Smt. Kasturibai Sukharam Khandelwal Trust Vs. Indore Development Authority & Ors-03/10/2019

In the ordinary course of business, there was no justification for the authority to consider the application of the 2nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited.

SUPREME COURT OF INDIA

Smt. Kasturibai Sukharam Khandelwal Trust Vs. Indore Development Authority & Ors.

Civil Appeal Nos. 5308 of 2010

Indore Development Authority Vs. Shri Khandelwal Trust & Ors.

[Civil Appeal Nos. 5309 of 2010]

Rastogi, J.

1. Both the appellants (respondents before the High Court) being dissatisfied with the impugned judgment dated 4th November, 2008 have preferred these appeals.

2. The facts in brief relevant for the purpose are that the appellant Smt. Kasturibai Sukharam Khandelwal Trust and the 2nd respondent Shri Khandelwal Trust (writ petitioner) are registered public trusts. The 2nd respondent made an application directly to the Indore Development Authority(hereinafter referred to as “Authority”) for allotment of land for public purpose and to carry out trust activities on 30th September, 1988. In sequel thereto, another application was addressed to the then Chief Minister on 29th December, 1988 for allotment of land for the purpose of construction of a community hall to be used for public purposes.

3. The authority thereafter issued an advertisement dated 7th September, 1989 inviting applications for allotment of land to registered institutions indicating necessary requirements to be furnished by the institutions desirous for allotment of land. In response to the advertisement, the appellant Trust submitted an application on 9th October, 1989. After the applications were processed, the authority took a decision to allot 50,000 sq. ft land in scheme no. 54/75C in favour of the appellant Trust vide communication dated 2nd July, 1990 and simultaneously, the authority also communicated the decision for allotment of 30,000 sq. ft. of land in Scheme No. 54/74C to the 2nd respondent vide communication dated 2nd July, 1990.

4. Immediately after it reveals to the authority of the allotment being made to both the trusts of the same community at the same place, the authority revisited its decision and under its Resolution no. 21 dated 11th February, 1991 decided that it may not be advisable to allot land to two trusts of Khandelwal community, cancelled the application of the 2nd respondent and confirmed the allotment in favour of the appellant Trust and that became the subject matter of challenge in a writ petition filed at the instance of the 2nd respondent under Article 226 of the Constitution of India.

5. The Single Judge of the High Court, after hearing the parties, dismissed the writ petition under its order dated 1st February, 2001 which came to be challenged in letters patent appeal. The Division Bench of the High Court of Madhya Pradesh, taking note of the rival claim of the parties and noticing the fact that, in the interregnum period, the plot had also been allotted to Life Insurance Corporation(respondent no. 4) which was nowhere the subject matter but still taking note of the material on record and giving quietus to the dispute, disposed of the writ petition under its order impugned dated 4th November, 2008 with a direction to the authority to reconsider the matter of allotment of land afresh after affording opportunity of hearing to the parties and assess the comparative assessment and merit of the appellant Trust and 2nd respondent and pass speaking order in accordance with law.

6. Mr. Ranjit Kumar, learned senior counsel for the appellant Trust submits that the allotment could be made in terms of the Regulations for Disposal, 1987(hereinafter being referred to as “Disposal Regulations 1987”) which has been framed in exercise of power under Section 58 read with Section 86 of the Madhya Pradesh Nagar Tatha Gram Nivesh Adhiniyam, 1973 and procedure for allotment has been provided under Chapter III and Regulation 3(A) clearly postulates that where the authority proposes to transfer any property except as provided under Regulation 3(B), 3(C) and 3(D), it may do so by (a) public auction; or (b) inviting tenders or (iii) inviting applications from eligible persons either on continuing registration basis or otherwise, as may be specified in terms of the advertisement.

