Bombay High Court
M/S Gurukripa Advertising vs The Municipal Corporation Of ... on 21 December, 2017
Bench: B.R. Gavai
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BDPSPS
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.1648 OF 2017
1] Union of India )
represented through )
General Manager, Western )
Railway, having his office at )
Western Railway Headquarters, )
Churchgate - 400 020 ) ..... Petitioner.
V/s
1] Municipal Corporation of )
Greater Mumbai, a statutory )
Corporation constituted under )
the provisions of the Mumbai )
Municipal Corporation Act, 1888 )
having its office at Mahapalika )
Building, Mahapalika Marg, )
Mumbai - 400001 )
)
2] Municipal Commissioner, )
Municipal Corporation for )
Greater Mumbai, having his )
Office at Mahapalika Building, )
Mahapalika Marg, Mumbai 400001)
3] Additional Municipal )
Commissioner (City) Municipal )
Corporation for Greater Mumbai )
having his office at Mahapalika )
Building, Mahapalika Marg, )
Mumbai - 400001 ) ...... Respondents.
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WITH
WRIT PETITION NO.197 OF 2017
Jugmohan Chandrabhan Gupt .... Petitioner.
V/s
The Municipal Corporation of
Brihan Mumbai and Others .... Respondents.
WITH
WRIT PETITION NO.30 OF 2017
JMD Advertisers ..... Petitioners.
v/s
Municipal Corporation for
Greater Mumbai and Others ..... Respondents
WITH
WRIT PETITION (L) NO. 40 OF 2017
M/s. Guju Ads and Others .... Petitioners
V/s
Municipal Corporation of
Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITON (L) NO.53 OF 2017
M/s Media Marketing Services .... Petitioners.
V/s
The Municipal Corporation of
Greater Mumbai and Ors .... Respondents.
WITH
WRIT PETITON (L) NO.55 OF 2017
IP Verma Media Marketing Pvt. Ltd. ..... Petitioners.
V/s
The Municipal Corporation for
Greater Mumbai and Others ..... Respondents.
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WITH
WRIT PETITION (L) NO.56 OF 2017
IPV Eco Project (GMP) Pvt. Ltd. ....Petitioners.
V/s
The Municipal Corporation of
Gr. Mumbai and Others .... Respondents.
WITH
WRIT PETITION (L) NO.63 OF 2017
M/s Pioneer Publicity Co.
Proration Pvt. Ltd Through
Shyam Chauhan .... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and Others .... Respondents.
WITH
WRIT PETITION NO.776 OF 2017
Geet Publicity .... Petitioner.
V/s
The Brihanmumbai Mahanagarpalika
and Others .... Respondents.
WITH
WRIT PETITION NO.1235 OF 2017
Alakh Advertising and Publicity Pvt. Ltd. .... Petitioners.
V/s
The Brihanmumbai Mahanagar Palika
and Others ..... Respondents.
WITH
NOTICE OF MOTION NO.321 OF 2017
IN
WRIT PETITION NO.1235 OF 2017
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Alakh Advertising and Publicity Pvt. Ltd. .... Petitioners.
V/s
The Brihanmumbai Mahanagar Palika
and Others ..... Respondents.
WITH
WRIT PETITION NO. 1280 OF 2017
M/s. Saharsh Publicity
Through Prop. Neelam Mane .... Petitioner.
V/s
The Municipal Corporation
for Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.1506 OF 2017
Union of India ..... Petitioner.
V/s
Municipal Corporation for
Greater Mumbai and Others .... Respondents.
WITH
WRIT PETITION NO.1648 OF 2017
Union of India
Through
General Manager .... Petitioner.
V/s
Municipal Corporation of
Greater Mumbai and Others .... Respondents.
WITH
WRIT PETITION NO.1652 OF 2017
Vantage Advertising Pvt. Ltd. .... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and Others ..... Respondents.
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WITH
WRIT PETITION NO.2088 OF 2017
Onyx Media ..... Petitioner.
V/s
The Municipal Corporation
for Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.2092 OF 2017
Sakshi Advertising .... Petitioner.
V/s
The Municipal Corporation
for Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.2100 OF 2017
M/s. Bright Outdoor Media
Pvt. Ltd. .... Petitioner.
V/s
The Municipal Corporation
for Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.2434 OF 2017
M/s. MMS Media Developers
V/s
The Municipal Corporation
for Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.2436 OF 2017
M/s. Ooh Media Marketing
Services .... Petitioners.
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V/s
The Municipal Corporation for
Gr. Mumbai and Others ..... Respondents.
WITH
WRIT PETITION NO.2477 OF 2017
M/s. Roshan Space Brandcom
Pvt. Ltd. Through its CEO Sajid Khan ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2480 OF 2017
M/s A Fast Runner .....Petitioner
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2554 OF 2017
Wallop Advertising ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2555 OF 2017
M/s. A Fast Runner ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
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WITH
WRIT PETITION NO.2587 OF 2017
M/s Symbiosis Advertising ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2597 OF 2017
M/s Zest Enterprise ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2601 OF 2017
M/s Gurukripa Advertising ..... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others .....Respondents.
WITH
WRIT PETITION NO.2696 OF 2017
M/s. Laqshya Media Pvt. Ltd. .... Petitioner.
V/s
The Municipal Corporation for
Gr. Mumbai and others ..... Respondents.
----
Mr. Navin Parekh along with Ms. Shakti Parwaney i/by Ms. Hetal Patel
for the Petitioner in WP/197/2017.
Dr. Milind Sathe, Senior Counsel along with Mr. Bhavik Manek, Mr.
Tushar Kadam and Ms. Radhika Dixit, Mr. Hazreen i/by M/s. MDP and
Partners for the Petitioner in WPL/40/2017.
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Mr. Sanjeev Gorwadkar, Senior counsel along with Mr. A. P. Seteenson
and Mr. Amul Jawale i/by M/s. APS Law Associates for the Petitioner
in WP/53/2017, WP/55/2017, WP/56/2017, WP/63/2017,
WP/1652/2017, WP/1280/2017, WP/2088/2017, WP/2092/2017,
WP/2100/2017, WP/2434/2017. WP/2436/2017, WP/2477/2017,
WP/2480/2017, WP/2555/2017,WP/2587/2017, WP/2597/2017,
WP/2601/2017, WP/2696/2017.
Dr. Milind Sathe, Senior Counsel along with Mr. Bhushan Deshmukh
and Mr. Manoj Agre i/by Mr. G. B. Kedia for the Petitioner in
WP/30/2017.
Mr.Anil C. Singh, Addl. Solicitor General along with Ms. Geethika
Gandhi Ms. Raghini Wagh,Ms. Mohinee Chougule, Ms. Priyanka i/by
Mr. Suresh Kumar for petitioner in WP/1648/2017 and
WP/1506/2017 and for Respondents Central and Western Railway in
all Writ Petitions.
Mr. J. S. Kini i/by Mr. Suresh Dubey for the Petitioner in
WP/776/2017, WP/1235/2017 and Applicant in NMW/321/2017.
Mr. Mohammed Zain Khan for the Petitioner in WP/2554/2017.
Mr. Joaquim Reis, Senior Counsel along with Mr. Abhijeet Joshi, Mr.
Nigel Quraishy, Mr. Sagar Patil and Ms. Pooja Yadav for the
Respondents-M.C.G.M. in all Writ Petitions.
Mr. Himanshu Takke, Asst. Government Pleader, for the Respondent
in WP/197/2017 and WP/40/2017.
Mr. Amit Shastri, Asst. Government Pleader, for the Respondent in
WP/30/2017 and WP/2597/2017.
Ms. Jyoti Chavan , Asst. Government Pleader, for the Respondent in
WPL/53/2017, WP/2100/017 and WP/2480/2017.
Ms. Uma Palsuledesai, Asst. Government Pleader, for the Respondent
in WPL/55/2017, WP/1652/2017 and WP/2092/2017.
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Mr. S. B. Gore, Asst. Government Pleader, for the Respondent in
WPL/56/2017 and WPL/63/2017.
Mr. Hemant Haryan, Asst. Government Pleader, for the Respondent in
WP/2436/2017, WP/2587/2017 and WP/2601/2017.
Mrs. P. H. Kantharia, Government Pleader along with Ms. Deepali
Patankar, Honorary Asst. to Government Pleader, for the Respondent
in WP/2555/2017 and WP/2696/2017.
