MOOT COURT EXERCISE #2

LIST OF REFERENCES

1. STATUTES
a. The Karnataka Open Spaces (Prevention of Disfigurement) Act, 1981
b. The Karnataka Municipal Corporations Act, 1976
c. The Bangalore Mahanagara Palike Advertisement Bye-laws, 2006
d. The Constitution of India, 1948
2. BOOKS
a. Karnataka Municipal Corporations Manual, Karnataka Law Journal
Publications, 2017, 11th Edition
b. Karnataka Local Laws, Karnataka Law Journal Publications, New Edition
2016, Volumes 20 & 21
3. DATABASE
a. www.manupatrafast.com
b. www.scconline.com
c. www.indiankanoon.org
d. http://karnatakajudiciary.kar.nic.in/
 BEFORE THE HON’BLE HIGH COURT OF KARNATAKA

WP NO. ______/2019

THE KARUNADU STATE DIGITAL PRINTERS ASSOCIATION & ANR. … PETITIONERS

VERSUS

STATE OF KARUNADU & BRMP … RESPONDENTS

Upon submission to the Hon’ble Chief justice and his Companion Justices of the High
Court of Karnataka

Most Respectfully Submitted

Counsel appearing on behalf of the Petitioners

Memorandum on behalf of Petitioners

--o--

STATEMENT OF JURISDICTION

WHEREAS, THE PRESENT WRIT PETITION IS BEING FILED UNDER ARTICLE 226
OF THE INDIAN CONSTITUTION, 1949.

ARTICLE 226 states as follows –

226. Power of High Courts to issue certain writs
(1) Notwithstanding anything in Article 32 every High Court shall have powers,
throughout the territories in relation to which it exercise jurisdiction, to issue to any
person or authority, including in appropriate cases, any Government, within those
territories directions, orders or writs, including writs in the nature of habeas corpus,
mandamus, prohibitions, quo warranto and certiorari, or any of them, for the
enforcement of any of the rights conferred by Part III and for any other purpose
(2) The power conferred by clause (1) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in
part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories
(3) Where any party against whom an interim order, whether by way of injunction or
stay or in any other manner, is made on, or in any proceedings relating to, a petition
under clause (1), without
(a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the
party in whose favour such order has been made or the counsel of such party, the
High Court shall dispose of the application within a period of two weeks from the date
on which it is received or from the date on which the copy of such application is so
furnished, whichever is later, or where the High Court is closed on the last day of that
period, before the expiry of the next day afterwards on which the High Court is open;
and if the application is not so disposed of, the interim order shall, on the expiry of
that period, or, as the case may be, the expiry of the aid next day, stand vacated
(4) The power conferred on a High Court by this article shall not be in derogation of
the power conferred on the Supreme court by clause (2) of Article 32

Therefore, this Hon’ble Court is vested with jurisdiction under Article 226 of the
Indian Constitution, 1949 to issue a Public Interest Litigation as per this writ
petition.

--o--

STATEMENT OF FACTS

1. The Petitioners, Karunadu State Digital Printers Association and Anr., is an

association of several companies and organisations who are all involved in the
business of advertisements through hoardings, banners, flexes, posters, wall
painting/writing and all other forms of advertisements for the past several
years.
2. The Respondent No. 2, Bruhat Rajanagar Mahanagara Palike (hereinafter
BMRP), passed a resolution in March 2019 that banned all forms of
advertisements, and that all hoardings and structures be removed within 15
days of the resolution being made, failing which criminal case would be filed
against the property owners under the Karunadu Open Spaces (Prevention of
Disfigurement) Act, 1981.
3. The Petitioners would like to state at the very outset that they have received
no notice from Respondent No. 2 for removal of their advertisements as per
their resolution.
4. The Respondent No. 2 has categorised the properties on which these
advertisements are displayed into three categories, namely – those on BRMP
property, those on lands owned by the State and Central Government
departments, and thirdly those on private properties.
5. It is wise to state here that there are about 3,000 hoardings on private
properties, that have now been declared illegal by the resolution of the BRMP.
6. The hoardings on private properties must also be removed within 15 days, as
per the abovesaid resolution.
7. The Respondent No. 2 claim that they need not provide any notice to the
private property owners regarding the removal of advertisements, failing which
criminal action will be taken against the private property owners as per the
 Karunadu Open Spaces (Prevention of Disfigurement) Act, 1981, under which
the punishment is six months’ imprisonment and/or a penalty of Rs. 1,000/-.
8. The State President of the Karunadu State Digital Printers and Flex Printers
Association states that there are nearly 2,000 printing units in Bangalore city
alone which provides direct and indirect employment to nearly 10 lakh workers.
9. The Respondent No. 2, by asking all printing units to be closed suddenly and
without providing alternatives or sufficient time, is pushing the Petitioners into
difficulty. Several of the units that have had to shut down have incurred huge
losses and is also finding it difficult to pay salaries of their employees.
10. The Petitioners, who are aggrieved by the abovesaid resolution, which
completely bans advertisements through hoardings, banners, posters and
flexes, have approached the Hon’ble High Court of Karnataka for justice.

