Disposed

Bharti Hexacom Ltd. v. State of Raj and Ors.

Rajasthan HC16 May 2018CW/3727/2015

Case brief

AI extract

What is this about?

Municipal advertisement licence fees and their enhancements were upheld as regulatory levies, including on private sites. The court held the advertisement bye-laws saved under the later municipal legislation and rejected the quid pro quo challenge. Petitions were disposed of with liberty to resolve disputed assessments before the Corporation after a hearing.

What did the court decide?

Liberty to raise assessment objections or additional demands within two months; Corporation to decide after hearing petitioners, with liberty to challenge its decision.

Bharti Hexacom Ltd. Vs State of Raj and Ors. — Municipal and Town Planning | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

1 D.B. CIVIL WRIT PETITION NO. 104/2003

¶3

Hindustan Petroleum Corporation Limited, having its Regional Office Tel Bhawan, Sahkar Marg, Jyoti Nagar, Jaipur through its Senior Regional Manager.

¶4

-----Petitioner

¶5

Versus

¶6

The State of Rajasthan through Secretary Local Self Government, Secretariat, Bhagwan Das Road, C-Scheme, Jaipur.

¶7

Nagar Nigam Jaipur, Lal Kothi, Tonk Road, Jaipur through Mayor.

¶8

The Commissioner Revenue, Nagar Nigam, Jaipur.

¶9

----Respondents

¶10

2 D.B. CIVIL WRIT PETITION NO. 953/2012

¶11

Vodafone Digilink Limited (formerly known as Vodafone Essar Digilink Limtied), having its Rajasthan Service Area office at 5^th Floor, Gaurav Tower, Malviya Nagar, Jaipur, Rajasthan 302017, through its Authorized Signatory Mr. Kamal Kant Joshi.

¶12

-----Petitioner

¶13

Versus

¶14

The State of Rajasthan through the Director Local Bodies.

¶15

(2 of 53)

¶16

[CW-104/2003]

¶17

The Jaipur Municipal Corporation (Nagar Nigam Jaipur), Pundit Deendayal Upadhayay Bhawan, Lal Kothi, Tonk Road, Jaipur, through its Mayor.

¶18

The Chief Executive Officer, Jaipur Municipal Corporation, Pundit Deendayal Upadhayay Bhawan, Lalkohi, Tonk Road, Jaipur.

¶19

M/s. S.S. Creations, A-Block, Bhawani Villa, Gulab Path, Chomu House, C-Scheme, Jaipur.

¶20

-----Respondents

¶21

3 D.B. CIVIL WRIT PETITION NO. 1117/2012

¶22

Idea Cellular Ltd., having its registered office at “Suman Tower” Plot No. 18, Sector-11, Gandhi Nagar-11, Gujrat and circle office at Plot No. 1 and 2, Jai Jawan Colony, Tonk Road, Jaipur through its authorized representative Mr. Sheel Ratnam Abhijatam son of Shri Lalan Prasad Singh, working for gain with Idea Cellular Ltd., Rajasthan at its Circle office at Plot No. 1 and 2, Jai Jawan Colony, Tonk Road, Jaipur.

¶23

-----Petitioner

¶24

State of Rajasthan through Secretary, Urban Development

¶25

and Housing Department, Government of Rajasthan, Secretariat, Jaipur.

¶26

(3 of 53)

¶27

CW-104/2003]

¶28

Jaipur Municipal Corporation, Tonk Road, Jaipur through Chief Executing Officer.

¶29

S.S. Creations, Block-A, Bhawani Villa, Gulab Path, Chomu House, C-Scheme, Jaipur.

¶30

----Respondents

¶31

4 D.B. CIVIL WRIT PETITION NO. 1204/2012

¶32

Bharti Hexacom Limited, having its office for Rajasthan Circle at K- 21, Malviya Marg, C-Scheme, Jaipur – 302001, Rajasthan, through its Authorized Signatory, Mr. Mohindra Pal Singh Jadon, Manager -Legal & Regulatory.

¶33

----Petitioner

¶34

Versus

¶35

State of Rajasthan through Chief Secretary, Government of Rajasthan, Government Secretariat, Jaipur-302005.

¶36

Nagar Nigam Jaipur, through its Mayor, Pandit Deen Dayal Upadhyay Bhavan, Lal Kothi, Jaipur.

¶37

M/s S.s. Creations, A-Block, Bhawani Villa, Gulab Path, Chomu House, C-Scheme, Jaipur.

¶38

----Respondents

¶39

5 D.B. CIVIL WRIT PETITION NO. 2895/2012

¶40

(4 of 53)

¶41

[CW-104/2003]

¶42

Tata Teleservices Limited, a company incorporated under the Companies Act, 1956 having registered office at Tower-1, 10^th Floor, Jeevan Bharti, 124, Connaught Circus, New Delhi- 110001, having its Rajasthan Circle Office at Guman-1, Amrapali Circle, Vaishali Nagar, Jaipur through its constituted Attorney Shri Yashdeep Singh.

¶43

-----Petitioner

¶44

Versus

¶45

State of Rajasthan through Secretary, Department of Urban Development & Housing, Govt. of Rajasthan, Secretariat, Jaipur.

¶46

The Nagar Nigam Jaipur through its Chief Executive Officer, Tonk Road, Jaipur.

¶47

M/s. S.S. Creations, A-Block, Bhawani Villa, Gulab Path, Chomu House, C-Scheme, Jaipur.

¶48

----Non-Petitioners

¶49

6 D.B. CIVIL WRIT PETITION NO. 3054 OF 2012

¶50

M/s. Reliance Communication Ltd., D-69, Sardar Patel Marg, C- Scheme, Jaipur- through its authorised Signatory Shri Suneel Mundra.

----Petitioner

(5 of 53)

[CW-104/2003]

Versus

State of Rajasthan- through Secretary, Urban Development & Housing, Government of Rajasthan, Rajasthan Secretariat,

¶56

Jaipur.

¶57

Jaipur Nagar Nigam – through Mayor, Lal Kothi, Tonk Road, Jaipur.

¶58

M/s. S.s. Creations, A Block, Bhawani Villa, Gulab Path, Chomu House C-Scheme, Jaipur.

¶59

----Respondents

¶60

7 D.B. CIVIL WRIT PETITION NO. 6386/2012

¶61

UltraTech Cement Ltd. having its Registered Office at – Ahura Centre, “B” Wing, 2nd Floor, Mahakali Caves Road, Andheri, (East), Mumbai and office at C-116, Alaknanda, 1st Floor, Janpath, Behind New Vidhan Sabha, LalKothi Scheme Jaipur-302015 through its Power of Attorney Holder Shri S.K. Bhomia, Regional Head (F&C).

¶62

-----Petitioner

¶63

Versus

¶64

Municipal Corporation Jaipur through its Chief Executive Officer, Lal Kothi, Jaipur.

¶65

S.S. Creations, Block-A, Bhawani Villa, Gulab Path, Chomu

¶66

House, C- Scheme, Jaipur.

¶67

(6 of 53)

¶68

[CW-104/2003]

¶69

State of Rajasthan through Secretary Local Self Department, Government of Rajasthan, Jaipur.

¶70

Commissioner (Revenue) Municipal Corporation, Lal Kothi, Jaipur.

¶71

----Respondents

¶72

8 D.B. CIVIL WRIT PETITION NO. 3727/2015

¶73

Bharti Haxacom Limited, having its office for Rajasthan Circle at K- 21, Malviya Marg, C-Scheme, Jaipur – 302001, Rajasthan, through its Authorized Representative, Mr. Abhishek Roy, Assistant Manager – Legal & Regulatory.

¶74

-----Petitioner

¶75

Versus

¶76

State of Rajasthan through Chief Secretary, Government of

¶77

Rajasthan, Government Secretariat, Jaipur – 302005.

¶78

Nagar Parishad, Alwar Through its Chairperson.

¶79

M/s Tanishka Publicity, Teej Ki Police Chowki, Alwar.

¶80

Nagar Parishad, Dausa Through its Chairperson.

¶81

K.K. Contraction Company, 6/42, Kamla Sadan, Maruti

¶82

Colony, Dausa, Rajasthan.

