THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN

Writ Petition No.11187 of 2010

24-06-2010

M/s. STAN POWER

The Greater Hyderabad Municipal Corporation Rep., by its Commissioner, Lower Tank Bund, Hyderabad and others.

Counsel for the Petitioners: Sri K.V. Bhanu Prasad

Counsel for the Respondents: Smt. Kalpana Ekbote, Standing Counsel for GHMC

:ORDER:

The relief sought for in this writ petition is to declare the action of the 1st and 2nd respondents in seeking to remove the traffic signals, and the hoardings erected thereon, though the permission granted in proceedings dated 25.03.2008 was in force, as arbitrary, illegal and in violation of principles of natural justice. The petitioner seeks a consequential direction to respondent nos.1 and 2 not to remove the traffic signals and hoardings.

2. Facts, in brief, are that the petitioner is a registered partnership firm undertaking works of arranging cameras and traffic signals at important traffic junctions. It is their case that the Intelligent Traffic Management System, which they have set up, is widely used and accepted abroad; the 3rd respondent, with a view to protect the cantonment area, had planned for a complete systematic traffic control system in the entire cantonment area; when the petitioner presented their intelligent traffic management system the 3rd respondent was satisfied therewith and, after a proper tender process, had entered into an agreement with them on 11.09.2008; as a result they were permitted to erect traffic signals in the entire cantonment area on a build operate and transfer (B.O.T) basis; and were permitted to erect advertisement boards over the traffic signals to augment their resources for maintenance of such traffic signals.

3. The 3rd respondent, vide letter dated 07.01.2008, requested the 1st respondent to allow the petitioner to maintain the junctions, at the entry points of Secunderabad cantonment area, with a view to establish an intelligent traffic control system for the Secunderabad cantonment. The 3rd respondent also requested the 1st respondent to permit the petitioner to install, maintain and place advertisements wherever technically feasible as per the agreement entered into with them. The 1st respondent, vide letter dated 25.03.2008, while according permission to the 3rd respondent to take up traffic signals at four junctions, informed them that the restoration work should be taken up by the 3rd respondent under the supervision of the concerned Executive Engineer duly obtaining necessary permission from the Roads & Buildings department of the State Government, and the National Highways Authority wherever the traffic signals were being commissioned, and that the matter should also be informed to the Additional Commissioner of Police (Traffic), Hyderabad/Cyberabad before the traffic signal works were taken up. The 3rd respondent was further informed that advertisement tax may be paid to the Greater Hyderabad Municipal Corporation (GHMC) wherever the traffic signals fell within the GHMC area, and the traffic signals existing in the GHMC limits/area, requiring relocation, may be done by the 3rd respondent Cantonment Board at its own cost. The Petitioner claims to have addressed letter dated 04.04.2009 informing respondent No.2 of the locations, and to have requested that they be informed of the tax due on the sizes and locations. It is their case that the 1st respondent, responding to the request of the 3rd respondent, had permitted them to erect traffic signals, and hoardings over and above those traffic signals.

4. The 2nd respondent, vide letter dated 17.11.2009, informed the 3rd respondent that it was agreed to implement ITS, taken up by the Secunderabad Cantonment Board, on certain GHMC road stretches, and that the tendered agency should replace the existing signals and relocate them at the locations mentioned in the said letter. The 3rd respondent was further informed that relocation of other signals would be informed as and when the existing signals were removed by the agency. By their letter dated 04.02.2010 the 3rd respondent informed the 2nd respondent that the Secunderabad Cantonment Board had entrusted the work of installation of traffic signals on BOT basis in the Cantonment area; vide proceedings dated 25.03.2008 the GHMC had accorded permission to take up traffic signal works in the areas mentioned in the said letter; and the Secunderabad Cantonment Board had neither given permission nor had they entered into any agreement with the petitioner regarding the advertisement hoardings erected in the GHMC area.

5. The 2nd respondent issued notice dated 17.03.2010 informing the petitioner that, on verification with the 3rd respondent, it was found that the 3rd respondent had neither given permission, nor had they entered into an agreement with the petitioner for the works on GHMC roads; and they had only entered into an agreement for the Intelligent Traffic System works being implemented within the Secunderabad Cantonment area. While informing that the works executed by them within GHMC limits were illegal, as they did not have permission of either the Secunderabad Cantonment Board or the GHMC, the 2nd respondent requested the petitioner to stop all the works on the said roads with immediate effect; remove the advertisement gantries installed at various places as they were obstructing visibility of the approaching motorists and distracting them, causing accidents; relocate all the removed signals immediately at the locations informed by the GHMC; and to submit a detailed report to the GHMC on the traffic signal works already completed on these roads for inspection by the GHMC authorities for taking further action in this regard.

