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TMI Blog2016 (9) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the parties, have been heard together and are being decided by this common judgment. 3. Demand of advertisement tax in accordance with Agra Nagar Nigam (Samachar Patro Me Prakashit Vigyapano Par Kar Ka Nirdharan Karna Aur Use Vasool Karna) Niyamawali, 2005 (hereinafter referred to as the "Rules, 2005") published in U.P. Gazette dated 10.09.2005 and came into force on 01.04.2005 has been challenged on the ground that no such rules were in existence in the year of demand, i.e., 2010-11 and, therefore, demand of advertisement tax under Rules, 2005 is wholly without jurisdiction and illegal. 4. All the petitioners are Companies engaged in providing telecommunication service. They are Licensed Service Providers in State of U.P. by virtue of licence granted by Government of India, Ministry of Communications and IT, Department of Telecommunication under the provisions of Indian Telegraph Act, 1885 (hereinafter referred to as the "Act, 1885"). They have been authorized to set up and operate "Unified Access Services" (hereinafter referred to as the "UAS") in the licensed service area. 5. Nagar Nigam, Agra (hereinafter referred to as the "NNA") in purported exercise of powers under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, petitioners are liable to pay advertisement tax accordingly. 10. The only question which has been argued before us is that, Rules, 2005 after having been superseded and repealed by Rules, 2009 would not revive after Rules, 2009 are declared ultra vires and, therefore, any demand of advertisement tax for the period of 2010-11 and subsequent thereto would be illegal and without jurisdiction. 11. The stand of respondents in counter affidavit is very clear that after Rules, 2009 have been declared ultra vires, superseded Rules, 2005 would automatically revive. Stand taken by NNA in para 19 of counter affidavit filed in leading writ petition i.e. Writ Petition No. 622 of 2015 is reproduced as under: "19. That the averments made in paragraph no. 24 of the writ petition are not admitted. In reply it is submitted that upon the super session of the Rules of 2005, by the Rules of 2009 and upon adjudication of the rules of 2009 as being utra vires, the Rules of 2005 stood automatically revived and thus there is no infirmity in the impugned proceedings." (emphasis added) 12. Basic facts are not disputed. Earlier, rules framed were applicable only to NNA for levy of advertisement tax. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch disagreeing with the view taken in Taj Advertising (supra), formulated following questions and referred matter to Larger Bench: "(1) Whether the State Government had legislative competence to frame the Rules, 2009? (2)Whether the State Government in any case could have framed 'Rules' in general for all the municipal corporations, that too without taking recourse to Section 206 of the Act? (3)Whether delegation of power could be made under the Rules framed by the State Government to the Central Government? (4)Whether the licence for putting hoardings/advertisements on public properties, owned by private owners, can be given by public auction ? (5)Whether the impugned rules are ultra vires to the provisions of Articles 14, 19(1) (a) and 19(1)(g) of the Constitution of India? (6)Whether the Rules, 2009 are invalid, they having been framed without following the provisions of Sections 199 to 203 of the Act? (7)Whether the provisions of the Rules, 2009, such as- requiring the owner of the building, where the advertisement is to be set up, to give an undertaking that in the event of default by the advertising company/firm to pay the tax, the owner of the building ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ground that same are inconsistent with the provisions of Statute under which they have been framed or that mandatory procedure prescribed in statute for making delegated legislation has not been followed. 19. Effect of declaring any legislation as ultra vires or bad for any other reason is also different and depends upon various factors. An amendment to constitutional provision if declares ultra vires as it alters any element of basic feature of Constitution, it is considered to be a patent want jurisdiction on the part of Parliament which would have no effect on the law earlier to such legislation and, therefore, subsequent legislation if struck down would result in revival of earlier provision as if the earlier provision was never altered or repealed or substituted etc. A Constitution Bench recently has expressed this view in Supreme Court Advocates-on-Record Association and another Vs. Union of India, 2016(5) SCC 1. In the majority judgment rendered by Hon'ble Jagdish Singh Khehar, J. (for Himself and on behalf of Justice Madan B. Lokur, Justice Kurian Joseph and Justice Adarsh Kumar Goel), Court considered this aspect in paras 408 to 415 holding, when amended provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that U.P. State Transport Act, 1951 when enacted was unconstitutional, therefore, it was "still-born". It could not have been vitalized by subsequent amendment of Constitution removing constitutional objection and must be re-enacted. Hon'ble Mukherjea, J. speaking for Court, referred to Prof. Cooley in his work on "Constitutional Limitations" (Vol. I page 384) and said: "a statute void for unconstitutionality is dead and cannot be vitalised by a subsequent amendment of the Constitution removing the constitutional objection but must be re-enacted". 