Ad-Look Advertiser V. The Union of India

WP/16810/2023

AI Insights

The case revolves around a writ petition filed by Ad-Look Advertiser challenging the notice issued by the Secunderabad Cantonment Board for the removal of advertisement hoardings from rooftops in the Secunderabad Cantonment area. The petitioner argued that the notice was issued without following due process and violated principles of natural justice. The Secunderabad Cantonment Board defended its action by citing public safety concerns and adherence to a new advertisement policy. The court examined the procedures followed by the Board in issuing the notice and found them lacking, leading to the decision in favor of the petitioner.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 745864 (HC-TELANGANA)
• Appeal Type: Others
• Pronouncement Date: 11-12-2023
• Assessment Year: misc
• Laws Referred To: Article 226 of the Constitution of India, Cantonments Act, 2006
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: GADI KUMAR; K R KOTESHWAR RAO
• Assessee Lawyers: SUDHAKAR REDDY
• Keywords: Audi alteram partem; Cantonment Board; Natural Justice; Public Safety; Writ of Mandamus; Advertisement Hoardings
• Section: 226; 297; 318

Judgement Text

"l32s2l HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original Jurisdiction) IVONDAY, THE ELEVENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION NO: 16810 OF 2023 Between: Ad-Look Advertiser, Rep by its Proprietor B.Shiva Kumar, S/o Late B.Dasarath, Age. 57 years, Occ ; Business, 16-1671171G-'l , Sri Sai, lVladhusree Apt., tt/alkajgiri, Secunderabad. .....PETITIONER AND 1. The Union of lndia, Ivlinistry of Defense Rep by it Secretary Room No.305, B- Wing Sena Bhawan, New Delhi. 2. The Secunderabad Cantonment Board, Sardar Patel Road, Court Compound, Secunderabad - 500003 by its Chief Executive Officer. .....RESPONDENTS Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order, or Direction, more particularly one in nature of Writ of IvIANDAMUS declaring the action of the Respondent No.2 in issuing the final Notice vide Lr.No.SCB/RS/Rooftop Hoardings 1202311228 dated 171612023 sent /forwarded by Whats up to the Petitioner about two days back without following due process of law , as illegal , bad in law, without opportunity and in viotation of principles of natural justice as the hoardings on roof top are existing on private buildings for last several years and set aside the same as being violative of cardinal principle of Audi Alteram Paterm, and without any reason or rhyme or basis and consequently restrain the Respondent No.2 from removing the advertisement hoarding structures on roof top, in 3-6-99 , West Marredpally ,Secunderabad in the lnterest of Justice. I.A.NO:1 OF 2023 Petition Under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to restrain the Respondent No.2 from removing the advertisement hoarding structures on roof top in top in #3-6-99, West f ularredpally, Secunderabad, by suspending Lr.No.SCB/RS/ Rooftop Hoardings 1202311228 dated 17-6-2023 on the file of the Respondent No.2 in the interest of Justice, Pending Disposal of the writ petition. l.A.NO:2 OF 2023 Between The Chief Executive Officer, Secunderabad Cantonment Board, Sardar Patel Road, Court Compound, Secunderabad - 500003. ....PETlTlONER/RESPONDENT No.2 AND 1. The Ad-Look Advertiser, Rep by its Proprietor B.Shiva Kumar, S/o Late B.Dasarath, Age. 57 years, Occ ; Business, 16-1671171G-1 , Sri Sai, Madhusree Apt., Malkajgiri, Secunderabad. .....RESPONDENT NO.lMIRIT PETITIONER 2. The Union of lndia, Ministry of Defense Rep by it Secretary Room No.305, B- Wing Sena Bhawan, New Delhi. ....RESPONDENT/RESPONDENT No.1 Petition Under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to vacate the lnterim Order dated 30.06.2023 in W.P. No. 16810 oI 2023 in respect of the impugned Notice dated 17 .06.2023 to enable the Petitioner/2nd Respondent to take appropriate steps for removal of the rooftop hoardings of the Writ Petitioner and dismiss the above said writ petition. Counsel for the Petitioner : SRI SUDHAKAR REDDY, ADVOCATE FOR SRI YANDAPALLY SHARATH BABU Counsel forthe Respondent No.1 : SRI GADI PRAVEEN KUMAR (DEPUTY. soLlcrToR GENERAL OF rNDrA) Counsel for the Respondent No.2 : SRI K.R.KOTESHWAR RAO The Court made the following ORDER THE HON'BLE MRS JUSTICE SUREPALLI NANDA w PETITI N No- 1 81o OF o23 ORDER: Heard Mr.Sudhakar Reddy, learned Counsel appearing on behalf of Mr.Y.Sharath Babu, learned counsel for the petitioner on record, Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India, appearing on Mr.K.R.Koteshwar behalf of resPondent No.1, and Rao, learned Standing Counsel appearing on behalf of respondent No.2 - cantonment Board. 2. The petitioner approached the Court seeking the prayer as follows: \"To issue a Writ, Order or Direction, more particularly one in nature of Writ of MANDAMUS declaring the action of the Respondent No.2 in issuing the final Notice vide Lr.No.SCB/RS/Rooftop Hoardings/2023/t228 dated !7.6.2023 sent/forwarded by What's up to the Petitioner about two days back without following due process of law, as illegal, bad in law, without opportunity and in violation of principles of natural justice as the hoardings on roof top are existing on private buildings for last several years and set aside the same as being violative of cardinal principle of \"Audi Alteram Partem\" 2 and without consequently any reason or rhyme or basis and restrain the Respondent No.2 from removing the advertisement hoarding structures on roof top in #3-6-99, West Marredpally, Secunderabad, in the Interest of lustice.,, 3 eca of h P ta tn rl f The petitioner is an Ad agency in the name and style of \"Ad-Look Advertisers,, and had been in the said business for more than ten years. The petitioner is having several hoardings in twin cities and the petitioner is continuing the same without any hindrance. The petitioner has entered into oral agreement with the owner of the house bearing No.3_6_99, in turn the house owner had given no objection certificate on 2g.06.2023 to continue the petitioner hoarding in his house roof top with certain conditions. The petitioner erected roof top advertisement hoarding at #3-6-99, West Maredpally, Secunderabad, and carrying out the business without any hindrance from any corner by taking utmost care of the hoardings without causlng any disturbance/difficulty to the public for the last several years. It is further the case of the petitioner that the petitioner employed five to six workers to look after the structural stability to maintain cleanliness on the roof of the building and thus the five to six wo!