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Judgment
P. Sathasivam, J.—Since the issue raised in all these Writ Petitions is one and the same, they are being disposed of by the following common
order. Tamil Nadu Outdoor Advertising Association through its Secretary has filed W.P. No. 24999/2002 seeking to issue a Writ of Mandamus,
directing the respondents, particularly the Southern Railway not to insist (Height + 3) formula for the purpose of renewal of the agreement of the
members of the petitioner Association.
M/s. Swamy''s Publicity Service through its proprietor has filed W.P. No. 25000/2002 questioning the proceedings of the second respondent
dated 28-5-2002 as far as insistence of maintaining (height + 3 metres) for the purpose of renewal and also the proceedings of the third
respondent/Senior Divisional Commercial Manager, Southern Railway dated 2-7-2002 on various grounds. They also prayed for direction to the
respondents to renew the agreement of the petitioner for the period from 1-4-2002 to 31-3-2003 without insisting (height + 3) formula as per
letter dated 26-3-2002.
M/s. Net work advertising through its proprietor N. Dakshinamurthi has filed Writ Petition No. 30104/2002 seeking to quash the letter dated
28-5-2002 of the Divisional Railway Manager (Commercial), Southern Railway, Chennai-3/2nd respondent and direct the respondents to renew
the contract of the petitioner for the period 2002-2003 without insisting on the new conditions prescribed in the impugned order.
M/s. Habeeba Advertising Agency through its proprietor M. Ahamed Ghani and M/s. Master Publicity through its proprietor Nooriya Banu
have filed W.P. Nos. 30480/2002 and 30481/2002 respectively, seeking to issue a Writ of Mandamus, directing the respondents to renew the
contract of the respective petitioner for the period 2002-2003 without insisting on the new conditions.
For convenience I shall refer the case of the petitioners in the earlier writ petition, viz., W.P. No. 24999/2002. It is stated that members of the
petitioner Association have applied for allotment of site for erecting hoarding structure in the railway land to the Senior Divisional Commercial
Manager, Southern Railway (hereinafter described as third respondent), who after making necessary inspection about the safety, security and other
aspects of the site, permitted the members of the petitioner Association to erect the hoarding structure by entering into an agreement. Such
hoardings were there from 2 years to 30 years. They are paying rent to the railway administration according to the tariff rate fixed by the railway
administration from time to time. The agreement entered upon by the members of the petitioner Association with the railway administration used to
be renewed every year. In October, 2001, when one of the hoarding structure fell down on the railway track due to digging of a trench by the
State Government and not due to the fault of the railway contractor or structural stability, the railway administration immediately intimated by letter
dated 19-10-2001 that after thorough inspection of the railway track, 23 hoarding structures were hazardous and they should be removed.
Immediately individual replies were given by the owners of these 23 hoarding structures. The railway administration made a joint inspection
consisting of Engineering Department, Commercial Department and the contractors on 9-11-2001 and found that these 23 hoarding structures
need not be removed but some improvements have to be made. After compliance of the directions, the structural stability and structural soundness
certificate was also submitted by those contractors on 12-11-2001. No action was taken against those 23 hoarding structures because all those
directions and improvements were carried out by the respective owners of the said hoarding structures and therefore those hoarding structures
were allowed to be retained in those places. By letter dated 26-3-2002, the 3rd respondent directed the members of the petitioner association to
furnish the structural soundness and structural stability of the hoarding structures on or before 28-3-2002 for consideration of the renewal.
Believing the said letter that the renewal will be given as usual, the members of the petitioner association have also furnished all the details required
by the 3rd respondent in his letter dated 26-3-2002. But all of a sudden on 28-5-2002, the members of the petitioner association received a letter
stating that if the hoardings are located outside the limiting distance of (Height +3) metres will be considered for renewal subject to the production
of the relevant certificates by an authorised engineer. The members of the petitioner association was shocked and surprised to receive the letter
dated 28-5-2002 suddenly when (Height + 3) was not referred at all in any of the earlier communications including the joint inspection made on 9-
11-2001 by the railway administration. The members of the petitioner association apprehend that their hoarding structures in the railway land will
be removed without notice. They have not received any notice to remove the hoarding structures nor any opportunity was given to them to explain
that (Height + 3) formula is not workable nor can be implemented because the tracks will not be so wide to adopt the said formula adopted by the
railway administration. In view of the arbitrary decision of the railway administration and that too in the middle of the contractual period put the
members of the petitioner association in dismay. The members of the petitioner association have invested amounts ranging from Rs. 10 to 15 lakhs
on the hoarding structures and if these hoarding structures are removed, they will be put to irreparable loss and injury. Having no other remedy,
they approached this Court by way of the present writ petition. Since similar averments have been made in the other writ petitions by the individual
advertising/hoarding agencies, I am not referring the same once again.