22. Court not only quoted aforesaid passage from Prof. Cooley but also said that this is a sound law and, therefore, gave it a legal recognition binding upon all in this country. 23. This view was reiterated in Deep Chand Vs. The State of U.P. & Ors. AIR 1958 SC 648 where Court said that a plain reading of Article 13(2) indicates, without any reasonable doubt, that prohibition goes to the root of the matter and limits State's power to make law; the law made inspite of prohibition is a "still-born" law. 24. Again another Constitution bench in Mahendra Lal Jaini Vs. State of U.P. AIR 1963 SC 1019 reiterated the above view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the new rule is held to be invalid." 28. Again a similar issued came up for consideration before another Constitution Bench in B.N. Tiwari Vs. Union of India and others AIR 1965 SC 1430. Therein Ministry of Home Affairs made a provision vide resolution dated 13.09.1950 providing reservation for Scheduled Caste and Schedule Tribe at 12.5 percent and 5 percent respectively. There was no provision for carry forward. It was added by a supplementary instruction issued in 1952 providing that if suitable reserved category candidates are not available in one recruitment the unfilled vacancies shall be carried forward in next recruitment but still some vacancies remained unfilled they would be treated unreserved. This carry forward rule was amended by Government in 1955 to further carry forward unfilled vacancies without any provision for lapse, i.e., for treating vacancies unreserved. Result of substitution of provision by 1955 Rule was that paras 5(3) and 5(4) of 1952 Rule cease to exist. This rule of carry forward made in 1955 was challenged in T. Devadasan vs The Union Of India and another, AIR 1964 SC 179 on the ground that it is unconstitutional. The Court struck down carry forwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r view, is covered by the answer given by Supreme Court to first question in B.N. Tiwari (supra). 32. Again a similar question arose in Indian Express Newspaper (Bom) Pvt. Ltd. and others vs. Union of India and others, 1986(159) ITC 856. Government of India had issued a notification dated 15.07.1977 under which total exemption was granted. It was substituted by notification dated 01.03.1981. Subsequent notification dated 01.03.1981 was challenged and struck down. The question arose, whether after striking down notification dated 01.03.1981, earlier notification would revive. Court held that on striking down of subsequent notification repealed notification would not revive. 33. The judgments in Firm A. T. B. Mehtab Majid (supra) and B.N. Tiwari (supra) came up for consideration before a three Judge Bench in West Uttar Pradesh Sugar Mills Association and others Vs. State of U.P. and others, 2002(2) SCC 645. Therein Rule 49 of U.P. Sugarcane (Regulation of Supply and Purchase) Rules, 1954 was substituted by U.P. Sugarcane (Regulation of Supply and Purchase) (Amendment) Rules, 1992. Rule 1(2) of notification dated 24.04.1992 which caused said amendment clearly provides that amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has ceased to exist, would remain unaltered. Court however observed that said position will not apply in the matter considered by Constitution Bench in Supreme Court Advocates-on-Record Association (supra) for the reason that impugned Constitutional amendment was promulgated independently of original provisions of Constitution. 35. In para 412.7 of judgment, Court referred to its decision in Indian Express Newspaper (Bom) Pvt. Ltd. (supra) and said that legal effect of an earlier law, later law enacted in its place was declared invalid would not depend merely upon the use of words like "substitution" or "supersession". It would depend on totality of circumstances and context upon which provision was couched. Court also referred to the judgment in Bhagat Ram Sharma vs. Union of India, 1988 (Suppl.) SCC 30 to observe that an enactment purported to be an amendment has the same qualitative effect as the repeal of existing statutory provision and said that there is no quarrel on the said proposition. It also said that it is not considering the question of effect of an amendment or a repeal but was faced with the case dealing with the effect of striking down of Constitutional amendment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act." 40. Simultaneously in para 82 of judgment, Court further said: "82. ..... State Government has got power under Section 205 of the Act to abolish or modify the tax imposed by the Corporation. It does not mean that the State Government lacks power with regard to tax matter. Power conferred on the State Government is general power which may be exercised without affecting the statutory power provided to Corporation to impose and regulate tax within its jurisdiction. The government may, by notification, under Section 206 of the Act by general or special order published in official gazette, required corporations to impose any tax mentioned in Sub-section (2) of Section 172 of the Act, not already imposed at a specified rate. The Government may also increase, modify or vary the rate of tax in case the Corporation fails to carry out the order." 41. In para 83, Court said: "83- The Government may pass suitable order imposing, increasing, modifying, or varying the tax thereupon and in such event the order of the State Government shall operate as if it had been a resolution duly passed by the Corporation." 42. Thus the power of State Government to abolish or modify a tax impo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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