TMI Blog2020 (10) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... is obligated to provide for such a statute and on that ground existing laws could be stuck down only on that premise - Section 386(2) of the GPMC Act is in operation since 1949 and the challenge thereto being ultra vires to the Articles of the Constitution would result in detriment to the public interest since the amount of license fee being collected by the Municipal Corporation along with the other amount collected by way of tax or otherwise are always being utilized for the benefit of people at large. The Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provisions in the larger interests of the public. An attempt has been made only to set out some of the basic consideration to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds for cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 86(2) of the GPMC Act cannot be said to be inconsistent with any of the provision of part-IX of Constitution of India and therefore, Article 243ZF would not come into play in the facts of the case. The submissions of the petitioner that provision of Sub-section-2 of Section 386 suffers from excessive delegation and provided for unguided and uncanalised power to the Commissioner as there is no procedure for limits for imposition of fees in absence of any guideline is concerned, it is settled position of law that the guidelines are required to be prescribed by legislature in case where there is levy of tax and not in case where there is imposition of fees. If the State Government is of the opinion that execution of any resolution or order of the Corporation for any of other Municipal Authority or officer subordinate thereto for doing of any act, which is about to be done or has been done for and on behalf of the Corporation is in contravention of excess of powers conferred by the GPMC Act or any other law for the time being in force or such action is likely to lead breach of the peace etc., then the State Government may by order in writing suspend the execution of order or pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4585 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4585 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4564 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4564 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4579 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4579 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 4554 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 4554 of 2019 R/SPECIAL CIVIL APPLICATION NO. 6206 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6205 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6352 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6360 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6358 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6346 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6350 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIAL CIVIL APPLICATION NO. 6350 of 2019 With R/SPECIAL CIVIL APPLICATION NO. 6349 of 2019 With MISC. CIVIL APPLICATION (FOR BREACH OF ORDER) NO. 1 of 2019 In R/SPECIA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIVIL APPLICATION NO. 10088 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10723 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10724 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10730 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10131 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10732 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10733 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10737 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10739 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10745 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10747 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10781 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10848 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10974 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 10977 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12077 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12154 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12155 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12156 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12158 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12159 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12293 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 12353 of 2020 With R/SPECIAL CIVIL APPLICATION NO. 9438 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the private properties of the respective Municipal Corporation has a checkered history:- (i) Before 1992 the license fee on the advertisement hoardings in private properties was charged at the rate of around ₹ 100 per sq. meter per year. (ii) From 1992 till 1997, the license fee rate was revised to ₹ 200 per sq. meter per year. (iii) On 26th February 1997, the Standing Committee of the AMC passed a resolution increasing the license fee to ₹ 350/- per sq. meter per year irrespective of the location of the advertisement hoarding in private property. (iv) The General Board of the AMC passed a resolution on 29th March 1997 approving the Resolution of the Standing Committee dated 26th February 1997. (v) The AMC passed a Resolution no.345 dated 29th June 2000 in which it was decided that there would be no separate property taxes levied and the license fees would be inclusive of all kinds of Municipal Taxes charged by the AMC. (vi) From 1st April 2004, the license fee was increased on adhoc basis to ₹ 455/- per sq. meter per year. (vii) The Standing Committee of the AMC passed a resolution dated 4th December 2004, whereby it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e rates mentioned in the interim arrangement as per the order dated 11th August 2005 passed by the learned Single Judge in SCA no.12603 of 2005. (xiii) On 15th May 2012, during the pendency of the LPA, the petitioner association addressed a letter to the AMC and intimated that without prejudice, the association was agreeable with the rates suggested by the AMC in the meetings held on 28th July 2011 and 22nd September 2011 for enhancement of 10% after the next five years and as such increased license fee would remain static for five years and thereafter it would be enhanced by 10% every year. (xiv) In light of the above communication of the association, as well as, the consequent consensus arrived at between the parties, the Standing Committee of AMC passed a Resolution no.431 on 7th June 2012 proposing to revise the license fees as per the schedule of fees prescribing different rates as per the different areas. For example, license fee for East zone and West zone was fixed at the rate of ₹ 500/- per sq. meter per year, whereas in Central Zone, it was fixed at the rate of ₹ 715/- per sq. meter per year. (xv) The General Board of the AMC by Resolution no.66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter dated 17th November 2018 of the Commissioner. (xxii) The General Board of the Corporation by the Resolution no.1075 dated 24th December 2018 confirmed the sanction granted by the Standing Committee for the enhanced rate of the license fees for the advertisement hoardings in privately owned properties. (xxiii) The Outdoor Advertisement Owners' Association made a representation on 9th January 2019 raising objections. (xxiv) Being aggrieved by the increase in the license fees, the petitioners along with others approached this Court by way of filing this batch of petitions. The petitioner of SCA no.4583 of 2019, which is treated as the lead matter, has made the following prayers. (A) declare that after the introduction of GST with effect from 01.07.2017 in light of the 101st Amendment of the Constitution, the Respondents cannot collect any tax on the hoardings of the Petitioner in the private properties in Ahmedabad City and consequently any fees for the license for the hoardings in the private properties in Ahmedabad city. (AA)declare that Section 386(2) of the GPMC Act is ultra vires the Constitution of India particularly Articles 14 and 243X of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the petitioners has tendered a draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith. 2. By these petitions, the petitioners have challenged resolution No.928 dated 28.11.2018 passed by the Standing Committee of the respondent Corporation approving the revised rates of license fees. The petitioners also seek a declaration that after the introduction of GST with effect from 1.7.2017 in the light of the 101st amendment of the Constitution, the respondents cannot collect any tax on hoardings of the petitioners in the private properties in Ahmedabad city and consequently any fees for the license for the advertisements on hoardings in the private properties in Ahmedabad city. The petitioners also seeks a declaration that section 386(2) of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as the GPMC Act ) is ultra vires the Constitution and more particularly, Articles 14 and 243X thereof. 3. Mr. Mihir Joshi and Mr. Mihir Thakore, Senior Advocates, learned counsel for the petitioners invited the attention of the court to the judgment and order dated 2.2.2006 passed by a learned Single Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion of the court was further invited to the provisions of Article 243X of the Constitution and more particularly, to clause (a) thereof which provides that the Legislature of a State may, by law authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified in the law. It was submitted that in the present case, subsection (2) of section 386 of the GPMC Act does not specify any limits and, therefore, the same is ultra vires the provisions of Article 243X of the Constitution. 7. Reference was made to Article 243ZF of the Constitution of India which provides that notwithstanding anything in that Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of that Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier, to submit that in this case the period of one year has elaps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and (d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law. 243ZF. Continuance of existing laws and Municipalities. Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e also unauthorized after enforcement of the GST Regime and (2) The license fees determined by the AMC and other corporations are exorbitant and therefore, prayer was made for refund of license fees paid so far. (A) Submissions for the contention that Section 386(2) of the GPMC Act being ultra vires to Article 14 of the Constitution of India. (i) It was submitted that the Section 386(2) of the GPMC Act provides for charging the license fees at such rates as shall from time to time be fixed by the Commissioner with the sanction of the Corporation and the same provides unguided and uncanalised legislative powers to the Commissioner and therefore, it suffers from excessive delegation and is violative of Article 14 of the Constitution of India. (ii) In support of the above submission, reliance was placed on the decision of the Apex Court in case of New Manek Chowk Spinning Waiving Mills Co. Ltd. Vs. Municipal Corporation of the City of Ahmedabad and others, reported in AIR (1967) SC 1801 and more particularly Para no.27 thereof which reads as under :- 27. It therefore appears to us that Rule 7(2) of the Rules framed under the Bombay Act of 1949 was beyon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nation of the rateable value of the land or building; (3) The decisions in Pragati Builders (supra) and that of the Full Bench of the High Court under appeal do not lay down the law correctly. Consequently, they are hereby over ruled. (4) The appeals are accordingly allowed and impugned judgments of the High Court are set aside. The impugned assessment orders are set aside and remitted to the assessing authority under the DMC Act for passing orders afresh in accordance with law and the observations made in the judgment. (iv) Relying on the above decisions, it was submitted that the provisions struck down in both the judgments were similar to Section 386(2) of the GPMC Act inasmuch as there is no legislative policy discernible from this or any other provisions for the objects and purposes of the GPMC Act. (v) It was submitted that there is no provision under the GPMC Act with regard to the functions to be performed by the Corporation in relation to advertisement and there are no provisions in the GPMC Act relating to the budget and accounts which mandate a levy commensurate to the amount and its collection by way of license fees. It was therefore, submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Madhya Pradesh High Court with regard to the Article 243X of the Constitution of India has observed as under:- 20.It is submitted by the learned counsel for the petitioners that if the aforesaid Article is scanned and scrutinized in proper perspective, it is absolutely vivid that the Legislature of the State has been authorised by the Constitution only to authorise the Municipalities for the purpose of levy, collection and appropriation of certain taxes but there is no other power bestowed on the Legislature. The Legislation has to be in accordance with concept of institution of self-governance but the Legislature by ordaining the procedure has transgressed its limits. 21. On a bare reading of the aforesaid Article, it is perceptible that Article 243-W clearly stipulates that subject to provisions of the Constitution, the Legislature of a State may, by law, endow the Municipalities with such powers. Thus the source of power rests within the State Legislature. True it is, there is some concept of selfgovernance but the Constitution has not empowered the Municipalities to impose taxes on its own as if it has the power to impose taxes by itself as that would have defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and unguided or not prescribing limits and obliges the legislature to specify the limits and procedure in the law itself if it makes such law and therefore, in absence of any limits and procedure prescribed in Section 386(2) of the GPMC Act, the same would be ultra vires to Article 243X of the Constitution of India. Reliance was placed on Article 243ZF of the Constitution of India which provides for continuance of existing laws and Municipalities in force in a State immediately before the commencement of the Constitution (seventy-fourth Amendment) Act, 1992 which is inconsistent until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. (ix) It was therefore, submitted that there cannot be any comparison between levy of tax and fees and the Corporation cannot levy fees without any powers of legislature. It was submitted that the AMC is recovering tax in the garb of fees which is without authority of law and violative of Article 265 of the Constitution of India. It was submitted that fee is compulsory exaction of money, which can be taken on two grounds, if it is authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts are likely to be seen by large number of commuters. If this purpose is not fulfilled, advertisers would have no interest in putting up their advertisements . (xii) It was further submitted that the judgment of the Single Judge does not refer to the Constitution Bench (7 Judges) Judgment of Supreme Court in case of Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, reported in AIR (1954) SC 282 , wherein the Apex Court has held as under:- 45.A neat definition of what tax means has been given by Latham C. J. of the High Court of Australia,in Matthews v. Chicory Marketing Board. A tax , according to the learned Chief Justice, is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered . This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer's consent and the payment is enforced by law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on those who have properties within a municipality. Persons who do not have houses, land or Properties within municipalities, would not have to pay these taxes, but nevertheless these impositions come within the category of taxes and nobody can say that it is a choice of these people to own lands or houses or specified kinds of properties so that there is no compulsion on them to pay taxes at all. Compulsion lies in the fact that payment is enforceable by law against a man in spite of his unwillingness or want of consent; and this element is present in taxes as well as in fees. Of course, in some cases whether a man would come within the category Of a service receiver may- be a matter of his choice, but that by itself would not constitute a major test which can be taken as the criterion of this species of imposition. The distinction between a tax and a fee lies primarily in the fact that a tax is levied he a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oses, made a distinction between a tax and a fee and while there are various entries in the legislative lists with regard to various forms of taxes there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that fees have special reference to governmental action undertaken in respect to any of these matters. 51. Section 76 of the Madras Act speaks definitely of the contribution being levied in respect rendered by the Government; so far it has the appearance of fees. It is true that religious institutions do not want these services to be rendered to them and it may be that they do not consider the State interference to be a benefit at all. We agree, however, with the learned Attorney-General that, in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not. It may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment is per incuriam being contrary to the decision of Apex Court in case of Commissioner, Hindu Religious Endowments(supra) and the judgment of learned Single Judge is now substituted by the judgment of Letters Patent Appeal no.331 of 2006 by consensus. (xv) Reliance was also placed on the decision of the Apex Court in case of Calcutta Municipal Corporation and others Vs. Shrey Mercantile (P) Ltd., and others, reported in (2005) 4 SCC 245 wherein, it is held in relation to the mutation fees charged under the provisions of the Calcutta Municipal Corporation Act, 1959 (as amended by 20th February 1989) as under:- 14. According to Words Phrases, Permanent Edition, Vol. 41 Page 230, a charge or fee, if levied for the purpose of raising revenue under the taxing power is a tax . Similarly, imposition of fees for the primary purpose of regulation and control may be classified as fees as it is in the exercise of police power , but if revenue is the primary purpose and regulation is merely incidental, then the imposition is a tax . A tax is an enforced contribution expected pursuant to a legislative authority for purpose of raising revenue to be used for public or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax. (xvi) Thereafter, the reliance was placed on the decision of Secunderabad Hyderabad Hotel Owners' Association and others Vs. Hyderabad Municipal Corporation, Hyderabad and another, reported in (1999) 2 SCC 274 to point-out that the current trend with respect to deciding whether the levy is tax or fees and more particularly following Paras of the said judgment which reads thus: 9. It is, by now, well settled that a license fee may be either regulatory or compensatory. When a fee is charged for rendering specific services a certain element of quid pro quo must be there between the service rendered and the fee charged so that the license fee is commensurate with the cost of rendering the service although exact arithmetical equivalence is not expected. However, this is not the only kind of fee which can be charged. License fees can also be regulatory when the activities for which a license is given require to be regulated or controlled. The fee which is charged for regulation for such activity would be validly classifiable as a fee and not a tax although no service is rendered. An element of quid pro quo for the levy of such fees is not required although such fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the decision of Supreme Court in case of Jindal Stainless Ltd. Anr. Vs. State of Haryana Ors., reported in (2017) 12 SCC 1 to submit that the decision in case of Commissioner, Hindu Religious (supra) reported in AIR (1954) SC 282 is still a good law as the same is referred to and relied upon as locus classicus. (xviii) Reliance was also placed on the decision of the Supreme Court in case of State of Uttarakhand and others Vs. Kumaon Stone Crusher, reported in (2018) 14 SCC 537, wherein also the decision of the Apex Court i.e. Commissioner, Hindu Religious (supra) is quoted extensively and is accepted as locus classicus for the concept of fees and tax. Reliance was placed on Para nos.152 to 154 of the said judgment which reads thus: 152. We now proceed to consider the respective contentions of the parties on the Fourth and Fifth Amendment Rules. Before we proceed to consider the rival contentions, it is necessary to have broad overview of the concept of fee and tax. Further, the nature of regulatory fee and its essential characteristic also needs to be looked into. 153.The locus classicus on the concept of fee and tax is the judgment of this Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formulate a definition that would be applicable to all cases. 154.Further, on distinction between tax and fee following was stated in paragraphs 45 and 46: 45... The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licenses, is secondary to the primary motive of regulation in the public interest (Vide Findlay Shirras on Science of Public Finance Vol. I, p. 202.). Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action (Vide Seligman's Essays on Taxation, p. 408.). 