On behalf of the respondents, Senior Divisional Commercial Manager, Southern Railway, Madras-3 has filed an independent but identical
counter affidavit in all the writ petitions. Here again, for convenience, I shall refer the counter affidavit filed in W.P. Nos. 24999 and 25000/2002,
which runs as follows: Since an association cannot maintain the present writ proceeding, W.P. No. 24999/2002 is liable to be dismissed in limine.
As the writ petitioners were owners of the hoardings only viz., structures and since they are not the authors of the text of the advertisements, they
cannot seek protection under Article 19(1)(a) of the Constitution. Hence no fundamental right is involved in these proceedings. The Railway
administration had to take all the safety measures, especially when a hoarding at Guindy station fell down on 14-10-2001 at about 20.00 hours on
the main railway track itself due to heavy wind and rain, heavily damaging the overhead equipment and affecting the entire train movement for
about six hours. The said incident was an eye opener and the Railway administration decided to avoid such incident in future, in the interest of the
safety of the passenger and goods traffic. Accordingly, a joint inspection was conducted by the Engineering and Commercial Departments of
Southern Railway, who found that 28 hoarding structures abetting the railway tracks were very unsafe and hence the Railway administration rightly
decided to remove them. However, as a first step, by communication dated 1-11-2001, the hoarding owners were directed to carry out certain
immediate modifications to improve the structural strength of the hoardings. It was only an initial step taken by the Railway administration and 5
hazardous hoardings were removed departmentally. Replacement of tin sheets with PVC Vinyl sheets were carried out as a first step taken by the
Railway administration. As a next stage, detailed instructions were given to the hoarding owners in their letter dated 26-3-2002 to furnish the
stability certificate, duly issued by a competent Engineer covering the aspects given in the said communication. All the hoarding owners were asked
to see that their hoardings were situated away from H + 3 which means that the hoardings should be erected at a distance of its height from the
ground plus 3 metres from the central line of the track. The Chief Bridges Engineer issued the letter dated 28-5-2002 to all the hoarding owners
stating that the renewal of the respective licences would be considered only if they had complied with H+3 aspect. Such a safety measure is
inevitable, having regard to the recent incident that took place at Guindy Railway Station on 14-10-2001 damaging the overhead equipment and
affecting the train movement and taking note of the safety measure to the travelling public. The aforesaid guidelines and the instructions were
already issued by the Research Designs and Standards Organisation, Lucknow uniformly applies to all the Zonal Railways. It is a policy decision
that was taken permitting erecting the hoardings adopting H+3 formula and that was communicated to all the hoarding owners. Since the safety
aspect assumes more importance, the H+3 formula is being insisted in respect of all the hoardings in the Railway administration.
In the light of the above pleadings, I have heard Mr. B.S. Gnanadesikan, learned counsel for the petitioners and Mr. R. Thiyagarajan, learned
senior counsel for Southern Railway.
Mr. B.S. Gnanadesikan, learned counsel for the petitioners, would contend that having invested heavily by the hoarding owners, the Railway
administration is not justified in insisting H+3 formula when there is no such condition in the earlier proceedings/orders. According to him, the
present action is violative of Article 14(1)(a) and (2) of the Constitution of India. He further contended that under the guise of restriction, the
Railway administration is eliminating all the hoarding owners from the field. He further contended that the present move of the Railway
administration is liable to be interfered on the ground of discrimination, since the H+3 formula is not being implemented in other Regions.
On the other hand, Mr. R. Thiyagarajan, learned senior counsel for the Southern Railway, would contend that inasmuch as renewal of a licence is a
fresh grant, they are entitled to impose additional condition, namely, H+3 formula, more particularly in the light of public safety and traffic
movement.
I have carefully considered the rival submissions.