¶83

----Respondents

¶84

For Petitioner(s) : Mr S Kasliwal, Sr Advocate with Mrs Suruchi Kasliwal, Mr K Verma

¶85

and Mr Yellop Singh

¶86

Mr Sanjay Jhanwar with Mr Prakul Khurana

¶87

(7 of 53)

¶88

[CW-104/2003]

¶89

Mr RN Mathur, Sr Advocate with Mr Akhil Simlote and Mr Ransher Singh

¶90

Mr CP Sharma for Mr Mahendra Goyal

¶91

Mr Rounak Bapna for Mr Sunil Nath

¶92

Mr Suraj Sharma

¶93

For Respondent(s) : Mr SK Gupta, Additional Advocate General with Mr PS Naruka

¶94

Mrs Naina Saraf

¶95

Mrs Susan Mathew

¶96

HON'BLE MR. JUSTICE M.N. BHANDARI

¶97

HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

¶98

Order

¶99

16/05/2018

¶100

By this batch of writ petitions, a challenge is made to the demand of licence fee towards advertisement. In few writ petitions, challenge is also made to the Nagar Parishad, Jaipur (Advertisement) Bye-laws, 1974 ( for short ‘the Bye-laws of 1974’) and the amendment made vide Notifications dated 13.7.2004 and 7.6.2008 to enhance the fee.

¶101

The challenge to the Bye-laws have been made first in reference to the Rajasthan Municipalities Act, 1959 (for short ‘the Act of 1959’). The Rajasthan Municipalities Act, 2009 (for short ‘the Act of 2009’) came thereupon thus challenge to it has been made even in reference to the Act of 2009. We are first dealing with the challenge in reference to the provisions of both the Acts.

¶102

(8 of 53)

¶103

CW-104/2003]

¶104

The demand of fee has been raised by the Municipal Corporation, Jaipur towards advertisement and even for putting signboards. It is said to be in consonance to the Bye-laws of 1974 and the amendment made from time to time.

¶105

It is stated that advertisement or the signboards were not on the sites belonging to the Municipal Corporation so as to charge fee. If it is assumed that it was still payable, recovery of it could not have been by third party. The third party was assigned the rights of recovery for financial year 2011-12. The assignment to recover the amount of fee was unauthorisedly given to private respondent-M/s SS Creations. Hence, challenge to the arrangement has also been made.

¶106

Elaborating the facts, it is stated that levy of fee has been made even for putting signboards in the premises or outside the premises. No licence was taken or required for it so as to charge fee. In absence of the licence for the signboards or any other board, no fee could have been levied by the respondentCorporation thus, at the first instance, challenge to demand of fee has been made on the aforesaid ground.

¶107

It is also stated that few petitioners deposited the fee with self assessment yet without a notice to show assessment to

¶108

(9 of 53)

¶109

[CW-104/2003]

¶110

be improper, they were harassed by the third party assigned the right of collection of fee.

¶111

A further challenge is made to the validity of the Byelaws of 1974. It is for imposition of fee towards advertisement.

¶112

Mr S Kasliwal, Sr Advocate submits that if the matter is considered in reference to the provisions of the Act of 1959, it would not allow Municipal Corporation to impose fee. They can only regulate the advertisements. The imposition of fee is thus without competence. A specific reference of section 90(1) (ac) of the Act of 1959 has been given. The provision aforesaid is to regulate advertisement. The reference of section 138(3) of the Act of 1959 has also been given. The Municipal Corporation could not have framed Advertisement Bye-laws of 1974 to impose fee or charges for advertisement or putting signboard even if it is taken to be regulatory in nature.

¶113

The arguments have been made even in reference to the provisions of the Act of 2009. It is submitted that section 102 of the Act of 2009 provides for obligatory taxes. It can be on the advertisement also but to impose it, State need to frame rules which are missing herein.

¶114

(10 of 53)

¶115

CW-104/2003]

¶116

A further reference of section 105 of the Act of 2009 has been given which allows Corporation to levy fee and fines. It is for levy of fee and fines only on the sites belonging to the Corporation. In the light of the aforesaid, section 105 cannot regulate charging of fee for the sites belonging to private persons and not of the Corporation. In view of the above, even section 105 of the Act of 2009 cannot apply to the present case.

¶117

A further reference to section 337, 339 and 340 has been given. Learned counsel Mr Sanjay Jhanwar made a specific argument to show power of the State Government to make rules and regulations. Clause (xxiv) of sub-section (2) of section 337 of the Act of 2009 provides for levy of taxes under section 102 and, for which, rules have to be made by the State Government but respondents have not framed any rules for levy of taxes, therefore, demand pursuant to it or under Bye-laws of 1974 cannot take place as they are not the rules framed by the State. The Rules can be framed in the manner and by the procedure provided under the Act and not de hors thereto.

¶118

A further reference of section 339 (b) of the Act of 2009 has been given to demonstrate that the Municipalities can make rules for imposition of levy and collection of fee and fines under secion 105 but section 105 provides levy of fee and fines on the sites belonging to Corporation, whereas, none of the petitioners are using sites belonging to the Municipal Corporation,

¶119

(11 of 53)

¶120

[CW-104/2003]

¶121

Jaipur so as to regulate them by section 339(b) and even to frame rules for levy of fee on private sites.

¶122

A further reference of section 340 (1)(zg) has been given. If the Municipality has power, it is only to regulate posting of bills and advertisements, and the position, size, shape and style of sign posts and not for imposition of fee thus even if powers under section 340 are said to have been exercised, it could not have been for imposition of fee. Therefore also, Bye-laws of 1974 deserves to be struck down if not entirely then to the extent of imposition of fee.

¶123

A further reference of section 344 of the Act of 2009 is given to demonstrate that the earlier Regulations of 1974 are not saved by “repeal and savings” clause. It is for the reason that earlier Regulations of 1974 are in conflict with section 102 of the Act of 2009. The Bye-laws or even the Regulations are not saved by section 344 if it is in conflict or contrary to the provisions of the Act of 2009. Since Bye-laws of 1974 are in conflict with section 102 of the Act of 2009 thus are not saved by section 344. Hence, at least, from the date of enactment of the Act of 2009, no fee could have been levied by the respondent-Municipal Corporation.

¶124

A reference of section 127 of the Act of 1959 has also been given to support the argument aforesaid.

¶125

(12 of 53)

¶126

[CW-104/2003]

¶127

Learned counsel for petitioners, lastly, contended that

¶128

even if none of the arguments is acceptable, then also, levy of fee and enhancement thereof by way of amendment is illegal. The respondent Corporation has failed to justify levy of fee as is required. It is otherwise not required while imposing taxes. There exists difference between tax and fee. For charging tax, it is not required justification in terms of service. It is required for imposition of fee.

¶129

The distinction between the taxes and fee has been made by the Division Bench of this court in the case of Jaipur Advertising Service, Jaipur versus The Municipal Council and others, DB Civil Writ Petition No.346/1978, decided on 10.8.1989. It was held that fee can be imposed only to the extent of service. It has not been given out as to what service would be rendered to justify the fee.

¶130

Same view has been taken by the Apex Court in the case of “M Chandru versus Member-Secretary, Chennai Metropolitan Development Authority and anr”, (2009) 4 SCC 72. Reference of para 24 of the said judgment has been given to show application of principle of “quid pro quo” for imposition of fee. The Municipal Corporation herein has failed to support levy of fee or enhancement thereupon by referring to the service rendered by them as a consequence of it. Accordingly, imposition of fee or

¶131

(13 of 53)

¶132

[CW-104/2003]

¶133

enhancement tereupon is hit by the principle of “quid pro quo”. The prayer is accordingly not only to set aside the demands raised by the Corporation towards advertisements but even engagement of an agency for its collection and, lastly, to struck down the Byelaws of 1974.

¶134

Mr Sanjay Jhanwar has raised an argument in reference to Article 243X of the Constitution of India. It is submitted that as per the above Article, power to impose taxes and funds for the Municipalities has been given to the State. In the instant case, no legislation has been made by the State Government so as to give effect to imposition or recovery of taxes and funds. In view of the above also, demand of fee becomes illegal.