46. If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Legislature has legislative competence to make provisions for fees to be imposed by the Development Authority constituted under Section 31 of the said Act. The High Court has, however, held that simply because there is legislative competence for the State Government to charge fees for the Urban Development Authority, it cannot be held that demands for the development fee and/ or imposition of the same by the Development Authority under the impugned regulations is legal and valid. The High Court has indicated that it is to be seen whether under the Town Planning Act, a specific power has been given to the Development Authority to impose such development fee. After scrutinising the provisions of the Town Planning Act, the High Court has come to the finding that the Development Authority or as a matter of fact any other authority under the Act has not been vested with the power to charge betterment or the development fee. 4. The High Court has referred to the decisions of this Court in Hingir Rampur Coal Co. Ltd. V/s. State of Orissa, AIR 1961 SC 459 and Sri Jagannath Ramanuj Das V/s. State of Orissa, AIR 1954 SC 400. This Court has held that between a tax and a fee there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of fiscal power. The facts and circumstances in the case of District Council of Jowai, (AIR 1986 SC 1930 ) are entirely different. The exercise of powers by the Autonomous Jantia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable to the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti's case, (1987 (3) SCC 82) also deals with the exercise of incidental and consequential power in the field of administrative law and the same does not deal with the power of imposing tax and fee. 8. The High Court has referred to the decisions of this Court in Hingir's case, (AIR 1961 SC 459) and Jagannath Ramanuj's case, (AIR 1954 SC 400) and Delhi Municipal Corporation's case (AIR 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Municipal Corporation and others Vs. Shrey Mercantile (P) Ltd., and others, reported in (2005) 4 SCC 245 which is as under:- 21. Now coming to the question of challenge to the levy as arbitrary and discriminatory and violative of Article 14, we find that the functions of the Corporation with regard to mutation remain the same, whether the applicant is a transferee under a conveyance or a lessee or a beneficiary under a Will or an heir in the case of intestate succession. Once an application or mutation is made, the same is examined by the department and after hearing the objections, if any, the record is ordered to be changed. Ultimately, the exercise is for fiscal purpose. Similarly, the property valuation may be below ₹ 50,000 or above ₹ 2 lakhs, the function of the Corporation in making the mutation entry remains the same. Similarly, whatever may be the cause of mutation, whether it is a case of transfer or devolution, the activity of mutation remains constant in all the cases. The expenses incurred in all the cases also cannot vary, whatever be the value of the property or the cause of mutation. In the circumstances, there is no reason given for charging di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings and consequently any fees. (i) It was submitted that by 101 st Amendment to the Constitution of India, Entry-55 of List-II of the VIIth Schedule of the Constitution was deleted with effect from 16th September 2016. The Entry-55 prior to its deletion reads as under :- 55. Taxes on advertisement, other than advertisement published in the newspaper, advertisement and broadcast by radio or television. (ii) Reliance was placed on on Etnry-66 of List-II of VIIth Schedule of the Constitution which provides for fees in respect of any of the matter in this list but does not include fees taken in any Court. It was therefore, submitted that once Entry-55 being deleted the respondents cannot make any law with regard to the fees in respect of the matters covered under Entry-55 and therefore, respondents cannot recover the license fee for advertisement hoardings in private properties as same would be without authority of law and therefore, violative of Artice-265 of the Constitution of India. (iii) Without prejudice to the above submissions, it was submitted that after commencement of the GST Regime with effect from 1st July 2017, the taxes on advertisement by respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d operative, the writ courts will prefer the later on the ground that the Legislature is presumed not to have intended an excess of its jurisdiction. In support of this submission, reliance was placed upon the judgment of the Apex Court in case of M. Rathinaswami Vs. State of Tamil Nadu, reported in (2009) 5 SCC 625 , wherein it is held as under:- 28. It is well settled that to save a statutory provision from the vice of unconstitutionality sometimes a restricted or extended interpretation of the statute has to be given. This is because it is a well-settled principle of interpretation that the Court should make every effort to save a statute from becoming unconstitutional. If on giving one interpretation the statute becomes unconstitutional and on another interpretation it will be constitutional, then the Court should prefer the latter on the ground that the Legislature is presumed not to have intended to have exceeded its jurisdiction. 29. Sometimes to uphold the constitutional validity the statutory provision has to be read down. Thus, In re, Hindu Women's Right to Property Act, [AIR 1945 FC 28], the Federal Court was considering the validity of the Hindu Women ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amine whether such challenge is raised at the earliest point of time when the statute came to be introduced or any provision was brought into the statute book or any long time-gap exists as between the date of the enactment and the date when the challenge is made and that even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration whether it calls for prevention of the operation of the provision in the larger interest of the public or not. (B) Submissions with regard to the contention that Section 386(2) of the GPMC Act is ultra vires Article 243X of the Constitution of India :- 1. It was submitted that Article 243X of the Constitution of India merely provides for an enabling provision which means that there is no obligation o the part of the State legislature to provide for a statute/ legislative provision as contemplated in Article 243X of the Constitution. Therefore, it is entirely upon the discretion of the State legislature to consider the procedure and the limits and make the law accordingly and pertinently while undertaking the said e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not serve any fruitful purpose. 11. We have noticed hereinbefore thatthe petitioners had not laid any foundation on facts in the writ petition so as to comprehensively question the vires of the existing statutes in terms of the Constitution (Seventy-fourth Amendment) Act and on the said ground alone, the High Court, in our opinion, has rightly refused to enter thereinto. 12. Even if we agree with the contention of the petitioners herein that the writ petition should have been entertained, the High Court or for that matter this Court could only issue a direction upon the State to pass an appropriate legislation in terms of the provisions of Article 243-W and the Twelfth Schedule of the Constitution within a time-frame. By no stretch of imagination the existing laws could have been struck down only on that premise. In the case of Shanti G. Patel (supra) quoted above, the question before the Supreme Court was whether section 37(1-AA) of the Maharashtra Regional and the Town Planning Act, 1966 was violative of Article 243-W of the Constitution by alleging that in view of Article 243-W and items 1 and 2 of the Twelfth Schedule of the Constitution, the Municipal Corporati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to- (a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. 4. Article 243-G, thus, endows the Panchayats with such power and authority as may be necessary to enable them to function as institutions of self-government. Such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to conditions as may be specified, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule of the Constitution. xxx 37. This contention, in our view, is not tenable in law. We have already said that the 73rd Amendment was brought into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Bench of this Court in the case of Adani Gas Ltd. Vs. Ahmedabad Municipal Corporation, vide judgment dated 24.10.2013 rendered in SCA no.11459 of 2012 inter alia observing as under :- 9.1 It is submitted by . That Section 141B of the Gujarat Provincial Municipal Corporations Act, 1949 (GPMC Act) is ultra vires Article 243X of the Constitution of India. It is submitted that Article 243X provides that the legislature of a State may, by law, authorise the municipality collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as per the specified in law. It is submitted that in the case at hand, Section 141B does not provide for such limit; nor does it provide for the rate of tax insofar as the land is concerned .. 16.5 However, on fair reading of Article 243-X of the Constitution of India, it appears that the said Article provides that the legislature of a State may by law authorise the Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits as may be specified in law. Thus, it is an enabling provision to empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and subject to such limits, as may be laid down therein, but without being constrained or governed by the Rules framed by the State Government under the said law and that, therefore, it was held that the Legislature cannot delegate the powers to the executive to frame Rules and compel the Local Authorities to impose tax in accordance with the Rules framed by it and by such an Act, the Legislature has abdicated its essential legislative functions. However, ultimately, the M. P. High Court did not accept the said challenge and upheld the validity of the taxing provisions under challenge. On the basis of the said judgment of the M. P. High Court, the petitioners, inter alia, contended that the Corporation merely wears the hat of the Government and it is the Government which may allow the corporation to levy the license fee in question. In response to this, it was submitted that there cannot be any quarrel with the said contention, but the aforesaid judgment of the M.P. High Court is not at all relevant to the facts of the present case. 8. In view of the above submissions, it was submitted that Section 386(2) of the GPMC Act is not ultra vires Article 243X of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e only until the expiry of one year from the commencement of operation of Part-IX, i.e. from 01.06.1993. 2. It was therefore submitted that only those provisions which are inconsistent with any of the provisions of Part-IX of the Constitution of India, including Article 243X, would get lapsed. However, the provision contained in Section 386(2) of the GPMC Act is in no way inconsistent with the provision of Part-IX of the Constitution of India. Under the circumstances, there is no question of invocation of Article 243ZF of the Constitution of India in the present matter. 