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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, BHARGAV D. KARIA, JJ.
Selvel Media Services Private Limited – Appellant
Versus
The Municipal Corporation Of The City Of Ahmedabad – Respondent
R/SPECIAL CIVIL APPLICATION NO. 4538 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 2603 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 1612 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 2579 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 3082 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 4539 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4540 of 2019 With CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4540 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4585 of 2019 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 With 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 APPLICATION NO. 6349 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8032 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8030 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8028 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8870 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8867 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8868 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8914 of 2019 With CIVIL APPLICATION (FOR ORDERS) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 8914 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8869 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8929 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 8931 of 2019 With R/MISC. CIVIL APPLICATION NO. 694 of 2019 In SPECIAL CIVIL APPLICATION NO. 6352 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 9731 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 11226 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 13162 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 12998 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 12994 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 12990 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 13156 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 13203 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 13204 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 13159 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22490 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22489 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22486 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22483 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22491 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 22484 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4629 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 4631 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 4656 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9429 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9478 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9480 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9481 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9544 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9543 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9537 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9538 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9208 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9222 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9664 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10081 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10083 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10087 of 2020 With R/SPECIAL CIVIL APPLICATION 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 R/SPECIAL CIVIL APPLICATION NO. 12697 of 2020
Decided on : 20-10-2020
Constitution of India, 1950 - Articles 226 and 227 - Gujarat Provincial Municipal Corporation Act, 1949 - Section 386(2) - Quantum of the licence fees - private property is “fee” and not “tax” - Amendment of Constitution - Introduction of GST - Standing Committee - There is a consistent view of Apex Court right from 1954 till 2018 with regard to the concept of imposition of tax and levy of fees – Court view upon careful consideration of all decisions relied upon by the respondents that it is not correct to submit that there has been a sea change in the approach of the Apex Court. The dictum of law as laid in the case of Commissioner, Hindu Religious Endowments (Supra) is not at all diluted but on the contrary the same is reiterated and each case has been decided on the basis of its own facts.
Fact of thecase: Petitioners have challenged resolution passed by Standing Committee of the respondent Corporation approving the revised rates of license fees - Petitioners also seek a declaration that after introduction of GST with effect from 1.7.2017 in light of 101st amendment of Constitution, respondents cannot collect any tax on hoardings of petitioners in the private properties in Ahmedabad city and consequently any fees for license for the advertisements on hoardings in the private properties in Ahmedabad city - Petitioners also seeks a declaration that section 386(2) of Act, 1949 is ultra vires the Constitution and more particularly, Articles 14 and 243X thereof.
Findings of the court: These writ applications fail and are accordingly rejected subject to the right of the petitioners to challenge the quantum of license fees before State Government as per provisions of the GPMC Act in accordance with law - Respondent State Government is therefore, directed to consider such challenge if made by 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 - Petitioners are paying the licence fees for the advertisement hoardings in privately owned properties since last more than 20 years and further when determination with regard to quantum of the licence fees is left to the State Government, request made by the learned Senior Advocate for the continuation of the interim relief granted earlier is rejected –Directions issued.
Result: Civil Applications disposed of.
JUDGMENT :
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Rule returnable forthwith. The learned advocate Mr. Ankit Shah waives service of notice of rule on behalf of the respondent nos.5 and 6. The learned Assistant Government Pleaders Mr.Chintan Dave, Mr. Soaham Joshi and Mr.Vinay Vishen waives service of notice of rule for the respondent nos.3 and 4. The learned advocate Mr. Satyam Chhaya waives service of notice of rule on behalf of the respondent nos.1 and 2 and the learned advocate Mr. H.S. Munshaw waives service of notice of rule on behalf of the respective respondent -Municipality.
2. With the consent of the learned advocates for the respective parties this group of petitions is taken-up for final hearing. As common questions of the law and fact arise in this batch of petitions, all these petitions were heard analogously and are decided and disposed of together by this common judgment and order. For the sake of convenience, the Special Civil Application no.4538 of 2019 is treated as the lead matter.
3. By this petition under the Articles 226 and 227 of the Constitution of India, the petitioner has challenged the Resolution no.928 dated 28th November 2018 and the Resolution dated 24th December 2018 passed by the Standing Committee of the respondent - Ahmedabad Municipal Corporation (for short “the AMC”) approving the revised rates of license fees for the advertising hoardings in private properties.
4. The petitioner has also sought declaration that after the introduction of the Goods and Service Tax (for short “the GST”) with effect from 1st July 2017 in light of the 101st Amendment of the Constitution, the respondent Corporation cannot collect any tax on advertisement hoardings in the private properties and consequently cannot collect any license fees in garb of tax for the advertisement hoardings in the private properties.
5. The petitioner has also challenged the constitutional validity of the Section 386(2) of the Gujarat Provincial Municipal Corporation Act, 1949 (for short “the GPMC Act”) and sought declaration that the said provision is ultra vires to the Article 243X of the Constitution of India.
FACTS :-
6. The controversy arising in this batch of petitions with regard to determination of the license fees on the advertisement hoardings in the private properties of the respective Municipal Corporation has a checkered history:-
(ii) From 1992 till 1997, the license fee rate was revised to Rs.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 Rs.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 Rs.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 Rs.1.5 Lakh for 3 years and to revise the license fee on the basis of the rates offered by the tenderer for the nearby tender sites as under :-
(A) The privately owned sites, which are within the distance of 80 meters from the road junction such sites would carry license fees at the rate of 16% of the amount offered for the tender site.
(B) Whereas, the privately owned sites, which are situated at the distance of more than 80 meters from the road junction, the license fees will be charged at the rate of 8% of th
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