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TMI Blog2020 (10) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the rate by 10% every year after initial embargo of 5 years. Thus, the petitioners can be said to have waived the right to challenge the power to levy of fees for the license for outdoor advertising hoardings in private properties. When an Article of Constitution is an enabling provision, it does not mean that the State is obligated to provide for such a statute and on that ground existing laws could be stuck down only on that premise - Section 386(2) of the GPMC Act is in operation since 1949 and the challenge thereto being ultra vires to the Articles of the Constitution would result in detriment to the public interest since the amount of license fee being collected by the Municipal Corporation along with the other amount collected by way of tax or otherwise are always being utilized for the benefit of people at large. The Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st-2 cannot be said to have any effect on the power to levy fees as provided by Section 386(2) of the GPMC Act - the provisions which are inconsistent with any of the provision of part-IX of the Constitution of India including Article 243X would be required to be amended but the provision contained in Section 386(2) of the GPMC Act cannot be said to be inconsistent with any of the provision of part-IX of Constitution of India and therefore, Article 243ZF would not come into play in the facts of the case. The submissions of the petitioner that provision of Sub-section-2 of Section 386 suffers from excessive delegation and provided for unguided and uncanalised power to the Commissioner as there is no procedure for limits for imposition of fees in absence of any guideline is concerned, it is settled position of law that the guidelines are required to be prescribed by legislature in case where there is levy of tax and not in case where there is imposition of fees. If the State Government is of the opinion that execution of any resolution or order of the Corporation for any of other Municipal Authority or officer subordinate thereto for doing of any act, which is about to be done or has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4585 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4564 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4564 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4579 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4579 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4554 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4554 of 2019 R/SPECIAL CIVIL APPLICATION NO. 6206 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6205 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6352 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6360 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6358 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6346 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6350 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 6350 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6349 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ATION NO. 10088 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10723 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10724 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10730 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10131 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10732 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10733 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10737 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10739 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10745 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10747 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10781 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10848 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10974 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10977 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12077 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12154 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12155 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12156 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12158 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12159 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12293 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12353 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9438 of 2020 With ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unicipal Corporation has a checkered history:- (i) Before 1992 the license fee on the advertisement hoardings in private properties was charged at the rate of around ₹ 100 per sq. meter per year. (ii) From 1992 till 1997, the license fee rate was revised to ₹ 200 per sq. meter per year. (iii) On 26th February 1997, the Standing Committee of the AMC passed a resolution increasing the license fee to ₹ 350/- per sq. meter per year irrespective of the location of the advertisement hoarding in private property. (iv) The General Board of the AMC passed a resolution on 29th March 1997 approving the Resolution of the Standing Committee dated 26th February 1997. (v) The AMC passed a Resolution no.345 dated 29th June 2000 in which it was decided that there would be no separate property taxes levied and the license fees would be inclusive of all kinds of Municipal Taxes charged by the AMC. (vi) From 1st April 2004, the license fee was increased on adhoc basis to ₹ 455/- per sq. meter per year. (vii) The Standing Committee of the AMC passed a resolution dated 4th December 2004, whereby it was decided to levy the registration charge of ₹ 1.5 Lakh for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the learned Single Judge in SCA no.12603 of 2005. (xiii) On 15th May 2012, during the pendency of the LPA, the petitioner association addressed a letter to the AMC and intimated that without prejudice, the association was agreeable with the rates suggested by the AMC in the meetings held on 28th July 2011 and 22nd September 2011 for enhancement of 10% after the next five years and as such increased license fee would remain static for five years and thereafter it would be enhanced by 10% every year. (xiv) In light of the above communication of the association, as well as, the consequent consensus arrived at between the parties, the Standing Committee of AMC passed a Resolution no.431 on 7th June 2012 proposing to revise the license fees as per the schedule of fees prescribing different rates as per the different areas. For example, license fee for East zone and West zone was fixed at the rate of ₹ 500/- per sq. meter per year, whereas in Central Zone, it was fixed at the rate of ₹ 715/- per sq. meter per year. (xv) The General Board of the AMC by Resolution no.665 dated 27th June 2012 approved the aforesaid Resolution no.431 dated 7th June 2012 passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.1075 dated 24th December 2018 confirmed the sanction granted by the Standing Committee for the enhanced rate of the license fees for the advertisement hoardings in privately owned properties. (xxiii) The Outdoor Advertisement Owners' Association made a representation on 9th January 2019 raising objections. (xxiv) Being aggrieved by the increase in the license fees, the petitioners along with others approached this Court by way of filing this batch of petitions. The petitioner of SCA no.4583 of 2019, which is treated as the lead matter, has made the following prayers. "(A) declare that after the introduction of GST with effect from 01.07.2017 in light of the 101st Amendment of the Constitution, the Respondents cannot collect any tax on the hoardings of the Petitioner in the private properties in Ahmedabad City and consequently any fees for the license for the hoardings in the private properties in Ahmedabad city. (AA)declare that Section 386(2) of the GPMC Act is ultra vires the Constitution of India particularly Articles 14 and 243X of the Constitution of India. (AA1) Command the respondent no.1 to refund an amount of ₹ 4,58,27,635.- together with interest at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitions, the petitioners have challenged resolution No.928 dated 28.11.2018 passed by the Standing Committee of the respondent Corporation approving the revised rates of license fees. The petitioners also seek a declaration that after the introduction of GST with effect from 1.7.2017 in the light of the 101st amendment of the Constitution, the respondents cannot collect any tax on hoardings of the petitioners in the private properties in Ahmedabad city and consequently any fees for the license for the advertisements on hoardings in the private properties in Ahmedabad city. The petitioners also seeks a declaration that section 386(2) of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the GPMC Act") is ultra vires the Constitution and more particularly, Articles 14 and 243X thereof. 3. Mr. Mihir Joshi and Mr. Mihir Thakore, Senior Advocates, learned counsel for the petitioners invited the attention of the court to the judgment and order dated 2.2.2006 passed by a learned Single Judge in Special Civil Application No.12603 of 2005 and allied matters wherein the court had taken the view that the license fee is regulatory in character and, therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a State may, by law authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified in the law. It was submitted that in the present case, subsection (2) of section 386 of the GPMC Act does not specify any limits and, therefore, the same is ultra vires the provisions of Article 243X of the Constitution. 7. Reference was made to Article 243ZF of the Constitution of India which provides that notwithstanding anything in that Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of that Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier, to submit that in this case the period of one year has elapsed since a long time and hence, the protection under Article 243ZF of the Constitution is no longer available insofar as section 386(2) of the GPMC Act is concerned. It was sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law." 243ZF. Continuance of existing laws and Municipalities. Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 386(2) of the GPMC Act being ultra vires to Article 14 of the Constitution of India. (i) It was submitted that the Section 386(2) of the GPMC Act provides for charging the license fees at such rates as shall from time to time be fixed by the Commissioner with the sanction of the Corporation and the same provides unguided and uncanalised legislative powers to the Commissioner and therefore, it suffers from excessive delegation and is violative of Article 14 of the Constitution of India. (ii) In support of the above submission, reliance was placed on the decision of the Apex Court in case of New Manek Chowk Spinning & Waiving Mills Co. Ltd. Vs. Municipal Corporation of the City of Ahmedabad and others, reported in AIR (1967) SC 1801 and more particularly Para no.27 thereof which reads as under :- "27. It therefore appears to us that Rule 7(2) of the Rules framed under the Bombay Act of 1949 was beyond the legislative competence of the State. The rule also suffers from another defect, namely, that it does not lay down any principle on which machinery is to be specified by public notice by the Commissioner to be deemed to form part of such building for the purpose of fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned judgments of the High Court are set aside. The impugned assessment orders are set aside and remitted to the assessing authority under the DMC Act for passing orders afresh in accordance with law and the observations made in the judgment." (iv) Relying on the above decisions, it was submitted that the provisions struck down in both the judgments were similar to Section 386(2) of the GPMC Act inasmuch as there is no legislative policy discernible from this or any other provisions for the objects and purposes of the GPMC Act. (v) It was submitted that there is no provision under the GPMC Act with regard to the functions to be performed by the Corporation in relation to advertisement and there are no provisions in the GPMC Act relating to the budget and accounts which mandate a levy commensurate to the amount and its collection by way of license fees. It was therefore, submitted that the GPMC Act gives unguided power to the Commissioner to determine the fees and the only requirement is the sanction of the Corporation, which is held as not enough in above referred two judgments. (vi) It was also submitted that the GPMC Act is of the year 1949 and therefore, after the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been authorised by the Constitution only to authorise the Municipalities for the purpose of levy, collection and appropriation of certain taxes but there is no other power bestowed on the Legislature. The Legislation has to be in accordance with concept of institution of self-governance but the Legislature by ordaining the procedure has transgressed its limits. 21. On a bare reading of the aforesaid Article, it is perceptible that Article 243-W clearly stipulates that subject to provisions of the Constitution, the Legislature of a State may, by law, endow the Municipalities with such powers. Thus the source of power rests within the State Legislature. True it is, there is some concept of selfgovernance but the Constitution has not empowered the Municipalities to impose taxes on its own as if it has the power to impose taxes by itself as that would have defeated and destroyed many a provision of the Constitution. Article 243-X also postulates that the Legislature of a State may, by law, authorise a Municipality to collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits. The aforesaid provision is plain as day to indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 243ZF of the Constitution of India which provides for continuance of existing laws and Municipalities in force in a State immediately before the commencement of the Constitution (seventy-fourth Amendment) Act, 1992 which is inconsistent until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. (ix) It was therefore, submitted that there cannot be any comparison between levy of tax and fees and the Corporation cannot levy fees without any powers of legislature. It was submitted that the AMC is recovering tax in the garb of fees which is without authority of law and violative of Article 265 of the Constitution of India. It was submitted that fee is compulsory exaction of money, which can be taken on two grounds, if it is authorised by the statute provided such statute is valid and between two parameters that such fees should not be excessive and such fees should be compensatory fees having quid pro quo to the service rendered for the purpose of levy of such fees and whether any such services are rendered for collection of such fees. It was therefore, submitted that the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, reported in AIR (1954) SC 282, wherein the Apex Court has held as under:- "45.A neat definition of what "tax" means has been given by Latham C. J. of the High Court of Australia,in Matthews v. Chicory Marketing Board. "A tax", according to the learned Chief Justice, "is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered". This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected revenues of the State. As the object of a tax is not to confer any special benefit u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion on them to pay taxes at all. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come within the category Of a service receiver may- be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied he a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest. Public interest seems to be at the basis of all impositions but in a fee it is some special benefit which the individual receives. As Seligman says it is the, special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it; exists at all is an incidenta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al action undertaken in respect to any of these matters. 51. Section 76 of the Madras Act speaks definitely of the contribution being levied in respect rendered by the Government; so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General that, in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not. It may be noticed, however, that the contribution that has been levied under section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions, which come under the lower income group and have income less than ₹ 1,000 annually, are exclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey Mercantile (P) Ltd., and others, reported in (2005) 4 SCC 245 wherein, it is held in relation to the mutation fees charged under the provisions of the Calcutta Municipal Corporation Act, 1959 (as amended by 20th February 1989) as under:- "14. According to Words & Phrases, Permanent Edition, Vol. 41 Page 230, a charge or fee, if levied for the purpose of raising revenue under the taxing power is a "tax". Similarly, imposition of fees for the primary purpose of "regulation and control" may be classified as fees as it is in the exercise of "police power", but if revenue is the primary purpose and regulation is merely incidental, then the imposition is a "tax". A tax is an enforced contribution expected pursuant to a legislative authority for purpose of raising revenue to be used for public or governmental purposes and not as payment for a special privilege or service rendered by a public officer, in which case it is a "fee". Generally speaking "taxes" are burdens of a pecuniary nature imposed for defraying the cost of governmental functions, whereas charges are "fees" where they are imposed upon a person to defray the cost of particular services rendered to his account. xxx ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, by now, well settled that a license fee may be either regulatory or compensatory. When a fee is charged for rendering specific services a certain element of quid pro quo must be there between the service rendered and the fee charged so that the license fee is commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. However, this is not the only kind of fee which can be charged. License fees can also be regulatory when the activities for which a license is given require to be regulated or controlled. The fee which is charged for regulation for such activity would be validly classifiable as a fee and not a tax although no service is rendered. An element of quid pro quo for the levy of such fees is not required although such fees cannot be excessive. xxx 11. In the case of Corporation of Calcutta and Another v. Liberty Cinema ([1965] 2 SCR 477 at page 483), this Court after referring to the constitutional provisions making a distinction between a fee and a tax, also went on to say that in our Constitution fees for license and fees for services rendered are contemplated as different kinds of levy. The former is not intended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers Vs. Kumaon Stone Crusher, reported in (2018) 14 SCC 537, wherein also the decision of the Apex Court i.e. Commissioner, Hindu Religious (supra) is quoted extensively and is accepted as locus classicus for the concept of fees and tax. Reliance was placed on Para nos.152 to 154 of the said judgment which reads thus: "152. We now proceed to consider the respective contentions of the parties on the Fourth and Fifth Amendment Rules. Before we proceed to consider the rival contentions, it is necessary to have broad overview of the concept of fee and tax. Further, the nature of regulatory fee and its essential characteristic also needs to be looked into. 153.The locus classicus on the concept of fee and tax is the judgment of this Court in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, B.K. Mukherjea, J. speaking for 7-Judge Bench has elaborately defined the tax and fee in paragraphs 43 and 44 which are quoted below: "43. A neat definition of what "tax" means has been given by Latham C.J. of the High Court of Australia in Matthews v. Chicory Marketing Board (60 C.L.R. 263, 276.). "A tax", according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or documents or marriage licenses, is secondary to the primary motive of regulation in the public interest (Vide Findlay Shirras on "Science of Public Finance" Vol. I, p. 202.). Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action (Vide Seligman's Essays on Taxation, p. 408.). 46. If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be correlated to the expenses incurred by Government in rendering the services. As indicated in article 110 of the Constitution, ordinarily there are two classes of cases where Government imposes 'fees' upon persons. In the first class of cases, Government simply grants a permission or privilege to a person to do something, which otherwise that person would not be competent to do and extracts fees ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and valid. The High Court has indicated that it is to be seen whether under the Town Planning Act, a specific power has been given to the Development Authority to impose such development fee. After scrutinising the provisions of the Town Planning Act, the High Court has come to the finding that the Development Authority or as a matter of fact any other authority under the Act has not been vested with the power to charge betterment or the development fee. 4. The High Court has referred to the decisions of this Court in Hingir Rampur Coal Co. Ltd. V/s. State of Orissa, AIR 1961 SC 459 and Sri Jagannath Ramanuj Das V/s. State of Orissa, AIR 1954 SC 400. This Court has held that between a tax and a fee there is no generic difference because in a sense both are compulsory executions of money by public authority but in a tax imposed for public purpose, no service need be rendered in return of such tax. A fee is however levied essentially for services rendered and as such there is an element of quid pro quo between the person paying the fee and the public authority imposing the same. It has been further indicated that whenever there is any compulsory exaction of any money from a citizen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti's case, (1987 (3) SCC 82) also deals with the exercise of incidental and consequential power in the field of administrative law and the same does not deal with the power of imposing tax and fee. 8. The High Court has referred to the decisions of this Court in