D.MURUGESAN, J.
The petitioner in W.P.(MD) No.10739 of 2008, namely, M/s Bill Board Advertising Private Limited, is a private limited company engaged in the business of advertising. It made an application on 11.6.2007 to the Commissioner, Tiruchirappalli City Corporation for erecting "Traffic Sign Display Boards" in 28 locations within the jurisdiction of Tiruchirappalli City Corporation proposing to have the display for a period of five years. The traffic display boards measuring 10 ft. x 5 ft. are meant to be erected on a single pole, the board being attached to one side of the pole where the display area would be 20 ft. above the road level. The Commissioner, Tiruchirappalli Corporation granted permission on 21.6.2007 to be valid for a period of five years i.e., upto 20.6.2012. For such erection of display boards, the Assistant Commissioner of Police (Crime & Traffic), Tiruchirappalli also granted permission. Pursuant to the permissions, the petitioner erected the traffic sign display boards in all the 28 locations. According to the petitioner, it has spent a very huge sum of Rs.2,00,000/- for fabrication and erection of a single pole alone. Pursuant to the permissions, the petitioner has also obtained electricity connection and has also entered into contracts with the clients for advertising and displaying the boards.
2. While that being so, the District Collector, Tiruchirappalli, claiming himself to be the licensing authority even for display boards and that no licence was obtained from him, made attempts to remove the traffic sign display boards erected by the petitioner. Hence the petitioner filed W.P.(MD) No.10396 of 2008 seeking for an order of injunction restraining the District Collector from interfering with the display boards erected by the petitioner. This Court disposed of the writ petition by observing that it was filed only on apprehension and therefore the petitioner could approach the District Collector. That order came to be passed on 18.11.2008, but, on the very same day, the District Collector had removed the entire unipole structure erected in Bishop Road, Thillai Nagar, Tiruchirappalli. Therefore, the petitioner is constrained to once again approach this Court by way of the present writ petition seeking for a direction forbearing the respondents from disturbing or removing the traffic sign display cum advertisement boards erected in the 28 locations.
3. Heard Mr.D.Shivakumaran, learned counsel appearing for the petitioner in W.P.(MD) No.10739 of 2008 and Mr.T.Lajapathi Roy, learned counsel appearing for the petitioner in W.P.(MD) No.4718 of 2009, Mr.R.Janakiramulu, learned Special Government Pleader appearing for the respondents and Mr.Pala Ramasamy, learned counsel appearing for the Tiruchirappalli Corporation.
4. Mr.D.Shivakumaran, learned counsel for the petitioner has submitted that as per Section 236 of the Coimbatore City Municipal Corporation Act, which is also applicable to Tiruchirappalli City Municipal Corporation (hereinafter referred to as "the Act") , the public streets and their appurtenances in Corporation shall vest in the Corporation. In terms of sub-section (2) of Section 259 of the Act, the Commissioner may grant permission with the concurrence of the Superintendent of Police or any officer authorised by him in this behalf to put up temporary construction in any street or in any public place, the control of which is vested in the Corporation. Therefore, the learned counsel would submit that the power to grant permission to erect the display boards shall vest only with the Commissioner of Tiruchirappalli City Municipal Corporation. In this regard, he would also rely upon Sections 158 and 159 of the Act, which contemplate that no advertisement shall be erected, exhibited, fixed or retained upon over any land, building, wall, hoarding or structure within the city without the permission of the Commissioner. In terms of the above provision, the Commissioner is empowered to grant permission. Accordingly, he has granted permission to the petitioner to erect the traffic sign display cum advertisement boards and the District Collector has no power to remove those traffic sign display boards on the ground that they are hoardings and they are unauthorised.
5. Before we consider the issues raised in these petitions, we may point out that the provisions of the Coimbatore City Municipal Corporation Act are made applicable to the Tiruchirappalli City Municipal Corporation in terms of the provisions of Section 8(4) of the Tiruchirappalli City Municipal Corporation Act. As regards the arguments on Sections 236 and 259 of the Act, we may point out that in terms of Section 236, all public streets shall vest in the Corporation. That provision is intended mainly to confer the responsibility on the Corporation to maintain or repair and to make improvements on such public streets. In exercise of powers conferred under Section 238, the Commissioner is empowered to sanction layout and make new public streets etc. He has also the power to regulate the access to land or building abutting streets. In terms of Section 259 of the Act, he is empowered to allow certain projections and erections on public streets by issue of licence. The power under sub-section (2) of Section 259 relates only to the grant of licence for temporary construction. This provision cannot be pressed into service as regard to the erection of hoardings and putting up display boards. Hence the submission of the learned counsel for the petitioner that the Commissioner of Municipal Corporation is alone empowered to issue licence for erecting hoardings cannot be accepted and accordingly it is rejected.
