TMI Blog2016 (9) TMI 715X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of advertisement tax were superseded. New set of Rules, which have been struck down, would not render revival of supersession already done by Rule framing authority and that be so in our view Rules, 2005 shall not revive. Sri Rahul Sahai, learned counsel appearing for respondent-Nagar Nigam, when confronted with aforesaid authorities, could not place any authority before us so as to pursue to take a different view in the matter.The authorities, therefore, committed a manifest error in proceeding to demand advertisement tax under Rules, 2005 on the assumption that after judgment in Anurag Bansal (supra) striking down Rules, 2009, earlier Rules, 2005 would stand revive. This is neither legally permissible nor otherwise valid. In view of above, all these writ petitions are allowed. The orders and demand notices impugned in all these writ petitions are hereby quashed. It is held that respondents shall not be entitled to realize any amount under orders impugned in this writ petition, which are quashed by this judgment. If any, amount has been deposited by petitioners pursuant to impugned orders or realized by respondents by coercive method or otherwise, same shall be refu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Municipal Corporation Act, 1959 (hereinafter referred to as the Act, 1959 ) framed bye-laws/ Rules 2005 for imposing tax on advertisement, in the manner other than publication in newspapers, within territorial jurisdiction of NNA. Rules, 2005 contemplated a licence for the purpose of such advertisement and rate of tax payable by such person. 6. Subsequently, a new set of Rules, namely, U.P. Municipal Corporation (Assessment and Collection of Tax On Advertisement) Rules, 2009 (hereinafter referred to as the Rules, 2009 ) have been framed applicable to every Municipal Corporation in State of U.P. and aforesaid Rules clearly provide that same are being promulgated in supersession of all the previous rules and orders issued in this behalf. These Rules were published in notification dated 24.12.2009 and came into effect from the date of their publication in gazette. It is admitted case of the parties that on promulgation of Rules, 2009, the Rules, 2005 stood superseded. 7. Pursuant thereto NNA issued a demand notice dated 18.11.2010 for the year 2010-11 demanding advertisement tax to the tune of ₹ 5327666/- (in Writ Petition No. 622 of 2015), which was objected by petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral set of Rules applicable to all Municipal Corporations governed by Act, 1959. Rules, 2009 were published in supersession of all previous rules and orders issued in this behalf. Operative part of Rules, 2009, reads as under: In exercise of powers under section 227 read with section 192 and 219, sub-section (1) of section 540 and section 550 of the Uttar Pradesh Municipal Corporation Act, 1959 (Uttar Pradesh Act No. II of 1959) and section 21 of the Uttar Pradesh General Clause Act (Act No. 1 of 1904) and in super session of all the previous rules and orders issued in this behalf, the Governor, after considering the objections and suggestions received in pursuance of order published in Government notification no- 561/IX-9-2008-49Ja/2001, dated February 27, 2008 required by sub-section (2) of section 540 of the said Act of 1959, is pleased to make the following rules: (emphasis added) 13. Rules, 2009 have been promulgated in a way that firstly rule framing authority has declared that notification dated 24.10.2009 is being issued in exercise of powers under Section 227 read with 192, 219, 540(1) and 550 of Act, 1959 and Section 21 of U.P. General Clauses Act, 1904 (herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld pay the tax, etc. can be said to be unreasonable and unfair to be adhered to and are liable to be struck down? (8)Whether vesting of all the powers (as discussed in this order in relation to putting of hoardings and as given under the Rules, 2009) on private properties, in special areas etc. and in 'no hoarding zones' into the sole authority of the Municipal Commissioner, that too with no guidelines and without providing any superior forum of appeal/revision against his decision, suffers from the vice of excessive delegation and in any case absolutely arbitrary and unreasonable? 16. Full Bench, however, decided to deliberate only questions no. 1, 2, 6 and 7 and answered the same as under: (1) State Government has got legislative competence to frame rules but subject to fulfilment of necessary conditions and procedure prescribed under Chapter IX of the Act (supra). (2) Government could not have framed impugned rules for all the Municipal Corporations without taking recourse of not only Section 206 of the Act but other statutory provisions contained in Chapter IX of the Act. (6) Impugned Rules 2009 is invalid and ultra vires to the Act being frame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed provision postulating a different provision is set aside, the original process of selection and appointment under unamended provision would revive. 20. When a principal legislation or delegated legislation is struck down being violative of fundamental rights or want of legislation, it is void ab initio. Sometimes when legislation is in the teeth of prohibition under Constitution, the Courts have evolved doctrine of still-born . In N.P.V. Sundara Vs. State of Andhra Pradesh AIR 1958 SC 468 doctrine of still-born piece of legislation was considered and it was held: If a law is on a field not within the domain of the legislature, it is absolutely null and void, and a subsequent cession of that field to the legislature will not have the effect to breathing life into what was a still-born piece of legislation and a fresh legislation on the subject would be requisite. But if the law is in respect of a matter assigned to the legislature but its provisions disregard constitutional prohibitions, though the law would be unenforceable by reason of those prohibitions, when once they are removed, the law will become effective without re-enactment. (emphasis added) 21. A sligh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 reiterated the above view in para 22 of report. It says: ...it must be held that unlike a law covered by Art. 13(1) which was valid when made, the law made in contravention of the prohibition contained in Art. 13(2) is a still-born law either wholly or partially depending upon the extent of the contravention. Such a law is dead from the beginning and there can be no question of its revival under the doctrine of eclipse. (emphasis added) 25. This has been followed in Rakesh Vs. Dr. JT 2005 (12) SC 1. 