A Single Bench of Justice Ashutosh Kumar of Patna High Court has held that the political parties can raise hoardings/ banners at private properties, as part of their Bihar election campaign, after obtaining written consent of the owner/ occupier of such property.
The Court held that permitting only individual candidates to raise hoardings and precluding political parties from such benefit will “emasculate” the intention of the legislature in enacting the Defacement of Property Act, 1987.
The observation was made in a writ petition filed by Century Businees Pvt. Ltd., a private company engaged by the Bhartiya Janta Party to put up 950 hoarding on private properties as part of Bihar election campaign .
The company had sought the Chief Electoral Officer’s permission for putting up the hoardings with the permission of the owners of the properties as mandated under the Defacement of Property Act, 1987.
The request was declined while stating that Section 3(3) of the 1987 Act specifies that the owner or the occupier of a private property can give written consent and permit only “person or persons” contesting an election with respect to bihar elections.
It was contended that the legislature had deliberately excluded political parties as a class from the privilege of putting up hoardings because:
“a candidate has a budgetary limit for campaigning and, therefore, he or she would be rather discreet in putting up hoardings or posters over private buildings as it would entail expenses. No such limit has been prescribed for any political party and if a political party is permitted, even after seeking permission from private property holders, to put up hoardings, the entire State would stand defaced and it would be very difficult to restore the same without spending huge public money.”
It was submitted that the statute has to be interpreted in its “literal sense” for bihar election unless it causes any mischief and if the language of an Act, as in the present case, is clear, then, it does not require any artificial rule of interpretation to be applied.
The Petitioner-company had argued with respect to bihar election that any “person or persons“, who contests elections, either does it independently or under the banner of any political party, when symbol of such political party is given to it. In that case, ousting a political party from the clause “person or persons” in Section 3(3) of the 1987 Act would not be justified.
It was also pointed out that in the State of Jharkhand also, there is similar local law with respect to defacement of property and the Chief Electoral Officer, Jharkhand permitted the political parties to put up the hoardings. Thus, not allowing the political party to put up the hoardings would actually defeat the very purpose of controlled campaigning during the Bihar election s.
The Courts held highlighting bihar election that the expression “person or persons” would include political parties, inter alia, for the following reasons:
- The purpose behind the enactment of the local law regarding defacement is to prevent defacement and to limit squandering of money in restoring the property; be it public money or private money and the Model Code of Conduct for the guidance of political parties takes care of the aforesaid spirit behind the enactment of the Act. It has clearly specified the manner and method in which such permission from the private property holders shall be obtained. Even in States, where there is no local law on the subject of defacement of property, the Model Code of Conduct insists for doing minimum damage or defacement of public / private properties.
- With the strict measures suggested in the Model Code of Conduct and guidance, it would be easier for the authorities to track the entity for recovering money or asking them to restore the defacement caused during elections. The hoardings by a political party, which would include a large group of persons including candidates contesting on the symbol of such political parties, would prevent piecemeal and sporadic hoardings and there would be lesser chances of defacement of public and private property beyond redemption.
On the State’s contention about rules of interpretation of a statute, the Bench clarified,
“The golden rule of construction is to be preferred first but subject to the caveat that if any mischief is caused while strictly interpreting the rules, there would be no harm in reading it down by infusing practically into the rule in question.“
“Unless, the phrase “person or persons” the rule is supplemented by or understood to mean political parties, the entire force and life of the intention of the legislature would stand emasculated.“
Defacement, under the Act, is defined as impairing or interfering with the appearance or beauty or damaging, disfiguring, spoiling or injuring in any other way whatsoever a property, which could be building, structure, wall, tree, fence, post or any other erection. Defacement could be by way of decoration, lettering, ornamentation etc produced by the stencil, which would come within the domain of ‘Writing’.
Section 3 of the Act in case of election and with respect to bihar election prescribes that any person guilty of defacement shall be punishable with imprisonment for term which may extended to six months or with fine, which may extend to one thousand rupees, or with both.
Further, the Election Commission , in exercise of its powers of superintendence under Article 324 of the Constitution of India, has come out with the Model Code of Conduct for the guidance of political parties and candidates.
Clause VI of part – 1 of Model Code of Conduct provides that no political party or candidate shall permit its followers to make use of individuals’ land, building, compound wall etc without his permission for erecting flagstaffs, suspending banners, pasting notices, writing slogans etc.
Read the judgment here: