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Petitioner: MEHRAN ADVERTISER and others VS Respondent: GOVERNMENT OF PUNJAB and others
Court Name: Lahore High Court Judge(s): Umar Ata Bandial Title: MEHRAN ADVERTISER and others vs GOVERNMENT OF PUNJAB and others Case No.:Writ Petitions Nos.15675, 15876, 15877, 23426, 21010 of 2009 and 2249 of
2010W.P. No,15675 of 2009W.Ps. Nos.15876 and 15877 of 2009W.P. No,23426 of 2009W.P. No,2249 of 2010 Date of Judgment:2010-05-10 Reported As: PLD 2011 Lahore 61 Result: Petition dismissed Judgment ORDER ' UMAR ATA BANDIAL, J.---This order shall dispose of Writ Pet tions Nos. 15675, 15876, 15877, 23426, 21010 of 2009 and 2249 of 2010 because similar questions of law and facts are involved in all the sai constitutional petitions. ' These petitions challenge the notification No,PHA/DG/DM/10- 08/ 8, dated 6-10-2008 duly published in the Punjab Gazette on 24-1-2009 containing the Parks and Horticulture Authority Regulations ("F HA Regulations") framed by the PHA in exercise of its powers under sec ion 44 of Punjab Development of Cities Act, 1976 ("Act") read with not faction of the Provincial Government dated 21-9-1998. The PHA Regulations, inter alia, lay down a regulatory framework for advertising billboards, hoardings, sky signs and other display signage whereby public attention may be drawn to advertisements displayed on such sig ages. Clause (5) of the PHA Regulations categorizes areas where different types of advertising signages may be installed. ' In the present case, sub-clause (5)(iii) of the PHA Regulations is relevant as it deals with outdoor advertisement, billboards and signs affixed on properties located alongside roads that have been declared as commercial. The subject matter of the instant petitions are sky signs installed by the petitioners on private properties abutting commercial roads. The Note following Clause (5) PHA Regulations, ibid deals with such sites. That provision reads as follows:-- "Note: For various locations, signboards will not disrupt the prevailing sky lines and in all cases should not exceed the height limit of 30 ft. To 35 ft. The 3-storeyed building is allowed to install any kind of board up to 10 ft height from the ground level with parapet wall. The property more than 3
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stores are not allowed to install, any type of sky sign on the rooftop; however, the advertisement board may be affixed on the facade of the building. ' All the applications received under the regulations regarding the private and commercial properties shall be placed for consideration and approval before the competent authority designated by the DG PHA and the decision of the authority shall be final." 4. The petitioners who are engaged in the business of offering advertisement from their sky signs affixed on private properties claim to be adversely affected by the height and size limits imposed in the afore-quoted Note to Clause-5. As the petitioners are already engaged in the sky sign advertising business, it is asserted that a restrictive height limit under Clause (5) Note is illegal because it amounts to retrospectively curtailing the existing proprietary rights of the petitioners granted under valid authorization of the competent respondents. Therefore insofar as the Clause (5) Note limits prevent the petitioners from employing and utilizing their existing sky signs for their business, the said limits are claimed to be an unreasonable restriction on the petitioners right to do their business and therefore contrary to the guarantee contained in Article 18 of the Constitution. 5. The respondent-PHA has acted to enforce the PHA Regulations by refusing after 31-12-2008 to renew their consents for the existing sky signs installed by the petitioners. Such action was followed by the order dated 27-7-2009 passed by the Director Marketing of respondent No,2, PHA whereunder PHA proceeded to dismantle the sky signs of some of the petitioners. Against such action, the petitioners approached this Court in Writ Petition No,15215 of 2009 wherein by judgment dated 31-7-2009 the order dated 27-7-2009 was set aside and fresh hearing by an authorized officer of the PHA was directed. Consequent upon hearing, a detailed order dated 5-8-2009 has been passed by the Director Marketing, PHA affirming and upholding the previous action of the PHA to enforce height and size limits prescribed in the PHA Regulations, decline renewal of permissions and authorizing the removal of the offending sky signs installed by the petitioners. The present writ petitions question the limits imposed by the PHA Regulations and the several aforesaid consequential orders passed and actions taken by and on behalf of the PHA in pursuance of the said Regulations. 