Hingir's case, (AIR 1961 SC 459) and Jagannath Ramanuj's case, (AIR 1954 SC 400) and Delhi Municipal Corporation's case (AIR 1983 SC 617) (supra). It has been consistently held by this Court that whenever there is compulsory exaction of any money, there should be specific provision for the same and there is no room for intendment. Nothing is to be read and nothing is to be implied and one should look fairly to the language used. We are, therefore, unable to accept the contention of Mr. Goswami. Accordingly, there is no occasion to interfere with the impugned decision of the High Court. The appeal, therefore, fails and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade, the same is examined by the department and after hearing the objections, if any, the record is ordered to be changed. Ultimately, the exercise is for fiscal purpose. Similarly, the property valuation may be below ₹ 50,000 or above ₹ 2 lakhs, the function of the Corporation in making the mutation entry remains the same. Similarly, whatever may be the cause of mutation, whether it is a case of transfer or devolution, the activity of mutation remains constant in all the cases. The expenses incurred in all the cases also cannot vary, whatever be the value of the property or the cause of mutation. In the circumstances, there is no reason given for charging different rates depending on the value of the property and the cause of transfer. By doing so, the incidence of the levy falls differently on persons similarly situated resulting in violation of Article 14 of the Constitution of India. Moreover, the quantum of fees is disproportionate to the socalled "services" which is one more circumstance showing arbitrariness in the levy of such imposition. So far as Article 14 is concerned, the Courts in India have always examined whether the classification was based on intelligi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of the matter in this list but does not include fees taken in any Court. It was therefore, submitted that once Entry-55 being deleted the respondents cannot make any law with regard to the fees in respect of the matters covered under Entry-55 and therefore, respondents cannot recover the license fee for advertisement hoardings in private properties as same would be without authority of law and therefore, violative of Artice-265 of the Constitution of India. (iii) Without prejudice to the above submissions, it was submitted that after commencement of the GST Regime with effect from 1st July 2017, the taxes on advertisement by respondent nos.1 and 3 for annual license fees for billboards and hoarding in a private properties have been subsumed in the GST levy and the power of the respondent no.1 to levy such fee under the GPMC Act is impliedly repealed. (iv) Reliance was placed on the decision of Division Bench of this Court in case of Bharat Corporation Ltd. Oil Installation Vs. State of Gujarat rendered on 9 th June 2017 in SCA no.16304 of 2013 and other allied matters to submit that levy of fees is required to be considered as to whether while imposing the levy the test of it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interpretation that the Court should make every effort to save a statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the Legislature is presumed not to have intended to have exceeded its jurisdiction. 29. Sometimes to uphold the constitutional validity the statutory provision has to be read down. Thus, In re, Hindu Women's Right to Property Act, [AIR 1945 FC 28], the Federal Court was considering the validity of the Hindu Women's Right to Property Act, 1937. In order to uphold the constitutional validity of the Act, the Federal Court held the Act intra vires by construing the word 'Property' as meaning property other than agricultural land'. This restricted interpretation of the word 'Property' had to be given otherwise the Act would have become unconstitutional. Similarly, in Kedernath V/s. State of Bihar [AIR 1962 SC 955], this Court had to construe Section 124-A of the Indian Penal Code which relates to the offence of sedition which makes a person punishable who by words, either ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the contention that Section 386(2) of the GPMC Act is ultra vires Article 243X of the Constitution of India :- 1. It was submitted that Article 243X of the Constitution of India merely provides for an enabling provision which means that there is no obligation o the part of the State legislature to provide for a statute/ legislative provision as contemplated in Article 243X of the Constitution. Therefore, it is entirely upon the discretion of the State legislature to consider the procedure and the limits and make the law accordingly and pertinently while undertaking the said exercise, it would also be upon to the State to eliminate or modify the levy. In other words, Article 243X of the Constitution merely provides an outline of the scheme for levy and imposition of taxes, fees, etc. to enable the local bodies, like the Municipal Corporation to levy and collect the same and that the said Article neither provides as to which procedure has to be laid down or what limits are to be specified nor does it prescribe any maximum limit. 2. In support of the aforesaid propositions, reliance was placed on the judgment of the Apex court in case of Shanti G. Patel Vs. State of Maharash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of the provisions of Article 243-W and the Twelfth Schedule of the Constitution within a time-frame. By no stretch of imagination the existing laws could have been struck down only on that premise." In the case of Shanti G. Patel (supra) quoted above, the question before the Supreme Court was whether section 37(1-AA) of the Maharashtra Regional and the Town Planning Act, 1966 was violative of Article 243-W of the Constitution by alleging that in view of Article 243-W and items 1 and 2 of the Twelfth Schedule of the Constitution, the Municipal Corporation alone has the competence to make subordinate legislation as regards town planning. The Supreme Court turned down such contention holding that the existing provisions of the statutes governing the field relating to urban planning and/or regulation of land use and construction of building etc., would continue to operate in that field unless a statute is enacted by the State legislature in terms of Article 243-W. The Supreme Court further held that Article 243-W is merely an enabling provision and the State is not obliged to provide for such a statute. In such circumstances, according to the Supreme Court, the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... function as institutions of self-government. Such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to conditions as may be specified, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule of the Constitution. xxx 37. This contention, in our view, is not tenable in law. We have already said that the 73rd Amendment was brought into force on 24-4-1993 to give effect to one of the directive principles of State policy, namely, Article 40 of the Constitution. Therefore, it cannot be said that the 73rd Amendment of the Constitution is the basic feature of the Constitution. Article 40 cannot be said to qualify as the basic feature of the Constitution. The 73rd Amendment came to the Constitution by way of amendment under Article 368 and, therefore, it cannot be said to be a basic feature of the Constitution. It is an enabling provision and the State is empowered either to eliminate, modify or cancel by exercising power under the enabling provision. Article 243-G is an enabling provision. Article 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e at hand, Section 141B does not provide for such limit; nor does it provide for the rate of tax insofar as the land is concerned….." 16.5… … However, on fair reading of Article 243-X of the Constitution of India, it appears that the said Article provides that the legislature of a State may by law authorise the Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified in law. Thus, it is an enabling provision to empower the Municipality to provide funds through taxes, tolls etc., it does not provide as to which procedure has to be laid down and what limits are required to be specified. It also does not prescribe any maximum limits. The Constitution only provides only an outline of the Scheme for levy and imposition of tax, fees." 5. It was submitted that similar view has been taken by this Court in one another case of Vodafone Mobile Services Ltd. Vs. Ahmedabad Municipal Corporation, reported in 2017 SCC Online Guj. 231 6. It was submitted without prejudice to other submissions that even whilst assuming without admitting that Article 243-X of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners, inter alia, contended that the Corporation merely wears the hat of the Government and it is the Government which may allow the corporation to levy the license fee in question. In response to this, it was submitted that there cannot be any quarrel with the said contention, but the aforesaid judgment of the M.P. High Court is not at all relevant to the facts of the present case. 8. In view of the above submissions, it was submitted that Section 386(2) of the GPMC Act is not ultra vires Article 243X of the Constitution as sought to be canvassed on behalf of the petitioners. (C) Submissions with regard to the contention that Section 386(2) of the GPMC Act has been rendered unconstitutional after deletion of Schedule-VII Entry-55 of List II with effect from 16.09.2016. 1. It was submitted that the erstwhile Entry 55 of List II was dealing with 'taxes' on advertisements, etc., which was otherwise not applicable in the instant case, which deals with 'fee' and not 'tax'. Under the circumstances, the deletion of Entry 55 of list II does not make any difference to the present levy and collection of license fee in question. 