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1977 Supreme(SC) 205
SUPREME COURT OF INDIA
Links Advertisers and Business Promoters, Appellant
Versus
Commr. Corporation of the City of Bangalore, Respondent.
Union of India, Intervener.
Civil Appeal No. 325 of 1976,
D/- 21-4-1977.
Advocates Appeared
Mr. V. S. Desai, Sr. Adv., (M/s. Sanjev Aggarwal and R. B. Datar, Advs. with him), for Appellant; M/s. S. S. Javali, Jagannath Shetty and B. P. Singh, Advs., for Respondent No. 1; M/s. S. N. Prasad and Girish Chandra, Advs., for Intervener.
B.P.SINGH, GIRISH CHANDRA, Jagannath Shetty, R.B.DATAR, S.M.PRASAD, S.S.JAVALI, Sanjev Aggarwal, V.S.DESAI
Headnote:
City of Bangalore Municipal Corporation Act, 1949 - Section 136 - Advertisements - Paying up tax - Case lie within narrow compass and point raised by counsel for appellant is one of first impression and undoubtedly requires serious consideration - Appellant is firm of advertising commercial goods and other items by putting up hoardings containing advertisements on properties taken on lease or license from various owners - Appellant also has been putting up hoardings on railway lands in compound of Bangalore Railway Station - In instant case court are only concerned with hoarding containing advertisements put up adjacent to railway compound fencing but within railway premises by being placed on girders affixed to earth - Fencing of railway compound is adjacent to and faces public street - It is also not disputed by parties that advertisements are put up at sufficient height so as to be clearly visible to and attract attention of members of general public passing through public street - Appellant has produced photographs of some of hoardings which demonstrate these facts – Held, These advertisements in question are displayed on hoardings standing close to cement fencing at outer mark of railway property - Cement railings are hardly about feet in height and advertisement boards are very much above railings - Public street to which advertisements are facing runs along cement railings with no other obstacle between advertisement boards and public view - Therefore it can reasonably be said that they are fronting public street - Court find ourselves in complete agreement with view taken by single Judge - Division Bench High Court however while upholding judgment of single Judge observed as follows In instant case court are not faced with any situation as one envisaged in second part of exemption clause relative to advertisement on wall or other property of railway frontage by street – Court are concerned herein with case of hoarding put up by and belonging to appellant and not railway - Hence it is plain that no exemption on that score could be claimed on behalf of appellant - High Court does not appear to have interpreted proviso correctly - View of High Court that proviso would only apply to advertisements of such hoardings whose ownership lies with Railway or which belong Railway is not borne out by of third proviso - In other words question of eligibility to tax is relatable not to ownership of hoarding but its sits - Even if hoarding does not belong to Railway but to some private party if it does not front street and is situated within Railway premises or within compound of railway premises it is clearly exempt - Court therefore do not approve of line of reasoning adopted by Division Bench - On close and careful inter predation therefore third proviso Act court are clearly of opinion that on facts proved in present case as hoardings containing advertisements were fronting public street and were clearly exposed to public view and members of public passing through street they are not covered by exemption contemplated by proviso and are therefore eligible to tax - Demand notice therefore served on appellant by Municipal Corporation for payment of tax is not legally erroneous - Appeal dismissed
Judgment
FAZAL ALI, J. - Whether hoardings containing advertisements fixed in the premises of a railway station fronting a public street are exigible to tax under the provisions of Section 136 of the City of Bangalore Municipal Corporation Act, 1949 (Act No. LXIX of 1949) - hereinafter referred to as the Act - is the substantial question of law involved in this appeal by certificate.
2. The facts of the case lie within a narrow compass and the point raised by counsel for the appellant is one of first impression and undoubtedly requires serious consideration. The appellant is a firm of advertising commercial goods and other items by putting up hoardings containing advertisements on properties taken on lease or licence from various owners. The appellant also has been putting up hoardings on railway lands in the compound of the Bangalore Railway Station. In the instant case, we are only concerned with the hoarding containing advertisements put up adjacent to the railway compound fencing but within the railway premises by being placed on girders affixed to the earth. The fencing of the railway compound is adjacent to and faces a public street. It is also not disputed by the parties that the advertisements are put up at sufficient height so as to be clearly visible to and attract the attention of the members of the general public passing through the public street. The appellant has produced photographs of some of the hoardings which demonstrate these facts.
3. The Municipal Corporation of the City of Bangalore being of the opinion that the hoardings containing advertisements put up by the appellant were exigible to tax issued a demand notice dated March 7, 1973 calling upon the appellant to pay a sum of Rs. 5871-83 as the advertisement tax including arrears. The appellant represented to the Municipal authorities that as the hoardings containing advertisements were situate within the railway premises they squarely fell within Cl. (e) of the third proviso to S. 136 of the Act. The Municipal Corporation did not accept the contention of the appellant and pressed for paying up the tax.
4. The appellant then filed a writ petition before the High Court of Karnataka praying that the order of the Corporation demanding payment of tax be quashed, because the advertisements were clearly exempt from tax by virtue of the aforesaid proviso. The writ petition was in the first instance heard by a single Judge who by his order dated April 4, 1974 overruled the contention of the appellant and dismissed the petition. Thereupon the appellant filed an appeal under the Letters Patent before a Division Bench which also affirmed the order of the single judge, though on different grounds. The Division Bench later on being approached under Art. 133 of the Constitution granted a certificate of fitness and hence this appeal before us.
5. The only point that has been raised before us is that the hoardings containing advertisements squarely fall within the exemption contained in the third proviso to S. 136 of the Act and, therefore, they are not exigible to tax. The High Court found that as the advertisements did not belong to the Railway nor for the purpose of the railway, the proviso in question did not apply and the single Judge was right in holding that the advertisements were exigible to tax. The single Judge had, however, found that as the advertisements were much above the railings which faced the public street, the proviso had no application.
6. Before examining the view of the High Court, it may be necessary to extract the relevant portions of the statute which we are called upon to interpret. The relevant part of S. 136 of the Act runs thus:
"Every person who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private; shall pay on every advertisement which is so erected, exhibited, fixed, reta
