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2013 DIGILAW 942 (CAL)

Prakash Arts v. Andaman & Nicobar Administration

2013-12-20

DIPANKAR DATTA

body2013
Judgment : Dipankar Datta, J. 1. The petitioners in this batch of writ petitions are engaged in varied commercial activities. For the purpose of advertisement of their respective activities, they have obtained permission from the Port Blair Municipal Council (hereafter the Council) to erect hoardings at different places within the area under the jurisdiction of the Council on payment of fees to it. The challenge that has been raised by them in these writ petitions, to be noted hereafter separately, is common and hence the same shall stand disposed of by this common judgement and order. 2. W.P. No. 13673 (W) of 2013, at the instance of three petitioners, was moved before the principal seat of the High Court at Calcutta challenging three communications dated 23rd April, 2013 issued by the Executive Engineer (Wks) of the Council intimating the quantum of renewal fees that they are liable to pay for their several hoardings for one year from the dates mentioned therein, as well as the Port Blair Municipal Council Advertisement Amendment Bye-laws, 2012 (hereafter the Amendment Bye-laws of 2012). On 7th May 2013, the writ petition was heard by a learned Judge ex parte and an ad-interim order was passed, to be operative till 14th June 2013, staying operation of the impugned communications. The ad-interim order was extended from time to time and ultimately it was extended till disposal of the writ petition by an order dated 17th September, 2013. 3. In W.P. No. 241 of 2013, the sole petitioner has challenged a communication dated 27th June, 2013 issued by the said Executive Engineer intimating the quantum of renewal fees that the petitioner has to pay for display of 15 hoardings for the period between 27th June, 2013 and 26th June, 2014, as well as the aforesaid Amendment Bye-laws of 2012. On 16th July, 2013, upon contested hearing, a learned Judge called for affidavits and stayed the operation of the communication under challenge. 4. W.P. No. 332 of 2013 is also at the instance of three petitioners. Similar communications were made to them by the said Executive Engineer regarding payment of renewal fees for display of advertisement on hoardings. The communications dated 23rd April 2013, 3rd June, 2013 and 19th July 2013 issued to the first, second and third petitioners respectively together with the Amendment Bye-laws of 2012 have been assailed in the writ petition. 5. Similar communications were made to them by the said Executive Engineer regarding payment of renewal fees for display of advertisement on hoardings. The communications dated 23rd April 2013, 3rd June, 2013 and 19th July 2013 issued to the first, second and third petitioners respectively together with the Amendment Bye-laws of 2012 have been assailed in the writ petition. 5. The challenge in W.P. No. 339 of 2013 is to a similar communication dated 17th April, 2013 issued to the petitioner by the said Executive Engineer and the said Amendment Bye-laws of 2012. 6. W.P. No. 332 and W.P. No. 339 of 2013 were entertained on 23rd September, 2013 and 26th September, 2013 respectively. The learned judge who entertained the same directed both the writ petitions to be heard along with W.P. No. 241 and W.P. No. 13673 (W) of 2013. Interim order was passed only in W.P. No. 332 of 2013 staying operation of the impugned communication dated 17th April, 2013. However, no interim order was passed in W.P. No. 339 of 2013. 7. The common case run by all the petitioners in this batch of writ petitions is that the Council has unilaterally increased the fees for the hoardings, which is illegal and arbitrary and that the Amendment Byelaws have not been brought into effect lawfully. 8. Mr. Jayapal, learned advocate representing all the petitioners raised two points in support of the submission that the impugned communications ought to be quashed upon holding that the Amendment Byelaws of 2012, in terms whereof the impugned communications were issued, are void. 9. First, he invited my attention to the provision contained in Reg. 204 of the Andaman and Nicobar Islands (Municipal) Regulation, 1994 (hereafter the 1994 Regulation), which reads as follows: “204. Every rule and every bye-law made under this Regulation shall be laid as soon as may be after is made before each Houses of Parliament. 