-kers are eking out their livelihood from the incorne J derived upon it. Respondent No.2 had been collecting the advertisement hoarding charges/fee from time to time and issuing acknowledgment, while so, the petitioners were shocked to see the impugned notice dated 17.06.2023 issued by Secunderabad Cantonment Board, through What's up to the petitioner. Hence the present writ petition. PERUSED THE RECORD. 4. The impugned notice vide Lr.No.SCB/RS/Rooftop Hoardings/2O23/1-22A dated 17.06.2O23 issued by the 2nd respondent - Cantonment Board to the petitioners, reads as under: \"It is noted by this office that you are having a rooftop boarding structure on the rooftop of the below mentioned premises. sl. No. Location of the Hoarding Structure No. of Hoarding Structures 1 #3-6-99, West Secunderabad. Marredpally, 01 No. 2. In this connection, it is to inform that the Board has resolved that all the rooftop hoardings along with its structures be removed in view of public safety. 3. Therefore, you are hereby directed to remove the rooftop hoarding structure on or before 30th June, 2023, failing which action will be taken by way of levying penalty 4 and as per provisions of Cantonments Act, 2006. owner oF the building will be personally liable for damages caused or loss of life.,, The any 5, The True Extract of the Ordinary Board Meeting of the Cantonment Board, Secunderabad Held at the Conference Hall, Office of the Cantonment Board, Secunderabad on .Thursday, the 29th day of September, 2022 at 15OO hours, in particular, the relevant paras, read as under: \"[15] To consider imposition of penalty on unauthorized advertisement hoardings, flexis, wall writing, wall posters, unauthorised erection of banners and cut outs and other advertisement elements placed within the area of Secunderabad Cantonment with a view to restrict such acts of unauthorized erections, etc., that is not only dangerous to the pedestrians but also eyescre giving shabby look to the public places. The matter was discussed in detail in the last Board meeting referred above. The Board vide CBR referred above resolved to pend the matter for next meeting to address two issues: i) Authorised space for erecting of flexis / Banners ii) Reduction of penalty charges. proposed that cut out hoarding will be a size of 4' x 6' and will be out in a manno!- rhar It is maximum 5 does not obstruct movement of trafFic as well as visibility of traffic. Further, the banners and cut out hoardings shall be made oF environmental friendly material. No banners/cut out hoardings shall be placed to the Poles and Trees. Resolution: The CEO apprised the Board that this matter was placed in last meeting and pended for two issues i.e. i) Authorised space for erection of flexis,/Banners ii) Reduction of penalty charges. In this regard, the authorized places have been mentioned on the agenda side and the penalty charges are being proposed at par with GHMC areas. Shri l. Ramakrishna, Nominated Member, after examining the Government of Telangana GO expressed that the matter in the GHMC has been finalized after detailed discussions and after formation of committees that proposed these regulations. He opined that similar kind of exercise should be undertaken by the Cantonment Board. Further, he requested to form a committee making CEO and himself as members of the committee for this purpose. The PCB informed that there is no necessity to redo the entire exercise for the Cantonment and recommended to levy the penalty charges/rates at par with GHMC. The PCB further stated that in the earlier Board Meeting, the matter was pended for two reasons and now both have been add ressed. 6 6 After the detailed discussion, the Board resolved to approve authorised spaces for erection of flexis/Banners on the agenda side and the penalty charges for unauthorized advertisement elements. The CEO is authorised to formulate a procedure for implementing the same from O1.11.2022.. The True Extract of the Ordinary Board Meeting of the Cantonment Board, Secunderabad Held at the Conference Hall, Office ol the Cantonment Board, Secunderabad on .Wednesday, the loth day of May,2023 at 11OO hours, reads as under: \"[13] To consider the note submitted by Revenue Section for \"Regulating advertisement hoardings on roof top of private buildings in respect of saFety & security of the residents\". As per the said report, this office is collecting Advertisement Fees for Hoardings erected on roof tops of private buildings. The charges are being collected as per the rates fixed vide CBR No.24, Dt. 15.10.2014 as per the rates oF the GHMC and later the same were revised vide CBR No.28, Dt. 19. 