6. In aid of their submissions, learned counsel for petitioners has referred to the following documents on record issued by PHA that are claimed to have conferred vested rights on the petitioners. The first document is a No Objection Certificate ("NOC") letter separately issued by the respondent-PHA to the several petitioners before the Court, and in the present petition dated 4-9- 2007 granting "NOC for installation of publicity board (sky sign) of size 90x30." By their NOCs, the concerned petitioners were permitted by the, DG PHA to install sky signs of the approved size on specified private land or building alongside a commercial road. The NOC requires the petitioners to provide before execution of works to PHA, a copy of agreement with the owner of premises, copy of the I.D. Card of the owner and the design of structure from an enlisted Structure Engineer of PHA. It is further prescribed in the NOC that the applicants- petitioners shall provide a structural stability certificate of the sky signs after installation and that sky tax charges shall be paid punctually according to prevailing rates/policy of the PHA. 7. Learned counsel for petitioners submit that the said NOC confers freedom on the petitioners to use private property for displaying authorized sky signs in order to project public advertisements therefrom. He has read from documents required from the petitioners by the PHA to establish compliance by the petitioners with the conditions for installing their sky signs. These include the agreement with the owner of the private premises, the structural stability certificate of the sky signs in question and PHA receipts for payment of sky tax by the petitioners until 31-12-2008. Learned counsel for petitioners has explained that after 31-12-2008 the PHA has refused to accept the sky tax and have insisted upon dismantling the petitioner's sky signs. Learned counsel then referred to an "application form for outside advertisements". The entries on this form contain particulars of the
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advertiser, the nature of his signage, its location and size. For that purpose, the entry at Serial Nos.7 and 8 of the form provide "time period for which the approval is required. In accordance with the PHA instructions this period is expressed as six monthly terms; in the form attached to this petition, it is 1-7-2008 until 31-12-2008. The application is signed by the owner of the sky sign. 8. Learned counsel has explained that the application form is filed in order to obtain authorization from PHA to deposit sky tax for the period mentioned in the application. He has then referred to an affidavit filed by an applicant with the PHA in the present petition it is dated 14-11-2008 which, inter alia, admits knowledge of the attached terms and conditions of PHA and assures the applicants' compliance with the same. It is also affirmed in the affidavit that the applicants' firm is not a PHA defaulter nor is in possession of any illegal sky signs erected without permission or renewal from PHA. The "terms and conditions for out door advertisement attached to the application form, empower the PHA to remove the sky signs of the petitioners in case extension is not applied within 30-days before the expiry date or if the site is required for any developmental work in the interest of the public. 9. Learned counsel for petitioners has explained that the petitioners have incurred substantial costs to erect their sky signs. The petitioners' cost estimates are disputed by the respondent PHA but it is accepted that the installation of a sky sign structure does involve both , construction and material costs. In the foregoing factual context, learned counsel for petitioners contends that permission was granted to the petitioners to install their sky signs under the criteria laid down in PHA Regulations of 1999 issued vide notification dated 29-4-1999. That the NOCs granted to the petitioners coupled with the petitioners' reliance thereon through investment in the installation of the sky sign creates vested rights in the petitioners which cannot be wrested by retrospective enforcement of the impugned PHA Regulations 2008 upon existing sky sign structures. In this behalf, learned counsel for petitioners has placed reliance on the following judgments. State Bank of Pakistan v. Messrs Faisal Spinning Mills Limited (1997 SCM R 1244), Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad (2008 SCM R 773), Sheikh Fazal Ahmad v. Raja Ziaullah Khan and another (PLD 1964 SC 494) and Collector of Central Excise and Land Customs and 3 others v. Azizuddin Industries Ltd., Chittagong (PLD 1970 SC 439). The upshot of the above noted precedents is that the executive authority cannot exercise its rule making power retrospectively to curtail or take away vested rights of citizen. 10. Explaining his other grounds of challenge learned counsel for petitioners has submitted that impugned refusal by PHA to renew the permissions to continue existing sky signs and the corresponding action to dismantle the same after 31-12-2008 constitutes violation of the petitioner's freedom to engage in trade and business under Article 18 of the Constitution. In this context, he submits that the limits imposed in the PHA Regulations are prohibitory in nature and their effect goes beyond the scope of permissible regulation under Article 18 of the Constitution. He relies upon Haji Ghulam Zamin and another v. A.B Khondkar and others (PLD 1965 Dacca 156). Arshad Mehmood v. Through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193), ' Jibendra Kishore and others v. The Province of East Pakistan and another (PLD 1957 SC (Pak) 9, and Mst. Sardaran and 75 others v. The Municipality, Lyallpur (PLD 1964 SC 397). 