9. First, he invited my attention to the provision contained in Reg. 204 of the Andaman and Nicobar Islands (Municipal) Regulation, 1994 (hereafter the 1994 Regulation), which reads as follows: “204. Every rule and every bye-law made under this Regulation shall be laid as soon as may be after is made before each Houses of Parliament. While it is in session or a total period of thirty days which may be comprised in one session or in two or more successive sessions and if before the expiry of the session immediately following the session or the successive sessions as aforesaid both Houses agree fro making any modification in the rule or bye-law or both houses agree that the rule or bye-law should not be made, the rule or bye-law shall thereafter have effect only in modified from or be of no effect as the case my be: so however that any such modification or annulment shall be without prejudice to the validity of anything previously done that rule or bye-law.” It was contended that the Port Blair Municipal Council Advertisement Bye-laws, 1999 (hereafter the 1999 Bye-laws), published in the Andaman & Nicobar Gazette on 9th July, 1999, specified the fees for issue of licences. The petitioners had obtained licences and had been making payment of the fees specified in paragraph 5 of the 1999 Bye-laws. However, the communications impugned in the writ petition were issued on the basis of the Amendment Bye-laws of 2012, whereby an astronomical increase in licence fees was brought about. According to Mr. Jayapal, the Amendment Bye-laws of 2012 were required to be placed before both Houses of Parliament in terms of Reg. 204 of the 1994 Regulation; however, it was not so placed and so the Amendment Bye-laws of 2012 are ineffective and inoperative and ought to be declared as void. Permission of the Parliament, he contended, was required to be obtained before the Amendment Byelaws of 2012 could be enforced. Reliance was placed by Mr. 204 of the 1994 Regulation; however, it was not so placed and so the Amendment Bye-laws of 2012 are ineffective and inoperative and ought to be declared as void. Permission of the Parliament, he contended, was required to be obtained before the Amendment Byelaws of 2012 could be enforced. Reliance was placed by Mr. Jayapal on the decisions of the Supreme Court reported in (2001) 6 SCC 307 : Union of India –vs- National Hydroelectric Power Corporation Ltd. and (2003) 4 SCC 239 : High Court of Judicature of Rajasthan –vs- P.P. Singh, and the decision of the Punjab and Haryana High Court reported in 2005 (4) ICC 47 : Mahavir Singh –vs- State of Haryana in support of his submission that the Amendment Byelaws are a still born piece of delegated legislation. 10. Reliance was also placed by Mr. Jayapal on the decision reported in AIR 1988 SC 876 : General Officer Commanding-in-Chief –vs- Subash Chandra Yadav for the proposition that any rule or regulation framed under a statutory enactment cannot override the enactment itself. 11. Next, my attention was drawn to Reg. 80(1)(j) and Reg. 81(2) of the 1994 Regulation to contend that the procedure prescribed for imposition of a tax on advertisement laid down in the 1994 Regulation had not been complied with. According to him there was also non-compliance of Reg. 81(3) of the 1994 Regulation inasmuch as objections and suggestions in writing from persons likely to be affected by the proposal for enhancement of tax were not invited. Paragraph 6 of W.P. No. 241 of 2013 was referred to in this connection. 12. Based on the aforesaid contentions, Mr. Jayapal prayed that the Amendment Byelaws of 2012 may be declared void and the impugned communications issued by the Executive Engineer calling upon the petitioners to pay enhanced licence fees based on the Amendment Byelaws of 2012 be also quashed. 13. Mr. Arul Prasanth and Mrs. Anjili Nag, learned advocates representing the Council raised preliminary objection to the maintainability of W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013. 13. Mr. Arul Prasanth and Mrs. Anjili Nag, learned advocates representing the Council raised preliminary objection to the maintainability of W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013. According to them, the three petitioners in W.P. No. 13673 (W) of 2013 and the first and third petitioners in W.P. No. 332 of 2013 had earlier jointly presented a writ petition, being W.P. No. 699 of 2012, questioning the increase in annual rent of hoardings and banners imposed by the Council as well as the amendment of the Advertisement Bye-laws of 2009 by the Amendment Bye-laws of 2012. The said writ petition was considered by a learned Judge on 12th December, 2012 and upon contested hearing, His Lordship was pleased to hold that the increase in licence fees had been brought about lawfully and that the Court would not review the decision taken by the Council in respect of fiscal matters regarding garnering of funds and expenditure, which are exclusively within its domain. The order dated 12th December, 2012 had been carried in appeal and the Hon’ble Division Bench by its order dated 7th June, 2013 accepted the reasons for dismissal of the writ petition and, consequently, dismissed the appeal. The order of the Hon’ble Division Bench dated 7th June 2013 was not questioned before the Hon’ble Supreme Court and thus attained finality. According to Mr. Prasanth and Mrs. Nag, the said two writ petitions are hit by res judicata and/or analogous principles. 