10.2020. Further, it is to inForm that the roof top hoardings are posing great threat to the nearby residents and commuters du ring heavy rains. The Municipal Administration and Urban Development (GHMC) Department, Government ot Telangana has drafted a new Acjvertisement policy vide GO MS No.68, Dt.2O.04.2020 wherein it has been mentioned that advertisement elements which are at huge heights from the ground level have collapsed a number of times, although certified as stable, thereby creating havoc. Subsequently, the Government has issued operative guidelines for granting permission only for advertisement elements below 15 feet from ground level. The revenue collected through advertisement fee from Hoardings on Roof top buildings for the year 2022-23 is Rs. 1,08,40,920/-. Therefore, keeping in view the safety and security of the residents of the Cantonment, the matter is placed before the Board for decision on removal of rooftop hoardings on private buildings in Secunderabad Cantonment. The relevant papers are placed on the table. Resolution: The CEO apprised the Board about regulating advertisement hoardings on rooftop of private buildings in respect of safety of the public. By removing these hoardings, approximately there will be a loss of Rs.1 Crore revenue per annum to the Board, however in view of safety of the public the hoardings should be removed. Shri J. Ramakrishna, Nominated Member informed the Board that the rooftop hoardings be considered where a structural safety report is submitted by the owners of the houses, and he said that a committee may be constituted for studying the structural safety. 1 8 PCB stated that human life is more important than the revenue being generated, hence, the Board may direct the agencies to remove the hoardings in view of the safety of the public. The Board resolved that all the rooftop hoardings along with its structures be removed in view of public safety on or before 3oth June, 2023, failing which action to be taken against the violators as per the Board resolution vide CBR No. 15, dt.2g.Og.2022 and as per provisions of Cantonments Act, 20O6.,, 7. A bare perusal of the G.O.Ms.No.6g dated 2O.O4.2O20 clause 2.b) reads as under: \"b) All the advertisement elements which are above 15 feet height from ground level shall not be permitted. Those advertisement elements which are already existing on the ground on the buildings exceeding 15 feet from oround ev an m ts h he rm h e edi m ra h e on otn all m ov atel a od. F h if n dv m d r at er aso all ed d EA err lo ter sh be c.T se dv ts nt rI d tion n n hifti N all GH hi el r rs n automatica llvcancelled.\" 8. The relevant sections of The Cantonment Act, 2()06 regarding imposition of taxation, !\"eads as unde!\": 9 '( 17) the control and supervision of places where dangerous or offensive trades are carried on so as to secure cleanliness therein or to minimise any injurious, offensive or dangerous effects arising or likely to arise therefrom; (18) the regulation of the erection of any enclosure, fence, tent, awning or other temporary structure of whatsoever materlal or nature on any land situated within the cantonment and the fees chargeable in respect thereof.\" 9 Counter affidavit filed b the 2nd ResDo dent. in lar Par 10 11 r asu n \"7. I humbly submit that, as a reply to the allegations in Para No.5 of the Affidavit, with regard to collection of the hoarding charges/fee from time to time from the Petitioners, the Board is empowered to collect such license fee as per Section 67 of the Act 2006, as stated above. However, for the reasons explained in the Board Resolution dated 10.05.2023 which was passed in consonance with G.O.Ms. No. 68 of GHMC, the Board has decided to remove all rooftop hoarding structures of the Petitioners and others located in the Cantonment area and after its removal, if the Petitioners a re intended to su bm it fresh Application for erection of advertisernent elements below 15 feet from the ground level and the same will be considered and the left over license fee for the remaining period will be adjusted' I() Therefore, for mere payment of license fee of hoardings will not create any right to the petitioners to prevent the Board from issuing the rooftop hoardings. impugned Notice to remove the 9. I humbly submit that, as a reply to the allegations in Para No.7 of the impugned order o o un Affidavit, it n u llifies the nd th rS tncorrect to ha rd work, allege that investment, s employment in one stroke of a pen by issuing impugned order. It is also incorrect to allege that after receiving amounts towards license fee of hoardings issued the present impugned Notice/Order without following due process of law or giving an opportunity to submit their objections. Such contention is factually not correct and misleading, as the grounds for issuance of the impugned Notice were clearly mentioned n al lv n a u ,s lm u N e o d e e tio e an b tn s b a o ti t cl e ve n e o OV h ewh b mo e an ed t- vi e th iti ho of th rdi s stn ss n ve w ll r s tn e oa ln ru ure dt vel o r h lc o n r r t th re th it sa nf mth Therefore, there 5 B r will not be any loss of revenue, as alleged. 10. I humbly submit that, as a reply to the allegations in Para No.B of the Affidavit, the Order/Notice, which is impugned in the Writ petition was issued to remove the 1t rooftop hoarding structures on two counts - one is to protect safety and security of the public, the other one is to prevent shabby look to the Cantonment due to such hoardings; and as a policy decision, the owners of such rooftop hoardings were directed to remove the same, however they may re-erect their hoardings below 15 feet from ground level, as is permissible in GHMC area, and the present Notice is issued in consonance with G.O.MS.No.6B of GHMC, as detailed supra. In view of the same, the question of conducting any inspection or receiving any complaint against the advertisement hoardings by the neighbours, does not arise, as even in the absence of any violation of public safety or in the absence of any untoward incident, the proposed action has been initiated by the Board for the reasons explained above. Therefore, pursuant to the above mentioned Notice/Order, the Writ Petitioners are required to remove the rooftop hoarding structures from their property. 