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TMI Blog2015 (1) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... gn. Accordingly, the Rules seems to be comprehensive in nature and inclusive of sky-signs hence suffer from violation of statutory mandate. Petition allowed - decided in favor of appellant. - Misc. Bench No. - 9629 of 2007 - - - Dated:- 8-1-2015 - Writ Petition No.5743 (M/B) of 1999; Writ Petition No.3736 (M/B) of 2002; Writ Petition No.1631, 2563, 1609, 1568, 1303, 1556, 315 (MB) of 2004; Writ Petition No. 567, 7386, 1708, 749, 6622 (M/B) of 2005; Writ Petition No.3363, 567 (MB) of 2006; Writ Petition No. 215, 7521, 3045, 214, 84 (MB) of 2007; Writ Petition No.4374 (M/B) of 2001; Writ Petition No.2015 (M/B) of 2009;Writ Petition No. 1865, 4028, 4455 (MB) of 2010; Writ Petition No.1587 (MB) of 2005; Writ Petition No.869 (MB) of 2010; Writ Petition No.1707 (M/B) of 2003; Writ Petition No.2258 (M/B) of 2010; Writ Petition No.3186 (M/B) of 2009; Writ Petition No.1047 (M/B) of 2010; Writ Petition No.4078 (M/B) of 2008; Writ Petition No.10317 (M/B) of 2008; Writ Petition No.6759 (MB) of 2009; Devi Prasad Singh And Arvind Kumar Tripathi (II), JJ. Counsel for Petitioner :- Vikas Singh,Dheeraj Naiar Counsel for Respondent :- C.S.C.,R.K. Singh,Shailendra Singh Chauhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain photographs have also been filed collectively as Annexure No.3 which show that sign boards have been placed outer walls of the shops over which the name of the shop as well as the name of beverages, snack food etc., have been indicated in bold letters. 5 It has been pleaded that beverages as well as snack food are sold by the petitioners companies to the distributors as well as retailers. It is the sole discretion of retailers to have or not have to any particular display of produce upon their retail outlet/shop. These retailers or distributors are neither owned nor controlled by the petitioners. The premises exclusively belong to the distributors/retailers. 6 The Rules have been notified by the Government in pursuance of power conferred by clause (3) of Article 348 of the Constitution of India on 3.3.2000. Under Rule 3, it has been provided that no person shall display, paste or exhibit, write or draw any advertisement without obtaining prior permission from Mukhya Nagar Adhikari. Application may be moved under Rule 4 in the prescribed format and under Rule 5, the application for permission referred to in rule-4, may be rejected on certain grounds. Under Rule 7, it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of his building as is visible from the road, street or any lane, he shall have to submit detailed information together with the application and to take permission under these rules. (4) Permission will be granted after the advertiser deposited amount of the tax calculated in accordance with the rates of taxes specified in the schedule appended to these rules and subject to such conditions as may be imposed in the interest of public safety and decency. 5. The application for permission referred to in rule-4 may be rejected in case:- (a) the application does not contain all the requisite details, the advertisement is considered to be indecent, obscene or injurious in appearance or it contains objectionable writing or obscene or nude sketches, pictures or any symbol of intoxication; (b) the advertisement is likely to create any apprehension of breach of public peace or tranquillity, or is against the public order and public unity by its appearance or may cause damage to life or property due to falling under storm or hurricane or due to disturbance in traffic or due to any other reason. (c) the site is unsuitable in the reasonable, opinion of the Mukhya Nagar Adhikari, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is less than 6 feet above the level of the ground. (2) on the turning or crossing of the road or street at a place within 200 feet from the turning or crossing nor within 100 feet of the traffic signal nor it shall be displayed in a way obstructing vehicular or pedestrian traffic. (3) on public building, Nagar Prachir, walls, like hospital, educational institution, Public Offices or National Movements. (4) on the walls of a private house by writing or painting on it in a colour different from that specified by the Municipal Commissioner. (5) in prohibited areas declared as such by Corporation or the State Government from time to time more particularly:- (i) around the historical and national monuments. (ii) around Vidhan Sabha, (iii) around Raj Bhawan, (iv) around High Court, (v) Mahatma Gandhi Marg (from Parivartan Chowk to Railway Crossing after Loreto Convent School and V.V.I.P. Guest House, (vi) In front of Hathi Park and Buddha Park, (vii) In front of Income Tax Office, Ashok Marg, (viii) royal Hotel Crossing and Co-operative Building Footpath, (ix) Islands and in front of statues and all other main Chaurahas, (x) around the General P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... local bodies and corporations, to discharge their statutory obligations in pursuance to decision taken by its Board or its elected representatives. 