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2018 DIGILAW 338 (ALL)

SHIVA GUPTA v. STATE OF U. P.

2018-02-07

ABDUL MOIN, VIKRAM NATH

body2018
JUDGMENT Hon’ble Abdul Moin, J.—Supplementary affidavit filed today on behalf of the petitioners is taken on record. 2. We have heard Sri W.H. Khan, learned Senior Advocate assisted by Sri Ram Raj, learned counsel for the petitioners, Sri Manish Mishra, learned Standing Counsel for the State-respondents, Dr. V.K. Singh, learned counsel representing respondent No. 3 and Sri Ratnesh Chandra, learned counsel representing respondents No. 4 and 5. 3. By means of the instant petition, the petitioners have prayed for the following reliefs : “I. Issue a writ, order or direction in the nature of certiorari quashing order dated 29.12.2017/1.1.2018 issued by the Principal Secretary Government of U.P. (Annexure-1 to the writ petition), order/letter dated 26.12.2017 passed by the Nagar Ayukt Nagar Nigam Lucknow (Annexure-2 to the writ petition), show cause notice dated 31.12.2017 published in Nav Bharat Times (Annexure-3 to the writ petition) and order dated 16.1.2018 passed by Nyayalay Vihit Pradhakari in Case No. 406/2017 (Annexure-4 to the writ petition). II. Issue a writ, order or direction in the nature of mandamus restraining the respondents from removing the hoardings installed on the petitioners buildings. III. Issue any other writ, order or direction which the Hon’ble Court may deem fit and proper in the circumstances of the present case. IV. Award costs to the petitioner from the contesting respondents.” 4. The case set forth by the petitioners are that the petitioner No. 1 is owner of premises (vacant) No. 3/1253, Jankipuram, Lucknow and has fixed a hoarding in 2016 for displaying advertisement for carrying on advertisement business which she carries on as sole proprietor of M/s Vanshika Advertising. She also alleges to have taken on rent certain premises for carrying on the said business by fixing hoardings for displaying advertisements. Petitioners No. 2 and 3 are the owners of the houses taken on rent by the petitioner No. 1 while petitioner No. 4 is the owner of premises No. 5/1 Vineet Khand, Gomti Nagar, Lucknow and is alleged to have given rent to Raj Associates, 1/181, Vineet Khand, Gomti Nagar, Lucknow for carrying on advertising business by fixing hoardings on the said premises. The petitioners contend that for making advertisement on the hoardings on the buildings of the owners, the advertising agencies enter into agreements with buildings owners who permit them to fix hoardings on their buildings for displaying advertisement and in this regard the advertising agencies take permission from Nagar Ayukt and pay advertisement tax to Nagar Nigam, Lucknow. It is the Nagar Nigam Kar Ka Nirdharan Aur Vasooli Niyamawali, 2014 (hereinafter referred to as 2014 Rules) which prescribes the procedure for taking permission to put hoardings on yearly basis and thereafter renewal of the same is done for each subsequent year. 5. The petitioners further contend that entire subject matter of advertisement of fixing hoardings and displaying advertisement is within the jurisdiction of the Nagar Nigam, Lucknow under the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as the 1959 Act) read with the 2014 rules and that the Lucknow Development Authority has no jurisdiction in the matter of fixing hoardings and realising advertisement tax. It is further contended that U.P. Urban Planning and Development Act, 1973 (hereinafter referred to as the 1973 Act) is not applicable to the advertisement and display of hoardings fixed on the buildings of either private owners or on Nagar Nigam sites. It is the specific case of the petitioners that the 2014 Rules may have become inoperative with regard to imposing and realising tax keeping in view the U.P. Goods and Service Tax Act, 2017 yet it is the Muncipal Corporation having its powers under the 1959 Act which is to regulate the advertisement and the petitioners having installed the hoardings and advertising sites after following the prescribed procedure under the 2014 Rules and after taking due permission and if there is any violation of the 1959 Act or the 2014 Rules, it is only then that the Municipal Corporation can interfere but the Lucknow Development Authority cannot interfere by any stretch of imagination. 6. The petitioners further contend that disregarding the 1959 Act and the 2014 Rules and despite the petitioners having due permission for installation of the hoardings and display on the advertising sites, the impugned orders as contained in Annexures 1 to 4 to the writ petition have been issued which are legally unsustainable in the eyes of law. 7. 6. The petitioners further contend that disregarding the 1959 Act and the 2014 Rules and despite the petitioners having due permission for installation of the hoardings and display on the advertising sites, the impugned orders as contained in Annexures 1 to 4 to the writ petition have been issued which are legally unsustainable in the eyes of law. 7. Annexure-1 is an order dated 1.1.2018 issued by the State Government directing all the District Magistrates and the Municipal Commissioners throughout the State of U.P. alongwith the Director, Local Bodies, Lucknow for removal of all illegal hoardings and banners which have been installed illegally as there is a chance of the same being unsafe which may cause loss of life and property. Annexure-2 to the writ petition is an order dated 28.12.2017 issued by the Nagar Nigam, Lucknow to the Vice Chairman, Lucknow Development Authority requiring the Lucknow Development Authority to take action against those house owners who have installed hoardings and advertising sites in violation of the sanctioned maps. Annexure-3 is a public notice requiring all the house owners who have installed hoardings and banners on their buildings in violation of the 1973 Act to show cause as to why the said illegal hoardings sans permission be not removed. The said notice itself indicates that because the said illegality has been done by large number of peoples, as such individual notice would not be possible and hence public notice through newspaper has been issued. Annexure-4 to the writ petition is an order dated 16.1.2018 issued by the Prescribed Authority which has been passed subsequent to the notice issued by the Lucknow Development Authority dated 31.12.2017 requiring all house owners or house occupiers not having permission of Lucknow Development Authority to put up hoardings on their house to either remove the same or else the same shall be removed by the Lucknow Development Authority/Nagar Nigam. 