential properties constitute an unreasonable restrictions on the petitioners' right of freedom of commercial speech and the freedom to carry on the business, the direct and inevitable effect of it too curtail and restrict the petitioners fundamental rights guaranteed under Article 19(1)(a) and (g) of the Constitution of India.
d) Advertisement which is no more than a commercial transaction is nonetheless dissemination of information.
Public at large is benefited by the information made available through such advertisements. In a democratic economy free flow of commercial information is indispensable and the public would be handicapped without receiving commercial speech. By virtue of the impugned Byelaws, 2018, prohibiting outdoor advertisement, the fundamental rights of an individual to listen, read and receive commercial speech guaranteed under Article 21 read with Article 19(1)(a) is curtailed.
-8- WP No. 6674 of 2021 C/W WP No. 3458 of 2020e) By virtue of the exemption provided to the PPP Model under Clause 11.3 of the impugned Byelaws, 2018, a legal vacuum has been created in terms of the mandatory requirement of obtaining written permission of the Chief Commission for an advertisement to be displayed in the city under Section 158 of the BBMP Act, 2020. Therefore, there are no rules, regulation, byelaws or guidelines prescribing procedure, design, safety parameters, size etc., under the PPP Model while the intent behind legislating the impugned BBMP 2018 Byelaws is that of securing public safety.
f) In support, Prof.Ravivarma Kumar, learned Senior counsel places reliance on the following decisions:
i) Rashbihari Panda v. State of Orissa, (1969) 1 SCC 414
ii) Akadasi Padhan v. State of Orissa, AIR 1963 SC 1047
iii) Dental Council of India v. Biyani Shikshan Samiti, (2022) 6 SCC 65
iv) State of T.N. v. P. Krishnamurthy, (2006) 4 SCC 517
v) Kerala Samsthana Chethu Thozhilali Union v. State of Kerala,(2006) 4 SCC 327
vi) Rex Advertisers v. Corporation of the City of Bangalore, 1985 SCC OnLine Kar 180
vii) Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd., (1995) 5 SCC 139
viii) Delhi Transport Corpn. v. D.T.C. Mazdoor Congress, 1991 Supp (1) SCC 600
ix) Brij Mohan Lal v. Union of India, (2012) 6 SCC 502 -9- WP No. 6674 of 2021 C/W WP No. 3458 of 2020
x) Dharam Dutt v. Union of India, (2004) 1 SCC 712
xi) WP No.6913/2019 and connected matters (DD 11.3.2020) passed by the High Court of Judicature at Madras.
9. Sri B V Shankarnarayana Rao, learned Senior Counsel for the petitioner's counsel in WP No.6674/2021 would reiterate the submissions made by Prof.Ravivarma Kumar, learned Senior Counsel, and in addition, would make the following submissions:
a) The impugned Bylaws prohibits commercial advertisement on private residential properties while owing commercial advertising on PPP project and other categories, and the classification is not based on intelligible differentia, and are in utter breach of the petitioner fundamental right guaranteed under Article 14 of the Constitution of India including the right to have equal protection and treatment under law.
b) The State Government came out with the specific draft Rules called `Bruhat Bengaluru Mahanagara Palike Advertisement Rules, 2019' to provide for a better regulatory mechanism, and under the said Rules, there was no prohibition on outdoor commercial advertisement in private residential properties and the said Rules, provided for outdoor advertisement subject to permission of the Commissioner and the terms and conditions enumerated in the said Rules. This clearly implies that the impugned draft Byelaws, 2019 is not in
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conformity with the provisions of the Act, 1976 and also Article 19(1)(a) and (g) of the Constitution of India.
10. Sri Dhyan Chinnappa, learned Senior Counsel appearing for the BBMP would make the following submissions:
a) The provisions of Sections 134 and 135 of the Karnataka Municipal Corporations Act, 1976 (KMC Act) are only enabling provisions. The provisions cannot be operated in the absence of any specific bye laws being framed.
