Holding

Sections 326A‑J of the Chennai City Municipal Act and the 2003 Advertising Rules are valid exercises of the State’s power to regulate public places and do not violate Articles 14 or 19 of the Constitution.

Summary

M/s. Nowa Ads challenged the constitutional validity of Sections 326A‑J of the Chennai City Municipal Act, 1919 and the 2003 Advertising Rules, alleging violations of Articles 14 and 19 of the Constitution. The petitioners argued that the provisions unduly restricted the right to advertise on private property and amounted to arbitrary exercise of power. The Supreme Court held that the State, as trustee of public places, may regulate hoardings—including those on private premises—to prevent hazards, obstruction, and to preserve aesthetic order, and that the licensing scheme is a reasonable restriction under Article 19(2). The Court clarified the meanings of "hazardous" and "obstruction" and affirmed that the delegated legislation is within the scope of the enabling Act and does not infringe freedom of speech. Consequently, the appeals and writ petitions were dismissed.

Issues considered

The constitutionality of Sections 326A‑J of the Chennai City Municipal Act and the 2003 Advertising Rules under Articles 14, 19(1)(a), 19(1)(b) and 19(2) of the Constitution
Whether hoardings erected on private property can be subject to licensing and regulation by the State
Whether the power conferred by Section 326J is arbitrary or violative of natural justice
Whether the Advertising Rules exceed the authority granted by the primary Act
Interpretation of the terms "hazardous" and "obstruction" in the context of hoarding regulation

Legislation cited

Constitution of Indias. Article 14, s. Article 19(1)(a), s. Article 19(1)(b), s. Article 19(2)

Subjects

hoarding regulationfreedom of speechpublic placesdelegated legislationArticle 19Article 14municipal lawlicensehazardous hoardingobstructionnatural justice

Judgment

[2008] 6 S.C.R. 334

A M/S. NOWA ADS ~
~
V.
SECRETARY, DEPTT. OF MUNICIPAL ADMINISTRATION
AND WATER SUPPLY AND ANR.
(Civil Appeal No. 2702 of 2008)
B APRIL 9, 2008
(DR. ARIJIT PASAYAT AND S.H. KAPADIA, JJ.)

Chennai City Municipal Act, 1919; Ss. 326A to 326J as
c introduced by Amending Acts dated 23. 7.1998 and 5.9.20001
Chennai City Municipal Corporation (Licensing of Hoardings
and Levy and Collection of Advertisement Tax) Rules, 2003;
Rr. 3(i) & (iii), 6, 9, 10 and 11!Constitution of India, 1950; Articles
14, 19(1)(a) and 19(1)(b):
D License for erection of hoardings at public places -
Requirement of - Ss. 326(A) to (J) and Advertisement Rules
- Constitutional validity of - Held: Valid - State has a right to
regulate the public places as trustee and can impose such
limitation on the user as are necessary to protect the public
E generally - Ss. 326(A) to (J) and Advertisement Rules are
made in public interest for preventing hazardous erection and
for orderly and aesthetic appearance of the city - Hoardings
erected at private places need to be regulated as they obstruct
public roads and could be dangerous to buildings and public
F - They may be hazardous/dangerous to smooth flow of traffic
by distracting traffic and their contents may be obscene!
objectionable - Power to grant license for the hoarding in terms J,

of provisions uls. 326 of the Act based on reasonable/rationale
consideration, thus, not arbitrary - R. 3 of the Rules does not
restrict or control the scope of s.326J of the Act - In terms of
G
r 9A of the Rules, Collector empowered to take suo motu action
against erection of objectionable hoardings - There is no ban
on advertisement/hoardings but obstructive and destructive ~

hoardings prohibited - The Advertisement Rules do not +
H 334
M/S. NOWA ADS v. SECRETARY, DEPTT. OF 335
MUNICIPALADMN. & WATER SUPPLY &ANR.

regulate advertisement but regulate the hoardings which are A
objectionable/destructive/obstructive in character - Since the
contents, effect and purpose of the Statute in question do not
infringe the freedom of speech, it can not be said to be violative
of the provisions under Article 19 of the Constitution.
Administrative Law: B

'Delegated legislation' - Scope of 'Discussed.
'Hazardous' and 'Obstruction' - Distinction between in the
context of licensing of hoardings - Discussed.
c
Words and Phrases:
'Hazardous hoardings' - Meaning of in the context of
s.326J of the Chennai City Municipal Act, 1919.
'Obstruction' - Meaning of in the context of s. 3(iii) of
0
Chennal City Municipal Corporation (Licensing of Hoardings
and Levy and Collection of Advertisement Tax) Rules, 2003.
Appellants challenged the validity of Ss.326A to 326J
as introduced by the Amendment Acts in the Chennai City
Municipal Act and also Chennai City Municipal E
Corporation (Licensing of Hoardings and Levy and
Collection of Advertisement Tax) Rules, 2003 before the
High Court. While dismissing the petitions, High Court
constituted a Committee for identifying and enumerating
the places of historical importance/aesthetic value and F
popular places of worship around the city and also
directed to oversee the operation of removal of illegal and
unauthorized hoardings and the State Government was
directed not to grant/renew any license in respect of any
hoardings which is not in conformity with the provisions G
of the Act and the Advertisement Rules. It was also
directed that no Civil Court shall entertain any application
+ against demolition or removal of the unauthorized
hoardings and the writ petitions challenging the
demolition were to be placed before the Bench of the Chief H
336 SUPREME COURT REPORTS [2008] 6 S.C.R.