¶135

Learned counsel for Municipal Corporation, Jaipur Mrs Naina Saraf has vehemently opposed the writ petitions. It is submitted that a challenge to the demand of fee towards advertisement has been made on factual grounds. The arguments have been raised without proper interpretation of the provisions of the Act. Learned counsel for petitioners have made reference of section 90 and 138 of the Act of 1959 to question imposition of fee. According to them, respondent Corporation can only regulate advertisements. The imposition of fee cannot be said to be within the scope of sections 90 and 138 of the Act of 1959. The licence fee is otherwise considered to be regulatory in nature. It was held

¶136

(14 of 53)

¶137

[CW-104/2003]

¶138

in the subsequent judgment of the Division Bench of this court in the case of “M/s National Advertising Co. versus State of Rajasthan & ors”, 2011(3) WLC 691. The arguments have been raised in ignorance of the aforesaid judgment. The Division Bench dealt with the issue questioning enhancement of advertisements fee. It was on the ground taken in the earlier judgment in the case of Jaipur Advertisement Service (supra). The Division Bench considered the issue after referring the judgment in the case of National Advertising Co.(supra). It was held that the licence fee is regulatory in nature thus the principle of “quid pro quo” would not apply.

¶139

There is no necessity for the respondent Corporation to justify imposition of fee by narrating the services as a consequence to it though they are extending service equivalent thereto. In view of the above, challenge to the fee or enhancement thereupon are in ignorance of the judgment of the Division Bench of this court in the case of National Advertising Co (supra). It answers all the questions raised by the petitioners.

¶140

Another judgment relied by learned counsel for Municipal Corporation is in bunch of writ petitions led by “MGF Event Management Pvt Ltd, Jaipur versus State of Rajasthan & ors”, SB Civil Writ Petition N.2502/2014, decided on 13.5.2014. The judgment therein was given in reference to the provisions of the Act of 2009 and, more specifically, after the amendment in the

¶141

(15 of 53)

¶142

[CW-104/2003]

¶143

advertisement Bye-laws in the year 2004. The judgment aforesaid covers the issue in reference to section 102 and 105 of the Act of 2009. The provisions of Bye-laws have been referred with detailed discussions on each issue thus aforesaid judgment is also covering the issue raised by the petitioners.

¶144

It is stated that section 102 of the Act of 2009 has no application in the instant case. What has been demanded by the Municipal Corporation is not the tax but the fee thus all the arguments raised in reference to section 102 and 337 without any relevance.

¶145

So far as section 105 is concerned, it permits the Municipal Corporation to levy fee and funds and it is not only for the sites belonging to the Corporation, as has been interpreted by the petitioners.

¶146

A further reference of section 344 of the Act of 2009 has been made to show repeal of and savings clause applicable to the Act. The Bye-laws of 1974 are not in conflict with the provisions of the Act. Learned counsel for petitioners have unnecessarily referred section 102 to show conflict with Advertisement Bye-laws of 1974.

¶147

(16 of 53)

¶148

[CW-104/2003]

¶149

Learned counsel for private respondent Mrs Susan

¶150

Mathew submits that despite an agreement with the Municipal Corporation to collect advertisement fee, it has been directly paid to the Corporation. A direction may be given to pay the entire amount deposited with the Municipal Corporation.

¶151

We have considered rival submissions of the parties and perused the record.

¶152

We are first dealing with the Advertisement Bye-laws of 1974 and, for it, would take into consideration the facts of this case.

¶153

The challenge to the Bye-laws of 1974 has been made in reference to provisions of the Act of 1959 as well the Act of 2009 thus both would be taken into consideration separately. We are first referring to sections 90 and 138 of the Act of 1959. The provisions aforesaid read as under-

¶154

“ 90. Power to make bye-laws.- (1) Every board may, from time to time, make bye-laws not inconsistent with this Act-

¶155

(a) for the regulation and inspection of markets, public places used for the sale of articles and slaughter houses, all places used by or for animals which are for sale or hire, or the produce of which is sold, and for the proper and cleanly conduct of business therein; for regulating the sale of fruits and vegetables in the municipal markets or other

¶156

(17 of 53)

¶157

[CW-104/2003]

¶158

specified places; and for fixing the rents and other charges to be levied for the use of any of them which belong to the board;

¶159

(b) prescribing the conditions on or subject to which, and the circumstances in which, and the areas or localities in respect of which, licences may be granted, refused, suspended or withdrawn for the use of any place not belonging to the board-

¶160

(i) as a slaughter house;

¶161

(ii) as a market or shop for the sale of animals intended for human food, or of meat, or of fish, or as a market for the sale of fruits or vegetables; (iii) for any of the purposes mentioned in section 248;

¶162

(iv) as a dairy, hotel, restaurant, eating-house, coffee-house, sweet, meat-shop, bakery, camping-ground, sarai, dhobi-ghat, flour mill, sawmill, ice-candy factory, foodgrain-godown, boarding house, lodging-house (other than a student’s hostel under public or recognised control) or for manufacturing ice or careated water;

¶163

(v) as a place for the preparation or manufacture of oil;

¶164

(vi) for parching grain or Bengal grain on a large scale; or

¶165

(vii) for any other purpose for which the taking out of a licence may be prescribed;

¶166

and providing for the inspection and regulation of the conduct of business in any place used as aforesaid, so as to secure cleanliness therein or to minimise any injurious, offensive or dangerous effect arising likely to arise therefrom;

¶167

(c) prohibiting the stalling or herding of horses, camels, donkeys, sheep or goats, otherwise than in accordance with such rules prescribed in such bye-laws in regard to the number thereof, and the places to be used for the purpose, as may be necessary to prevent danger to the public health;

¶168

(18 of 53)

¶169

[CW-104/2003]

¶170

(d)(i) for the inspection of milk cattle; and prescribing and regulating the construction, dimensions, ventilation, lighting, cleansing, drainage and water-supply of dairies and cattlesheds in the occupation of persons following the trade of dairymen of milk-sellers;

¶171

(ii)for securing the cleanliness of mile-stores, milk-shops and vessels used by milk-sellers or butter-men for milk or butter;

¶172

(e) for the registration of births, deaths and marriages, and the taking of a census within the municipality and for enforcing the supply of such information as may be necessary to make such registration or census effective;

¶173

(f) regulating the disposal of the land dead and of the carcasses of dead animals and the maintenance of all places for the purpose in good order and in a safe sanitary condition, due regard being had to the religious usages of the community or section of the community entitled to the use of such places for the disposal of the dead;

¶174

(g) enforcing the supply of information as to any cases of dangerous disease, and carrying out the provisions of section 238;

¶175

(h) enforcing the supply of such information by inhabitants of the municipality as may be necessary to ascertain their respective liabilities to any tax imposed therein;

¶176

(i) the numbering and registration of any vehicle liable to taxation under this Act;

¶177

(j) fixing octroi limits and stations and providing for the exhibition of tables of octroi;

¶178

(19 of 53)

¶179

[CW-104/2003]

¶180

(k) conserving and preventing injury to sources and means of water-supply and appliances for the distribution of water whether within or without the limits of the municipality; and regulating all matters and things connected with the supply and use of water and the turning on or turning or and preventing the waste of water, and the construction, maintenance and control of municipal water works and of pipes and fittings in connection therewith, whether the property of the board or not;

¶181

Explanation.- Sources and means of water supply shall include private wells which are used by the public.

¶182

(l) regulating the use of public bathing and washing places within municipal limits;

¶183

(m) regulating sanitation and conservancy;

¶184

(n) regulating the conditions for the construction, use and disposal of house intended for the poor under clause (c) of section 101;

¶185

(o) regulating the conditions on which permission may be given for the temporary occupation of, or the creation of temporary structures on public streets, or for projection over public streets;

¶186

(p) regulating the structure and dimensions of plinths, walls, foundations, floors, roofs and chimneys of new buildings for the purpose of securing stability and the prevention of fires and for purposes of health;

¶187

(q) regulating the erection or use of buildings for grain shops or grain stores, the use of sites for erection of buildings and, in localities intended for residential purposes, the erection or use of buildings for shops, market places, manufactories, places of public resort or for any other purpose;

¶188

(r) preventing the erection of buildings without adequate provision being made for the laying out and location of streets;

¶189

(20 of 53)

¶190

[CW-104/2003]

¶191

(s) ensuring the adequate ventilation of buildings by the provision and maintenance of sufficient open space either internal or external and of doors and windows and other means for securing a free circulation of air;

¶192

(t) regulating, in any other particular not specially provided for in this Act, the construction, maintenance and control or drains, sewers, ventilation shafts, receptacles for dung and manure, cess-pools, water-closets, privies, latrines, urinals and drainage or sewage works of every description, whether the property of the board or not;