--o--

ISSUES

1. Whether the resolution is illegal and unconstitutional insofar as it violates –

A. Principles of Natural Justice
B. Article 19 and 21 of the Indian Constitution
2. Whether the resolution is legal as per the provisions of the Karnataka Open
Spaces (Prevention of Disfigurement) Act, 1981?
--o--

ARGUMENTS ADVANCED

1. Whether the resolution is illegal and unconstitutional insofar as it

violates –
A. Principles of Natural Justice
B. Article 19 and 21 of the Indian Constitution

As has been described above, the issue at hand is to prove that the resolution passed
by the Bruhat Rajanagara Mahanagara Palike is illegal and unconstitutional on account
of the five points as listed above. Each of the points will be dealt with in the following
paragraphs –

A. The resolution is illegal and unconstitutional insofar as it violates

Principles of Natural Justice
As has been stated, the resolution passed by the BRMP is illegal and unconstitutional
as it violates the Principle of Natural Justice, namely – audi alteram partem. It is the
principle that no person should be judged without a fair hearing in which each party
is given the opportunity to respond to the evidence against them. Before any action
is taken, the affected party must be given a notice to show cause against the proposed
action and an explanation sought from them.

However, in this case, the Respondent No. 2 has agreed to not having issued notice
to the Petitioners. By not issuing prior notice to the Petitioners regarding the removal
of advertisements, they were denied a chance to respond to the resolution which was
passed against them.

In Maneka Gandhi vs. Union of India [1978 AIR 597], the Judge stated, “the
doctrine of natural justice consists principally of two rules, namely, nemo debt esse
judex propria cause: no one shall be a judge in his own cause, and audi alteram
partem: no decision shall be given against a party without affording him a reasonable
hearing. We are concerned here with the second rule and hence we shall confine
ourselves only to a discussion of that rule. The learned Attorney General, appearing
on behalf of the Union of India, fairly conceded that the audi alteram partem rule is a
highly effective tool devised by the courts to enable a statutory authority to arrive at
a just decision and it is calculated to act as a healthy check on abuse or misuse of
power and hence its reach should not be narrowed and its applicability circumscribed.”

Therefore, any resolution passed without providing notice to the affected party is
illegal and unconstitutional.

Along with this, as per Section 138 of the Karnataka Municipal Corporations
Act, 1976, the Commissioner has to provide notice before removing advertisements.
It reads as follows –

Section 138 of KMC Act – Commissioner has to provide notice before removing any
advertisement – hasn’t done so in this case.
138. Removal of unauthorised advertisement.- If any advertisement be erected,
exhibited, fixed or retained contrary to the provisions of section 134 or section 135 or
after the written permission for the erection, exhibition, fixation or retention thereof
for any period shall have expired or become void, the Commissioner may, by notice
in writing, require the owner or the occupier of the land, building, wall, hoarding or
structure upon or over which the same is erected, exhibited, fixed or retained to take
down or remove such advertisement or may enter any building, land or property and
have the advertisement removed.

