By the Court.—This is a bunch of writ petitions filed by the advertising agencies challenging the vires of the U.P. Municipal Corporation (Assessment and Collection of Tax on Advertisement) Rules, 2009, hereinafter referred to as the Rules, 2009, mainly on the ground that they are ultra vires to the provisions of Articles 14, 19(1) (a) and 19(1)(g) of the Constitution of India. The Rules, 2009 are also being challenged on the ground that the State Government has acted beyond the rule making powers conferred under Sections 192, 219, 227 and 540 of the Act.

2. A further prayer has been made that enforcement of these rules be restrained permanently and that the respondents be also restrained from refusing permission to the advertising agencies for setting up roof top hoardings, ground hoardings or pole kiosks on the ground that such hoardings are beyond the permissible height mentioned in the impugned rules.

3. Various pleas have been raised in one or the other petition of this bunch and likewise, various reliefs have been claimed, though they are substantially the same.

4. The State represented by Sri H.P.Srivastava, learned Additional Chief Standing Counsel, produced before us a Division Bench judgment of this Court passed in Civil Misc. Writ Petition No. 373 of 2010 in re Taj Advertising and others v. State of U.P. and others, alongwith a connected writ petition, where challenge to the Rules, 2009 was considered and the writ petitions have been dismissed. This order was passed on 28.4.2010.

5. Learned counsel for the petitioners submitted that the aforesaid judgment passed in the case of Taj Advertising (supra) is per incurium and that it cannot bind this Court from passing an independent order for the reasons, (I) that the relevant provisions of the Act, namely Section 172(2) of the U.P. Municipal Corporation Act, 1959, hereafter referred to as the Act, and other provisions of the Act have not been considered in context with the issue involved; besides, the provisions of Article 19(1)(a) of the Constitution have been totally ignored; and (ii) the legislative competence of the State Government to frame the said Rules, a plea which has been specifically taken in the writ petitions, was not considered at all at Allahabad, as is evident from the recitals made in the judgment that there was no challenge to the legislative competence of the State Government to frame the Rules.

6. Analysing the judgment of the Allahabad High Court, learned counsel for the petitioners have formulated the following points which were raised before the Division Bench at Allahabad:

(i)The licence for advertising cannot be given by public auction;

(ii)The impugned rules tend to create a monopoly in favour of big advertising companies and would result in driving out small advertisers like the petitioners;

(iii)The requirement of the owner of the building, where the advertisement is to be set up, to give an undertaking that in the event of default by the advertising company/firm to pay the tax, the owner of the building concerned would pay the tax, is unreasonable and unfair;

(iv)The impugned rules are violative of the fundamental right of the advertisers to carry on the business of advertising; and

(v)The provisions of Sections 199 to 203 of the Act have not been followed while framing the impugned rules and as such the impugned rules are invalid.

The submission is that the said judgment is not binding upon this Court as the petitions here have raised additional questions, and as a matter of fact, such questions were not raised before the High Court at Allahabad nor they were considered. Further plea is that even on the points considered, the findings in the aforesaid judgment require reconsideration as they do not take into account the legality of the issues raised and without giving any finding about the competence of the State Government to make such rules, their validity has been upheld.

7. Learned counsel for the petitioners have summarized th