2. It was submitted that in fact, the State legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would the provision of Article 243ZF of the Constitution be invoked in the instant case and therefore, there raises no question of the applicability of Article 243-ZF in the present case. (E) Submissions with regard to contention that Section 386(2) of the GPMC Act suffers from vice of excessive delegation and provide for unguided and uncanalised powers:- 1. It was submitted that the contention of the Petitioners to the effect that for imposition of fees, there must be guidelines is devoid of any substance and is contrary to the settled legal position of law inasmuch as the guidelines are required to be prescribed by the legislature in case where there is a levy of tax and not in case where there is a mere imposition of fees. This proposition of law is very well established by virtue of the judgment of the Apex Court in case of Delhi Race Club Ltd. Vs. Union of India, reported in (2012) 8 SCC 680 wherein it has been specifically observed as under :- "48.As noted above, challenge to the constitutionality of Section 11(2) of the Act was based on the premise that no guidance, check, control of safeguard is specified in the Act. This principle, as we have distinguished above, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate denying this submits, the power is bridled and controlled through the Preamble, Objections and Reasons and various provisions of the Act and Rules." xxx "21.Not only "Preamble" and "Objects and Reasons" of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section (13) of Section 2 defines "development" for carrying out any of the works contemplated in the regional and master plan etc. Section 9-C defines functions and powers of Metropolitan Development Authority, Section 12 refers to functions and powers of the appropriate planning authorities, Section 15 refers to regional planning. Section 16 is for preparation of land and building map, Section 17 refers to the master plan, Section 18 refers to new town development plan, Section 19 refers to the declaration of intention to make or adopt a detailed development plan, Section 20 refers to the contents of detailed development plan, Section 47 refers to use and development of land to be in conformity with the development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them contributes for subserving the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is not required, but the same should be used for regulating the activity for which fee is charged and that the same should not be excessive. In the present case, it has been further contended that license fee sought to be recovered is not for the purpose of regulating the activity in question, but is for augmenting revenue and hence, the same is in nature of 'tax' and not 'fee'. It has also been contended that if the fee is charged only with the purpose of augmenting revenue, then the same would have to be considered as 'tax', inasmuch as, fee cannot be charged for augmenting revenue. 2. In the above connection, it was also submitted by the petitioners that the views of this Hon'ble Court in case of - Outdoor Advertising Owners' Association of Ahmedabad Vs. State of Gujarat, vide judgment dated 02.02.2006 rendered in SCA no.12603 of 2005 are per incuriam. In support of this, a strong reliance is placed on behalf of the petitioners on the judgment of the Apex Court in case of Commissioner, Hindu Religious Endownments (supra). 3. In response to above contentions , at the outset, it was submitted that the proposition of law laid down by the Apex Court with respect to the charact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the description of a religious denomination as provided under Article 26 of the Constitution and even if it does, what cannot be interfered with is its right to manage its own affairs in the matter of religion only and nothing else? (iv) Having regard to the fundamental rights guaranteed under the Constitution in matters of religious institutions belonging to particular religious denominations, whether the law regulating the framing of scheme interfering with the management of the Math and its affairs by the Mathadhipati, would conflict with Articles 19(1)(f) and 26 of the Constitution and would be consequently void under Article 13? 6. It was submitted that while dealing with the aforesaid main issues of controversy in the case before it, the Apex Court also dealt with an incidental issue relating to the constitutional validity of Section 76 of the Madras Act, i.e. Madras Hindu Religion and Charitable Endownments Act, 1951, which directed every religious institution to pay the government annually such contribution not exceeding 5% of its income, on the ground that the payment of the said contribution was in nature of a tax and not a fee. It was submitted that the proposition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) In Para 48, it is held that it is absolutely necessary that the levy of fees should be correlated to the expenses incurred by the Government in rendering the services. The fees charged for granting a permission or privilege to a person to do something, either heavy or moderate, not on the basis of the costs incurred by the Government, but upon the benefit that the individual receives, cannot but be regarded as a Tax. (v) In Para 49, it is held that if the Government takes the money as the return for some positive work done for the benefit of persons and the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged with in the public revenue, then the same is to be construed as Fees and not a Tax. (vi) Thus, while considering the aforesaid aspects, in Para 51, it has been held that the contribution referred in Section 76 of the Madras Act is a Tax, mainly on the grounds that (a) the contribution received in not earmarked or specified for defraying the expenses that the Government had to incur in performing services; (b) all the collections would go to the consolidated fund of the State and all the expenses are incurred theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to Consolidated Fund, the same, by itself is not decisive, by reason of Article 266 of the Constitution of India. 6.4 Thereafter, in the case of Municipal Corporation of Delhi Vs. Mohd. Yasin, reported in (1983)3 SCC 229, while considering the validity of a Notification issued by the Delhi Municipal Corporation enhancing the fee for slaughtering animals in the slaughterhouses from Re.0.25 to Re.2 (i.e. 300%) for each animal in case of sheep, goats and pigs and from Re.1 to ₹ 8 (i.e. 700%) for each animal, in case of buffaloes, in Para nos. 9 & 10,the Apex Court held as follows: (i) Though a fee must have relation to the services rendered, or the advantages conferred, such relation need not be direct, a mere casual relation may be enough. (ii)That others besides those paying the fees are also benefited does not detract from the character of a fee. In fact, the special benefit or advantage to the payers of the fees may even be secondary as compared with the primary motive of regulation in the public interest. (iii) That the expenditure ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary that all the services must be to the payers of the fees nor correlation between payment of fee and services rendered, be established with mathematical exactitude. (v) It is permissible in the modern setup to take into account projections into future and not only the present services can be utilized for justifying the imposition of fee. All planning, projects into the future for its existence and survival. (vi) If the primary object and essential purpose of the imposition be service of some special kind to the users of the market or payers of fee, other consequences or other benefits to others do not in the least affect the position. The concept of benefit to the users of market must be looked at from a broad commonsense point of view, taking an integrated view. In today's world you cannot build a good market if the accesses through which the produce comes to the market are not maintained. However, at what point the roads will begin and at what point the roads will end to be able to justify the roads necessary to maintain solely the market appears to be highly theoretical and unreal question in the modern concept of integrated development. 6.7 Thereafter, in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pro quo is not a condition precedent for the levy of a regulatory fee. Such examination will have to be made in the context of the levy being either excessive or unreasonable for the requirement of the authority for fulfilling its statutory obligations. 6.9 Thereafter, in the case of State of H. P. Vs. Shivalik Agro Poly Products, reported in (2004) 8 SCC 556, while considering the validity of Notification dated 14.04.1969 prescribing the registration fee on a graduated form on the basis of value of the subject matter of the instrument, in Para 3, 4 & 13 to 20, the Apex Court observed as follows: (i) The statement of law made in Shirur Mutt case (AIR 1954 SC 282) regarding the attributes of fee has undergone a sea change. (ii)The broad and general co-relationship between the totality of the fee on the one hand and the totality of the expenses of the services on the other will be sufficient to justify the levy. (iii) A levy will not fail only on the ground that the measure of its distribution on the persons or incidence is disproportionate to the actual services rendered by them. 6.10 Thereafter, in the case of Sona Chandioal Committee vs. State of Maharashtra, reported in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d above. 6.12 It was submitted that in view of theabove refereed subsequent decisions of the Apex Court it is discernible that the view expressed by the Apex Court in 1954 Judgment, with respect to characteristic of fee, has undergone a sea change and that the consistent view expressed in the subsequent decisions has to be taken into account for considering the characteristic of fee. It was therefore, submitted that considering the fact that admittedly it is not even the case of the petitioners that no services are rendered by the Corporation to them, which shows a broad and reasonable relationship between the payer and the services rendered and therefore, the levy of license fee in question is to be determined as a fee and not as tax. 6.13 It was further submitted that in an attempt to suggest that there is no shift/ change in the concept of fee since the rendition of the above referred judgment of the Apex Court in the year 1954, the petitioners have relied upon the judgment of the Apex Court in case of State of Uttarakhand Vs. Kumao Stone Crusher, reported in (2018) 14 SCC 537 to suggest that even in the year 2018, the Apex Court still relies upon its 1954 judgment and hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain declaration and give undertaking to the Corporation on the basis of which permission for exhibiting advertisement is granted. All these activities would require certain regulatory control to be exercised on part of the Corporation. It is not in dispute that this would require maintenance of staff for processing of applications, for granting license as also, to periodically carry out inspection to ensure that the hoardings do not breach any of the legal provisions or other requirements laid down by the Corporation. xxx 29. It is not in doubt that the Corporation spends certain amount towards providing regulatory machinery to regulate activities in question. It is also not in dispute that the amount of license fee which is recovered from the petitioners and other similarly situated persons concerned, forms part of collection of the Corporation, portion of which is utilised for the said regulatory machinery. It is equally not in dispute that substantial portion of the earning is utilised for the purposes other than for specific regulatory controls. In fact the corporation in the affidavit-in-reply has stated that part of the fund so collected is being utilized for providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roads. Without these roads being well designed, well maintained and well looked after, there would be no commercial potential for such property owners. These roads provide for growth catalyst for commercial activities to flourish. It is only when such roads are developed that maximum number of persons would be visiting such sites either for shopping or for visiting different offices, banks or restaurants. It is only then that the private owners would be in a position to extract maximum possible revenue out of renting their sites for the purpose of exhibiting advertisements. Existence of good roads which are well maintained and well looked after cannot be separated from the potential of the property owners to earn maximum revenue from the proposed sites for advertisements. One does not need much thinking to appreciate that on roads such as Ashram Road and C. G. Road, all advertisers would be paying highest rentals prevailing in the city. Whereas in remote suburban areas where such development has not yet reached, the prevailing rates for advertisements would be substantially lower. Why should Ashram Road and C. G. Road receive such preferential attention by the Corporation is the q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the corporation which is primarily in the nature of policy matter. Corporation enjoys certain discretion in this regard, I do not see any reason to interfere with the rate revision. 