In Rex Advertisers vs. Corporation of the City of Bangalore [ILR 1986

Karnataka 2323], the High Court of Karnataka ordered as thus –

“(ii) The respondent or its authorised Competent Officer before decides and directs
under Section 138 of the Act, to remove the advertisement hoardings, shall first issue
notice to the petitioners to show cause, and if petitioners show cause, afford an
opportunity of hearing and then proceed in the matter, in accordance with law.”

Therefore, the advertisement hoardings cannot be removed without affording an

opportunity of hearing to the petitioners.
 B. The resolution is illegal and unconstitutional insofar as it violates
Article 19 and 21 of the Indian Constitution

Article 19 of the Constitution grants the freedom of speech. For the purpose of this
case, Articles 19 (1) (a) and 19 (1) (g) is relevant.
They read as follows –

Article 19 – Protection of certain rights regarding freedom of speech etc. -

(1) All citizens shall have the right
(a) to freedom of speech and expression;

And Article 19 – Protection of certain rights regarding freedom of speech etc. –

(1) All citizens shall have the right
(g) to practise any profession, or to carry on any occupation, trade or business

Article 21 of the Indian Constitution grants the right to life and liberty and states as
follows –

21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law

The Petitioners contend that the said resolution is a violation of their fundamental
rights guaranteed under Articles 19(1)(a), 19(1)(g) of the Constitution of India.

As regards the contention that resolution is in violation of fundamental rights of the

petitioners under Articles 19(1)(a) and 19(1)(g) and 21 of the Constitution of India,
the same requires to be considered.

The Apex Court in M/s. Tata Press Ltd. Vs. Mahanagar Telephone Nigam
Limited and others [(1995) 5 SCC 139] had an occasion to consider as to whether
commercial advertisement comes within the concept of freedom of speech and
expression guaranteed under Article 19(1)(a) of the Constitution of India.

The facts being that the Tatas (who were neither the speaker nor the recipient but
only a publisher of the advertisements) were engaged in the publication of the Tata
Press Yellow Pages which is a buyer guide comprising of compilation of advertisement
given by businessmen, traders and professionals, was sought to be restrained by the
Mahanagar Telephone Nigam, which had asserted that they alone had the right to
print/publish the list of telephone subscribers.

The Court while after considering the contention has concluded that –
“23. In relation to the publication and circulation of newspapers, this Court in Indian
Express newspaper case, Sakal Paper case and Bennett Coleman case has
authoritatively held that any restraint or curtailment of advertisements would affect
the fundamental right under Article 19(1)(a) on the aspects of propagation, publication
and circulation.”

While observing that the public at large also has right to listen, read and receive the
said speech flowing from Article 19(1)(a), it concludes –

“25. We, therefore hold that commercial speech is a part of the freedom of speech
and expression guaranteed under Article 19(1)(a) of the Constitution of India.”

In the present case, the advertising agencies can be said to be an intermediary

providing a medium between the speaker and the recipient and hence would
themselves be entitled to exercise under Article 19(1)(a) which would answer the
contention as regards locus standi of the petitioners.

It is contended that the right under Article 19(1)(g) is as regards the right to carry on
any occupation, trade or business and hence even if it is assumed that restrictions are
placed and the right under article 19(1)(g) as regards outdoor advertising is curtailed,
such restriction cannot amount to an infraction of the right under Article 19(1)(g) as
they could pursue any other trade or business, including other forms of advertisement.

It is further submitted that the restrictions on such rights could be as regards the right
under Article 19(1)(a) of the Constitution of India only on the grounds as enumerated
under Article 19(2) of the Constitution of India, while as regards the right under Article
19(1)(g) of the Constitution of India could be on the grounds enumerated under Article
19(6) of the Constitution of India. Hence, it is contended that the grounds made out
in the resolution for the purpose of restricting the right of the petitioners to advertise
being beauty of the city, environmental pollution and increase in occurrence of road
accidents cannot be grounds available to curtail the right under Articles 19(1)(a) and
19(1)(g) of the Constitution of India.

The right of the advertisers can also be traced to Article 19(1)(g) and also the right to
choose and carry on any trade and business by itself would be a right under Article
21. The contention that the resolution does not prohibit any other trade or business
right, of the petitioners including as regards other modes of advertisement but is
limited only to the business of advertising as contemplated in the resolution, is rejected
as being in violation of their right to choose and practice any trade, business and
avocation in terms of their rights under to Article 21 of the Constitution of India.

