New Delhi Municipal Corporation vs Shanti Brothers Jewellers
1990 Latest Caselaw 268 Del

JUDGMENT

Mahesh Chandra, J.

(1) The respondent-plaintiff M/s. Shanti Brothers Jewellers received a Bill No. 377" dated 13th August, 1968 for payment of sum of Rs. 1000.00 as advertisement tax for 26th March, 1968 to 31st March. 1969 from the appellant-defendant N.D.M.C. and in consequence the plaintiff filed a suit for permanent injunction for restraining the defendant from levying, collecting or recovering the said advertisement tax and the said suit was decreed by Sbri R. P. Gupta, Sub Judge, Delhi vide his judgment and decree dated 28tb.0ctober, 1970 and the appeal of the N.D.M.C. before Additional District Judge was also dismissed vide judgment dated 30th November, 1972. Feeling aggrieved N.D.M.C. has filed this Regular Second Appeal. I have beard the learned counsel for the parties and have gone through the files and after giving my considered thought to the matter before me I have come to the following findings :

(2) The contention of the plaintiff in the suit was that it was carrying on a business under the name and style of M/s. Shanti Brothers Jewellers at premises No. 18L. Connaught Place, New Delhi and bad exhibited two sign boards with effect from March, 1968 with the description namely, (i) One sign board with the words "Shanti Brothers Jewellers" of the approximate size 16' X 3, on the front side of the shop and (ii) on other side board with the words "Shanti Brothers Jewellers" of the approximate size 12' X 3' on the other side of the shop and that the said boards were not liable to any advertisement tax in accordance with the laws and bye-laws governing N.D.M.C. and as such the defendants be restrained from levying or collecting the said tax. Certain other pleas the constitutionality of the tax were also raised. The said suit was contested by the N.D.M C. on the ground that the suit Was barred by section 86 of the Punjab Municipal Act and the plaintiff had put up three sign boards of the description namely (i) .Shanti Brothers, (ii) Shanti Brothers Jewellers and (iii) Shanti Brothers Jewellers and it was only the first sign board which bore the trade name of the plaintiff and was exempt from advertisement tax while the other two sign boards were amenable to advertisement tax, which had been correctly and validly levied and was recoverable.

(3) It has been urged by the learned counsel for the appellant that the N.D.M.C. has formulated bye-laws relating to the control and regulation of advertisement in New Delhi Municipal Area vide notification No.F 3(13) Lsg dated 17th September, 1960 and the tax has been levied in accordance therewith. He has drawn my attention to Bye-laws 7 which defines Advertisement as follows in the Explanation : "THE word 'advertisement' means any word, letter, model, sign, placard, notice, device, or representation whether illuminated or not, in the nature of and employed wholly or in part for the purpose of advertisement announcement or direction".

Exemptions from advertisement tax have been provided in bye-law 7. It is appropriate to reproduce here by-laws 7(a) & (e) which are relevant for disposal of this Regular second appeal. These lay down as under :

(4) The tax shall not be payable on the following categories of advertisement: (A)Name boards displayed by the traders on their own premises provided the board is purely a name-board and it does not contain any item of advertisement. (b) Advertisement which relates to the trade, profession or business carried ou within the land or building upon or over which such advertisement is exhibited or to any sale or letting of such land or building or any effects therein or any sale, entertainment or meeting to be held on or upon or in the same. Provided that exemption under this item shall apply only to one board displayed by the owner or his agent".

(5) In the light of this definition it has been submitted by him that both the boards bearing the particulars of Shanti Brothers Jewellers come within the definition of advertisement and as such one of them is certainly liable to tax under Bye-laws 7(e). I do riot find myself in agreement with him.

(6) According to N.D.M.C. there is a third board containing name- 'Shanti,Brothers' which only is exempt as name board under Bye-laws 7(a). However, the name of the firm is Shanti Brothers Jewellers and as such one board bearing name of firm Shanti Brothers Jewellers would be clearly exempt under bye-laws 7(e) as name board. Furthermore what has been ignored by the learned counsel for the N.D.M.C. is that bye-law 7(a) exempts all the name boards displayed by to traders on their own premises provided the board is purely a name board and it does not contain any item of advertisement. One of the boards has been accepted as a matter of fact by the trial court and the lower appellate court as pure and simple name board without carrying any advertisement of any (r)ort. I find myself is agreement with findings of the lower court. This finding of these courts is even otherwise a finding of fact and cannot be permitted to be challenged before this court.