33. As noted above, different areas of city of Ahmedabad carry different potential. Property owners of properties would obviously get different rents for advertisements exhibited in their properties. For the purpose of deciding rate of the license fee, the Corporation has adopted the structure of the potential value of the rent of the advertisement on the property in question, I do not find any illegality in the same. This concept was accepted by the Hon'ble Supreme Court in the case of b. S. E. Brokers' Forum, Bombay and others v. Securities and Exchange Board of India (supra). To ascertain the true potential, the Corporation adopted the basis of rate offered by the tenderer for the Corporation sites in the near vicinity. One must remember that tenderer offered certain rate to the Corporation which he would be in a position to afford. On such rate, tenderer would have to add his own administrative expenses and also add his own reasonable profit. It is the sum total of these figures, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the observations made hereinabove. 35. In the result, the petitions are allowed to the extent of quashing the collection of registration fees from the petitioners. Any amount received by the corporation under this head shall be refunded within six weeks from the date of receipt of a copy of this order. In case of any further delay, the amount shall carry interest at the rate of 8% per annum. In so far as the challenge to revision of license fee is concerned, the same is rejected. The petitions are disposed of accordingly. 36. At this stage, learned advocate for the petitioners requested that the order regarding license fee may be stayed for a period of four weeks. The request of the learned advocate for the petitioners is accepted. By earlier interim order dated 11st August, 2005 and 19th October, 2005, the petitioners have been paying ad hoc license fee to the respondents. Such arrangements shall continue till then." Referring to above observations of the learned Single Judge , it was submitted that such observations are in consonance with the subsequent judgments of the Supreme Court and as such the same are not per icuriam. (G) Submissions that fixation of license fee i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory fees and also held that the various types of factors can be decided by the imposing authority. (i) A. P. Paper Mills Ltd. Vs. Government of A.P. reported in (2000) 8 SCC 167 (ii) Delhi Race Club Ltd. Vs. Union of India reported in (2012) 8 SCC 680 and (iii) Lalaram Vs. Union of India reported in (2015) 5 SCC 813 6. It was submitted that applying the law laid down in the aforesaid judgments to the facts of the present case, the proposed increase in the rates of license fee is justified and deserves to be upheld. 7. It was further submitted that as far as the judgments relied upon by the petitioners are concerned, the same are not applicable to the facts of the present case, inasmuch as, either the same are with respect to levy of tax or where there was no express provision under the Act which imposed fees and hence the reliance placed on such judgments is misplaced. 8. It was submitted that Letters Patent Appeal filed against the judgment of the learned single Judge in case of Outdoor Advertising Owners' Association of Ahmedabad (supra) was disposed of by the Division Bench vide an order dated 05.03.2014 passed in LPA No.331 of 2006 in SCA no.12603 of 2005 without ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingly. It was also pointed-out that in the judgment of this Court in SCA no.11459 of 2012 it is impliedly accepted that the limits and procedures have to be specified in the law itself. (B) With regard to the contention that there is no excessive delegation under Section 386(2) of the GPMC Act as the sanction of the Corporation provides for sufficient check and it is legislative policy and if the legislative policy is discernable from Act itself there is no arbitrariness and there is no excessive delegation, it was submitted that similar provisions under the BPMC Act and Delhi Municipal Corporation Act were struck down by the Apex Court in cases reported in AIR (1967) SC 1801 and (2003) 7 SCC 151 and therefore, the judgment cited by the respondent in case of Consumer Action Group Vs. State of T.N. reported in (2007) 7 SCC 425 is not applicable as the legislative policy as laid down under the GPMC Act for Section 386(2), guidelines for exercise of powers under Section 386(2) also are not discernable on reading of the preamble and object of reasons for provision of the GPMC Act and the Rules because it is a pre-constitution provision of the BPMC Act, 1949 without there being any gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 282 is reproduced and approved. Learned senior advocate Mr. Joshi therefore, distinguished the judgments cited by the respondents in support of their contentions that judgment reported in AIR 1954 SC 282 is diluted and there is a shift in judicial thinking and therefore it is not required to be followed as under:- (i) AIR 1963 SC 966- Para nos. 17 and 18 support the contention of the Petitioners. (ii)(1981) 4 SCC 391 - This is on principle of 'res extra commercium' - doctrine holding that certain things may not be the object of private rights and are insusceptible to of being traded for example - trading in Alcohol. This case also pertains to fees on 'Spirits'. Amount collected by the State is going to Consolidated Fund under Article 266 which is applicable to the State and Union and not to local authorities like AMC. (iii) (1983) 3 SCC 229 wherein it is observed regarding "causal relation" between the fees and services rendered and no exact quid pro quo being required which is exactly what was contended by the petitioners. However, the AMC has not even remotely established relationship between fees and regulatory purpose. (iv) (1983) 4 SCC 353 - Issue involved was rega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... part and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax". The above quoted lines are not relevant for the present case. At any rate again if Para 19 of this Judgment is referred, it is clear that in light of Article 266 (which was not required to be considered in AIR 1954 SC 282), above lines in para 9.1 are observed to be inaccurate and that 3 Judgments referred to in para 19 - AIR 1964 Punjab 492, AIR 1971 All 390 and (1978) 2 SCC 367 - which were based on the above quoted lines in para 9.1 have been overruled. AIR 1954 SC 282 is NOT overruled. Thus, for the purposes of these petitions there is no question of any 'Sea Change' or 'Paradigm Shift' or 'Melting of snow' since the decision in AIR 1954 SC 282 as is sought to be contended by the respondents. (viii) (2005) 2 SCC 345 No such justification as is required and given in this judgment has been given by AMC for levy/ increase of license fees. (ix)(2006) 6 SCC 763 wherein it is accepted that there has to be co-relation between the fees generated by Cess and value of service. That is what p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioner therein. The Bench explained different features of a "tax", a "fee" and "cess" in the following passage : (AIR p. 464, para 9) "9. … The neat and terse definition of tax which has been given by Latham, C.J., in Matthews v. Chicory Mktg. Board (Vic.) [(1938) 60 Clr 263 (Aust)] CLR, p.276, is often cited as a classic on this subject. 'A tax', said Latham, C.J., 'is a compulsory exaction of money by public authority for public purposes enforceable by lay, and is not payment for services rendered'. In bringing out the essential features of a tax this definition also assists in distinguishing a tax from a fee. It is true that between a tax and a fee there is no generic difference. Both are compulsory exactions of money by public authorities; but whereas a tax is imposed for public purposes and is not, and need not, be supported by any consideration of service rendered in return, a fee is levied essentially for services rendered and as such there is an element of quid pro quo between the person who pays the fee and the public authority which imposes it. If specific services are rendered to a specific area or to a specific class of persons or trade or business in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts as are there in the note are found in the affidavit of AMC. For the first time without any factual averments in the affidavit, new case is sought to be introduced by way of a Note which cannot be countenanced and the Hon'ble Court may not be pleased to consider the same particularly paras 7, 8 and 13 thereof. It is categorically denied that the rates of fees considered by the Single Judge while passing the interim order date 11.08.2005 in SCA no.12603 of 2005 had taken into account the average amount fetched for tender site. The said contention/averment is not correct and mischievously introduced subsequently. (ii) In Part II of the note, the calculations is given. As an illustration in Para 5 of Part II, East and North zones are taken where the rates are very low. The increase proposed is 100%. Considering the case of AMC in the Note that the average increase is 33%, then in case of the existing rates are ₹ 500/-, 33% would come to ₹ 665/- whereas the rates proposed is ₹ 1000/-. The respondents have deliberately not given the calculation of other zones, where even when the 10% of average of maximum and minimum rates of tenders remain the same in several zone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 43X of the Constitution of India, which inter alia requires the legislative provision of a State authorizing the Corporation to levy and collect fee, to provide for procedure and limits, subject to which such levy or collection can be made, whereas, Section 386(2) of the GPMC Act does not provide for either; (ii) Section 386(2) of the GPMC Act is unconstitutional since after 16.09.2016, i.e. after deletion of Entry 55 of List II of the VIIth Schedule to the Constitution, the State legislature has no competence to enact a law authorizing the Corporation to levy and collect fee; (iii) Section 386(2) of the GPMC Act is without authority of law, since in terms of Article 243ZF of the Constitution of India, after the expiry of one year from 01.06.1993, the provision of Section 386(2) of the GPMC Act cannot be said to be in force and hence, the levy of license fee under the purported exercise of powers under Section 386(2) of the GPMC Act is without authority in law; (iv) Section 386(2) of the GPMC Act is bad in law for excessive delegation, since it does not provide for any guidelines, checks or control etc. (II) The petitioners have questioned levy of the license fees in garb of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome non-operative or a vacuum would be created in the matter of enforcement of existing laws relating to urban planning and/or regulation of land use and construction of buildings etc. xxx 12. Even if we agree with the contention of the petitioners herein that the writ petition should have been entertained, the High Court or for that matter this Court could only issue a direction upon the State to pass an appropriate legislation in terms of the provisions of Article 243W and the Twelfth Schedule of the Constitution of India within a time frame. By no stretch of imagination the existing laws could have been struck down only on that premise." 