2. Whether the resolution is legal as per the provisions of the Karnataka

Open Spaces (Prevention of Disfigurement) Act, 1981?

The Karnataka Open Spaces (Prevention of Disfigurement) Act, 1981 – the Act 35 of
1982 – was passed towards achieving the objective of public and private buildings and
other open places being disfigured by slogans written and posters pasted
indiscriminately on their walls are a common spectacle in the cities and towns of the
State. Indulgence in these activities apart from spoiling the beauty of the buildings
and other space obliges the owners to incur avoidable expenditure to undo the
mischief. As these activities have been on the increase it has become necessary to
prevent them immediately. The existing provisions under the Karnataka Police Act,
1963 and the municipal laws were not found to be sufficient to check this menace
effectively. In these circumstances, it was intended to have a separate stringent law
which provides inter alia for deterrent punishment and for making the offences
cognizable. Hence this Act was passed.

It must be noted here that the Petitioners do not engage in disfiguring public or
private spaces, as is the intention or objective of the abovesaid Act. It is only with
prior permission and authorization by the local authority that the advertisements of
the Petitioners are displayed in public and private lands alike.

Additionally, the said resolution of the BRMP states that all advertisements have been
banned, and not just those which are illegal or unauthorized. The BRMP is well within
their rights to remove illegal hoardings, but it is hereby claimed that the
advertisements of the Petitioners are not illegal and is bound to be proved using the
following legal provisions.
Commented [Office1]: This is against the Advertisement
Bye-laws, 2006, which seeks the display of all
advertisements with prior permission. And in this case,
the Petitioners possess deemed permission to display
all forms of advertisements.

Firstly, it must be established that the Petitioners do not engage in disfigurement. For
this purpose, Section 3 of the Karnataka Open Spaces (Prevention of
Disfigurement) Act, 1981 must be looked into which states as follows –

Sec 3. Penalty for unauthorised disfigurement by advertisement.- Whoever by himself

or through another person affixes to, or erects, inscribes or exhibits on, any place
open to public view any advertisement without the written permission of the local
authority having jurisdiction over such area, shall be punished with imprisonment of
either description for a term which may extend to six months or with fine which may
extend to one thousand rupees, or with both:
Provided that nothing in this section shall apply to any advertisement which,-
(i) is exhibited within the window of any building if the advertisement relates to the
trade, profession or business carried on in that building; or 3
(ii) relates to the trade, profession or business carried on within the land or building
upon or over which such advertisement is exhibited or to any sale or letting of such
land or building or any effects therein or to any sale, entertainment or meeting to be
held on or upon or in the same; or
(iii) relates to the name of the land or building, upon or over which the advertisement
is exhibited, or to name of the owner or occupier of such land or building; or
(iv) relates to the business of a railway administration and is exhibited within any
railway station or upon any wall or other property of a railway administration.
1 [(v) is affixed to or exhibited on any ancient and historical monument declared to be
of national importance under the Ancient Monuments and Archaeological Sites and
Remains Act, 1958 (Central Act XXIV of 1958).]1
1. Inserted by Act 15 of 1984 w.e.f. 18.9.1982

This section refers to penalty for unauthorized disfigurement by advertisement only,

where the one who affixes, erects, inscribes or exhibits in public view any
advertisement “without written permission” of the local authority will be liable to
punishment as prescribed. Therefore, it is not applicable in this case to the Petitioners,
who are displaying advertisements with deemed permissions only.

The Petitioners hold deemed permissions as per Section 135 of the Karnataka
Municipal Corporations Act, 1976 which states as follows –

135. Prohibition of advertisements without written permission of Commissioner.-

(1) No advertisement shall, after the levy of the tax under section 134 has been
determined upon by the corporation, be erected, exhibited, fixed or retained upon or
over any land, building, wall, hoarding or structure within the city or shall be displayed
in any manner whatsoever in any place without the written permission of the
Commissioner.
(2) The Commissioner shall not grant such permission if,-
(i) the advertisement contravenes any bye-law made by the corporation; or
(ii) the tax, if any, due in respect of the advertisement has not been paid.
(3) Subject to the provisions of sub-section (2), in the case of an advertisement liable
to the advertisement tax, the Commissioner shall grant permission for the period to
which the payment of the tax relates and no fee shall be charged in respect of such
permission: Provided that the provisions of this section shall not apply to any
advertisement erected, exhibited, fixed or retained on the premises of a railway
relating to the business of a railway.

