# Taj Advertising, Agra and others v. State of U.P. and others

- **Citation:** (2010) 1 ILRA 336
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-28
- **Case number:** Civil Misc. Writ Petition No. 373 of 2010
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/taj-advertising-agra-and-others-v-state-of-u-p-and-others-41475
- **Pages:** 5

## Headnote

Sri Somvir
Sri K. Zaidi
Sri Mohd Ali
Sri C.K.Parekh
C.S.C.

U.P. Municipal Corporation Act, 1959,
Section
173-readwith
with
U.P.
Municipal Corporation (Assessment and
Collection of Tax on advertisement)
Rules,
2009-Demand
of
Tax
on
advertisement on exhibition, display any
advertisement
over
any
land
wall,
hoarding or structure on public or
private place-objection the licence for
advertisement-should
not
to
given
through public auction misconceived.

Held: Para 10

The purpose of public auction is to fetch
maximum revenue as public interest is
paramount. Awarding a contract of sale
or leasing out property of a Government
or a public authority for a considering
less
than
the
highest
competitive
amount
is
not
in
public
interest.
Therefore,
obviously,
the
procedure
provided under the Rules for granting
permission for advertising through public
auction or by inviting tenders cannot be
said to be suffering from any vice of
unreasonableness.
Case law discussed-
 AIR 1985 SC 1147, AIR 1986 SC 1158,
2002(3) SCC 496, (1989)4 SCC 155.

## Text

336 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
respondents had not claimed payment of
interest which should have been claimed
in the earlier writ petition. We find that
even though the contesting respondents
had not claimed payment of interest in the
year 2000 in the writ petition filed in the
year 2000 but, this court had not
adjudicated the claim regarding payment
of gratuity relating to the contesting
respondent. Moreover, it is not denied that
the contesting respondent retired on
31.1.1999 and the amount of gratuity was
not paid immediately in accordance with
the scheme of Payment of Gratuity Act,
1972,
thus,
forcing
the
contesting
respondent to approach this Court on a
number of occasions to get the retiral
dues.

4. That being the position, the award
of interest @ 12% on the amount of
gratuity can not be said to be illegal. The
order passed by the learned single Judge
does not suffer from any legal infirmity.
The amount of interest, if not paid, shall
be paid within one month from the date
on which a certified copy of this order is
present before the authority concerned.

5. The appeal fails and is dismissed.
---------
ORIGINAL JURISDICTIION
CIVIL SIDE
DATED:ALLAHABAD 28.04.2010

BEFORE
THE HON'BE RAJES KUMAR, J.
THE HON'BLE PANKAJ MITHAL, J.

Civil Misc. Writ Petition No. 373 of 2010
and
Civil Misc. Writ Petition No. 511 of 2010

Taj Advertising, Agra and others

 ...Petitioners
Versus
State of U.P. and others ...Respondents
Counsel for the Petitioner:
Sri B.D. Mandhyan
Sri Satish Mandhyan
Sri Sanjeev Kumar

Counsel for the Respondents:
Sri Somvir
Sri K. Zaidi
Sri Mohd Ali
Sri C.K.Parekh
C.S.C.

U.P. Municipal Corporation Act, 1959,
Section
173-readwith
with
U.P.
Municipal Corporation (Assessment and
Collection of Tax on advertisement)
Rules,
2009-Demand
of
Tax
on
advertisement on exhibition, display any
advertisement
over
any
land
wall,
hoarding or structure on public or
private place-objection the licence for
advertisement-should
not
to
given
through public auction misconceived.

Held: Para 10

The purpose of public auction is to fetch
maximum revenue as public interest is
paramount. Awarding a contract of sale
or leasing out property of a Government
or a public authority for a considering
less
than
the
highest
competitive
amount
is
not
in
public
interest.
Therefore,
obviously,
the
procedure
provided under the Rules for granting
permission for advertising through public
auction or by inviting tenders cannot be
said to be suffering from any vice of
unreasonableness.
Case law discussed-
 AIR 1985 SC 1147, AIR 1986 SC 1158,
2002(3) SCC 496, (1989)4 SCC 155.

(Delivered by Hon'ble Rajes Kumar, J.)

1. All the petitioner in both the writ
petitions are advertising companies/ firms
engaged in the business of advertising by
placing and erecting hoardings on the
public land either of the municipal
1 All] Taj Advertising, Agra and others V. State of U.P. and others
337
corporation or the development authority
or of the public works department as well
as on certain private properties. They
have challenged the notification dated
24.12. 2009 which is said to have been
published in the extra-ordinary Gazette
notifying the Uttar Pradesh Municipal
Corporation (Assessment and Collection
of Tax on Advertisement) Rules, 2009
which have been enforced w.e.f. 1.4.2010.

2. We have heard Sri B.D.
Madhyan, Senior Advocate, Sri Sanjeev
Kumar, learned counsel for the petitioners
in one of the writ petitions, Sri C.K.
Parekh, learned counsel for the Municipal
Corporation and Sri K. Zaidi, for the Agra
Development Authority Learned Standing
counsel has appeared for the State of U.P.