A Justice of the High Court. Hence the present appeals and
also the writ petitions.
Appellants/petitioners contended that the
Advertisement Rules are violative of Articles 19(1 )(a) and
19(1 )(b) of the Constitution of India, 1950 and also violative
8 of Article 14 because private hoardings have been treated
equally with public hoardings, thereby treating unequals
with equals; that even if it is conceded that the provisions
must be relatable to the parameters of Article 19(2) of the
Constitution, the Regulation results in restriction on use
C of private land for advertisement; that there must be
sufficient reason to curb the freedom of speech; that the
burdensome levy is affecting freedom of speech, thus,
unconstitutional; that the basic difference between
Articles 19(2) and 19(6) of the Constitution has not been
D kept in view; that display of information on hoardings
whether it is commerce, political and social is permitted
by Article 19(1)(a) or no restriction can be placed or right
to disseminate information on the purported claim of
preventing obstruction or hazard to movement of traffic
E which is not covered by Article 19(2) as public order is
not affected; that unsustainable discriminatory approach
is adopted in permitting hoardings of political parties
which are certainly more hazardous; that Rule 6 of the
Rules is absolutely impracticable because most of the
F roads are between 15 ft. to 50 ft. category. A statutory right
j ,
is made illusory because of the size restriction; that
visibility per se is not hazardous; that the statutory
intention is to permit hoarding but by putting unnecessary
and unreasonable restrictions the provisions can be
G misused; that there is no rule to operationalise s. 3268 of
the Act; that the right claimed is a preferred right. While
balancing free speech against restriction, shift of
emphasis is to free speech; and that in exercise of public +
power there has to be guided discretion. However, in the
instant case, there is no guided discretion and the right
H
M/S. NOWA ADS v. SECRETARY, DEPTT. OF 337
MUNICIPALADMN. & WATER SUPPLY & ANR.

to regulate being exercised is restrictive and not A
regulatory.
Respondent submitted that the appellants and many
like them have continued litigation frustrating regulation
of . hoardings in Chennai; and that owners of
advertisement hoardings in the city have persistently 8
challenged and resisted .the regulation on the erection of
hoardings for the last two decades with the result that
even today city presents the most deplorable huge
advertisement hoardings on major roads, which are not
only aesthetically objectionable but are hazardous and C
dangerous to traffic.
Dismissing tile appeals and writ petitions, the Court
HELD: 1.1 The State has a full right to regulate the
public places, as they vest in the State as trustees for the D
public. The State can impose such limitations on the user
of public places as may be necessary to protect the public
generally. Para - 22) [350-F, G]
Saghir Ahmed vs. State of UP (1955) SCR 707 - relied E
on.
1.2 Sections 326A to 326H of the .Act and the 2003
Rules are made in public interest for the purpose of
preventing haphazard erection and proliferation of
hoardings in the city; for orderly and aesthetic appearance F
in the city; and for safety and prevention of hazardous
and dangerous hoardings. (Para - 26) [351-G; 352-A]
2.1 Hoardings erected on private places require to
be licensed and regulated as they generally abut on and

-
are visible on public roads and public places. Hoarding G
...... erected on a private building may obstruct public roads
/ + when put up on private buildings; they may be dangerous
to the building and to the public; they may be hazardous
and dangerous to the smooth flow of traffic by distracting
traffic, and their content may be obscene or objectionable. H
338 SUPREME COURT REPORTS [2008] 6 S.C.R.

A It is, therefore, not correct that hoardings on private
places do not require to be regulated by licensing
provisions. (Para - 23) [350-G; 351-A]
2.2 Rule 6 of the Chennai City Municipal Corporation
(Licensing of Hoardings and Levy and Collection of
B Advertisement Tax) Rules, 2003 put restrictions on the size .,..,
of hoardings, on their height, the spacing, etc. and the
requirement of erection on steel frames. Rule 10 restricts
the hoarding to be put on certain places such as
educational institutions, places of worship, hospitals,
c corners of roads, in front of places of historical and
aesthetic importance. The power to license is not
unfettered and is guided by the said considerations.
(Paras - 24 & 25) [351-8, C, D]
2.3 The power under Section 326J of the Chennai
D
City Municipal Act is not arbitrary. Any action taken under
s. 326 J of the Act must be taken by observing the
principles of natural justice and supported by reasons.
An appeal against the order of the District Collector for
action under s. 326J of the Act lies to the State Government
E under s. 326H of the Act. There cannot be a presumption
of misuse of power merely because discretion is
conferred on a public authority for the exercise use of the
power. (Para - 25) [351-D, E, F]

F M. C. Mehta v. Union of India (1998) 1 SCC 363 and
f ;>
Narayana Bhat v. State of Tamil Nadu and Ors. (2001) 4 SCC
554 - referred to.
2.4 Section 326-J of the Act prohibits erection of
certain hoardings which are hazardous. The expression
G "hazardous" as an adjective, connotes something that is
"risky" or "dangerous". (Para - 27) [352-A, BJ
..,__
Blacks Law Dictionary, Eighth Edition, Page 736 - +
referred to.
H 2.5 The provisions contained in Rule 3 do not restrict
MIS. NOWA ADS v. SECRETARY, DEPTJ. OF 339
MUNICIPALADMN. & WATER SUPPLY &ANR.
J
or control the scope of Section 326-J which operates on A
a wider plain. While failure to obtain a no objection
certificate in terms of Rule 3(iii) itself would dis-entitle an
applicant for the grant of a licence to erect a hoarding,
Section 326-J, prohibits erection of hazardous hoardings
and also mandates the Commissioner (now District B
~ Collector) not to grant any licence under Section 326-C in
respect of such hoardings. It also authorizes the
Commissioner to order confiscation and removal of such
hoardings which are erected in contravention of the
mandate therein. (Para - 30) [352-D, E, F]
c
2.6 A delegated legislation can be declared invalid
• by the Court mainly on two grounds firstly that it violates
any provision of the Constitution and secondly it is
violative of the enabling Act. If. the delegate which has
been given a rule making authority exceeds its authority D
.~ and makes any provision inconsistent with the Act and
thus overrides it, it can be held to be a case of violating
the provisions of the enabling Act but where the enabling
Act itself permits ancillary and subsidiary functions of the
legislature to be performed by the executive as its E
delegate, the delegated legislation cannot be held to be
in violation of the enabling Act. It is well settled that a
delegated legislation would have to be read in the context
of the primary statute under which it is made and, in case
of any conflict, it is primary legislation that will prevail.
~~ (Para - 31 and 33) [352-F, G; 353-F] F

State of MP. and another vs. Bhola Alias Bhairon Prasad
Raghuvanshi (2003) 3 SCC 1; St. Johns Teachers Training
Institute vs. Regional Director, National Council for Teacher
Education and Another (2003) 3 SCC 321 and ITW Signode G
India Ltd. vs. Collector of Central Excise (2004) 3 SCC 48 -
relied on.
+
3.1 The expression 'obstruction' means "something
that impedes or hinders". The expression, however, has
varied sets of meaning and is not necessarily confined to H
340 SUPHEME COURT REPORTS [2008) 6 S.C.R.