11. I humbly submit that, the present Writ Petition has been filed without arraying the Secunderabad Cantonment Board as a proper and necessary party, despite knowing the fact that, the impugned Public Notice has been issued pursuant to the Resolution passed by the Board vide CBR No.13 dated 10.O5.2023, and non-joinder of the Secunderabad Cantonment Board as a proper and necessary party, the Petitioners are not entitled to seek any relief questioning the impugned Notice issued by the t2 2nd Respondent, which was issued pursuant to the Resolution passed by the Board.\" 10. Learned counsel appearing on behalf of the petitioners adopted the reply affidavit in W.P.No.16613 of 2O23 and also the legal pleas raised thereunder. ELEVANT P VISIO Section 297 ol the Cantonment Act, 2OO6, reads as under: \"297. Power to require buildings, wells, etc., to be rendered safe.- Where in a cantonment any building, or wall, or anything affixed thereto, or any well, tank, reservoir, pool, depression, or excavation, or any bank or tree, is in the opinion of the Chief Executive Officer-, in a ruinous state or, for want of sufficient repairs, protection or enclosure, a nuisance or dangerous to persons passing by or dwelling or working in the neighbourhood, the Chief Executive Officer, by notice in writinq may, require the owner, or part- owner or person claiming to be the owner or part- owner thereof, or, failing any of them, the occupier, thereof, to remove the same or may require him to repair, or to protect or to enclose, the same in such manner as he thinks necessary; and, if the danger is, in the opinion of the Chief Executive Officer, imminent, he shall forthwith take such steps as he thinks necessary to avert the same. Section 318 of the Cantonment Act, 2OO6, reads as under: 318. Service of notice, etc.- t3 (1) Every notice, order or requisition issued under this Act or any rule or bye- law made thereunder shall, save as otherwise expressly provided, be served or presented- (a) by giving or tendering the notice, order or requisition, or sending it by post, to the person for whom it is intended; or (b) if such person cannot be found, by affixing the notice order or requisition on some conspicuous part of his last known place of abode or business, if within the cantonment, or by giving or tendering the notice, order or requisition to some adult member or servant or his family, or by causing it to be affixed on some conspicuous part of the buildings or land, if any, to which it relates. (2) When any such notice, order or requisition is required or permitted to be served upon an owner, lessee or occupier of any building or land, it shall not be necessary to name the owner, lessee or occupier therein, and the service thereof shall, save as otherwise expressly provided, be effected either- (a) by giving or tendering the notice, order or requisition, or sending it by post, to the owner, Iessee or occupier, or, if there are more ownersr lessees, or occupiers than one to any one of them; or (b) if no such owner, lessee or occupier can be found, by giving or tendering the notice, order or requisition to the authorised agent, if any, of any such owner, lessee or occupier, or to an adult member or servant of the family of any such owner, lessee, occupier, or by causing it to be t4 alfixed on some conspicuous part of the building or land to which it relates. (3) When the person on whom a notice, order or requisition is to be served is a minor, service upon his guardian or upon an adult member or servant of his family shall be deemed to be service upon the minor.,, 11. Learned counsel appearing on behalf of the petitioners mainly puts forth the following submissions: (i) That the impugned notice is in violation of the principles of natural justice, (ii) It is without jurisdiction, (iii) It is in violation of statutory procedure laid down under the Secunderabad Cantonment Act, (iv) That the respondent - Cantonment Board had adopted a pick and.choose policy and issued the notices. Learned counsel for the petitioners placing on the submissions put forth above, prayed that the writ petition should be allowed as prayed for. L2. Learned counsel appearang on behatf of the 2nd Respondent - Cantonment Board on the other hand placing reliance on the averments made in the counter affidavit puts forth the following submissions: (i) The Board has published a public Notice on t2.06.2023 in Shakshi (Telugu), Deccan Chronicle l5 ( ii) ( iii) (English) and Hindi Milap (Hindi) newspapers, whereby the owners of the respective buildings having advertisement hoarding structures are to be noted that it is the responsibility of the owners to ensure that the structures are removed by 30.06.2023, failing which action would be initiated as per the Act, 2006. Thereafter, the individual notices were also issued to the Advertisements Agencies a nd owners of the buildings on which the adveftisement hoardings structures are erected to remove the same before 30.06.2023. The issue regarding regulating advertisement hoardings on rooftops of private buildings in respect of the safety and security of the residence was discussed at length in the Board Meeting held on 10.05.2023 and in the said Board Meeting by taking into consideration of the New Advertisement Policy of Government of Telangana issued vide G.O.Ms.No.68 dated 20.04.2020, though there is a loss of revenue of Rs.1.00 Cr. Per annum, since human life is more important that the revenue being generated, the Board has also resolved that all the rooftop hoardings along with the structures be removed, in view of the public safety on or before 30.06.2023, failing which action would be taken against the violators, and accordingly the said instruction was issued to the petitioner to remove the hoardings, keeping in view of the safety of the public. I6 (iv) The Cantonment Board is removed the rooftop hoarding structures under the provisions of the Cantonment Act and therefore there is no illegality in issuing the impugned notice on two grounds - One is to protect safety and security of the public, the other one is to prevent shabby look to the Cantonment due to such hoardings, and as a policy decision. Learned counsel appearing on behalf of the Respondent - Cantonment Board placed reliance on the Judgment dated 11.01.2023 passed in W.p.Nos.3632B of 2022 and batch and contended that the writ petition has to be dismissed. JI. 