Mr. Manish Upadhye, Asst. Government Pleader, for the Respondent in
WP/2088/2017.
Mr. Sukanta Karmarkar, Asst. Government Pleader, for the Respondent
in WP/1280/2017 and WP/2554/2017.
Mr. Kaushal Trivedi, Asst. Government Pleader, for the Respondent in
WP/2434/2017 and WP/2477/2017.
CORAM: B. R. GAVAI &
SANDEEP K. SHINDE JJ.
Judgment reserved on 15/12/2017
Judgment pronounced on 21/12/2017
JUDGMENT: (Per B.R. Gavai, J.)
1] Rule. Rule is made returnable forthwith. Respondents waive
service. Heard by consent of parties.
2] All these Petitions have been filed by the Petitioners, inter alia
praying for an order restraining the Respondent - Municipal
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Corporation of Greater Mumbai ("MCGM") and its authorities from
applying the provisions of sections 328 and 328A of the Mumbai
Municipal Corporation Act (herein after referred to as "the MMC Act")
or any other provisions in respect of hoardings belonging to Union of
India (Railways) in any manner whatsoever. Petitioners further seek a
declaration that the activities of Railways on the Railway properties,
including commercial activities, which are permissible under the
provisions of the Railways Act, 1989 (hereinafter referred to as "the
Railways Act") including activities of agents of Railways are not
subject to the jurisdiction of Municipal Authorities either under the
provisions of the MMC Act or any other law.
3] Writ Petition No.1648 of 2017 has been filed by the General
Manager of the Western Railway, whereas rest of the Petitions are
filed by private entities, who are engaged in the business of
advertising.
4] Since common questions of fact and law are involved, all these
Petitions have been heard and decided together.
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5] We have heard Mr. Anil Singh, the learned Additional Solicitor
General for Railways, learned Senior Counsel Dr. Milind Sathe,
Mr. Sanjeev Gorwadkar and learned Counsel Mr. Navin Parekh and
Mr. Khan appearing on behalf of the other Petitioners and Mr. Reis,
learned Senior Counsel appearing on behalf of the Respondent -
MCGM.
6] On behalf of the Petitioners, it is submitted that the power to
make construction on Railways, including the erection of structures for
displaying hoarding is exclusively with the Railways in view of Section
11 of the Railways Act. It is further submitted that, clause (31) of
Section 2 gives a wide meaning to 'Railways' and, as such, it will also
include the structures which are erected for displaying the
advertisements. It is submitted that, developing any railway land for
commercial use is also exclusively within the domain of Railway
Authorities. It is further submitted that in view of Section 184 of the
Railways Act, railway administration is not liable to pay any tax in aid
of the funds of any local authority unless the Central Government, by
notification, declares the railway administration to be liable to pay the
tax specified in such notification. It is further submitted that unless
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the notification as contemplated under section 184 is
published/notified by the Central Government, railway administration
is not liable to pay any tax to the local authority. It is further
submitted that in view of Section 185 of the Railways Act, railway
administration is not liable to pay any tax to any local authority in
respect of any advertisement made on any part of the railway unless
the Central Government by notification declares the railway
administration to be liable to pay the tax specified in such notification.
7] Learned Counsel appearing on behalf of the Petitioners submitted
that in view of the aforesaid provisions and the provisions of Article
285 of the Constitution, it will have to be held that the Respondent-
MCGM has no jurisdiction to regulate the hoardings erected on the
property of railways and recover any tax on the same. It is further
submitted on behalf of the Petitioners that though what is sought to be
recovered by the Corporation is termed as a "fee", in effect, it is not a
fee but a tax. It is submitted that no services of whatsoever nature are
being provided by the Corporation for grant of license and that there is
not even a remotest element of quid pro quo in so far the charges
sought to be recovered by the Corporation are concerned. It is further
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submitted that all inspection with regard to the stability of the
structures etc. is being done by the Railways and, as such, charges
which are sought to be recovered by the Corporation are nothing but
compulsory exaction of money without rendering any services.
8] Mr. Anil Singh, learned Additional Solicitor General, relied on
the judgments of the Apex Court in the case of Subhas Dutta vs. Union
of India & Ors.1 and in the case of Ahmedabad Urban Development
Authority vs. Sharadkumar Jayantikumar Pasawalla and Others2.
9] Mr. Sathe, learned Senior Counsel further submitted that in
view of Section 44 of the Maharashtra Regional Town Planning Act,
1966, since no permission is required to be obtained by the Central
Government or State Government for any development, the MCGM
will have no power to regulate the hoardings erected on the land of
railways. Learned Senior Counsel relied on the judgment of the Apex
Court in the case of Union of India vs. Purna Municipal Council and
Others3, Division Bench Judgment of this Court in the case of
1 2001 SCC OnLine Cal 178
2 (1992) 3 SCC 285
3 (1992) 1 SCC 100
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Municipal Commissioner of Bombay vs. The Agent, G.I.P. Railway
Company1, Division Bench Judgment of this Court in the case of The
Great Indian Peninsula Railway vs. The Municipal Corporation of
Bombay2, Division Bench Judgment of this Court in the case of The
Union of India vs. Bhusawal Municipal Council 3 and the Judgment of
the Apex Court in the case of Delhi Race Club Limited vs. Union of India
and others4.
10] Per contra, Mr Reis, learned Senior Counsel appearing on behalf
of MCGM, submitted that in view of provisions of Section 328A of the
MMC Act, no person can erect a hoarding or structure for
advertisement without the written permission of the Commissioner.
He submitted that clause (d) of second proviso to sub-section (1) of
Section 328, would reveal that such of the hoardings which are facing
any street, are also included in the category of the hoardings, which
require permission under Section 328A. The learned Senior Counsel
submitted that in view of Section 479, since the permission is required
under Section 328A, MCGM is entitled to charge fees at such rate as
1 ILR XXXIV 252
2 ILR Vol XVI 104
3 AIR 1982 Bombay 512
4 (2012) 8 SCC 680
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shall from time to time be fixed by the Commissioner. He submitted
that immunity which is granted to the railways under Sections 184
and 185 of the Railways Act is only in so far as taxes are concerned
and what is being charged by the MCGM is not a "tax" but a "fee" for
grant of permission under Section 328A. The learned Senior Counsel
further submitted that Division Bench of this Court in the case of Yog
Advertising & Marketing Services and Ors. vs. Municipal Corporation of
Greater Mumbai and Ors.1 has held such a levy to be "fee" and not
"tax". The learned Counsel further submitted that the Division Bench
has further found that there need not be any direct co-relation
between the services rendered and the fees levied. He submitted that
even if some co-relation is established, charging of such a fee would be
permissible. The learned Counsel submitted that the Corporation is
processing the applications and, as such, it cannot be said that
fees/charges are without there being any co-relation with the services
rendered and, as such, the same are not a tax but fees.
11] The learned Counsel further submitted that, as a matter of fact,
fees are not being paid by the Railways but by the advertisers acting as
1 2016(2) ABR 229 : 2017(1) ALLMR 349
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agents of the Railways and, as such, there could not be any restriction
on levy of the fees on such advertisers. The learned Senior Counsel
further submitted that the Apex Court in the case of Links Advertisers
and Business Promoters vs. Commissioner, Corporation of the City of
Bangalore1, has clearly held that, the Bangalore Municipal
Corporation was entitled to levy tax on advertisement, fixed behind
compound wall if it was facing towards the street, even if it was within
the railway premises. He further submitted that the learned Single
Judge of the Madras High Court in Ragavendra Ad Lab vs. Senior
Divisional Commercial Manager2, has also held that the hoardings in
the railway premises are also subject to regulation of the statutory
provisions enacted by the concerned State. He further submitted that
Division Bench of this Court in its various orders passed in PIL has held
that railways are also bound by the policy framed by the Corporation.
Learned Senior Counsel, therefore, submitted that all these Petitions
deserve to be dismissed.
