S.Tirupathy V. The Union of India

WP/16915/2023

AI Insights

The case revolves around a writ petition filed by S. Tirupathy, an outdoor advertising business owner, challenging a public notice issued by the Secunderabad Cantonment Board (SCB) for the removal of rooftop hoardings on safety grounds. The petitioner argued that the notice was illegal and sought to set aside the operation of the notice. The SCB defended the notice, citing public safety and aesthetic reasons, and argued that the petitioner could re-erect the hoardings below 15 feet from the ground. The court examined the adherence to legal procedures in issuing the notice and found significant procedural improprieties, leading to the allowance of the writ petition.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 724723 (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: Mandamus; Public Safety; Removal Notice; Roof Top Hoardings; Writ petition
• Section: 151 CPC; 297; 318

Judgement Text

"132521 HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (SPecial Original Jurisdiction) MONDAY,THE ELEVENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY THREE PRESENT THE HONOURABLE MRS JUSTICE SUREPALLI NANDA WRIT PETITION NO 16915 0F 2023 Between: AND S-Tiruoathv. S/o llaiah Age 43 Yrs Rto 1-4'213t114, Sadana Vihar colony' Xapra,eCll, Secunderabad-62 ...'ET'T'ONER 1. The Union of lndia, Represented by its Secretary, For Defence' New Delhl - z. iii\" S.\"rnaerjbao Cantonment,'' Board R6presented by rts The Chief - Eiecutive Officer Sardar Patel Road, Court Compound, secunoeraoao- 500003. ...RESPONDENTS PetitionunderArticle226oftheConStitutionoflndiaprayingthatinthe circumstances stated in the affidavit filed therewith, the High court may be pleased to issue a writ,Direction especially in nature of Mandamus declaring the order passed by Respondent No 2 dated 12'06 2023 bearing No' SCB/RS/Rooftop Hoardings/20 23t1156 as illegal and consequentially set aside the operation of notice dated 12.06.2023 in SCB/RS/Roof top IANO:1O 2023 Petitionundersectionl5lCPCprayingthatinthecircumstancesstated in the affidavit filed in support of the pelition, the High court may be pleased to direct the Respondent No 2 not to remove roof top hoardings belonging to Petitioner on the roof top of the below mentioned premises SerialNo. Location of the No. of Hoardingstructures Hoarding Structure 1 Daimond pont Plot No 199 2No. 2. Sikh Village H.No 6-R3-025 1 No 3. Shop No 1 and 2 Bapujinagar 1No 4. Lallbzat Plot No 2 Nanuram Colony 1 no IA NO 20F 2023 Between: 1, The Chief Executive Officer, Secunde-rabad Cantonment' ' Board S'P Road' Court Compound, Secunderabad-500003' ...PETITIONEPJRESPONDENT No'2 AND 2. S.Tirupathy, S/o llaiah Age 43 Yrs Rto -1-.4.-213t114'sadqnq Vihar colony' -X'rrilrlidiL'.S\"crno\"oo'?oza'zaotpntte'Panchavaticolonv ....RESPONDENT No lM/R|T PETITIONER 3. The Union of lndia, Represented by its Secretary' For Defence' New Delhi' ...RESPONDENT/RESPONDENT No'1 (R2 not necessary party in the petition) Petition under section 1 51 cPC praying that in the circumstances stated in the affidavit filed In support of the petition' the Hrgh Court may be pleased to vacate lhe lnterim Order dated 04'07'2023 in WP No.16915 of 2023 in respect of the impugned Publrc Nof ice dated 12'06 2023 and dismiss the Writ Petition' in the interest of justice under the circumstances of the case Counsel for the Petitioner: SRI SUDHAKAR REDDY FOR SRI CHETLURU SREENIVAS Counsel for the Respondent No 1 : SRI GADI PRAVEEf{ I(UMAR (DY. SOLICITOR GENERAL OF INDIA) Counsel for the Respondent No'2: SRI K'R'KOTESHWAR RAO' . .'- - - .SC TOR CANTONMENT BOARD The Court made the following: ORDER THE HON'BLE MRS ]USTICE SUREPALLI NANDA WRIT PETITION No. 1691 s oF 2023 ORDER: Heard Mr.Sudhakar Reddy, learned Counsel appearing on behalf of Mr.Chetluru Srinivas, learned counsel for the petitioner on record, Mr.Gadi Praveen Kumar, learned Deputy Solicitor General of India, appearing on behalf of respondent No.1, and Mr,K. R.Koteshwar Rao, learned Standing Counsel appearing on behalf of respondent No.2 Cantonment Boa rd. 2, The petationer approached the Court seeking the prayer as follows: \"To issue a Writ Direction especially in nature of Mandamus declaring the papcr publication notice dated 12.06.2023 bearinq No.SCB/RS/Rooftop Hoardrngs/2023/1L56 rssued by Respondent No.2 as illegal and consequentially set aside the operation of notice dated 12.06.2023 in SCB/RS/Roof top Hoardings/20 23 / I t56.