A physical obstructions only. (Para - 35) [354-A]
Hinchliffe v. Sheldon,(1955) 1 WLR 1203 and Collector
of Customs and Central Excise, Bhubneshwar v Paradip Port
Trust and Another (1990) 4 SCC 250 - referred to.

B 3.2 If the subject-matter that is displayed in the
hoardings attracts attention of the drivers of vehicles and y
which, 'in turn, impedes free and safe movement of traffic
such a hoarding would clearly come under the meaning
"obstruction" contemplated under Rule 3(iii) of the Rules.
c (Para - 39) [354-F, G]
3.3 There is certainly some difference between
"hazardous" and "obstruction" though there may be
some amount of overlapping. What is hazardous cannot
have definite terms. So in that sense, Legislature had
D thought it v;ise to use the expression 'obstruction' so that
it can be brought within manageable standards. The
ultimate objective is safe traffic movement and free and
safe flow of traffic. (Para - 40) [354-G; 355-A]
3.4 It can be seen in applying Section 326J of the Act,
E the authority empowered can give 'No Objection
Certificate' and looking at the fact situation in a given case
say obstruction has been caused. What is physical
distortion or destruction can also be considered. But the
conclusions can be challenged. (Para - 41) [355-A, 8]
F
~-A
3.5 The problem can be looked at from another angle.
Even if there is no obstruction but there is distraction that
is also to be considered. There may not be physical
obstruction but it can be hazardous. The right to regulate
and control is inherent in exercise of power. (Para - 42)
G
[355-C, D]
P Narayana Bhat vs. State of Tamil Nadu and Ors. (2001) 1
+
4 sec 554 - relied on.
4.1 The licence is for putting the hoardings. It
H
M/S. NOWA ADS v. SECRETARY, DEPTT. OF 341
MUNICIPAL ADMN. & WATER SUPPLY & ANR.
* depends upon the size and at that stage the question of A
content does not come into picture. If it is distraction, the
question whether it is hazardous or creates obstruction
comes later. (Para ...:. 43) [355-E, F]
'.
4.2 Under r.9 of the Rules, the District Collector can·
...,_., suo motu take action if he finds hoardings to be B
objectionable. The provisions appear to be not restrictive
but are regulatory. There is no ban on advertisement
hoardings but obstructive and destructive ones are to be
prohibited. (Para - 44) [355-F]
c
5.1 The apprehended arbitrariness can be well taken
care of. If show cause notice is issued, it should specify
the reasons as to why the action is proposed to be taken
in respect of any hoarding or hoardings. The principies
of natural justice can also be complied with if reasons are
D
indicated in the show cause notice and there is scope for
reply to be given. Thereafter, reasoned adjudication can
be made by the authorities. It goes without saying that
objectivity has to be there, even though initially at the stage
of issuing show cause notice there is subjectivity. (Para -
45).·[355-G; 356-A] E

5.2 Very narrow and stringent limits have been set to
permissible legislative.. .
abridgment of the
'
right of free
speech and expression, and this was doubtless due to
the realisation that freedom of speech and of the press F
lay at the foundation of all democratit organizations, for
without free politicaldiscussion no public education, so
essential for the proper functioning of the processes of
popular government, is possible. (Para - 46) [356-A, B, C]
Ramesh Thappar vs. The State of Madras AIR (1950) G
SC 124 and Brij Bhushan and Anr. vs. The State of Delhi AIR
. f _.. (1950) SC 129 - referred to.
Near v Minnesotta 283 U.S. 607 - referred to.
6.1 The High Court's order is clear to the effect that H
342 SUPREME COURT REPORTS (2008] 6 S.C.R.

A only after enumeration the demolition can be done.
(Para - 47) [356-F]
6.2 The Advertisement Rules in essence constitute a
Code for regulating erection of hoardings and do not deal
with content except where it is found to be obscene or
B objectionable. (Para - 48) [356-G; 357-A]
j-/

M. C. Mehta vs. Union of India and Ors. (1997) 8 SCC
770 - referred to.
6.3 There are two tier arrangements in Rule 3 (b) of
c the Rules. One relating to NOC by the police and the
other the power of the District Collector to see whether
the hoardings fall foul of Section 326J of the Act and was
in line with it. It needs no emphasis that the size is the
yardstick and smaller the road the bigger is the hazard
D because the unregulated size can lead to chaos.
(Para - 49) [357-A, B]
6.4 The fact that the hoarding is on building or private
land does not take away the regulatory measures relating
to hoardings. There can be cases where because of the
E size and the height, it can be dangerous to public and
also be hazardous. There is no structural safeguard in
respect of such hoardings. There has to be regulatory
measures. As has been rightly contended by counsel for
the respondents, the Act and the Advertisement Rules do
F not regulate advertisement. They regulate putting of the ~;

hoarding which is found to be objectionable, destructive
or obstructive in character. (Para - 51) [357-D, E, F]
Saghir Ahmad v. State of UP. and Ors. (1955) 11 SCR
G 707 - referred to.
6.5 It cannot be said that there is infringement of
freedom of speech. The content, effect and the purpose + 1

of statute clearly show that it is not intended to be so.
(Para - 52) [357-F, G]
H
M/S. NOWA ADS v. SECRETARY, DEPTT. OF 343
MUNICIPALADMN. & WATER SUPPLY &ANR.