12] For appreciating the rival submissions, it will be necessary for us
to go into the history of this litigation. In the year 1999, a Writ
1 AIR 1977 SC 1646
2 MADLG-2013-1-455
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Petition came to be filed in this Court being Writ Petition No.4175 of
1999, seeking regulation of hoarding and display of advertisements in
City of Mumbai. The said Writ Petition came to be disposed of by
Order dated 27/4/2001 by this Court, directing the Municipal
Corporation to formulate policy guidelines for grant of permission for
display of sky-signs and advertisements. On 10/1/2001, MCGM
formulated the policy guidelines as aforesaid under Sections 328 and
328A of the MMC Act, 1888. Again, another Writ Petition came to be
filed in the year 2002 being Writ Petition No.1132 of 2002, seeking
orders in relation to regulation of hoardings and advertisements in
City of Mumbai. Between 2008 and 2010, it appears that certain
orders were passed from time to time in the aforesaid Petitions. It
further appears that during that period, Commissioner of MCGM
addressed certain communications to the railway administration
inviting its attention to the policy guidelines and requiring Railway
Authorities to seek NOC for any hoardings on the Railway properties.
On 30/7/2012, Writ Petition No.1132 of 2002 came to be disposed of
after noting the modalities formulated by the MCGM for grant of
permission for sky-signs and hoardings.
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13] It appears that on 20/8/2014, the Municipal Commissioner
addressed a communication to the railways, asking them not to erect
hoardings on railway properties, which are visible from the public
street without first obtaining permission under Section 328 and 328A
of the MMC Act. It appears that since railway authorities did not
respond, a Notice of Motion came to be filed in Writ Petition No.1132
of 2002, seeking the following reliefs:-
"(a) That the Hon'ble Court be pleased to
direct the General Manager, Central Railway
and General Manager, Western Railway to
obtain the permission from M.C.G.M before
erecting hoardings on their land and to pay
the advertisement fees as per the provisions
of section 328 / 328A of MMC Act.
(b) That the Hon'ble Court be pleased to
direct the General Manager, Central Railway
and General Manager, Western Railway to
rectify the hoardings and remove the
violations as pointed out by the M.C.G.M by
issuing the notices to Central Railway and
Western Railway for having erected the
hoardings against the Policy Guidelines
failing which they will be liable for removal
by the M.C.G.M.
(c ) That the Hon'ble Court be pleased to
issue directions that all advertisements
visible from public streets attract the
provisions of Section 328 / 328A of the BMC
Act and come under the purview of the
Policy Guidelines framed by the MCGM in
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pursuance of the same."
It appears that during the hearing of the said Motion, it was sought to
be urged on behalf of the Petitioners therein and the Corporation that
the order dated 30/7/2012 also binds the Railway Authorities. It was
urged that the Railway Authorities were not complying with the
directions and, as such, it was necessary to issue directions to the
Railway Authorities to comply with the order dated 30/7/2012.
However, Division Bench of this Court, while deciding the Motion on
2/8/2016, disagreed with the said contention raised on behalf of the
Corporation and the Petitioners therein. It categorically held that the
order dated 30/7/2012 in Writ Petition No. 1132 of 2002 shall not
apply to the railways. It was observed by the Court that there was no
adjudication of the grounds on which the railway is agitating against
the notices issued by the Municipal Corporation. As such Division
Bench has passed the following order:-
"6. In the circumstances, we dispose of this
notice of motion by directing the Commissioner
/ Additional Commissioner of the Municipal
Corporation to adjudicate the question /
grounds raised by the Railways while opposing
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the notices issued by the Municipal
Corporation. Railway is permitted to submit a
fresh detailed objection / representation in
regard to the said notices within one month
from today.
7. Interveners to whom the Railway has
allotted hoardings are permitted to submit their
written submissions within the aforesaid
period."
It appears that in pursuance of the aforesaid order passed by this
Court, the matter was placed before the Additional Commissioner of
MCGM. The written submissions were filed on behalf of the Petitioner
- Railways as well as the other Petitioners. Vide Order dated
9/11/2016, the Additional Municipal Commissioner of MCGM rejected
the contentions raised on behalf of the Petitioners on various grounds.
It was held by the Additional Commissioner that, what was levied by
the Corporation was a fee and not a tax and therefore provisions of
Sections 184 and 185 would not be applicable. It was further held
that the issue with regard to applicability of the policy framed by the
Corporation has already been upheld by this court. It was further held
that the charges that were to be recovered, were to be recovered from
the advertisers and not from the Railways and, as such, the provisions
of Section 184 and 185 of the Railways Act would not be applicable.
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Being aggrieved thereby, present Petitions have been filed.
14] For appreciating the rival contentions, it will also be necessary
for us to refer to Article 285 of the Constitution of India as well as
some of the provisions of the MMC Act as well as the Railways Act.
Article 285 of the Constitution of India reads thus:
"285. Exemption of property of the Union from
State taxation.-(1) The property of the Union
shall, save insofar as Parliament may by law
otherwise provide, be exempt from all taxes
imposed by a State or by any authority within a
State.
(2) Nothing in clause (1) shall, until Parliament
by law otherwise provides, prevent any authority
within a State from levying any tax on any
property of the Union to which such property was
immediately before the commencement of this
Constitution liable or treated as liable, so long as
that tax continues to be levied in that State."
Chapter-XI of MMC Act provides for Regulation of Streets. It will be
relevant to refer to Sections 328 and 328A of the MMC Act, which
read as under:-
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"328. Regulations as to sky-signs.
(1) No person shall, without the written permission of
the Commissioner erect, fix or retain any sky-sign, whether
now existing or not, [where a sky-sign is a poster depicting
any scene from a cinematographic film, stage play or other
stage performance, such permission shall not be granted,
unless prior scrutiny of such poster is made by the
Commissioner and he is satisfied that the erection or fixing
of such poster is not likely to offend against decency or
morality. No permission under this section] shall be
granted, or renewed, for any period exceeding two years
from the date of each such permission or renewal:
[* * * * *]
[Provided that] in any of the following cases a written
permission or renewal by the Commissioner under this
section shall become void, namely:--
(a) if any addition to the sky-sign be made except
for the purpose of making it secure under the
direction of the municipal [city engineer];
(b) if any change be made in the sky-sign, or
any part thereof;
(c) if the sky-sign or any part thereof fall either
through accident, decay or any other cause ;
(d) if any addition or alteration be made to, or
in, the building or structure upon or over which
the sky-sign is erected, fixed or retained, if such
addition or alteration involves the distribution
of the sky-sign or any part thereof;
(e) if the building or structure upon or over
which the sky-sign is erected,fixed or retained
become unoccupied or be demolished or
destroyed.
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(2) Where any sky-sign shall be erected, fixed
or retained after the[coming into force of this
section in the city or in the suburbs after the
coming into force of the Bombay Municipal
(Extension of Limits) Act, 1950,] [or in the
extended suburbs after the coming into force
of the Bombay Municipal [Further Extension
of Limits and Schedule BBA (Amendment)]
Act, 1956,] upon or over any land, building or
structure save, and except as permitted as
herein before provided, the owner or person in
occupation of such land, building or structure
shall be deemed to be the person who has
erected, fixed or retained, such sky-sign in
contravention of the provisions of this section,
unless he proves that such contravention was
committed by a person not in his employment
or under his control, or was committed
without his connivance.
(3) If any sky-sign be erected, fixed or retained
contrary to the provisions of this section, or
after permission for the erection, fixing or
retention thereof for any period shall have
expired or become void, the Commissioner
may, by written notice, require the owner or
occupier of the land, building or
structure,upon or over which the sky-sign is
erected, fixed or retained, to take down and
remove such sky-sign.
The expression "sky-sign" shall in this
section mean any word, letter, model, sign,
device or representation in the nature of an
advertisement, announcement or direction,
supported on or attached to any post, pole,
standard frame-work or other support wholly
or in part upon or over any land, building or
structure which, or any part of which sky-sign,
shall be visible against the sky from some
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point in any street and includes all and every
part of any such post, pole, standard frame-
work or other support. The expression "sky-
sign" shall also include any balloon, parachute,
or other similar device employed wholly or in
part for the purposes of any advertisement,
announcement or direction upon or over any
land, building or structure or upon or over any
street, but shall not include-
(a) any flagstaff, pole, vane or
weathercock, unless adapted or used
wholly or in part for the purpose of any
advertisement, announcement or
direction ;
(b) any sign, or any board, frame or other
contrivance securely fixed to or on the top
of the wall or parapet of any building, or
on the cornice or blocking course of any
wall, or to the ridge of a roof:
Provided that such board, frame or
other contrivance be of one continuous face
and not open work, and do not extend in
height more than three feet above any part
of the wall, or parapet or ridge to, against,
or on which it is fixed or supported ;
(c) any word, letter, model, sign, device or
representation as aforesaid, relating
exclusively to the business of a railway
company, and place wholly upon or over
any railway, railway station, yard, platform
or station approach belonging to a railway
company and so placed that it cannot fall
into any street or public place ;
(d) any notice of land or building to be
sold, or let, placed upon such land or
904-WP-1648-17 group.sxw
buildings."