¶193

(u) determining the information and plans to be required by the board under section 170;

¶194

(v) prohibiting the transit of any vehicles of such form, construction, weight or size, or laden with such machinery or other unwieldy objects as may be deemed likely to cause injury to the roadway or to any construction thereon, or risk or obstruction to other vehicles or to pedestrians, along or every any street, except under such conditions as to time, mode of traction or locomotion, use of appliances for protection of the roadway, number of lights and assistants and other general precautions as may be prescribed, either generally in such bye-laws or in special licenses to be granted in each case upon such terms as to time of application and payment of fees therefor as may be prescribed in such byelaws:

¶195

Provided that no such bye-laws relating only to any particular street or portion of a street shall be deemed to be in force unless and until notice of such prohibition shall have been posted up by the board in conspicuous places at or near both ends of such street or portion of a street;

¶196

(21 of 53)

¶197

[CW-104/2003]

¶198

(w) securing the protection of public parks, gardens and open spaces, vested in or under the control of the board from injury or misuse, regulating their management and the manner in which they may be used by the public, and providing for the proper behaviour of persons in them;

¶199

(x) regulating or prohibiting any description of traffic in the streets and providing for the reduction of noise caused thereby;

¶200

(y) rendering licenses necessary for the proprietors or drivers of vehicles or animals kept or plying for hire within the limits of the municipality, and fixing the fees payable for such licenses and the conditions on which they are to be granted and may be revoked;

¶201

(z) limiting the rates which may be demanded for the hire of any carriage, cart or other conveyance or of any animals hired to carry loads or persons, or for the service of persons hired to carry loads or to impel or carry such conveyance, and limiting the loads which may be carried by any animal, or carriage, cart, or other conveyance, plying for hire, within the limits for the municipality;

¶202

(aa) for the holding of fairs and industrial exhibitions within the municipality or under the control of the board and for the collection of fees under section 138;

¶203

(ab) for the licensing, inspection and proper regulation of places of public resort, recreation or amusement;

¶204

(ac) regulating the posting of bills and advertisements, and the position, size, shape and style of name-boards and sign-posts;

¶205

(22 of 53)

¶206

CW-104/2003]

¶207

(ad) rendering licenses necessary for hand-carts employed for transport, or hawking articles for sale, and for the persons using such hand-carts, and prescribing the conditions for the grant and revocation of such licenses;

¶208

(ae) generally for the regulation of all matters relating to municipal administration;

¶209

and every board may prescribe a fine not exceeding five hundred rupees for the infringement of any such bye-laws.

¶210

(2) Every board shall, before making nay beylaws under this section, publish, in such manner as shall in its opinion be sufficient, for the information of persons likely to be affected thereby, a draft of the proposed bye-laws, together with a notice specifying a date on or after which the draft will be taken into consideration and shall, before making the bye-laws, receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified.

¶211

(3) No bye-laws made by a board shall take effect unless it is sanctioned by the State Government.

¶212

(4) When any bye-laws made by a board is submitted to the State Government for sanction, a copy of the notice published under sub- section (2) and of every objection or suggestion made thereto shall be submitted for the information of the State Government along with the said bye-law.

¶213

(23 of 53)

¶214

[CW-104/2003]

¶215

138. Board may charge fee for certain licenses.(1) When any licence is granted by the board under this Act or when permission is given by it for making any temporary erection or for putting up any projection, or for the temporary occupation or any public street or other land vested in the board, the board may charge a fee for such licence or permission.

¶216

(2) The board may charge a higher fee by way of penalty for any erection or projection, or for the use or occupation of any public street or other land vested in the board by any person without its permission or licence. Such fee shall be leviable irrespective of any other penalty or liability to which the person liable to pay the same may be subject under any other provision of this Act or any other law for the time being in force. The rates of such higher fees shall be determined by rules.

¶217

(3) The board may also charge such fees as may be fixed by bye-laws under clauses (a), (q) and (r) of subsection (1) of section 90, for the use of any such places mentioned in that sub-section as belong to the board.

¶218

(4) It shall be lawful for the board to lease the levy of any fee that may be imposed under sub-section (3) by public auction.

¶219

(5) When any fee has been leased under sub-section (4), any person employed by the lessee to collect such fees or the lessee himself may, subject to the conditions of the lease, collect the fee or expel from the place for the use of which the fee is payable any person who is liable to pay the fee but refuses to pay it.”

¶220

If the case is considered in reference to the Act of 1959, section 90 (1)(ac)of the Act of 1959 permits making of Byelaws to regulate posting of bills and advertisements, and the position, size, shape and style of sign posts etc. Further, if it is read with section 138 of the Act of 1959, it permits even to charge fee for licences though while governing it by section 90 itself, imposition of fee can be made for regulating the advertisements thus irrespective of section 138, the levy of fee can be while

¶221

(24 of 53)

¶222

CW-104/2003]

¶223

regulating the advertisement as per section 90(1)(ac) of the Act of 1959.

¶224

The other argument is in reference to the provisions of the Act of 2009. Learned counsel for petitioners have made reference of section 102, 105, 127, 337, 339, 340 and 344 of the Act of 2009, which are quoted hereunder for ready reference -

¶225

“ 102. Obligatory taxes.- (1) Subject to the provisions of section 4, every Municipality may, and if so required by the State Government shall, levy, at such rate and from such date as the State Government in each case direct by notification in the Official Gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely:-

¶226

(a) tax on lands and buildings [called by whatever name] situated in the municipal limits, by unit area base method or by any other method;

¶227

(b) tax on professions, trades, callings and employment;

¶228

¶229

(d) a tax for pollution control from the trade and industries which are the source of environment pollution within the municipal limits;

¶230

(e) a tax on permissible display or advertisements on public place or on private land or building;

¶231

(f) any other tax which State Government has power to impose under the Constitution of India:

¶232

Provided that upon a representation made to it by and at the request of a Municipality, the State Government, if it is satisfied that

¶233

(25 of 53)

¶234

[CW-104/2003]

¶235

circumstances exist which sufficiently provide the justification for a Municipality not to levy, or to stop the levy, or reduce the rate of , any of the taxes mentioned in this section, may, by special order published in the Official Gazette, along with the reasons for making such order, permit the Municipality not to levy, or to stop the levy, or reduce the rate, of any such tax.

¶236

(2) A direction under sub-section (1) may provide for the levy of taxes at different rates in different Municipalities having regard to their varying local conditions and needs, and on the same considerations and by a like direction, the State Government may, from time to time vary uniformly or differently in relation to different Municipalities, the rates of taxes levied.

¶237

105. Power to levy fees and fines.- The Municipality shall have the power to levy fees and fines in exercise of the regulatory powers vested in it by or under this Act or the rules or the bye-laws made thereunder for -

¶238

(a) sanction of building plans and issue of completion certificates,

¶239

(b) issue of municipal licences for various nonresidential uses of lands and buildings,

¶240

¶241

(i) various categories of professionals such as plumbers and surveyors,

¶242

(ii) various activities such as sinking of tubewells, sale of meat, fish or poultry, or hawking of articles,

¶243

(iii) sites used for advertisements or premises used for private markets, slaughterhouses, hospitals, nursing homes,

¶244

(26 of 53)

¶245

[CW-104/2003]

¶246

clinics, factories, warehouses, godowns, goods transport depots, eating-houses, lodging-houses, hotels, theatres, cinemahouses and places of public amusement and for other nonresidential uses,

¶247

(iv) animals,

¶248

(v) carts or carriages, and

¶249

(vi) such other activities as require a licence or permission under the provisions of this Act, and

¶250

(d) issue of birth and death certificates,

¶251

in accordance with the provision of this Act, and the rules or byelaws made thereunder.

¶252

127. Duty to recover the taxes.- The Chief Municipal Officer or any officer authorized by him shall be responsible for proper levy and recovery of the taxes imposed under sections 102 and 103.

¶253

337. Power of State Government to make rules and orders. - (1) The State Government may make rules or orders generally for the purpose of carrying into effect the provisions of this Act and prescribe forms for any proceeding for which it considers that a form should be provided.

