Anil K. Narendran, J.:— The petitioner, who is conducting business in the field of advertising on lamp posts, within the limits of various local authorities, submitted tender pursuant to Ext.P1 tender notice dated 20.06.2017 issued by the 1 respondent Corporation for erecting advertisement boards on specified size on the sodium vapor lamp posts in the eastern and western areas situated within the limits of the Corporation. He was the successful bidder for ‘eastern area’ for a consideration of Rs. 28,80,000/- and also for ‘western area’ for a consideration of Rs. 3,00,000/-, for a period of three years. The petitioner entered into Exts.P2 and P3 agreements dated 01.02.2018 with the 1 respondent Corporation for erecting advertisement boards in the sodium vapor lamp posts in ‘eastern area’ and ‘western area’ respectively. Later, the Deputy Secretary of the 1 respondent Corporation issued Ext.P4 tender confirmation order dated 16.02.2018.
2. As per Clause 29 of Ext.P1 tender notification, the bidder has to get No Objection Certificate (for brevity ‘NOC’) for erecting advertisement boards from various authorities, including the National Highways Authority, Public Works Department, etc. The Corporation shall render assistance by issuing necessary communications in this regard. As per Clause 24 of Exts.P2 and P3 agreements, the petitioner can erect advertisement boards in the sodium vapour lamp posts in National Highways, PWD roads, etc. and the Corporation shall render assistance by issuing necessary communications in this regard. The petitioner submitted Ext.P5 representation dated 11.04.2018 before the Project Director of the 2 respondent National Highways Authority of India seeking NOC to erect advertisement boards on the sodium vapor lamp posts in the National Highway stretch from Edappally to Thykoodam Bridge, on the strength of Ext.P4 order. The said request stands rejected by Ext.P6 communication dated 18.04.2018 issued by the 2 respondent, wherein it has been stated that no advertisements shall be permissible in the National Highway stretch, as it is in violation of the Control of National Highways (Land and Traffic) Act, 2002. The petitioner has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Exhibit P6; a writ of mandamus commanding the 2 respondent not to remove or dismantle the advertisement boards placed by the petitioner; and a declaration that the petitioner can validly display the boards as permitted by the 1 respondent Corporation and the destruction of boards by the 2 respondent is illegal and unauthorised.
3. On 06.03.2019, when this writ petition came for admission, the learned Standing Counsel for the 1 respondent Corporation and also the learned Standing Counsel for the 2 respondent National Highway Authority of India sought time to get instructions.
4. On 15.03.2019, when this writ petition came for consideration, the learned Standing Counsel for the Corporation took notice on admission for the 1 respondent and the learned Standing Counsel for the National Highways Authority of India took notice on admission for the 2 respondent. The respondents were directed to file counter affidavits within ten days.
5. A statement has been filed on behalf of the 2 respondent opposing the reliefs sought for in this writ petition. The petitioner has filed a reply affidavit. A statement has also been filed by the learned Standing Counsel for the 1 respondent Corporation.
6. On 11.04.2019, when this writ petition came up for consideration the learned Standing Counsel for the 1 respondent Corporation sought time to file additional statement, in view of the contentions raised in the statement filed on behalf of the 2 respondent. Accordingly, three weeks time was granted and the matter was posted to 23.05.2019. On 23.05.2019, the learned Standing Counsel for the 1 respondent Corporation sought adjournment and accordingly the matter is listed today for further consideration.
7. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1 respondent Corporation and also learned Standing Counsel for the 2 respondent National Highways Authority of India.
8. The issue that arises for consideration in this writ petition is as to whether any interference is warranted on Ext.P6 communication dated 18.04.2018 issued by the 2 respondent, whereby the request made by the petitioner for permission/no objection to erect advertisement boards on the sodium vapor lamp posts on the National Highway-66 stretch (Edappilly - Vyttila OMT) stands rejected, on the ground that, no advertisement shall be permissible in the National Highway stretch, which is in violation of the National Highways (Land and Traffic) Act, 2002.
9. The learned counsel for the petitioner would contend that, on the strength of Exts.P2 and P3 agreements, the petitioner has every right to erect advertisement boards on the above stretch of National Highway-66 and the 2 respondent has arbitrarily rejected the request for NOC made in Ext.P5 representation, without any valid reasons.