Moreover, Section 3 of the Karnataka Open Spaces (Prevention of Disfigurement) Act,

1981 makes 4 exceptions that does not come under the purview of disfigurement
which has to be read with Section 2(a) of the said Act which states –

Sec 2 (a) “advertisement” means any printed, cyclostyled, typed or written, notice,
document, paper or any other thing containing any letter, word, picture sign or visible
representation; -- which means that the Petitioners are not considered to be causing
disfigurement by displaying authorised advertisement in public view.

Therefore, the resolution passed by the BRMP cannot be passed as per the Karnataka
Open Spaces (prevention of Disfigurement) Act, 1981, and that the BRMP has no
apparent or inherent powers under the said Act to pass a resolution banning ALL
advertisements from being displayed.

However, it must be stated here that the Petitioners are licensed advertisers who are
registered as per Section 443 (10) of the Karnataka Municipal Corporations
Act, 1976 which reads as follows:

Sec. 443(10) - The acceptance by the corporation of the pre-payment of the fee for a
licence or permission or for registration shall not entitle the person making such pre-
payment to the licence or permission or to registration, as the case may be, but only
to refund of the fee in case of refusal of the licence or permission or of registration,
but an applicant for the removal of a licence or permission, or registration, shall until
communication of orders on his application, be entitled to act as if the licence or
permission or registration had been renewed; and save as otherwise specially provided
in this Act, if orders on an application for licence or permission or for registration are
not communicated to the applicant within forty five days after the receipt of the
application by the Commissioner, the application shall be deemed to have been
allowed for the year or for such less period as is mentioned in the application and
subject to the provisions of this Act, the rules, bye-laws, regulations and all conditions
ordinarily imposed.

This provision of the Karnataka Municipal Corporations Act, 1976 must be read in
consonance with the Advertisement Bye-laws, 2006 of the BRMP.

Section 443(10) provides for obtaining and renewal, of licence, permission and
registration. Hence it is clear that the obtaining and renewal, of licence, permission
and registration as regards advertisement and its display and its regulation and
prohibition is entirely governed by the statutory provisions read with the
Advertisement Bye-Laws, 2006.

As to whether there is any power conferred under the Act on the Corporation to pass
a resolution contrary to the procedure and substantive law as laid out under the Act
and Advertisements Bye-Law, 2006, the above legal query is to be answered in the
negative.

This has been reiterated in M/S. Ameya Presence Marketing v. The Bangalore
City Corporation [1998 (5) KarLJ 398] where the Judge noted –

“9. The word 'permission' is a word of wide import which means to do some act which
but for the leave, would be illegal. A joint reading of the provisions of Sections 134
and 135 and 443(10) would lead to the conclusion that the respondent-Corporation
has imposed a tax on the advertisement which cannot be erected, exhibited, fixed or
retained upon or over any land, building, wall, hoarding or structure within the city
without the written permission of the Commissioner. Such permission has to be
obtained in accordance with the procedure prescribed under the Act.”

Additionally, one must look at the general powers of the BRMP to pass resolutions,
which grants them the authority to pass resolutions like the one in question.

Section 57 of the Karnataka Municipal Corporations Act, 1976 confers powers

on the Commissioner to pass such resolutions under the Act as it thinks fit.

57. General powers of the corporation.-

(1) Subject to the provisions of this Act, the rules, the regulations and the bye-laws
made thereunder, the municipal government of the city shall vest in the corporation.
(2) Without prejudice to the generality of the provisions of sub-section (1), it shall be
the duty of the corporation to exercise such powers, perform such functions and
discharge such duties as are conferred on it by and under this Act and consider all
periodical statements relating to the receipts and disbursements, and all progress
reports and pass such resolutions thereon, as it thinks fit.
The power under Section 57 as relied upon cannot in any way be construed to
empower the passing of a resolution contrary to the Karnataka Municipal Corporations
Act, 1976 and the Advertisement Bye-laws, 2006.