3. The contention of learned counsel
for the petitioners is that they have a
fundamental right to carry business of
advertising. The impugned Rules infring
their above right and as such are ultra
vires, Secondly, the procedure prescribed
under Section 199 to 203 of the U.P.
Municipal
Corporation
Act,
1959
(hereinafter referred to as an 'Act') has not
been followed in enacting the aforesaid
Rules.

4. The respondents have defended
the aforesaid Rules on the ground that
they are only restrictive in nature and
does not completely oust the petitioners
from
carrying
on
the
business
of
advertisement. The Rules have been
framed in due exercise of powers
conferred upon the State Government
under section 540 read with sections 550,
219, 227 of the Act after considering the
objections received.

5. A wholistic reading of the said
Act reveals that municipal corporations
are empowered to impose taxes as
provided under section 172 of the Act and
tax
on
advertisement
(not
being
advertisement
published
in
the
newspaper) is one of them. Section 192 of
the Act provides that where such tax on
advertisement is imposed, every person
who erects, exhibits, fixes or retains upon
or over any land, building, wall, hoarding
or structure any advertisement or who
displays any advertisement to public view
in any place whether public or private,
shall be liable to pay advertisement tax
calculated at such rates and in such
manner and as may be prescribed under
the Rules subject to exemptions provided
therein. The procedure of imposing such
tax by corporations has been laid in
section 199 to 206 of the Act. Further
section
227
authorises
the
State
Government to make Rules for the
purposes of carrying out the effect of the
provisions of Chapter IX dealing with the
taxes of the Corporation and particularly,
the matters referred to in Section 219
which permits framing of Rules as to
assessment,
collection,
composition,
prevention of evasion, refund of taxes and
other matters relating to taxes. The
procedure for framing such Rules has
been provided in Section 540 of the Act.

6. It is tiride to state that a
subordinate legislation like the Rules in
question are open to challenge primarily
on the following grounds:-

(i) legislative incompetence;
(ii) being ultra vires to the provisions of
the Act under which they have been
framed or the Constitution of India.
(iii) being in conflict with any other
statutes; and
(iv) being arbitrary and violative of
338 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Article 14 and 16 of the constitution.

7. The legislative competence of the
State Government to frame the aforesaid
Rules is not disputed nor it is alleged that
the said Rules are in conflict or repugnant
to any other statute. The validity of the
aforesaid Rules is being questioned only
on the ground that they are ultra vires to
Article 19 (1) (g) of the Constitution of
India.

8. A quick glance at the offending
Rules demonstrates that they provide for
obtaining permission of the Corporation
for
erecting,
exhibiting,
displaying,
sticking, posting, writing, drawing or
handing an advertisement or hoarding on
any site which is to be granted on the
application submitted in a prescribed form
with fee on the recommendation of the
allotment Committee either by public
auction or by inviting tenders and to levy
tax thereon. This is in consonance with
section 193 of the Act which prohibits
advertisement without written permission
of the Municipal Commissioner and
section
196
which
empowers
the
Municipal
Corporation
to
remove
unauthorised advertisement.

9. The first submission that the
lecense for advertising cannot be given by
public auction, is being mentioned only to
be rejected. The Apex court in Ram and
Shyam company Vs. State of Harayana
and others AIR 1985 SC 1147 as well as
in Chenchu Rami Reddy and another
Vs. Government of Andhra Pradesh
and others AIR 1986 SC 1158 has held
that public officer entrusted with the care
of public properties are required to show
exemplary vigilance and public properties
are only be disposed of by adopting the
best method that may be public auction
and not private negotiation. Similar view
has also been expressed by the Supreme
court in Haryana Financial Corporation
and another Vs. Jagdamba Oil Mills
and another 2002 (3) SCC 496. The
Courts have thus accepted public auction
as the most transparent means of disposal
of public property. It also avoids
favouritism.

10. The purpose of public auction is to
fetch maximum revenue as public interest
is paramount. Awarding a contract of sale
or leasing out property of a Government
or a public authority for a considering less
than the highest competitive amount is
not
in
public
interest.
Therefore,
obviously, the procedure provided under
the Rules for granting permission for
advertising through public auction or by
inviting tenders cannot be said to be
suffering
from
any
vice
of
unreasonableness.

11. No case for any socio economic
need to deviate from the above settled
position has been canvassed.

12. The submission that the Rules
tends to create monopoly in favour of big
advertising companies and would result in
driving out small advertisers like the
petitioners from the business is also of no
substance inasmuch as the Rules framed
in no way prohibits or restricts the
participation of any advertising company/
firm, big or small, for the purpose of
seeking license from the municipal
corporation.

