ANURAG BANSAL vs STATE OF U. P. - 2011 Supreme(All) 1216

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(All) 1216

[2011(5) ADJ 879 (LB)(FB)]
ALLAHABAD HIGH COURT
(Lucknow Bench)
(Full Bench)
BEFORE : F.I. REBELLO, C.J., DEVI PRASAD SINGH AND S.C.CHAURASIA, JJ.
ANURAG BANSAL ....Petitioner
Versus
STATE OF U.P. AND OTHERS .....Respondents
(Writ Petition Nos. 3336, 3054, 2534, 7128, 2716, 2394, 2846, 2709, 2710, 2714, 3070, 3938 and 8210 (M/B) of 2010, decided on 24th April, 2011)

Advocates:
Counsel :
Amit Bose for the Petitioner; C.S.C., Sashi Prakash Singh and Shailendra Singh Chauhan and J.N. Mathur for the Respondents.

Headnote:(A) U.P. Municipal Corporation Act, 1959—Sections 540, 172 to 199, 201 to 206, 219 to 221, 225, 227 and 306—Constitution of India, 1950—Article 243(Q)—Powers—State Government to frame Rules—Contained under Section 540—Are subject to other statutory provisions of Act, i.e., Sections 172 to 199, 201 to 206, 219 to 221, 225, 227 and 306 and also Article 243(Q)—As such, this power has to be exercised not in isolation, but only after taking into account these provisions—This power is not intended to ignore executive body of Corporation to take any decision or to pass resolutions relating to tax matters. [Paras 55 to 57, 59 to 64 and 67]
       (B) Interpretation of Statutes—Settled law—Every provision of Statute and meanings given to them be examined and entire Statute should be read as a whole—While interpreting Section 540 of U.P. Municipal Corporation Act, 1956, Court has to examine rights, duties, liabilities and other affairs of Corporation vis-a-vis State. [U.P. Municipal Corporation Act, 1959—Section 540]. [Paras 29 and 36]
       (C) Constitution of India, 1950—Article 243(Q)—Corporation or Municipal Corporation—As denied by Section 2(11-A) of U.P. Municipal Corporation Act, 1959—Is a body Corporate in view of Section 4, constituted under Article 243(Q)—It has to be constituted for urban area and is required to discharge its duties in accordance with statutory provisions—It has autonomy to some extent to manage its affairs within four corners of law. [Paras 39 and 44]
       (D) U.P. Municipal Corporation (Assessment and Collection of Tax on Advertisement) Rules, 2009—Rules 5, 9, 17, 19 and 26 to 28—Constitution of India—Article 243(Q)—U.P. Municipal Corporation Act, 1959—Sections 540, 172 to 199, 201 to 206, 219 to 221, 225, 227 and 306—Rules framed in exercise of powers under Section 540 by State Government—Are ultra vires to provisions of Act, framed without following procedure laid down in Sections 199 to 203, without taking recourse to Section 206 and provision requiring owner of building to face penal consequences is invalid and violative of Section 195—Plea that Rules 2009 are only directory and not mandatory—Not accepted by Full Bench—Rules do not fulfill aims and object of Article 243(Q) also—State Government has acted beyond its powers as it has acted in contravention of provisions of Act. [Paras 55 to 57, 59, 64, 67, 68, 81 to 84 and 86 to 89]

JUDGMENT

By the Court.—In pursuance to reference made by a Division Bench of this Court vide order dated 28.10.2010 passed in bunch of writ petitions, leading one of which is Purvanchal Advertising Association v. State of U.P., 2011(2) ADJ 161 (DB)(LB) instant Full Bench has been constituted.

2. The bunch of writ petitions have been filed by the advertising agencies challenging the vires of the Municipal Corporation (Assessment and Collection of Tax on Advertisement) Rules, 2009 (hereinafter referred to as the Rules) mainly on the ground that the Rules are ultra vires to the constitutional mandate enshrined under Article 19(1)(a) and 19 (1)(g) of the Constitution of India. Rule has been also impugned being framed in contravention of statutory provisions contained in the U.P. Municipal Corporation Act, 1959 (hereinafter referred to as the Act.).

3. While making reference vide order dated 28.10.2010, the Division Bench of this Court at Lucknow had shown its disagreement to a judgment of another Division Bench delivered at Allahabad whereby identical writ petition was dismissed. The case is in Taj Advertising and others v. State of U.P. and others, 2010(5) ADJ 272 (DB). It would be convenient to set out briefly at the outset the material facts on which the bunch of writ petitions were filed and the reference has been made to the larger Bench.

4. Petitioner No. 1 of Writ Petition No. 2716 (M/B) of 2010 is the advertiser having business of advertisement in various forms whereas the petitioner No. 2 is the Secretary and petitioner No. 3 is the President.

5. The State Government in pursuance to power conferred by Section 227 read with Section 192, 219, sub Section (1) of Section 540 and Section 550 of the Act and Section 21 of the U.P. General Clauses Act (hereinafter referred to as the General Clauses Act) and in super session of all the previous Rules and order with regard to advertisements had notified the impugned Rules on 27.2.2008 as required by sub Section (2) of Section 540 of the Act.

The Rule has been enforced from the date of publication in the Gazette and has been extended to every Municipal Corporation of Uttar Pradesh. A plain reading of the Rules shows that the purpose of the Rule is to impose ‘advertisement tax’ and provide the mode of recovery and initiate penal action in the event of contravention of Rules by the advertising agencies as well as other related persons.

6. Under the definition clause the word advertiser, advertising sign, tax have been defined which makes it abundantly clear that all advertisements made through advertising sign by the advertiser shall fall within the domain of Rules. The meaning with regard to word ‘tax’ is provided in clause (h) of sub-section (2) of Section 172 of the Act.

According to Rule 3, there shall be a Committee in every corporation to identify the proper and suitable sites for the advertisement or hoarding and to decide its size, height and aesthetic aspect under the Chairmanship of the Municipal Commissioner with other nine officers as its members. It provides that the application shall be invited by the Municipal Commissioner for granting permission on the sites identified by the Committee by advertising in at least two daily newspapers of repute. The advertisements and hoardings shall be approved only after the identification of the sites and recommendation of the Committee.

7. Under Rule 4 it has been provided that no person shall without written permission from the Municipal Commissioner previously obtained, erect, exhibit, display, stick any advertisement or any kind of information or picture. It further provides that no person owning or otherwise occupying any land or building within the time limits of the Corporation shall, without the written prior permission of the Municipal Corporation, erect, exhibit, display, stick, paste, write, draw or hand any advertisement or any part of such and or building nor shall permit any other person for the aforesaid.

8. Under Rule 5 applicat