7. The present appellant Trust submitted application pursuant to an advertisement inviting applications dated 7th September, 1989 and indisputably no application was submitted by the 2nd respondent, still the application was processed but, after noticing by the authority that the allotment of land to 2nd respondent being in contravention of Chapter III of Disposal Regulations, 1987, the mistake was immediately rectified by cancelling the letter of allotment in favour of the 2nd respondent and confirmed the allotment in favour of the appellant Trust under its Resolution No. 21 dated 11th February, 1991 and the decision of the Authority being in conformity with Chapter III of Disposal Regulations, 1987, interference in writ appeal was not justiciable and deserves to be interfered by this Court.

8. Learned counsel further submitted that the 2nd respondent does not appear to be interested in the instant proceedings to put forth his claim. At the same time, the present appellant had constructed a community hall which has been used for public purposes and also by the community for a sufficient long period and the Division Bench of the High Court was not justified in reopening and reverting back to square one leaving the authority to decide their respective claims at such belated stage and, therefore, impugned judgment deserves to be set aside.

9. Learned counsel for the appellant in the connected appeal filed by Indore Development Authority, while supporting the submissions, further submits that apart from the fact that 2nd respondent had not submitted any application for allotment pursuant to an advertisement dated 7th September, 1989 required under Disposal Regulations, 1987, the authority was of the view that it will not be advisable to provide adjoining plots to one community and after revisiting the factual matrix of the matter considered it appropriate to cancel the decision for allotment made in favour of the 2nd respondent and there being no error in the decision-making process held by the authority, the Division Bench of the High Court committed manifest error in directing to revisit the whole process of allotment and that needs interference by this Court.

10. Learned counsel further submits that so far as the allotment made in favour of 4th respondent(LIC) is concerned, it has nothing to do with the allotment made in reference to the trust which is impugned in the proceedings and calling upon the 4th respondent(LIC) to participate in the whole process was not justiciable.

11. Heard learned counsel for the appellants and no one has put an appearance on behalf of the contesting respondent despite service and with their assistance perused the material available on record.

12. Indisputably, the 2nd respondent had not submitted any application for allotment of land pursuant to an advertisement inviting applications for allotment of land dated 7th September, 1989, despite being published in the local newspaper. At the same time, application of the appellant Trust was found to be in order complying with the necessary requirements as indicated in the advertisement and after due scrutiny of the applications, plot admeasuring 50,000 sq. ft was allotted to the appellant in Scheme No. 75C for community hall by letter of allotment dated 2nd July, 1990.

13. After noticing that the 2nd respondent had submitted application for allotment of land for community hall on 30th September, 1988 directly to the Indore Development Authority and to the then Chief Minister of Madhya Pradesh dated 29th December, 1988 which was erroneously processed in the office of the authority and letter of allotment of land was issued admeasuring 30,000 sq. ft. in Scheme No. 74C dated 2nd July, 1990 and later noticing the fact that two separate allotments have been made in the same scheme to two separate trusts of the same community and that being an apparent error, the decision was taken by the authority vide its Resolution No. 21 dated 11th February, 1991 to confirm the allotment of 50,000 sq. ft land in favour of the present appellant at the rate of Rs. 15/per sq. ft and application of the 2nd respondent seeking allotment of land was rejected.

14. It was not the case of either party that the appellant Trust either failed to fulfil necessary conditions as referred to under the advertisement dated 7th September, 1989 pursuant to which the applications were invited or failed to fulfil necessary requisite conditions for allotment under any statutory enactment or Disposal Regulations, 1987 or there was any error being committed by the authority in its decision making process while the allotment of land was made in favour of the appellant Trust. To the contrary, the emphasis of the 2nd respondent while approaching to the High Court in a writ petition filed under Article 226 of the Constitution of India was that vide Resolution No. 21 dated 11th February, 1991, the authority has cancelled their allotment of land without affording opportunity of hearing and has failed to comply with the principles of natural justice and that appears to be the reason prevailed upon to the Division Bench of the High Court directing the Indore Development Authority to revisit the matter of allotment of land and take a decision in accordance with law.

