Karnataka High Court
M/S Rai Advertising vs Bruhat Bangalore Mahanagara Palike on 5 July, 2013
Author: L.Narayana Swamy
Bench: L.Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 05TH DAY OF JULY 2013
BEFORE
THE HON'BLE MR. JUSTICE L.NARAYANA SWAMY
WRIT PETITIONS NO.17681-17690 OF 2013 (LB, BMP)
a/w
WRIT PETITIONS NO.17637, 17638-639, 17640-649,
17650-662, 17663, 17664-669, 17670-679, 17680,
17691-692, 17693-701, 17702-706, 17708-710,
17711-714, 17715-729, 17730-732, 17733-740,
18463-464, 18943, 18944-945, 18948, 18950,
18952-955, 18951, 19017, 26774-777 OF 2013
Writ Petitions No.17681-17690 of 2013
Between:
M/s. Rai Advertising
A Proprietary business concern
Carrying on its business at
No.2846, 4th Main, 14th Cross
K.R. Road, Banashankari 2nd Stage
Bangalore - 560 070
Represented by its Proprietrix
Smt. Shaila P Rai
Aged about 59 years
Writ Petition No.17637 of 2013
M/s K.B.Enterprises
A Proprietary business concern
Carrying on its business at
No. SF-4, 1st floor, Balaji Nest
Basappa Layout
Near Titan Garage
2
Hennur Cross, Kallyana Nagar
Bangalore - 560 043
Represented by its Authorized Signatory
Shri Mahadeva
Age about 31 years
Writ Petitions No.17638-17639 of 2013
M/s. Call 4 Medias
A Proprietary business concern
Carrying on its business at
No. 23/1, 5th Cross, Ganesha Block
Nandini Layout
Bangalore - 560 086
Represented by its Proprietor
Shri A Ramesh
Age about 27 years
Writ Petitions No.17640-17649 of 2013
M/s Lakshmi Enterprises
A Proprietary business concern
No. 104, 1st floor, 10th Cross
4th Main, Malleswaram
Bangalore - 560 003
Represented by its Authorized Signatory
Shri Raghavendra Prasad
Age about 38 years
Writ Petitions No.17650-17662 of 2013
M/S Recall Communications
A Proprietary business concern
Carrying on its business at
No. 282, 1st 'B' Block
Basaveswaranagar
Bangalore - 560 079
Represented by its Chief Executive Officer
Shri Mahesh
3
Aged about 52 years
Writ Petition No.17663 of 2013
M/s Tarun Ads
A Proprietary business concern
Carrying on its business at
No. 298/3, Hongasandra Road
Muniyappa Layout
Garvebavipalya
Bangalore - 560 068
Represented by its Proprietor
Shri Prasad Kumar. L
Aged about 32 years
Writ Petitions No.17664-17669 of 2013
M/s Blossom Media Solutions
A Proprietary business concern
Carrying on its business at
No. 70, 11th Main M.C.Layout
Binny 1st Stage, Vijayanagar
Bangalore - 560 040.
Represented by its Proprietor
Shri R.Rajashekhar
Age about 39 years
Writ Petitions No.17670-17679 of 2013
M/s Raising Ads
A Proprietary business concern
Carrying on its business at
No. 160/2, 'Sri Hari'
Opp. Standard School
Behind Maruthi Mandir
21st Main, Marenahalli
Vijayanagar
Bangalore - 560 040
Represented by its Proprietor
4
Shri Deepak K.S.,
Aged about 35 years
Writ Petition No.17680 of 2013
M/s Media 360 Degree Services India Pvt. Ltd.,
A Proprietary business concern
Carrying on its business at
No. 2129, 3rd Main,
Behind Vijayanagar Club
Bangalore - 560 040
Represented by its Authorized Signatory
Shri Mallikarjuna P.G
Aged about 31 years
Writ Petitions No.17691-17692 of 2013
M/s Hopewell Publicities
A Proprietary business concern
Carrying on its business at
No. 128, 2nd Main
Vyalikaval
Bangalore - 560 003
Represented by its Authorized Signatory
Shri R. Manjunatha
Aged about 34 years
Writ Petitions No.17693-17701 of 2013
M/s. 7 Star Advertising
A Proprietary business concern
Carrying on its business at
No. 16, Maharaja Street
Udayanagar
Doorvaninagar Post
Bangalore - 560 016
Represented by its Proprietor
Shri P.Elumalai