15. From the ratio of the above decision, it is clear that when an Article of Constitution is an enabling provision, it does not mean that the State is obligated to provide for such a statute and on that ground existing laws could be stuck down only on that premise. 16. Section 386(2) of the GPMC Act is in operation since 1949 and the challenge thereto being ultra vires to the Articles of the Constitution would result in detriment to the public interest since the amount of license fee being collected by the Municipal Corporation along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same as well as for granting any interim relief during the pendency of such writ petitions. For the abovestated reasons it is also imperative that when such writ petitions are entertained, the same should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other." The afore-quoted decision of Supreme Court is a guiding factor for squaring off akin litigations that have and/or may pop up. It underlines observance of certain precautions whenever vires of provision of law is raised before the Court by way of a writ petition. On many occasions, a challenge to a provision of law, as to its constitutionality is raised aiming at to thwarting the applicability and rigour of those provisions as an escape route from applicability of those provisions of law and thereby creating an impediment for the authorities and institutions concerned. Such challenges always result in prolongation of litigation enabling such unscrupulous elements to take advantage of the pendency of such litigation preferred by them and thereby gain unlawful advantage, to the detrimental disadvantageous position of the others. In effect, such attempts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitions are entertained, those petitions should be disposed of as expeditiously as possible and on a time-bound basis, so that the legal position is settled one way or the other. 17. The Apex Court in case of M. Rathinaswami Vs. State of Tamilnadu reported in (2009) 5 SCC 625 has held as under :- "28. It is well settled that to save a statutory provision from the vice of unconstitutionality sometimes a restricted or extended interpretation of the statute has to be given. This is because it is a well-settled principle of interpretation that the Court should make every effort to save a statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the Legislature is presumed not to have intended to have exceeded its jurisdiction. 29. Sometimes to uphold the constitutional validity the statutory provision has to be read down. Thus, In re, Hindu Women's Right to Property Act, AIR 1945 FC 28, the Federal Court was considering the validity of the Hindu Women's Right to Property Act, 1937. In order to uphold the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Constitution deals with 'Directive Principles of State Policy'. Article 37 provides that the provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. 3. By 73rd Constitutional Amendment Article 243G was introduced in the Constitution of India. Article 243G reads as under:- "243G. Powers, authority and responsibility of Panchayat. Subject to the provisions of this Constitution the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, at the appropriate level, subject to such conditions as may be specified therein, with respect to (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "107. The basic structure theory imposes limitation on the power of Parliament to amend the Constitution. An amendment to the Constitution under Article 368 could be challenged on the ground of violation of basic structure of the Constitution. An ordinary legislation cannot be so challenged. The challenge to a law made, within its legislative competence, by Parliament on the ground of violation of the basic structure of the Constitution is thus not available to the petitioners." 19. In case of Vadodara Shaheri Jilla Khedut Mandal vs. Vadodara Municipal Corporation and Ors. (13.12.2013 - GUJHC) : MANU/GJ/0823/2013, this court has held as under: "48. There is one more reason why we are not impressed by the submission of Mr. Bhatt in this regard. The challenge to the validity of the Vadodara Urban Development Authority is after a lapse of almost 35 years. Mr. Trivedi, the learned Advocate General appearing for the State Government is right in submitting that the main purpose of VUDA is for the proper development or redevelopment of urban area according to the provisions of Section 22 of the Act. The powers and functions of the Urban Development Authority are conferred under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be declared unconstitutional lightly. The court must be able to hold beyond any iota of doubt that the violation of the constitutional provisions was so glaring that the legislative provision under challenge cannot stand. Sans flagrant violation of the constitutional provisions, the law made by Parliament or a State Legislature is not declared bad. 14. This Court has repeatedly stated that legislative enactment can be struck down by Court only on two grounds, namely (i), that the appropriate Legislature does not have competency to make the law and (ii), that it does not take away or abridge any of the fundamental rights enumerated in Part - III of the Constitution or any other constitutional provisions. 15. In Mcdowell and Co.2 while dealing with the challenge to an enactment based on Article 14, this Court stated in paragraph 43 (at pg. 737) of the Report as follows : "........A law made by Parliament or the legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part III of the Constitution or of any other constitutional provision. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of indicating what may be said to be reasonable in the context. We proceed to examine the provisions of the said Act upon this basis." 44. It is this paragraph which is strongly relied upon by Shri Nariman. We are, however, of the opinion that the observations in the said paragraph must be understood in the totality of the decision. The use of the word 'arbitrary' in para 7 was used in the sense of being discriminatory, as the reading of the very paragraph in its entirety discloses. The provisions of the Tamil Nadu Act were contrasted with the provisions of the Land Acquisition Act and ultimately it was found that Section 11 insofar as it provided for payment of compensation in instalments was invalid. The ground of invalidation is clearly one of discrimination. It must be remembered that an Act which is discriminatory is liable to be labelled as arbitrary. It is in this sense that the expression 'arbitrary' was used in para 7." 24. In Hamdard Dawakhana and another V/s. The Union of India and others, AIR 1960 SC 554, inter alia, while referring to the earlier two decisions, namely, Bengal Immunity Company Ltd. and Mahant Moti Das , it was observed in paragraph 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification." 22. In the case of Motor General Traders and Ors. vs. State of Andhra Pradesh and Ors. (26.10.1983 - SC) : MANU/SC/0293/1983, the Andhra Pradesh High Court has held as under: "24. It is argued that since the impugned provision has been in existence for over twenty three years and its validity has once been upheld by the High Court, this Court should not pronounce upon its validity at this late stage. There are two answers to this pro position. First, the very fact that nearly twenty three years are over from the date of the enactment of the impugned provision and the discrimination is allowed to be continued unjustifiably for such a long time is a ground of attack in these cases. As already observed, the landlords of the buildings constructe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passage of time the same may be held to be unconstitutional in view of the changed situation. 34. Justice Cardoze said: "The law has its epochs of ebb and flow, the flood tides are on us. The old order may change yielding place to new; but the transition is never an easy process". xxx 56. The impugned provision was enacted to prevent persons from making illconsidered death bequest under religious influence. The object behind the said legislation was, therefore, to protect a section of illiterate or semi-literate persons who used to blindly follow the preachers of the religion. Such a purpose has lost all significance with the passage of time and, therefore, has to be declared ultra vires Article 14 of the Constitution of India. 25. The Division Bench of this Court while considering the challenge against the validity of existing provision of Section 141B of the GPMC Act, in case of Adani Gas Vs. AMC (supra) has held as under :- "16.8. Now, considering the scheme of the property tax under the GPMC Act, Section 127(3) provides that "Municipal Tax shall be assessed and levied in accordance with the provision of this Act and Rules". Pursuant to Section 127(3), the Municipal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ules (Amendment) 2001 are framed." 