'It AIIL' CL 13. A bare perusal of the extract of the Ordinary Board Meeting of the Cantonment Board, Secunderabad Held at the Conference Hall, Office cf the Cantonment Board, Secunderabad on 'Thursday' the 29th day of September, 2022 at 1500 hours clearly indicates two issues - FirsHy - to consider imposition of penalty on unauthorized adveftisement hoardings, which however, is not the subject issue in the present writ petition, and Secondly - the proposal that cut out hoarding will be a maximum size of 4'x 6'and will be put in a manner that does not obstruct movement of traffic as well as visibility of traffic. Further, the banners and cut out hoardings shall be made of t7 environmental friendly material and no banners/cut out hoardings shall be placed to the poles and Trees. The penalties to be imposed are as follows: 14. A bare perusal of the G.O.Ms.No.6B dated 20.04.2O20 clause 2.b) clearly indicates that all the advertisement elements which are above 15 feet height from ground level shall not be permitted and those advertisement elements which are already existing on the ground on the buildings exceeding 15 feet from qround level and have completed their allotted term shall sl. No. VIOLATION Penalty amount (in Rs.) 1 Erection of Unauthorized Advertisement element above 15 feet in hei ht from round level Rs.1,00,000/- Per Day 2 Erection of Unauthorized Advertisement element below 15 feet in hei ht from round level Rs.50.000/- Per Day 3 Use of flashing lights/Non static illumination in Advertisement without ermrsston Rs.50,000/- Per Day 4 Size of the Advertisement/Name board exceeding 15olo Fronta e of the buildin Rs.100/- Per Sq.ft. Per Day 5 Use of Advertisin Moving, rotating or variable message Devices Rs.10,000/- Per Day 6 Operating an Advertisement element without valid Structural Stabilit Certificate Rs.50,000/- Per Day 7 Advertisement on moving vehicle where the advertisement is placed in a manner of any additional board, structure or projection on the body of the veh icle Rs.10,000/- per violation 8 Use of illuminated Advertisements with more then allowed limit brightness Rs. 10,000/- per violation 9 Wall Writings Rs.1,000/- for each wall writing 10 Wall Posters Rs.2,000/- for each poster 11 Unauthorized erection of Banners & Cut outs Rs.5,000/- for each banner & Cutout l8 be removed immediatelv bv GHMC. Those advertisement elements which have an on otno all tment oeriod shal! be o removed immediatelv after com lon of the time oeriod. D et G.O.Ms.No.68 dated 20.04.2020 which pertains to the Guidelines from granting new permission for advertisement elements below 15 feet from ground level and also for regulating the existing advertisement elements below 15 feet from ground level in GHMC area. 15. The plea of the learned Standing Counsel appearing on behalf of the Secunderabad Cantonment Board that the Board Resolution dated 10.05.2023 was passed inconsonance with G.O.Ms.No.68 of GHMC and the Board has decided to remove all rooftop hoarding structures of the petitioners and others located in the Cantonment area and after its removal, if the petitioners intend to submit fresh Application for erection of advertisement elements below 15 feet from the ground level and the same would be considered and the left over license fee for the remaining period will be adjusted is untenable in view of the simple fact that G.O.Ms.No.6B dated 20.04.2020 on the basis of which the Board Resolution dated 10.05.2023 had been passed is totally contrary to the specific instructions as indicated in l9 G.O.Ms.No.68 dated 20.04.2020, 2.b) which clearty states that th a e em t ch alr exi r un on e 1 etf xc u V h e il ed s h r ov tm edi el M o dv m n av n all en od il m edi m ta a r of lm rlo This Court opines that the Secunderabad cantonment Board did not consider the issue of the'onooino ailotment period, (as stated in the counter affidavit at para 7). 16. A bare perusal of Section 2g7 of the Cantonment Act, 2006 clearly indicates a standard procedure to be followed by the Cantonment Board pertaining to.issuance of notice, and Section 318 deals with 'service of notice,. In the present case admittedly as borne on record and even as admitted by the learned counsel appearing on behalf of the Secunderabad Cantonment Board, the procedure under Section 297 and 318 of the Cantonment Act, 2006 had not been followed. Because even in the counter affidavit filed by 2nd respondentat para 11 it is specificafly stated that a Public Notice had been issued and admittedly as borne on em ts ich 20 record the mandatory procedure under Section 297 and 318 of the Cantonment Act, 2006 had not been followed. 