3. In view of the above, it was submitted that Section 386(2) of the GPMC Act is neither ultra vires Constitution nor would the provision of Article 243ZF of the Constitution be invoked in the instant case and therefore, there raises no question of the applicability of Article 243-ZF in the present case. (E) Submissions with regard to contention that Section 386(2) of the GPMC Act suffers from vice of excessive delegation and provide for unguided and uncanalised powers:- 1. It was submitted that the contention of the Petitioners to the effect that for imposition of fees, there must be guideli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Apex Court in case of Consumer Action Group vs. State of T.N. reported in (2000) 7 SCC 425 wherein, while dealing with similar challenge against the validity of Section 113 of the T.N. Town and Country Planning Act, 1971, providing for exemption provision, the Apex Court, inter alia, observed as under: 5. It cannot be doubted, mere reading literally its language, the first impression is that power conferred upon the Government displays one to be of the widest amplitude with no in-built check revealed from this Section. The petitioner s case is, such wide powers have led to its exercise unscrupulously without consideration of its effect on the public at large. On the other hand, learned counsel for the State denying this submits, the power is bridled and controlled through the Preamble, Objections and Reasons and various provisions of the Act and Rules. xxx 21.Not only Preamble and Objects and Reasons of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section (13) of Section 2 defines development for carrying out any of the works contemplated in the regional and master plan etc. Section 9-C def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatever the Commissioner proposes, the same does not become a rule of the Corporation unless and until the same is approved by the Standing Committee, which is, in turn, required to be approved by the Corporation under Section 386(2) of the GPMC Act. (F) Submissions with regard to contention that license fees in question is tax in garb of fees. 1. It was submitted that it has been contended on behalf of the petitioners that the license fee in the present case is neither compensatory nor regulatory, but the same is in form of tax and according to the petitioners, in compensatory fee, there must be a broad quid pro quo between the fee charged and services rendered against the same, whereas, in regulatory fee, quid pro quo is not required, but the same should be used for regulating the activity for which fee is charged and that the same should not be excessive. In the present case, it has been further contended that license fee sought to be recovered is not for the purpose of regulating the activity in question, but is for augmenting revenue and hence, the same is in nature of tax and not fee . It has also been contended that if the fee is charged only with the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce last more than three decades continuously for the services provided by the Corporation to the payer. 5. It was submitted that before the Apex Court in case of Commissioner, Hindu Religious Endownments (supra) the main issues of controversy raised and decided therein were as under :- (i) Whether the Mathadhipati of a Math has a right to property under Article 19(1)(f) of the Constitution in the legal sense, in the religious institution and its endownments, which would enable him to claim the protection of the said Article? (ii) Whether Article 25 of the Constitution, which is intended to protect the religious freedom of individuals, can be invoked in favour of an institution or organization? (iii) Whether a Mutt can be covered within the description of a religious denomination as provided under Article 26 of the Constitution and even if it does, what cannot be interfered with is its right to manage its own affairs in the matter of religion only and nothing else? (iv) Having regard to the fundamental rights guaranteed under the Constitution in matters of religious institutions belonging to particular religious denominations, whether the law regulating th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial benefit to be conferred on the payer of the tax and the levy thereof is for the purposes of general revenue. (ii) In Para 46, characteristics of Fees is enumerated i.e. it is generally to be charged for a special service rendered for individuals by some government agency and that the amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service. (iii) In Para 47, it is held that element of compulsion or coerciveness is present in all kinds of imposition and that the same cannot be made the sole or even a material criterion for distinguishing a tax from fees. The distinction between Tax and Fee is that Tax is levied as a part of a common burden, while Fee is a payment for a special benefit or privilege. (iv) In Para 48, it is held that it is absolutely necessary that the levy of fees should be correlated to the expenses incurred by the Government in rendering the services. The fees charged for granting a permission or privilege to a person to do something, either heavy or moderate, not on the basis of the costs incurred by the Government, but upon the benefit that the individual receives, cannot but be regarded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... armaceuticals and Chemicals, Trichur Vs. State of Kerela, reported in (1981) 4 SCC 391, while considering whether the supervisory charges collected under Section 14(e) of the Kerala Abkari Act, 1967 be regarded as fee or not, the Apex Court, in Para nos. 25 and 29 of the judgment, held as follows, suggesting further shift in the judicial thinking in regard to the concept of a fee. (i) Merely because the collections for the services rendered or grant of privilege or license are taken to the consolidated fund and not separately appropriately towards the expenditure for rendering the service is not by itself decisive. (ii) The element of quid pro quo is not always a sine qua non of a fee and that the traditional concept of quid pro quo is undergoing a transformation. (iii) Though the supervisory charges are in the nature of a compulsory exaction from a licensee and the collections are not credited to a separate fund, but are taken to Consolidated Fund, the same, by itself is not decisive, by reason of Article 266 of the Constitution of India. 6.4 Thereafter, in the case of Municipal Corporation of Delhi Vs. Mohd. Yasin, reported in (1983)3 SCC 229, while consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pp.) SCC 476 while upholding the validity of increase in the rate of market fee levied by market committees in the State of Andhra Pradesh under Section 12(1) of the Andhra Pradesh (Agriculture Produce and Livestock) Markets Act, 1966, from Re.0.50 to Re.1 (i.e. 100%), after considering all the aforereferred judgments in Para nos. 169 to 188, the Apex Court observed to the following effect: (i) There should be reasonable relationship between service and fee and the same cannot be established by mathematical exactitude in the sense that both sides must be equally balanced. (ii) In the course of rendering such services to the payers of the fee, if some other benefits accrue or arise to others, quid pro quo is not destroyed. (iii) The primary object and the essential purpose of the imposition must be looked into. (iv) To be a fee it is not necessary that all the services must be to the payers of the fees nor correlation between payment of fee and services rendered, be established with mathematical exactitude. (v) It is permissible in the modern setup to take into account projections into future and not only the present services can be utilized for justifying ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... including judgment referred in AIR 1954 SC 282, in Para 1, 20 to 24 and 39 to 50, the Apex Court observed to the following effect: (i) A lot of ice has melted in the Himalayas after rendering the judgment in the above referred cases so also there has been a sea change in the judicial thinking as to the difference between a tax and a fee since then. (ii) So far as the regulatory fee is concerned, the service to be rendered is not a condition precedent and the same does not lose the character of a fee provided the fee so charged is not excessive. (iii) It is not necessary that the services to be rendered by the collecting authority should be confirmed to the contributories alone. (iv) While examining the reasonableness of the quantum of levy, the same will not be done with a view to find out whether there is a co-relatable quid pro quo to the quantum of levy, because the quid pro quo is not a condition precedent for the levy of a regulatory fee. Such examination will have to be made in the context of the levy being either excessive or unreasonable for the requirement of the authority for fulfilling its statutory obligations. 6.9 Thereafter, in the case of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lue of services rendered. (ii) What has to be seen is whether there is a broad and general co-relationship between the totality of the fee on the one hand, and the totality of expenses of the services on the other. (iii) The writ petition drafted in the light of the old concept of fee, which has undergone a sea change, and not on the new concept which has been developed in subsequent decisions, is liable to fail on this mere ground. (iv) The cess in question is in substance a fee as it is being levied for rendering to the rural public the service of rural development for the purposes stated in the act. Clearly roads, bridges and storage facilities have to be built in rural areas for progress, and naturally this will require generating funds. Thus, even if no specific service is rendered to any particular individual from whom the fee has been realized, the cess in question is nevertheless a fee, for the reasons already mentioned above. 6.12 It was submitted that in view of theabove refereed subsequent decisions of the Apex Court it is discernible that the view expressed by the Apex Court in 1954 Judgment, with respect to characteristic of fee, has undergone a sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owners in City of Ahmedabad are receiving periodical rentals by permitting companies to exhibit their advertisements on the properties owned by them by putting hoardings. Depending upon situation of the property rents would vary. The Municipal Corporation regulates the said activity by providing for certain standards. The Corporation has to ensure that the hoardings conform to such standards. The duty of the corporation is also to ensure that such hoardings do not endanger safety of general public and citizens residing in the near vicinity. The advertisements to be exhibited have also to be conform to certain standards. The standards of legality and morality have to be maintained. While applying for permission to exhibit the advertisements the applicants have to declare that the advertisement will not be such as would create perverse impression on the minds of general public or one which would offend the sense of morality. The applicants also have to make certain declaration and give undertaking to the Corporation on the basis of which permission for exhibiting advertisement is granted. All these activities would require certain regulatory control to be exercised on part of the Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large number of commuters. If this purpose is not fulfilled, advertisers would have no interest in putting up their advertisements. 