\" 3. The case of the Petitioner in brief: The petitioner is carryinq on business oF outdoor advertising under the name .rnd ,,tvtt of ,'Rythum Ads, R/o.1_4_ 213/l/4, SadanaVihar Colony, Kapra, ECIL, Secunderabad - 62 and eking out his livelihood. The petitioner in the course of his business had crccted roof top hoardings on the roof top of the premises a.e. 1) Plot No 199, Diamond Point,2) H.No. 6-R3-025, Sikh Village, 3) Shop No. 1& 2, Bapujinagar and 4) Lallbazar Plot No.2 Nanuram Colony by maintaining all safety standards, by payinq all n<:cessary rents to the owners of the buildings and also paid all necessary taxes without any default. It is further the case of the petitioner that the 2nd respondent Secunderabad Cantonment Board had issued a General Public Notification in Deccan Chronicle News Paper dated 12.06.2023 that all the roof top hoardings along with its structures be rc:moved rmmcdiately in view of Public safety on or before 30.06.2023. H.nce the present writ petition PERUSED THE RECORD. 4. The impugned Public Notice dated 12.06.2023 bearing No.SC8/RS/Roof Top Hoardings/2O23/L156 issued by the 2nd respondent - Cantonment Board to the petitioner, reads as under: ..PUBLIC NOTICE The Secunderabad cantonment board has resolved that all roof top hoardings along with its structures be removed in view of public safety. Therefore, the advertisement agencies having their advertisement hoarding structures on the roof top of the buildings in Secunderabad Cantonment area are hereby directed to remove the advertisement hoarding structures before 30.06.2023, Agencies and Owners oF the building failing to comply with notice will be levied with penalty as decrded by the board and action will be initiated as per cantonments Act 2006. The owner of buildrng will be personally liable for any damages caused or of life. The owners of the respective buildings having advertisement hoarding structures are to noted that it is i-esponsibility oF the owners to ensure that the structures are removed by 30th lune 2023, failing which action will be initiated as per Cantonments Act 2006 and subsequenily will be liable to pay penalty as decided by Board.,, 5. The True Extract of the Ordinary Board Meeting of the Cantonment Board, Secunderabad Hetd 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: l \"[15] fo consider imposition of penalty on unauthorized advertisement hoardings, flexis, wall writinq, 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 eyesore 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 erectang of flexis / Banners ii) Reduction of penalty charges. It is proposed 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 welt as visrbility 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. Reso luti n: 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].Ramakrishna,NominatedMember,afterexamining 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 exerciseshouldbeUndertakenbytheCantonmentBoard. 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 addressed. reasons and now both have been Afterthedetaileddiscussion'theBoardresolvedto 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 frofi oL'L!'2022\"' 6.TheTrueExtractoftheordinaryBoardMeetingof the Cantonment Board, Secunderabad Held at the Conference Hall, Office of the Cantonment Board' Secunderabad on 'Wednesday' the l0th day of May' 2O23 at 11OO hours, reads as under: \"[13] fo consider the note submitted by R.evenue Section for \"Reguiating advertisement hoardings on roof top of private buildings rn respect of safety & security of the resrdents\". As per the said report, this office is collecting Advertisement Fees for Hoardings erected on roof tops of private buildings. Thc chargcs are being collected as per the rates fixcd vidc CBR No.24, Dt.15.10.2014 as per the rates of the GHMC and later the same were revised vide CBR No.2B, Dt.19.i0.2020. Further, it is to inform that the roof top hoardings are posinq qreat thrcat to the nearby residents and commuters durrng heavy rains. The Municrpal Administration and Urban Development (GHt'1C) Department, Government of Telangana has draftcd a ncw Advertrsement policy vide GO MS No.6B, Dl.20 0,1 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 certrfied as stable, thereby creating havoc. Subsequently, thc Government has issued operative guidelines I'or granting permission only for advertisement elements below 15 feet from ground level. The revenue collected through advertisement fee from Hoardrngs on Roof top buildinqs for the year 2022-23 is Rs. 1,08,,10,920i 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 placcd on the table. Resolution: The CEO apprised the Board about regulating advertisement hoardings on rooftop of private buildings an respect of safety of the public. By removing these hoardings, approximately there wil! 