Similarly Sections 157 and 158 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 (BBMP Act) are also enabling provisions.
b) Section 134 merely provides for a tax/fee on advertisement. The provision of Section 134 can apply only where an advertisement can be erected or exhibited. To put up any advertisement, one must satisfy the requirement of Section 135.
c) Section 135 is also an enabling provision. Section 135 starts with a prohibition by the use of the words "No advertisements shall... be erected ... without the written permission of the Commissioner". This necessarily means that there should be a written permission. Section 135(2) provides for the guidance for the Commissioner to grant permission. The prohibition here is that it does not contravene any bye law. Therefore, the existence of a bye law is a sine qua non for granting permission. The
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020bye laws will provide for what is permitted and what is prohibited. If the bye laws provide for what, and how the advertisements can be put up, then the Commissioner's power to grant permission is limited by such restrictions.
d) PPP projects stand on a completely different footing as compared to advertisement rights being granted to advertising agencies. PPP projects are mainly of three kinds - (i) skywalks (ii) bus-shelters and (iii) police kiosks. All three are facilities and amenities that the BBMP is required to provide for the people residing within the limits of BBMP. In view of the fact that substantial cost is incurred in putting up these structures, the BBMP by a tendering process identifies entities to put up the said structures. The entity chosen by a transparent bidding process under the Karnataka Transparency in Public Procurement Act, 1999 ("KTPP Act") is required to erect and maintain the structure for the concession period. In defraying the cost of construction, and maintenance for the concession period, BBMP has to either fund the cost over a period of time or find a mechanism to allow the concessionaire to recover the entire cost and to earn a profit.
e) There can never be any comparison between a regular advertising agency and a PPP project. An advertising agency simply puts up advertisements for third parties and earns significant revenue out of which the fixed fee is paid to the BBMP.
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020f) For the purposes of Article 14, there cannot be discrimination amongst the same class of persons. There should be intelligible differentia and a rational nexus to the object achieved by the action.
g) When an advertising agency puts up a hoarding, the agency does not exercise any fundamental right of speech and expression. The agency is simply putting up advertisements for and on behalf of third parties. To claim that a right of the agency is being affected is without any foundation.
h) In any event, the restriction on speech cannot be extended to mean that an advertiser has the fundamental right of speech and expression.
i) Bye Laws prohibit certain kinds of signs. Clause 7.1.1 prohibits off premises signs. This necessarily means that signs of businesses conducted in a premises can be advertised both by permanent and temporary signs. Malls can advertise all businesses that are carried out inside a mall. Similarly, buildings having a number of businesses can carry out advertisements of all the businesses that are carried out there. By this it is clear that there is no absolute ban on commercial advertisements.
j) Clause 7.1.2 prohibits advertisement on private residential property. There is nothing illegal in such a
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020bar. Private properties cannot be utilized for commercial purposes. Just as commercial activity cannot be carried out inside residential properties, commercial advertisements on the property is also a commercial activity which is not permissible.
k) If the State can prohibit commercial activity inside a residential premises, so also the BBMP can prohibit carrying out of commercial advertisements on private residential properties. No fault can be found with such action.
l) The freedom to practice any profession, or to carry on any occupation, trade or is an important right but it is not absolute. Such a right is subject to reasonable restrictions that may be imposed by valid law.
m) Reasonable restrictions are entirely permissible in public interest. The Bye Laws impose in public interest restrictions on carrying out commercial advertisements off premises.
n) In support, he places reliance on the following decisions:
i) Krishnan Kakkanth v. Govt. of Kerala, (1997) 9 SCC 495
ii) NOVVA ADS v. Deptt. of Municipal Admn. and Water Supply, (2008) 8 SCC 42
iii) State of M.P. v. Bhola, (2003) 3 SCC 1
iv) Motor General Traders v. State of A.P., (1984) 1 SCC 222
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v) J.S. Luthra Academy v. State of J&K, (2018) 18 SCC 65
vi) State of Uttarakhand v Sudhir Budakoti and Others [2022 SCC OnLine SC 420]
o) On the principle that the striking down of a subsequent notification does not revive the earlier notification, he has placed reliance on the following judgments of the Supreme Court :
i) Firm A.T.B. Mehtab Majid and Co. v. State of Madras, [AIR 1963 SC 928]- Once the old rule has been substituted by a new rule, it ceases to exist and it does not get revived when the new rule is held invalid.
ii) Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, [(1985) 1 SCC 641]- The question arose whether the old notification dated July 15, 1977 would revive on quashing the notification dated March 1, 1981.