"328A. Regulation and control of advertisements.
(1) No person shall, without the written permission of the
Commissioner, erect, exhibition, fix or retain any
advertisement whether now existing or not, upon any land,
building wall, hoarding or structure [Where an
advertisement depicts any scene from a cinematographic
film, stage play or other stage performance, such permission
shall not be granted, unless prior scrutiny of such
advertisement is made by the Commissioner and he is
satisfied that the erection or exhibition of such
advertisement is not likely to offend against decency or
morality:]
[Provided that, the power of the Commissioner under this
sub-section shall be subject to the regulations framed in this
behalf]
Provided always that [any permission under this section]
shall not be necessary in respect of any advertisement which
is not an illuminated advertisement nor a sky-sign and
which-
(a) is exhibited within the window of any building;
(b) relates to the trade or business carried on within the
land or building upon which such advertisement is
exhibited or to any sale or letting of such land or
building or any effects therein or to any sale,
entertainment or meeting to be held upon or in the
same; [or to the trade or business carried on by the
owner of any tram-car, omnibus or other vehicle upon
which such advertisement is exhibited;]
(c ) relates to the business of any railway company ;
(d) is exhibited within any railway station or upon any
wall or other property of a railway company, except
904-WP-1648-17 group.sxw
any portion of the surface of such wall or property
fronting any street:
[Provided also that such permission shall not be
necessary for a period of three years--
(i) after the coming into force of the Bombay
Municipal (Extension of Limits) Act, 1950, in
respect of advertisements upon a site in the
suburbs which was occupied by advertisements on
the first day of January 1950.
(ii) after the coming into force of the Bombay
Municipal [Further Extension of Limits and
Schedule BBA (Amendment)] Act, 1956 in respect
of advertisements upon a site in the extended
suburbs which was occupied by advertisement on
the first day of January 1956.]
(2) Where any advertisement shall be erected,
exhibited, fixed or retained after three months
from the enactment of this section [or, as the case
may be, the coming into force of the Bombay
Municipal (Extension of Limits) Act, 1950] [or the
coming into force of the Bombay Municipal
[Further Extension of Limits and Schedule BBA
(Amendment)] Act, 1956], upon any land,
building, wall hoarding or structure save and
except as permitted or exempted from permission
as herein before provided, the owner or person in
occupation of such land, building, wall, hoarding
or structure shall be deemed to be the person who
has erected, exhibited, fixed or retained such
advertisement in contravention of the provisions
of this section, unless he proves that such
contravention was committed by a person not in
his employment or under his control or was
committed without his connivance.
(3) If any advertisement be erected, exhibited,
904-WP-1648-17 group.sxw
fixed or retained contrary to the provisions of this
section after the written permission for the
erection, exhibition, fixing or retention thereof for
any period shall have expired or become void, the
Commissioner may by notice in writing, require
the owner or occupier of the land, building, wall,
hoarding or structure upon which the same is
erected, exhibited, fixed or retained, to take down
or remove such advertisement.
(4) [(a)] The word "structure" in this section
shall include [a tram- car, omnibus and any other
vehicle and any moveable board] used primarily
as an advertisement or an advertising medium;
[and
(b) the expression "illuminated
advertisement " in this section shall not include an
illuminated display of goods, if such display-
(i) is of goods merely bearing labels
showing the name of the article or of it's
manufacturer or of both, and
(ii) is made by lighting which is not, in
the opinion of the Commissioner, more than
is necessary to make the goods and labels
visible at night.]"
It will be relevant to refer to Section 479(1) and (2) of the MMC Act,
which read thus:
"479. Licences and written permission to
specify condition etc., on which they are
granted.
(1) Whenever it is provided in this Act that a
licence or a written permission may be given for
any purpose, such licence or written permission
904-WP-1648-17 group.sxw
shall specify the period for which, and the
restrictions and conditions subject to which, the
same is granted, and shall be given under the
signature of the Commissioner or of a municipal
officer empowered under section 68 to grant the
same.
Fees to be chargeable.
(2) For every such licence or written permission
a fee may be charged at such rate as shall from
time to time be fixed by the [Commissioner], with
the sanction of the corporation."
It will also be relevant to refer to clause (31) of Section 2 of the
Railways Act, which reads as under:-
"2(31) "railway" means a railway, or any portion of a
railway, for the public carriage of passengers or goods,
and includes-
(a) all lands within the fences or other boundary
marks indicating the limits of the land appurtenant to
a railway;
(b) all lines of rails, sidings, or yards, or branches
used for the purposes of, or connection with, a railway;
(c) all electric traction equipments, power supply
and distribution installation used for the purposes of,
or in connection with, a railway;
(d ) all rolling stock, stations, offices, warehouses,
wharves, workshops, manufactories, fixed plant and
machinery, roads and streets, running rooms, rest
houses, institutes, hospitals, water works and water
supply installations, staff dwellings and any other
works constructed for the purpose of, or in connection
with, railway;
904-WP-1648-17 group.sxw
(e) all vehicles which are used on any road for the
purposes of traffic of a railway and owned, hired or
worked by a railway; and
(f) all ferries, ships, boats and rafts which are used
on any canal, river, lake or other navigable inland
waters for the purposes of the traffic of a railway and
owned, hired or worked by a railway administration,
but does not include-
(i) a tramway wholly within a
municipal area; and
(ii) lines of rails built in any exhibition
ground, fair, park, or any other place
solely for the purpose of
recreation;"
It will also be relevant to refer to Sections 11, 184 and 185 of the
Railways Act, which read as under:-
"11. Power of railway administrations to execute all
necessary works.-- Notwithstanding anything
contained in any other law for the time being in force,
but subject to the provisions of this Act and the
provisions of any law for the acquisition of land for a
public purpose or for companies, and subject also,in
the case of a non-Government railway, to the
provisions of any contract between the non-
Government railway and the Central Government, a
railway administration may, for the purposes of
constructing or maintaining a railway-
(a) make or construct in or upon, across, under or
904-WP-1648-17 group.sxw
over any lands, or any streets, hills, valleys, roads,
railway, tramways, or any rivers, canals, brooks,
streams or other waters, or any drains, water-pipes,
gas-pipes, oil-pipes, sewers, electric supply lines, or
telegraph lines, such temporary or permanent
inclined-planes, bridges, tunnels, culverts,
embankments, acquaducts, roads, lines of railways,
passages, conduits, drains, piers, cuttings and fences,
in-take wells, tube wells, dams, river training and
protection works as it thinks proper;
(b) alter the course of any rivers, brooks, streams
or other water courses, for the purpose of constructing
and maintaining tunnels, bridges, passages or other
works over or under them and divert or alter either
temporarily or permanently, the course of any rivers,
brooks, streams or other water courses or any roads,
streets or ways, or raise or sink the level thereof, in
order to carry them more conveniently over or under
or by the side of the railway;
(c ) make drains or conduits into, through or under
any lands adjoining the railway for the purpose of
conveying water from or to the railway;
(d) erect and construct such houses, warehouses,
offices and other buildings, and such yards, stations,
wharves, engines, machinery apparatus and other
works and conveniences as the railway
administration thinks proper;
[(da) developing any railway land for commercial
use;]
(e) alter, repair or discontinue such buildings,
works and conveniences as aforesaid or any of them
and substitute others in their stead;
(f) erect, operate, maintain or repair any
telegraph and telephone lines in connection with the
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working of the railway;
(g) erect, operate, maintain or repair any electric
traction equipment, power supply and distribution
installation in connection with the working of the
railway; and
(h) do all other acts necessary for making,
maintaining, altering or repairing and using the
railway."