Age about 31 years
5
Writ Petitions No.17702-17706 of 2013
M/s Virat Advertising
A Proprietary business concern
Carrying on its business at
No.15/2, Oyster Apartment
6th Cross, Puttaiah Compound
RMV 2nd Stage Post
Aswathanagar
Bangalore - 560 094
Represented by its Proprietor
Shri Jayaraj Bangera
Aged about 37 years
Writ Petitions No.17708-17710 of 2013
M/s St. Mary Ads
A Proprietary business concern
No. 116, Brigade Road
Ashoknagar
Bangalore - 560 025
Represented by its Proprietor
Shri G.John Vin
Aged about 36 years
Writ Petitions No.17711-17714 of 2013
M/s. Om Arts
A Proprietary business concern
Carrying on its business at
No. 109, 2nd 'E Main, 8th Block
Koramangala
Bangalore - 560 095
Represented by its Proprietor
Shri K.Palani
Age about 33 years
Writ Petitions No.17715-17729 of 2013
6
M/s. Avinashi Ads
A Proprietary business concern
Carrying on its business at
No. 217, 9th Main
4th Block, Nandini Layout
Bangalore - 560 096
Represented by its Authorized Signatory
Shri Annaraya S. Talwar
Aged about 46 years
Writ Petitions No.17730-17732 of 2013
M/s The Adspace
A Proprietary business concern
Carrying on its business at
No. 13, 5th Cross,
ITC Road R.S.Palya
Bangalore - 560 033
Represented by its Partner
Shri S.A.Saifuddin
Aged about 28 years
Writ Petitions No.17733-17740 of 2013
M/s Star Advertising
A Proprietary business concern
Carrying on its business at
No. 1110, 11th floor
Barton Centre, M.G.Road
Bangalore - 560 001.
Represented by its Proprietor
Shri Mani
S/o Mayandi
Aged about 36 years
Writ Petitions No.18463-18464 of 2013
M/s Outdoor Edge Solutions Pvt. Ltd.,
7
A private limited company incorporated
under the provisions of the
Indian Companies Act
Having its Registered Office
at 5th Floor, Unit No. 52
Film Center, 68, Tardeo Road
Mumbai - 400 034, Maharashtra, India
and its Branch Office at
No. 311, 3rd Floor, Barton Centre
M.G.Road, Bangalore - 560 001
Represented by Shri V.Muralikrishna
Authorized Signatory
...Petitioners
(by Shri V.B.Shiva Kumar Advocate )
And:
1. Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
By its Commissioner
2. The Deputy Commissioner (Advertisements)
Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
3. State of Karnataka
Vidhana Soudha, Vidhana Veedhi
Bangalore - 560 001
Represented by its Chief Secretary
4. Deputy Secretary to Government
Housing Urban Development Department
Vikasa Soudha
Dr. Ambedkar Road
Bangalore - 560 001
8
(Cause Title amended vide
Court order dt.25.04.13)
[WP No.17681-17690, 17637,17638-639,17640-649,17650-662,
17663,17664-669,17670-679,17680,17691-692,17693-701,17702-
706,17708-710,17711-714,17715-729,17730-732,17733-740,18463-
464 OF 2013]
...respondents are common
in the above petitions
(by Sri Subramanya R, Advocate
for M/s. Ashok Haranahalli Associates for R1 and R2;
Sri N.B. Vishwanath, AGA for R3 and R4)
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India praying to direct the respondents 1 & 2
to issue demand notices as provided under the advertisement
byelaws, for collection of taxes in respect of the schedule
hoardings; and etc.
Writ Petition No.18943 of 2013
Between:
1. M/s Capricorn advertising
#94/5, Second Floor
Infantry Road
Above Karnataka Bank
BANGALORE 560 001
Represented by its Proprietor
Sri. RASHEED SHARIEFE
S/o Late Khazjq Sharieff
Aged about 28 years
2. M/s ASTRAL Advertising
No. 6, Ground Floor
Jyothi Enclave Apartments
7th Cross, Athmananda Colony
R.T.Nagar Post,
BANGALORE - 560 032
Represented by its Proprietor
Sri. Syed Riaz Ahmed major.
