KARNATAKA HIGH COURT
*R. P. Sethi, C. J., K. R. Prasad Rao, J.
Ameya Presence Marketing (M/s.) v. Bangalore City Corporation and Another
W. A. No. 4733 of 1997 C. W. No. 5147, 4804, 4803, 4883, 4733, 5864, 4924-26, 3265, C/W 656 of 1998
1. All the appellants herein are running advertising agencies which are stated to be registered with the respondent - corporation. They allege to have filed applications before the 2nd respondent seeking permission to erect hoardings at different places in the City. As, despite receipt of the applications and the expiry of the statutory period, no order was passed, they filed petitions in this Court for issuance of directions to the respondent Corporation not to remove the hoardings erected by them on the ground that they be deemed to have permission in terms of the provisions of S. 443 (10) of the Karnataka Municipal Corporations Act, 1976 ('Act' for short). The writ petitions were dismissed by the learned single Judge vide the orders impugned in these appeals holding that the deemed provisions under S. 443 (10) of the Act were not applicable in view of the mandatory provisions made under S.134 and S.135 of the Act providing for tax and seeking of written permission.
2. It is contended on behalf of the appellants that the learned single Judge was not justified in holding that the provisions of the deemed permission in terms of S. 443 (10) of the Act were not applicable in the case. As the statutory authority under the Act had failed to perform its statutory obligation to communicate the orders within the statutory period, the right of deemed permission is claimed to have accrued in favour of the appellants.
3. In order to appreciate the rival contentions of the parties, it is necessary to have a reference to some of the relevant provisions of the Act. S.134 of the Act provides that every person who erects, exhibits, fixes or retains upon or over any land, building, wall or structure any advertisement or who displays any advertisement for public view in any manner whatsoever in any place whether public or private, shall pay a tax calculated at such rates and in such manner and subject to such exemptions, as the Corporation may, with the approval of the Government, by resolution determine. S.135 of the Act provides :
"Prohibition of advertisements without written permission of Commissioner :
1. No advertisement shall, after the levy of the tax under S. 134 has been determined upon by the Corporation, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure within the city or shall be displayed in any manner whatsoever in any place without the written permission of the Commissioner.
2. The Commissioner shall not grant such permission if -
(i) the advertisement contravenes any bye - law made by the Corporation; or
(ii) the tax, if any, due in respect of the advertisement has not been paid.
3. Subject to the provisions of sub-section (2), in the case of an advertisement liable to the advertisement tax, the Commissioner shall grant permission for the period to which the payment of the tax relates and no fee shall be charged in respect of such permission :
Provided that the provisions of this section shall not apply to any advertisement erected, exhibited, fixed or retained on the premises of a railway relating to the business of a railway."
Sub-section (10) of S. 443 provides :
The acceptance by the Corporation of the prepayment of the fee for a licence or permission or for registration shall not entitle the person making such prepayment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration, but an applicant for the renewal of a licence or permission or registration, shall until communication of orders on his application, be entitled to act as if the licence or permission or registration had been renewed; and save as otherwise specially provided in this Act, if orders on an application, for licence or permission or for registration are not communicated to the applicant within forty - five days after the receipt of the application by the Commissioner, the application shall be deemed to
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