¶254

(2) In particular, and without prejudice to the generality of the foregoing power, the State Government shall make rules –

¶255

(i) with reference to all matters expressly allowed by this Act to be prescribed;

¶256

(27 of 53)

¶257

[CW-104/2003]

¶258

(ii) for prescribing the manner of allotment of seats reserved for members of Scheduled Castes, Scheduled Tribes, the Backward Classes or for women;

¶259

(iii) with regard to all matters relating to the preparation, revision, modification, updating and publication of electoral rolls;

¶260

(iv) for prescribing particulars which shall contain in the notice given for withdrawal of candidature from election on more than one seat;

¶261

(v) for prescribing the manner in which votes shall be given in an election and the manner in which votes shall be given and recorded by the voting machines;

¶262

(vi) with regard to all matters relating to presentation of an election petition, procedure to be followed and powers to be exercised by the District Judge in disposing the election petition;

¶263

(vii) for prescribing the form in which oath or affirmation shall be made by a member before entering upon his duties;

¶264

(viii) for prescribing the manner in which the Judicial Officer shall enquire into the charge against a member and for prescribing the matters, other than those specified in clauses (a) to (c) of sub-section (5) of section 39, regarding which the judicial Officer shall have power of a civil court while inquiring into the said charges;

¶265

(ix) for prescribing the manner of election of Chairperson and Vice-Chairperson and the manner of reserving the offices of the Chairpersons and for prescribing the monthly allowances and facilities which may be allowed to the Chairperson out of the municipal fund;

¶266

(28 of 53)

¶267

[CW-104/2003]

¶268

(x) for prescribing the executive functions other than those specified in clauses (a) to (d) of sub-section (1) of section 48;

¶269

(xi) for prescribing the powers of the Chief Municipal Office;

¶270

(xii) for prescribing the manner in which charge of the office a Chairperson or a ViceChairperson shall be handed over;

¶271

(xiii) for prescribing the procedure for conducting the business of the meeting of the Municipality;

¶272

(xiv) for prescribing the manner, of putting question by a member to the Chairperson, and of moving resolutions on the matters connected with the administration of the Municipality;

¶273

(xv) for prescribing the manner of making and considering the motion expressing no confidence in the Chairperson or the ViceChairperson;

¶274

(xvi) for prescribing the powers, duties and functions, and the procedure for conducting the meetings, of the committees constituted under section 55;

¶275

(xvii) for prescribing the restrictions, limitations and conditions subject to which any powers, duties or executive functions, which may be exercised, discharged or performed by or on behalf of the Municipality, may be delegated to the committees and for prescribing the manner of calling the meeting of the Municipality for delegating the powers, duties and functions of the Chairperson to a member;

(xviii) deleted.

(29 of 53)

[CW-104/2003]

(xix) for regulating the sale or disposal of immovable property and land;

¶280

(xx) for prescribing the manner of preparing and maintaining records of urban land situated in the municipal limits;

¶281

(xxi) for prescribing heads of accounts other than those specified in sub-section (2) of section 79 and for prescribing manner and form in which accounts shall be kept;

¶282

(xxii) for prescribing the manner in which payments from Municipal funds shall be made;

¶283

(xxiii) for transfer of surplus money from one head to another head with regard to all matter relating to preparation, presentation, adoption of budget estimates, preparation and maintenance of accounts and balance sheet etc;

¶284

(xxiv) for prescribing the rate, date, and manner for imposing and levying the taxes under section 102;

¶285

(xxv) for prescribing the manner in which internal audit of the day-to-day accounts of the Municipality may be carried out;

¶286

(xxvi) for prescribing the form in which return shall be furnished by the owner or occupier on the requisition of the assessor;

¶287

(30 of 53)

¶288

[CW-104/2003]

¶289

(xxvii) for prescribing the form of warrant for attachment and sale of property of the defaulter and for prescribing the manner in which the attached property may be sold;

¶290

(xxviii) for prescribing the manner in which repaying capacity of a Municipality shall be ascertained for the purposes of granting loan or giving grantee for a loan raised by the Municipality;

¶291

(xxix) for prescribing the types of private sector participation agreements for the purpose of this Act;

¶292

(xxx) for prescribing the Chapters, material and schemes to be incorporated in the City Development Plan;

¶293

(xxxi) for prescribing the manner in which the elected members of Committee for Metropolitan Planning shall be chosen;

¶294

(xxxii) for prescribing the extent to which land in any scheme may be reserved for the purpose of providing housing accommodation to the members of Scheduled Castes, Scheduled Tribes, the Backward Classes and weaker sections of the society, including disabled, handicapped and mentally retarded persons and unassisted elderly persons;

¶295

(xxxiii) for regulating the sanction of specific rights of way in the sub-soil of public and private streets for different public utilities;

¶296

(31 of 53)

¶297

[CW-104/2003]

¶298

(xxxiv) for prescribing rates of the conversion charges for change of use of land and for prescribing the manner in which objections shall be invited and heard with respects to change of use of land;

¶299

(xxxv) for prescribing the manner and the time in which water harvesting structure shall be provided in the buildings owned or occupied by the Government or statutory body or a company or a institution owned or controlled by the Government;

¶300

(xxxvi) for prescribing limitations, restrictions and conditions subject to which the Municipality may exercise powers in respect of prevention of dangerous diseases;

¶301

(xxxvii) for prescribing limitations, restrictions and conditions subject to which the Municipality may exercise powers conferred on it under section 274;

¶302

(xxxviii) for prescribing the functions of the State Municipalities Union;

¶303

(xxxix) for prescribing the manner of sending the statement of charges against a Municipality to the Tribunal for enquiry and findings; and for prescribing the manner of constitution of the Tribunal;

¶304

(xl) for prescribing the special or technical duties which shall be performed by the officers appointed in the Rajasthan Municipal Technical Service; and

¶305

(xli) for prescribing term and conditions of service in respect of the Rajasthan Municipal Services.

¶306

(32 of 53)

¶307

CW-104/2003]

¶308

(3) A rule may be general for all Municipalities or for all Municipalities not expressly exempted from its operation or may be special for the whole or any part of anyone or more Municipalities as the State Government may direct.

¶309

(4) Notwithstanding anything contained in sections 339 and 340, in case the Municipality fails to make any rules or byelaws as prescribed and the State Government considers it necessary for the purposes of carrying into effect the provisions of this Act, it may also make the rules and bye-laws for the matters enumerated in sections 339 and 340.

¶310

(5) All rules and orders made by the State Government under this section shall come into effect on or from the date of their publication in the Official Gazette.

¶311

(6) All rules made under this Act shall be laid, as soon as may be, after they are so made, before the House of the State Legislature, while it is in session, for a period not less than fourteen days which may be comprised in one session or in two successive sessions and, if before the expiry of the session in which they are so laid or of the session immediately following, the House of the State Legislature makes any modification in any of such rules or resolves that any such rule should not be made, such rules shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder..-

¶312

(33 of 53)

¶313

[CW-104/2003]

¶314

339. Power of Municipality to make rules.- Every Municipality shall make rules, not inconsistent with this Act or with the rules made by the State Government under section 337.-

¶315

(a) with regard to all matters relating to imposition, levy, assessment and collection of the taxes under section 103;

¶316

(b) with regard to all matters relating to imposition, levy and collection of fees and fines under section 105;

¶317

¶318

(d) for prescribing all matters relating to the management of solid and bio-medical waste;

¶319

(e) with regard to determining the staff of officers and servants to be employed by the Municipality and the respective designations, duties, salaries, fees or other allowances of such officers and servants;

¶320

(f) generally for the guidance of its officers and servants in all matters relating to the municipal administration;

¶321

(g) fixing the amount and nature of the security to be furnished by any officer or servant from whom it may be deemed expedient to require security;

¶322

(h) determining the mode and conditions of appointing, transferring, punishing or dismissing any officer or servant and delegating to officers designated in the rules the powers to appoint, transfer, fine, reduce, suspend or dismiss any officer or servant;

¶323

(34 of 53)

¶324

[CW-104/2003]

¶325

(i) regulating the grant of leave to officers or servants, and fixing the remuneration to be paid to the person, if any, appointed to act for them whilst on leave; and

¶326

(j) authorizing the payment of contributions, at such rates and subject to such conditions as may be prescribed in such rule, to any pension or provident fund which may be established by the Municipality, or, with the approval of the Municipality, by the said officers and servants:

¶327

Provided that no Municipality shall, unless with the assent of the State Government, and otherwise than in accordance with the provisions of this Act or the rules made thereunder, dispense with the service of any officer transferred from the service of the Central or a State Government to the service of the Municipality or employed partly by the State Government and partly by the Municipality or finally dispense from the service of the Municipality any officer transferred from the service of the Municipality to the service of the State Government.