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 l. 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 commrttee may be constituted for studying the structural safety. PCB stated that human life is more rmportant 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 30th lune, 2023, failing which action to be taken against the violators as per the Board resolution vide CBR No. 15, dt.29,O9.2O22 and as per provisions of Cantonments Act, 2006.\" li 7. A bare perusal of the G.O.Ms.No.68 dated 2O.O4.202O clause 2.b) reads as under: \"b) All the adverusement elements which are above 15 feet hcight from ground level shall not be permitted. Those advertisement elements which are already existing on the ground on the buildings exceeding 15 feet from qround level and have comoleted their allotted t rm sha ll be removedimmediatelv bv 6HMC. Those a dvertisement elements which have an onqoinq allotment oe riod hall be remov imm tel fter m ion of he time period. Further if anv adverta sement element is removed for whatever reason. no sh iftinq oermtsst on shall be accorded and the AIN shall be a utomatica I Iv ca ncelled.\" 8. The relevant sections of The Cantonment Act, 20O6 regarding imposition of taxation, reads as under: \"( 17) thr: conlrol and supervision of places where dangerous or offensrve trades are carried on so as to secure clc:anliness therein or to minimise any injurious, offensrvc or dangerous effects arising or likely to arrse therefronr; (18) the regulation of the erection of any enclosure, fence, tent, awning or other temporary structure of whatsoever material or nature on any land situated within the cantonmcnt and the fees chargeable in respect thereof.,, E] 9. Co u nter affidavit filed bv the 2nd resoonde t, in a ar Par 9 1 11 sun f \"7. I further humbly submit that, regarding collection of hoarding charges/Fee from time to time from the Petitioner, 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 petitioner and others located in the Cantonment area and after its removal. rf the Petitioner is intended to submit fresh Application for erection of advertisement 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. Therefore, for mere payment of license fee of hoardings will not create any right to the petitioner to prevent the Board from issuing the impugned public Notice calling for the owners to remove the rooftop hoardings. 9. I further humbly submit that, the contention of the petitroner is that, the public Notice issued to remove the hoardings without following due process of law. is factually not correct, as the grounds for issuance of the impugned Public Notice were clearly mentioned an also oave an oDoortunitv and breathi nq ti etoremove hoa rdinqs b ue faP !c rce her m eth a we tim ha e ra a b v tu h f rmDuqned Public Notice issued for demolition of the o dh hoardinos, the Boar as no intention to close the business of the oetition r and he can verv well restart the business by re-erectinq the hoardinq structures below 15 feet from the qround level after obtaininq requlsite saxetion lrom the Board. Therefore, there will not be any loss of revenue or livelihood to the petitioner, as alleged. 10. I further humbly submit that, the impugned Public Notice was issued to remove the rooftop hoarding structure 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 decrsion, the owners of such rooftop hoa rdtngs were directed to remove the same, however they rnay re-erect therr hoardings below 15 feet from ground level, as is permissible in GHMC area, and the present Nolice rs issued in consonance with G.O.Ms.No.68 of GHlvl(-, as detarled supra. In view of the same, the Writ Petitioner is required to remove the rooftop hoarding structures from his property. 