Rajiv Sahai Endlaw, J.

1. The petitioners no.1 & 2 i.e. Anil Bhatia and Satyadev Solanki, being members / volunteers of petitioner no.3 Aam Aadmi Party, seek declaration that the Delhi Prevention of Defacement of Property Act, 2007 (hereinafter called Defacement Act) does not prohibit putting up of posters / banners, on one’s own private property or house/building, or with the consent of owner of a private property or house/building. Alternatively, the petitioners impugn the said Act as being unconstitutional and violative of Article 19(1)(a) of the Constitution of India in so far as it prevents the individuals from making any alterations/modifications to their own privately owned property or prohibits them from putting up posters/banners on the same. The petition also seeks the consequential relief of restraining the respondents no. 1 to 3, being the Government of National Capital Territory of Delhi (GNCTD), Delhi Police and Election Commission of India from removing or pulling down posters/hoardings put up by individuals on their own private premises and properties or put up with the consent of the owner of the said private property.

2. Notice of the petition was issued. Counter affidavits have been filed by the GNCTD / Delhi Police and the Election Commission of India. The counsel for petitioner stated that no rejoinders are required to be filed thereto. An application for intervention has been filed by Col. Shivraj, Convenor of ‘Poster Hatao Campaign’ working to make citizens aware of the illegality of putting up commercial and political posters in unauthorized locations and to eventually make Delhi a cleaner and poster free city. We heard the counsels on 6th and 14th January, 2015 and reserved judgment.

3. The cause of action for the petition was the letter dated 17th October, 2013 of the Election Commission of India to the Chief Electoral Officer of NCT of Delhi in the context of the General Election to the Legislative Assembly of NCT of Delhi of the year 2013 inter alia clarifying that putting up banners/posters at homes of volunteers/supporters is prohibited under the Defacement Act. It is the contention of the petitioners that if such interpretation by the Election Commission, of Section 3 of the Defacement Act is correct then the same violates the right to freedom of expression in as much as placing posters and placards on one’s own property is in exercise of such freedom of expression which is a Fundamental and Constitutional right and cannot be curtailed to the extent of prohibition, even by legislation. The petitioners plead that the petitioner no.3 being a new political party, without funding as available to the other older political parties, has to employ innovative and unique ways to propagate itself and its ideology to the masses and thus conceived voluntary display of its posters upon private properties i.e. houses of its supporters / volunteers; however the said posters put up by the petitioners no.1 & 2 on their houses were forcibly removed.

4. Before recording the other contentions urged, we may notice that prior to the Defacement Act which came into force on 1st March, 2009, the West Bengal Prevention of Defacement of Property Act, 1976 had been extended to the Union Territory of Delhi on 28th September, 1983. The same described, i) defacement as including impairing or interfering with the appearance or beauty, damaging, distinguishing, disfiguring, spoiling or injuring in any other way whatsoever and, ii) property as including any building, hut, structure, wall, tree, fence, post, pole or any other erection, and provided for punishment with imprisonment for a maximum term extending to six months or with fine extending to one thousand rupees or with both for defacing any property in public view by writing or marking with ink, chalk, paint or any other material, except for the purpose of indicating the name and address of the owner or occupier of such property.

5. The definition of "defacement" and "pr