26. In the present case power of State to make Rules under Act, 1959 was not doubted by Court in Anurag Bansal (supra) but for disregard of procedural provisions, imposition of advertisement tax by State Government by Rules, 2009 was held invalid. Thus Rules, 2009 were struck down since procedure to make Rule which was mandatory, not followed. To our mind it is not a case where doctrine of still-born would be attracted. Rules, 2009 have not been struck down for want of legislative competence but they have been held invalid for the reason that mandatory procedure prescribed in statute has not been followed and, therefore, here doctrine of still-born and consequenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itutional. The Court struck down carry forward rule of 1955. 29. In B.N. Tiwari (supra) petitioner argued before Supreme Court that carry forward rule of 1955 was struck down and 1952 rule having already ceased to exist by substitution of 1955 Rule, hence there was no carry forward rule either of 1952 or 1955. In alternative it was argued that if 1952 Carry Forward Rule still continue, that is also arbitrary. Court considered three questions as under: (1) Whether Carry Forward Rule of 1952 can still be said to exist? (2) Whether Carry Forward Rule of 1952 if it is still exist is bad for the same reason as the Carry Forward Rule of 1955 in the light of judgment in T. Devadasan (supra). (3) Whether petitioner-B.N. Tiwari would be entitled to appointment even if Carry Forward Rule, 1952 does not exist? 30. Answering first question, Court said that in T. Devadasan (supra) Carry Forward Rule as modified in 1955 was declared invalid. Court did not say that it will result in revival of 1952 Rule. Further declaration of 1955 Rule as invalid would not mean that the Court said that 1952 Rule must be deemed to exist or revived because of declaration of 1955 Rule as invali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.1992 which caused said amendment clearly provides that amendment Rules, 1992 shall remain in force w.e.f. 01.10.1991 to 30.09.1992. Therefore, effect of amendment of rules was only one year. However, Rule 2 whereby amendment was caused, said that for the rules setup in Column 1, rules set out in Column 2 shall be substituted. After 30.09.1992, Cane Commissioner issued a circular that now old Rule 49 has revived. This was challenged and argument was raised that old Rule 49 having already been substituted without, any reservation, it would not revive after amended rule also become inoperative after 30.09.1992. Court considered the question, once old rule has been deleted, repealed or substituted by new rule, whether old rule would revive when substituted rule cease to be operative and it was answered in negative. However, in para 15 of judgment, Court said, that it would have been a different case where a subsequent law which modified earlier low held to be void. In such case, earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that legislature lacked competence to enact a law, still amends existing law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e dealing with the effect of striking down of Constitutional amendment and legislative enactment through a process of judicial review. 36. In India Tobacco Co. Ltd. vs. CTO, 1975(3) SCC 512 the effect and meaning of repeal was considered. Court said that repeal connotes abrogation or obliteration of one statute by another from statute book completely as if it had never been passed. When an Act is repealed, it must be considered (except as to transactions past and closed) as if it had never existed. It said: Repeal is not a matter of mere from but one of substance, depending upon the intention of the Legislature. If the intention, indicated expressly or by necessary implication in the subsequent statute, was to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. 37. Court further observed that broadly speaking, principal object of a repealing and amending Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the Corporation. 42. Thus the power of State Government to abolish or modify a tax imposed by Government has validly been recognized but advertisement tax imposed by Rules, 2009 by State Government has been struck down for not complying with Section 206 of Act, 1959 and also without following the provisions of Sections 199 and 203 of Act, 1959. Thus aforesaid judgment in Anurag Bansal (supra) has nowhere declared that Rules, 2009, in so far as in initial part of notification, supersedes existing rules and orders, lacks authority and that part will not be operated. Legislative intention is clear that existing rules and orders in respect of advertisement tax were superseded. New set of Rules, which have been struck down, would not render revival of supersession already done by Rule framing authority and that be so in our view Rules, 2005 shall not revive. 43. Sri Rahul Sahai, learned counsel appearing for respondent-Nagar Nigam, when confronted with aforesaid authorities, could not place any authority before us so as to pursue to take a different view in the matter. 44. The authorities, therefore, committed a manifest error in proceeding to demand advertisement tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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