11. I further humbly submit that, a Wrt Petrtron rs maintainable under Article 226 of the Constitution against any Order passed or Notice issued by anv statutory authority only on three circumstances viz., (i) violation of principles of natural justice, (ii) without lurisdict on and (iii) violation of statutory procedure. In the present casc, the Petitioner is not falling in any of these three exceptions, as the Respondents have not violated the principles of natural ll justice, as Resolution, alleged as, as subsequent to Board's he imouqned Public Notice has been ued callin the n f the own f buildino where rooftoD hoardino structures have heen re/^laA coas dvt. Aa enf tho A d d av ardin Secondly, the Secunderabad Cantonment Board, represented by the Chief Executive Officer, had issued the impugned Public Notice having jurisdiction to issue such Notice as per the provisions of the Act, as detatled supra. Lastly, the Board has not vtolated any statutory procedure and ordering to remove rooftop hoardings is followed by the Board Resolution which was passcd in consonancc with G.O.Ms.No.68 dated 20.04.2020 of GHMC and accordingty the impugned Public Notice has been issued to remove rooftop hoardings to safeguard safety and security of the public and also to prevent shabby look of thc Cantonment. In view of the above stated grounds, the petrtioner miserably failed to establish any prima facie case to interfere with the impugned Public Notice issued by the 2nd Respondent and the Writ Petition is devoid of any merits.,, 10. Learned counset appearing on behatf of the petitioner adopted the reply affidavit in W.p.No.16613 of 2O23 and also the legal pleas raised thereunder. RELEVA NT PROVISIONS: Section 297 of the Cantonment Act, 2OO6, reads as under: SUfficient time tor emove the roo ton ho os t \"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 excavatron, or any bank or tree, is in the opinion of the Chief Executive Orficer, in a ruinous state or, for want of sufficient repairs, protection or enclosure, a nursance or dangerous to persons passlng by or dwellrng or working in the neighbourhood, the Chief Executive Officer, by notice rn writing 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 Executrve Officer. imminent, he shall forthwith takc surh steps as he thinks necessary to avert the same. Section 318 of the Cantonment Act, 2OO6, reads as under: 318. Service of notice, etc._ (1) Every noticc, ordcr or reqursitron issued under this Act or any rule or bye_ law made thereunder shall, save as otherwise expressly provrded, be served or presented_ (a) by qiving or tendering the notice, order or requisition. or sending it intended; or (b) if such person cannot be found, by aftixing the notice order or requisition on some conspicuous part of his last known place of abodc or business, if within the by post, to the person for whom it is l-l 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 thc notice, order or requisition, or sending it by post, to the owncr, lessee or occupier, or, if there are more owners, 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 affixed 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 rs 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 petitioner mainly puts forth the following subrnissions: t.l (ii) (iii) (i) (iv) That the adopted a notices. Learned counsel respondent - Cantonment Board had pick and choose policy and issued the That the impugned public Notice is in violation of the p rinciples of natural justice, It is without j u risd iction, It is in violatron of statutory procedure laid down under thc Secunderabad Cantonment Act, for the petitioners placing on the submrssions 1;ut forth above. prayed that the writ petition should be allowed as prayed for. L2, Learned counsel appearing on behalf 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 12.06.2023 in Shakshi (Telugu), Deccan Chronicte (Enqlish) and Hrndi Milap (Hindi) newspapers, whcrcby thc owners of the respective buildings l-ravrng advcrttsement hoarding structures are to be notcd that it rs the responsibility of the owners to ensure that the structures are removed by 30.06.2023, tailing which action would be initiated as per rhe Act, 2006. Tfrereafter, thr: rndividual notices were also issued to the Advertisements Agencies and owners of the (ii) ti (iii) buildings on which the advertisement 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.6B 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. The Cantonment Board is removed the rooftop hoarding structures under the provisions of the Cantonment Act and therefore there is no illegality in issuinq the impugned notice on two grounds One rs 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. (iv) t6 Learned counsel appearing on behalf of the Respondent - Cantonment Board placed reliance on the ludgment dated 11.0L.2023 passed in W.P.Nos.3632B of 2022 and batch and contended that the writ petition has to be dismissed. DISCUSSION AND CONCLUSION: 13. A bare perusal of the extract oF the Ordinary Board t4eeting 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 1500 hours clearly indicates two issues - Firstly - to consider imposition