6. The controversy as to the respective authority empowered to grant permission to put up display boards and the licence to put up hoardings has to be considered with reference to Sections 158 and 159 of the Act and Chapter XIII-A, which was introduced by Tamil Nadu Act 51 of 1998. Before we consider the provisions of Sections 158, 159 and other related provisions, we are inclined to consider the provisions contained in Chapter XIII-A relating to hoardings.
7. Even before the insertion of the above Chapter, the power to grant permission to erect the display boards on hoardings vest only with the Commissioner of Tiruchirappalli City Municipal Corporation. That power was granted keeping in mind the power of the council to fix and levy tax on such advertisements. Keeping in mind the following statement of objects and reasons, the Government introduced Chapter XIII-A in the Act:
"As per the provisions of the Acts governing the Urban Local Bodies in the State, the Commissioner or the executive authority, as the case may be, of the Urban Local Body concerned is empowered to grant licence for erecting hoardings in the local areas of the Urban Local Bodies and the Council of the Urban Local Body concerned is empowered to determine the rates of tax on advertisements on such hoardings, having regard to the location, size, reach and nature of the advertisement and subject to the maxima and minima fixed by the Government in this behalf and such rate of tax in any case shall not exceed rupees five hundred per square metre per half year. Appeal against the order of the said licensing authority shall lie to the Standing Committee or as the case may be, the Taxation Appeal Committee of the Urban Local Body concerned. In order to improve the monitoring and regulation of all hoardings and to ensure effective implementation of the licensing of hoarding, the Government have decided to empower the District Collector to grant licence for hoardings and to make the Government as the appellate authority. The Government have also decided to empower the Government to prescribe by rules the advertisement tax on hoardings subject to the maxima and minima specified in the Act concerned and credit the licence fees and seventy five percent of the advertisement tax on hoardings to the Government account and the balance of twenty-five percent on such advertisement tax to the account of the Urban Local Body concerned. It has been decided to amend the relevant Acts for the purpose."
8. In the year 1998, by Tamil Nadu Act 51 of 1998, the following provisions under Chapter XIII-A were introduced in the Coimbatore City Municipal Corporation Act and the said Chapter reads as under:-
"410-A. Definition.--In this Chapter, "hoarding" means any screen of boards at any place whether public or private used or intended to be used for exhibiting advertisement including the framework or other support, erected, wholly or in part upon or over any land, building, wall or structure, visible to public wholly or partly. (emphasis supplied) 410-B. Prohibition for erection of hoardings.--(1) No hoarding shall be erected at any place, on or after the 23rd day of July 1998 (hereafter in this section referred to as the said date), by any person without obtaining a licence from the Commissioner; (emphasis supplied) (2) Every person who has erected any hoarding without obtaining a licence and which is in existence immediately before the said date shall apply for a licence in accordance with the provisions of this Chapter within thirty days from the said date.
410-C. Application for licence.--(1) Every application for licence under this Chapter shall be made to the Commissioner in such form, containing such particulars and with such fee, as may be prescribed.
(2) The Commissioner may, after local inspection, grant a licence with such conditions or directions, subject to such rules as may be prescribed. (3) The Commissioner may refuse to grant licence for reasons to be recorded in writing;
Provided that a licence shall not be refused unless the applicant has been given an opportunity of making his representation.
(4) Every licence granted under sub-section (2) shall be valid for such period as may be prescribed and may be renewed from time to time.
410-D. Power to cancel or suspend licence.--(1) Without prejudice to any other penalty to which the licensee may be liable under this Chapter, the Commissioner may, at any time, by order in writing, cancel or suspend any licence granted or renewed under section 410-C, if--
(a) such licence has been obtained by fraud, mis-representation or suppression of material particulars; or
(b) the licensee has contravened any of the provisions of this Chapter or the rules made thereunder or any of the conditions subject to which the licence was granted.
(2) Before cancelling or suspending a licence under sub-section (1), the Commissioner shall give the licensee, an opportunity of making his representation.