¶328

340. Power of Municipality to make byelaws. - (1) Every Municipality may, from time to time, make bye-laws not inconsistent with this Act and the rules made thereunder -

¶329

(a) for regulating the payments from the municipal fund;

¶330

(b) for prescribing all matters relating to the imposition, levy, assessment and collection of user charges under section 104;

¶331

(c) for prescribing the form of and the manner of keeping of maps, drawings and description of underground utilities and maps of fire hydrants and sewerage man-holes;

¶332

(35 of 53)

¶333

[CW-104/2003]

¶334

(d) for regulating the permission for temporary erection of a booth or any other structure on any public place;

¶335

(e) for prescribing the terms and conditions subject to which the precautions to be taken during construction or repair of street, drain or premise;

¶336

(f) for regulating the erection of all kind of buildings;

¶337

(g) for determining the technical qualifications and experience for the person seeking licence to act as a plumber;

¶338

(h) for regulating the projections of the building under section 192;

¶339

(i) for the regulation and inspection of markets, public places used for the sale of articles and slaughter houses, all places used by or for animals which are for sale or hire, or the produce of which is sold, and for the proper and clean conduct of business therein; for regulating the sale of fruits and vegetables in the municipal markets or other charges to be levied for the use of any of them which belong to the Municipality;

¶340

(j) prescribing the conditions on or subject to which, and the circumstances in which, and the areas or localities in respect of which, licences may be granted, refused, suspended or withdrawn for the use of any place not belonging to the Municipality-

¶341

(i) as a slaughter house;

¶342

(ii) as a market or shop for the sale of animals intended for human food, or of meat, or of fish, or as a market for the sale of fruits or vegetables;

¶343

(iii) for any of the purposes mentioned in section 282;

¶344

(36 of 53)

¶345

[CW-104/2003]

¶346

(iv) as a dairy, hotel, restaurant, eatinghouse, coffee-house, sweet, meat-shop, bakery, camping-ground, sarai, dhobi-ghat, flour mill, sawmill, ice-candy factory, foodgrain-godown, Municipality house, lodging-house (other than a students' hostel under public or recognized control) or for manufacturing ice or aerated water;

¶347

(v) as a place for the preparation or manufacture of oil;

¶348

(vi) for parching grain or Bengal grain on a large scale; or

¶349

(vii) for any other purpose for which the issuing of a licence may be prescribed,

¶350

and providing for the inspection and regulation of the conduct of business in any place used as aforesaid, so as to secure cleanliness therein or to minimize any injurious, offensive or dangerous effect arising or likely to arise therefrom;

¶351

(k) prohibiting the stabling or herding of horses, camels, donkeys, sheep or goats, otherwise than in accordance with such rules prescribed in such bye-laws in regard to the number thereof, and the places to be used for the purpose, as may be necessary to prevent danger to the public health;

¶352

(l) (i) for the inspection of milk cattle; and prescribing and regulating the construction, dimensions, ventilation, lighting, cleansing, drainage and water-supply of dairies and cattle-sheds in the occupation of persons following the trade of dairymen or milk sellers;

¶353

(ii) for securing the cleanliness of milkstores, milk-shops and vessels used by milksellers or butter-men for milk or butter;

¶354

(37 of 53)

¶355

[CW-104/2003]

¶356

(m) for the registration of births, deaths and marriages, and the taking of a census within the Municipality and for enforcing the supply of such information as may be necessary to make such registration or census effective;

¶357

(n) regulating the disposal of the dead and of the carcasses of dead animals and the maintenance of all places for the purpose in good order and in a safe sanitary condition, due regard being had to the religious usages of the community or section of the community entitled to the use of such places for the disposal of the dead;

¶358

(o) enforcing the supply of information as to any cases of dangerous disease, and carrying out the provisions of section 273;

¶359

(p) enforcing the supply of such information by inhabitants of the Municipality as may be necessary to ascertain their respective liabilities to any tax imposed therein;

¶360

(q) regulating the use of public bathing and washing places within municipal limits;

¶361

(r) regulating sanitation and conservancy;

¶362

(s) regulating the conditions for the construction, use and disposal of houses intended for the homeless under sub-clause (c) of clause (iv) of section 46;

¶363

(t) regulating the conditions on which permission may be given for the temporary occupation of, or the creation of temporary structures on public streets, or for projections over public streets;

¶364

(u) regulating the structure and dimensions of plinths, walls, foundations, floors, roofs and chimneys of new buildings for the purpose of securing stability and the prevention of fires and for purposes of health;

¶365

(38 of 53)

¶366

[CW-104/2003]

¶367

(v) regulating the erection or use of buildings for grain shops or grain stores, the use of sites for erection of buildings and, in localities intended for residential purposes, the erection or use of buildings for shops, market places, manufacturing, places of public resort or for any other purpose;

¶368

(w) preventing the erection of building without adequate provision being made for the laying out and location of streets;

¶369

(x) ensuring the adequate ventilation of buildings by the provision and maintenance of sufficient open space either internal or external and of doors and windows and other means for securing a free circulation of air;

¶370

(y) regulating, in any other particular manner not specially provided for in this Act, the construction, maintenance and control of drains, sewers, ventilation shafts, receptacles for dung and manure, cess-pools, waterclosets, privies, latrines, urinals and drainage or sewage works of every description, whether the property of the Municipality or not;

¶371

(z) determining the conditions, restrictions, norms and specifications for all kinds of constructions looking to the local need for the purpose of operation of section 194 and section 236 in conformity with the directions issued and restrictions prescribed if any, from time to time, by the State Government;

¶372

(39 of 53)

¶373

CW-104/2003]

¶374

(za) prohibiting the transit of any vehicles of such form, construction, weight or size, or laden with such machinery or other unwieldy objects as may be deemed likely to cause injury to the roadway or any construction thereon, or risk or obstruction to other vehicles or to pedestrians, along or over any street, except under such conditions as to time, mode of traction or locomotion, use of appliances for protection of the roadway, number of lights and assistants and other general precautions as may be prescribed, either generally in such bye-laws or in special licences to be granted in each case upon such terms as to time of application and payment of fees therefore as may be prescribed in such bye-laws;

¶375

(zb) securing the protection of public parks, gardens and open spaces, vested in or under the control of the Municipality from injury or misuse, regulating their management and the manner in which they may be used by the public, and providing for the proper behaviour of persons in them;

¶376

(zc) regulating or prohibiting any description of traffic in the streets and providing for the reduction of noise caused thereby;

¶377

(zd) rendering licences necessary for the proprietors or drivers of vehicles or animals kept or plying for hire within the limits of the Municipality, and fixing the fees payable for such licences and the conditions on which they are to be granted and may be revoked;

¶378

(ze) limiting the rates which may be demanded for the hire of any carriage, cart or other conveyance or of any animals hired to carry loads or persons, or for the service of persons hired to carry loads or to impel or carry such conveyance, and limiting the loads which may be carried by any animal, or carriage, cart, or other conveyance, plying for hire, within the limits of the Municipality;

¶379

(zf) for the licensing, inspection and proper regulation of places of public resort, recreation or amusement;

¶380

(40 of 53)

¶381

[CW-104/2003]

¶382

(zg) regulating the posting of bills and advertisements, and the position, size, shape and style of sign-posts;

¶383

(zh) rendering licences necessary for handcarts employed for transport, or hawking articles for sale, and for the persons using such hand-carts, and prescribing the conditions for the grant and revocation of such licences;

¶384

(zi) generally for the regulation of all matters relating to municipal administration;

¶385

and every Municipality may prescribe fine for the infringement of any such bye-laws.

¶386

(2) Every Municipality shall, before making any bye-laws under this section, publish, in such manner as shall in its opinion be sufficient, for the information of persons likely to be affected thereby, a draft of the proposed by-laws together with a notice specifying a date on or after which the draft will be taken into consideration and shall, before making the bye-laws, receive and consider any objection or suggestion with respect to the draft which may be made in writing by any person before the date so specified.

¶387

344. Repeal and Savings.- (1) On and from the commencement of this Act, the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959) shall stand repealed.