31. It is only on good roads that commercial activity would flourish. It is only on such roads that the property owners would be in a position to get maximum possible price by way of rentals from the companies to put their advertisements. Good clean and wide roads with proper facilities is thus absolutely necessary for such activity to flourish. It can hardly be disputed that two of the prime roads of the city viz. Ashram Road and c. G. Road have flourished mainly on account of good and well maintained roads. On such roads maximum commercial activities would flourish. On these roads, one would find shops, shopping malls, plazas, eating joints, fancy stylish restaurants, corporate offices and multinational banks. All these activities in turn would augment the earning potential of the sites of the property owners on either side of such roads. Without these roads being well designed, well maintained and well looked after, there would be no commercial potential for such property owners. These roads provide for growth catalyst for commercial activitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance of the road. (Emphasis supplied) 32. One more aspect of the matter which cannot be lost sight of is that the rates of license fee had remained stagnant since 1997. Nearly nine years have passed since then. Commercial activities in and around Ahmedabad have gone up. The city has been expanding, Population is increasing. Money has also devaluated. Business have gone up and earnings have increased. Property prices have shot up over past few years. The rates which were prevailing in the year 1997 cannot be hold good in the year 2006. Therefore, rate revision was imminent. What should have been the revised rate is the only question. This Court would not interfere with exercise of discretionary power of the Corporation when the powers are exercised in a reasonable manner. Unless it is pointed out that rates so revised are highly excessive, this Court would not interfere with the policy decision of the authority. This court has no power to dissect the decision of the corporation which is primarily in the nature of policy matter. Corporation enjoys certain discretion in this regard, I do not see any reason to interfere with the rate revision. 33. As noted above, different ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the matter still remains outstanding. At the fag end of the arguments, it was contended on behalf of the petitioners that in certain areas of the city there are certain properties which are far away from any tender site. To compare such properties with tender sites situated at faraway places would be unreasonable. For want of material on record in this regard, I refrain from making any conclusive observations. It would however appear that if the petitioners are correct in their factual averments, I see a valid point being made out. If the private property is situated far away from the tender site, with which it is compared for the charging of licence fees, the same would not stand the test of reasonableness. With these observations, I permit the petitioners to approach the Corporation in such individual cases to redress their grievances and to take corrective measure. The Commissioner shall examine such cases and take steps as may be found necessary bearing in mind the observations made hereinabove. 35. In the result, the petitions are allowed to the extent of quashing the collection of registration fees from the petitioners. Any amount received by the corporation under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity during the course of hearing indicating the justification for increase in rates of license fee to demonstrate that the present increase impugned in the captioned petition is justified as well as reasonable. 4. The Brief Note submitted was explained during the course of hearing of the captioned writ petition to point out that vide Resolution No.928 dated 22.11.2018 of the Standing Committee and Resolution no.1075 dated 24.12.2018 of the Corporation, there is only increase of 10% in rates of license fee in question for private sites as against what was in vogue right from 2004 vide Resolution No.992 dated 03.12.2004 till the passing of the impugned resolutions in the year 2018. The said increase was effected after about 13 years, cannot, by any stretch of imagination, be considered to be exceptionally excessive, much less excessive in any manner. 5. In furtherance of the above, reliance upon the following decisions was made to submit that the Apex Court has upheld manifold increase in regulatory fees and also held that the various types of factors can be decided by the imposing authority. (i) A. P. Paper Mills Ltd. Vs. Government of A.P. reported in (2000) 8 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents that Section 386(2) of the GPMC Act is not ultra vires Article 243X of the Constitution of India as there is no constitutional mandate for providing limits and procedure in the said Article and it is an enabling provision giving discretion to the local authority, it was submitted that Article 243X is enabling qua the legislature that once the legislature make the law under enabling provision, it must specify the procedure and limits in that law. It was submitted that the judgment cited on behalf of the respondents mainly interprets Article 243X and 243W of the Constitution of India and support the interpretation canvassed by the petitioners more particularly the decision in case of Shanti G. Patel (Supra) reported in (2006) 2 SCC 505 and decision in case of U.P. Garm Panchayat (Supra) reported in (2007) 2 SCC 138 and it was submitted that the Apex Court has held that enabling provisions are further subject to condition as may be specified. Therefore, it is for the State legislature to consider legal condition and make the law accordingly. It was also pointed-out that in the judgment of this Court in SCA no.11459 of 2012 it is impliedly accepted that the limits and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Commissioner, Hindu Religious Endowments(Supra) reported in AIR (1954) SCC 282 is diluted is not correct as it is a 7 Judge Constitution Bench Judgment and the locus classicus on tax and fees. It was submitted that being a Constitutional Bench judgment, it is binding till it is overruled by a Larger Bench. Therefore, it still holds the field. The judgments cited by the respondents are either supporting the petitioners case or not applicable or are to be treated as mere obiter AIR 1954 SC 282 regarding taxes and fees is not overruled and there is no paradigm shift in the judicial thinking subsequent to that judgment as the said judgment is relied in(2017) 12 SCC 1 which is a decision of a bench of 9 Judges and on pages 172, 297 and 603, AIR 1954 SC 282 is referred and relied upon as locus classicus and also in ( 2018) 14 SCC 537 in Para nos. 152 to 186, the decision of AIR 1954 282 is accepted as locus classicus for Fees and Tax . In Para 153, AIR 1954 SC 282 is quoted extensively and particularly in Para 154, the celebrated paragraph 48 of AIR 1954 SC 282 is reproduced and approved. Learned senior advocate Mr. Joshi therefore, distinguished the judgments cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se where regularisation has been sought for in pursuance of Article 14 of the Constitution and that the same is in conflict with the judgment of the sevenJudge Bench in Maneka Gandhi Vs. Union of India [(1978) 1 SCC 248]. 77. We have carefully analysed the judgment of the two-Judge Bench (in Pooran Chandra Pandey case [(2007) 11 SCC 92: (2008) 1 SCC (L S) 736]) and are of the considered view that the above reproduced observations were not called for. 92. In the light of what has been stated above, we deem it proper to clarify that the comments and observations made by the two-Judge Bench in U.P. SEB vs. Pooran Chandra Pandey [(2007) 11 SCC 92 : (2008) 1 SCC (L S) 736] should be read as obiter and the same should neither be treated as binding by the High Courts, tribunals and other judicial foras nor they should be replied upon or made basis for bypassing the principles laid down by the Constitution Bench. iii) However, in this judgment in Para 9.1, only the following lines from AIR 1954 SC 282 are quoted by observing the same to be not very accurate :- if the money thus paid is set apart and appropriated specifically for the performance of such work and is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d levy. 35. On the discussions made and the reasons set out in the foregoing paragraphs, the appeals are allowed, the judgment under challenge is set aside and the revision of license fee introduced by GOMs No.154, E and F Department, dated 26-07-1994, is quashed. ... (xi)( 2012) 8 SCC 680 Referring to Para nos. 30 to 35 and particularly the Para 32 which reads as under, it was submitted that it is not required to be reiterated that all throughout, the case of the AMC is that the fees are regulatory. The affidavit of the AMC fails to mention, much less explain any co-relation, much less reasonable co-relation between the levy of the license fees and the purpose for which the fees are sought to be levied under Section 386(2) of the GPMC Act. No details whatsoever are given regarding how the fees collected would be used: 32.A Constitution Bench of this Court in Hingir Rampur Coal Co. Ltd. vs. State of Orissa [AIR 1961 SC 459 : (1961) 2 SCR 537] was faced with the challenge of deciding upon the constitutional validity of the Orissa Mining Areas Development Fund Act, 1952 levying cess on the colliery of the petitioner therein. The Bench explained different featur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f license department. (E) With regard to the reliance placed on the decision of State of W.B. Vs. Kesoram Industries Ltd., reported in (2004) 10 SCC 201, for submission that though the Entry-55 is deleted by GST regime, the respondents are entitled to collect fees under Entry-5 read with Entry-66, it was submitted that Entry-5 is general entry and it is settled position of law that for taxes, there has to be a specific entry. Reliance was placed on Para 74.3, 75, 31(3) and 100 of the said judgment, wherein it is held that in the scheme of the lists in the 7th Schedule, there exists a clear distinction, between the general subject for legislation and heads of taxation and they are separately enumerated. It was therefore, submitted that taxes on advertisement were falling under Entry-55, which is deleted and therefore, the intention is that all taxes and fees would be subsumed in GST and Entry-5 cannot be relied upon. (F) With regard to the brief note submitted by the respondent indicating the justification for increase rates of license fees, it was submitted as under:- (i) At the outset, no such contentions or averments as are there in the note are found in the affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provisions of Section 386(2) of the GPMC Act. It is also pertinent to note that in the year 2012, the petitioners agreed for levy of the license fees by enhancing the rate by 10% every year after initial embargo of 5 years. Thus, the petitioners can be said to have waived the right