The Supreme Court held that on striking down subsequent notification, the repealed notification does not revive.
iii)West U.P. Sugar Mills Assn. v. State of U.P., [(2002) 2 SCC 645]- After the statutory rule 49 of UP Sugarcane Rules, 1953 providing for society commission @ 5% of the minimum statutory price of sugarcane having been deleted or repealed and substituted by a new rule 49, providing for society commission @ 2.69% of the minimum statutory price of sugarcane, the old rule 49 does not revive even after the substituted rule ceased to be operative.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202011. Considered the submissions made by the learned counsel for the parties.
12. The advertisement is synonymous with the business, and business cannot thrive without advertisement. The banning of advertisements directly limits the reach of the business towards the consumers. Article 19(1)(a) and (g) of the Constitution of India guarantees freedom of speech and expression and to practice any profession, or to carry on any occupation, trade or business.
13. Article 19(2) of the Constitution of India specifies that nothing in sub-clause (a) shall prevent to impose reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interest of (the sovereignty and the integrity of India), the security of the State, friendly relations with foreign State, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
14. Article 19(6) of the Constitution of India specifies that nothing in sub-clause (g) of the said Clause shall affect the operation of any existing law insofar it imposes or prevent the State from making any law imposing, in the interest of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
15. A harmonious reading Article 19(1)(a) and (g), Article 19(2) and (6) of the Constitution of India indicate that
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020the State can impose reasonable restrictions as enumerated therein on the exercise of the right conferred under the said sub-clauses, and any restrictions imposed other than those enumerated will be unreasonable and unconstitutional.
16. Section 135(1) of the Act, 1976 specifies that no advertisement shall after levy of tax under Section 34 of the Act, 1976 has been determined upon by the Corporation be erected, exhibited etc. upon any land, building, wall, hoarding or structure within the City, and shall be displayed in any manner whatsoever in any place, without the written permission of the Commissioner. Sub-Section (2) specifies that the Commissioner shall not grant such permission, if the advertisement contravenes any Byelaw made by the Corporation or the tax, if any, due in respect of the advertisement has not been paid.
17. Section 136 of the Act, 1976 specifies that the permission granted by the Commissioner shall be void on the ground enumerated there under.
18. Section 137 of the Act, 1976 specifies that the owner or person in occupation shall be deemed responsible for contravention of Sections 134 and 135 of the Act, 1976.
19. Section 138 of the Act, 1976 deals with the procedure for removal of unauthorized advertisement.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202020. Clause 24 of Section 423 of the Act, 1976 deals with the power of the Corporation to make Byelaws for the prohibition and regulation of advertisements.
21. Sections 134 and 135 of the Act, 1976 are only enabling provisions, and the said provisions do not confer to advertise as a matter of right, but are subject to Bye Laws framed by the Corporation prohibiting and regulating the advertisement.
22. The Hon'ble Supreme Court while dealing with the issue whether advertisement is a commercial speech or not and whether any restraint or curtailment would violate Article 19(1)(a) in the case of Tata Press Limited (supra) at paras-23, 24 and 25 has held as follows:
"23. Advertising as a "commercial speech" has two facets. Advertising, which is no more than a commercial transaction, is nonetheless dissemination of information regarding the product advertised. Public at large is benefited by the information made available through the advertisement. In a democratic economy free flow of commercial information is indispensable. There cannot be honest and economical marketing by the public at large without being educated by the information disseminated through advertisements. The economic system in a democracy would be handicapped without there being freedom of "commercial speech". In relation to the publication and circulation of newspapers, this Court in Indian Express Newspaper case [(1985) 1 SCC 641 :
1985 SCC (Tax) 121 : (1985) 2 SCR 287] , Sakal Paper
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case [AIR 1962 SC 305 : (1962) 3 SCR 842] and Bennett Coleman case [(1972) 2 SCC 788 : (1973) 2 SCR 757] has authoritatively held that any restraint or curtailment of advertisements would affect the fundamental right under Article 19(1)(a) on the aspects of propagation, publication and circulation.
24. Examined from another angle, the public at large has a right to receive the "commercial speech". Article 19(1)(a) not only guarantees freedom of speech and expression, it also protects the rights of an individual to listen, read and receive the said speech. So far as the economic needs of a citizen are concerned, their fulfilment has to be guided by the information disseminated through the advertisements. The protection of Article 19(1)(a) is available to the speaker as well as to the recipient of the speech. The recipient of "commercial speech" may be having much deeper interest in the advertisement than the businessman who is behind the publication. An advertisement giving information regarding a life-saving drug may be of much more importance to general public than to the advertiser who may be having purely a trade consideration.