¶388

(2) Without prejudice to the provisions of the Rajasthan General Clauses Act, 1955 (Act No. 8 of 1955),-

¶389

(41 of 53)

¶390

[CW-104/2003]

¶391

(a) such repeal shall not affect the validity or invalidity of anything already done or suffered or any action already taken under the repealed enactment or the rules, regulations and bye-laws made thereunder; and

¶392

(b) all Municipal Corporations, Councils, Boards or other municipal authorities established under the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959) shall, notwithstanding such repeal, be deemed to have been established under this Act and all Municipalities constituted, members nominated, appointed or elected, committees formed, limits defined, appointments, rules, orders and bye-laws made, notifications and notices issued, taxes imposed, contracts entered into and suits and other proceedings instituted under the repealed enactment shall so far as they are not inconsistent with the provisions of this Act, be deemed to have been respectively constituted, nominated, appointed or elected, formed, defined, made, issued, imposed, entered into and instituted under this Act.”

¶393

Section 102 provides for obligatory taxes. It is not the case of the Municipal Corporation that they have imposed tax. We fail to understand as to how the said provision is relevant for challenge to the Bye-laws of 1974. It imposes fee and not the tax so as to govern it by section 102 of the Act of 2009.

¶394

It is, no doubt, true that section 102 gives power for imposition of taxes even for advertisements but Municipal Corporation has not demanded tax towards advertisement.

¶395

(42 of 53)

¶396

[CW-104/2003]

¶397

Section 105 permits levy of fee and fine which is the case in hand thus section 102 has no application to the subject matter.

¶398

The reference of section 105 of the Act of 2009 has been given to show that the fee can be levied on the sites. The word “sites” has been given interpretation by drawing presumption about the sites belonging to the Municipal Corporation though section 105 does not provide for sites of the Municipal Corporation. We are unable to accept argument aforesaid in absence of use of term “sites belonging to the Municipal Corporation”. In our opinion, section 105 gives power to the Corporation to levy fee on different subjects which includes even for premises used for private market, hospital, nursing etc. They are not required to be on the land belonging to Municipal Corporation, Jaipur.

¶399

The Bye-laws of 1974 were brought under the Act of 1959 and we do not find any conflicting provision under the Act of 2009 so as to avoid application of section 344 of the Act of 2009. The Bye-laws of 1974 are saved by section 344 of the Act of 2009.

¶400

We are further dealing with the issues in reference to sections 337, 339 and 340 of the Act of 2009. Section 337 (2) (xxiv) and (6) have been referred on presumption that the charge of fee towards advertisements is a tax. It has already been clarified that demand is not of tax but advertisement fee thus

¶401

(43 of 53)

¶402

[CW-104/2003]

¶403

section 337 (2) (xxiv) and (6) have no application to the present case. The framing of the Rules by the State Government is required for imposition of tax and not for the fee.

¶404

Another provision referred by learned counsel for petitioners is section 339(b). It is presuming that section 105 apply only to the sites belonging to the Municipal Corporation and not to the sites or places belonging to others. An interpretation in reference to section 105 has already been given and, accordingly, we find that as per section 339(b), imposition of levy of fee for advertisements can be made. The provisions of section 339 demolish case of the petitioners for the aforesaid.

¶405

A further reference of section 340 has been given. It is for framing of Bye-laws by the Municipalities. It is stated that section 340(1) (zg) provides to regulate the bills and advertisements and the position, size, shape and style of signposts and not for imposition of fee. The argument aforesaid has been clarified by learned counsel for the non-petitioners. It is stated that framing of Bye-laws for regulating advertisements can be in all respects. It is even for imposing fee. We accept the aforesaid argument. It gives power to impose fee and, therefore, it was considered to be regulatory fee in the case of National Advertising Co (supra).

¶406

(44 of 53)

¶407

[CW-104/2003]

¶408

Another argument is in regard to Article 243X of the Constitution of India which is reproduced hereunder for ready reference-

¶409

“ 243X. Power to impose taxes by, and Funds of, the Municipalites.- The Legislature of a State may, by law,-

¶410

(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;

¶411

(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;

¶412

¶413

(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.”

¶414

Article 243X gives power to the State Legislature for imposition of taxes and funds. In the instant case, imposition is not of the tax or funds. The allocation of the funds is by the State Government but imposition of fee is within the purview of the Municipal Corporation as per the provisions of the Act of 1959 and 2009. Article 243X has no application on the facts of the case.

¶415

At this stage, we would like to make reference of the judgment in the case of Jaipur Advertising Service (supra). It is supporting the petitioners. The imposition of fee can be vis-a-vis service. The aforesaid judgment was subsequently considered by

¶416

(45 of 53)

¶417

[CW-104/2003]

¶418

this court in the case of National Advertising Co (supra). The advertisement fee was taken to be regulatory in nature thus the principle of “quid pro quo” was not accepted. Relevant paras of the said judgment are quoted hereunder to show that in reference to various judgments of the Apex court, the issue was dealt with. The judgment in the case of Jaipur Advertising Service (supra) has also been referred. The relevant paras of the judgment in the case of National Advertisement Co.(supra) are quoted hereunder -

¶419

Since it is not dispute before us that it is a fees, which is realized, in P. Kannadasan and Ors. v. State of T.N. and Ors., (1996) 5 SCC 670) the Hon'ble Supreme Court held that what is levied under the impugned enactment is a tax/cess and not a fee. The Hon'ble Supreme Court observed that even in the matter of fees, it is not necessary that element of quid pro quo should be established in each and every case, for it is well settled that fees can be both regulatory and compensatory and that in the case of regulatory fees, the element of quid pro quo is totally irrelevant. The Hon'ble Apex Court held thus:

¶420

The Sixth contention of the learned Counsel for Appellants-petitioners is premised upon the supposition that Parliament is bound to utilize the taxes realized under the impugned Act only for the purpose of Regulation of mines and mineral development. It is on this suppositions, it is argued that inasmuch as the Union has not established that the impugned levy is required for the purpose of the said Regulation and developments, the imposition is incompetent. In our opinion, the very supposition is misplaced what is levied under the impugned enactment is a tax/cess and not a fee. Even in the matter of fees, it is not necessary that element of quid pro quo should be established in each and every case, for it is well-settled that fees can be both

¶421

(46 of 53)

¶422

[CW-104/2003]

¶423

regulatory and compensatory and that in the case of regulatory fees, the element of quid pro quo is totally irrelevant. (See Corpn. of Calcutta v. Liberty Cinema). Taxes are raised for' augmenting the general revenues of the State and not for any particular purpose - much less for rendering a particular service.

¶424

The Hon'ble Apex Court in State of Tripura and Ors. v. Sudhir Ranjan Nath (1997) 3 SCC 665) considered the Rule 3(3) and (4) relating to movement of forest produce. The application fees of Rs. 1000/- under Sub-rule (3) and license fee for Rs. 2000 under Sub-rule (4) of the Forest Act, 1927 and held that fees which re in the nature of regulatory fees for which no quid pro quo was necessary to be established. The Hon'ble Apex Court has held thus:

¶425

We next take up the validity of the levy of application fee and licence fee of rupees one thousand and Rupees two thousand respectively. In our opinion, the High Court was not right in holding that the said fee amounts to tax on the ground that it has not been proved to be compensatory in nature. In our opinion, the fee imposed by sub-rules (3) and (4) is a fee within the meaning of Clause (c) of Sub-section (2) of Section 41. It is regulatory fee and not compensatory fee. The distinction between compensatory fee and regulatory fee is well established by several decisions of this Court. Reference may be made to the decision of the Constitution Bench in Corpn. of Calcutta v. Liberty Cinema. It has been held in the said decision that the expression "licence fee" does not necessarily mean a fee in lieu of services and that in the case of regulatory fees, no quid pro quo need be established. The following observations may usefully be quoted;

¶426

This contention is not really open to the Respondent for Section 548 does not use the word 'fee'; it uses the words 'licence fee' and those words do not necessarily mean a fee in return for services. In fact in our Constitution fee for licence and fee for services rendered are contemplated as different kinds of levy. The former is not intended to be a fee for services rendered.

¶427

(47 of 53)

¶428

[CW-104/2003]

¶429

This is apparent from a consideration of Article 110(2) and Article 199(2) where both the expressions are used indicating thereby that they are not the same. In George Walkem Shannon v. Lower Mainland Dairy Products Board it was observed (at pp. 721-722 of AC: at pp.3839 of AIR)

¶430

If licences are granted, it appears to be no objection that fees should be charged in order either to defray the costs of administering the local Regulation or to increase the general funds of the Province or for both purposes..... It cannot, as their Lordships think, be an objection to a licence plus a fee that it is directed both to the of trade and to the provision of revenue.