14. Insofar as the claim of Mr. Jayapal regarding nonlaying of the Amendment Bye-laws of 2012 before both Houses of Parliament in terms of Reg. 204 of the 1994 Regulation is concerned, both Mr. Prasanth and Mrs. Nag did not join issue and conceded that the same were not laid before the Parliament. However, it was contended by Mrs. Nag that non-laying of the Amendment Bye-laws of 2012 before both Houses of Parliament does not render the same ineffective or inoperative, as submitted by her adversary. According to her, the provision in Reg. 204 is to be construed as directory in the absence of any consequence being prescribed for non-laying of the Amendment Bye-laws of 2012 before the Parliament. Reliance was placed by Mrs. According to her, the provision in Reg. 204 is to be construed as directory in the absence of any consequence being prescribed for non-laying of the Amendment Bye-laws of 2012 before the Parliament. Reliance was placed by Mrs. Nag on the decision of the Supreme Court reported in AIR 1979 SC 1149 : Atlas Cycle Industries Ltd. and others –vs– State of Harayana, wherein the three kinds of laying, viz (i) simple laying, (ii) laying subject of negative resolution; and (iii) laying subject to affirmative resolution, were discussed and it was ultimately observed, considering the provision of Section 3(6) of the Essential Commodities Act, 1955 that it contemplated laying without further procedure and was, therefore, directory. Insofar as Reg. 204 is concerned, argument was advanced by her to the effect that such regulation does not provide that it shall be subject to the affirmative resolution of the Houses of Parliament and, therefore, failure of the administration in not laying the Amendment Bye-laws of 2012 before the Parliament does not have any affect on its validity and the same continues to be effective and operative from the date it was made. She, accordingly, contended that the point of non-laying of the Amendment Bye-laws of 2012 before both the Houses of Parliament is not fatal for its enforcement and the submission advanced in this behalf is without merit. 15. Mr. Prasanth countered the second point of Mr. Jayapal by producing the relevant file containing the notes of officers of the Council and the resolutions adopted from time to time by the members thereof. According to him, the provisions of the 1994 Regulation were duly adhered to and the complaint of the petitioners that the provisions of such Regulation were observed in the breach is without any basis whatsoever. 16. Accordingly, it was prayed for on behalf of the Council that the writ petitions may be dismissed by imposing exemplary costs. 17. I may place on record that the file produced by Mr. Prasanth was allowed to be inspected by Mr. Jayapal. He, however, did not advance any further argument after such inspection. 16. Accordingly, it was prayed for on behalf of the Council that the writ petitions may be dismissed by imposing exemplary costs. 17. I may place on record that the file produced by Mr. Prasanth was allowed to be inspected by Mr. Jayapal. He, however, did not advance any further argument after such inspection. However, in reply he contended that the issues raised in these writ petitions were not raised in W.P.No.669 of 2012 and since provisions of the Code of Civil Procedure (hereafter the Code) are not applicable to writ proceedings in view of the explanation to Section 141 thereof, res judicata and/or analogous principles have no application in respect of a petition presented under Article 226 of the Constitution. 18. I have heard the parties and perused the writ petitions together with the file produced by Mr. Prasanth. 19. In W.P. No. 13673 (W) of 2013, the three petitioners have pleaded that they are not guilty of suppression of material facts. There is, however, no disclosure therein of presentation of W.P. No. 699 of 2012 by them together with 5 (five) other petitioners and its dismissal by the order dated 12th December, 2012. Similar is the case in W.P. No. 332 of 2013. The first and third petitioners therein have not disclosed dismissal of W.P. No. 699 of 2012 by the order dated 12th December, 2012. There is also no disclosure of the order of the Hon’ble Division Bench passed on 7th June, 2013. The said petitioners having unsuccessfully approached this Court earlier, W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013 (at the instance of the first and third petitioners) are liable to be dismissed not only on the ground of constructive res judicata, but also on the ground of suppression of material facts. The submission of Mr. Jayapal that the