"184. Taxation on railways by local authorities.-
(1)Notwithstanding anything to the contrary contained in
any other law, a railway administration shall not be liable
to pay any tax in aid of the funds of any local authority
unless the Central Government, by notification, declares
the railway administration to be liable to pay the tax
specified in such notification.
(2) While a notification of the Central Government
under sub-section (1) is in force, the railway
administration shall be liable to pay to the local authority
either the tax specified in the notification or, in lieu
thereof, such sum, if any, as an officer appointed in this
behalf by the Central Government may, having regard to
all the circumstances of the case, from time to time,
determine to be fair and reasonable.
(3) The Central Government may at any time revoke
or vary a notification issued under sub-section (1).
(4) Nothing in this section shall be construed to
prevent any railway administration from entering into a
contract with any local authority for the supply of water or
light, or for the scavenging of railway premises, or for any
other service which the local authority may be rendering
or be prepared to render to the railway administration."
"185. Taxation on railways for advertisement.--
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(1) Notwithstanding anything to the contrary contained in
any other law, a railway administration shall not be liable
to pay any tax to any local authority in respect of any
advertisement made on any part of the railway unless the
Central Government, by notification, declares the railway
administration to be liable to pay the tax specified in such
notification.
The Central Government may at any time revoke or
vary a notification issued under sub-section (1)."
15] Perusal of Section 328 of MMC Act would reveal that, no person
can erect, fix or retain any sky-sign without the permission of the
Commissioner of MCGM. It would further reveal that where a sky-
sign is a poster depicting any scene from a cinematographic film, stage
play or other stage performance, such permission shall not be granted,
unless prior scrutiny of such poster is made by the Commissioner and
he is satisfied that the erection or fixing of such poster is not likely to
offend against decency or morality. Under Section 328A, a similar
provision is made, requiring written permission of Commissioner for
erecting, exhibiting, fixing or retaining any advertisement whether
now existing or not upon any land, building, wall, hoarding or
structure. Perusal of clause (d) of second proviso of sub-section (1) of
Section 328A would reveal that such permission shall not be necessary
in respect of any advertisement which is exhibited within any railway
904-WP-1648-17 group.sxw
station or upon any wall or other property of a railway company.
However, when any portion of the surface of such wall or property is
fronting any street, it will be carved out from clause (d). The effect
would be that, when any portion of the surface of such wall or
property fronts any street, permission would be required under section
328A. Under section 479 of MMC Act, it is required that whenever it
is provided under the Act that a licence or a written permission may be
given for any purpose, such licence or written permission shall specify
the period for which, and the restrictions and conditions subject to
which, the same is granted, and shall be given under the signature of
the Commissioner or of a municipal officer empowered under section
68 to grant the same. Sub-section (2) of Section 479 provides that,
for every such licence or written permission, a fee may be charged at
such rate as shall from time to time be fixed by the Commissioner,
with the sanction of the Corporation.
16] Perusal of clause (31) of Section 2 of the Railways Act, would
reveal that the term "railway" has been given a very wide meaning. It
means a railway, or any portion of a railway for the public carriage of
passengers or goods. It includes all lands within the fences or other
904-WP-1648-17 group.sxw
boundary marks indicating the limits of the land appurtenant to a
railway. It also includes all lines of rails, sidings, or yards, or branches
for the purposes of, or in connection with, a railway. It also includes
all electric traction equipments, power supply and distribution
installations used for the purposes of, or in connection with, a railway.
It also includes all rolling stock, stations, offices, warehouses, wharves,
workshops, manufactories, fixed plant and machinery, roads and
streets, running rooms, rest houses, institutes, hospitals, water works
and water supply installations, staff dwellings and any other work
constructed for the purpose of, or in connection with, railway. It also
includes all vehicles which are used on any road for the purposes of
traffic of a railway and owned, hired or worked by railway.
17] Under Section 11 of the Railways Act, railway administration has
been bestowed with various powers for the purpose of constructing or
maintaining railway. The said power is notwithstanding anything
contained in any other law for the time being in force, but subject to
the provisions of the said Act and provisions of any law for the
acquisition of land for a public purpose or for companies, and subject
also, in the case of a non-Government railway, to the provisions of any
904-WP-1648-17 group.sxw
contract between the non-Government railway and the Central
Government. Clause (d) of Section 11, would reveal that the railway
administration is also empowered to erect and construct such houses,
warehouses, offices and other buildings, and such yards, stations,
wharves, engines, machinery apparatus and other works and
conveniences as the railway administration thinks proper. Under
clause (da), which is inserted by Act 47 of 2005, railway
administration is also empowered for developing any railway land for
commercial use.
18] Sub-section (1) of Section 184 of the Railways Act provides that
notwithstanding anything to the contrary contained in any other law, a
railway administration shall not be liable to pay any tax in aid of the
funds of any local authority unless the Central Government, by
notification, declares the railway administration to be liable to pay the
tax specified in such notification. Sub-section (2) thereof provides that
while a notification of the Central Government under sub-section (1) is
in force, the railway administration shall be liable to pay to the local
authority either the tax specified in the notification or, in lieu thereof,
such sum, if any, as an officer appointed in this behalf by the Central
904-WP-1648-17 group.sxw
Government may, having regard to all the circumstances of the case,
from time to time, determine to be fair and reasonable. Sub-section
(3) thereof empowers the Central Government to revoke or vary a
notification issued under sub-section (1) at any time. Sub-section (4)
thereof enables the railway administration to enter into contract with
any local authority for the supply of water or light, or for the
scavenging of railway premises, or for any other service which the
local authority may be rendering or be prepared to render to the
railway administration.
19] Section 185 deals with taxation on railways for advertisement.
The said section also begins with non-obstante clause. It provides that
notwithstanding anything to the contrary contained in any other law, a
railway administration shall not be liable to pay any tax to any local
authority in respect of any advertisement made on any part of the
railway unless the Central Government, by notification, declares the
railway administration to be liable to pay the tax specified in such
notification. Under sub-section (2) thereof, the Central Government is
empowered to revoke or vary a notification issued under sub-section
(1) at any time. Sub-section (1) of Section 197, further provides that
904-WP-1648-17 group.sxw
for the purposes of various sections including Sections 184 and 185,
the word "railway" whether it occurs alone or as a prefix to another
word, has reference to a railway or portion of a railway under
construction and to a railway or portion of a railway not used for the
public carriage of passengers, animals or goods as well as to a railway
falling within the definition of that word in clause (31) of section 2.
20] At the outset, we may state that there is no dispute between the
parties that in so far as advertisements, which are within the railway
station or upon any wall or other property of the railway, except the
one which are fronting any street, no permission is required under
Section 328A. The only controversy is with regard to advertisements
which are situated on the property of railway and which have frontage
against the street.
21] It is the contention of MCGM that in view of provisions of
Section 328A, permission of the Corporation would be necessary and
the Corporation has power to remove the same if the permission is not
obtained. It is the Contention of the Corporation that under sub-
section (1) of Section 479, prior permission of the Commissioner is
904-WP-1648-17 group.sxw
required and for that the Corporation is entitled to charge fees under
sub-section (2) of the said Section. Per contra, it is the contention of
the Railway and other Petitioners that in view of various provisions
contained in the Railways Act, Corporation has no power to insist
upon its permission for erection of such hoardings, which have
advertisements facing the street. It is also the contention of the
Railways and the Petitioners that in view of the provisions of the
Railways Act, Corporation has no right to levy taxes on the
advertisements situated on the property of the Railways.
