Hon'ble Prakash Krishna,J.
THE FACTS
1. The petitioner is a cable operator and is resident of Nagar Palika Parishad, Etah (the Nagar Palika). He has got a licence to operate the cable TV Network.
2. The Nagar Palika is governed by the Municipalities Act, 1916 (the Municipalities Act). The Nagar Palika has framed Bye-laws for the regulation of posting of bills and advertisements, within the municipal limits of the Parishad (referred to as the 'Bye-laws').
3. In the cable TV Network, the advertisements are also shown. Respondent-4 was appointed to collect the fees mentioned under the Bye-laws. He asked the petitioner to deposit fees for showing the advertisements in the cable TV Network.
4. Subsequently, a sum of Rs.2,76,000/- was demanded for the period from 01.04.2001 to 30.07.2001 by the Nagar Palika. The petitioner filed his objection on 14.08.2001 before the Nagar Palika against the demand raised by it.
5. Subsequently, the aforesaid demand was sent by the Nagar Palika to the District Magistrate to be recovered as arrears of land revenue. The Tehsildar issued citation dated 04.07.2002 against the petitioner, hence the present writ petition.
6. We have heard Shri Swapnil Kumar for the petitioner and the standing counsel for the respondents-1 & 2. There is counter affidavit on behalf of the Nagar Palika but no one has appeared before us on its behalf.
THE DECISION
7. Sub-clause (h) of sub-section (1) of Section 172 of the Municipal Corporation Act, 1959 {S.172(1)(h) of the Corporation Act} provides for a tax on advertisements, not being advertisements published in newspapers. However, we are not concerned with the Corporation Act but with the Municipalities Act.
8. Section 128 of the Municipalities Act provides that the tax can be imposed under the Municipalities Act. However, unlike Section 172(1)(h) of the Corporation Act, there is no such provision in Section 128 of the Municipalities Act for imposing tax on the advertisements.
9. In fact, the Nagar Palika is also not claiming to impose a tax. According to the counter affidavit filed on behalf of the Nagar Palika, the amount is being recovered in pursuance of the Bye-laws framed by the Nagar Palika. The Bye-laws are framed under Section 298(2)H(f) of the Municipalities Act.
10. Section 298 of the Municipalities Act is titled as 'Power of municipality to make Bye-laws'. Sub-section (1) of Section 298 of the Municipalities Act provides that a municipality may by a special resolution make bye-laws for the purpose of maintaining the health, safety and convenience of the inhabitants.
11. Section 298(2) of the Municipalities Act provides that without prejudice to the generality of the power conferred in Section 198(1), a municipality may make any bye-laws mentioned in List-I and where a Municipality is partly or fully situate in a hilly tract then it can also frame bye-laws in respect of the items mentioned in List-II also.
12. The heading of H of List-I of Section 298(2) of the Municipalities Act is titled as Public, safety or convenience. Its sub-clause (f) {Section 298(2)-H(f)} of the Municipalities Act provides for the regulation of the posting of bills and advertisements. It is for this purpose that the Bye-laws were framed.
13. The Bye-laws indicate that an advertisement means any information, notification, news etc. that are used for advertisements including anything written or drawn.
14. The building has been defined as any kind of a structure.
15. The Bye-laws state that the advertisements will not be pasted within the boundaries of the Nagar Palika at any place or any building except at a place on the public board as specified by the Executive Officer of the Nagar Palika.
16. In case the advertisements are pasted at the place other than the public notice board then the executive officer can get them removed and the expenditure incurred in doing so, can be recovered by the Nagar Palika.
17. A reading of the Bye-laws indicates that a fee is chargeable on the advertisements pasted on the public notice board but not on the advertisements shown by the cable operator. In fact, normally the cable operators show the different channels. The advertisements are shown in the channels. The cable operators have nothing to do with the same. They pay fees to show the channel.
18. There is nothing in the Bye-laws to show that any kind of fee or money can be charged for the advertisements shown on the cable TV Network.
19. Apart from the above, there is nothing to show, As to how the amount of Rs.2,76,000/- was arrived at;
If any kind of service was being rendered to the cable operators for running the cable network.
20. In our opinion no fee can be charged under the Bye-laws on the advertisements shown on cable TV Network.
CONCLUSION
21. Our conclusions are as follows:
(a) The Bye-laws do not provide for charging any fees on the advertisements being shown on the cable TV Network;
(b) There is no basis for arriving at the sum sought to be recovered;
(c) There is no indication at to what service is being provided to the cable operators.
22. In view of our conclusions, the recovery is illegal and quashed. The writ petition is allowed.
Order Date :- 30.11.2010 MK/