25. We, therefore, hold that "commercial speech" is a part of the freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution."
23. The Apex Court in the aforesaid decision has categorically held that the advertising is a commercial speech, and is a part of freedom of speech of expression guaranteed
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020under Article 19(1)(a) of the Constitution of India and the said right can be restricted under Article 19(2).
24. The Hon'ble Supreme Court in the case of Novva Ads (supra) at paras-15, 18 and 30 has held as follows:
"15. In any event it is submitted that the Rules cannot apply to private sites. Construction of private buildings has been excluded. It is pointed out that the concept of public order is being introduced but the same has to be relatable to the parameters laid down in Ram Manohar Lohia (Dr.) v. State of Bihar [AIR 1966 SC 740 : (1966) 1 SCR 709] . The public interest is relatable to Article 19(1)(g) and not Article 19(1)(a). Hoardings are nothing but material for advertisement. Rule 9 relates to objectionable hoardings. Placing strong reliance on Tata Press Ltd. v. MTNL [(1995) 5 SCC 139] it is contended that hoardings partake the character of commercial speech. Reference is also made to the decisions in Sakal Papers (P) Ltd. v. Union of India [AIR 1962 SC 305] and Bennett Coleman and Co. v. Union of India [(1972) 2 SCC 788] to contend that even if it is conceded for the sake of arguments that the provisions are regulatory, they must be relatable to the parameters of Article 19(2). The regulation results in restriction on use of private land for advertisement. It is submitted that as was noted in Sakal Papers case [AIR 1962 SC 305] it curbs competition and in Bennett Coleman case [(1972) 2 SCC 788] there must be sufficient reason to curb the freedom of speech. Even an overburdensome levy which affects freedom of speech was held to be unconstitutional. Reference is also made to Romesh Thappar v. State of
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Madras [AIR 1950 SC 124] and Brij Bhushan v. State of Delhi [AIR 1950 SC 129] to contend that the restriction can be relatable to public interest and not to public order. When commercial speech is protected there is no reason to put restrictions on putting hoardings. Public order relates to violence and not law and order.
18. It is submitted that Rule 6 is absolutely impracticable because most of the roads are between 15 ft to 50 ft category. A statutory right is made illusory because of the size restriction. Visibility per se is not hazardous. Rule 10 contains words which are imprecise and flexible and the listing has not been done.
30. Hoardings erected on private places also require to be licensed and regulated as they generally abut on and are visible on public roads and public places. Hoardings erected on a private building may obstruct public roads when put up on private buildings; they may be dangerous to the building and to the public; they may be hazardous and dangerous to the smooth flow of traffic by distracting traffic, and their content may be obscene or objectionable. It is, therefore, not correct that hoardings on private places do not require to be regulated by licensing provisions."
25. The Hon'ble Supreme Court in the aforesaid decision has held that hoardings on private places can be regulated by licensing provision. However, in the said decision, the Apex Court has not held that there can be total complete prohibition on outdoor advertisement on private properties.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202026. The Hon'ble Supreme Court in the case of Krishnan Kakkanth (supra) at para-27 has held as follows:
"27. The reasonableness of restriction is to be determined in an objective manner and from the standpoint of the interests of the general public and not from the standpoint of the interests of the persons upon whom the restrictions are imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly and even if the persons affected be petty traders (Mohd. Hanif v. State of Bihar [AIR 1958 SC 731] ). In determining the infringement of the right guaranteed under Article 19(1), the nature of right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing conditions at the time, enter into judicial verdict (Laxmi Khandsari v. State of U.P. [(1981) 2 SCC 600 : AIR 1981 SC 873] ; D.K. Trivedi and Sons v. State of Gujarat [1986 Supp SCC 20] and Harakchand Ratanchand Banthia v. Union of India [(1969) 2 SCC 166 : AIR 1970 SC 1453] )."
27. The Apex Court in the aforesaid decision has held that restrictions cannot be said to be unreasonable merely because in a given case, it operates harshly and even if the person affected be petty traders and imposing reasonable restrictions. It has further held that infringement of
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020fundamental rights under Article 19(1)(g) must have a direct impact on the restrictions on the freedom to carry on business.