to challenge the power to levy of fees for the license for outdoor advertising hoardings in private properties. However, we may consider the submissions made by the petitioners for challenging the constitutional validity of Section 386(2) of the GPMC Act being violative of Articles 14 and 243X of the Constitution of India on merits and not shunt off the petitioners only on this ground only. 13. Having considered the submissions made by both the sides and having gone through the materials on record, the petitioners have challenged the impugned resolutions passed by the AMC for increase of license fees for advertisement hoardings in private properties on the following main grounds:- (I) The petitioners have questioned the constitutional validity of Section 386(2) of the GPMC Act on the following four grounds:- (i) Section 386(2) of the GPMC Act is ultra vires Article 243X of the Constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... islature to provide for a statute/legislative provision as contemplated in Article 243X as it is an enabling provision. The Apex Court in case of Shantiji Patel Vs. State of Maharashtra (supra) while dealing with Article 243W of the Constitution of India has held as under:- 9. Article 243W whereupon great emphasis has been laid by the petitioners herein provides for an enabling clause so as to enable the State to endow by law the Municipality with such powers and authority, as may be necessary, to enable the State to make by law by endowing the Municipalities to function as institutions of self-government which may contain provisions of the devolution of powers and responsibilities subject to the conditions which may be specified in the Twelfth Schedule. The Twelfth Schedule of the Constitution referable to Article 243W, inter alia, provides for Urban planning including town planning, regulation of land- use and construction of buildings. Thus, Article 243W contains merely an enabling provision, and it does not mean that the State is obligated to provide for such a statute. The Constitution (Seventy-fourth Amendment) Act, in any event, does not envisage that the existing l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provision operates the field as against the prevention of such operation. The Court should also examine the extent of financial implications by virtue of the operation of the provision vis- -vis the State and alleged extent of sufferance by the person who seeks to challenge based on the alleged invalidity of the provision with particular reference to the vires made. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provision in the larger interest of the public. We have only attempted to set out some of the basic considerations to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds on the above lines for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute book or any long time-gap exists as between the date of enactment and the date when the challenge is thrown thereto. It should also be noted as to whether the grounds of challenge based on the facts pleaded and the implication of the provision really has any nexus apart from the grounds of challenge made. With reference to those relevant provisions, the Court should be conscious of the position as to the extent of public interest involved when the provisions operate the field as against the prevention of such operation. Even if the writ court is of the view that the challenge raised requires to be considered, then again it will have to be examined, while entertaining the challenge raised for consideration, whether it calls for prevention of the operation of the provisions in the larger interests of the public. An attempt has been made only to set out some of the basic consideration to be borne in mind by the writ court and the same is not exhaustive. In other words, the writ court should examine such other grounds for consideration while considering a challenge on the ground of vires to a statute or the provision of law made before it for the purpose of entertaining it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustice G.P. Singh's Principles of Statutory Interpretation (7th Edn 1999 pp 414-417). 31. For the reason given above these appeals are partly allowed and the impugned judgment is partly set aside, and it is held that the impugned rule so far as it places directly recruited Assistants above the promotees for promotion as Deputy Tehsildar shall only apply to those promotees who are non graduates, but it is inapplicable to those promotees who are graduates. 18. The Apex Court in case of U.P. Grampanchayat Vs. Dayaram Saroj, reported in (2007) 2 SCC 138while interpreting Article 243G of the Constitution of India has held as under :- 1. The Constitution (Seventy-third Amendment) Act, 1992 came into force on 24-4-1993. The said amendment was brought into force to give effect to one of the directive principles of State policy, Article 40 of the Constitution of India, which directs the State to organize Village Panchayats as units of self-government. Article-40 reads as under : 40.Organisation of Village Panchayats.- The State shall take steps to organize Village Panchayats and endow them with such powers and authority as may be necessary to enable them to funct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution. It is an enabling provision and the State is empowered either to eliminate, modify or cancel by exercising power under the enabling provision. Article 243G is an enabling provision. Article 243G enables the Panchayats to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats, subject to such conditions as may be specified therein, with respect to the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. The enabling provisions are further subject to the conditions as may be specified. Therefore, it is for the State Legislature to consider legal conditions and make the law accordingly. The devolution of exercise would also be open to the State to eliminate or modify. See Constitution Bench Judgment in M. Nagaraj Ors. v. Union of India Ors. (2006) 8 SCC 212. Also see Akhil Bharat Goseva Sangh (3) v. State of A.P. Ors. (2006) 4 SCC 162 and Kuldip Nayar and Ors. v. Union of India Ors. (2006) 7 SCC 1. where a Constitution Bench of this Court considered the basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area, we find considerable substance in the submission of Ms. Anklesaria, learned counsel for the respondent Board that the petitioners having voluntarily agreed to the condition of surrendering part of the surplus built up area by obtaining NOC from the respondent Board under DCR 33(7) before a number of years, it is not open to the petitioners to challenge such condition after such a long period . xxx 21. In the decision of State of M.P. v/s. Rakesh Kohli and others reported in AIR 2012 SC 2351, it is held as under : 13. In our opinion, the High Court was clearly in error in declaring Clause (d), Article 45 of Schedule 1-A of the 1899 Act which as brought in by the M.P. 2002 Act as violative of Article 14 of the Constitution of India. It is very difficult to approve the reasoning of the High Court that the provision may pass the test of classification but it would not pass the requirement of the second limb of Article 14 of the Constitution which ostracises arbitrariness, unreasonable and irrationality. The High Court failed to keep in mind the well defined limitations in consideration of the constitutional validity of a statute enacted by Parliament or a State Legisl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... threeJudge Bench in Mcdowell and Co.2 observed in paragraphs 43 and 44 [at pg. 739) of the Report as under : ......Now, coming to the decision in Ananthi Ammal, we are of the opinion that it does not lay down a different proposition. It was an appeal from the decision of the Madras High Court striking down the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 as violative of Articles 14, 19 and 300-A of the Constitution. On a review of the provisions of the Act, this Court found that it provided a procedure which was substantially unfair to the owners of the land as compared to the procedure prescribed by the Land Acquisition Act, 1894, insofar as Section 11 of the Act provided for payment of compensation in instalments if it exceeded rupees two thousand. After noticing the several features of the Act including the one mentioned above, this Court observed: (SCC p. 526, para 7) 7. When a statute is impugned under Article 14 what the court has to decide is whether the statute is so arbitrary or unreasonable that it must be struck down. At best, a statute upon a similar subject which derives its authority from another source can be referred to, if its p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. A well-known principle that in the field of taxation, the Legislature enjoys a greater latitude for classification, has been noted by this Court in long line of cases. Some of these decisions are : M/s. Steelworth Limited V/s. State of Assam, 1962 Supp (2) SCR 589; Gopal Narain V/s. State of Uttar Pradesh and another, AIR 1964 SC 370; Ganga Sugar Corporation Limited V/s. State of Uttar Pradesh and others, (1980) 1 SCC 223; R.K. Garg V/s. Union of India and others, (1981) 4 SCC 675 and State of W.B. and another V/s. E.I.T.A. India Limited and others, (2003) 5 SCC 239. 28. In R.K. Garg, the Constitution Bench of this Court stated that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. 29. While dealing with constitutional validity of a taxation law enacted by Parliament or State Legislature, the court must have regard to the following principles: (i), there is always presumption in favour of constitutionality of a law made by Parliament or a State Legislature (ii), no enactment can be struck down by just saying that it is arbitrary or unreasonable or irrational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported. (See W.A. Wynes: 'Legislative Executive and Judicial Powers in Australia' Fifth Edition p. 33). 23. In the case of Kapila Hingorani vs. State of Bihar (09.05.2003 - SC) : MANU/SC/0403/2003, the Apex Court has held as under: 61. It is also well-settled that interpretation of the Constitution of India or statutes would change from time to time. Being a living organ, it is ongoing and with the passage of time, law must change. New rights may have to be found out within the constitutional scheme. Horizons of constitutional law are expanding. 24. In the case of John Vallamattom and Ors. vs. Union of India (UOI) (21.07.2003 - SC) : MANU/SC/0480/2003, the Supreme Court has held as under: 33. It is trite that having regard to Article 13(1) of the Constitution, the constitutionality of the impugned legislation is required to be considered on the basis of laws existing on 26th January 1950, but while doing so the court is not precluded from taking into considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng regard to its need. It is required to be noted at this stage that even under Section 141 B of the Act there is a limit prescribed to levy the tax on the residential building and other than residential. Thus, considering the entire scheme of the property tax under the GPMC Act and Rules it cannot be said that there is violation of Article 243 X of the Constitution of India as alleged. On harmonious construction and considering all the provisions of the taxation under the Act and the Rules and for the reasons stated hereinafter, we are of the opinion that even there is provision for limits of the general taxes even with respect to the land also (which shall be dealt with hereinafter). 