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2018 DIGILAW 741 (KER)

St Stephens Malankara Catholic Church v. State of Kerala

2018-09-18

DEVAN RAMACHANDRAN

body2018
ORDER : Devan Ramachandran, J. 1. Read order dated 27/07/2018. 2. In pursuance of the directions in the above order, the Additional Chief Secretary, Local Self Government Department has sworn to an affidavit on behalf of the Chief Secretary as also the Principal Secretary to the Public works Department and the same is on record. 3. Glancing through the affidavit and in particular paragraphs 2, 3, 6, 7 and 8, the unequivocal stand of the authorities appear to be that Flex Boards/Bill Boards/Advertisement Boards installed without the permission of the concerned Local Self Government Institutions, namely, the Corporation, Municipality or Panchayat, as the case may be, violates law and that the erection of boards would have to be seen as being completely illegal. In fact, in paragraph 3 of the affidavit, the respondents admit that large Flex Boards and Bill Boards are often erected without the permission of the Local Self Government Institutions and this causes inconvenience to the public and impedes the free flow of traffic. The respondents, thereafter, say that the control with respect to placing of Advertisement Boards is within the respective Local Self Government Institutions, namely the Corporation, the Municipality or the Panchayat concerned and that it is their duty to 'demolish or remove the unauthorised advertisement boards or arches erected'. The affidavit further analyses the various sections of the Kerala Panchayat Raj Act and the Kerala Municipality Act and states affirmatively that any person or entity can erect a Board, be that a Flex Board/Bill Board/Advertisement Board only with the express permission of the Corporation, Municipality or the Panchayat concerned, but confesses that there are no specific Rules regulating such activities. The Principal Secretary has highlighted the requirement to ban or restrict the use of Flex Boards in certain cases and he has said that the Plastic Waste Management Rules, 2016 has taken into account all these factors also. 4. As regards the income from these Boards, eventhough the affidavit does not state specifically, it is tangentially averred that the rates of tax, including under the GST Act, for advertisement would also require to be attracted in the case of such boards. 5. 4. As regards the income from these Boards, eventhough the affidavit does not state specifically, it is tangentially averred that the rates of tax, including under the GST Act, for advertisement would also require to be attracted in the case of such boards. 5. On a consideration of the averments in the affidavit, I am drav to understand that the official respondents also have taken cognizance : the deleterious consequences of individuals and entities placing and erecting large Flex Boards/Bill Boards/Advertisement Boards without any control a-without any permission being obtained from any authority. 6. Presently, as is also virtually admitted, individuals and entities place sue Boards where they want, at any place they want, in any manner they want and the do not turn back after several weeks and often months, leading to the Boards to decs and left dangling wherever it is erected. Certain areas of the Cities, Municipalitise: and Panchayats are so full of these Boards, kept one over the other without an one being there to remove them, that it now resembles a Byzantine Maze. 7. This is distressing because at a time when Governments in India, be the the State Government or the Central Government, are going all out to promote sanitation and cleanliness under the 'Swatch Bharat Mission' (in the case of Central Government) and 'Clean Kerala Mission' (in the case of State Government), a felt self-interested and self-centered individuals or entities choose to violate the civic sense of the large majority of the citizens by placing such Boards, either to promote themselves or to promote content of their selfish choice. 8. The most visible contributors to this nuisance are boards which promote movies, certain organisations, self-centered individuals and even businesses. 9. It is baffling that when one has to pay a fixed tariff to the Local Self Government Institutions to erect an authorised Advertisement Board, these persons are allowed to do so without having to remit a single penny to the coffers of the Local Self Government Institution and to have their boards displayed wherever they want, for any amount of time they desire. 10. 10. Therefore, even going by the averments in the counter affidavit filed b) the Additional chief Secretary, time has now come to ensure that Flex Boards/Bill Boards/Advertisement Boards of any nature, kind, size or character be not allowed within any City, Municipality or Panchayat limits without the express permission of such institutions. 11. Lest I be mistaken, I am not saying that such Boards are requited to be banned or prohibited but that they require to be regulated. 