28. The Hon'ble Supreme Court in the case of Kaushal Kishore v State of Uttar Pradesh and ors [W.P.(criminal)No.113/2016] at para-155 has held on the ground lined up in Article 19 for restricting the right to free speech are exhaustive, and additional restrictions not found in Article 19(2) cannot be imposed on the exercise of the right conferred by Article 19(1)(a) upon any individual.
29. It is evident from the ratio enunciated by the Hon'ble Supreme Court in the aforesaid decisions that, commercial speech is a part of the right guaranteed under Article 19(1)(a) and right to carry on business which is a fundamental right guaranteed under Article 19(1)(g) can be curtailed only on the grounds enumerated under Article 19(2) and (6) of the Constitution of India, and any other restrictions imposed is violative of Article 19(1)(a) and Article 19(1)(g) of the Constitution of India.
30. The Hon'ble Supreme Court in the case of U.P. Power Corpn. Ltd. v. Ayodhya Prasad Mishra, [(2008) 10 SCC 139] has held as follows:
"36. It is well settled that Article 14 is designed to prevent discrimination. It seeks to prohibit a person or class of persons from being singled out from others similarly situated or circumstanced for the purpose of being specially subjected to discrimination by hostile legislation. It, however, does not prohibit classification, if such
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classification is based on legal and relevant considerations.
37. Every classification, to be legal, valid and permissible, must fulfill the twin test, namely,:
[[
(i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and
(ii) such differentia must have a rational relation to the object sought to be achieved by the statute or legislation in question."
31. In the backdrop of the aforesaid proposition of law, the point that arises for consideration in these petitions is as follows:
32. Point No.(i): Regarding maintainability of the writ petitions.
33. It is settled law that a juristic person cannot maintain a petition under Article 226 of the Constitution of India for enforcement of fundamental right guaranteed under Article 19, since citizens alone can claim protection of fundamental right.
34. WP No.3458/2020 is filed, by an Association, which is registered, to protect the interest of its members who are the citizens of this country. The members have filed this writ petition through the Association complaining infringement of fundamental rights.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202035. WP No.6674/2021 is filed by a company incorporated under the Companies Act and the Managing Director of the said Company in his individual capacity, who is a citizen of this country.
36. Even otherwise, the Clause 7.1.1 of the Byelaws, 2019 having been held that, it violates Article 14 of the Constitution of India, the present petitions are maintainable, as Article 14 specifies that the State shall not deny to any person equality before the law or the equal protection of law within the territory of India.
37. Hence, these petitions complaining infringement of fundamental rights guaranteed under the Article 19(1)(a) and
(g) are maintainable.
38. Point No.(ii): Whether the Byelaws, 2018 prohibiting outdoor advertisement on private properties violates Articles 14 & 19(1)(a) and (g) of the Constitution of India & are in conformity with the provisions contained in the parent Act, i.e. 1976.
39. The draft Byelaws, 2018 was published in the official gazette on 19.9.2018 and the intent, objectives and scope of the Byelaws are as follows:
"The intent of these bye-laws is to prevent all commercial billboards and hoardings on public Right-of-ways (RoW), and to establish a comprehensive system of controls governing the display, design, construction, installation, and maintenance of outdoor signages and public
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messages, in order to: A. Promote the public health, safety, and welfare and ease of travel. B. Preserve local character and environment C. Protect public investment in and the character of public Right-of-ways. D. Aid in aesthetically pleasing way finding and public communication E. Reduce hazards to motorists and pedestrians traveling on the public Right-of-way. E. To improve compliance and ease of enforcement.
2.2. Objectives and Scope The objective of the BBMP Outdoor Signage and Public Messaging Bye-Laws will be to:
2.2.1. Prohibit commercial advertisement displays in public Right-of-ways;
2.2.2. Promote traffic safety by minimising distractions due to signage;
2.2.3. Prohibit usage of materials for signage and advertisement display which are harmful to the environment - in accordance to the direction vide notification issued by the Government of Karnataka dated, 11th March, 2016;
2.2.4. Allow businesses with individual expression in graphics by encouraging flexibility in innovation and design;
2.2.5. Regulate signage which is compatible with the surrounding neighborhood;
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WP No. 6674 of 2021 C/W WP No. 3458 of 20202.2.6. Maintain legibility and uniformity in design of signage and advertisement displays through regulation of size, colours and proportion;
2.2.7. Allowance of non-commercial signs and public messages to be displayed in all authorized signage displays."
40. The respondent - BBMP after receiving the objections to the draft ByeLaws from the public at large in exercising of the power conferred under Section 423 read with Section 425 and Section 428 of the Act, 1976 published the Byelaws, 2018.