j., CIVIL APPELLATE JURISDICTION : Civil Appeal No. A
~
2702 of 2008.
From the Judgment and Order dated 10.8.2006 of the High
Court of Judicature at Madras in W.P.No. 19057/2003
WITH B
Civil Appeal Nos. 2715, 2574-2577, 2580-2585, 2623-
2626, 2628-2629, 2631-2640 of 2008 W.P. (C) No. 79/2007,
C.A. Nos. 2642-2647, 2649-2660 of 2008, W.P. (C) Nos. 124,
134, 158, 146, 149, 151-153, 161-162, 165/2007, C.A. Nos.
2716/2008, Con. Pet. No. 5/2007, C.A. Nos. 2661-2673, 2675- c
2697 of 2008, W.P. (C) 504, 512, 524, 525, 515, 526/2007.
C.A. Nos. 2717, 2718 of 2008.
K.K. Venugopal, Rajeev Dhawan, K. Parasaran, T.R.
Andhyarujina, L.N. Rao, DipankarGupta, M.N. KrishnamaniA.K.
D
Ganguli, A.M. Singhvi. Dr. A.F. Julian, Jaideep Gupta, Bhaskar
Gupta. R. Shunmugasundaram, Haripriya Padmanabhan,
* Senthil Lagadeesan, B.S. Gnana Desikan. S. Nanda Kumar,
Yogesh Khanna, V.G. Pragasam, Joseph Aristotle, S. Prabu
Ramasubramanian. K.S. Rana, B.S . Gnana Desikan, S. Nanda
Kumar. Yogesh Khanna, C. Paramasivam, P. Ramesh, Rakesh E
K. Sharma, V. Prabhakar, Ramjee Prasad, Revathy Raghavan,
T. Harish Kumar, Prasanthi P., K. Renuga Devi, P. Paramasivan.
V. N. Raghupathy, Dr. Kailash Chand, K.K. Mani, K. Ezhil, C.K.R.
Liniu Sekar, Mayush R. Shah, M.A. Chinnasamy, B.B. Chauhan.
V. Krishna Kumar, Sumit Kumar, M/s. Aruputham Aruna & Co., F
TC. Chaudhary, L.~. Singh, Neelam Singh, Vivek Singh, Bipin
··-~ Kumar, K. Mayilsamy, S. Muthu Krishnan, P. Narasimhan, Satish
Kumar, Ananda Selvam, K. Rajeev, V. Ramasubramanian, G.
Sivabalamurugan, Y Arunagiri, L.K. Pandey, K. Indira, A. Raj
Narayanan, V. Balaji, Sanjay R. Hegde, Amit Kumar Chawla, G
Ramesh Jadhav, Pramod Dayal, S. Vallinayagam, P.V.
Yogeswaran, Nikhil Nayyar and T. Harish Kumar for the
', f appearing parties.
-t
The Judgment of the Court was delivered by
H
344 SUPREME COURT REPORTS [2008] 6 S.C.R.

A DR. ARIJIT PASAYAT, J. 1. Delay condoned. k
<
2. Leave granted in the Special Leave Petitions.
3. Challenge in these appeals and Writ Petitions is to the
judgment delivered by a Division Bench of the Madras High
B Court. In the writ petitions, challenge was to validity of Sections
326A to 326J of the Chennai City Municipal Act, 1919 (in short
the 'Act') and the Chennai City Municipal Corporation (Licensing
of Hoardings and Levy and Collection of Advertisement Tax)
Rules, 2003 (in short the 'Advertisement Rules').
c 4. The writ petitions were dismissed by the High Court.
But a Committee was constituted for identifying and enumerating
the places of historical importance or aesthetic value and popular
places of worship in and around the city of Chennai. It was also
directed to oversee the operation of the removal of illegal and
D unauthorized hoardings in the city of Chennai. The Committee
was directed to be headed by a retired Judge and to consist of
several other persons. The State Government was directed to
provide necessary infrastructure and office to the Committee.
The District Collector was directed to remove and demolish all
E the unauthorized hoardings which were erected after the cut off
date and in respect of which no application was made to the
District Collector within a period of 8 weeks. The District
Collector and the Tahsildar working in their respective zones
were to be personally responsible for the removal of
unauthorized hoardings in their respective zones. The Municipal
F Corporation was directed to extend all necessary cooperation
to the District Collector for removal of the hoardings in the city. i' ,4
The Commissioner was directed to supply to the District
Collector the necessary equipment and work force for the
purpose of such removal. The Police Commissioner was also
G directed to provide adequate police force to assist the demolition
team. The State Government was directed to appoint two
officers not below the rank of District Collector as Special
Officers vested with the necessary powers of the District
+ '.
Collector to make scrutiny of the applications pending before
H the Collector within a period of 4 weeks from the date of