16.9. Under the circumstances and for the reasons stated above, we are of the opinion that as such Section 141 B of the Act is not ultra vires to Article 243 X of the Constitution of India on the ground that in the Act with respect to tax on land no limits of tax is provided. We are of the view that in the present case and while enacting Section 141 B of the Act i.e. levy and assessment of general taxes on the land, provisions of Article 243 X are complied with as State legislature has enacted l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f all categories of property taxes, determination of capital value of all properties liable to taxes, process of serving notices under section 162, giving hearing on complaints and deciding the complaints will have to be done by the Corporation consisting of elected councillors and nominated councillors and by no one else. Such interpretation put to clauses (a) and (b) of Article 243-X will lead to absurdity and the provisions will become unworkable. Such interpretation will defeat the object of 74th Amendment to the Constitution and, therefore, the challenge on the ground of violation of Article 243-X must fail. 27. In case of Municipal Labour Union vs. The State of Maharashtra reported in MANU/MH/1784/2014,the Bombay High Court has held as under: 37. Upon a bare perusal of the same it is evident that subject to the provisions of the Constitution, it is the Legislature of a State and which may by law endow the Municipalities with such powers and authority as may be necessary to enable them to function as Institutions of self Government. That law may contain provisions for the devolution of powers and responsibilities upon the Municipalities and that is how various aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that the provisions therein encroach on any power of the Municipality of taxation. Eventually, the Municipality derives it's power and authority to impose the tax from the law made by the Legislature. 28. The aforesaid view was reiterated in case of Vodafone Mobile Service Limited Vs. State of Gujarat (supra) by the Division Bench of this Court while considering the levy of general property tax on the Mobile Towers under Section 141B of the GPMC Act has held as under: 23. Now, so far as the submission on behalf of the petitioner that determination of Tax on the Mobile Towers of the petitioner is contrary to the ceiling limit prescribed under Section 141B(3) of the GPMC Act and therefore, the same is ultra vires the Article 243X of the Constitution of India is concerned, the aforesaid has no substance. It is the case on behalf of the petitioner that section 141B(3) of the GPMC Act provides that rate of Tax determined under sub-section (1) read with sub-section (2) which can be less than and/or more than the amount mentioned in the said sub-section i.e. same cannot be less than ₹ 20 per sq. meter of carpet area and more than ₹ 80 per sq. meter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra vires to Article 243X of the Constitution of India. If the submission on behalf of the petitioners is accepted, in that case the powers conferred under sub-section (4) of Section 141 of the GPMC Act would become nugatory and/or otiose. As per the cardinal principle of law of interpretation of Statute while considering a particular provision of Statute, the Court is required to see that another provision of the Statute may not become nugatory and/or otiose. Under the circumstances it cannot be said that the determination of the property Tax on IBS/Booster sites of the petitioner is in anyway illegal and/or bad in law and ultra vires to Article 243X of the Constitution of India. 24. Now, so far as the challenge to the vires of Section 141B of the GPMC Act and the submission on behalf of the petitioner that levy of General Property Tax as per the Rules as provided under Section 141B(4) of the GPMC Act and the submission that the same is ultra vires to Article 243X of the Constitution of India is concerned, the aforesaid issue is also now not res integra in view of the decision of the Division Bench of this Court in the case of Adani Gas Limited (Supra). While considering the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ze the Municipality to levy, collect and appropriate taxes. 21. Petitioners' further case is that there is no provision in the Act, 1950 which empowers the Municipality to levy tax on advertisement and in absence of such provision, the present Regulations, 2010 are ultra vires Article 243X of the Constitution. According to Mr. Mohapatra, learned counsel for opposite party nos. 2 and 3 in exercise of power conferred under Article 243X of the Constitution, the State Government has framed the Act, 1950 and Section 131 of the said Act confers power on the Municipality to impose tax. Clauses (g) and (k) of Sub-Section (1) of Section 131 of the Act, 1950 are relevant for adjudication of the present lis. Section 131 of the Act, 1950 empowers the Municipality to impose taxes. It also states that the Municipality may, from time to time, at a meeting convened expressly for the purpose of which due notice shall have to be given subject to the provisions of the Act, 1950 impose, within the limits of the Municipal area, the taxes and fees or any of them enumerated in the said Section. According to Mr. Mohapatra, the power of Municipality to levy tax on advertisements is traceable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Powers to impose taxes by, and Funds of, the Panchayats.- The Legislature of a State may, by law,- (a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits; (c) . (d) . Article 243X. Power to impose taxes by, and Funds, of, the Municipalities.- The Legislature of a State may, by law- (a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits; (b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State-Government for such purposes and subject to such conditions and limits; (c) (d) 35. From the aforesaid, it is apparent that the State Legislature may either authorise the Panchayat or Municipality, as the case may, itself to levy, collect and appropriate such taxes for its purposes, or the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided by or under this Act, for every such license written permission and fees may be charged at such rate as shall from time to time fixed by the Commissioner with the sanction of the Corporation. Thus, on bare perusal of Sub-section-2 of Section-386 of the GPMC Act, it cannot be said that the Commissioner has excessive delegation because license fees which may be charged by the Commissioner shall come into effect only after the sanction of the Corporation and not otherwise. Thus, in effect sub-section-2 provides for procedure and limits in form of checks and balances to control the power conferred upon the Commissioner to levy the fees for the licenses to be issued as per Subsection-1 of Section 386. 33. It is also pertinent to note that Subsection-2 starts with the words except as may otherwise be provided by and under this Act , which means that it is an exception carved out from other provisions of the Act providing for any fees of license which may be issued under Sub-section-1 of Section 386. The Commissioner of the Municipal Corporation is therefore, empowered to levy fee at such rate from time to time which may be fixed but such power is subject to the sanction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st-II clearly empowers the State legislature to levy fee in respect of any of the matter in the said list i.e. the matter prescribed in Entry-5 of list-II. The Apex Court in case of State of West Bengal Vs. Kesoram Industries reported in (2004) 10 SCC 201 while dealing with the cess being levied on coal bearing land held that the same is justified as key within the protective constitution coverage of Entry-5 read with Entry-66 of list-2 and has held as under :- 1. In this batch of matters, some appeals by special leave under Article 136 of the Constitution and some writ petitions filed in this Court, raise a few questions of constitutional significance centring around Entries 52, 54 and 97 in List I and Entries 23, 49, 50 and 66 in List II of the Seventh Schedule to the Constitution of India as also the extent and purport of the residuary power of legislation vested in the Union of India. Cesses on coal-bearing land levied in exercise of the power conferred by State legislation have been struck down by a Division Bench of the Calcutta High Court. In exercise of the same power conferred by State legislation whereunder cesses were levied on coal-bearing land, cesses have also be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious entries in the three lists are not powers of legislation but fields of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States. (2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law. (3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt with in one group of entries and power of taxation in a separate group. The power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I. (emphasis supplied) xxx 140. The MMRD Act enables control over the regulation of mines and the development of minerals being exercised by the Central Government through legislation. The High Court has upheld the validity of the SADA Act by relating it to Entry 5 in List II which is Local government . Any Local Government exercising the power of governance over a local area shall have to administer, manage and develop the area lying within its territory which cannot be done without raising funds. It is usual for every piece of legislation giving birth to an institution of Local Government to feed it by incorporating provisions conferring power of generating funds for meeting the expenses of governance. The SADA Act intends to achieve a level of local governance which the usual models of Local Government such as boards and municipalities are not considered capable of achieving and that is why th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of Entry 49 of List II. Inasmuch as the levy on mineral rights does not contravene any of the limitations imposed by Parliament by law relating to mineral development, it is also covered by Entry 50 of List II. The power to levy any tax or fee lying within the legislative competence of the State Legislature can be delegated to any institution of Local Government constituted by law within the meaning of Entry 5 in List II. Entries 5, 23, 49, 50 and 66 of List II provide adequate constitutional coverage to the impugned levy of cess. True it is that the method of quantifying the cess is by reference to the quantum of mineral produced. This would not alter the character of the levy. There are myriad methods of calculating the value of the land for the purpose of quantifying the tax, reference whereto has already been made by us in the other part of this judgment. Validity