(7) It has been held by a Division Bench of this court in M/s. Allied Motors Pvt. Ltd. New Delhi and others v. New Delhi Municipal Committee and others, as follows :

"TO claim exemption under clause (a) it must be proved that the advertisement in dispute was (1) the name board, (2) bad been. displayed by the trader at his own premises and (3) it was purely a name-board and did not contain any item of advertisement".

Name boards not containing any item of advertisement are not taxable as advertisements".

(8) Thus this one name board is not liable to tax as all these conditions satisfied by this. board and as such this 'board being name board is exempt under clause 7(a). Let. us now consider the position of other board containing. a necklace like figure. Assuming fo; the sake of arguments that this board contains elements of advertisement as some necklace sort of figure has been painted on it, within the meaning of the term 'advertisement'; even then this would be exempt from payment advertisement tax in view of provisions of Bye-law 7(e). Consequently none of these two boards attracts advertisement tax and 'therefore there is nothing in the ' finding of the lower courts which calls for interference. Learned counsel for the appellant has tried to urge that orders of both the lower courts suffer from non-application of the mind and misreading of evidence but be has not been able to substantiate his allegations . from the record. We cannot confuse the board of M/s. Shanti Brothers assuming it was there, with the boards or firm name M/s. Shanti Brothers Jewellers and the fallacy of the arguments of the learned counsel for the appellant arises because of his confusing these two different-lets of boards. M/s. Shanti Brothers is the parent body which is running jewellers firm known as - M/s. Shanti Brothers Jewellers and is.such Jn the eye of law particularly for the purpose of advertisement tax M/s. Shanti 'Brothers Jewellers would be a separate entity and one name board which has been held by the lower court not to contain any element of advertisement would be exempt by law 7(a) and the other board even accepting that it contained an clement of advertisement would be exempt under Bye-law 7(e). In fact even the second board containing the words "Shanti Brothers Jewellers" would be covered by the description of name board and be exempt under Bye-law 7(a) as well, as the use of the words "name boards" under bye-law 7(e) would indicate that all name boards would beexempt. Even if the second board is deemed to be an advertisement board, it would be exempt under Bye-law 7(e) and as such other is no force in the submission of the learned cousel for the appellant.

(9) There is no force in the contention that suit of the plaintiff respondent was not maintainable. In the instant case the boards have been found to be exempt from advertisement tax and attract no advertisement tax. Thus the act of N.D.M.C. appellant in imposing and claiming advertisement tax is clearly beyond its jurisdiction. That being the position. Section 86 cannot bar suit of the present type. The respondent-plaintiff has challenged the very basis of imposition of advertisement tax on the ground that N.D.M.C. has gone beyond its jurisdiction in levying the impugned tax. This is accepted principle of law that Section 9 of the Code of Civil Procedure confers jurisdiction upon civil courts to entertain all matters of civil nature unless specifically excluded. Where an authority exercises jurisdiction not voted in it, civil courts would have jurisdiction. Where the authority exceeds the jurisdiction vested in it, even in such a case civil courts would have jurisdiction. Thus if tax imposed is completely without authority in view of specific exemption as in the case, or is outside the provisions of the Act. suit can be filed and is thus maintainble. I bold accordingly that present suit is maintainable.

(10) There is no force in the submission of the learned counsel for the respondent that levy of advertisement tax is unconstitutional. This question was considered in Division Bench of this court in New Delhi Municipal Committee v. M/s. Ishwar Dass Sahni & Bros. (R.S.A. No. 254 of 1963) decided on 28th March. 1972 (2nd (1972) 2 Delhi 535) and Ms, Allied Motors Pvt. Ltd. (Supra) and has been negatived.

(11) No other point has been urged.

(12) Thus I find no force in this appeal and the same is dismissed with costs.