26. In case of Property Owners Association and Ors. vs. State of Maharashtra and Ors. reported in MANU/MH/0735/2019, the Bombay high Court has held as under: " 181. To conclude, the BMC Act has been already amended in terms of Article 243ZF. Perusal of various provisions of Part-IXA of the Constitution of India shows that the constitutional provisions itself provide for the State Legislature enacting law providing for constitution of committees and conferring them with powers and authority. We have already referred to the various provisions including clause (b) of Article 243-W. Therefore, the provision of section 4 of the BMC Act is consistent with the provision of Part-IXA. Clauses (a) and (b) of Article 243-X cannot be read in isolation and merely because Legislature authorizes the Standing Committee to fix the rates of property taxes and to approve rules framed by the Commissioner in accordance with sub-section (1B) of section 154, the relevant provisions of the BMC Act cannot be said to be ultra vires Article 243-X. The powers under the charging sections in Chapter VIII are conferred on the Corporation itself including the power to exercis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is force in the contentions of Ms. Karnik that the provisions of every law and by which the powers, authorities and responsibilities have been endowed on the Municipalities must be construed in such a way so as to make existence of the Municipalities meaningful and purposeful. That it is an institution of self Government is, therefore, abundantly clear. That such Institution must have certain freedom, autonomy and independence is also apparent. However, her arguments overlook the fact that it is the State which has to make the necessary law. Even in terms of this Constitutional Scheme the law making power of the State is untouched. The power to impose tax by, and funds of, the Municipalities, is granted vide Article 243X. 38. Therefore, what we have held above gets further reinforced and supported by Article 243X of the Constitution of India. It is the Legislature of the State and which makes the law by which Municipalities are authorized to levy, assess, collect and appropriate such taxes, dues, tolls and fees in accordance with such procedure and subject to such limits. There could be assignment of duties to the Municipalities. The State Government may assign to a Municipality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... actors mentioned in the Taxation Rules, and therefore, as the same shall be more than maximum limit prescribed under Section 141B(3) of the GPMC Act and therefore, the same shall be bad in law, illegal and/or ultra vires to Article 243X of the Constitution of India. The aforesaid submission seems to be directive but has no substance. Section 141B of the GPMC Act is required to be read as a whole and the same cannot be read in piecemeal. Sub-section (3) of section 141B of the GPMC Act is required to be read along with sub-section (4) of section 141B. Sub-section (4) of section 141B specifically authorizes and/or permits the Corporation to increase or decrease or neither increase nor decrease the rate of Tax determined under section (1) read with subsections (2) and (3), however subject to the Rules which may be framed for that. As observed hereinabove, what are the factors to be taken into consideration while increasing or decreasing the rate of Tax determined under sub-section (1) read with sub-sections (2) and (3) of the GPMC Act are provided under Section 141B(4)(a) of the GPMC Act. Therefore, the words which are used under subsection (4) of section 141B of the GPMC Act are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax as per the Taxation Rules is constitutionally valid and/or the same cannot be said to be ultra vires to Article 243X of the Constitution of India, the Division Bench of this Court in paras 16.1 to 16.9 has observed ".........." 25. Under the circumstances and for the reasons stated above, it cannot be said that section 141B(4) of the GPMC Act which permits/authorizes the Corporation to increase or decrease the property Tax as per the Taxation Rules cannot be said to be ultra vires to Article 243X of the Constitution of India. As observed hereinabove, section 141B(4) of the GPMC Act is part of the Statute which permits and/or authorizes the Corporation to increase or decrease the property Tax as per the Rules. Section 454 of the GPMC Act permits and/or authorizes to frame the Rules and in exercise of powers under Section 454 of the GPMC Act, Taxation Rules are framed." 29. In case of Selvel Advertising Pvt. Ltd. v. State of Orissa, reported in 2012 SCC OnLine Ori 105, the Orissa High Court has held as under: "20. Article 243X of the Constitution provides that the Legislature of a State may, by law authorize the Municipality to levy, collect, and appropriate such taxes, dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... empowers the Municipality to impose any other tax which the Municipality is empowered to impose under any law for the time being in force. There is no other law as required under Section 131(k) of the Act, 1950 by which the Municipality is empowered to levy tax on advertisements. 22. Article 265 of the Constitution provides that no tax shall be levied or collected except by authority of law. Thus, Article 265 requires that (i) there must be a law, (ii) the law must authorize the tax; and (iii) the tax must be levied and collected according to the law. In the instant case, ingredients of Article 265 are not satisfied. xxxx 37. In the result, the writ petition is allowed and the Rourkela Municipality Regulations of tax on advertisement, 2010 (Annexure-1) is quashed." 30. In case of Meghalaya Commercial Truck Owner and Operators Association v. State of Meghalaya , 2010 SCC OnLine Gau 412 : (2011) 4 Gau LR 398 at page 433, the Meghalaya High Court has held as under: "84. The proposition enunciated in New Delhi Municipal Council (supra), with reference to the power of the Municipalities to impose taxes under article 243X was held to be dependant upon their parent legislations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Government by itself may levy and collect such taxes, duties, tolls and fees as referred to in respective clause (1) of each Articles for the purpose of Panchayat or Municipalities, as the case may be and assign the same to them for the purpose for which levy has been made and collected. It is significant to notice that tax authorised under Entry 52 of List II of Seventh Schedule is limited to specified activity on entry of goods into the local area i.e. for use, consumption or sale therein, which is clearly indicative of the fact that wherever the movement of goods from outside the limit of local area terminates within the local area for the purpose of utilisation of such goods within that local area by way of use, consumption or sale therein, there is direct nexus with the activity of movement of goods and levy of tax on the entry of goods which moves into the local limits of the defined local area. Apparently, this nexus is related to levy of tax for providing fund for the institution of self governance to discharge functions which have been assigned to the Municipalities or Panchayats or any other authority designed as an Institution of self governance. That object is clea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. Therefore, in other words, the fees to be charged as per the provisions of Sub-section-2 of Section 386 cannot be said to be having unbridled or unfettered power. It is also evident from the materials on record that the levy of fees to be charged for advertisement hoardings in private properties does not become effective immediately when the Commissioner proposes unless and until the same is approved by the Standing Committee which in turn is required to be approved and sanction by the Corporation as provided under Sub-section-2 of Section-386 of the GPMC Act. 34. In view of above analysis and conspectus of law, reliance placed by the petitioners on the ratio in case of Anilkumar Gulati Vs. State of MP reported in AIR (2004) SC 182 cannot be made applicable to the facts of the case because in the said case validity of taxing provision relating to property tax was challenged being violative of Article 243X of the Constitution and without any rules framed by the State Government, the legislature could not have delegated the powers to the Executive to frame rules and compel the local authority to impose tax in absence of any power by the State legislature ,no fee or tax could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a plantation land which are the subject-matter of writ petitions filed in this Court. The Bengal Brickfield Owners' Association has also come up to this Court by filing a writ petition under Article 32 of the Constitution, laying challenge to the same cesses levied on the removal of brick earth. These three sets of matters arise from West Bengal. The High Court of Allahabad has upheld the constitutional validity of cess levied in the State of U.P. on minor minerals which decisions are the subject-matter of civil appeals filed under Article 136 of the Constitution. For the sake of convenience, we would call these matters, respectively as (A) "Coal matters", (B) "Tea matters", (C) "Brick earth matters", and (D) "Minor mineral matters". Inasmuch as the basic constitutional questions arising for decision in all these matters are the same, all the matters have been heard analogously. xxx 31. Article 245 of the Constitution is the fountain source of legislative power. It provides - subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the legislature of a State may make laws for the whole or any part of the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general legislative entry as an ancillary power. (4) The entries in the lists being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest-possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex enumeratio of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters. (5) Where the legislative competence of the legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three lists containing a large number of entries, there is bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rea Development Authority. The fund established under the Act meets expenses of administration needed to be incurred by the authority. The funds cannot be utilised for any purpose other than the administration of the Act. There are pieces of land which though containing a mine yet fall within the territory of special development area. It was pointed out by the respondents before the High Court that in spite of the Act having been enacted in the year 1986, the successive State Governments, which had preceded it, did not take care of the legislation and it was only the then Government which became conscious of its obligations under the SADA Act and commenced identifying special areas requiring development such as Sonbhadra. The imposition of cess envisaged through the SADA Act and the Rules was a step towards developing the special area. It is a matter of common knowledge, and does not need any evidence to demonstrate, that mining activity carried on the land within the special area involves extraction, removal, loading-unloading and transportation of the minerals accompanied by its natural consequences entailed on the environment and the infrastructure such as roads, water and power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... safe, sound and scientific method of determining the value of the land to which the product relates. The levy of cess considered as a tax is constitutionally valid. xxx 146. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly in proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Availability of indirect benefit and a general nexus between the persons bearing the burden of levy of fee and the services rendered out of the fee collected is enough to uphold the validity of the fee charged. The levy of the impugned cess can equally be upheld by reference to Entry 66 read with Entry 5 of List II." 37. In view of the above dictum of law, provisions of Sub-section-2 of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich it has been enacted and therefore, the Act does not warrant any interference as being an instance of excessive delegation." 