2006 Supreme(Guj) 267

Gujarat High Court
Judgename :M.R.Shah
OUTDOOR ADVERTISING OWNERS ASSOCIATION AHMEDABAD - Appellant
Versus
K.KAILASHNATH - Respondent
Special Civil Application 1610 Of 2006
Decided On : 04/20/2006

Headnote:Point in Issue :

       Hoardings and outdoor display structures - Requirements of - Non compliance - Demolition - Propriety of - Finding as to

       Head Note :

       Gujarat Town Planning Act - Sections 17 and 37 - General Development Control Regulations - Regulation 21 - Hoardings and outdoor display structures - Requirements of - Non-compliance - Demolition - Propriety of - Finding as to - As per sanctioned GDCRs more particularly Regulation No. 21 only authorised hoardings/signs are permitted and that too on complying with other requirements - There is nothing on record to show that any of the petitioners is having any permission to putup hoardings/ signs and/or they are authorised by authority - On the contrary applications of most of the petitioners are already rejected and with regard rest even no application was submitted - Contention that the very authority i.e., AUDA has proposed amendment in Regulations therefore, during pendency of the proposal they may be permitted to continue with the hoardings on marginal land cannot be accepted specially when even none of the petitioner is in fact having any signs/hoardings even as per the proposed amended Regulations - It is also because some amendments are proposed it is not that petitioners are not required to comply with the requirements as per the existing Regulations - Contention that Authority itself has permitted to put up the hoardings in the margin land cannot be sustained on negative discrimination - If it is found that it is a wrong order another person cannot claim parity to get same wrong order - The petitioners cannot be allowed to violate the law - The Regulation in question are neither unreasonable and arbitrary nor they are actuated by malafide - The action of respondents is not de hors the law, therefore, required to be upheld.

       Held :

       As per the sanctioned GDCRs, more particularly Regulation No. 21, only authorised hoardings/signs are permitted which are authorised by the authority and that too on complying with other requirements. As per Regulation No. 21.4(10), no hoardings shall be permitted in the open margin space of the building and for the purpose of hoarding on roof-tops, the requirements and restrictions are as mentioned in Regulation No. 21.5. So far as present Special Civil Applications are concerned, they are mainly related to placement of hoardings/sign boards in the open margin space of the building. There is nothing on record to show that any of the petitioners is having any permission to put up hoardings/signs and/or they are authorised by the authority. On the contrary, as mentioned in the affidavit-in-reply on behalf of AUDA, so far as most of the petitioners are concerned, their applications are already rejected, and, with regard to the rest, even no application was submitted.

        [Para 9.1]

       The main submission on behalf of the petitioners is that the very authority, i.e., AUDA has proposed amendment in the GDCRs and, therefore, during pendency of the proposal with the State Government they may be permitted to continue with the hoardings/signs in the margin land. It is also the submission on behalf of the petitioners that in fact they have modified and/or changed their signs in line with the proposed amendment which is disputed by the respondent authority. It is submitted that even none of the petitioners is in fact having any signs/hoardings even as per the proposed amended regulations. Merely because some of amendment proposed, it is not that the petitioners are not required to comply with the requirements as per the existing GDCRs. So long as as the amendment is not accepted by the State Government and the regulations are not amended, the regulations continue to be in existence and the petitioners and/or any other person/s are bound to comply with the requirements of the existing GDCRs. [Para 10]

       It is also the contention on behalf of the petitioners that even the AUDA itself has permitted to put up the signs/hoardings in the margin land and/or on the roof-tops at some places and/or the AUDA has permitted for placing signs or hoardings on the footpath or on the public road on 132 ft.road and, therefore, they may also be permitted to put up signs/hoardings in the open margin space of the private building as the same will not cause any hindrance to the traffic.

       There cannot be a negative discrimination and order passed in favour of one person if it is found that it is a wrong order another person cannot claim parity and that wrong order in favour of one person cannot entitle other person to get the same order. Therefore, merely because and for the sake of arguments, even if it is accepted that AUDA might have permitted some person to put up the hoardings/signs dehors the GDCRs, that will not entitle the petitioners to flout the law and/or act contrary to the GDCRs. The petitioners, therefore, cannot be permitted to violate the law. [Para 11]

       It is the contention on behalf of the petitioners that when the petitioners have put up hoardings/signs in the open margin space in the private building, the restriction in the GDCRs that no hoarding shall be permitted in the open margin space of the building is unreasonable and arbitrary. It is required to be noted that, none of the petitioners has challenged the GDCRs. The GDCRs are sanctioned by the State Government under Section 17 of the Gujarat Town Planning Act and in fact they are part of the Gujarat Town Planning Act. Therefore, in absence of any challenge to the GDCRs which have become part of the said Act, the contention/submission on behalf of the petitioner, that it is arbitrary and unreasonable, cannot be accepted and/or the same is not required to be considered more particularly when the GDCRs are in existence. [Para 12]

       So far as the contention on behalf of the petitioners, that the action of the respondent authority is malafide as earlier the Association and/or some of the members of the Association and preferred Special Civil Application challenging the action of the authority in awarding contract for putting up hoardings/signs, is concerned, it is required to be noted that the authority concerned by the impugned action want to see that the GDCRs are implemented in letter and spirit and the same are complied with. The action of the respondents is not dehors the law. Merely because earlier, some litigation was resorted to by some of the petitioners and thereafter some action is taken by the authority either to implement the law and/or some action is taken in consonance with the provisions of the GDCRs, it cannot be said that the subsequent action of the respondent authority to direct the petitioners to implement the law, which is in the present case, the GDCRs, is malafide. [Para 13]

       At one point of time, it was suggested that let the hoardings be there, but they may not exhibit any advertisement so that if in future if there is any amendment in the GDCRs they may not have to incur any further expenses. However, the learned advocate appearing on behalf of the petitioners has insisted that they may be permitted to have the signs/hoardings in the open margin space of building/s and also to exhibit advertisements during pendency of proposal with the State Government. Such prayer of the petitioners cannot be accepted. Allowing the petitioners to put up and/or continue with the hoardings/signs in the open margin space will be allowing the petitioners to act contrary to the law/GDCRs and this Court cannot permit the petitioners to violate the law and/or continue the violation of the law/GDCRs. [Para 14]

       Law Laid Down :

       There cannot be negative discrimination and order passed in favour of one person if found wrong another person cannot claim parity to get same order.

       Case Law Analysis :

       Union of India & Anr. vs. International Trading Company & Anr., 2003 (5) SCC Page 437 [Para 11];; Yogesh Kumar & Ors. vs. Government of NCT. Delhi & Ors., 2003 (3) SCC 548 [Para 11].-Relied on

       Conclusion :

       None of the petitioners is having authorisation to put up signs/hoardings and as per the existing GDCRs the hoardings in the open margin space is not permitted none of the prayers of petitioners can be granted.

       Decided in Favour of :

       Respondents

       Application Dismissed