22] We have already referred to the provisions of Section 11
hereinabove. The Railways Act, 1989 succeeds the Indian Railways
Act 1890, whereas the present MMC Act succeeds the City of Bombay
Municipal Act (Bom Act III of 1888) [hereinafter referred to as
"Bombay Municipal Act"] In the Indian Railways Act 1890, section 7
has provisions which are corresponding with the provisions contained
in Section 11 of the Railways Act, 1989, which reads thus :-
"7. Authority of railway administration to execute all
necessary works.- (1) Subject to the provisions of this
Act and, in the case of immoveable property not
belonging to the railway administration, to the
provisions of any enactment for the time being in force
904-WP-1648-17 group.sxw
for the acquisition of land for public purposes and for
companies, and subject also, in the case of a railway
company, to the provisions of any contract between the
company and the Government, a railway administration
may, for the purpose of constructing the railway or the
accommodation or other works connected therewith,
and notwithstanding anything in any other enactment
for the time being in force,
(a) make or construct in, upon, across, under or over
any lands, or any streets, hills, valleys, roads, the
railways or tramways, or any rivers, canals, brooks,
streams or other waters, or any drains, water-pipes, gas-
pipes or telegraph lines, such temporary or permanent
inclined planes, arches, tunnels, culverts, embankments,
aqueducts, bridges, roads, [lines of the railway, ways],
passages, conduits, drains, piers, cuttings and fences as
the railway administration thinks proper;
(b) alter the course of any rivers, brooks, streams, or
watercourses, for the purpose of constructing and
maintaining tunnels, bridges, passages or other works
over or under them, and divert or alter, as well
temporarily as permanently, the course of any rivers,
brooks, streams or watercourses or any roads, streets or
ways, or raise or sink the level thereof, in order the
more conveniently to carry them over or under or by
the side of the railway, as the railway administration
thinks proper;
(c) make drains or conduits into, through or under
any lands adjoining the railway for the purpose of
conveying water from or to the railway;
(d) erect and construct such houses, warehouses,
offices and other buildings, and such yards, stations,
wharves, engines, machinery, apparatus and other
works and conveniences as the railway administration
thinks proper;
904-WP-1648-17 group.sxw
(e) alter, repair or discontinue such buildings, works
and conveniences as aforesaid or any of them and
substitute others in their stead; and
(f) do all other acts necessary for making,
maintaining, altering or repairing and using the railway.
(2) The exercise of the powers conferred on a
railway administration, by sub-section (1) shall be subject
to the control of the [Central Government]"
23] As early as in 1909, a somewhat similar question arose for
consideration before Division Bench of this Court in the case of
Municipal Commissioner of Bombay vs. The Agent G.I.P. Railway
Company1. The Agent of the G.I.P. Railway Company was charged in
the Presidency Magistrate's Court at the instance of the then Bombay
Municipality for having used the Company's premises for storing
timber without a license granted by the Municipal Commissioner.
After recording the evidence, the learned Magistrate referred the
following question under section 432 of the Criminal Procedure Code
(Act V 1898) :-
"Do the statutory powers given to the Railway
Company (section 7 of the Indian Railways Act IX
of 1890) preclude the necessity of obtaining a
license from the Municipal Commissioner, to use
premises in such a manner as is necessary for the
convenient making, altering, repairing and using
1 ILR Vol XXXIV 252
904-WP-1648-17 group.sxw
the Railway?"
It will be relevant to refer to sections 394(1), (b) and (d) of the City of
Bombay Municipal Act (1888), which read as under:-
"(1) No person shall use any premises for any of
the purposes hereinbelow mentioned, without,
or otherwise than in conformity with the terms
of, a license granted by the Commissioner in this
behalf, namely ......
(b) any purpose which is, in the opinion of the
Commissioner, dangerous to life, health or
property, or likely to create a nuisance, ......
(d) storing for other than domestic use or
selling timber, firewood, char-coal, coal, coke,
ashes, hay, grass, straw or any other combustible
thing."
It could thus be seen that in the said case also, no person could have
used the premises for storing timber or firewood etc, other than
domestic use, unless the license was granted by the Commissioner.
Section 479 of the 1888 Act also provided similar provisions as are
contained in present Section 479 of the MMC Act and the Court also
considered the same. Sub-section (3) of Section 479 of the Bombay
Municipal Act, provided as under:-
904-WP-1648-17 group.sxw
"Subject to the provisions of clause (d) of
section 403, any license or written permission
granted under this Act may at any time be
suspended or revoked by the Commissioner, if
any of its restrictions or conditions is infringed
or evaded by the person to whom the same
has been granted, or if the said person is
convicted of an infringement of any of the
provisions of this Act or of any regulation or
by-law made hereunder in any matter to
which such license or permission relates."
In that case, it was sought to be urged on behalf of the Municipality
that though the Commissioner could not prohibit the use of any
premises, the use of which was authorised by the terms of section 7 of
the Railways Act, 1890, yet he still had reserved to him, under section
394(1)(d) a power of regulating the method in which the Railway
Company should store timber upon its premises even though such
storing was authorised by section 7(1)(f). In view of the rival
contentions, the aforesaid question which we have reproduced arose
for consideration before the Division Bench. After considering various
provisions of the Bombay Municipal Act and the provisions of Section
7 of the Railways Act, 1890 which are analogous with the provisions
contained in Section 11 of the Railways Act 1989, Division Bench
904-WP-1648-17 group.sxw
observed thus:-
"It is not disputed that the unrestricted provisions
of section 394 would empower the Commissioner to
refuse in his discretion to grant a license. This view has
the authority of a ruling of this Court in its favour : see
Haji Esmail v. Municipal Commissioner of Bombay.
[(1903) 28 Bom. 253 : 5 Bom. L.R. 1001]
It was at first contended by counsel for the
Commissioner that the power of refusal extended to
such a case as the present but being pressed by the
words of section 7 of the Railways Act "notwithstanding
anything in any other enactment for the time being in
force" and by the consideration that such a contention
if upheld would give to the Commissioner, under
section 394 (b), the power, if he thought fit, to prohibit
the working of the Railway in parts of the city, he
modified and reduced the argument to this, that
although by reason of the terms of section 7 of the
Railways Act the Commissioner could not prohibit the
use of any premises, the use of which was authorised
by the terms of section 7, yet he still had reserved to
him under section 394(1)(d) a power of regulating the
method in which the Railway Company should store
timber upon its premises even though such storing was
authorised by section 7(1)(f); and authorities were
cited to the Court in support of the general proposition
that an implied repeal of one Act by a later Act will not
be inferred if it is possible even partially to harmonise
the provisions of the two acts. While we recognise this
as a general rule of construction, we do not think that
there is any scope for its application in the present case;
in the first place, it would involve an almost complete
rewriting of section 394, part of it being left to stand,
another part being restricted without any precise
guidance as to the limits of the restriction and yet
904-WP-1648-17 group.sxw
another part being altogether deleted. It seems to us
very doubtful whether such a recasting of the section
would be warranted by any recognised principles of
construction. In the second place we have not only the
provision that the words of section 7 shall be read
notwithstanding anything in any other enactment for
the time being in force, but we have an express
declaration in sub-section (2) of the authority which
shall have control of the Railway administration in the
exercise of its powers under sub-section (1). That
authority is the Governor General in Council and not
the Municipal Commissioner.
The provisions of the Railways Act to which we
have referred provide, we think, for an undivided and
exclusive control of Railway administrations by the
Supreme Government.
Considerations of convenience and the safety of
the public and security of property have been pressed
upon us in argument. But we do not think there is any
practical force in any of these suggestions, for, if the
Municipal Commissioner is really of opinion that the
Railway Company is exercising its statutory powers in a
manner inconsistent with the health of the inhabitants
of Bombay or the safety of property therein, it is always
open to him to make a representation to that effect to
the Governor General in Council in order that the state
of affairs complained of may be inquired into and if
necessary remedied by the proper authority."
It could thus be seen that, in the said case it was sought to be urged
on behalf of the Bombay Municipality that an implied repeal of one
Act by a later Act would not be inferred if it was possible even partially
to harmonise the provisions of the two Acts. However, the said
904-WP-1648-17 group.sxw
contention was rejected by the Division Bench. It was observed that if
such an exercise was to be done, it would involve complete rewriting
of section 394, part of it being left to stand, another part being
restricted without any precise guidance as to the limits of the
restriction and yet another part being altogether deleted. This Court
further observed that it was stated in section 7 of the Railways Act,
1890 that the provisions were notwithstanding anything in any other
enactment for the time being in force. Division Bench of this Court
further observed that there is an express declaration in sub-section (2)
of the authority, which shall have control of the Railway
administration, that is the Governor General in Council and not the
Municipal Commissioner. Division Bench of this Court further
observed that the provisions of Railways Act provided for undivided
and exclusive control of Railway administration by the Supreme
Government. The Division Bench further observed that if the
Municipal Commissioner was of the opinion that the Railway
Company was exercising its statutory powers in a manner inconsistent
with the health of the inhabitants of Bombay or the safety of property
therein, it was always open to him to make a representation to that
effect to the Governor General in Council.