40. It is now well settled that the provision relating to levy of tax and collection of fees cannot be compared with as held by the judgment relied upon on behalf of the petitioner in case of New Manek Chowk Spinning & Waiving Mills (Supra), Krishna Mohan (Supra) and Bidhannagar (Salt Lake) (Supra) with reference to taxing provisions and the same would not be applicable to the facts of the present case pertaining to levy of fees. The Apex Court in case of Consumer Action Group Vs. State of Tamilnadu reported in (2000) 7 SCC 425 while dealing with similar challenge against the validity of Section 113 of Tamilnadu Town and Country Planning Act, 1971 has held as under:- "13.For the State reliance is placed in the State of Bombay and Anr. V. F.N. Balsara, 1951 SCR 682 (Constitution Bench). With reference to the validity of Section 139(c) of the Bombay Prohibition Act (XXV of 1949) the submission was that power given to the Government to exempt any person or institution or any class of persons or institutions from observing whole or any of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y be worked out by delegating them to a subordinate authority within the framework of that policy. 15. In Sardar Inder Singh V. The State of Rajasthan 1957 SCR (Constitution Bench), this Court was considering Section 15 of the Rajasthan (Protection and Tenants) Ordinance, 1949 which, with similar provision authorised the Government to exempt any person from the operation of the Act. This Court held: "A more substantial contention is the one based on s. 15, which authorises the Government to exempt any person or class of persons from the operation of the Act. It is argued that that section does not lay down the principles on which exemption could be granted, and that the decision of the matter is left to the unfettered and uncanalised discretion of the Government, and is therefore repugnant to Art. 14. It is true that that section does not itself indicate the grounds on which exemption could be granted, but the preamble to the Ordinance sets out with sufficient clearness the policy of the Legislature; and as that governs s. 15 of the Ordinance, the decision of the Government thereunder cannot be said to be unguided. Vide Harishanker Bagla v. The State of Madhya Pradesh. 16. P. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions, if there be any, then this by itself would be a guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or uncanalised. The exercise of power of such delegatee is controlled through such policy. In the fast changing scenario of economic, social order with scientific development spawns innumerable situations which Legislature possibly could not foresee, so delegatee is entrusted with power to meet such exigencies within the in built check or guidance and in the present case to be within the declared policy. So delegatee has to exercise its powers within this controlled path to subserve the policy and to achieve the objectives of the Act. A situation may arise, in some cases where strict adherence to any provision of the statute or rules may result in great hardship, in a given situation, where exercise of such power of exemption is to remove this hardship without materially effecting the policy of the Act, viz., development in the present case then such exercise of power would be covered under it. All situation cannot be culled out which has to be judiciously judged and exercised, to meet any such great hardshi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formity with development plan, Section 48 refers to the restrictions on building and lands in the area of the planning authority. Each of them contributes for subserving the policy of the Act, and clearly declares the purpose of the Act. Hence Section 113 cannot be held to be unbridled, as Government has to exercise its power within this guideline. Hence we hold Section 113 to be valid." 41. Considering the scheme of the GPMC Act and the provisions contained therein, we observe that Chapter-II thereof pertains to Municipal Authorities having charge with the execution of the Act like Commissioner, Standing Committee, Councilor etc., whereas Chapter-IX provides for Municipal fund and other funds, whereas ChapterXI provides for Municipal taxation including property tax, Chapter-XII provides for drains and drainages, Chapter-XIII provides for water supply and Chapter-XIV provides for streets. Section244 prescribed regulations as to Sky-signs and advertisements and Section-245 provides for regulation and control of advertisement and Chapter-XXII provides for licenses and permits from Sections 372 to 386. Sections 372 to 375 provides for licensing of surveyors, architects, engineer, str ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision of Section 451 of the GPMC Act, it is clear that if the State Government is of the opinion that execution of any resolution or order of the Corporation for any of other Municipal Authority or officer subordinate thereto for doing of any act, which is about to be done or has been done for and on behalf of the Corporation is in contravention of excess of powers conferred by the GPMC Act or any other law for the time being in force or such action is likely to lead breach of the peace etc., then the State Government may by order in writing suspend the execution of order or prohibit doing of any such act. Therefore, even the sanction of the Corporation as provided under Sub-section-2 of Section 386 is subject to the control of the State Government as provided under Section 451 of the GPMC Act. In view of the above, it cannot be said that there is excessive delegation by legislature upon the Commissioner for determination of the levy of the fees under Sub-section-2 of Section 386 of the GPMC Act. 43. The submissions of the petitioners that license fees in question is tax in garb of fees is concerned, the issue is no more res integra in view of the judgment of the learned Sing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. 47. As regards the distinction between a tax and a fee, it is argued in the first place on behalf of the respondent that a fee is something voluntary which a person has got to pay if he wants certain services from the Government; but there is no obligation on his part to seek such services and if he does not want the services, he can avoid the obligation. The example given is of a licence fee. If a man wants a licence that is entirely his own choice and then only he has to pay the fees, but not otherwise. We think that a careful examination will reveal that the element of compulsion or coerciveness is present in all kinds of imposition, though in different degrees and that it is not totally absent in fees. This, therefore, cannot be made the sole or even a material criterion for distinguishing a tax from fees. It is difficult, we think, to conceive of a tax ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would not be competent to do and extracts fees either heavy or moderate from that person in return for the privilege that is conferred. A most common illustration of this type of cases is furnished by the licence fees for motor vehicles. Here the costs incurred by the Government in maintaining an office or bureau for the granting of licences may be very small and the amount of imposition that is levied is based really not upon the costs incurred by the Government but upon the benefit that the individual receives. In such cases, according to all the writers on public finance, the tax element is predominant18, and if the money paid by licence holders goes for the upkeep of roads and other matters of general public utility, the licence fee cannot but be regarded as a tax. 49. In the other class of cases, the Government does some positive work for the benefit of persons and the money is taken as the return for the work done or services rendered. If the money thus paid is set apart and appropriated specifically for the performance of such work and is not merged in the public revenues for the benefit of the general public, it could be counted as fees and not a tax. There is really no g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... these collections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any co-relation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76 and in these circumstances the theory of a return or counter-payment or quid pro quo cannot have any possible application to this case. In our opinion, therefore, the High Court was right in holding that the contribution levied under Section 76 is a tax and not a fee and consequently it was beyond the power of the State Legislature to enact this provision. The above principles laid down by the 7 Judges Bench of the Supreme Court are in the context of the facts of the said case, wherein the Apex Court was called upon to decide the constitutional validity of the Madras Hindu Religious & Charitable Endowment Act, 1951 being ultra vires to Articles 19(1), 25, 26 and 27 of the Constitution of India. In this context, the Apex Court after analyzing the object of the State legislation examined the Constitutional validity of the provisions th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or quid pro quo cannot have any possible application to this case and it was held to be a tax but not a fee which can be regarded as sort of return for consideration of services rendered. It is categorically held by the Apex Court that when the Government grants permission or privilege to a person to do something which otherwise that person would not be competent to do, it extracts fees either heavy or moderate on that person in return for the privilege conferred but if the amount of imposition i.e. levy is based clearly not upon the cost incurred by the Government but upon the benefit that individual receives and if the license fees collected, the same cannot be but regarded as tax. The Apex Court therefore, has rendered the above decision as per the language of Section-76 of the Madras Act which was having some of the characteristic of the tax and imposition bears an analogy to income tax. Whereas in the facts of the present case, section 386(2) of the GPMC Act provides for levy of license fees for license to place advertising hoardings in private properties for license to be issued as per provisions of the GPMC Act and hence the same can never be considered as tax because t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... GPMC Act. We therefore, refrain from considering the submissions with regard to the alleged arbitrary and excessive license fees fixed by the respondents-Corporation. The petitioner if aggrieved by such fixation of license fees may take appropriate recourse in accordance with law by challenging the same before the State Government under the provisions of the GPMC Act. 47. In view of the foregoing reasons, these writ applications fail and are accordingly rejected subject to the right of the petitioners to challenge the quantum of license fees before the State Government as per the provisions of the GPMC Act in accordance with law. The respondent State Government is therefore, directed to consider such challenge if made by the petitioners without being influenced in any manner by what has been stated hereinabove and decide such challenge as expeditiously as possible. Rule is therefore, discharged in each of the petitions with no order as to costs. Civil Applications, if any, all stand disposed of. (J. B. PARDIWALA, J.) (BHARGAV D. KARIA, J.) FURTHER ORDER After the judgment is pronounced learned Senior Advocate Mr. Mihir Joshi for the petitioners makes a request to stay the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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