410-E. Removal of unauthorised hoarding.--Any hoarding erected without a licence shall be confiscated and removed by the Commissioner, without giving any notice.
410-F. Removal of hoarding in certain other cases.--(1) Where any hoarding is retained after the expiry of the licence or erected contrary to the conditions of licence, the Commissioner may, by notice in writing, require the licensee to remove such hoarding within such time as may be prescribed. (2) Where the hoarding is not removed within the time specified in the notice the Commissioner shall, without further notice, remove such hoarding and recover the expenditure for such removal as an arrear of land revenue.
410-G. Exemptions.--Nothing contained in this Chapter shall apply to any hoarding on which is exhibited any advertisement which relates to.--
(i) the trade or business carried on within the land or building, upon or over which such hoarding is erected 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 such land or building; or
(ii) the name of the land or building, upon or over which the hoarding is erected or to the name of the owner or occupier of such land or building: Provided that the exemption under this section shall be subject to such size and nature of hoarding as may be prescribed.
410-H. Appeal.--(A) An appeal shall lie to the Standing Committee from an order of refusal to grant or renew a licence or cancelling or suspending a licence by the Commissioner under this Chapter within thirty days from the date of receipt of the order.
(2) The appeal shall be in such form and in such manner and shall accompany with such fee as may be prescribed.
(3) On receipt of such appeal, the Standing Committee may, after making such inquiry as may be necessary and giving a reasonable opportunity to the appellant to be heard, pass such orders as it deems fit.
410-I. Penalty.--Whoever contravenes any of the provisions of this Chapter or any rule or order made thereunder or obstructs lawful exercise of any power conferred by or under this Chapter shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to ten thousand rupees or with both."
9. Chapter XIII-A provides a comprehensive procedure for issue of licence to erect hoardings by the Commissioner. Section 410-A defines the word "hoarding" as meaning, any screen of boards at any place whether public or private used or intended to be used for exhibiting advertisement including the framework or other support erected, wholly or in part upon or over any land, building, etc. From the above definition, it is clear that it is related to erection of certain screening boards in public or private place and those screening boards are used or intended to be used for exhibiting advertisements. That definition does not include the display of advertisement, as it refers only to the erection of boards and not otherwise. Section 410-B requires a licence to be obtained from the Commissioner for erection of such hoardings on or after 23.7.98. The Commissioner is also empowered to cancel or suspend the licence for violation of the conditions prescribed under Section 410-D of the Act. Likewise, he has got the power to remove the unauthorised hoarding in exercise of the power under Section 410-E. He is also empowered to grant exemption to certain hoarding which relates to the trade or business carried on within the land or building or upon or over which such hoarding is erected, etc., in terms of Section 410-G. As against the order of the Commissioner either refusing or granting licence or cancelling or suspending such licence, the person aggrieved may prefer appeal to the Government as provided under Section 410-H of the Act. A combined reading of the above provisions shows that the Commissioner is empowered to grant licence in respect of erection of the hoardings as defined under Section 410-A of the Act.
10. The above provisions were subsequently amended by the Tamil Nadu Municipal Laws (Amendment) Act, 2003 (Tamil Nadu Act 19 of 2003), wherein, apart from the insertion of sub-section (5) in Section 410-C, a new Section 410-CC was inserted in the Act. Sub-section (5) of Section 410-C provides that "the fee paid under sub-section (1) shall be credited to the Government account. The newly inserted provision of Section 410-CC also reads thus:- "410-CC. Tax on advertisement on hoardings.--(2) Notwithstanding anything contained in this Act, every person, who is granted licence under Section 410-C shall pay, on every advertisement on hoardings, a tax calculated at such rates as may be prescribed, having regard to the location, size, reach and nature of the advertisement but subject to the maxima and minima specified in the Table below:-
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1. Hoardings in arterial road with bus route -
2. Hoardings in main road with bus route -
3. Hoardings in other road or street -
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(2) Seventy-five per cent of the tax paid by every person, under sub- section (1) shall be credited to the Government account and the balance of twenty-five per cent shall be credited to the Corporation account in such manner as may be prescribed."