41. Clause 2.4 of the Byelaws, 2018 deals with the types of advertisement. Clause 2.5 of the Byelaws, 2018 deals with the content display.
42. Clause 3.1 deals with the sign dimension. Clause 3.6 deals with permitting temporary pole signs for nonresidential users, including sports, stadiums, playgrounds, exhibition centers, exhibition halls etc. Clause 3.7 specifies that electronic message signs shall not display any off premises, commercial advertising. Clause 3.7.2 permits electronic messages, signs for educational facilities, places of worship and any government facility shall not be permitted in the central business district, commercial enterprises. Clause 3.8 permits wall signs for non residential premises in zones A, B and C as defined in the prevailing master plan. Clause 3.8 permits roof signs. Clause 3.10 permits signs painted on vehicles, trucks and
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020buses provided the primary purpose of such vehicles is not to display the signs and that they are parked in areas related to their use. Clause 3.11 provides sponsored advertisements on bus shelters, pedestrian bridges and underpasses, E-toilets, public parks, recreation grounds signage, street furniture, stadiums and sports arenas.
43. Clause 7 specifies the prohibited signs. Clause 7.1.1 prohibits off premises signs, both permanent signs, (also known as hoardings) and temporary off premises, however, does not include signs placed on public transit stations, bike sharing stations or car share facilities when such signs are placed by the sponsors of such facilities. The prohibition does not include noncommercial message signs.
44. Clause 9.10.1 permits political or noncommercial message signs in all zones as approved by the BBMP. Clause 9.10.3 permits displaying of political or noncommercial message signs on private properties only and with the permission of the properties owner and permits by the BBMP. Clause 9.12 permits the real estate signs. Clause 9.13.1 permits scoreboards which record and display the score of the game and shall be placed in the interior of stadiums or sports arenas or exterior side of stadiums or sports arenas but within the boundary of the stadium or sports arenas.
45. Clause 11.3 specifies that the Byelaws shall not apply to public private partnership project creating civic infrastructure like bus shelter, pedestrian walkway, skywalk,
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020road medians and such other by private parties using their own funds, in which, advertisement facilities are given by the BBMP, to defray the cost incurred by the parties.
46. Clause 12.4 specifies that notwithstanding anything contained in the Byelaws, 2018, according permission in the mater of display of signage/advertisement by the BBMP on special occasions, such as air show, government/palike sports advertisements for limited period and for limited place and time are hereby saved.
47. The respondent - BBMP along with the statement of objection has not placed any materials that the outdoor advertisement on private residential properties has caused distractions, thus endangering traffic safety and are harmful to the environment. The respondent - BBMP in its statement of objections has also not stated nor produced any materials that outdoor commercial advertisement would alone affect the local character and environment, protect public investment in and the character of public right of ways and also the aesthetic beauty of Bengaluru City .
48. The impugned Byelaws permits all other types of outdoor advertisements except outdoor advertisements on private residential properties. There is no logic or rationale in prohibiting outdoor advertisements on private residential properties, when outdoor advertisements are permitted on infrastructures which are provided by the BBMP to the people of Bengaluru under the PPP project, malls/private commercial
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020buildings advertising the products, which are sold within the malls/buildings, temporary advertisements by political parties on each side of the public street and private residential properties, thus, making the object and intent to the Byelaws to prohibit outdoor advertisements on private properties redundant.
49. The contention of the BBMP that impugned bye- laws,2018 was necessitated to regulate the use of polluting materials is unsustainable since the materials on which the advertisements are printed, are already regulated by the government order dated 11.03.2016.