6. The petitioner would submit that the impugned notice dated 17.03.2010 made no reference to the permission accorded by the 1st respondent in his proceedings dated 25.03.2008 (a copy of which was marked to the 2nd respondent) and, since the petitioner had the necessary permission for erection of traffic signals and advertisement hoardings, the notice issued by the 2nd respondent was illegal. The petitioner would allege that the 2nd respondent was yielding to the pressure of big advertising agencies in the city; and, as they had filed W.P. No.10892 of 2010 and this Court had granted interim directions in W.P.M.P. No.13919 of 2010 dated 03.05.2010, respondent nos.1 and 2 were seeking to take action to have the installations at the entry points of the Cantonment Board removed erroneously contending that they had been erected without permission. The petitioner would further contend that the 3rd respondent could not have entered into any agreement with them for erecting advertisement hoardings over traffic signals falling in the GHMC area and, since the permission granted by the 1st respondent in his proceedings dated 25.03.2008 was still in force, their action in issuing the notice dated 17.03.2010 was illegal.

7. In his counter affidavit the 2nd respondent would submit that, based on the letter of the 3rd respondent dated 07.01.2008, the 1st respondent had given its formal approval vide proceedings dated 25.03.2008; the proceeding dated 25.3.2008 was a communication between two government organizations regarding some proposal; no authorization letter was issued either by the GHMC or the Secunderabad Cantonment Board to the petitioner to take up the works; the petitioner, without authorization either from the GHMC or the Secunderabad Cantonment Board, had started works on GHMC property; and the letter of the 3rd respondent dated 04.02.2010 disclosed that they had neither given permission nor had they entered into an agreement for erection of advertisement hoardings by the petitioner on GHMC roads. While the 2nd respondent would refer to some advertisement gantries, which the petitioner had put up, it is wholly unnecessary for this Court to make any reference thereto as these gantries are not the subject matter of this Writ Petition. Suffice to note that the 2nd respondent would assert that the petitioner had not come to the Court with clean hands; they had no permission either from the GHMC or the Cantonment Board for installation of traffic signals and advertisement gantries on roads, belonging to the GHMC, surrounding the Secunderabad Cantonment Board.

8. In their reply affidavit the petitioner would submit that the letter addressed to the 3rd respondent dated 25.03.2008 was the permission accorded to them; pursuant thereto they had installed traffic signals at the entry points suggested by the 3rd respondent; even if the traffic signals erected at the entry points were unauthorized the 2nd respondent was bound to put the petitioner on notice; having asked the petitioner to pay advertisement tax to the GHMC it was not open to the 2nd respondent to contend that no permission was granted to the petitioner; established advertising agencies were behind the entire episode and respondent nos.1 and 2 were acting at their behest and that of the Minister; the letter addressed by the Minister to the 1st respondent spoke volumes of how interested persons were working against the petitioner; the letter dated 17.11.2009, addressed by the 2nd respondent to the 3rd respondent, was proof that authorization had been given the petitioner; there was abundant material to show that the petitioner had a valid authorization to erect traffic poles and advertisement boards; after they had erected the traffic signals no complaint had been received from the traffic police; and there was no justification in respondent nos. 1 and 2 directing the petitioner to remove the traffic signals and the advertisement hoardings thereon.

9. Sri K.V. Bhanuprasad, learned counsel for the petitioner, would contend that by proceedings dated 25.03.2008 permission was accorded to the petitioner; the very fact that the GHMC authorities had not objected to the installation of traffic signals, and erection of advertisement hoardings, till the impugned proceedings were issued on 17.03.2010 was itself proof that they were also satisfied that permission had been accorded to the petitioner; the proceedings dated 17.11.2009 reflected the 2nd respondent's awareness of the petitioner having been permitted to install the traffic signals; having permitted the petitioner to install traffic signals, and erect hoardings, it was not open to the 2nd respondent to now turn around and contend that the traffic signals and the hoardings should be removed on the ground that there was no permission; neither was any notice issued calling upon the petitioner to remove the traffic signals nor were they given an opportunity of being heard; and, as the impugned action of the 2nd respondent was at the behest of big advertising agencies and the Minister of Municipal Administration, the proceedings dated 17.3.2010 was vitiated by malice.

