TMI Blog2010 (10) TMI 1193X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Glow-signs affixed above the shops and at other places which are not the shops of the Nagar Palika Parishads/Nagar Panchayats nor such Hoardings/Signboards and Glow-signs stand affixed at any public place or land belonging to the State Government. The respondents Nagar Palika Parishads/Nagar Panchayats have awarded separate contracts to the Astha Vigyapan Agency, LDA Colony, Kanpur Road, Lucknow, Tiranga Vigyapan Agency, 4/9 Vaibhav Khand, Gomtinagar, Lucknow, Raja Vigyapan Agency, New Hyderabad, Lucknow and New Glazy Advertising, Maya Ram Ka Hata, Maqboolganj, Lucknow in all the aforementioned writ petitions for realization of tax from the petitioners. By different orders the Advertisement Agencies have been given contracts for a period of three years. A preliminary objection has been raised by Shri Manu Saxena regarding maintainability of the writ petitions at Lucknow, against the Astha Vigyapan Agency, LDA Colony, Kanpur Road, Lucknow, Tiranga Vigyapan Agency, 4/9 Vaibhav Khand, Gomtinagar, Lucknow, Raja Vigyapan Agency, New Hyderabad, Lucknow and New Glazy Advertising, Maya Ram Ka Hata, Maqboolganj, Lucknow, they being private concerns. Further, argument is that most o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondents are served but only few of them have chosen to file counter affidavits . The dispute is one and the same, therefore, with the consent of the parties counsel we have proceeded to hear the arguments and decide writ petitions. It is also pertinent to mention here that out of so many respondents, only few respondents have framed bye-laws in respect of imposition of Advertisement Tax on Hoardings/Signboards and Glow-signs affixed to over the shops which carry on the business of the petitioners' companies. The main thrust of challenge to the imposition, collection and realization of Advertisement Tax on the advertisement aforesaid is that there is no provision under the U.P. Municipalities Act, 1916 which governs the Nagar Palika Parishads/Nagar Panchayats either to impose such a tax or to collect it nor there is any such power to frame any such bye-law. That being so, the entire action of the respondents is without authority and cannot be sustained in law. Section 128 of the U.P. Municipalities Act, 1916 is the provision which confers powers upon the Municipalities to impose tax. No tax can be imposed/ levied or collected or realised by the Municipalities namely; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the municipality as forms part of the local area of any Improvement Trust created under Section 3 of the U.P.Town Improvement Act, 1919 (U.P.Act No.VIII of 1919]; Provided also that no tax under clause (iv) of sub-section (1) shall be levied in respect of any motor vehicle. (3) Nothing in this section shall authorise the imposition of any tax which the [State Legislature] has no power to impose in the [State] under [the Constitution]. Provided that a [Municipality] which immediately before the commencement of the Constitution was lawfully levying any such tax under the section as then in force, may continue to levy that tax until provision to be contrary is made by Parliament. A perusal of the aforesaid provision regarding 'Municipal taxation' clearly reveals that the Nagar Palika Parishads/Nagar Panchayats can impose Tax only with respect to the items enumerated therein and not beyond the items specified therein. Section 128 does not any where provide that the Advertisement Tax can be imposed, collected or realised by the Nagar Palika Parishads/Nagar Panchayats on Hoardings/Signboards and Glow-signs which are affixed/placed on a private shop. Therefore, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. Needless to say that Section 128 of the U.P.Municipalities Act, 1916 does not confer power for levying ,imposing or collection of Advertisement Tax on Hoardings/Signboards and Glow-signs affixed above the private shops and properties. Learned counsel for the respondents next submitted that in view of Section 293-A of the U.P.Municipalities Act,1916 the aforesaid Advertisement Tax is not a tax but a fee imposed by the Nagar Palika Parishads/Nagar Panchayats which is permissible under the law. Even if, for arguments sake, we accept the plea of the learned counsel for the respondents that the aforesaid tax is actually a 'fee' imposed, question again arises whether any such fee can be levied by the Nagar Palika Parishads/Nagar Panchayats in respect of the private shops and private property not belonging to the Nagar Palika Parishads/Nagar Panchayats where these advertisements through Hoardings/Signboards and Glow-signs are affixed for advertising the products of the petitioners-company. Sections 293 and 293-A read as under :- 293. Fees for use, otherwise than under a lease of municipal property.--(1) The [Municipality] may charge fees to be fixed by bye-law or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to realise the licence fee and consequently, the Nagar Palika Parishads/Nagar Panchayats would not be entitled to realise the licence-fee. For putting Hoardings/Signboards and Glow-signs over the private shops, no permission is required to be taken from the Nagar Palika Parishads/Nagar Panchayats. That being the position, the question of realisation of licence fee would never arise. We therefore, conclude that the Nagar Palika Parishads/Nagar Panchayats-respondents have no authority to impose tax on the Hoardings/Signboards and Glow-signs affixed/placed over the private shops or other private places by the Company for advertising their products and where the company business is carried on. In view of the fact that we have held that the imposition of tax aforesaid is illegal being without authority, the question whether it can be recovered through the private Agencies does not require any answer but in view of the judgement of the Apex Court in ICICI Bank Versus Prakash Kaur {2007 (2) SCC 711} such a practice cannot be appreciated. The other plea of the respondents is that unless the Nagar Palika Parishads if, have framed the bye-laws, imposing such a tax, they can reali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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