of cess upon the land quantified by reference to the quantity of its produce was held to be a levy on the land and hence constitutional in Ralla Ram13, Moopil Nair18 and Ajoy Kumar Mukherjee19. It does not become excise duty on manufacture and production of goods merely on account of having relation with the qua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to play in the facts of the case. 39. The submissions of the petitioner that provision of Sub-section-2 of Section 386 suffers from excessive delegation and provided for unguided and uncanalised power to the Commissioner as there is no procedure for limits for imposition of fees in absence of any guideline is concerned, it is settled position of law that the guidelines are required to be prescribed by legislature in case where there is levy of tax and not in case where there is imposition of fees. The Apex Court in case of Delhi Race Club Ltd., Vs. Union of India reported in (2012) 8 SCC 680 has held as under :- 48.As noted above, challenge to the constitutionality of Section 11(2) of the Act was based on the premise that no guidance, check, control or safeguard is specified in the Act. This principle, as we have distinguished above, applies only to the cases of delegation of the function of fixation of rate of tax and not a fee. As we have held that the levy involved in the present case is a fee and not tax, the ratio of the abovementioned cases, relied upon by the learned Senior Counsel, will have no application in determining the question before us. The scheme of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention of Mr. Umrigar that section 3 of the Essential Supplies (Temporary Powers0 Act, 1946, amounts to delegation of Legislative power outside the permissible limits is again without any merit. It was settled by the majority judgment in the Delhi Laws Act case that essential powers of legislature cannot be delegated. In other words, the legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct. In the present case the legislature has laid down such a principle and that principle is the maintenance or increase in supply of essential commodities and of securing equitable distribution and availability at fair prices. As already pointed out, the preamble and the body of the sections sufficiently formulate the legislative policy and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... difications. This Court held: (SCC p. 343 346, paras 3 12) The Legislature may guide the delegate by speaking through the express provision empowering delegation or the other provisions of the statute, the preamble, the scheme or even the very subject matter of the statute. If guidance there is, wherever it may be found, the delegation is valid Section 60 empowers the State Government to exempt a registered society from any of the provisions of the Act or to direct that such provision shall apply to such society with specified modifications. The power given to the Government under s. 60 of the Act is to be exercised so as to advance the policy and objects of the Act, according to the guidelines as may be gleaned from the preamble and other provisions which we have already pointed out, are clear. 18. The catena of decisions referred to above concludes unwaveringly in spite of very wide power being conferred on delegatee that such a section would still not be ultra vires, if guideline could be gathered from the Preamble, Object and Reasons and other provisions of the Acts and Rules. In testing validity of such provision, the courts have to discover, whether there is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 (Tamil Nadu Act VII of 1920) which is based on the British Town and Country Planning and Housing Act, 1909, has been in force in the State for nearly five decades. The said Act provides for matters relating to the development of towns to secure to their present and future inhabitants, sanitary conditions, amenity and convenience. It was felt necessary to make comprehensive amendments to the Act as the Act had several shortcomings and defects. 21. Not only preamble and Objects and reasons of the Act clearly indicate its policy but it is also revealed through various provisions of the enactment. Sub-section (13) of Section 2 defines development for carrying out any of the works contemplated in the regional and master plan etc., Section 9-C defines functions and powers of the Metropolitan Development Authority, Section 12 refers to functions and powers of the Appropriate Planning Authorities, Section 15 refers to regional planning. Section 16 is for preparation of land and building map, Section 17 refers to the Master plans, Section 18 refers to new town development plan, Section 19 refers to the declaration of intention to make or adopt a detailed development plan, Section 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture, it is also pertinent to note that Chapter-XXVIII of the GPMC Act provides for control of the State Government. Section 448 provides for power of State Government to require performance of duties and default of any Municipality and Section 451 prescribed power of the State Government to suspend action under the GPMC Act. Section-451 reds as under :- 451. (1) If the 1 [State] Government is of opinion that the execution of any resolution or order of the Corporation or of any other municipal authority or officer subordinate thereto or the doing of any act which is about to be done or is being done by or on behalf of the Corporation is in contravention of or in excess of the powers conferred by this Act or of any other law for the time being in force or is likely to lead to a breach of the peace or to cause injury or annoyance to the public or to any class or body of persons, the 1 [State] Government may, by order in writing, suspend the execution of such resolution or order, or prohibit the doing of any such act. (2) A copy of such order shall forthwith be sent to the Corporation by the 1 [State] Government. (3) The 1[State] Government may at any time, on represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This definition brings out, in our opinion, the essential characteristics of a tax as distinguished from other forms of imposition which, in a general sense, are included within it. It is said that the essence of taxation is compulsion, that is to say, it is imposed under statutory power without the taxpayer s consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of quid pro quo between the taxpayer and the public authority. Another feature of the taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay. 46. Coming now to fees, a fee is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as a part of a common burden, while a fee is a payment for a special benefit or privilege. Fees confer a special capacity, although the special advantage, as for example in the case of registration fees for documents or marriage licences, is secondary to the primary motive of regulation in the public interest16. Public interest seems to be at the basis of all impositions, but in a fee it is some special benefit which the individual receives. As Seligman says, it is the special benefit accruing to the individual which is the reason for payment in the case of fees; in the case of a tax, the particular advantage if it exists at all is an incidental result of State action17. 48. If, as we hold, a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should, on the face of the legislative provision, be co-related to the expenses incurred by the Government in rendering the services. As indicated in Article 110 of the Constitution, ordinarily there are two classes of cases where the Government imposes fees upon persons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... however, with the learned Attorney-General that in the present day concept of a State, it cannot be said that services could be rendered by the State only at the request of those who require these services. If in the larger interest of the public, a State considers it desirable that some special service should be done for certain people, the people must accept these services, whether willing or not20. It may be noticed, however, that the contribution that has been levied under Section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution. Further the institutions which come under the lower income group and have income less than ₹ 1000 annually, are excluded from the liability to pay the additional charges under clause (2) of the section. These are undoubtedly some of the characteristics of a tax and the imposition bears a close analogy to income tax. But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution is not earmarked or specified for defraying the expenses that the Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntribution that has been levied under Section 76 of the Act has been made to depend upon the capacity of the payer and not upon the quantum of benefit that is supposed to be conferred on any particular religious institution and further the institutions which come under the lower income group and have income less than ₹ 1000 annually, are excluded from the liability to pay the additional charges under clause (2) of the section, it was held that these are undoubtedly some of the characteristics of a tax and the imposition bears a close analogy to income tax. But the material fact which negatives the theory of fees in the case before the Apex Court was that the money raised by levy of the fees was not earmarked or specified for defraying the expenses that the Government has to incur in performing the services and all the collections were to go to the consolidated fund of the State and all the expenses were to be met not out of these collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. In Such facts, the Apex Court held that, there was total absence of any co-relation between the expenses incurred by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ea change in the approach of the Apex Court. The dictum of law as laid in the case of Commissioner, Hindu Religious Endowments (Supra) is not at all diluted but on the contrary the same is reiterated and each case has been decided on the basis of its own facts. 45. As we are of the opinion that the license fee levied for granting license for placing advertising hoardings in private property is fee and not tax as the facts of the case of the petitioner are different than that of the facts before the Apex Court, the decision of the learned Single Judge of this Court dated 2nd February 2006 in SCA no.12603 of 2005 rendered in the facts of case of the petitioner itself cannot be said to be per incuram only on the ground that the judgment of the Apex Court in case of Commissioner, Hindu Religious Endowments(Supra)is not considered. 46. With regard to the submissions made by both the sides in relation to the fixation of the license fees being arbitrary and excessive, it is pertinent to note that the rival claims made by both the sides cannot be looked into while exercising writ jurisdiction under Article 226 of the Constitution of India. The sufficiency of levy of fees falls wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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