904-WP-1648-17 group.sxw
24] No doubt, provisions of sub-section (2) of Section 7 of 1890
Act are not contained in the Railways Act of 1989. However, it is to be
noted that when Indian Railways Act 1890 was enacted, the Railways
were mostly manged by private companies and the Government of
India primarily played its role of co-ordinating and regulating
authority in various matters and, as such, its role was reflected in the
Act. The Statement of Objects and Reasons of 1989 Act would itself
reveal that except for a very small portion of the railway, now the
entire railway system has become a part of Government of India.
Perusal of various provisions of the Act would reveal that the entire
control of the railway rests with the Government of India.
25] We may also refer to the judgment of the Division Bench of this
Court in the case of The Great Indian Peninsula Railway vs. The
Municipal Corporation of Bombay1. In the said case, GIP Railways
while constructing the Harbour Branch Railway, laid down the lines
of rails in a level crossing across a public street known as Sewri
Koliwada Road, which vested in the Municipal Corporation of Bombay
1 BLR Vol XVI 104
904-WP-1648-17 group.sxw
under section 289 of the Bombay City Municipal Act. The Bombay
City Municipal Corporation filed a suit to obtain a declaration that the
Railway Company could not lawfully maintain their lines of railway
across the street in question without either obtaining permission
granted by the Corporation and confirmed by the Government under
Section 293 of the Act or acquiring the land required for the level
crossing under the Land Acquisition Act, 1894. It was sought to be
contended on behalf of Defendant - Railways that they had an
authority to make and maintain the lines of railway under section 7 of
the Indian Railways Act, 1890. The suit was decreed, declaring that
the defendant company could make its private terms with the
Municipality or it could acquire the portion of the street it needed
under the Land Acquisition Act, but until it had done the one or the
other, it was a trespasser on Municipal land. The said decree was
carried in appeal by GIP Railways before Division Bench of this Court.
It was sought to be contended on behalf of the Corporation that in
view of Section 289 of the City of Bombay Municipal Act, which is
almost analogous to Section 289 of the MMC Act, all public streets,
and the pavements, stones and other materials vested in the
Corporation and unless the permission under section 293 of the
904-WP-1648-17 group.sxw
erstwhile Act was granted and confirmed by the Government or the
land required for level crossing was acquired under the Land
Acquisition Act, railway had no authority to lay down the lines of
railways. In so far as the contention with regard to Section 289 of the
Bombay Municipal Act is concerned, Division Bench observed thus:-
"The effect of s. 289 of the Bombay City
Municipal Act vesting all public streets,
pavements, stones and other materials in the
Corporation and under the control of the
Commissioner is only to vest in that body
such property as is necessary for the control,
protection and maintenance of the street as
highway for public use : see Mayor, etc., of
Tunbridge Wells vs. Baird ([1896] A.C. 434,
442.]"
The Division Bench of this Court in the said case further observed as
under:-
"The statutory authority under s. 7 of the
Railways Act to lay the railway across the
street without resort to the Land Acquisition
Act being in our opinion established, the
application of s. 293 of the City of Bombay
Municipal Act is excluded by the words
"notwithstanding anything in any other
enactment for the time being in force." The
Railways Act, s. 16, overrides the Municipal
Act and the sole control over the railway
administration is vested in the Governor
General. (See s. 16(2) and Municipal
Commissioner of Bombay v. G.I.P. Railway
[(1909) 11 Bom.L.R. 1181]. The evidence so
904-WP-1648-17 group.sxw
far as it goes indicates that the railway across
the Sewri Koliwada Road has the approval of
the controlling authority.
We, therefore, reverse the decree of the
lower Court and allow the appeal dismissing
the suit with costs throughout."
(Emphasis supplied)
26] It could be seen that provisions which are contained in section
11 of the 1989 Act are identical with Section 7 of the 1890 Act.
Section 11 also begins with non-obstante clause. It provides that,
notwithstanding anything contained in any other law for the time
being in force, railway administration is empowered to execute
various measures for the purpose of constructing or maintaining
railway. Clause (d) thereof deals with erection and construction of
such houses, warehouses, offices and other buildings, and such yards,
stations, wharves, engines, machinery apparatus and other works and
conveniences as the railway administration thinks proper. Clause (da)
thereof, which is inserted by the Act 47 of 2005, enables it to take
steps for developing any railway land for commercial use. Clause (h)
thereof, enables it to do all other acts necessary for making,
maintaining altering or repairing and using the railway.
27] We find that in view of interpretation placed by the Division
904-WP-1648-17 group.sxw
Bench of this Court on Section 7 of 1890 Act, which is analogous to
Section 11 of the 1989 Act, that too while construing the conflict
between the provisions of the said Act and City of Bombay Municipal
Act, which is a predecessor of the MMC Act, it will have to be held
that the provisions of section 328 and 328A and 479, would not be
applicable to any of the activities that railway administration may
execute in pursuance of the powers vested in it under Section 11.
Undisputedly, since under clause (da) of Section 11, the railway
administration is also empowered to develop any railway land for
commercial use and since under clause (d), it is also empowered to
erect and construct such houses, warehouses, offices and other
buildings, and such yards, stations, wharves, engines, machinery
apparatus and other works and conveniences as the railway
administration thinks proper; the hoardings which are erected by the
railways on its land would not require the permission of the
Corporation either under Section 328 or 328A of the MMC Act and
consequently no license would be required under section 479.
28] The next question that we are required to answer is, as to
whether the Corporation would be entitled to levy advertisement tax
904-WP-1648-17 group.sxw
or not on the advertisements displayed on the hoardings erected on
the land of the railways. Ordinarily, having answered the first
question, it would not have been necessary for us to answer the said
question. However, since the Corporation relied on the judgment of
the Apex Court in the case of Links Advertisers and Business Promoters
vs. Commissioner, Corporation of the City of Bangalore 1, we find that it
will be necessary for us to deal with the said issue.
29] It will have to be noted that the case of Link Advertisers and
Business Promoters (supra) was decided by the Hon'ble Supreme
Court on 21st April, 1977. However, the Railways Act, 1989 which
contains section 185 has been enacted in the year 1989. Their
Lordships, in the said case, have referred to Section 136 of Bangalore
Municipal Corporation Act, 1949, relevant part of which reads thus:
"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 manner
whatsoever, in any place whether public or private,
shall pay on every advertisement which is so erected,
exhibited, fixed retained or displayed to public view, a
tax calculated at such rates and in such manner and
1 AIR 1977 SC 1646
904-WP-1648-17 group.sxw
subject to such exemptions, as the corporation may,
with the approval of the Government, by resolution
determined:
X X X
"Provided further that no such tax shall be levied on
any advertisement which is not a sky-sign and which-
X X X
(e) is exhibited within any railway station or upon any
wall or other property of a railway except any portion
of the surface of such wall or property fronting any
street.
Explanation 1- The word 'structure' in this section shall
include any movable board on wheels used as an
advertisement or an advertisement medium.
(Emphasis supplied)."
Their Lordships observed that the intention of the statute was to tax
certain types of advertisements. The pith and substance of the entire
section was the taxation of advertisements fixed, erected, or exhibited
on any land, building, wall, hoarding, structure etc. Their Lordships
held that the tax contemplated under section 136 was on
advertisements and not tax on premises or buildings. It could thus be
seen that when Their Lordships decided the said case, there was no
provision like Section 185, which clearly provides that
notwithstanding anything contained in any other law, railway
904-WP-1648-17 group.sxw
administration is not liable to pay any tax to any local authority in
respect of any advertisement made on any part of the railway, unless
the Central Government by notification declares that railway
administration to be liable to pay the tax specified in such notification.
Undisputedly, no such notification has been issued by the Central
Government. As such, the said judgment would not be applicable to
the facts of the present case, in view of specific provision contained in
Section 185 of the Railways Act, which were not present in erstwhile
Railways Act of 1890.
30] Apart from that, we may also gainfully refer to the judgment of
the Hon'ble Supreme Court in the case of Union of India vs. Purna
Municipal Council and Others1. In the said case, Purna Municipal
Council had claimed service charges from Railways for certain period.