of penalty on unauthorized advertisement 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 sizc 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 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: l1 I st. i N9. I Erectron or unau[hoiize7- novertisEmeni eremenii ns.rpopooZ- per Day VIOLATION Penalty amount (in Rs,) above l5 Feet in heigft from ground level Erection of Unauthorized Advertisement element Rs.50,000/- Per Day bBlory 15 fse! in hqlqhlj1orn g1gund_level Use of flashing lights/Non static illumination rn Advertrsement wrthout permission Rs,50,000/ Per Day 4 5 Use of Moving, rotating or varia ble messag Rs.10,000/- Per Day l2 l3 I 'l B Size of the Advertisement/Name board exceeding Rs.100/- Per Sq.ft. Per Day 15olo Frontaqe of the building e AdvertrsinaDeyrces 6 Operating an Advertisement element without valid Rs.50,000/- Per Day Structural Stabilitf Certificate Advertrsement on moving vehicle where the Rs.10,000/- per violatron advertisement is placed in a manner of any additronal board, structure or projection on the body of the vehic e Use of illuminated Advertisements with brightness more then allowed limit Rs. 10,000/- per vaolation Wall Writings 9 Wall Postera Unauthorized erection of ganners a Cut outi Rs. i,000/ for each wall wrrt.n9 Rs.2,000/ fq e!ch pest el' Rs.5,000/l fo. eacn UannE] 10 11 &Cutout 14. A bare perusal of the G.O.Ms.No.68 daled 20.04.2020 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 whrch are already existrng on the ground on the buildings exceeding 15 feet from qround level and have comoleted their allotted term shal! be remqvqdjrnLnnedialtely !y GtiMC. Those advertisement elements which have an ono allotment eriod shall tre tntl ___l n removed immqdiately after completion of the time Deriod. l l t3 G.O.Ms.No.68 dated 20.04.2020 which pertains to the Guidelines from granting new permjssion for advertisement elements below 15 feet from ground level and also for regulating the advertisement elements bel.ow 15 feet from g rou nd GHMC area 15. The plea of the learned Standing behalf of the Secunderabad Cantonment existing level in Co u nsel appearing on Board that the Board Resolution dated 10.05.2023 was passed inconsonance with G.O.Ms.No.68 of GHMC and the Ftoard 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.68 dated 20.O4.2O2Oon the basis of which the Board Resolution dated 10.05.2023 had been passed is totally contrary to the specific instructions as indicated in G.O.Ms.No.68 dated 20.04.2 02O, 2.b) which ctearly states that t v eme t ments wh ich r a read xt tin onth e qround on the buildinqs exceedinq 15 feet frotn l9 oround leveI and have com ed thei f ailotted terms D t shall v immediatel b .Th se advert alarranl-c rrrh ir-h h 2 tn all tment eriod slrr I lra removed immediatelv after comDletion of the tame Deriod. This Court opines that the Secunderabad Cantonment Board did not consider the issue of the 'onqoinq allotment period' (as stated in the counter affidavit at para 7) 16. A bare perusal of Section 297 of the Cantonment Act, 2006 clearly indicates a standard procedure to bc followed by the Cantonment Board pertaining to 'issuance of notice' and Section 318 deals with'service of notice'. In the present case admittecily as borne on record and even as admrtted by the learned counsel appearing on behalf of the Secunderabad Cantonment Board, the procedure under Section 29/ and 3lB of the Cantonment Act, 2006 (referred to and extracted abovc) had not been followed. Because even in the counter afFrdavit f ilcd by 2\"d respondent at Para 11 it is specifically stated that a Public Notice had been issued and admittedly as borne on record the mandatory procedure under Section 297 and 318 of [he Cantonment Act, 2006 (referred to and extracted above) had not been followed. n t0 17. A bare perusal of the contents of the impugned public Notice dated 12.06.2023 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 30t\" lune, 2023, failing which action will be taken by way of levying penalty and as per the provisions of Cantonments Act, 2006 vcry clearly indicates that the mandatory procedure under Se ctions 297 and 318 of the Cantonments Act has not been followed. [t rs also in fact observed in order dated 27.06.2023 passed in W.t).No.16337 of 2023 as under: '' Notrcc beforo admission. Sri Gadi Praveen Kumar, learned Deputy Solicitor General of lndia takes notice for respondent No.1. Sri K.R.Kotesrvar Rao, learned Standing Counsel for Secundcrabad (_antonment, takes notice for respondent No.2. This Writ petil-ion is filed