10. On the other hand Smt. Kalpana Ekbote, Learned Standing Counsel for the GHMC, would contend that the correspondence between respondent nos.1 and 2 on the one hand, and the 3rd respondent on the other, was merely an internal communication; neither was a letter of authorization given to the petitioner permitting them to execute the works in question nor was an agreement entered into in this regard; the petitioner having installed these traffic signals, and the advertising hoardings, on his own accord without written authorization from the GHMC, or an agreement having been entered into with them, could not now turned around and contend that, despite their illegal act, the traffic signals installed and the hoardings erected by them should not be removed; the petitioner was earning huge revenue from the advertisement hoardings; not a single paise had been paid to the GHMC for the hoardings erected on roads belonging to it; the Corporation was being denied revenue, legitimately due to it, on erection of these advertisement hoardings on GHMC roads; and the petitioner could not take advantage of his own wrong, in installing the traffic signals and erecting hoardings, to contend that he would suffer irreparable loss if they were removed.

11. Section 373 of the Greater Hyderabad Municipal Corporation Act, 1955 (hereinafter called the 'GHMC Act') relates to vesting of public streets in the Corporation and, thereunder, all streets within the city being, or which at any time become, public streets and the pavements, stones and other material thereof, shall vest in the Corporation and be under the control of the Commissioner.

12. Section 421(1) of the Act relates to regulation and control of advertisement and reads as under:

(1) No person shall without the written permission of the Commissioner, erect, exhibit, fix or retain any advertisement whether now existing or not, upon any land, building, wall, hoarding or structure:

Provided always that such permission shall not be necessary in respect of any advertisement which is not an illuminated advertisement nor a sky-sign and which-

(a) is exhibited within the window of any building;

(b) relates to the trade or business carried on within the land or building upon which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein, or to any sale, entertainment or meeting to be held upon or in the same, or to the trade or business carried on by the owner of any vehicle upon which such advertisement is exhibited;

(c) relates to the business of any railway administration; (d) is exhibited within any railway station or upon any wall or other property of a railway administration except any portion of the surface of such wall or property fronting any street.

13. Section 421(1) prohibits erection of advertisement hoardings upon land within the limits of the GHMC without the written permission of the Commissioner. The advertisement hoardings erected by the petitioner over the traffic signals, located on public roads vested in the GHMC, do not fall under any of the exceptions in clauses (a) to (d) of Section 421(1) of the GHMC Act. The petitioner could, therefore, have erected such advertisement hoardings only after having obtained the written permission of the Commissioner, GHMC.

14. It is evident from the material on record that the petitioner seeks to rely on the correspondence, between the Commissioner, GHMC and the Secunderabad Cantonment Board, to contend that permission had been accorded to them by the GHMC for installation of traffic signals and erection of advertisement hoardings thereupon. Correspondence between two statutory bodies, without even a copy thereof being marked to the petitioner, would not satisfy the requirements of Section 421(1) of obtaining prior written permission of the Commissioner, GHMC. No written permission, for erection or exhibition of any advertisement upon any land within the limits of the GHMC, has been communicated to the petitioner. Correspondence between one statutory authority and another can hardly be treated as final orders as long as they are not communicated to the person who would be benefited or affected thereby. (Government of A.P. v. Nizam VIII of Hyderabad1). Internal communications from one officer to another and their contents cannot override the express provisions of the Act. (Himachal Pradesh State Electricity Board v. Somdutt Uppal2). It is of the essence that the order has to be communicated to the person who would be affected by that order before the authority and that person can be bound by that order. Till its communication the order cannot be regarded as anything more than provisional in character. (Bachhittar Singh v. State of Punjab3).

15. Section 124(a) of the GHMC Act, 1955 requires every contract to be made, on behalf of the Corporation, by the Commissioner. Admittedly no written agreement, specifying the terms and conditions subject to which they could install traffic signals and erect hoardings, has been entered into between the Corporation and the petitioner. The agreement entered into between the petitioner and the Secunderabad Cantonment board is for erection of traffic signals and advertisement hoardings within the territorial limits of the Secunderabad Cantonment Board and not beyond. Neither is the Cantonment Board entitled to enter into an agreement with the petitioners for installation of traffic signals or erection of advertisement hoardings within the limits of the GHMC nor has any such agreement, in fact, been entered into.