9
Writ Petitions No.18944-18945 of 2013
M/s Sri Matha Ads
No. 26, 2nd Floor
Venkateshwara Nilaya
Ist Main Road
Palace Guttahalli
BANGALORE - 560 003
Represented by its Proprietor
Sri. Raviram Kharvi
S/o P.Rama Kharvi
Aged about 38 years
Writ Petition No.18948 of 2013
M/s Cashew Publicity
No. 157, 6th Main
2nd Cross
Mattikere
Bangalore 560 036
Represented by its Proprietor
Sri Shakil Sharief
S/o Late Mohammed Sharief
Aged about 35 years
Writ Petition No.18950 of 2013
M/s CONNECT ADVERTISING
No. 3615/A, HAL 2nd Stage
2nd Floor, 6th Cross
'G' Main Road
BANGALORE -560 008
Represented by its Proprietor
Sri. Mahaboob Shariff
S/o Abdul Khalaq
Age about 34 years
Writ Petitions No.18952-18955 of 2013
10
M/s S.A.P.Advertising
Veerashettyhalli
Chikkabanavara Post
BANGALORE 560 09
Represented by its Proprietor
Sri. Vinaya S.
S/o Shiva Nanje Gowda
Aged about 26 years
Writ Petition No.18951 of 2013
M/s Sagar Advertising
No. 26/9, 4th Street
Slaughter House Road
Shivajinagar
BANGALORE - 560 051
Represented by its Proprietor
Sri. Soukath Pasha
S/o Abdul Jabbar
Aged about 40 years
Writ Petition No.19017 of 2013
N.A.M. Communications
No. 32, I Floor
Buddha Vihar Road
Frazer Town
BANGALORE - 560 005
Represented by its Proprietor
Sri. Vengada Selvan
S/o Veera Raghavan
Aged about 40 years
...Petitioners
(by Shri S. Vishwajith Shetty, Advocate)
And:
1. State of Karnataka
11
Vidhana Soudha, Vidhana Veedhi
Bangalore - 560 001
Represented by its Chief Secretary
2. Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
By its Commissioner
3.The Deputy Commissioner (Advertisements)
Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
4. Deputy Secretary to Government
Housing Urban Development Department
Vikasa Soudha
Dr. Ambedkar Road
Bangalore - 560 001
[ WP NO. 18943,18944-945,18948,18950,18952-955,18951,19017 OF 2013]
...respondents are common
in all the above petitions
(by Shri Nitish, Advocate for K.V.Narasimhan for R2 to R4)
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India praying to direct the respondent No.2 to
implement the resolution vide Annexure - B dt. 29.9.12 passed
by the 4thRespondent- corporation and consequently issue
demand notice to the petitioners for payment of advertisement
tax in respect of their hoardings as provided under the
advertisement byelaws; and etc.,
Writ Petitions No.26774-26777 of 2013
Between:
12
M/s Unique Outdoor Advertisers
No. A-8, 80 feet Main Road
KHB Colony, Koramangala,
Bangalore 560 095
Represented by its Proprietor
Syed Mohammed Arshad
S/o late Abdul Salam
Age about 42 years
...Petitioner
(by Shri V.B.Shiva Kumar Advocate )
And:
1. State of Karnataka
Vidhana Soudha
Vidhana veedhi
Bangalore - 1
Represented by Chief Secretary
2. Deputy Secretary to Government
Housing and Urban Development Department
Vikasa Soudha, Dr. Ambedkar Road
Bangalore - 1
3. Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
Represented by its Commissioner
4. The Joint Commissioner (Advertisements)
Bruhat Bangalore Mahanagara Palike
Corporation Offices
N.R. Square, J.C. Road
Bangalore - 560 002
...Respondents
(by Shri N.B.Vishwanatha AGA for R1 & R2)
13
These Writ Petitions are filed under Articles 226 and 227 of
the Constitution of India praying to declare that the demand
notice issued by the respondent at annexure-B to E as illegal;
and etc.
These Writ Petitions coming on for preliminary hearing,
this day, the Court, made the following:
ORDER
A common prayer has been raised in all these petitions.