challenging the public notice, dated 12..06.2023, rssued by respondent No.2, requiring the advcrtrsement agencies having their advertlsenront hoardtnq structures on the rooftop of the buildings in Secunderabad Cantonment area are directed to remove the same on or beforc 30.06.2023 and further it is lt also indicated that if the same is not done before the said date, actron will be initrated as per the Cantonments Act, 2006 and they were tiable to pay penalty as decided by the-Board. Aggrieved by the said public notice, the present writ petition is filed. Sri K.R.Kotes ar Rao, I arned s ndino Counsel for resoonde nt No.2-Board submitted that u n less and untit individual notices are tssued to resoective owners of the advertisem ent hoardinos. no further onw be sol stn on th ubli tice ed 12. .202 ln the circumsLanccs, post the matter on ll .O7.2023 for filin g cou nter-affidavit. Pending further orders, respondent No.2 is directed not to take any further action pursuant to the public notice, dated 12,O6.2023. However, this order will not be come in the way of respondent No.2-Board to take dtry, appropriate action, in accordance with law, by following due process of law.\" 18. The submission of the learned counsel Sri K.R.Koteshwar Rao, learned Standing Counsel appearing for the 2nd respondent - Cantonment Board, recorded in the order dated 27.06.2023 passed in W.P.No.76337 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 followtng the mandatory procedure as laid down under Section 29f 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 11.01.2023 passed in W.P.No.36328 of 2022 and batch at para 23 observed as under: \"23. As per the above G.O., the intentron of the respondent and the reasons for imposing restnctions 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 restrictron 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 aood, safety and the aesthetics oF the city. The G.O impuqned satisfies the proportionality test and there is no illegality in imposing the restrictions. \" This Court is not makinq anv observations in so far as issuance of the said G.O., is concerned i.e G.O.Ms.No.68 dated 2().O4.2O2O nor it is the subiect issue in th n w rit titio there is no challen e to G.O.Ms.No.68 dated 2O.O4202O in the present writ ll Detitio n. The issue in the Dresent case is clear violation of the standard procedure laid down in the Secunderabad Cantonment Act Derta n no o Sections 287 and 318 and clear violation of G.O.M N 4.2 2 se 2.b). 20. This Court oDines that there is clear violation of plirciples of natural iustice rrr the oresent case. This Court is of the firm ooinion that the petitioners ouqht to have been out on notice orior to issuinq the present impuqned Memo dated 30.10.2015 bv the 21 respondent and prior to passinq the imouqned order dated 3O.10.2O15 bv the 2\"d respondent in all fairness and admittedlv as borne on record theDet tioners have not been heard orior to assrn of the orders im u ned and ther or h r r imouqned are in clear violation of audi alteram oarfem ru le. 2L. This Court opines that the Secunderabad can onment Board is an Authoritv to determine the t questions effectinq f subiects has dutv to act Cantonment Board cannot decide aoainst the riohts of the 1retitlg1ter without hea ri nq at fi'l tcl il l.l e e itioner or tvtn an o ortu n i to he eti ion r re ent hi or herca ein the mann knownt r la T IS ou th lir o rnt n ha th tm u n n tc tn I ord w ich ha b en a se a edl with u provid i n an ODDortu nity of hea rinqto the oetition r and wh ch ve a rdin th le rned ou sel a ea tn o beha fo ft he respondent rscon trar to the sta ndard DTocedure laid down under Sectio n 297 and 318 of the Canton ct 20 6 t 22. The Apex Court in the judgment reported in (2OO9) 12 SCC 40 in umanath pandey & others vs. state of uttar Pradesh & Another at paras 10 & 11 0bserved as under : Para 10: The adherence to principtes of natural justice as recognized by all civitized States is of supreme importance when a quasi_ judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well setUed. 