15. In the instant facts and circumstances, the facts remain indisputed that the 2nd respondent has not submitted any application for allotment of land pursuant to an advertisement dated 7th September, 1989. In the ordinary course of business, there was no justification for the authority to consider the application of the 2nd respondent which was not in due compliance and in terms of the advertisement in reference to which the applications were invited. That appears to be an apparent error which was committed and indeed such application was not open to scrutiny and for allotment of land as desired by 2nd respondent and taking note of the peculiar fact situation, calling upon the 2nd respondent and affording an opportunity of hearing and for comparative assessment of claim, will remain an empty formality and no purpose was to be served.

16. In addition to it, the 2nd respondent (writ petitioner) despite service, has chosen not to appear and participate in the proceedings before this Court, it appears that he is not interested to pursue and to put its claim for alleged allotment. That apart, the allotment made to the LIC, in any manner, have no nexus to the inter se dispute between the two trusts with regard to allotment of land and thus, there was no justification for the Division Bench at least to call upon respondent no. 4 LIC to be a part of the proceedings which the Indore Development Authority was to undertake in compliance of the impugned judgment in the instant proceedings.

17. After going through the material on record, we are of the considered view that directing the Indore Development Authority to revisit the matter afresh at this stage when the lease deed of the plot has been executed and the appellant has raised construction and is running a community hall for the benefit of the public at large and at the same time, the 2nd respondent has shown complete disinterest in the proceedings, no purpose otherwise will be served if the parties are remitted to the authorities to examine their respective claims in compliance of the impugned judgment of the Division Bench.

18. Consequently, both the appeals succeed and are accordingly allowed. The impugned judgment of the Division Bench of the High Court dated 4th November, 2008 is hereby set aside.

No costs.

19. Pending application(s), if any, stand disposed of.

J. (N.V. RAMANA)

J. (MOHAN M. SHANTANAGOUDAR)

J. (AJAY RASTOGI)


NEW DELHI

OCTOBER 03, 2019

Network Advertising Initiative (NAI)

Network Advertising Initiative is the leading self-regulatory association comprised exclusively of third-party digital advertising companies.

Advertisement Law

Digital Interest-Based Advertisement Law

The NAI Code of Conduct is a set of self-regulatory principles that require NAI member companies to provide notice and choice with respect to Interest-Based Advertising (IBA), Cross-App Advertising (CAA), and Retargeting (collectively, Personalized Advertising) as well as Ad Delivery and Reporting (ADR) activities. The Code, initially published in 2000 to cover web-based data collection and use, was significantly revised in 2008 and 2013 and was further updated in 2015. The Mobile Application Code, addressing data collection and use in the mobile application space, was first published in 2013, and was updated in 2015. The 2018 Code merges the 2015 Update to the NAI Code of Conduct and the 2015 Update to the Mobile Application Code into a single document, and also includes references to all NAI Guidance documents current at the time of publication, including Cross-Device Guidance. Additionally, the 2018 Code revises some prior terminology, but it is not intended to introduce any material changes or create any new obligations for NAI members. NAI staff began enforcing the 2018 Code on January 1, 2018.

Enforcement of the NAI Code:

The NAI Code is a self-regulatory code. Only the NAI staff is authorized to interpret the requirements of the NAI Code and to enforce the NAI Code. Where NAI staff determines that there is an instance of non-compliance with the Code by a member, and a member refuses to implement the recommended steps to bring its practices into compliance, the NAI enforcement procedures allow NAI to refer the matter to the Federal Trade Commission (FTC). In making such a referral, NAI does not ask the FTC to interpret its Code, but simply to address the member’s failure to comply with NAI’s interpretation and application of the NAI Code.[Source: networkadvertising]

READ: The Code

NIA CODE OF CONDUCT 2018

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GUIDELINES ON CONTENT REGULATION OF GOVERNMENT ADVERTISING [India]

(1) These Guidelines shall be called the Government Advertisement (Content Regulation) Guidelines 2014.