It must be noted that Section 57(1) starts with the words “subject to the provisions
of this Act”. Which means that resolutions can be passed by the BRMP onlyi n
accordance with the Karnataka Municipal Corporations Act, 1976, which empowers
the local authority in its administration. Further, power under sub-section (2) provides
for exercise such power, perform such functions and discharge such duties as are
conferred on it by and under this Act and pass such resolutions thereon, as it thinks
fit. Hence, any power to be exercised by way of passing of resolution is subject to the
legal framework as provided for under the Act and Bye-laws framed.

Section 3 A (16) of the Advertisement Bye-laws prescribed action to be initiated

against those who breach the bye-laws. It is as follows –

Sec 3. A (16) Whoever commits a breach of the bye – laws shall be issued a show
cause notice by the B.B.M.P which shall be replied to within 7 working days failing
which, or in case of confirmation of breach, be punishable:-
(i) with a fine which may extend to Rs 5000 (five thousand only) and in case of
continuing breach, with fine which may extend to Rs 500 for every day during which
the breach continues after issue of notice for the first breach;

(ii) With a fine which may extend to Rs 750 for every day during which the breach
continues after receipt of notice from the Commissioner to discontinue such breach.
(iii) The Commissioner may deface the display of any un-authorized advertisement
after issue of a written notice of three days.

(iv) In the case of repeated defaults, the Commissioner may, at his discretion, not
renew the registration of an Agency, after providing an opportunity to the Agency to
explain why such action not be taken against it and for reasons to be recorded in
writing and communicated to the Agency.


It is contended that the BRMP does not possess power to pass a resolution relating to
the regulation and prohibition of advertisements, in so far as the statute provides that
the regulation and prohibition could be provided for by the bye-laws. Hence, it is
contended that the source of power to pass a resolution ought to be traced to the
provisions of the Act and the reliance by the BBMP to Section 57 of the KMC Act,
cannot be accepted in so far as Section 57 of the Act does not contemplate exercise
of power in conflict with the provisions of the Act.

It is further submitted that the Advertisement Bye-Laws 2006 which are currently in
operation cover the field as regards the norms for advertisement and its regulation
and as the bye-laws are framed pursuant to the provisions of the Act, the entire field
relating to the regulation and prohibition of the Act being occupied and covered by
the provisions of the Act and the bye-laws, recourse to any residuary power which
would have the effect of being in conflict with the Act is unavailable.
The power under Section 57 as relied upon for the respondent BRMP cannot in any
way be construed to empower the passing of a resolution contrary to the Act and Bye-
laws.

Therefore, since these advertisements are not construed as disfigurement and are, in
fact, displayed legally with prior license and deemed permission as has been
evidenced, the BRMP cannot pass a resolution banning all advertisements, including
that of the Petitioners.

Secondly, the BRMP is empowered as per the Karnataka Municipal Corporations Act,
1976 and not under the Karnataka Open Spaces (Prevention of Disfigurement) Act,
1981.

Therefore, the resolution passed by the BRMP as per the Karnataka Open Spaces
(Prevention of Disfigurement) Act, 1981 is illegal and cannot be enforced.

--o--

PRAYERS

WHEREFORE, IN THE LIGHT OF THE FACTS STATED, ISSUES RAISED,

AUTHORITIES CITED AND ARGUMENTS ADVANCED, IT IS PRAYED THAT THIS
HON’BLE COURT MAY GRACIOUSLY BE PLEASED TO –

1. To issue proper writ of certiorari to quash the resolution of the BRMP passed
as per the Karunadu Open Spaces (Prevention of Disfigurement) Act, 1981;
2. Issuance of appropriate writ to declare that the advertising hoardings were
legal and valid and that the petitioners possessed deemed licenses;
3. Any other orders as the court may deem fit

All of these prayers are most humbly and respectfully prayed in the interest of
justice.

AND FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY BOUND SHALL
EVER PRAY.

Date:
Place:

ADVOCATE FOR RESPONDENT