50. Permitting outdoor advertisements other than outdoor advertisements on private residential properties in the absence of any logic or rationale is violative of Article 14 of the Constitution of India. In order to achieve the object and intent of the Byelaws, 2018, the BBMP can always impose such restrictions to regulate the outdoor advertisement on private properties, which restrictions have been imposed on other outdoor advertisements. The BBMP instead of regulating the outdoor advertisement on commercial properties has prohibited the same without any valid reasons and is not based on any intelligible differentia, which is arbitrary and discriminatory. Hence, the point No.(ii) is answered in favour of the petitioners.
51. Point No.(iii): Whether the prohibition of outdoor signage and public messaging on hoardings against the public Right of way is discriminatory.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202052. The term Right of way is defined in the impugned Bye-laws,2018 under clause 3(15) which specifies that right of way is the motorable lanes and footpath between control lines or plot boundaries along a street, used for the movement of pedestrians and vehicles. This phrase means the right of the public to pass over all streets and places.
53. Imposition of prohibition to erect hoardings on public right of way cannot be said to be discriminatory as it eases out the movement of pedestrians and vehicles without any visual distractions. If such hoardings are found to be erected unauthorizedly under the PPP project defeating the object of the Bye Laws- 2018, then they are always subject to disposal/removal by BBMP. Hence, Clause 7.1.4 is held to be constitutionally valid.
54. Point No.(iv): Whether the prohibition of advertisement on private residential properties offends Article 14 of the Constitution of India.
55. Clause 7.1.2 prohibits advertisement on private residential property and the said restriction is not violative of Article 14 of the Constitution of India, since the private residential properties cannot be utilized for commercial purposes under the Revised Master Plan- 2015 or the building bye laws of the BBMP. Hence, Clause 7.1.2 is in conformity with the provisions of law.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202056. Point No.(v): Whether the permission for outdoor advertisement on the public infrastructure under the PPP project violates Article 14.
57. Clause 11.3 of the Byelaws 2019 specifies that the Byelaws shall not apply to public private partnership projects creating infrastructure for providing facilities and amenities to the public at large and for providing the same, the BBMP has to incur substantial costs. The BBMP identifies the entities providing infrastructure by a transparent bidding process under the provisions of the Karnataka Transparency in Public Procurement Act, 1999. In defraying the cost of construction and maintenance of the infrastructure provided for the concession period, the BBMP permits the putting up of the commercial advertisements. In doing so, the people living in Bengaluru can avail the benefit of amenities at no cost. On the contrary, an advertising agency simply puts up commercial advertisements for third parties and earns revenue out of which the fixed fee is paid to the BBMP. The Byelaws, 2018 does not prohibit the petitioners from participating in the tender process for providing infrastructure under the PPP project and in the absence of any such prohibition, it cannot be said that the Byelaws, 2018 are violative of Article 14 of Constitution of India. However, prohibiting outdoor advertisements in private properties and permitting outdoor advertisement to various other categories is arbitrary and violative of Article 14 of the Constitution of India.
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WP No. 6674 of 2021 C/W WP No. 3458 of 202058. Point No.(vi): Whether striking down Clause 7.1.1 as unconstitutional will invalidate the entire Byelaws, 2018.
59. The Hon'ble Supreme Court in the case of Firm A.T.B. Mehtab Majid and Co. (supra) has held that once old Rule is substituted by a new Rule, it ceases to exist and it does not get revived when the new Rule is held to be invalid. Similarly, in the case of Indian Express Newspaper Bombay Pvt. Ltd. (supra), the Apex Court has held that on striking down of a subsequent notification, the repealed notification does not revive and the same is reiterated in the case of West UP Sugar Mill Association and others (supra).
60. The Hon'ble apex court in the case of R.M.D. Chamarbaugwalla v. Union of India, AIR 1957 SC 628 has summarized as to when the principle of severability is applicable and is as follows:
"22. That being the position in law, it is now necessary to consider whether the impugned provisions are severable in their application to competitions of a gambling character, assuming of course that the definition of "prize competition" in Section 2(d) is wide enough to include also competitions involving skill to a substantial degree. It will be useful for the determination of this question to refer to certain rules of construction laid down by the American courts, where the question of severability has been the subject of consideration in numerous authorities. They may be summarised as follows:
1. In determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the intention of the legislature that is the determining factor. The test to be
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applied is whether the legislature would have enacted the valid part if it had known that the rest of the statute was invalid. Vide Corpus Juris Secundum, Vol. 82, p. 156; Sutherland on Statutory Construction, Vol. 2 pp. 176-177.