11. The learned counsel for petitioners has contended that the impugned PHA Regulations made in exercise of the regulatory power of the State has imposed prohibitory restrictions on the petitioner's business of displaying advertisements on sky signs. This effect is established by the fact that in consequence of the impugned regulations the petitioner's sky signs have to be removed and demolished. Consequently, the powers of the State have been exercised excessively in violation of the petitioners fundamental right under Article 18 of the Constitution. As a result learned 'counsel
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submits finally that the petitioners' right to livelihood has been curtailed by the impugned action which constitutes a violation of Articles 9 and 14 of Constitution assuring right to life to a citizen. 12. In answer to the factual and legal submissions made by the learned counsel for the petitioners, a detailed set of documents have been filed along with the respondent's parawise comments. In the first place, it is explained that impugned PHA Regulations did not spring a surprise on the petitioners but reflect the considered deliberations of an Expert Committee comprising representatives of Punjab Outdoor Advertiser Association of which the petitioners are members. 13. The learned counsel for respondent PHA has explained that in exercise of powers contained in the Punjab Development of Cities Act, 1976 the provincial government vide notification dated 21-9- 1998 declared the district of Lahore to be a "city" for the purpose of said Act and established the PHA as the Authority for the area. The Act vests a number of powers and functions of the Authority constituted under the Act. With reference to the regulation of out-door advertising, the powers and functions upon the Authority are specified in section 7 of the Act. The relevant objects and powers are provided in section 7(2)(vi)(vii), sections 19 and 20 of the Act which are reproduced as follows:- - Section 7(2) (vi) Prepare, implement and enforce schemes for environmental improvements, housing, urban renewal including slums improvement and redevelopment, solid waste disposal, transportation and traffic, health and education facilities and preservation of objects, cultural and recreational importance; (vii) take any steps or adopt any measures for the face lifting and beautification of the area; Section 19 ' The Authority shall have full powers to undertake improvements of the environment of the area or any part thereof and to check replace, eliminate, demolish, conserve, re-settle or relocate the sources of environmental pollution such as milch cattle, horses or other animals, tongas, vehicular exhaust, industrial waste, solid waste, congestion, blight and slums, etc; Provided that the Authority shall provide alternate accommodation or compensation to be determined in accordance with the provisions in Chapter-VI, to any person evicted from the premises owned by him. Section 20 ' The Authority shall also undertake beautification of the area or part thereof, in any manner it deems fit, or prepare schemes and prescribe environmental standards to be adopted by the Government Agency or person to undertake any improvements or activities for beautification of the area or part thereof." 14. The Provincial Government by notification dated 26-12-1998 proceeded to empower the PHA with exclusive authority and rights to "lease out-door advertisements, billboards etc. And collect revenues therefrom in the notified areas of Lahore District with immediate effect". The said powers of the PHA came into conflict with certain provisions of the Punjab Local Government Ordinance, 2001. Accordingly, by the Punjab Local Government (Second Amendment) Ordinance, inter alia, the jurisdiction of PHA was preserved by the following incorporation made in section 118-A of the Ordinance of 2001:-- "The fee on advertisement in City District Lahore shall be levied and collected by Parks and Horticulture Authority and the proceeds from collection of this fee shall be spent by Parks and Horticulture Authority in consultation with Town Nazims of the City District Lahore". 15. Pursuant to the foregoing statutory and subordinate law, the PHA has regulated the activity of out-door advertising initially under PHA Regulations, 1999 notified on 29-4-1999 and thereafter, through policy instruments settled with the participation and consultation of representatives of the Out-door Advertisers' Association ("Petitioners Association") to which the petitioners before the Court belong as members.