-
MIS. NOWAADS v. SECRETARY, DEPTI. OF MUNICIPAL 345
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J]
_,, judgment. It was pointed out that no licence was to be granted A
and/or renewed in respect of any hoarding which is not in
conformity with the provisions of the Act and tra Advertisement
Rules. So far as the applicants who claimed to be existing
hoarding owners, the District Collector/Special Officer was
required to call for the views of the Traffic police and such views 8
. had to be communicated to the District Collector within a
....-i' particular period. All the hoardings where the applications/
appeals were dismissed by the authorities were liable to be
removed forthwith and the concerned authorities to take
appropriate steps for the purpose.
c
5. The District Collector and the Tahsildar were directed
to take immediate steps for recovery of the advertisement tax,
the rent and the penalties from the hoarding owners whether
. authorized or unauthorized. The appeals against the decision
of the District Colleetor/Special Officer were directed to be D
disposed of within 60 days as prescribed by the Advertisement
Ar
Rules and for that purpose it was suggested that the Government
may consider appointment of one or more officers at the
Secretariat level, exclusively for the purpose.
6. So far as new applications are concerned, it was held E
that if the applicant had already constructed a hoarding in that
case hoarding was liable to be removed and demolished and
the applicant was entitled to apply only after such removal and
demolition of hoarding.
7. With reference to Rule 3(i) of the Advertisement Rules it F
........~ was held that the plan of the hoarding was to be approved by a
qualified structural Engineer. In case of non removal of
unauthorized or illegal hoardings the District Collector was
directed to initiate prosecution as permissible under the Act.
Direction was also given for demolition and removal of all G
hoardings erected on or in front of any places of historical or
aesthetical importance, popular places of worship as enlisted
} by the Committee as well as on or in front of the educational
"I
institutions and hospitals and in c.ases where applications were
made by any hoarding owner within the time prescribed by this 'H
346 SUPREME COURT REPORTS [2008] 6 S.C.R.

A Court applications were to be decided and if the hoardings were .,..
found to be illegal, they were to be removed without further notice. ·
It was directed that no Civil Court shall entertain any application
against demolition or removal of the unauthorized hoardings
and the writ petitions challenging the demolition were to be
B placed before the bench of the Chief Justice of the High Court.
8. It was also directed that notwithstanding any order
-.;.~
passed by any Civil Court in the matter the directions given in
the impugned order were to prevail.

c 9. In support of the appeals, various stands have been
taken by the parties. Primarily it has been submitted that the
Advertisement Rules are violative of Articles 19(1 )(a) and
19(1)(b) of the Constitution of India, 1950 (in short the
'Constitution'). It was also violative of Article 14 because private
hoardings have been treated equally with public hoardings,
D
thereby treating unequals with equal. With reference to the
earlier Statute i.e. Tamil Nadu Acquisition of Hoarding Act, 1985
(in short the 'Acquisition Act') it was submitted that the acquisition
of the public or private property was held to be illegal. With effect
from 23. 7.1998 amendment was made to the Act and Sections
E 326-A to 326-1 were introduced. Section 326-8 provides for the
period of 30 days within which the owners of the hoarding were
to apply for licence. On 5.9.2000 the Act was amended and
Section 326-J was introduced. This provision permitted removal
of all hoardings which are hazardous in nature. Challenge was
F made to the same provision. The High Court by order dated
14.10.2001 upheld its validity. It was inter alia held that that every
,,;.>
hoarding which is adjacent to the road is hazardous and has to
be removed and the High Court judgment was affirmed by this
Court with certain modifications by this Court in P Narayana
G Bhat v. State of Tamil Nadu and Ors. (2001 (4) SCC 554).
However, all the hoardings are not to be treated as hazardous.
What is hazardous is to be decided. The time period for making
application for licence was fixed. In the year 2003 the
\>.
Advertisement Rules have been enacted. It is submitted that
H the Rules used the expression 'obstruction'. It was pointed out
M/S. NOWAADS v. SECRETARY, DEPTT. OF MUNICIPf\L 347
ADMN. & WATER SUPPLY & ANR. [PASAYAT, Jj
~
that the obstruction refers to physical obstruction. Chaiienge is /\ 1

also made to Rule 6 which relates to the width of the road. There
is no forum available for questioning correctness of the
·adjudication by the authorities. In any ev~nt it is submitted that
the Rules cannot apply to private sites. Construction of private
'! buildings have been excluded. It is pointed out that the concept B
of public order is being introduced but the same has to be
""'* relatable to the parameters laid down in Dr. Ram Manohar
Lohia v. State of Bihar and Ors. (1966 (1) $CR 709). The public
interest is relatable to Article 19(1 )(g) and not Article 19(1 )(a).
Hoardings are nothing but material for advertisement. Rule 9 c
relates to objectionable hoardings, Placing strong reliance on
Tata Press Ltd. Vs. M. TN.L. and Ors. (1999 (5) SCC ~39) it is
contended that hoarding partake the character of commercial
speech. Reference is also made to the decisions in Sakal
Papers (P) Ltd. And Ors. v. Union of India and Ors. (AIR 1962
D
SC 305) and Bennett Coleman and Co. and Ors. v. Union of
~ India and Ors. (1972 (2) SCC 788) to contend that even if it is
conceded for the sake of argumen'ts that the provisions are
regulatory, they must be relatable to the parameters of Article
19(2). The regulation results in restriction on use of private land
E·
for advertisement. It is submitted that as was noted in Sakal
Papers's case (supra) it curbs competition and in Bennett
Coleman's case (supra) there must be sufficient reason to curb
the freedom of speech. Even over-burdensome levy which
affects freedom of speech was held to be unconstitutional.

..."" Reference is also made to Romesh Thappar v The State of
Madras (AIR 1950 SC 124) and Brij Bhushan and Anr. v. The
F

State of Delhi (AIR 1950 SC 129) to contend that the restriction
can be relatable to public interest and not to public order. When
commercial speech is protected there is no reason to put
restriction on putting hoardings. Public order relates to violence G
and not law and order. The basic difference, it is submitted,
between Articles 19(2) and 19(6) has not been kept in view. In ..
~

~
essence it is submitted that display of information on hoardings
whether it is commerce, political and. social is permitted by
Article 19(1 )(a) or no restriction can be placed or right to H
' "
348 SUPREME COURT REPORTS [2008] 6 S.C.R.