Before going into the merits of the claim made by the petitioners, it is to be noted that Writ Petition No. 24999/2002 is by an Association
which cannot maintain the claim as prayed for. The legal position is well settled. The Association is not a ""citizen"" as defined under Article 19 of the
Constitution of India. Accordingly, writ petitions filed by Associations, partnership firm, business concerns and companies on the basis of violation
of fundamental rights cannot be sustained, as none of them are citizens. Accordingly, Writ Petition No. 24999/2002 filed by the Association is
liable to be dismissed on the ground of non-maintainability. However, in view of the fact that individual persons/advertising agencies filed separate
writ petitions questioning the action of the Southern Railway, I shall consider the merits of the claim made therein.
The petitioners are mainly aggrieved by the Notice of the Southern Railway issued on the eve of renewal of licence for the period from 1-4-
2002 and thereafter. In the counter affidavit, the Railway Administration has explained that it has to take all the safety measures, especially when a
hoarding at Guindy Railway Station fell down on 14-10-2001 on the main railway track itself due to heavy wind and rain, heavily damaging the
overhead equipment and affecting the entire train movement for about six hours. According to them, the said incident was an eye opener and the
Railway administration decided to avoid such incident in future, in the interest of the safety of the passengers and goods traffic. Pursuant to the
directions of the Apex Court in M.C. Mehta case 1997 (9) Sup 418 and in view of the incident that happened on 14-10-2001 and to avoid such
happenings, it is stated that a joint inspection was conducted by the Engineering and Commercial Departments of the Southern Railway, who found
that 28 hoarding structures abetting the railway tracks were very unsafe and they decided to remove them. As a first step, the hoarding owners
were directed to carry out certain immediate modifications to improve the structural strength of the hoardings. It was also decided that the licences
for the hoardings, which were located within the Height of the hoarding + 3 metres from the centre line of the track will not be renewed irrespective
of the condition of the hoarding, considering that such hoardings are potential safety hazards to the travelling public and also might disrupt the train
services during adverse weather conditions. All the hoarding owners were informed that the hoardings which are located outside the limiting
distance of Height +3 metres will be considered for renewal subject o the production of relevant certificates by an authorized engineer. Aggrieved
by the said direction, the petitioners have filed the above writ petitions seeking appropriate direction from this Court.
Mr. B.S. Gnanadesikan, learned counsel for the petitioners, after drawing my attention to various clauses in the licence, granted earlier, would
contend that the Railway Administration is not entitled to impose additional/further condition like H+3 while considering renewal of licence. Mr. R.
Thiagarajan, learned senior counsel for the Southern Railway, would contend that application for renewal of licence is to be treated on par with
application for grant of fresh licence. In support of his above contention, he relied on a decision of the Apex Court in State of Tamil Nadu Vs.
Hind Stone and Others, : wherein the Supreme Court, while considering Tamil Nadu Minor Mineral Concession Rules (1959), has held that, (para
12)
12......it must be remembered that an application for the renewal of a lease is, in essence an application for the grant of a lease for a fresh period.
We are, therefore, of the view that Rule 8C is attracted in considering applications for renewal of leases also.
In Gajraj Singh etc. Vs. The State Transport Appellate Tribunal and others etc., : which is subsequent to State of Tamil Nadu Vs. Hind Stone
and Others, , the same legal position has once again been reiterated by the Supreme Court. In para 39, Their Lordships have held as follows:
It is settled law that grant of renewal is a fresh grant though it breaths life into the operation of the previous lease or licence granted as per
existing appropriate provisions of the Act, rules or orders or acts intra vires or as per the law in operation as on the date of renewal. The right to
get renewal of a permit under the Act is not a vested right but a privilege subject to fulfilment of the conditions precedent enumerated under the
Act....
It is clear from the above pronouncements of the Supreme Court that grant of renewal is a fresh grant; accordingly the lessee or licensee is
bound to comply with fresh conditions to be imposed by the Authority. Further, as rightly contended by the learned senior counsel for the Southern
Railway, the renewal of a licence is not a vested right, but a privilege subject to fulfilment of the conditions. In such a circumstance, the contention
of Mr. B.S. Gnanadesikan is liable to be rejected. The contention that petitioners invested heavily and that the Railway Administration is not
justified in imposing further condition is liable to be rejected. Regarding the contention that the additional condition is violative of Article 19(1)(a)
and 19(2) of the Constitution of India, it is to be noted that the writ petitioners were the owners of the hoardings only viz., structures and since they
are not the authors of the text of the advertisements, they cannot seek protection under Article 19(1)(a) of the Constitution. As rightly contended,
no fundamental right is involved in these proceedings.