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16. Minutes of meeting of senior functionaries of the provincial government and office bearers of the petitioners Association held on 18-2-2006, 25-2-2006 and 5-4-2006 have been placed on record. ' A detailed account of these minutes is not necessary except for noting that a regular consultative process was undertaken by the PHA for regulating the business of outdoor advertising in the city of Lahore. Most of the petitioners before the Court were granted permission to install the sky signs under the provisions of the PHA Regulations, 1999 read with the Policy on Publicity Boards dated 27- 3-2007 which settled new criteria for the PHA to regulate sky signs in the city. Clauses 4 and 5 thereof contemplate the display of sky signs on private land and properties to be installed subject to the consent of a committee constituted by the PHA. The petitioners do not dispute that their aforementioned NOCs and related authorizations have been issued pursuant to the said policy. 17. The learned counsel for respondent PHA emphasizes that the procedure and substantive provisions made in the impugned PHA Regulations for controlling sky signs is, therefore, not a sudden development but the outcome of consultative policymaking involving participation of different stake holders including the office bearers of the petitioners Association. Learned counsel has highlighted that clause (7) of the PHA Policy on Public Boards dated 27-3-2007 indicates 30-6- 2008 as a deadline after which fresh measures for regulating outdoor advertising would be put in the field. He has referred to clause 6(f) of the PHA Regulations, 1999 (notified on 29-4-1999) to state that permission of outdoor advertising shall be granted for not more than a period of one year. In conjunction with the said provision of the PHA Regulations, 1999, learned counsel has referred to the specific documentation concluded with each of the petitioners in the matter of their out-door advertising sky signs. He submits that the application form filed by each petitioner admittedly specifies the location of the advertising sites, the size of the sky sign and a limited period for which approval is given. In most cases, approval is for a period of three or six months. The application also contains the particulars of the pay order for the amount of sky tax/rent deposited by each applicant. He has then read from the affidavits filed by each applicant which acknowledge that terms and conditions laid down by the PHA govern the display of sky signs and violation thereof is a ground for removal of the boards without notice. He has also drawn attention to the standard form permission letter issued by the respondent PHA in answer to every application for out-door advertisement approved by the PHA. This permission letter is signed by an officer of PHA and gives particulars of the site where the applicant's advertising signage has been approved and the period for which such approval is granted. It also contains a number of conditions which includes inter alia the power to withdraw the permission for sky signs ."in the interest of general public or as desired by the authority". The same clause authorize PHA to issue notices with respect to the objectionable sky for removal within the time allowed subject to refund of the PHA fee paid in advance. In case of non compliance PHA has authority to remove the sky signs at the risk and cost of the advertisers. 18. Learned counsel has read from the contents of the foregoing permission letter to highlight the fact that an applicant/advertiser/ petitioner does not have a permanent right to display advertising on its approved sky sign. The right in question is revocable by the PHA upon different criteria including the "interest of general public". Consequently, he disputes the vested right claimed by the petitioners to retain and use their sky signs. He has thereafter explained the nature and effect of NOCs which form the sheet-anchor of the petitioners' case. The said document approves the locations for the sky signs, imposes structural stability standards for the structures erected there and charges no consideration for grant of the NOC but a user fee for the duration of approval to erect a sky sign. The NOC does not set out the terms and conditions for advertising on approved sky signs but as admitted in para of the grounds of writ petition certain terms and conditions do apply to the permission for installation of sky signs. This is evidenced in the terms