~
A disseminate information on the purported claim of preventing
obstruction or hazard to movement of traffic which is not covered
by Article 19(2) as public order is not affected. The statutory
rules are exhaustive of the restrictions and restrictions do not
apply to hoardings on a private land. Rules are discriminatory
B in applying the same yardstick to public roads and private
properties as the same treats unequals as equals. Even if ~~

Section 326J can be used later, it has to specify reasons in the
show cause notice, has to be disposed of by the reasoned order
after opportunity and the right of appearance can lead to a
decision. It is pointed out that unsustainable discriminatory
c approach is adopted in permitting hoardings of political parties
which are certainly more hazardous. A different yardstick is
being adopted and unguided power is given to the authorities
to adopt different norms.

D 10. Some of the petitioners have pointed out that there
was a statutory cut off date fixed i.e. 23. 7 .1998 and the
enumeration was to be done to identify data as to which of the
hoardings existed prior to 23. 7.1998 and the applicants may
make an application before the date extended.
E 11. It is submitted that Rule 6 is absolutely impracticable
because most of the roads are between 15 ft. to 50 ft. category.
A statutory right is made illusory because of the size restriction.
Visibility per se is not hazardous. Rule 10 contains words which
are imprecise and flexible and the listing has not been done.
F 12. The statutory intention is to permit hoarding but by '!.
putting unnecessary and unreasonable restrictions the
provisions can be misused.
13. The visibility concept is important. The size as provided
G in Rule 6 has no basis to ensure reasonable visibility and
therefore it impeaches the Act.
14. There is no rule to operationalise Section 3268. The
Act, the Advertisement Rules and the form have to be
operationalized as part of the composite scheme. It is pointed
,._
-
H out that right in question claimed by the appellants is a
M/S. NOWAADS v. SECRETARY, DEPTI. OF MUNICIPAL 349
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J.]

constitutional right and not statutory right. What is objectionable A
is content. It is, by way of clarification, submitted that content is
covered by Article 19(1) (a) as it covers both antecedent steps
and actual display. The content is not limited to words, colour,
picture but also extent, form, size and placement. While Rule
3(b)(ii) is a pre-censorship concept, Rule 9 is post censorship. B
The freedom of speech relates both to pre and post censorship.

15. The right claimed is a preferred right. While balancing
free speech against restriction, shift of emphasis is to free
speech.
c
16. In exercise of public power there has to be guided
discretion. In the instant case there is no guided discretion. The
right to regulate being exercised in the instant case is restrictive
and not regulatory.

17. In response, learned counsel for the respondent have D
submitted that the appellants and many like them have continued
litigation frustrating regulation of hoardings in Chennai. It is
submitted that owners of advertisement hoardings in the city of
Chennai have persistently challenged and resisted the regulation
on the erection of hoardings for the last two decades with the E
result that even today city of Chennai presents the most '
deplorable huge advertisement hoardings on major roads, which
are not only aesthetically objectionable but are hazardous and
dangerous to traffic. Even after continued failure to get any relief
from the Court the challenge is still continued. F
18. Following the directions of this Court in M. C. Mehta v.
Union of India and Ors. (1998 (1) SCC 363), the Tamil Nadu
Legislature introduced the amendment in Section 326J by
Amendment Act 2000. By an amendment, the Commissioner
(later amended to District Collector) was empowered to remove G
the existing hoardings which were dangerous and causing
disturbance to safe traffic movement, which adversely affect free
and safe flow of traffic. The provision also empowers the District
Collector to refuse the license for such hazardous and dangerous
hoardings. H
350 SUPREME COURT REPORTS [2008] 6 S.C.R

A 19. Earlier challenge was made to the Rules of 1998.
Various contentions were raised before the High Court including
reference to Tata Press case (supra). The High Court rejected
the contention that Section 326A was arbitrary and had laid down
no guidelines. Correctness of the judgment was questioned

-
B including the alleged infringement of Article 19(1 )(a). This Court
rejected the appeals stating that it was ad idem with most of the
conclusions arrived at by the High Court in the impugned
judgment before it. This Court also noted that before it very same
stands were re-iterated. It was noted that this Court was inclined
C to agree with the High Court that Section 326J was neither ultra
vi res Article 14 nor Article 19( 1)(a) of the Constitution in view of
the decision given by the High Court. Despite this, the
Advertisement Rules were challenged before the High Court.
The High Court dismissed them subject to modifications.

D 20. It is to be noted that in P Narayan's case (supra) this
Court had specifically held in concurring with the views of the
High Court that Article 19(1 )(a) of the Constitution was not
violative.
21. Section 326A defines "hoardings" to mean "any screen
E or board at any place whether public or private used or intended
to be used for exhibiting advertisements ... " Sections 3268 to
326J are provisions relating to licensing of hoardings. The Act
requires licences of hoardings; and it requires licences of
hoardings in both public and private places.
F
22. So far as public places are concerned, the State has a
full right to regulate them, as they vest in the State as trustees
for the public. The State can impose such limitations on the user
of public places as may be necessary to protect the public
G generally. (See Saghir Ahmed v. State of UP 1955 SCR 707).
23. Hoardings erected on private places also require to
be licensed and regulated as they generally abut on and are
visible on public roads and public places. Hoarding erected on
a private building may obstruct public roads when put up on
H private buildings; they may be dangerous to the building and to
M/S. NOWAADS v. SECRETARY, DEPTT OF MUNICIPAL 351
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J.]