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 should apprise the party 2-5 determinatively 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 vitiated. Thus, at is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It 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 12L5, the first statutory recognition of this principle found its way into the \"Magna Carta\". The classic exposition of Sir Edward Coke of natural 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 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 chiselled, honed and refined, enriching its content. Judicial treatment has added light and h luminosity to the concept, like polishing of a \"Principles of natura I 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 (2023) 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 rn actron requires that procedures which permit rmpairment of fundamental rights ought to be just, fair. and reasonable. The principles of natural justice have a universal applicatron and constitute an important facet of 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 ConstrtLrtron Bench oF this Court in Tulsiram patel has categoncally held that violation of the principles of natural lustice is a violation of Article 14. diamond. Para 11 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 rn Article 14 because of the new and dynamic interpretatron 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 discramination; where discrimination is the result of State action, it is a violation of Article 14i therefore, a violation 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 principles of natural justice. What it does is to guarantee that any law or State action violating them will be struck down. The principles of natural justice, however, apply not only to legislation and State action but also where any tribunal, authority or body of men, not coming within the definition of \"State\" in Article 12, is charged with the duty of deciding a matter. In such a case, the principles of natural justice require that it must decide such matter fairly and impartially.\" 24. In a decision of a three-Judge Bench of Apex Court reported in (1981) 1 Suprerne Court Cases 664 in 'SWADESHI COTTON MILLS v. UNION OF INDIA\", the 8 issue was whether the Central Government was required to comply with the requirements ol audi alteram partem before it took over the management of an industrial undertaking under Section 1B-AA(1)(a) of the Industries (Development and Regulation) Act, 1951. R.S. Sarkaria, J.speaking for the majority consistang of himself and D.A, Desai, J. laid down the following principles of law: (SCC p. 689, para 44) observed as under: \"44. In short, the general principle - as distinguished from an absolute rule of uniform application seems to be that lvhere 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 ordcr on merits, then excluding the such a audi statute would be construed as alteram partem rule at the pre dccisional stage. Conversely, iF the statute conferring the power is silent with regard to the giving oF a pre- decisional hearing to the person affected and the administrative decision taken by the authority involves crvil consequences of a grave nature, and no full review or appeal on merits against that decision is provrded, courts will be extremely reluctant to construe such a statute as excluding the duty of affording even a mininral hearrng shorn of all its formal trappings and dilatory features at the pre-dcc sional stage, unless, viewed pragmatical{y, it would paralyse the administrative progress or frustrate the need 9 for utmost promptitud€. In short, this rule of fair play 'must not be jettisoned save rn very exceptlonal circumstances where compulsive necessity so demands'. The court must make every effort to salvage this cardinal rule to the maximum extent possible, with situational modrfications. 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 \"MANGLLAL V. STATE Of M.P., reDorted in (2004) 2 SCC page 447, a two-Judge Bench of Apex Court held that the principles of natural 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 10) observed as under: \" 70. Even if a statute is s ent and there are no ,'l ositive wo s in thc ct or iha R m I h reund h td en hin wron tn s ellin out the need to hear the oartLes whese righls d interest are likelv to be a cted b t'he orders that mav be Dassed. and ma Ino it a reouirement to dU o follow e e,r Droce re before ta kin a decision unless the statute provides otherwise. The principles ir) of natural justice must be read into interstices of the statute, unless there mandate to the contrary. No form or unoccupied is a clear procedure cherish ed about the 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 principtes natural justice irrespective of the extent of of r'ts application by express provision in that regard in a given situation. ft has always been a principle. Where the statute is sitent observance of the principles of natural justice, such statutory silence is taken to imply compliance with