56- Though Section 540 of the Act empowers the State Government to make rules or model rules, but the power conferred on the State Government, would be subject to other statutory provisions with regard to imposition of tax, recovery and maintenance of infrastructure. For the purpose, the government may frame rules or model rules but without violating other statutory provisions contained in the Act itself. Power of the State Government is subject to other provisions contained in the Act itself. Provision contained in Section 540 of the Act cannot be read in isolation. While considering the power of State Government to frame rules, regulations or the bye-laws, the Court has to take into account Article 243 (Q), Section 2 containing definition clause as well as provision contained in Section 172 as well as other provisions contained in Chapter IX of the Act. 57- The power conferred on the Corporation under Section 172 of the Act contains the power to impose tax on trades, professions, transfer of property, tax on vacant land and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to fix the minimum premium amount for every site. The site of advertisement shall be decided by the allotment committee under the Chairmanship of Municipal Commissioner. Virtually, indirectly power to impose premium or tax has been conferred on the Municipal Commissioner which is against the scheme of the Act. It is for the executive body of the corporation to take decision to impose tax or premium and not the municipal commissioner under the Act. Thus, power conferred by the impugned rule on the Municipal Commissioner is in contravention of the Act. 61- A combined reading of Rule 26 with Schedule shows that by the impugned Rule, taxes have been imposed with regard to advertisement though under the Act, power to impose tax has been dealt with under Chapter IX from Section 172 to 205 of the Act. Statutory provisions contain specific provisions how the tax should be imposed. Under Section 199 of the Act, proposal should be prepared by the Corporation for imposition of tax through its executive committee. The executive committee of the Corporation shall pass resolution with regard to tax and thereafter it shall send to the state government. The State Government may reject, sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ject to power exercised by the corporation to take decision in tax matters. Of course, the Government may take decision by framing model bye-laws and issuing direction by publication in the official gazette directing the Corporation to impose certain taxes only then the decision of the State Government shall be binding and lawful. 66- Needless to say that in case direction issued by the state government is not sound and affects the right of the people or violative of constitutional provision or tax proposed by the Government is not lawful, then it may invite public resentment or people may approach for judicial review against such direction or decision taken by the state government. 67- Accordingly, the power conferred on the State Government under Section 540 of the Act is subject to Sections 172, 192, 193, 194, 195 and 196 and 199 of the Act. However, the government has right to frame model rules or issue direction under Section 206 of the Act to impose certain taxes by publication in official gazette. Thus, the impugned rules seem to have been framed in contravention of statutory provision contained in the Act. Hence, the judgment in Taj Advertising (supra) seems to not la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that where any tax was being lawfully levied in the area included in the City immediately before the commencement of the Constitution of India such tax may continue to be levied and applied for the purposes of this Act until provision to the contrary is made by Parliament. 11 Section 192 of the Act confers power of Nagar Nigam to impose tax with regard to items enumerated in clause (h) of sub-section (2) of Section 172 of the Act. For convenience, Section 192 of the Act is reproduced as under:- Section 192. Tax on advertisements.-- Where a Corporation imposes a tax mentioned in Clause (h) of Sub-section (2) of Section 172, every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained, or displayed to public view, a tax calculated at such rates and in such manner and subject to such exemptions as may be provided by the Act or rules made thereunder: Provided that no tax shall be levied under this section on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccupier of a premises is given trade-licence to carry on a business in a premises. 