Mr. B.S. Gnanadesikan, learned counsel for the petitioners, has also contended that except one solitary incident, viz., falling down of a
hoarding at Guindy Station on 14-10-2001, the railways have not received any adverse report in respect of the existing hoardings. According to
him, because of the said lone incident, the Railway Administration is not justified in imposing a condition viz., H+3 Scheme and directing that the
same will apply in respect of all hoardings cannot be justified. I am unable to appreciate the said contention. As rightly pointed out by the learned
senior counsel for the Railways, there is no need to wait till several incidents take place. It is the duty of the Railway administration to take all the
safety measures to the travelling public and for free movement of goods traffic. They have specifically referred to the incident that took place on
14-10-2001 at Guindy Railway Station where one hoarding fell down on the main railway track itself due to wind and rain, heavily damaging the
overhead equipment affecting the entire train movement for several hours. The said incident was an eye opener and the Railway Administration is
fully justified in imposing further condition by taking note of the safety of the passengers and for free movement of goods traffic. The said action is
well within their powers and cannot be construed as an arbitrary action. On the other hand, I am satisfied that considering the safety of the
passengers and goods traffic, they are fully justified in imposing additional condition, namely, H+3 formula. As per the said condition, the hoardings
are to be located outside the limiting distance of the height of the hoardings plus 3 metres. It is also brought to my notice that the Railway
Administration did not want to take drastic action straight away especially during the currency of the licence period. Initially they directed
replacement of tin sheets with PVC Vinyl sheets and all the hoarding owners were directed to effect the structural strengthening as directed by the
Engineering branch. Thereafter, detailed instructions were given to the hoarding owners to furnish the stability certificate, duly issued by a
competent Engineer. It is further explained that the stability certificates furnished by the hoarding owners were forwarded to the Chief Bridges
Engineer, Southern Railway for necessary approval. It is also explained that the very basic reason for insisting H+3 aspect is only on the basis of
safety measure to the travelling public and to further avoid disruption of train movement on account of falling of hoardings on the railway track for
any reason whatsoever. Such a safety measure is inevitable.
Regarding the contention relating to discrimination and arbitrariness, it is brought to my notice by the Railways that the concept namely any
structure along the track side must have a minimum clearance as detailed under Chapter I-General of the Schedule of Dimensions, has been vogue
all these years and the same has been reiterated by the Government of India-Ministry of Railways, Research Design and Standards Organisation,
Lucknow (vide circular No. CBS/R/DPR dated 5-2-2002 addressed to all the Railways). It is also demonstrated before me that in the said
circular it has been clearly stipulated that the distance from the nearest track, shall not be less than H+3 metres, where H is the height of the
hoarding. In the counter affidavit, it is specifically stated that the afore-said guidelines and instructions issued by the Research Designs and
Standards Organisation, Lucknow uniformly applies to all the Zonal Railways. In such a circumstance, the contention of the petitioners that the
above said safety aspect had not been insisted in other Divisions or Zonal Railways cannot be acccepted. It is also brought to my notice that it is
only a policy decision that was taken permitting the hoarding owners to erect the hoardings by adopting H+3 formula and the same is being
implemented in all Zones. Hence, the contra argument of the learned counsel for the petitioners is liable to be rejected. Further, the safety to the
travelling public takes precedence over revenue earning by the Administration through hoardings, which is, only incidental.
In the light of the above discussion, I hold that,
(i) Grant of renewal is a fresh grant and the right to get renewal of a licence is not a vested right, but a privilege subject to fulfilment of certain
conditions, as prescribed by the Railway Administration.
(ii) Safety to travelling public and free movement of rail are the paramount duties than the revenue earning.
(iii) The Railway Administration is well within their powers and entitled to insist (a) stability certificate; and (b) compliance of H+3 formula from all
the hoarding owners. In other words, the height of the hoarding from the ground level + 3 metres should fall away from the centre line of the track.
The Railway Administration is free to remove/take action against the hoarding owners for non-compliance of the above conditions. In the light of
the above said conclusion, all the Writ Petitions fail and are accordingly dismissed. No costs. Consequently, connected W.P.M.Ps., and
W.V.M.Ps., are closed.