8. 8. When the case was taken up on 6.2.2018 this Court had required a supplementary affidavit to be filed by the petitioners annexing copies of all such permissions which the petitioners were claiming they had in their favour from the Nagar Nigam for setting up hoardings and in pursuance thereof learned counsel for the petitioner has filed the supplementary affidavit indicating that the petitioner No. 1 had been granted permission for the year 2015-16 for setting up certain hoardings on private land and buildings and that the official website of the Municipal Corporation is also hosting the sanctioned list of hoardings site for the financial year 2017-18 in which petitioners hoardings are also mentioned and that the advertising agency of petitioner No. 1 has also deposited renewal fee for registration of her advertising agency which has been accepted by the Nagar Nigam for the period 2016-2017 and 2017-2018. 9. While seeking to challenge the aforesaid four orders, Sri W.H. Khan, learned Senior Advocate assisted by Sri Ram Raj, learned counsel for the petitioners, states that as the petitioners are already having permission for advertising and erecting the hoardings, as such a general order passed for removal of all illegal hoardings would affect them apart from the fact that Lucknow Development Authority has no jurisdiction to issue the public notice dated 31.12.2017 and passing subsequent order dated 16.1.2018 annexed as Annexure-4 to the writ petition. 10. Per contra Sri Manish Mishra, learned Standing Counsel argues that so far as Annexure-1, which is an order issued by the State Government dated 1.1.2018 is concerned, the petitioners can have no objection to the same as the same pertains to removal of illegal hoardings and banners which are unsafe and there is always a possibility and probability of loss of life and property in case they fall. 11. On the other hand Dr. V.K. Singh, learned counsel representing respondent No. 3-Nagar Nigam, Lucknow states that the order dated 26.12.2017 as contained in Annexure-2 to the writ petition, has been issued to the Lucknow Development Authority requiring the Lucknow Development Authority to take action against those buildings owners who are using their building for the purpose of advertising, or have put up hoardings and banners on their buildings in violation of the sanctioned plan of the building and as such no fault can be found in the same. 12. 12. Likewise Sri Ratnesh Chandra, learned counsel representing Lucknow Development Authority has argued that the public notice as contained in Annexure-3 to the writ petition, has been issued for taking action against those building owners, under the provisions of the 1973 Act, who are utilising their buildings in violation of the sanctioned maps and as such the said public notice and the consequential order dated 16.1.2018 cannot be faulted as the Lucknow Development Authority is acting in accordance with law. He further submits that against the order passed by the Prescribed Authority dated 16.1.2018, the petitioners, if aggrieved, have adequate statutory remedy under Section 27(2) of the 1973 Act and accordingly if the petitioners are aggrieved against the same, they can always avail the statutory remedy and take such pleas and grounds as may be permissible under law. 13. Having considered the submissions made by the learned counsel for the respective parties what we find is that Annexure-1 to the writ petition is an order dated 1.1.2018 issued by the State Government for removal of all illegal hoardings and banners which have been illegally installed on buildings as there is possibility of causing loss of life and property on account of they having not been installed in a safe manner. The said order having been issued against such illegal hoardings obviously the petitioners cannot have any grievance against the same and the said order having been issued in public interest cannot be faulted by this Court and accordingly, we reject the challenge to the same. 14. Likewise the order dated 28.12.2017 issued by the Nagar Nigam to the Lucknow Development Authority requiring it to act under the provisions of the relevant Acts against those putting up advertisements, hoardings and banners on their houses and buildings in violation of the sanctioned map also cannot be faulted as by that order certain illegal activities are sought to be checked. Further the public notice issued by the Lucknow Development Authority dated 31.12.2017 and the consequential order passed by the Prescribed Authority dated 16.1.2018 being against such illegal and irregular activities cannot be faulted by this Court. Further the public notice issued by the Lucknow Development Authority dated 31.12.2017 and the consequential order passed by the Prescribed Authority dated 16.1.2018 being against such illegal and irregular activities cannot be faulted by this Court. Even otherwise, as per the averments made by the petitioners themselves they are having due permission for installation of the hoardings and advertising sites and accordingly there cannot be any reason for the petitioners to challenge the aforesaid orders as the same are passed against the illegal activities or such activities which do not have the sanction of law and the rules. As such, we reject the challenge to the same also. 15. Keeping in view the aforesaid discussions, we dispose of this petition with a direction to the Nagar Nigam, Lucknow to remove all such hoardings which are found to have been erected without adequate permission of the Nagar Nigam, however, where permission of erecting the hoardings is shown, the same may be examined and appropriate orders may be passed in that regard. The above order is with respect to the action taken by the Nagar Nigam. 16. In so far as the action taken by the Lucknow Development Authority is concerned, the petitioners have adequate statutory remedy under Section 27(2) of the Uttar Pradesh Urban Planning and Development Act, 1973. It would be open to the petitioners to take all such pleas and grounds as may be permissible under law.