(2) They shall come into force with effect from……

2. APPLICATION:

(1) These Guidelines shall apply to all Government advertisements other than Classified Advertisements.

(2) These Guidelines shall apply to the content of all Government Advertising till a suitable legislation is enacted by the Government to prevent the misuse of public funds on advertisements to gain political mileage as distinct from legitimate Government messaging.

(3) These Guidelines shall apply to all-

(a) institutions of Government;

(b) public sector undertakings;

(c) local bodies and other autonomous bodies/organizations established under a Statute.

3. DEFINITIONS:

In these Guidelines unless the context otherwise requires:

(a) “Classified Advertisements” include public notices, tenders, recruitment notices, statutory notifications.

(b) “DAVP Guidelines” means the existing guidelines of the Directorate of Advertising and Visual Publicity of the Ministry of Information and Broadcasting dealing with the eligibility and empanelment procedures and rates of payment and such other matters;

(c) “Government” means Central Government, State Governments/Union Territory Administrations and also includes local bodies, public sector undertakings and other autonomous bodies/organisations established under a Statute.

(d) “Government advertising” means any message, conveyed and paid for by the government for placement in media such as newspapers, television, radio, internet, cinema and such other, media but does not include classified advertisements; and includes both copy (written text/audio) and creatives (visuals/video/multi media) put out in print, electronic, outdoor or digital media.

OBJECTS:

The objects of these Guidelines are:

(a) to prevent arbitrary use of public funds for advertising by public authorities to project particular personalities, parties or governments without any attendant public interest.

(b) neither to belittle the need nor to deny the authority of the Union and State Governments and its agencies to disseminate information necessary for public to know on the policies and programmes of Government but only to exclude the possibility of any misuse of public funds on advertisement campaigns in order to gain political mileage by the political establishment;

(c) to address the gap in the existing DAVP Guidelines which only deal with the eligibility and empanelment of newspapers/journals or other media, their rates of payment, and such like matters and not on how to regulate the content of Government advertisements;

(d) to ensure that “all government activities satisfy the test of reasonableness and public interest, particularly while dealing with public funds and property”;

(e) to ensure that government messaging is well co-ordinate, effectively managed in the best democratic traditions and is responsive to the diverse information needs of the public.

5. GOVERNMENT ADVERTISEMENT TO INFORM CITIZENS

Subject to these Guidelines Government may place advertisements or purchase advertising space or time in any medium to inform citizens about their rights and responsibilities, about government policies, programmes, services or initiatives, or about dangers or risks to public health, safety or the environment.

6. THE FIVE PRINCIPLES OF CONTENT REGULATION:

While placing advertisements or purchasing advertising space in any media, the Government shall be guided by the following principles, namely:

(1) Advertising Campaigns to be related to Government responsibilities:

While it is the duty of the Government to provide the public with timely, accurate, clear, objective and complete information about its policies, programmes, services and initiatives since the public has a right to such information, the content of government advertisements should be relevant to the governments’ constitutional and legal obligations as well as the citizens’ rights and entitlements.

(2) Advertisement materials should be presented in an objective, fair and accessible manner and be designed to meet the objectives of the campaign:

(i) The material shall be presented in a fair and objective manner and shall be capable of fulfilling the intended objectives;

(ii) Government shall exercise due caution while deciding the content, layout, size and design of the message including the target area and the creative requirement of the intended communication in order to ensure that the maximum reach and impact are achieved in the most cost effective manner;

(iii) Content of advertisement must enable the recipients of the information to distinguish between facts and analysis and where information is presented as a fact, it should be accurate and verifiable;

(iv) Pre-existing policies, products, services and initiatives should not be presented as new unless there has been a substantial change or modification of such policies, products or services;

(v) Content of advertisement should provide information in a manner that accommodates special needs of disadvantaged individuals or groups identified as being within the target audience;

(vi) Multiple formats may be used to ensure equal access;

(vii) Every effort shall be made to pre-test the material in case of large scale campaign with target audiences.