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and conditions accepted by the petitioners in their affidavits which are attached on record. Clause 5 of the said terms and conditions empower the PHA with "a right to withdraw the terms of the site if the site is required for road widening or any other development work or in the interest of public." The contents of petitioners' application for out-door advertising read with the said terms and conditions deprive an NOC of its claimed effect of granting a vested right to the petitioners. 19. Consequently, on behalf of respondents it is urged that permission granted to the petitioners for displaying advertising materials on their sky signs is revocable, and therefore, the petitioners do not have any permanent vested right. The NOC by itself is an incomplete document and must be read in conjunction with other material concerning the petitioners' sky signs in order to understand its meaning and effect. Thus an NOC does not by itself confer rights because the commercial exploitation of private property to which it relates is authorized subject to terms and conditions determined elsewhere by the PHA. By itself, an NOC granted without payment of any consideration to the PHA is an incomplete and non-conclusive document. The reliance placed thereupon by the petitioners is accordingly exaggerated and misconceived. 20. Learned counsel for respondent PHA submits that impugned Regulations are framed in aid of public interest. The PHA is an authority established under section 7(2)(vi)(vii) and sections 19 and 20 of the Punjab Development of Cities Act, 1976 to take steps for environmental, face lifting and beautification of the area. The statutory criteria furnish the milestone for framing regulations controlling outdoor advertising in the city of Lahore. He has pointed out that a number of developing countries have adopted a clean skyline policy in its major cities. These include Delhi and Beijing. In the present case, however, the respondent-PHA has not prohibited the display of sky signs but merely limited the size of their display area. Consequently, new regulations are not prohibitive but regulatory; these do not direct closure of the business but a reduction in size and height of sky sign. These limitations do not prevent the relocation of a properly sized sky sign. With regard to the claim of loss and injury due to wasted investment caused by the impugned regulations, learned counsel has pointed out that the steel structure of a sky sign can be dismantled and this does not entail the destruction of the structure. Non-compliant signs can be re-erected in areas outside PHA control, including the cantonment area of Lahore. More importantly, the element of relocation of a business is not new to the exercise of regulatory power; urban environment have been witnessing from time to time relocation, of bus stands, cattle markets, food and grain markets and mobile phone towers. By referring to the case law relied by the petitioners, he submits that no accrued vested right of the petitioners has been curtailed. Consequently, the objection of retrospectively is not attracted to the impugned regulations. On the matter of Article 18 of the Constitution, he has read from the same case law already referred above to state that prohibitory action violates the constitutional guarantee but a regulatory action that merely imposes restriction on the exercise of the right of business or trade does not infringe the said guarantee. In the present case, the impugned regulations have laid down a standard that allow outdoor advertising on sky signs to be continued subject to limitations that permit the trade and does not prohibit the same. No reasoned analysis or account has been provided by the petitioners to show that limitation imposes by the impugned regulations are unreasonable and beyond the purview of constitutional guarantee. 21. The respective contentions of the learned counsel for the parties have been considered carefully. The learned counsel for the petitioners has in principle made three important submissions touching upon the legal rights of the petitioners. The first point is that the NOC given by the PHA to the petitioners for setting up their respective sky signs are unconditional and are not time bound. These NOCs confer vested rights upon the petitioners to utilize their approved locations for the purpose of outdoor advertisement through sky signs having the approved
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dimensions. Such rights of the petitioners cannot be .Curtailed by executive action of the respondents through the impugned PHA Regulations. 22. The second submission made by the learned counsel for the petitioners is that the impugned PHA Regulations impose height and size limitations on the installation of sky signs that render the petitioners' approved sky signs to be illegal. As the impugned PHA Regulations are being applied to the petitioners' existing sky signs therefore such enforcement of a restrictive new law upon present rights tantamount to retrospective enforcement which is not permissible through executive action including subordinate legislative measures. Thirdly, it is contended that the PHA Regulations impose prohibitory restrictions on the business of the petitioners and in doing so violates the guarantee under Article 18 of the Constitution of Islamic Republic of Pakistan, 1973. Accordingly, the restrictions are unconstitutional and void. 23. It is admitted that…
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