14 In identical cases, decided on 30.6.2009, in Writ Petition No.9039 of 2007 (LB-BMP) (Hutchison Essar South Ltd. Vs. Bruhat Bangalore Mahanagara Palike and others.) connected with other writ petitions, the Karnataka High Court reiterated aforesaid proposition and held as under:- 8. In order to better appreciate the contentions advanced by the learned counsel for the parties, it is necessary to extract the third proviso to Section 134 of the Act which runs thus: Provided also that no such tax shall be levied on any advertisement which is not a sky-sign and which- (a) is exhibited within the windows of any building; or (b) relates to the trade or business carried on within the [vacant land or building] upon or over which such advertisement is exhibited, or to any sale or letting of such [vacant land or building] or any effects therein or to any sale, entertainment or meeting to be held upon or in such [vacant land or building]; or (c) relates to the name of the [vacant land or building], upon or over which the advertisement is exhibited, or to the name of the owner or occupier of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in Funk and Wagnalls, New Standard Dictionary thus: a sign or an advertisement so placed as to be backed by the sky. The word against in Explanation 2 precisely conveys this meaning. 16 Punjab and Haryana Hhigh Court at Chandigarh in a case decided on 11.11.2011: Aradhana Drinks Beverages Pvt. Ltd. Vs. State of Punjab Ors., (CWP No.17226 of 2009), in identical situation held as under:- [17] The precise case of the petitioner is that since the Dealer Boards have been erected or displayed only on those outlets, shops or buildings where the trade or business pertaining to the products sold or marketed by it is also carried on, these boards relate to the 'trade' or 'business' carried on within such outlets, shops or buildings and are excepted from the Advertisement Tax under proviso (c) of Section 122(1) of the Act. The Municipal Authorities have apparently not undertaken any exercise to refute or admit the afore-stated fact based contention specifically raised by the petitioner in para 2 of the writ petition and are heavily banking upon the principle of pre- dominance to urge that the protection of the exemption clause is admissible only whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine feet above the front wall of a building at any part. 19 Section 2 (1), Section 2 (71) of the Act defines the 'advertisement' and 'sky sign'. For convenience, both are reproduced as under:- 2 (1) advertisement means any word, letter, model, sign, placed, board, notice, device, or representation whether illuminated or not, in the nature of and employed wholly or in part for the purpose of advertisement, announcement or direction and includes any hoarding or similar structures used or adapted to be used for the display of advertisement; 2 (71) sky-sign means any word, letter, model, sign, device or other representation, in the nature of an advertisement, announcement or direction, which is supported on or attached to any post, pole, standard, framework or other support wholly or in part upon, over or above any building or structure and which is wholly or in part visible against the sky from any point in any street or public place, and includes-- (a) every part of support, and (b) any balloon, parachute or similar device employed wholly or in part of the purposes of any advertisement or announcement, on, over or above any building, structure or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n clause given in sub-section (71) of Section 2 of the Act. The exception provided therein, should have been the part of the Rules which exempt the use of board, frame or alike fixtures over the wall of shop from sky-sign. 22 It is well settled law that while interpreting a statute, meaning should be assigned to each and every word, line by line, word by word and the statute as a whole. According to Maxwell, a construction which would leave without effect any part of the language of a statute will normally be rejected. Hon'ble Supreme Court by catena of judgment held that while interpreting any section of a statute, every word and provision should be looked into in context to which it is used and not in isolation vide 2002 (4) SCC 297 Grasim Industries Limited v. Collector of Customs; 2003 SCC (1) 410 Easland Combines v. CCE; 2006 (5) SCC 745 A. N. Roy v. Suresh Sham Singh and 2007 (10) SCC 528 Deewan Singh v. Rajendra Prasad Ardevi. 23 In view of the above, the respondents cannot exclude the proviso while interpreting Section 192 of the Act while framing Rules in question. The respondents while framing Rules, have not considered the proviso which provides that no tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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