By the above provisions, the Commissioner was given the power to issue licence to erect hoardings and the tax collected on such hoardings shall be credited to the Government account and not to the account of the Corporation. A fixed tax pattern is also prescribed leaving no discretion for the Commissioner or the council to fix any quantum of tax on advertisement on hoardings. By the said Tamil Nadu Act 19 of 2003, wherever the expression "Commissioner" was found, the expression "District Collector" was substituted. Though the assent of the Governor was obtained on 17th May, 2003 and the same was published in the Tamil Nadu Government Gazette on 19th May, 2003, as the State Government published the amendment in the Tamil Nadu Government Gazette on 6.6.2003 to be the appointed date, the amended provision came into force on the said date. On and after 6.6.2003, the District Collector is alone empowered to grant licence to erect hoardings in terms of Chapter XIII-A of the Act.
11. This takes us to the next submission relating to the provisions of Sections 158 and 159 of the Act. These provisions relate to the power of the Corporation to levy tax on advertisements. In terms of Section 158, every person who erects, exhibits, fixes or retains upon or over any land, building including hoarding or who displays any advertisement to public view should pay on every advertisement which is so erected, exhibited or displayed to public view, a tax calculated at such rate having regard to the location, size, reach and nature of the advertisement by a resolution which is approved by the Government. The power to levy tax on such advertisement and display boards vest in the council. The provisions of Section 159 of the Act read as under:-
"159. Prohibition of advertisements without written permission of commissioner.-
-(1) No advertisement shall, after the levy of the tax under section 158 has been determined upon by the council, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure within the City or shall be displayed in any manner whatsoever in any place without the written permission of the commissioner.
(2) The commissioner shall not grant such permission if -
(i) the advertisement contravenes any by-law made by the council under clause (30) of section 432; or
(ii) the tax, if any, due in respect of the advertisement has not been paid; or
(iii) the erection, exhibition, fixation or retention of the advertisement is an offence under the Tamil Nadu Open Places (Prevention of Disfigurement) Act, 1959 (Tamil Nadu Act II of 1959).
(3) Subject to the provisions of sub-section (2) in the case of an advertisement liable to the advertisement tax, the commissioner shall grant permission for the period to which the payment of tax relates and no fee shall be charged in respect of such permission. Provided that the provisions of this section shall not apply to any advertisement erected, exhibited, fixed or retained on the premises of a railway administration relating to the business of a railway administration."
In terms of Section 159, once the council determines the quantum of tax to be levied under Section 158, no advertisement shall be erected, exhibited, fixed or retained on hoardings without the written permission of the Commissioner.
12. A combined reading of Sections 158 and 159 of the Act shows that for the purpose of display of advertisements or sign boards, the Commissioner of the Corporation is alone empowered and the Corporation would be entitled to levy tax and the tax so collected shall be credited to the benefit of the Corporation.
13. On a careful reading of the provisions relating to the grant of permission to fix the display boards under Section 159 and the grant of licence to erect hoardings under Chapter XIII-A, it is clear that the power to grant licence for erection of hoardings shall vest with the District Collector and the power to grant permission for erection of display boards on such hoardings shall veste with the Commissioner of the municipal Corporation.
14. To further substantiate the above conclusion, we may also refer to the provisions relating to the collection of taxes. The quantum of tax is determined by the council by way of a resolution and is subject to the approval of the Government. Once the quantum of tax is so determined, the amount collected towards the tax is appropriated to the Corporation fund. However, after the insertion of Section 410-CC, the quantum of tax on advertisement on hoardings is fixed by that provision. As per sub-section (2) of Section 410-CC, seventy five per cent of the tax paid by every person under sub-section (1) shall be credited to the Government account and the balance of twenty five per cent shall be credited to the Corporation account. We find no conflict between the provisions of Sections 158 and 159 and Section 410-CC in granting permission and licence in view of this variation in the fixation of quantum of tax and the sharing of the same by the Government and the Corporation. Both Sections 158 and 159 on the one hand and Chapter XIII-A on the other hand operate in different area in the sense that Sections 158 & 159 relate to the power of the council to determine the tax and the power of the Commissioner to grant permission to erect the display boards and on the other hand, Chapter XIII-A relates to the power of the District Collector to grant licence to erect hoardings and fixation of the quantum of tax to be collected for such hoardings and to be deposited in the Government and Corporation accounts in the ratio of 75 : 25.
15. Keeping the above principles in mind, the facts of this case should be considered. Chapter XIII-A received the assent of the Governor on 17th May, 2003. Section 1(2) of Part-I of the Tamil Nadu Act 19 of 2003 states that the Act shall come into force on such date as the State Government may by notification appoint. By a notification published in the Tamil Nadu Government Gazette dated 6.6.2003, the Government has notified the appointed date as 6.6.2003. Hence the provisions of Section XIII-A have come into force from the said date.