provisions of the Code do not apply to writ proceedings in view of the explanation appended to Section 141 thereof and hence the principles of res judicata cannot be invoked, has been advanced to be rejected. In a catena of decisions, the Hon’ble Supreme Court has ruled that the principles flowing from the Code could be applied to writ proceedings, as far as practicable. In a catena of decisions, the Hon’ble Supreme Court has ruled that the principles flowing from the Code could be applied to writ proceedings, as far as practicable. Reference in this connection may be made to the decision reported in (2011) 3 SCC 408 : M.Nagabhushana –vs- State of Karanataka, wherein it was ruled that principles of constructive res judicata are applicable to writ proceedings. That apart, Rule 53 of the writ rules framed by this Court provides that the provisions of the Code in regard to suits shall be followed, as far as it can be made applicable in all proceedings under Article 226 of the Constitution of India. 20. In view thereof, I am not persuaded to hold that W.P. No. 13673 (W) of 2013 and W.P. No. 332 of 2013 are maintainable and not hit by the principle of constructive res judicata. 21. Despite the position that the three petitioners in W.P. No. 13673 (W) of 2013 and the first and third petitioners in W.P. No. 332 of 2013 are not entitled to any relief on the ground that their claims are barred by constructive res judicata and that they are guilty of suppression of material facts, I do not propose to dismiss such writ petitions on these technical grounds. None of the petitioners are entitled to any relief even on merits, and I proceed to record the reasons therefor. 22. Mrs. Nag is right in her submission that Reg. 204 of the 1994 Regulation envisages laying subject to negative resolution, and not laying subject to affirmative resolution as discussed in extenso in Atlas Cycles (supra). If indeed Reg. 204 were to provide that no rule or bye-law made under the 1994 Regulation would be valid until it is laid before both Houses of Parliament, the contention of Mr. Jayapal would have been acceptable. However, Reg. 204 provides that every rule and every bye-law made in terms of power conferred by the 1994 Regulation must abide by the decision of the Parliament regarding modification or unnecessity, as the case may be, and shall thereafter have affect only in the modified form or shall be of no effect at all. Reading Reg. However, Reg. 204 provides that every rule and every bye-law made in terms of power conferred by the 1994 Regulation must abide by the decision of the Parliament regarding modification or unnecessity, as the case may be, and shall thereafter have affect only in the modified form or shall be of no effect at all. Reading Reg. 204 as it is, it does not appear that approval of the Parliament is the condition precedent for making it operational; instead it is subject to the condition subsequent i.e. the resolution of the Parliament to modify the rule or bye-law framed under the 1994 Regulation or the decision that it is not required at all. It is seen that the 1994 Regulation was promulgated by the President of India. If indeed the President intended to make the rule of laying before the Houses of Parliament mandatory, the legal consequences of its non-compliance would have been indicated. Since Reg. 204 does not provide for any affirmative resolution of the Parliament, the Amendment Bye-laws of 2012 must be held to continue to be in force till it is modified or held to be not required by the Parliament. The decision in Atlas Cycles (supra), which followed the Constitution Bench decision of the Supreme Court reported in AIR 1966 SC 385 : Jan Mohammed Noor Mohammed Bagban - vs- State of Gujarat and another and the decision of recent origin of another Constitution Bench reported in 2011 (9) SCC 1 : K.T Plantation (P) Ltd. –vs- State of Karnataka are authorities for the proposition that failure to lay before the Houses of Parliament does not affect the legal validity of any rule/regulation/byelaw/ notification issued under a statutory enactment, unless the same is subject to affirmative resolution. 