The Madras High Court on Thursday struck down the ban on placing hoardings on land not belonging to the Municipal Corporations by observing that it "does not satisfy the test of rationality or practicality".
A division bench comprising Chief Justice A P Sahi and Justice Subramonium Prasad had reserved judgement on a batch of petitions filed by Chennai Hoardings Association and others on January 3.
The ban was imposed through the Tamil Nadu Municipal Laws (Fifth Amendment) Act 2018, which changed the definition of "hoardings" in the laws governing several city corporations such as Chennai, Madurai, Coimbatore etc. As per the amendment, "hoardings" covered only those things erected, wholly or in part upon or over any land, building, wall or structure, belonging to the Corporation.
The amendment was given effect to by the Government from February 1, 2019 as per a notification published on January 31, 2019. This resulted in an effective ban on placing hoardings on land not belonging to the Corporation. Even lands belonging to the Railways or Central Government were not spared.
This was challenged by a group of petitioners including makers of hoardings, advertisers, land owners etc.
The Court held that the impugned notifications resulted in the infringement of right to freedom of trade and business of private land owners under Article 19(1)(g) of the Constitution. It also held the notification to be violative of Article 14 on the ground of arbitrariness. However, the Court did not agree that the notification resulted in the infringement of right to freedom of speech under Article 19(1)(a) of the Constitution.
"This is, therefore, clearly a case where the impugned phrase "belonging to the Corporation" is manifestly arbitrary and violative of Article 14 of the Constitution of India and also impinges upon the fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. We, however, do not agree with the argument of the learned counsel for the petitioners that there is a violation of Article 19(1)(a) of the Constitution, in as much as the law which has been brought out and which is under challenge is on setting up of hoardings and not in relation to banning of advertisements", the bench observed.
The Court observed that there is no rationality in totally excluding private land and that nothing rational has been demonstrated to establish that the only practical way to control hoardings is by locating them exclusively on Corporation land.
"The object in the present case is to regulate the setting up of hoardings and not to eliminate them. To the contrary, the impugned notification amounts to an act of hoarding of advertisements only on the land of the Corporation. This is neither the object which is sought to be achieved nor does it fulfill the said aim. The restriction imposed has reached a stage of prohibiting the utilization of any other land and in such a situation, special care has to be taken by the Court to see that the test of reasonableness is satisfied. The direct, inevitable and the real impact of the impugned notification is that the fundamental rights of private land owners or even those who are seeking justifiably to put up hoardings on such land are being prohibited from doing so which violates Article 19(1)(g) of the Constitution of India", stated the judgment authored by CJ A P Sahi.
"In effect, the legislation has culminated in placing restrictions not on hoardings, but on the utilization of private land, Government land or otherwise, instead of bringing about any social control. No substantive object can be achieved by placing such a restriction and no material has been placed either before us to establish the same", added the Court.
The Court however clarified that the striking down of the said provision will not automatically entitle any private land owner or otherwise to claim a revival of his application for grant of licence, until either the Corporation frames appropriate Bye-laws.
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