12. Unauthorised Boards which are sought to be erected without the permission of the concerned Local Self Government Institutions (Corporations Municipalities or Panchayats, as the case may be) cannot be permitted an: every such board will be required to be removed by the Local Self Government Institutions, if possible, with a penalty imposed on the offenders. 13.1 have no doubt that the majority, if not, every citizen of this great Nation show exemplary civic sense while dealing with public property. If a proper direction-is shown to them by the Government, as to the manner in which the Government proposes to take care of such installations, I am sure that they would fall place and adhere to it without any question. 14. It is now for the Government to rise and to make sure that the Local Self Government Institutions, namely Corporations, Municipalities or Panchayats, as the case may be, are sufficiently instructed and empowered to remove these unauthorised boards on a war-footing and thereafter not to allow such to be erected, by even imposing penal/compensation measures against persons who still choose to offend. 15. These issues gain a lot of importance in the present times because, after the unfortunate flood and deluge that we have encountered, land-fills are now strained for space, there is hardly any space to dispose of the articles from large number of individual households which have been lost and destroyed in floods and it would be completely impermissible to increase this burden merely because a few individuals or entities choose to promote themselves or their cause by such illegal action, without any care or concern for the health and welfare of their brethren. This cannot be permitted and I am certainly of the view that the measures shown by the Principal Secretary in the affidavit dated 17/09/2018 obtains some hope in this regard. 16. This cannot be permitted and I am certainly of the view that the measures shown by the Principal Secretary in the affidavit dated 17/09/2018 obtains some hope in this regard. 16. Since I am of the view that pertinent issues in this regard will have to be projected from the perspective of general public, it will be apposite that I require the assistance of an Amicus Curiae and I, therefore, requested Sri. Harish Vasudevan, learned counsel of this Court to assist me in such capacity. 17. I order that this case be listed on 03/10/2018 which time the Amicus Curiae can place all relevant and germane inputs for the consideration of this Court. The State Attorney will also place steps taken by the Government in this regard and inform this Court, by way of a statement or affidavit, the action already taken or proposed, to fructify the averments made in the affidavit. 18. In the meanwhile and being guided solely by the affidavit of the Government, I direct the Principal Secretary, Local Self Government Institutions, to issue necessary orders/directions/circulars, as he may find fit, to all the Local Self Government Institutions in the State enjoining them to ensure that all illegally erected Boards are removed on a war-footing and that such Boards are not permitted to occupy public place, including public installations in the future. 19. I make it clear that I am not calling for a ban of the Flex Boards/Bill Boards/Advertisement Boards, but only that those Boards which are erected or sought to be erected without the permission of the concerned Local Self Government Institutions be removed and be stopped. 20. It is also a desideratum that when the Local Self Government Institutions permit such Boards to be erected in future, it be ensured that the Boards are erected in specified places/spaces suitable for such and that requisite conditions are imposed for the disposal of the boards in a scientific manner after its purpose is served. The responsibility of removing such Boards shall be imposed upon the persons/entities erecting them and suitable undertakings/bonds shall be taken from them for this purpose. The responsibility of removing such Boards shall be imposed upon the persons/entities erecting them and suitable undertakings/bonds shall be taken from them for this purpose. While choosing the places where the Local Self Government Institutions can permit such installations, care shall also be taken that no such Board shall be erected in between the road and the pedestrian an-or in any manner protruding into the road margins or into the common area use for the pedestrians or the motorists. 21. Needless to say if any board is installed in violation of this, the Principal Secretary, Local Self Government Institutions shall also specify the manner which such violations will have to be addressed and action taken in terms of Is 22. I further direct the Chief Secretary of Government of Kerala to mom: that these directions are complied with in its letter and spirit, to obtain complete and implicit compliance of such directions. The Registry is directed to give a copy of this order along with a copy the Judge's Papers to the learned Amicus Curiae.