17. A bare perusal of the contents of the impugned notice dated 17.06.2023 clearly indicates that it is a final notice issued to the petitioners and not a Show cause Notice and the same indicates that as per the resolution of the Board it had been decided that all the rooftop hoardings along with its structures be removed in view of the public safety. Therefore, the petitioners are directed to remove the rooftop hoarding structure on or before 30th June,2023, failing which action will be taken by way of levying penalty and as per the provisions of Cantonments Act, 2006 very clearly indicates that the mandatory procedure under Sections 297 and 318 of the Cantonments Act has not been followed. It is also in fact observed in order dated 27.06.2023 passed in W.P.No.16337 of 2023 as under: \"Notice before admission. Sri Gadi Praveen Kumar, learned Deputy Solicitor General of lndia takes notice for respondent No.1. Sri K.R.Koteswar Rao, learned Standing Counsel for Secunderabad Cantonment, takes notice for respondent No.2. This Writ Petition is filed challenging the public notice, dated 12.06.2023, issued by respondent No.2, 2t requiring the advertisement agencies having their advertisement hoarding structures on the rooftop of the buildings in Secunderabad Cantonment area are directed to remove the same on or before 30.06.2023 and further it is also indicated that if the same is not done before the said date, action will be initiated as per the Cantonments Act, 2006 and they were liable to pay penalty as decided by the-Board. Aggrieved by the said public notice, the present writ petition is filed. Sri K.R.Koteswar Rao, tearned Standing Counset for respondent No.2-Board submitted that unless and until individual notices are issued to respective owners of the advertisement hoardings, no further action would be taken solely basing upon the public notice, dated 12.06 .2029. ln the circumstances, post the matter on lI .07.2023 for filing cou nter- a Ffidavit. Pending further orders, respondent No.2 is directed not to take any further action pursuant to the public notice, dated 12.OG.ZO2g. However, this order will not be come in the way of respondent No.2-Board to take dtry, appropriate action, in accordance with taw, by following due process of law.\" 18. The submission of the learned counsel Sri K.R.Koteshwar Rao, Iearned Standing Counsel appearing for the 2nd respondent - Cantonment Board recorded in the order dated 27.06.2023 22 passed in W.P.No.16337 of 2023 clearly indicates that the assurance of the learned counsel before the Court had not been adhered to and that unless and until individual notices are issued to respective owners of the advertisement hoardings, no further action would be taken solely basing upon the public notice dated 12.06.2023 exercise of issuing individual notices and following the mandatory procedure as laid down under Section 297 and 318 of the Cantonment Act, had not been followed, as borne on record. 19. It is true that this Court in its Judgment dated 11.O1.2O23 passed in W.P.No.36328 of 2O22 and batch at para 23 observed as under: \"23. As per the above G.O., the intention of the respondent and the reasons for imposing restrictions on advertisement use is considering the public safety, road safety, aesthetic character and visual appearance of the city. In this regard, the G.O. imposes restriction on the advertisement elements. The restrictions that are imposed by the respondents on the height, distance and all the aspects are only to achieve the object of public good, safety and the aesthetics of the city. The G.O. impugned satisfies the proportionality test and there is no illegality in imposing the restrictions. \" T c 23 rti n maki an serv on o r u f h on di o s o.6 da 2 nor sth b rssue e re nt rt e lon. ln he o llen h o G M o d 2 2 wr tio Th !s eln th r tca cl iol nof th dar d rel id ntn eS nd ad r en A tn 287 d31 and ar ola n G M o.6 dat .o4.2 o se 2.b). 2 ts u tn s a ret ear v lati ncr s na ral u etn he nt T c of fir o !nt n that eti rs ht o hav b n ce or he sent o n sutn u n dM o 30. o.201 th nd d n a rl to tn h m ned rd o.1 15 2nd d tn ll dmi as n r iti ners h o or a th u n nd h re e u tn le r olati ed f audi m Dartem ru,e. 24 2L. This C urt oDtnest hat the Secunderabad Cantonment Board is an Auth tv to determine the or ouestions effectin o nohts of subiects has dutv to act udiciall and Res ondent Ca t nm nt Board decide aqainst the riqhts of the Det tioner without hearinq the oetitioner or otvlno anoDD rtunitv to the Detitioner o to represent his or her case in he manner known to law, t This Court is of the firm ooinion that the imouoned notice is a final order which has been passed admittedlv wi o ortu f he etitioner an which even accordino to the Iearned counsel aDDearrno on behalf of the resoondent as contrarv to the standard procedure laid down under Section 297 and 318 of the Cantonment A.ct, 2OO6. 22. The Apex Court in the judgment reported in (2OO9) 12 SCC 4O in \"UMANATH PANDEY & OTHERS v. STATE OF UTTAR PRADESH & ANOTHER\" at paras 10 & 11 observed as under : Para 10: The adherence to principles of natural justice as recognized by all civilized States is of supreme importance when a quasi- judicia! body embarks on determining disputes 25 between the parties, or any administrative actaon involving civil consequences is in issue. These principles are well setfled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the best limb of this principle. It must be precise and unambiguous. It shoutd apprise the party determinativety of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitaated. Thus, it is but essential that a party shoutd be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natura! justice. ft is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in L2LS, the first statutory recognition of this principte found its way into the \"Magna Carta\". The classic exposition of Sir Edward Coke of natura! justice requires to \"vacate, interrogate and adjudicate'.. In the celebrated case of Cooper v. Wandsworth Board of Works the principle was thus stated: (ER p. 42O). \"Even God himself did not pass sentence 26 upon Adam before he was called upon to make his defence. 'Adam' (says God), 'where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?