16. The allegations of malice are only to be noted to be rejected. None of those, against whom malice is alleged, have been arrayed as respondents eo- nominee. The person against whom malafides is imputed should be impleaded eo- nominee as a party respondent to the proceedings and given an opportunity to meet those allegations. (State of Bihar v. P.P. Sharma4). In the absence of clear allegations and impleading such persons eo nomine so as to enable them to answer the charge against them, the charge of malafides cannot be sustained. (State of Punjab v. Chaman Lal Goyal5).

17. While Sri K.V. Bhanuprasad, Learned Counsel for the petitioner, would contend that no advertisement fee/tax was paid as no such amount was demanded by the GHMC, the fact remains that the petitioner has erected advertisement hoardings, and collected huge sums from advertisers, which has resulted in loss of revenue to the GHMC. Merely because the correspondence indicates that they were asked by the 2nd respondent to relocate the traffic signals would not confer any right on the petitioner to claim that they were authorised to install traffic signals, and erect advertisement hoardings, on public roads belonging to the GHMC as Section 421(1) requires the prior written permission not of the Additional Commissioner but of the Commissioner, GHMC. Under Section 117(3) of the GHMC Act the entire executive power, for the purpose of carrying out of the provisions of the GHMC Act and of any other law for the time being in force, vests in the Commissioner. A person appointed by the Government, under Section 104 as the Commissioner, is the "Commissioner" under Section 2(7) of the GHMC Act. The Additional Commissioner is not the Commissioner appointed under Section 104 of the GHMC Act, and any stray comments in his letter cannot be construed as prior written permission of the Commissioner, GHMC or a written agreement having been entered into between the petitioner and the Corporation.

18. With regards the petitioner's contention that they were neither put on notice nor given an opportunity of being heard before the impugned proceedings dated 17.03.2010 was issued, it is well to remember that principles of natural justice are not embodied rules and cannot be put in a straight jacket. It depends on the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice one must establish that prejudice has been caused by non-observance thereof. (Syndicate Bank v. Venkatesh Gururao Kurati6; State Bank of Patiala vs. S. K. Sharma7; Om Prakash Mann v. Director of Education (Basic)8; Ashok Kumar Sonkar v. Union of India9, A.P. Social Welfare Residential Educational Institutions v. Sri Pindiga Sridhar10, Board of Directors, H.P. Transport Corpn. v. K.C. Rahi11). In addition to breach of natural justice, prejudice must also be proved. (K.L. Tripathi v. State Bank of India12; S.K. Sharma7; Rajendra Singh v. State of M.P.13; Aligarh Muslim University v. Mansoor Ali Khan14).

19. It is not possible to lay down rigid rules as to when principles of natural justice are to apply, nor as to their scope and extent. There must have been some real prejudice to the complainant and there is no such thing as a mere technical infringement of natural justice. Its application depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute, (Union of India v. P.K. Roy15; Channabasappa Basappa Happali v. State of Mysor16), on the facts and circumstances of the case, the nature of the inquiry, the subject-matter to be dealt with, and so forth17.

20. Where, on the admitted and indisputable facts, only one view is possible no prejudice can be said to have been caused though notice has not been issued. (S.L.Kapoor v. Jagmohan18, Aligarh Muslim University14, Dr.Gurjeewan Garewal v. Dr. Sumitra Dash19). Where facts are not in dispute, an inquiry would be an empty formality. (Anil Bajaj (Dr) v. Postgraduate Institute of Medical Education & Research20). Principles of natural justice are not incantations to be invoked nor rites to be performed on all occasions. Where no different consequence would have followed, principles of natural justice cannot be stretched to illogical and exasperating limits as it would then amount to an "unnatural expansion of natural justice" which, in itself, is antithetical to justice. (Managing Director, ECIL, Hyderabad v. B. Karunakar21).

21. Whether any particular principle of natural justice would be applicable to a particular situation or whether there has been any infraction of the application of that principle has to be judged in the light of facts and circumstances of each particular case. The basic requirement is that there must be fair play in action. (K.L.Tripathi12). All that the Courts have to see is whether the non-observance of any of these principles in a given case is likely to have resulted in deflecting the course of justice. (State of U.P. Vs. Om Prakash Gupta22). Violation of principles of natural justice may not, by itself, necessitate interference under Article 226 of the Constitution of India in all cases as interference would only be justified where manifest injustice would otherwise ensue or where larger public interest would so require.