the principtes of natural justice where substantial rights of parties are considerably affected. The application of naturat justice becomes presumptive, unless found exctuded by express words of statute or necessary intendment, Its aimts tosecureiustice or ven m 'scarria eof u tc Prin of I I na I u ,c SU don ot u lan the la DD ment t Th Se ru/es OD rate onlv in areas not t v an aw vali I a e. The n d ot en tn hemselve are a s a -lt 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 ot 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 rule of audi alteram partem enforces the equality clause in Article L4. Therefore, any administrative action which violates the rule of audi alteram 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 natural justice to mcet lhe requiremcnt of Article r4 27. In \"SAHARA INDIA (FIRM) (1) v. CIT\", reported in (2008) 14 SCC page 151, a two-ludge Bench of this Court was called upon to decide whether an opportunrty 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 assessce. Thrs Court held that since the exercise of powcr under Sectrcn 1.12(2-A) 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 U.P.\", 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 assuing a show-cause notice. D.K.lain, .l . speaking on behalf of the two-Judge Bench held that a show (.ause notice should be issued and an opportunity of berng heard should be afforded before an order under Rule 633(7) is made. The Court held that the rule would be opcn ro challengefor being violative of Article 14 of thr: Const tution unless the requirement of an opportunily to show cause is read into it. The Court observed: (SCC p. 743, paras 30 & 32) \"3O, Having considered the assue, framed in para 16, on the touchstone of the aforenoted legal principles in regard to the applicability of the principles of natural justice, we are of the opinion that keeping in view the nature, scope and consequences of direction under sub-rule ( 7 ) of Rule 633 of the Excise Manual, the principles of natural 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 297 and 318 of the Cantonment Act, 20O6 had not been adhered to by the 2nd respondent. It is settled Ia whenast atute descrabes or requires a thanft trt hc d.rnet itan a rti att Ar rtarrncr it chorrld ]ra dnna in that manner or not at all, A) (M.Shankara Reddy Vs. Amara Ramakoteswara Rao reported in (2017) SCC Online Hyd 426). B) The Division Bench of ADex Court in its iudqment dated 04.1O.20 21 in Suoertech Ltd.. Vs. Emerald er Resid w lfare A Ors. re ted in 2O21 S Online SC 3422 referri ng to Taylor Vs. Taylor, 1875 (1) Ch D426, Nazir Ahmed Vs. King Emperor reported in (1936) L.R.63 Ind Ap372 and Pa rbha n i Regional reported u nder: Transport Co-operative Tra nsport Authority, in AIR 1960 SC 8O1 at Para 13 observed as Society Ltd., Aurangabad Vs. The & Ors., \"It is that certain thing in where a a certain power WOY, ts the glven thing to do a must be done in that way or not at a and that other methods of performance are necessarity 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 rute provides that an expressly laid down mode of doing something necessarily implies a prohibition on doing it in any other way. 30. Takin q into consideration the af resaid facts and o crrcumstances of he ca d v! w the I w laid down bvt he x Courti th VA Judqments as ious ( referredtoande racted above)andin the liqht of di c u ssion as arrived atas above the Writ Peti tio n ts all wed s r e f r. Th re on en o.2 is tr cte n t i5 t take an t era ro p rsuantto thet mDu ned Public Noti vt e N s B R o ft oardi 2023 I 5 d t 12. o 3 w V it le o serve h t d it ew t h 2nd resDondent CantonmentB oardt o ke anv ADD roD riate cti ntn a or a c w er th o ns of c ntonment Act 2006 bv lowinq the and t ard r ce ur rt n o o ce r VT d un erS cti s 2 7 nd3 h c n on e tAc //TRUE COPY// 8 t 2 o H ver ere shall b n o era Miscellaneous petitions, if any pending, in this wflt petition shall stand closed To, SD/- T. JAYASREE ASSISTANT REGISTRAR 8-' SECTION OFFICER '1 The Secrctary, Unron of.lndia, For Defence, New Dethi. z. lne Secun(ierabad Canl E - ;;;; ij ;;#;d,i,j,l?fll\"it;;?:S:1l\"&ffiil?{ :#,;J[:,:i:\"J 3 One CC to SRt. GAD| pr tNDtA) topugt RAVEEN KUMAR (Dy. SoLlClToR GENERAL oF i r?F.i.? to sRr K R K.TESHWAR RAo, sc FoR .ANT.NMENT B.ARD ? 9n. CC to SRt. CHETLURU SREENTVAS, Advocate tOpUCl \" Jff cD copres GJP . +,- ! HIGH COURT DATED:1 111212023 ORDER WP.No.16915 of 2023 ALLOWING THE WRITPETTTION WITHOUT COSTS 14 s E P 1 R t€' (( c ) * ?2 -t4 19 APB 2024 ( A. -I, + sprTcuEo t "