13. Another submission that the
requirement of giving undertaking of the
owner of the premises or building where
the advertisement is to be displayed to the
effect that in default on part of the
1 All] Taj Advertising, Agra and others V. State of U.P. and others
339
advertising company/ firm to pay the tax
he himself would be liable for the same in
unfair and unreasonable as no person
would be ready to give such an
undertaking also has no force and is
devoid of any merit. The said Rule is to
ensure recovery of tax dues. It imposes
primary liability upon the advertising
company/firm to pay advertisement tax
and thereafter on its failure to pay the
liability shifts upon the owner of the
building who is supposed to have allowed
it to be used for advertising purposes. We
fail to comprehend how such a Rule
which tends to protect the revenue of the
corporation can be said to be arbitrary.
The
procedure
prescribed
or
the
restriction so placed under the Rules as
such is neither arbitrary nor unreasonable.

14. No specific Rule has been placed
before us which tantamounts to infringe
the right of the petitioners to carry their
business of advertisement.

15. None of the aforesaid Rules to
our mind offends the fundamental right of
the petitioners to carry business of
advertisement. The said Rules Ex facie
are only procedural and restrictive in
nature which we do not consider to be
violative of the fundamental rights
guaranteed under the Constitution of
India.

16. As far as the second aspect that
the procedure laid down in Sections 199
to 203 of the Act has not been followed
and as such the Rules are invalid, is also
misconceived and is of no substance.
Admittedly, the aforesaid Rules have been
framed by the State Government in
exercise of powers under section 540 of
the Act read with Section 227 of the Act.
Both the above provisions confer upon the
State Government a right to frame Rules
for the purposes of the Act specially with
regard to collection of taxes. The
aforesaid Rules have not been framed by
any individual corporation. The procedure
prescribed under Section 199 to 203 of
the Act is the procedure which has to be
followed by the corporation in imposing
tax and as such is not applicable where
the Rules are framed by the State
Government.

17. It is not the case of petitioners
that the State Government has not
followed the procedure laid down in
section 540 of the Act in framing and
publishing the aforesaid Rules rather the
notification itself recites that the Rules
were
previously
published
by
the
Government
notification
dated
27.02.2008.
and
it
is
only
after
considering
the
objections
and
the
suggestions received that the Government
is pleased to make the present Rule. In
this view of the matter, the second
argument advanced on behalf of the
petitioners also has no force at all and
fails.

18.

Various
authorities
cited
viz.(1989) 4 SCC 155 Sodan Singh Vs.
N.D. Municipal Corporation and the like
are of no avail as there is no second
opinion on the preposition of law that
footpaths or payments are for public
convenience and the hawkers have no
fundamental right to hawk at a particular
place. Thus, they need no elaborate
discussion.

19. No other point was pressed
before us.

20. In view of the aforesaid facts
and circumstances, we do not find any
340 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
merit in the petitions. The accordingly,
fail and are dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2010

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 64129 of 2006

Km. Himani Saxena

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Pradeep Saxena

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
of
Dependants
of
Government Servant Dying in harness
Rules 1974-Rule 5 (1)(ii)-compassionate
appointment-made after expiry of 5
years-petitioner who had lost her mother
and father-cancellation on ground after
expiry of 5 years-No appointment could
be made without exemption from Govt.-
held-once
appointment
on
compassionate
ground-can
not
be
canceled without affording opportunityseeking exemption-sole task given of
appointing authority-mere irregularlycan
be
cured-cancellation
of
appointment-held illegal quashed.

Held: Para 9 & 12

Here in the present case it is apparent on
the face of record that no opportunity
was given to the petitioner before
passing the impugned order, therefore,
the impugned order is unsustainable in
the eye of law.

I
am
of
the
view
that
once
an
appointment has been considered on
merit and appointment letter has been
issued, the power of relaxation of period
of limitation shall fall under the category
of procedural irregularity, which may be
cured at any point of time after issuance
of appointment letter.
Case law discussed:
1999 (3) U.P.L.B.E.C. 2263, 2006 (8) ADJ 453,
1952 SCR 284; (1978) 1 SCC 248; (1978) 1
SCC 405, 1993,SCC 259.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. The unfortunate petitioner who
has lost her father and mother both has
approached this Court under Article 226
of the Constitution of India, challenging
the impugned order dated 9th November,
2006 passed by District Panchayat Raj
Aadhikari
Bareilly,
by
which,
her
appointment
made
under
the
U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules 1974 (herein after referred to as
Rules of 1974) has been cancelled. It
appears the petitioner's father was Gram
Panchayat Aadhikari and while working
he died in harness on 28.8.1996. The
mother of the petitioner has died prior to
the death of her father. The petitioner who
was the only daughter of her parents, was
minor at the time of death of her father.
When she became major, she has applied
for compassionate appointment under the
Rules of 1974. Pursuant thereto, the
petitioner
has
been
appointed
vide
appointment letter dated 25th July, 2006
on the post of clerk. Thereafter the
petitioner has joined and started working.
But all of sudden, the impugned order
(dated 9.11.2006) of cancellation of
appointment has been passed on the
ground that the Rules of 1974 has been
amended in the year 1993 and in view of
Proviso to Rule 5 if the application for
compassionate appointment is made after