2. The petitioners state that they are the advertising agencies and are doing the business of Star Advertising and enrolled themselves under the provisions of advertisement by- laws and the provisions of the Karnataka Municipal Corporations Act, 1976 (hereinafter referred to as 'the Act' for short). The petitioners have produced the copy of enrolment in order to claim that they are Enrolled Advertisement Agencies for the purpose of present relief. It is the case of the petitioners that the Bruhat Bangalore Manahangara Palike (hereinafter referred to as "BBMP' for short), by its resolution dated 29th September 2012 in Agenda No.261 of 2012-13 resolved to consider the cases of the petitioners for the purpose of advertisement in various places. The total number of advertisements stated in 14 the schedule is 525 numbers. Though ten months have elapsed after passing the resolution, the petitioners have not been issued demand notices for the purpose of payment of advertisement hoardings. The non-issuance of demand notices for the purpose of advertisement is arbitrary and violation of Section 72 of the Act. The impugned action of the BBMP in not issuing the demand notices for the purpose of payment affects the right of the petitioners for advertisement, which further violates Articles 19(1)(g) of the Constitution of India. Issuance of demand notice also generates about Rs.25 crore to the BBMP annually and also causes loss to the public at large. The learned counsel for the petitioners referred to Section 72 of the Act which contemplates an obligation on the part of the Municipal Authorities to carryout the resolution of the BBMP. The resolution of the BBMP is in the nature of statutory one and the Committees thereunder are under statutory obligation to carry out the non-performance of issuance of notice which violation of Section 72 of the Act. Proviso to the said Section confers duty upon the Commissioner as to under what circumstances the Resolution of the BBMP is required to be notified to the Government and hence the action 15 of the Commissioner of BBMP is also violation of proviso to Section 72 of the Act.
3. The learned counsel for the BBMP files statement of objections. It is stated in the objections that the resolution dated 29th September 2012 has been forwarded to the Government on 3rd April 2013 as per Section 98(1) of the Act. The copy of the letter forwarded by the Commissioner to the Government has been produced as Annexure-R1 to the objection statement. The said letter was forwarded to the Government as per proviso to Section 72 of the Act and requested the Government to cancel the same as per Section 98 of the Act. In view of the letter of the Commissioner to Government by exercising its power under Section 98(2) of the Act, a show cause notice has been issued to the Council as to why the resolution shall not be cancelled. In view of the above, the learned counsel submits that the process for finalization of advertisement is not yet completed and it is still-born, and hence, this process does not confer any right on the petitioners 16 to file this petition and accordingly submits to dismiss the petition.
4. Heard the learned counsel for the parties. In the resolution dated 29th September 2012, it has been resolved to grant advertising licence to the parties. The resolution also further discloses that from the advertisement, the BBMP gets the income of Rs.25.00 crore annually. The question for consideration is; whether the petitioners have got any right to prefer this petition seeking writ of mandamus to the respondent- Corporation to consider their case for issuance of demand notice for advertisement. The Act itself does not confer any right on the parties and there is no deemed provision in favour of the petitioners in case of non-consideration by the respondent- Corporation. The advertisement proceedings have been taken in consonance with the Advertising By-laws of 2006. Though it has referred Advertisement Bye-law, the submission made by the learned counsel is that it is not yet finalized. Under these circumstances, the Advertisement Bye-law of 2006 is the Bye- law for the purpose of this case. The Advertisement Bye-laws 17 has to be considered on the basis of the resolution of the BBMP. Resolving to issue licence by the BBMP in itself is not a final verdict which confers right on the parties. Proviso to Section 72 of the Act is in the form of checks and balances available to the Commissioner to request the Government after forwarding the resolution either to accept or to interfere for cancellation. In the present case, the Commissioner has written letter to the Government on 3rd April 2013 as per Annexure-R1 and he has not assigned any reasons as to why the Government should interfere and requested the Government to cancel the resolution since the new Advertisement Bye-law dated 17th March 2013 is yet to be approved and in case of approval, the present new By- law would occupy the field and till then the earlier Bye-law of 2006 cannot be accepted. This forwarding has been made under the proviso to Section 72 of the Act and Government has to consider under Section 98(1) of the Act. Before interfering with the Resolution of the BBMP the Government sought explanation as to why the resolution cannot be cancelled under Section 98(2) of the Act. This process is still under consideration between BBMP and Government and when such being the case, even 18 before it is being finalized, in no way and at no stretch of imagination, the petitioners can claim that they have got a right to seek a writ of mandamus to the BBMP to issue demand notices.
5. A right could be enforceable when it is available to the parties. When right itself is still-born or has not taken birth, the claiming of right is an erroneous one. Under these circumstances, petitions are liable to be rejected and accordingly they are rejected.
Sd/-
JUDGE lnn