\" Since then the principle has been chisetled, honed and refined, enriching its content. Judicial treatment has added Iight and luminosity to the concept, like polishing of a diamond. Para 11 : \"Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice,,. 23. The Apex Court in the judgment reported in (2O23) 6 Supreme Court Cases 1 in \"STATE BANK OF INDIA AND OTHERS v. RAJESH AGARWAL AND OTHERS,, at para 85 observed as under : \"85. Fairness in action requires that procedures which permit impairment of fundamental rights ought to be just, fair, and reasonable. The principles of natural justice have a universal aoolication and constitute an important faeet of 21 procedural propriety envisaged under Article 14. The rule of audi alteram partem is recognised as being a part of the guarantee contained in Article 14. A Constitution Bench of this Court in Tulsiram patet has categorically held that violation of the principles of natural justice is a violation of Article 14. The Court held that any State action in breach of natural justice implicates a violation of Article 14: (SCC p. 476, para 95) \"95. The principles of natural justice have thus come to be recognised as being a part oF the guarantee contained in Article 14 because oF the new and dynamic interpretation given by this Court to the concept of equality which is the subject_matter of that article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article l4i therefore, a viotation of a principle of natural justice by a State action is a violation of Article 14. Article 74, however, is not the sole repository of the principtes of natural justice. What it does is to guarantee that any law or State action violating them wilt be struck down. The principles of natural justice, however, appty not onty to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of \"State\" in Articte 12, is charged with 28 the duty of deciding a matter. In such principles of natural justice require that decide such matter fairly and impartially.'' 24. In a decision of a three-Judge Bench of Apex Court reported in (1981) 1 Supreme Court Cases 664 in *SWADESHI COTTON MILLS v. UNION OF INDIA\", the issue was whether the Central Government was required to comply with the requirements of audi alteram partem before it took over the management of an industrial undertaking under Section 18-AA(1)(a) of the Industries (Development and Regulation) Act, 1951. R.S. Sarkaria, J. speaking for the majority consisting of himself and O.A' Desai, J. laid down the followang principles of law: (SCC p. 689, para 44) observed as under: \"44. ln short, the general principle - as distinguished from an absolute rule of uniform application seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post- decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conrerring the power is silent with regard to the giving of a pre- decisional hearing to the person affected and the aciministrative decision taken by the authority invoives civil a case, the it must 29 consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a minimal hearing shorn of all its formal trappings and dilatory features at the pre-decisional stage, unless, viewed pragmatically, it would paralyse the administrative progress or frustrate the need for utmost promptitude. In short, this rule of fair play 'must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands,. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modifications. But, to recall the words of Bhagwati, 1., the core of it must, however, remain, namely, that the person affected must have reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.,, 25. In \"MANGfLAL v. STATE OF M.p., reported in (2OO ) 2 SCC page 447, a two-Judge Bench of Apex Court held that the principres of naturar justice need to be observed even if the statute is silent in that regard. In other words, a statutory silence should be taken to imply the need to observe the principles of natural justice where substantial rights of parties are affected: (SCC pp.453_54, para 1O) observed as under: 30 \" 1O. Even if a statute is silent and there are no positive words in the Act or the Rules made thereunder, there could be nothing wrong in spelling out the need to hear the parties whose rights and interest are likely to be affected by the orders that may be passed, and making it a requirement to foltow a fair procedure before taking a decision, unless the statute provides otherwise. The principles of natural justice must be read into unoccupied interstices of the statute, unless there is a clear mandate to the contrary. No form or procedure should ever be permitted to exclude the presentation of a litigant's defence or stand' Even in the absence of a provision in procedural laws, power inheres in every tribunal/court of a judicial or quasi- judicial character, to adopt modalities necessary to achieve requirements of natural justice and fair play to ensure better and proper discharge of their duties' Procedure is mainly grounded on the principles of naturat justice irrespective of the extent of its application by express provision in that regard in a given situation. It has always been a cherished principle. Where the statute is silent about the observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principles of natura! justice where substantial rights of parties are considerably affected. The application of natural iustice becomes presumptive, unless found excludeci by express worcis of statute 3t or necessary intendment... Its aam justice or to prevent miscarriage is to secure of justice. Principles of natural justice do not supplant the law, but supplement it. These rules operate only in areas not covered by any law validty made. They are a means to an end and not an end in themselves,,, 26. In *CANToNMENT BoARD v. TARAMANI DEVI-, reported in (1992) Supp (2) SCC page 501, a two_Judge Bench of this Court held that the rule of audi alteram partem is a part of Article 14. Similarly, in ,.DTC v. MAZDOOR CONGRESS,, reported in (1991) Supp (1) SCC 6OO, the Apex Court observed that the rute of audi alteram partem enforces the equality clause in Article L4. Therefore, any administratave action which violates the rule of audi atteram partem is arbitrary and violative of Article 14. This Court opines that administrative proceedings which entail significant civil consequences must be read consistent with the principle of natura I justice to meet the requirement of Article 14. 