(3) Advertisement materials should be objective and not directed at promoting political interests of ruling party:

(i) Display material must be presented in objective language and be free of political argument or partisan standpoint:

(ii) Government advertising shall maintain political neutrality and avoid glorification of political personalities and projecting a positive impression of the party in power or a negative impression of parties critical of the government.

(iii) Advertisement materials must not-

(a) Mention the party in government by name;

(b) directly attack the views or actions of others in opposition;

(c) include party political symbol or logo or flag;

(d) aim to influence public support for a political party, candidate for election; or

(e) refer to link to the websites of political parties or politicians.

(iv) Government advertisement materials should avoid photographs of political leaders and if it is felt essential for effective Government messaging, only the photographs of the President/Prime Minster or Governor/Chief Minister should be used;

(v) Government advertisements shall not be used at patronizing media houses or aimed at receiving favourable reporting for the party or person in power

(4) Advertisement Campaigns be justified and undertaken in an efficient and cost-effective manner:

(a) Since it is the responsibility of government to safeguard the trust and confidence in the integrity and impartiality of public services and hence it should be the policy of governments to use public funds in such a manner as to obtain maximum value for taxpayers’ money;

(b) Advertisement Campaigns must be justified and undertaken in an efficient and cost-effective manner;

(c) The Government shall-

(i) decide and announce beforehand, a list of personalities on whose birth or death anniversaries, advertisements could be released every year and specify which Ministry/Department could release the same;

(ii) avoid the issue of multiple advertisements by different departments and PSUs of the same Government in Commemorative Advertisements and shall issue a single advertisement only;

(d) Though advertising by governments should remain regulated all the time, it is particularly important to scrupulously follow these principles before and during the elections. As far as possible, during the period prior to elections, only those advertisements required by law (such as public health and safety advisories or job and contract advertisements) alone be released by governments;

(e) Advertisement campaigns should only be need based; and

(f) In case of large volume advertisement campaigns, post-campaign impact assessment is necessary to be included in the planning process itself and shall identify the indicators to measure success when the campaign has ended.

(5) Government advertising must comply with legal requirements and financial Regulations and procedures:

Governments shall ensure that all Advertisements comply with:

(i) relevant laws regarding privacy, intellectual property rights, election laws and consumer protection laws apart from laws in respect of broadcasting and media; and

(ii) copyright laws and ownership rights associated with works subject to copyright are fully respected.

COMPLIANCE AND ENFORCEMENT:

(1) The Government shall appoint an Ombudsman who shall be an eminent expert independent of the Government to receive complaints of violations of Guidelines and to recommend action in accordance with the Guidelines.

(2) Heads of government departments and agencies shall be responsible for ensuring compliance with these Guidelines and shall follow a procedure of certification of compliance before advertisements are released to the media.

(3) As part of the performance audit of the Ministry/Department/Agency-

(a) there shall be separate audit of the compliance of Advertisement Guidelines by the Ministry/Department/Agency concerned; and

(b) The annual report of such ministry/department/agency shall publish the findings of such audit and the money spent on advertising.

(4) The regulatory bodies of print and electronic media will be within their powers to impose sanctions against such media groups acting against these Guidelines in seeking or obtaining government advertisements.

8. GENERAL:

(1) These Guidelines shall be in addition to and not in derogation of the existing Guidelines which are in place under the existing Advertisement Policy of Government.

(2) These Guidelines are equally applicable to State Governments and its agencies. The State Governments shall undertake amendments to whatever policies they have in this regard and observe the Guidelines strictly in letter and spirit.

(3) The Ombudsman may recommend suitable changes to the Guidelines to deal with new circumstances and situations.

(4) The Government shall take necessary steps to initiate necessary legislation on the subject, given its importance for democracy, human rights and good governance.