The Union of India contended that in view of Article 285 of the
Constitution of India read with Section 135 of the Indian Railways
Act, 1890, it was not liable to pay the service charges. The contention
on behalf of the Union of India was rejected by the Division Bench of
this Court at Aurangabad. The same was challenged before the Apex
1 (1992) 1 SCC 100
904-WP-1648-17 group.sxw
Court. While reversing the Order of this Court, Their Lordships
observed thus:
"5. The aforesaid provision, existing as it is, in
terms permits taxation of railways by the local
authority in the manner given therein; the Central
Government being the controlling and the
regulating authority permitting liability at a given
point of time, its extent and manner. The Indian
Railways Act being a central enactment has no rule
to play in sub-article (2) of Article 185, for that is a
sphere in which the State legislation operates. The
reasoning of the High Court to oust the applicability
of Section 135 of the Indian Railways Act on the test
of sub-article (2) of Article 285 was totally
misplaced, as also in not venturing to create room
for it in sub-article (1) of Article 285. The interplay
of the constitutional and legal provisions being well
cut and well defined requires no marked elaboration
to stress the point. Accordingly, we allow this
appeal, set aside the judgment and order of the High
Court and issue the writ and direction asked for in
favour of the Union of India restraining the
respondent council from raising demands on the
railway in regard to service charges. We make it
clear that the rights of the local authority as flowing
under Section 135 of the Indian Railways Act, 1890
stand preserved in the event of the Central
Government moving into the matter, if not already
moved. In the circumstances of the case, however,
there will be no order as to costs."
31] The provisions of Section 135 of the Railways Act, 1890 are
corresponding to the provisions of Section 184 of the Railways Act,
1989. Their Lordships have, in the aforesaid case, clearly held that
904-WP-1648-17 group.sxw
unless the Central Government was moved in pursuance to the
provisions of Section 135 of the Railways Act, 1890, the local
authority has no jurisdiction to levy tax on railways. It could thus be
clearly seen that in view of specific provisions of Sections 184 and 185
of the Railways Act, 1989, railway administration is not liable to pay
any tax in aid of the funds of any local authority unless the Central
Government, by notification, declares the railway administration to be
liable to pay the tax specified in such notification. In so far as taxation
on railways for advertisement is concerned, legislative intent is
amplified by specific provisions contained in Section 185 of the
Railways Act, 1989. The said section begins with a non-obstante
clause and provides that, notwithstanding anything to the contrary
contained in any other law, railway administration shall not be liable
to pay any tax to any local authority in respect of any advertisement
made on any part of the railways. No doubt, that if the Central
Government by notification declares the railway administration to be
liable to pay the tax specified in such notification, railways would be
liable to pay the same. However, till the date such notification is
issued, no local authority would have an authority to levy a tax on the
advertisements made on any part of the railways. We are therefore
904-WP-1648-17 group.sxw
of the considered view, that unless the Central Government issues a
notification declaring the railway administration to be liable to pay
tax, no advertisement tax could be levied by any local authority.
32] The last contention raised on behalf of the Corporation is that
the fees that are charged, are from the advertisers/agents of the
railways and not from the railways. We find that the said contention
is also without any substance. In the case of Links Advertisers and
Business Promoters vs. Commissioner, Corporation of the City of
Bangalore1, Division Bench of Karnataka High Court had taken a
similar view as is sought to be argued on behalf of the Corporation. It
will be appropriate to reproduce the relevant observations of the
Division Bench of the Karnataka High Court, as are reproduced by
Their Lordships of the Apex Court in their Judgment, which read thus:
"In the instant case, we are not faced with any
situation as the one envisaged in the second part
of the exemption clause relative to
advertisement on a wall or other property of the
railway 'frontage by street. We are concerned
herein with the case of a hoarding put up by and
belonging to the appellant and not the railway.
Hence, it is plain that no exemption on that
1 AIR 1977 SC 1646
904-WP-1648-17 group.sxw
score could be claimed on behalf of the
appellant."
Rejecting the said contention, Their Lordships observed thus:-
"The High Court does not appear to have
interpreted the proviso correctly. The view of
the High Court that the proviso would only
apply to advertisements of such hoardings
whose ownership lies with the Railway on which
belong to the Railway is not borne out by Clause
(e) of the third proviso to Section 136. In other
words the question of exigibility to tax is
relatable not to the ownership of the hoarding
but its situs. Even if the hoarding does not
belong to the Railway but to some private party,
if it does not front the street and is situated
within the Railway premises or within the
compound of the railway premises it is clearly
exempt. We, therefore do not approve of the
line of reasoning adopted by the Division
Bench."
It could thus be clearly seen that Their Lordships have held that the
question of exigibility to tax is relatable not to the ownership of the
hoarding but its situs. It has been held by Their Lordships that if the
hoarding does not belong to railway but to some private party, and if
it does not front the street and is situated within the Railway premises
or within the compound of the railway premises, it is clearly exempt.
As already discussed above, when the Judgment in the case of Links
904-WP-1648-17 group.sxw
Advertisers and Business Promoters (supra), was delivered by Their
Lordships, the 1989 Act which contains the provisions of Section 185
was not enacted. However, now in view of the provisions of Section
185 as already discussed hereinabove, no tax could be levied in
respect of any advertisement made on any part of the railways. As
held by Their Lordships, exigibility to tax is relatable not to the
ownership of the hoarding but its situs. As already discussed
hereinabove, in view of the wide meaning given to the term "railway"
in Clause (31) of Section 2 of the Railways Act, 1989 and which is
further amplified by section 197 of the said Act, no hoardings situated
on any land which comes within the definition of the term "railway",
would be exigible for advertisement tax. In that view of the matter,
the contention that since taxes are sought to be recovered from
advertisers and not railways, such a levy would be permissible,
deserves to be rejected.
33] In the result, all these Petitions deserve to be allowed.
34] However, before we part with the judgment, it will be necessary
to note that various Division Benches at Principal Seat as well as the
904-WP-1648-17 group.sxw
Nagpur Bench have taken serious cognizance of haphazard manner in
which hoardings are erected and thereby endanger the safety of
citizens. Various orders were passed by various Division Benches of
this Court in Writ Petition No.1132 of of 2002. The said Petition is
disposed of by order dated 30/7/2012, accepting certain suggestions
made on behalf of the Corporation as well as the advertisers and
certain directions were issued. Various orders have also been passed
by Nagpur Bench of this Court in Writ Petition No.4175 of 1999
alongwith Writ Petiton No.4308 of 1999. We are of the considered
view that erection of hoardings in haphazard manner thereby
endangering the safety of citizens, would not be in the larger public
interest. We had therefore inquired from the learned Additional
Solicitor General to the Government of India, as to whether Railways
would formulate a policy for controlling hoarding activities so as to
ensure that hoardings are not erected in haphazard manner and the
safety of the citizens is not endangered. Mr. Anil Singh, learned
Additional Solicitor General fairly, on instructions of the authorities,
stated that the Railway Authorities would frame such policy.
35] We therefore find that it will be appropriate to direct the
904-WP-1648-17 group.sxw
Railway Authorities to formulate the policy for regulating the
hoardings on the railway properties, after taking into consideration
various statutory provisions, so as to ensure that the hoardings are not
erected in haphazard manner, that there is no overcrowding of the
hoardings and that the safety of citizens is not endangered.
36] We would appreciate if the Railway Authorities also involve the
Municipal Corporation of Greater Mumbai while formulating such
policy for hoardings within the area of the Municipal Corporation of
Greater Mumbai. The same shall be done within a period of six
months from today.
37] In the result, the following order:-
O R D E R
(i) It is held and declared that -
(a) Provisions of Sections 328 and 328A of
the Mumbai Municipal Corporation Act would not
be applicable to the hoardings erected by Railways
on the railway as defined in Clause (31) of Section 2
read with section 197 of the Railways Act, 1989.
904-WP-1648-17 group.sxw
(b) Railway Administration or its agents
would not be liable to pay any tax to the
Corporation in respect of any advertisement made
on any part of the Railways, unless a Notification to
that effect is issued by the Central Government
under Section 185 of the Railways Act, 1989.
(ii) Rule is made absolute in the aforesaid terms
with no order as to costs.
(iii) Since all the above Writ Petitions are
disposed of, Notices of Motion, Chamber Summons
taken out therein, if any, are also disposed of.
(SANDEEP K. SHINDE, J. ) (B. R. GAVAI, J. )
