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2013 DIGILAW 2551 (BOM)

Milind Prabhu v. State of Goa

2013-12-11

B.R.GAVAI, F.M.REIS

body2013
JUDGMENT P.C. The petitioner has approached this Court, challenging the validity of Regulations No.17.1 to 17.10 of the Goa Land Development and Building Construction Regulations, 2010 (hereinafter referred to as “the said Regulation”) being violative of Article 19(1)(g) of the Constitution of India. 2. Mr. Pangam, the learned Counsel appearing on behalf of the petitioner, submits that Regulation No. 17.5 will have an effect of taking away the business of hoarding, as most of the roads in Goa are having width of less than 10 metres. The learned Counsel submits that the said Regulation is taking away the right guaranteed to a citizen under clause (g) of sub-section (1) of Article 19 of the Constitution of India, which guarantees right to carry on any occupation, trade or business. The learned Counsel submits that though, in view of sub-section (6) of Article 19 it is permissible for the State to impose reasonable restrictions, the onus is on the State to establish that the restriction so imposed is in public interest. The learned Counsel relies on a judgment of the Apex Court in the case of Mohammed Faruk vs. State of Madhya Pradesh and others, reported in 1969 (1) SCC 853 . 3. The second limb of submission of Shri Pangam is that Regulation No.17.6 which prohibits erection of an hoarding within a distance of 100 metres from the intersection of the roads, sufficiently takes care of the larger public interest and, therefore, there is no necessity to have Regulation No. 17.5. It is submitted by Shri Pangam that he could not find any justification as to why Regulation No. 17.5 should exist on a statute book. Shri Pangam further submits that in view of Article 304 of the constitution of India, the said Regulations could not have been framed. 4. The third submission raised by Shri Pangam is that the subject of hoarding would be within the domain of the Goa Municipalities Act and the Goa Panchayat Raj Act and, therefore, the regulations which are in conflict thereto have to give way to the provisions of the Municipal Act and the Panchayat Raj Act are concerned. 5. Next submission made by Shri Pangam is that Clause No.17.10 of the Regulations is in the nature of creating monopoly in a particular person and, therefore, it violates the mandate of Article 14 of the Constitution of India. 6. 5. Next submission made by Shri Pangam is that Clause No.17.10 of the Regulations is in the nature of creating monopoly in a particular person and, therefore, it violates the mandate of Article 14 of the Constitution of India. 6. For appreciating the rival contentions, it will be necessary to refer to clauses 17.5, 17.6 and 17.10 of the said Regulations, which read thus : “17.5 No hoarding shall be permitted on roads less than 10.00 meters. 17.6 No hoarding shall be permitted, within a distance of 100 mts. from the intersection of the roads, this distance being measured from the intersection obtained by joining two points on the adjacent edges of the Right of the way of the roads. 17.10 The minimum distance between clusters of hoardings shall be 200.00 meters however the minimum distance between two hoardings shall not be less than 5.00 meters and not more than five hoardings shall be permitted in a cluster.” 7. We will deal with the last submission of Shri Pangam first. The learned Counsel has raised a ground that Clause 17.10 which imposes a restriction of having a minimum distance of 200 metres between clusters of hoardings, creates a monopoly. The submission made in that regard is that if a person owns a plot of 200 metres and has been granted permission to erect 5 hoardings, the other person who has adjoining plot, would be deprived of erecting hoarding on his plot. It is, therefore, submitted that the said provision would create a monopoly in favour of such a person who has already been granted permission. A perusal of factual matrix available in the petition would reveal that the permission to the petitioner was refused only on the ground that it is on the road admeasuring less than 10 metres. It is not the case of the petitioner that he had applied for cluster of hoardings and it was rejected on the ground that it is within a distance of 200 metres from another cluster of hoardings. In that view of the matter, there is no occasion to interpret clause 17.10 in the present case. 8. The Apex Court, in catena of cases, including the one in the case of Vidhyacharan Shukla vs. Purshottam Lal Kaushik reported in (1981) 2 SCC 84 , and in the case of A.K. Singh and ors. In that view of the matter, there is no occasion to interpret clause 17.10 in the present case. 8. The Apex Court, in catena of cases, including the one in the case of Vidhyacharan Shukla vs. Purshottam Lal Kaushik reported in (1981) 2 SCC 84 , and in the case of A.K. Singh and ors. vs. Uttarakhand Janamorcha and ors., reported in (1999) 4 SCC 476 , has held that while exercising jurisdiction under Article 226 of the Constitution of India, the Court would refrain from entering into academic questions if the facts do not warrant to do so. In that view of the matter, we do not find it necessary to consider the validity of clause 17.10. 9. In so far as the contention regarding clause 17.5 of the said Regulation being violative of Article 304 of the Constitution is concerned, a perusal of the said Article would show that it falls within Part XIII of the Constitution. Article 304 cannot be read in isolation. All the Articles in the said part, and specifically Articles 301, 303 and 304 will have to be read in harmony with each other. In that view of the matter, there is no any substance in the submission made by Shri Pangam in that behalf. 10. In any case, by the impugned regulation there is no any ban imposed to carry out the trade of hoardings. The impugned regulation only imposes certain restrictions which are found necessary in the larger public interest. 