27. In \"SAHARA rNDIA (FIRM) (1) v. CIT,,, reported in (2OO8) 14 SCC page 1S1, a two-Judge Bench of this Court was 32 called upon to decide whether an opportunity of being heard has to be granted to an assessee before any direction could be issued under Section 142(2-A) of the Income Tax Act, 1961 for special audit of the accounts of the assessee. This Couft held that since the exercise of power under Section 142(2-4) of the Income Tax Act leads to serious civil consequences for the assessee, the requirements of observing the principles of natural justice is to be read into the said provisions. 28. In \"KESAR ENTERPRISES LTD v. STATE OF reported in (2O11) 13 SCC page 733, wherein it is held that: \"the Court dealt with a challenge to the validity of Rule 633(7) of the Uttar Pradesh Excise Manual which allowed the imposition of a penalty for breach of the conditions of a bond without expressly issuing a show-cause notice. D.K.Jain, J. speaking on behalf of the two-Judge Bench held that a show-cause notice should be issued and an opportunity of being heard should be afforded before an order under Rule 633(7) is made. The Court held that the rule would be open to challenge for being violative of Article 14 of the Constitution un less the requirement of an opportunity to show cause is read into it. The Court observed: (SCC p. 743, parcs 30 & 32) \"3O. Having considered the assue, framed in para 16, on the touchstone of the aforenoted iegai principles U.P:\" 33 in regard to the applicabitity of the principles of natural justice, we are of the opinion that keeping in view the nature, scope and consequences of direction under sub-rute (7) of Rule 633 of the Excise Manual, the principtes of naturat justice demand that a show- cause notice should be issued and an opportunity of hearing should be afforded to the person concerned before an order under the said Rule is made, notwithstanding the fact that the said Rule does not contain any express provision for the affected party being given an opportunity of being hea rd. \" 32. In our view, therefore, if the requirement of an opportunity to show cause is not read into the said Rule, an action thereunder would be open to challenge as violative of Article 14 oF the Constitution of India on the ground that the power conferred on the competent authority under the provision is arbitrary.,' 29. In the present case procedural Impropriety is evident and borne on record since the standard procedure laid down under Section 291 and 31g of the Cantonment Act, 2OO6 had not been adhered to by the 2\"d respondent. r ts le h n e r orr urres w thin to d n tn a lar m eri uld o tha an or ta 34 A) (M.Shankara Reddy Vs. Amara Ramakoteswara Rao reported in (2O17) SCC Online Hyd 426). B) The Division Bench of ADex Court in its iud ment dated O4.1O.20 2L tn UDe ch Ltd.. Vs. Emera td s Court Owner R sident Welfa re Association and Ors., reDorted in 2O2L SCC Online SC 3422, referring to TaYlor Vs. Taylor, 1875 (1) Ch D426, Nazir Ahmed Vs. King Emperor reported in (1936) t.R.63 Ind Ap372 and Parbhani Transport Co-operative Society Ltd., Vs. The Regionat Transport Authority, Aurangabad & Ors', reported in AIR 1960 SC 8O1 at para 13 observed as u nder: \"It is that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Hence when a statute requires a particular thing to be done in a particular manner, it must be done in that manner or not at all and other methods of performance are necessarily forbidden. This Court too, as adopted this maxim, This rule provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way. 35 30. Takinq into consideration the aforesaid facts and ctrcumstances of the se. and rn vrew of the law laid down bv the ADex Co rt in the varrous Judoments as (referred to nd extra above) and in the lioht of cted discussron as arraved t as above, the rit Petition ts allowed as orayed for. The resoondent No.2 is directed not to take anv further actaon Dur uant to the imouqned notice vide Lr.No.SCB/RS./Roofto Hoardin qs/2O23/ 1228 date 17.6.20 3. However, it is clearlv observed that this order will not come in the way of the 2\"d resDon ent - Cantonment ard to take anv aoorooriate action in acco ance to lawasDert e orovisions of Cantonment Act, 20O6 bv foll winq the ndard orocedure oertatntnq to notice as orovided under Sections 297 and 318 of the Canton ent Act. 2OO6. However- there shall be no order as to costs. Miscellaneous petitions, if any pending, in this writ petition shall stand closed. SD/- K. VEN AH ASSISTANT REGI TRAR //TRUE COPY// SECTION OFFICER To, SA 1. The Union of lndia, Ministry of Defense Rep by it Secretary Room No.305, B-Wing Sena Bhawan, New Delhi. 2. The Chief Executire officer, secunderabad cantonment Board, sardar Patel Road, Court Compound, Secunderabad - 500003. 3. One CC to Sri Yandapally Sharath Babu, Advocate to?qcl -- 4. One CC to Sri Gadi Pravi:en Kumar (DEPUTY SOLICITOR GENERAL OF INDIA) Advocate [OPUCI 5. One CC to Sri K.R.Koteshwar Rao, Advocate (OPUC) 6. Two CD Copies crt'/Al- i I I I I I I I I I i HIGH COURT DATED:1111212023 ORDER WP.No.16810 of 2023 ALLOWING THE W.P WITHOUT COSTS. € I 4 T E Y n h C T A S D 1 1 II 6 /* J a) o o ( + v o * 2024 9O @akq*vh "