10. In the statement filed on behalf of the 2 respondent, it is pointed out that that Central Government by notification S.O. No. 1291(E) published in the Gazette of India dated 11.11.2003 entrusted the old National Highway-47 (New National Highway-66) stretch from Vyttila (Km.349/000) to Aroor (Km.358/750) to the National Highways Authority of India under Section 2 of the National Highways Act, 1988. Therefore, from the date of the issue of the above notification entrusting the above stretch of National Highway to National Highways Authority of India, the Government of Kerala or any local body within whose jurisdiction the highway is passing through is not having the power or jurisdiction to issue sanction for the installation of the advertisements or hoardings on the National Highway entrusted to the National Highways Authority of India.
11. The Control of National Highways (Land and Traffic) Act, 2002, provides for control of land within the National Highways, right of way and traffic moving on National Highways and also for removal of unauthorised occupation thereon. Clause (e) of Section 2 of the said Act define ‘highways’ to mean a National Highway declared as such under Section 2 of the National Highways Act, 1956 (48 of 1956) and includes any Expressway or Express Highway vested in the Central Government, whether surfaced or unsurfaced, and also includes (i) all lands appurtenant to the highway, whether demarcated or not, acquired for the purpose of the highway or transferred for such purpose by the State Government to the Central Government; (ii) all bridges, culverts, tunnels, causeways, carriageways and other structures constructed on or across such highway; and (iii) all trees, railings, fences, posts, paths, signs, signals, kilometre stone and other highway accessories and materials on such highways.
12. Chapter III of the Control of National Highways (Land and Traffic) Act, deals with prevention of unauthorised occupation of highway land and their removal. As per subsection (1) of Section 23, all lands forming parts of a highway which vest in the Central Government or which do not already vest in the Central Government but have been acquired for the purpose of highway shall, for the purposes of this Act, and other Central Acts, be deemed to be the property of the Central Government as owner thereof. In view of the provisions under Section 23 of the said Act, all lands forming part of a National Highway-66 shall vest with the Central Government and therefore, the 1 respondent Corporation or any Local Self Government Institutions shall have no right or authority to permit erection of advertisement boards either on the sodium vapour lamp posts or any land appurtenant to that highway, bridges, culverts, etc., which would come under the purview of clause (e) of Section 2 of the said Act.
13. As already noticed, as per Clause 29 of Ext.P1 tender notification and Clause 24 of Exts.P2 and P3 agreements, the petitioner has to get NOC from the National Highways Authority of India for erecting advertisement boards on National Highways. The petitioner made Ext.P5 request dated 11.04.2018 for erecting advertisement boards in the sodium vapour lamp posts from Edappally to Thykoodam Bridge National Highway-66 (from KM 342.000 to KM 358.750). The said request stands rejected by Ext.P6 communication dated 18.04.2018 of the Project Director of the 2 respondent National Highways Authority of India.
14. Though Ext.P6 communication issued by the 2 respondent is one dated 18.04.2018, which is one issued immediately after Ext.P4 tender confirmation order dated 06.02.2018, the petitioner has chosen to challenge that communication by filing this writ petition only on 05.03.2019, nearly, one year after the issuance of Ext.P6. It is trite law that delay and laches is one of the important factors which this Court must bear in mind while exercising discretionary power under Article 226 of the Constitution of India, as held by the Apex Court in Tamil Nadu Housing Board v. Meiyappan, [(2010) 14 SCC 309]. The averments in the writ petition would indicate that, despite the issuance of Ext.P6 communication dated 18.04.2018, the petitioner erected advertisement boards on the sodium vapour lamp posts on the National Highway-66 stretch from Edappally to Thykoodam Bridge and out of 50 advertisement boards so erected, 15 boards have already been removed under the instructions of the 2 respondent.
15. It is pertinent to note at this juncture the provisions under ‘Policy on Roadside Advertisements’ formulated by the Indian Road Congress, vide IRC: 46-1972. Such a policy was introduced when it was noticed that advertisement can often distract the attention of drivers of motor vehicles and in that case a public hazard or nuisance. They may also obstruct the view of the drivers of fast-moving vehicles and are then a public danger. Para.2 of IRC: 46-1972 deals with advertisement control; Para.3 deals with principles on advertisement control; etc.