22. All the objections which the petitioner could have put forth before the Commissioner, GHMC have been raised in the present writ petition and, as these contentions have been examined, the petitioner cannot be said to have suffered prejudice on that score.

23. The petitioner cannot take advantage on his own wrong, in installing traffic signals and erecting advertisement hoardings without prior written permission of the Commissioner, GHMC or a written agreement having been entered into with the Corporation, to contend that the traffic signals and advertisement hoardings should not be removed except after putting them on notice and giving them an opportunity of being heard. No prejudice has been caused to the petitioner as a result of respondent nos.1 and 2 not complying with principles of natural justice. Even before this Court, the petitioner has not shown that he had obtained prior written permission of the Commissioner under Section 421(1), or that he had entered into a written agreement with the Corporation under Section 124 of the GHMC Act. The challenge to the impugned proceedings, on the ground of violation of principles of natural justice, must fail.

24. In the light of the statutory prescription in Section 124 and Section 421(1) of the G.H.M.C. Act, failure on the part of the petitioner to have either entered into a written agreement with the G.H.M.C, or to have obtain prior permission of the Commissioner, G.H.M.C for erection of advertisement hoardings would require this Court refraining from interfering with the impugned proceedings dated 17.03.2010. Suffice to hold that, in case the petitioner makes a written request to the 1st respondent within one week from today seeking reasonable time, (say a week or two), to remove the advertisement hoardings and the traffic signals installed by them, the first respondent shall consider the said request in accordance with law. It is made clear that in case the petitioner does not make any such request, or in case he fails to remove the advertisement hoardings and the traffic signals within the time, if any, granted by the first respondent, it is open to respondent nos.1 and 2 to proceed further in accordance with law to have the traffic signals dismantled and the advertisement hoardings removed.

25. While the petitioner may not be entitled for the relief sought for, the officials of the GHMC have not acquitted themselves well either. It is disheartening to note that officials of the GHMC, who are required to discharge their statutory functions/duties, as prescribed under the GHMC Act and the Rules made thereunder, have turned a blind eye, and have failed to prevent the petitioner from installing traffic signals and erecting advertisement hoardings without complying with the procedural requirements of the GHMC Act of obtaining written permission of the Commissioner, GHMC under Section 421(1), or entering into an agreement under Section 124 of the GHMC Act. It is, indeed a matter of great concern that, despite absence of a written agreement and prior written permission of the Commissioner, GHMC, the petitioner was not prevented from installing traffic signals, and erecting hoardings, on roads belonging to the GHMC. How the officials concerned remained silent when the petitioner erected the advertisement hoardings on lands vested in the GHMC and had, in fact, encouraged the petitioner to do so by their failure to act with promptitude remains a mystery. While the revenue generated on these advertisement hoardings has benefited the petitioner, the GHMC has suffered a huge loss on that score. It is a sad reflection of the efficiency and conduct of the officials, at various rungs of the GHMC that the petitioner has, all these days, not been prevented from brazenly erecting advertisement hoardings, pocketing the revenues generated therefrom, and thereby depriving the GHMC of advertisement revenues legitimately due to it. Respondent nos.1 and 2 would do well to ensure that such incidents do not recur.

26. Subject to the above observations, the Writ Petition fails and is, accordingly, dismissed. However, in the circumstances, without costs.

?1 Judgment in Writ Appeal No.1220 of 1991 and Writ Petition Nos.4513/91 and 14942/91 dated: 29.08.1992

2 1992(3) SCALE 499

3 1962 Supp (3) SCR 713

4 AIR 1991 SC 1260

5 (1995) 2 SCC 570

6 AIR 2006 SC 3542

7 AIR 1996 SC 1669

8 (2006) 7 SCC 558

9 (2007) 4 SCC 54

10 (2007) 13 SCC 352

11 (2008) 11 SCC 502

12 (1984(1 SCC 43

13 1996(5) SCC 460

14 (2000) 7 SCC 529

15 AIR 1968 SC 850

16 AIR 1972 SC 32

17 Wade's Administrative Law (5th Edn., pp. 472-75

18 (1980) 4 SCC 379

19 (2004)5 SCC 263

20 (2002)2 SCC 240

21 (1993) 4 SCC 727