23. I have considered the decisions cited by Mr. Jayapal. In National Hydroelectric (supra), Section 16 (2) of the Water (Prevention and Control of Pollution) Cess Act, 1977 required a positive act of approval by the Parliament to the issuance of the notification before it could be held that Schedule-I has been amended, and mere laying of the notification before the Parliament was not sufficient compliance of such section. The decision is, therefore, distinguishable. In P.P Singh (supra) and Subhash Chandra Yadav (supra), the questions that arose for decision were different and the ratio of such decisions is not applicable here. The decision is, therefore, distinguishable. In P.P Singh (supra) and Subhash Chandra Yadav (supra), the questions that arose for decision were different and the ratio of such decisions is not applicable here. The decision in Mahavir Singh (supra) considered the provison of sub-section (3) of Section 24 of the Haryana Development and Regulation Urban Areas Act, 1975 and held that laying of rules framed in terms of Section 24 thereof before the State Legislature is a mandatory ingredient of the procedure in the process of framing rules. The Division Bench of the Punjab and Haryana High Court, however, did not consider the decisions of the Supreme Court in Jan Mohammed (supra) and Atlas Cycles (supra) and any observation made contrary to the ratio of such decisions is not good law. 24. The first point urged by Mr. Jayapal is without merit and, accordingly, stands overruled. 25. However, although Reg. 204 is directory in terms, there must be substantial compliance thereof or else the object of keeping control over delegated legislation would be defeated. I direct the Administration to take immediate steps for laying of the Amendment Bye-laws of 2012 before the Parliament as required by Reg. 204. 26. The second point raised by Mr. Jayapal is equally without merit. What the Executive Engineer of the Council has demanded from the petitioners is renewal fees. A fee, it is well known, is different from a tax. Reference to Reg. 80(1)(j) of the 1994 Regulation would seem to be misplaced. However, I shall proceed on the basis that while enhancing the fees for continuing permission to display advertisements on hoardings, the Council was required to adhere to the provisions of the 1994 Regulation. 27. Perusal of the file produced by Mr. Prasanth reveals that the ball started rolling with a note of the Assistant Architect dated 22nd January, 2010. The proposal of the Assistant Architect for enhancement of fees, after passing through several tiers, culminated in placing of the proposed amendment to the Advertisement Byelaws of 1999 before the Council. In its meeting held on 30th January, 2010, the Council after detailed discussion resolved to enhance the hoarding/banner fees by amending bye-law 5 and referred the matter to the Special Meeting of the Council. In its meeting held on 30th January, 2010, the Council after detailed discussion resolved to enhance the hoarding/banner fees by amending bye-law 5 and referred the matter to the Special Meeting of the Council. In the Special Meeting of the Council held on 19th October, 2010, it was unanimously decided to amend bye-law 5 of the Advertisement Byelaws of 1999 for upward increase of the fee structure. The resolution of the Special Meeting of the Council was thereafter forwarded to the Administration for publishing draft notification. The draft was published inviting objections and suggestions. Objections were received from 5 (five) parties/firms. Upon consideration of the objections it was resolved in a further Special Meeting of the Council held on 9th January, 2012 to reduce the proposed enhancement of fees by 10% in all the categories of hoarding. The resolution was further sent to the Administration for final publication and thereafter, the amendments were notified in the Andaman & Nicobar Gazette dated 29th June, 2012 and published in “The Daily Telegrams” on 7th September, 2012. It, therefore, clearly appears that steps were taken in accordance with the provisions of the 1994 Regulation and that the allegation of unilateral enhancement is absolutely without basis. It is further noticed that one of the petitioners in W.P. 699 of 2012 (Ms. J.J. Advertising) was one amongst the 5 (five) agencies/firms, which had objected to the proposed enhancement. It was extended opportunity of hearing and scaling down of the proposed enhancement by 10% is clear manifestation of due consideration of the grievances that were raised. Breach of the provisions of the 1994 Regulation, as alleged by the petitioners, is far from true and hence the second point also fails. 28. I hold the impugned communications to be valid and proper. The writ petitions are devoid of merit and hence the same stand dismissed. 29. For abusing the process of law as well as the process of this Court, the three petitioners in W.P. No. 13673 (W) of 2013 and the first and third petitioners in W.P. No. 332 of 2013 are liable to pay costs to the Council. It is accordingly ordered that the Council shall be paid Rs.50,000/-, to be borne by these petitioners in equal shares within a month from date. 30. It is accordingly ordered that the Council shall be paid Rs.50,000/-, to be borne by these petitioners in equal shares within a month from date. 30. Photocopy of this judgement and order, duly countersigned by the Assistant Court Officer, shall be retained with the records of W.P. No 241 of 2013, W.P.No. 332 of 2013 and W.P. No. 339 of 2013.