2. If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a complete code independent of the rest, then it will be upheld notwithstanding that the rest has become unenforceable. Vide Cooley's Constitutional Limitations, Vol. I at pp. 360-361; Crawford on Statutory Construction, pp. 217-218.
3. Even when the provisions which are valid are distinct and separate from those which are invalid, if they all form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part will result in the failure of the whole. Vide Crawford on Statutory Construction, pp. 218-219.
4. Likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from what it was when it emerged out of the legislature, then also it will be rejected in its entirety.
5. The separability of the valid and invalid provisions of a statute does not depend on whether the law is enacted in the same section or different sections; (Vide Cooley's Constitutional Limitations, Vol. I, pp. 361-362); it is not the form, but the substance of the matter that is material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the relevant provision therein.
6. If after the invalid portion is expunged from the statute what remains cannot be enforced without making alterations and modifications therein, then the whole of it must be struck
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020down as void, as otherwise it will amount to judicial legislation. Vide Sutherland on Statutory Construction, Vol. 2, p. 194.
7. In determining the legislative intent on the question of separability, it will be legitimate to take into account the history of the legislation, its object, the title and the preamble to it. Vide Sutherland on Statutory Construction, Vol. 2, pp. 177-
178."
60. Applying the principles summarized by the hon'ble apex court to the instant case, whether the entire Byelaws, 2018 requires to be struck down or not requires to be answered. On applying the doctrine of severability, only clause 7.1.1 is severed from the bye law and is declared as violative of fundamental right and the other provisions of the bye law remain in force as it is, since, there is no challenge to each of the Clauses of the Byelaws in these petitions nor they are held to be arbitrary and discriminatory. Hence, the striking down of the clause 7.1.1 of the bye-laws, 2018 will not invalidate other provisions of the bye-law. The interest of the petitioners can be protected by directing the BBMP to make a suitable provisions in the Byelaws, 2018 to permit outdoor commercial advertisements on private properties by imposing such reasonable restrictions so as to achieve the object and intent of the Byelaws, 2018.
61. Hence, to curb/prevent the erection of unauthorized hoardings in the city of Bengaluru which destroys the beauty of the city and causes visual pollution unnecessarily, I'd suggest the following programmes:
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i) To create a citizen surveillance in which each person may take pictures of unlawful hoardings in their neighborhood or any area and inform it to BBMP. As a result, system transparency will increase. The BBMP is already making use of an application under the name "Sahaaya 2.0 Namma Bengaluru" developed by BBMP through which it receives the complaints and initiates action for defacement of the city. The application should be tuned to be user friendly.
ii) All authorized hoardings and other publicity materials should have QR (Quick Response) codes embossed on them, making it easier to spot the unlawful ones. The authorities or the public may check all relevant information, including the name of the applicant, the permit number, the location, and the time for which permission has been given to erect hoardings, using the QR code method. This mechanism is tendered by the Brihanmumbai Municipal Corporation which makes quick redressal of the complaints.
iii) There must be a mechanism of informing the local police about the permissions given to put the hoardings so as to keep an eye on unauthorized hoardings.
62. Therefore, in order to solve the issue of unauthorized hoardings, the BBMP must act decisively to preserve the beauty and safety of the city without affecting individual rights. These suggestions, if accepted, should not lie
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WP No. 6674 of 2021 C/W WP No. 3458 of 2020stale on the papers rather it must be put in action by the respective authorities in full swing.
63. In view of the preceding analysis, the prohibition of outdoor advertisement on private properties impinge the fundamental right guaranteed under Articles 14 and 19(1)(a) and (g) of Constitution of India. Accordingly, I pass the following:
ORDER
i) The writ petitions are allowed in part.
ii) The Clause 7.1.1 of the Bylaws, 2018 is struck down as arbitrary and unconstitutional.
iii) The respondent - BBMP is hereby directed to make suitable provisions in the Byelaws, 2018 permitting outdoor advertisement on the private properties by imposing such restrictions to achieve the object and intent of the Bye-laws, 2018. The said exercise shall be concluded within a period of three months from the date of uploading of this order in the High Court Website.
Sd/-
JUDGE BKM List No.: 1 Sl No.: 105