11. In so far as the contention of Shri Pangam regarding applicability of Municipal Act and Panchayat Raj Act is concerned, it will be appropriate to refer to Section 10 of the Goa (Regulation of Land Development and Building Construction) Act, 2008. Sub-Section (2) of Section 10 reads thus: “10. Saving provision – (1) .. (2) Notwithstanding anything contained in sub-section (1), such development permission and/or construction licence for building shall not get immunity if such development permission or construction licence is otherwise in accordance with this Act and rules and regulations framed thereunder.” 12. A perusal of sub-Section (2) of Section 10 would reveal that the said Act has been given an overriding effect in so far as matter concerning development is concerned. In that view of the matter, the submission in that regard is also without any substance. 13. A perusal of sub-Section (2) of Section 10 would reveal that the said Act has been given an overriding effect in so far as matter concerning development is concerned. In that view of the matter, the submission in that regard is also without any substance. 13. That leaves us to consider the challenge regarding validity of Regulation 17.5 which provides that no hoarding shall be permitted on roads less than 10 metres. It is contended that since Rule 17.6 takes care of the public interest, it is not necessary to have Regulation 17.5. We are constrained to say that the submission made by Shri Pangam is on total misreading of Regulation 17.6. What has been provided under Regulation 17.6 is that no hoarding shall be permitted within a distance of 100 metres from the intersection of the road and this distance is to be measured from the intersection obtained by joining two points on the adjacent edges of the right of way of the roads. It can thus be seen that the restriction is with regard to a distance of 100 metres from the intersection of the roads. The restriction is not horizontally 100 metres from the edge of the road. In any case, it is not the case of the petitioner that he had applied for permission for erecting hoarding at a distance of 100 metres from the edge of the road. In that view of the matter, the contention with regard to Regulation 17.5 taking care of the situation is concerned, we find that the said submission is without any substance. 14. It has been urged by Shri Pangam that he has not been in a position to find out the reason behind Regulation 17.5. With due respect we may say that neither this Court nor the learned Counsel possess the expertise in the field of development and the factors which are to be taken into consideration while enacting regulations. The said Regulations are a piece of subordinate legislation. It is presumed that the experts in the field must have applied their mind before framing of the regulations which are necessary in the larger public interest. It is settled law that the presumption is in favour of the validity of statute and the onus is on the person who challenges the validity of the same. It is presumed that the experts in the field must have applied their mind before framing of the regulations which are necessary in the larger public interest. It is settled law that the presumption is in favour of the validity of statute and the onus is on the person who challenges the validity of the same. Shri Pangam has strenuously urged upon us to shift the burden on the State. We find that unless the petitioner discharges the onus cast on him, by prima facie pointing out the invalidity of the statute, this Court cannot lightly shift the burden upon the State. 15. In any case, we find that the restrictions which are imposed on the hoardings to be erected along the road of less than 10 metres is in the larger public interest. One of us (F.M. Reis, J.) is the resident of this State and other one of us (B.R. Gavai, J.) had, in the recent past, occasions to travel through the roads of Goa and in most of the places, we find that the roads are heavily congested. If such hoardings are permitted on such narrow roads, one can only imagine what disaster it would lead to. 16. In any case, taking into consideration the issue of illegal hoardings erected in the State of Goa, this Court has already taken suo motu cognizance and is monitoring the issue in Public Interest Litigation Writ Petition. Not only that, this Court has also taken suo motu cognizance of the traffic problems in the State of Goa. We find that if we entertain such a petition, it will be in conflict with the order that the Court may pass in the aforesaid two Suo Motu Public Interest Litigations. 17. In so far as the reliance by Shri Pangam on the judgment of the Apex Court in the case of Mohammed Faruk vs. State of Madhya Pradesh and others (supra) is concerned, in the said case, the Apex Court was considering the regulation which had taken away the right of the petitioner therein to deal in the business of slaughter of cows. The Court, in the facts of the case, found that the Court must in considering the validity of the impugned law imposing a prohibition on the carrying on of a business or profession, attempt an evaluation of its direct and immediate impact upon the fundamental rights of the citizen affected thereby and the larger public interest sought to be ensured thereby in the light of the object to be achieved. In the said case, the petitioner was carrying on business of cow slaughter. Apart from that, the Court found that the Regulation was not enacted in the larger public interest, but only with a view to avoid hurting sentiments of a section of people in the local area. In that view of the matter, the judgment of the Apex Court will not be applicable to the facts of the present case. 18. In that view of the matter and as already discussed hereinabove, we find that the restrictions that are sought to be imposed are in larger public interest. 19. The petition is without any substance and the same is hereby rejected, with no order as to costs.