the public; they may be hazardous and dangerous to the smooth A
. flow of traffic by distracting traffic, and their content may be
obscene or objectionable. It is, therefore, not correct that
hoardings on private places do not require to be regulated by
licensing provisions.
24. Rule 6 of the 2003 Rules put restrictions on the size of 8
hoardings, on their height, the spacing, etc. and the requirement
of erection on steel frames. Rule 10 restricts the hoarding to be
put on certain places such as educational institutions, places of
worship, hospitals, corners of roads, in front of places of
historical and aesthetic importance. C
25. The power to license is not unfettered and is guided
by the above considerations. Under Rule 11 an appeal lies to
the State Government for refusing the grant or renewal of
licenses. Section 326J of the Act empowers the District D
Collector to prohibit the erection of hazardous hoardings and
~: hoardings which are hazardous and a disturbance to the safe
.. traffic movement so as to adversely affect the free and safe·
flow of traffic. The power under Section 326J is not arbitrary as
held by the Supreme Court in M. C. Mehta v Union of India
(199.8) 1 sec 363) on an identical provision relating to case of E
hoarding in New Delhi. Any action taken under Section 326 J
must be taken by observing the principles of natural justice and
supported by reasons. An appeal against the order of the District
Collector for action under Section 326J lies to the State
Government under Section 326H. There cannot be a F
~- .,,_ presumption of misuse of power merely because discretion is
conferred on a public authority for the exercise use of the power.
In Narayana Bhat's case, this Court has negatived the contention
that the power of the licensing authorities is arbitrary and
unguided. G
26. Sections 326A to Section 326H and the 2003 Rules
are made in public interest for the purpose of
(i) Preventing haphazard erection and proliferation of
hoardings in the city. H
352 SUPREME COURT REPORTS [2008] 6 S.C.R.

A (ii) For orderly and aesthetic appearance in the city.

(iii) For safety and prevention of hazardous and
dangerous hoardings.

27. Section 326-J of the Act prohibits erection of certain
s hoardings which are hazardous. The expression "hazardous"
as an adjective, connotes something that is "risky" or
"9angerous" vide, Blacks Law Dictionary, Eighth Edition, page
736.
28. Section 326-J provides that where the Commissioner
C is satisfied that the erection of any hoarding visible to the traffic
on the road is hazardous and disturbance to the safe traffic
movement so as to adversely affect the free and safe flow of
traffic, he shall not grant any licence under Section 326-C.
29. The Commissioner is also empowered to remove any
0
such hoarding which is erected in contravention of the provisions
thereof.
30. The provisions contained in Rule 3 do not restrict or
control the scope of Section 326-J which operates on a wider
E plain. While failure to obtain a no objection certificate in terms
of Rule 3(iii) itself would dis-entitle an applicant for the grant of
a licence to erect a hoarding, Section 326-J, prohibits erection
of hazardous hoardings and also mandates the Commissioner
(now District Collector) not to grant any licence under Section
F 326-C in respect of such hoardings. It also authorizes the
Commissioner to order confiscation and removal of such
hoardings which are erected in contravention of the mandate
therein.
31. A delegated legislation can be declared invalid by the
G Court mainly on two grounds firstly that it violates any provision
of the Constitution and secondly it is violative of the enabling
Act. If the delegate which has been given a rule making authority
exceeds its authority and makes any provision inconsistent with
the Act and thus overrides it, it can be held to be a case of
H violating the provisions of the enabling Act but where the enabling
M/S. NOWAADS v. SECRETARY, DEPTI. OF MUNICIPAL 353
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J.]

Act itself permits ancillary and subsidiary functions of the A
legislature to be performed by the executive as its delegate,
the delegated legislation cannot be held to be in violation of the
enabling Act. (See Vide, State of MP and another v. Bhola
Alias Bhairon Prasad Raghuvanshi (2003) 3 SCC 1).
32. In St. Johns Teachers Training Institute v. Regional B
"+ Director, National Council for Teacher Education and Another
(2003) 3 SCC 321, this Court has held that:
"Delegated legislation permits utilization of experience
and consultation with interests affected by the practical
operation of statutes. Rules and Regulations made by
c
reason of the specific power conferred by the Statutes to
make Rules and Regulations establish the pattern of
conduct to be followed. Regulations are in aid of
enforcement of the provisions of the Statute. The process
of legislation by departmental Regulations saves time and D
is intended to deal with local variations and the power to
""-:
legislate by statutory instrument in the form of Rules and
Regulations is conferred by Parliament. The main
justification for delegated legislation is that the legislature
being over burdened and the needs of the modern day E
society being complex it can not possibly foresee every
administrative difficulty that may arise after the Statute
has begun to operate. Delegated legislation fills those

.
needs".
33. It is well settled that a delegated legislation would have F
,,. to be read in the context of the primary statute under which it is
made and, in case of any conflict, it is primary legislation that
will prevail.
34. In ITW Signode India Ltd. v. Collector of Central Excise G
(2004) 3 SCC 48) this Court has held as under:
"It is well settled principle of law that in case of a conflict
,., between a substantive Act and delegated legislation, the
former shall prevail inasmuch as delegated legislation
must be read in the context of the primary/legislative Act H
354 SUPREME COURT REPORTS [2008] 6 S.C.R.

'
,-1 ~incl not 11ice versa''.

35 The expression 'obstruction' means "something that
impec~8s or hinders". The expression, however, has varied sets
of meaning and is not necessarily confined to physical
obstructions only.
B
36. It has been held that "Obstructing" the police, includes -;.- ~

anything which makes it more difficult for the police to carry out
their duties and is not confined to mere physical obstructions,
vi de Hinchliffe v. Sheldon, (1955) 1 WLR 1203
c 37. Obstruction has a wider meaning than mere physical
obstruction and it includes tangible and identifiable obstruction
and even a protest is obstructing.

38. In Collector of Customs and Central Excise,
Bhubneshwar v. Paradip Port Trust and Another (1990 (4) SCC
D 250) this Court, construing the expression "obstruction"
appearing in Section 133 of the Customs Act, 1962 has been
pleased to hold:

"On the authority of Hinchliffe v. Sheldon it can be said that
E obstruction is not confined to physical obstruction and it
includes anything which makes it more difficult for the
police or public servant to carry out their duties."