16. The Ministry of Road Transport and Highways vide Circular No. RW/NH-33044/35/2001/S&R (R) dated 16.05.2002 has made it clear that no advertisement hoardings are permitted on National Highways within the Right of Way (ROW) except informatory signs of public interest such as hospitals, bus stations, etc. or advertisement of temporary nature announcing local events such as Mela, Flower Show, etc. Besides, IRC: 46-1972 titled ‘A Policy on Roadside Advertisements’ published in 1972 should also be referred for comprehensive guidelines on advertisement control on National Highways.
17. The Ministry of Road Transport and Highways in its letter No. F. No. RW/NH-33044/18/2016/S&R (R) dated 07.09.2016 noticed that despite the Ministry's policy of not allowing roadside advertisements, hoardings on National Highways which cause distraction and is also one of the causes of accidents on National Highways, advertisement hoardings have generally been noticed along the National Highways. Therefore, it was decided that the Regional Officers/Engineering Liasoning Officers within their jurisdiction shall inspect the National Highways by prioritising heavily traffic National Highways and other National Highways in stages and submit inspection reports to the Ministry for further necessary action, along with their monthly reports. However, reports from the Regional Officers/Engineering Liasoning Officers are not being received by the Ministry and therefore, the Ministry vide letter dated 07.09.2016 directed all the implementing agencies and Regional Officers/Engineering Liasoning Officers to do joint inspection of all National Highways within their jurisdiction and sent a consolidated report regarding advertisement hoardings to the Ministry for further necessary action. A copy of the said letter is addressed to all Engineers-in-Chief and Chief Engineers of Public Works Departments of State/Union Territories dealing with National Highways and other Centrally Sponsored Schemes.
18. ‘Centre for Consumer Education’ filed W.P. (C) No. 27011 of 2012 as public interest litigation before this Court raising questions touching upon the safety of passengers commuting through public roads in the State. One of the reliefs sought for in that writ petition is a writ of mandamus commanding the respondents therein to initiate steps to remove all types of obstruction in roads and road margins and recover the costs from those responsible for erecting the same, and also to erect and establish proper destination boards and traffic signals in the public roads leading to Sabarimala. In the said writ petition, the State Police Chief filed a counter affidavit through the Assistant Inspector General of Police, Thiruvananthapuram admitting the large number of unauthorised advertisements and hoardings in the National Highways as well as in the State Highways, blocking the line of sight of drivers and also causing distraction to the drivers. In the counter affidavit, it has also been stated that all District Police Chiefs have been alerted to take appropriate actions to see that advertisement/sign boards which are obstructing the vision of the road users shall be removed by seeking assistance of other Departments. Reports have been called for from the District Police Chiefs regarding the cases registered in connection with the erection of illegal boards or flex boards on road margins, etc.
19. After considering the averments in the counter affidavit filed on behalf of the Director General of Police, the Division Bench of this Court in its judgment dated 21.02.2013 in W.P. (C) No. 27011 of 2012 opined that the State and its law and order administration are on their toes in ensuring safety of the users of the National Highways and State Highways as also other roads, particularly, in the context of the danger caused by unauthorised erection of the hoardings and advertisement boards. The Division Bench observed that the grievance of the petitioner Society stands redressed for the present and the State would act in accordance with the statements in the counter affidavit made on behalf of the State Police Chief. But looking at the totality of the circumstances, the Division Bench deemed it fit to direct the 3 respondent Transport Commissioner, to take appropriate action through the officers deployed towards the end of law and order administration and ensure that the various enactments referred to in the counter affidavit filed on behalf of the State Police Chief and in Ext.P1 petition filed by the petitioner therein are implemented with the zeal and promptitude the situation calls for and in appropriate circumstances and situations; co-ordinate with the Local Self Government Institutions to prohibit erection of advertisement boards and hoardings completely or partially according to the need of a particular location. In the said judgment, the Division Bench has also noted the stand of the National Highway Authority of India that the Local Self Government Institutions have absolutely no authority to sanction erection of the hoardings or advertisement boards in National Highways. Paragraphs 4, 5 and also the last paragraph of the judgment of the Division Bench dated 21.02.2013 in W.P. (C) No. 27011 of 2012 read thus;
“4. In the context of the counter affidavit filed and the statements made therein, we are of the opinion that the State and its law and order administration are on their toes in ensuring safety of the users of the National and State highways as also other roads particularly in the context of the danger caused by unauthorised erection of the hoardings and advertisement boards. We are sure that the grievance of the petitioner stands redressed for the present and the State would act in accordance with the statements in the counter affidavit, made on behalf of the Police Chief.