¶431

It would, therefore, appear that a provision for the imposition of a licence fee does not necessarily lead to the conclusion that the fee must be only for services rendered. 15 . This decision has been followed in several decisions, including the recent decisions of this Court in Vam Organic Chemical Ltd. v. State of U.P. and Bihar Distillery v. Union of India. The High Court was, therefore, not right in proceeding on the assumption that every fee must necessarily satisfy the test of quid pro quo and in declaring the fee levied by sub-rules (3) and (4) of Rule 3 as bad on that basis. Since we hold that the fees levied by the said sub-rules is regulatory in nature, the said levy must be held to be valid and competent, being fully warranted by Section 41.

¶432

In Secunderabad Hyderabad Hotel Owners' Association and Ors. v. Hyderabad Municipal Corporation, Hyderabad and Anr. (1999) 2 SCC 274) the Hon'ble Apex Court considered the 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

¶433

(48 of 53)

¶434

[CW-104/2003]

¶435

given require to be regulated or controlled. The fee which is charged for Regulation of such activity would be validly classified 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 fees cannot be excessive.

¶436

In State of U.P. and Ors. v. Sitapur Packing Wood Suppliers and Ors. (2002) 4 SCC 566) the Hon'ble Apex Court considered the Rules 3, 5 and 14 of the U.P. Transit of Timber and Other Forest Produce Rules, 1978 and held that transitory fee is regulatory in nature. The question of quid pro quo is necessary when a fee is compensatory. It is well established that for every fee quid pro quo is not necessary. The transit fee being regulatory, it is not necessary to establish the factum of rendering of service. Thus, there is no question of a levy of transit fee being invalidated on the ground that quid pro quo has not been established. The Hon'ble Apex Court has held thus:

¶437

The distinction between tax and fee is well settled and need not be restated herein. It is clear from the afore-noticed provisions of the Act and the Rules that the transitory fee is regulatory in nature. The question of quid pro quo is necessary when a fee is compensatory. It is well established that for every fee quid pro quo is not necessary. The transit fee being regulatory, it is not necessary to establish the factum of rendering of service. Thus, there is no question of a levy of transit fee being invalidated on the ground that quid pro quo has not been established.

¶438

The transit fee under Rule 5 is clearly regulatory and, thus, it was not necessary for the State to establish quid pro quo. The High Court was in error in holding that transit fee is invalid in absence of quid pro quo. As a consequence the penalty would also be valid. The penalty was held to be invalid by the High Court in view of its conclusion about the invalidity of the transit fee. The penalty, however, cannot be beyond what is permissible in the Act. That aspect, however, is not under challenge in these appeals as the State Government after the impugned judgment of the High court realizing its mistake amended the Rule so as to bring the provision of penalty in accord with the provisions of the Act.

¶439

(49 of 53)

¶440

[CW-104/2003]

¶441

In Jindal Stainless Ld. (2) and Anr. v. State of Haryana and Ors. (2006) SCC 241), the Hon'ble Apex court has considered the question of difference between the taxing and regulatory power and in para No. 38 of the report it has been observed that if the law enacted is to enforce discipline or conduct under which the trade has to perform or if the payment is for Regulation of condition or incidents of trade or manufacture then the levy is regulatory. Their Lordships have also considered the difference between the tax fees and compensatory tax.

¶442

Reliance has been placed upon the decision of the Division Bench of this Court in CWP No. 346/1987 decided on 10.8.1989 in which this Court quashed the levy of Rs. 20/- holding to be compensatory, but the question was not raised whether the levy was compensatory or regulatory and whether in case levy was regulatory, quid pro quo was necessary to be established and the decision was based on unamended bye-law. Thus, the decision cannot be said to be an authority on the question whether the fees is regulatory or compensatory and whether the quid pro quo is necessary.

¶443

We are of the opinion that aforesaid levy in question is regulatory one considering the scheme and the bye-laws, which have been amended, hence, no quid pro quo was necessary to be established. Considering the various aforesaid rules, which came up for consideration in the aforesaid decisions before the Hon'ble Apex Court and provision in question, we are of the opinion that the provisions, which were considered by their Lordships of the Hon'ble Apex Court, are akin to the Bye-law 13 and the other Byelaws of 1974, which are mainly regulatory in nature, therefore, there is no necessity to establish the quid pro quo. Even otherwise, the enhancement has been made from Rs. 20/- in the year 1984 to Rs. 35/- in the year 2002, which cannot be said to be illegal or arbitrary in any manner.”

¶444

The judgment in the case of National Advertising Co(supra) and, for that, paras quoted above cover the issue. The

¶445

(50 of 53)

¶446

[CW-104/2003]

¶447

Municipal Corporation is not required to justify imposition of fee vis-a-vis service.

¶448

In the light of the aforesaid, judgment in the case of M Chandru(supra) is considered. Whenever fee is to be charged, principle of “quid pro quo” applies but in respect of the Bye-laws of 1974, the Division Bench in the case of National Advertising Co (supra) has clarified the nature of fee in reference to various judgments of the Apex Court, thereby, not to be governed by the principle of “quid pro quo”. It is taken regulatory in nature. The counsel for the Municipal Corporation, Jaipur has otherwise justified the fee in reference to all the services given by them.

¶449

Learned counsel for petitioners made reference of various judgments in different cases after referring Article 243X of the Constitution but we have already clarified that the demand herein is not of tax but of fee thus none of the judgments assist learned counsel for petitioners.

¶450

The issue raised herein was otherwise dealt with by this court in the case of MGF Event Management Pvt Ltd (supra).

¶451

It is also submitted that the advertisement fee has been charged without issuing licence. The argument has been raised in ignorance of the provisions of the Bye-laws of 1974 as it

¶452

(51 of 53)

¶453

[CW-104/2003]

¶454

permits charges for sites, signboards and prescribed fee has been given with the size thus imposition of fee is in reference to it, hence, cannot be said to be without a licence or size.

¶455

The question now remains on facts. It is stated by learned counsel for petitioners that after making self assessment, amount was deposited and, in few cases, payment was made pursuant to the directions of this court.

¶456

It is further stated that no challenge to self-assessment has been made by the Corporation thus adjudication of the assessment has not been made. If that is the position, then we give liberty to both the parties to determine it. If Corporation has demanded over and above the amount deposited by the petitioners or the petitioners have any issue against the demand raised by the Municipal Corporation. It should be decided by the Municipal Corporation, Jaipur after hearing the petitioners.

¶457

The issue of self-assessment is factual in nature thus cannot be determined by this court while exercising jurisdiction under Article 226 of the Constitution of India thus we have given liberty to the parties to get determination of the issue aforesaid and, for it, if the petitioners have any issue against demand, it would be raised within two months from today and, at the same time, if the amount deposited by the petitioners are short

¶458

(52 of 53)

¶459

[CW-104/2003]

¶460

according to the Corporation, the demand of additional amount would be raised within a period of two months. If the petitioners remain aggrieved by decision of the Corporation, they would be at liberty to challenge it.

¶461

The last issue remains about assignment of right for

¶462

collection of fee.

¶463

It is admitted that assignment was for the financial year 2011-12 only. It is also admitted that none of the petitioners has paid the amount to the agency engaged for collection of fee, rather, it was directly paid to the Municipal Corporation thus issue for engagement of third party for collection of fee remains academic in nature. It is more so when this court has given liberty to the petitioners and the Municipal Corporation to get determination of the amount of fee and settle it on facts.

¶464

Learned counsel appearing for private respondent-M/s

¶465

SS Creations raised grievance regarding non-payment of the amount by the Municipal Corporation despite payment of Rs.6 crore towards assignment.

¶466

The issue aforesaid is between the Municipal Corporation, Jaipur and the private respondent-M/s SS Creations and cannot be determined in these proceedings. However, if, at

¶467

(53 of 53)

¶468

[CW-104/2003]

¶469

all, private respondent has any grievance with the Municipal Corporation, liberty is given to take up it separately.

¶470

With the aforesaid, all the writ petitions are disposed

¶471

of.

¶472

A copy of this judgment be placed in each connected