39. The expression 'obstruction' in Rule 3(iii) would,
therefore, include any act which impedes the free and safe
F movement of the traffic, pedestrians and vehicles. Such an act
may well be, by reason of what is displayed on the hoardings. If
the subject-matter that is displayed in such hoardings attracts
..,, .
attention of the drivers of vehicles and which, 'in turn, impedes
free and safe movement of traffic such a hoarding would clearly
G come under the meaning "obstruction" contemplated under Rule
3(iii) of the Rules.
40. It is to be noted that there is certainly some difference
'(
between "hazardous" and "obstruction" though there may be
some amount of overlapping. What is hazardous cannot have
H definite terms. So in that sense, Legislature had thought it wise
M/S. NOWAADS v. SECRETARY, DEPTI. OF MUNICIPAL 355
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J]
.. 1-- to use the expression 'obstruction' so that it can be brought within A
manageable standards. The ultimate objective is safe traffic
movement and free and safe flow of traffic.
41. It can be seen in applying Section 326J, the authority
empowered can give 'No Objection Certificate' and looking at
the fact situation in a given case say obstruction has been B
~-1'"' caused. What is physical distortion or destruction can also be
considered. But the conclusions can be challenged.
42. The problem can be looked at from another angle.
Even if there is no obstruction but there is distraction that is
also to be considered. As was considered by this Court in P
c
Narayan's case (supra) the provisions like appeal and the rules
to bring in the principles of natural justice can be pressed into
service. That will be a right step to avoid arbitrariness. It has
been contended emphatically that private hoardings shall not
cause any physical obstruction. Butthis plea is, as noted above, D
??
l.~ ..t.,
without any substance. In our view there may not be physical
obstruction but it can be hazardous. The right to regulate and
control is inherent in exercise of power.
43. One other thing which needs to be noted is that the E
authority is not examining the contents of hoardings, size etc.
The licence is for putting the hoardings. It depends upon the
size and at that stage the question of content does not come
into picture. If it is distraction, the question whether it is hazardous
or creates obstruction comes later.
F
'-+ 44. Under Rule 9 the District Collector can suo motu take
action if he finds hoardings to be objectionable. The provisions
appear to be not restrictive but are regulatory. There is no ban
on advertisement hoardings but obstructive and destructive ones
are to be prohibited. G
45. The apprehended arbitrariness can be well taken care
( of. If show cause notice is issued, it should specify the reasons
y
' as to why the action is proposed to be taken in respect of any
hoarding or hoardings. The principles of natural justice can also
be complied with if reasons are indicated in the show cause H
356 SUPREME COURT REPORTS [2008] 6 S.C.R.

A notice and there is scope for reply to be given. Thereafter, -Ir ,
reasoned adjudication can be made by the authorities. It goes
without saying that objectivity has to be there, even though initially
at the stage of issuing show cause notice there is subjectivity.
46. Very narrow and stringent limits have been set to
B permissible legislative abridgment of the right of free speech
and expression, and this was doubtless due to the realisation ~· ~

that freedom of speech and of the press lay at the foundation of
all democratic organizations, for without free political discussion
no public education, so essential for the proper functioning of
c the processes of popular government, is possible. A freedom
of such amplitude might involve risk of abuse. But the framers
of the Constitution may well have reflected, with Madison who
was "the leading spirit in the preparation of the First Amendment
of the Federal Constitution," that "it is better to leave a few of its
D noxious branches to their luxuriant growth, than, by pruning them
away, to injure the vigour of those yielding the proper fruits" :
[Quoted in Nearv. Minnesotta [283 U.S. 607) (Also See Romesh ,,,
Thappar's case (supra).
4i'. So far as the question relating to enumeration in Rule
E 10, the High Court has taken care of that problem by appointing
a Committee to identify the places, it was submitted that some
of the directions need to be clarified. Though it is conceded
that the directions are not wrong it is submitted that they but
need clarification. It is open to the appellants if so advised to
F move the High Court if any clarification is necessary. But in our
view the directions cannot be faulted. It is submitted that direction
+
No.16 relates to forthwith demolition. It needs no re-iteration
that the High Court's order is clear to the effect that only after
enumeration the demolition can be done.
G 48. It is to be noted that M. C. Mehta's judgment (i.e. 1998
(1) sec 363) resulted in amendment of the Act. In the said case
the direction given in M. C. Mehta v. Union of India and Ors.
(1997 (8) SCC 770) has been quoted. The Advertisement Rules '(

in essence constitute a Code for regulating erection of hoardings
H and do not deal with content except where it is found to be
M/S. NOWAADS v. SECRETARY, DEPTI. OF MUNICIPAL 357
ADMN. & WATER SUPPLY & ANR. [PASAYAT, J.]

~
"' obscene or objectionable. A
49. There are two tier arrangements in Rule 3 (b). One
relating to NOC by the police and the other the power of the
District Collector to see whether the hoardings fall foul of Section
326J and was in line with it. It needs no emphasis that the size
is the yardstick and smaller the road the bigger is the hazard B
. *"~- because the unregulated size can lead to chaos .
50. In Saghir Ahmad v. State of UP and Ors. (1955 (11)
SCR 707) it was held as follows:
"2. In view of this pronouncement of law, the State c
Government, which wanted to have the exclusive right to
operate Road Transport Services within its territory, sought
the assistance of the Legislature and the U.P. Road
Transport Act (Act II of 1951) was passed and became
law on and from the 10th of February, 1951. It is the D
constitutional validity of this enactment which is the subject-
matter of contest in these present proceedings".
"'"'
51. The fact that the hoarding is on building or private land
does not take away the regulatory measures relating to
hoardings. There can be cases where because of the size and E
the height, it can be dangerous to public and also be hazardous.
There is no structural safeguard in respect of such hoardings.
There has to be regulatory measures. As has been rightly
contended by learned counsel for the respondents, the Act and
the Advertisement Rules do not regulate advertisement. They F
regulate putting of the hoarding which is found to be
+
objectionable, destructive or obstructive in character.
52. It cannot be said that there is infringement of freedom
of speech. The content, effect and the purpose of statute clearly
show that it is not intended to be so. · G
53. The inevitable result is that the appeals and writ
petitions are without merit and deserve to be dismissed which
y
we direct.
S.K.S. Appeals and writ petitions dismissed. H