16. The petitioner in W.P.(MD) No.10739 of 2008 applied on 11.6.2007 to the Commissioner of Tiruchirappalli City Municipal Corporation for grant of permission to erect hoardings and display boards and such permission by the Commissioner to put up traffic sign display boards was granted on 21.6.2007. As both the application and the grant of permission to put up the traffic sign display boards was granted much after the above Chapter XIII-A had come into force, the erection of hoardings by the petitioner on the strength of the said order cannot be sustained, as the said erection was without the licence from the District Collector. So long as the District Collector has not granted licence for erection of the hoardings upon which the traffic sign display boards have been erected pursuant to the order of the Commissioner of Tiruchirappalli City Municipal Corporation dated 21.6.2007, the said order also cannot be sustained.
17. The petitioner in W.P.(MD) No.4718 of 2009, namely, Vasantham Outdoor Advertising Private Limited, is also an advertising agency. The petitioner was permitted by the Commissioner, Tirunelveli Corporation in his proceedings dated 18.10.2007 to erect the Camera and Mike in each of the 400 nos. of poles around Nellaiappar Car Street including Swami Sannathi, in each of the 100 numbers of poles at Palayamkottai Roundtana area and in each of the 100 nos. of poles inside junction bus stand for monitoring traffic. Pursuant to the said permission, the petitioner also erected the Camera and Mike in each of the poles. Subsequently, on 21.11.2007, the District Collector, Tirunelveli also granted licence to erect the advertisement boards in the above places. The licence is valid upto 31.3.2010. The petitioner, therefore, made an application for renewal on 9.6.2009 and has also paid the necessary fee. However, the Corporation authorities are removing the advertisement boards on the ground that they are unauthorised. Hence he has approached this Court by way of the present writ petition seeking for a direction forbearing the respondents from removing the Camera and Mike with advertisement boards in all the places without due process of law.
18. Mr.T.Lajapathi Roy, learned counsel appearing for the petitioner has submitted that as the District Collector, Tirunelveli has granted licence for erection of the poles as well as for fixing of the Camera and Mike on the poles which is valid upto 31.3.2010, the Corporation authorities are not entitled to remove the advertisement boards on the ground that they are unauthorised. As we have held that for erection of hoardings, the District Collector is the licensing authority and for the display of sign boards, the Commissioner of the Municipal Corporation is the authority to grant permission, the permission obtained by the petitioner from the Commissioner could only be for the display of advertisement boards and that the permission granted by the Commissioner to erect the poles after the Chapter XIII-A had come into force cannot be sustained. Though the petitioner was given permission to display the advertisement boards by the Commissioner of Tirunelveli City Municipal Corporation as well as the District Collector, in the absence of a licence to erect the hoardings by the District Collector, namely, the erection of poles as in this case, the petitioner is not entitled to the relief as claimed in the writ petition.
19. For all the foregoing discussions, both the writ petitions must fail. The petitioner in W.P.(MD) No.10739 of 2008 is entitled to apply to the District Collector, Tiruchirappalli for grant of licence to erect the hoardings and if such licence is granted, then the petitioner should apply to the Commissioner, Tiruchirappalli City Municipal Corporation for grant of permission to display the advertisement boards. The petitioner can put up the advertisement boards only after the above requirements are satisfied. As far as the petitioner in W.P.(MD) No.4718 of 2009 is concerned, the application for renewal made on 9.6.2009 cannot be considered and the petitioner would be entitled to again approach the District Collector, Tirunelveli and the Commissioner of the Tirunelveli City Municipal Corporation seeking for necessary licence and permission afresh to erect the poles along with Camera and Mike. With these observations, both the writ petitions are dismissed. Consequently, M.P.(MD) Nos.1 & 2 of 2008 and M.P.(MD) No.1 of 2009 are also dismissed. No costs.
ss To
1. The District Collector Trichy Trichy District
2. The Commissioner Trichy City Corporation Trichy Trichy District
3. The Assistant Commissioner of Police Crime & Traffic Trichy, Trichy District
4. The Commissioner Tirunelveli Corporation Tirunelveli District
5. The Deputy Commissioner of Police Law and Order i/c Crime and Traffic Tirunelveli City, Tirunelveli District
6. The District Collector Tirunelveli District at Nagercoil