THE KERALA PREVENTION OF DEFACEMENT OF PROPERTY BILL, 2002

A Bill to provide for the prevention of defacement of Property or place open to public view and for matters connected therewith or incidental thereto.

Preamble. – WHEREAS, the defacement of heritage sites, structures, signages, compound walls, public places all over Kerala is destroying the natural beauty, cleanliness and environment of the State;

AND WHEREAS, defacement of signage often results in inconvenience to tourists and travellers;

NOW, THEREFORE, it is expedient to provide for the prevention of defacement of such property;

BE it enacted in the Fifty-third Year of the Republic of India as follows: -

1. Short title, extent and commencement. - (1) This Act may be called the Kerala Prevention of Defacement of Property Act, 2002

(2) It shall extend to the whole of the State of Kerala.

(3) It shall come into force at once.

2. Definitions.-. In this Act, unless the context otherwise requires, -

(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;

(b)“Collector” means the Collector of the District or Revenue Divisional Officer;

(c)“defacement” includes impairing or interfering with the appearance or beauty, damaging, disfiguring, spoiling or injuring in any way whatsoever and the word ‘deface’ shall be construed accordingly;

(d) “Government” means the Government of Kerala;

(e) ‘Local Self Government Institutions’ means, a Grama Panchayat constituted under the Kerala Panchayat Raj Act, 1994 (13 of 1994) or a Municipality constituted under the Kerala Municipality Act, 1994 (20 of 1994);

(f)“place open to public view” includes any private place or building, public offices, hut, monument, statue, water pipe line, structure, wall including compound wall, retaining wall, tree, fence post, pole or any other erection or contrivance visible to a person being in, or passing along, any public place;

(g) ”public place” means, any place including a road, street or way whether a thoroughfare or not and a landing place to which the public are granted access or have a right to resort or over which they have a right to pass;

(h) “writing” includes decoration, lettering, ornamentations, drawing caricature and other modes for representing or reproducing words or figures in a visible form.

3. Penalty for defacement of property. - (1) Whoever by himself or through any other person defaces any place open to public view by defacing or pasting pamphlets, posters, banners or writing or marking with inks, chalk, paint or any other material or method shall be punishable with a fine which shall not be less than rupees one thousand and not more than rupees five thousand:

Provided that nothing in this section shall apply to any advertisement which, -

(i)is exhibited with the written permission of the Local Self Government Institution having jurisdiction over such area in this behalf;

(ii) is exhibited within the premises of any building, if the advertisement relates to the trade, profession or business carried on in that building; or

(iii) 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

(iv) relates to the name of the land or building upon or over which the advertisement is exhibited, or to the name of the owner or occupier of such land or building;

(v) relates to the business of Central Government and is exhibited upon any wall or other property of Central Government.

(2) Where any offence committed under sub - section (1) is for the benefit of some other person or a company or other body corporate or an association of persons whether incorporated or not then such other person or any other officer or person concerned with the management thereof, as the case may be, shall unless he proves that the offence was committed without his knowledge or consent, be deemed to be guilty of such offence.

4. Punishment for attempt to commit offences. - Whoever attempts to commit any offence punishable under this Act or to cause such offence to be committed and in such attempt does any act towards the commission of the offence, shall be punishable with the punishment provided for the offence.

5. Punishment of abettors. - Any person who by supply of or solicitation for money, by providing or permitting, supply of materials, aids, abets or is accessory to the commission of any offence under this Act shall be punishable with the punishment provided for the offence.

6. Offence to be cognizable. - An offence punishable under this Act shall be cognizable and bailable.

7. Power to erase writing, etc. - Without prejudice to the provisions of section 3, it shall be competent for the Government, Collector or the Local Self Government Institutions concerned to take such steps as may be necessary for erasing any writing, freeing any defacement or removing any mark from any place open to public view and to realise the costs from the person responsible for such defacement as arrears of public revenue due on land.

8. Offence to be tried summarily. - Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Central Act 2 of 1974) all offences under this Act shall be tried in a summary way by any Magistrate of the first class specially empowered in this behalf by the High Court under the provisions of section is 262, 263, 264 and 265 of the said Code.

9. Powers of Local Self Government Institutions and Collector. – It shall be the duty of the Local Self Government Institution and the Collector to see that the provisions of this Act are strictly enforced within the area of their jurisdiction and in the exercise of its duties and performance of its powers under this Act, the Local Self Government Institution or the Collector, as the case may be, shall be guided by such general instructions, as may be, issued by the Government from time to time.

10. Protection of action taken in good faith. - No suit, prosecution or other legal proceedings shall lie against the Government or any local authority or any person for anything which is in good faith or in public interest done or intended to be done under this Act.

11. Act to override other laws. - The provisions of this Act shall have effect notwithstanding anything to the contrary contained in any other law for the time being in force.

STATEMENT OF OBJECTS AND REASONS

A common complaint often heard from the public and also from the tourists is about the defacement of heritage sites and signage all over Kerala. The defacement of heritage sites, structures, signage, compound walls, public places all over Kerala is destroying the natural beauty, cleanliness and environment of the State. From tourism point of view this creates a very bad impression about destination. Signage often covered with posters and publicity material results in inconvenience to tourists and travellers. Therefore, it is necessary to take stringent measures to put an end to the practice of defacing places open to public view by pasting pamphlets, posters, banners or writing or making with inks, chalk, point etc. It is proposed to empower the District Collector and the Local Self Government Institutions concerned to take appropriate stringent actions in this matter.

2. The bill seeks to achieve the above objects.

Financial Memorandum

Clause 7 of the Bill seeks to empower the Government, the Collector or the Local Self Government Institutions to take such steps as may be necessary for erasing any writing, freeing any defacement or removing any mark from any place open to public view. For erasing any defacement under the said clause some expenditure will have to be met from the consolidated fund of the State. However, the said section further empowers the Government or the Collector or the Local Self Government Institutions to realize the amount so spent from the person responsible for the defacement. Therefore the Bill, if enacted and brought into operation, would not involve any additional expenditure from the Consolidated Fund of the State. However the actual amount that may initially require for erasing each defacement by the Government or the Collector cannot be calculated at any degree of accuracy.

Memorandum Regarding delegated Legislation.

Clause 9 of the bill inter alia provides that it shall be the responsibility of the Collector and the Local Self Government Institution concerned to see that the provisions of the Act are strictly enforced within the area of their jurisdiction. However, the Collector or the Local Self Government Institutions while exercising their powers under the Act will be guided by such general instructions as may be issued by the Government from time to time. The general instructions that may be issued by the Government under the said clause are only of administrative in character. Therefore, delegation of power is only of administrative in character. Therefore, delegation of power is only of administrative in nature.