5. However, we confess to a disquiet and foreboding in our minds, more so, by what we see on the roads on a daily basis. We are not for a moment doubting the statement made in the counter affidavit nor are we importing our personal knowledge into deciding this issue. But looking at the totality of the circumstances, we deem it fit that we direct the 3 respondent to take appropriate action through the officers deployed towards the end of law and order administration and ensure that various enactments referred to in the counter affidavit and Ext.P1 are implemented with the zeal, and promptitude the situation calls for and in appropriate circumstances and situations; coordinate with the Local Self Government Institutions to prohibit erection of advertisement boards and hoardings completely or partially according to the need of a particular location. We also had the benefit of hearing the learned counsel for the National Highway Authority of India, who has stated before us that the Local Self Government Institutions have absolutely no authority to sanction erection of the hoardings or advertisement boards in the national highways. We need not alert the authority of the National Highway Authority of India in the State, to bring such incidents to the notice of the 3 respondent; who is duty bound to prohibit the same.
In the circumstances, and in the context of the statements made in the counter affidavit, we close the writ petition with the aforementioned directions. The parties are left to suffer their costs.”
20. In view of the provisions under Section 23 of the Control of National Highway (Land and Traffic) Act, 2002, all lands forming part of a National Highway shall vest in the Central Government and as such, the 1 respondent Corporation or any other Local Self Government Institution in the State have no authority to permit erection of advertisement boards either on the sodium vapour lamp posts or all lands appurtenant to the highways, bridges, culverts, etc. which would come under the purview of clause (e) of Section 2 of the said Act. In view of the ‘Policy on Roadside Advertisements’ formulated by the Indian Road Congress, vide IRC: 46-1972, and also the Circular dated 16.05.2002 issued by the Ministry of Road Transport and Highways, no advertisement hoardings can be permitted on National Highways within the Right of Way, except informatory signs of public interest such as hospitals, bus stations, etc. or advertisement of temporary nature such as Mela, Flower Show, etc. In Circular dated 16.05.2002, it has been made clear that IRC: 46-1972 should be referred to for comprehensive guidelines on advertisement control on National Highways.
21. The Ministry of Road Transport and Highways reiterated its stand in its letter dated 07.09.2016, when it was noticed that despite the Ministry's policy of not allowing roadside advertisements, hoardings on National Highways which cause distraction and is one of the causes of accidents on National Highways, have generally been noticed along the National Highways. Therefore, the Regional Officers/Engineering Liaison Officers are directed to submit inspection reports to the Ministry for further necessary action, along with their monthly reports. A copy of the said letter is addressed to all Engineers-in-Chief and Chief Engineers of Public Work Departments of State/Union Territories dealing with National Highways and other Centrally Sponsored Schemes. Strict compliance of the aforesaid Circular and letter issued by the Ministry of Road Transport and Highways is highly essential, since distraction of drivers of motor vehicles is one of the major causes of motor accidents.
22. In the result, no interference is warranted on Ext.P6 communication dated 18.04.2018 issued by the Project Director of the 2 respondent National Highway Authority of India and the petitioner is also not entitled to other consequential reliefs sought for in this writ petition. It is for the 2 respondent and also the concerned officers in the Kerala Public Works Department dealing with National Highways and other Centrally Sponsored Schemes to ensure strict compliance of Circular dated 16.05.2002 and also the letter dated 07.09.2016 of the Ministry of Road Transport and Highways.
23. The writ petition is accordingly dismissed. No order as to costs.
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