Calcutta High Court
Cricket Association Of Bengal & Ors vs Calcutta Municipal Corporation & Ors on 24 April, 2015
Author: Debangsu Basak
Bench: Debangsu Basak
W.P. No. 2662 of 1996
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Cricket Association of Bengal & Ors.
Vs.
Calcutta Municipal Corporation & Ors.
For the Petitioners : Mr. Jaydip Kar, Sr. Advocate
Mr. B. Basu, Advocate
Mr. B. Bose, Advocate
For Respondents : Mr. Pronab Kr. Dutta, Advocate
Mrs. Sima Chakraborty, Advocate Mr. Swapan Kr. Debnath, Advocate Mr. Swapan Chaudhuri, Advocate Hearing concluded on : March 19, 2015 Judgment on : April 24, 2015 DEBANGSU BASAK, J.:-
The writ petitioners challenge the demand for advertisement tax made by the letter dated March 27, 1996 issued on behalf of the Kolkata Municipal Corporation authorities.
The writ petitioners assail the demand notice primarily on three grounds. The first ground of challenge is that, the advertisement in question was within the Eden Gardens ground and since such ground was not a public place and the advertisement in the ground was not visible from a street or a public place, the provisions of Section 204 of the Kolkata Municipal Corporation Act, 1980 could not be invoked for the purpose of demanding advertisement tax. The second ground of challenge is that, the demand notice under challenge suffers from the vice of arbitrariness and has been issued in the breach of the principles of natural justice. The writ petitioners contend that the basis for the amount claim in the demand notice has not been disclosed. The writ petitioners have not been heard prior to the issuance of the demand notice.
The third ground of challenge is that, in view of Article 285 of the Constitution of India and that the Union of India being the owner of the land on which the Eden Gardens ground is situated, the Kolkata Municipal Corporation authorities cannot levy advertisement tax thereon. In support of such contention reliance is placed on All India Reporter 1957 Calcutta page 431 (Turf Properties Limited v. Corporation of Calcutta & Ors.) and 2010 Volume 2 Calcutta High Court Notes page 580 (Calcutta Swimming Club & Anr. v. Kolkata Municipal Corporation).
In support of the proposition that Eden Gardens is not a public place reliance is placed on All India Reporter 1959 Calcutta page 704 (The Corporation of Calcutta & Ors. v. Sarat Chandra Ghatak & Anr.). On behalf of the Kolkata Municipal Corporation authorities it is contended that, Article 285 of the Constitution of India exempts land belonging to the Union of India from taxation.
Advertisement set up by the writ petitioners is not a property of the Union of India and, therefore, would not be exempt from taxation by virtue of Article 285 of the Constitution of India. Referring to the averments made in the affidavit-in-opposition as well as the complaint made to the police authorities with regard to the advertisement in question, it is contended on behalf of the Corporation authorities that, the advertisement was on the outer side of the ground from the public street of the Eden Gardens ground and, therefore the provisions of Section 204 of the Kolkata Municipal Corporation Act, 1980 had been attracted.
I have considered the rival contentions of the respective parties and the materials made available on record.
The first writ petitioner claims to enjoy a lease of Eden Gardens ground in the city of Kolkata by virtue of a deed of lease dated June 15, 1992. The stadium as well as the premises at the Eden Gardens is owned and controlled by the Ministry of Defence, Government of India. The writ petitioners had organized the inaugural ceremony of the Wills World Cup of 1996 on February 11, 1996. Thereafter, a semifinal of the World Cup was held on March 13, 1996. The Kolkata Municipal Corporation authorities issued a demand notice dated March 27, 1996 demanding a sum of Rs.51,18,450/- on account of advertisement tax for these two days of the World Cup by invoking the provisions of Section 204 of the Kolkata Municipal Corporation Act, 1980.
So far as the challenge to the notice dated March 27, 1996 on the ground of arbitrariness and the breach of the principles of natural justice are concerned, I find the demand notice dated March 27, 1996 does not disclose any basis for the quantum of demand made for the two days. No material has been placed before me to substantiate the quantum of the demand made. Therefore, in my view, the demand notice dated March 27, 1996 suffers from the vice of arbitrariness.
In course of argument it has been admitted that the first writ petitioner has paid advertisement tax for all advertisements put outside the Eden Gardens ground. The writ petitioners claim that the advertisement tax sought to be levied by the impugned demand notice was in respect of advertisements put up inside the stadium and that the same was not visible to the public from any public street or any public place. The respondent authorities referring to the complaint made on December 30, 1996 contend that, the advertisements in question were visible from outside the stadium.
Sarat Chandra Ghatak & Anr. (supra) after considering various provisions of the Calcutta Municipal Act, 1951 has held that, a cinema house is not a place where the members of the public have unrestricted right of access. The owner of a cinema house may without violating the law, refuse access to the member of the public even though he is prepared to pay for such access.
Applying such ratio to a stadium, it can be said that the stadium cannot be considered as a public place as a member of the public does not have an unrestricted right of access and that the writ petitioners may, without violating the law, refuse access to a member of the public even though such member of the public is prepared to pay for such access.
Section 204 of the Kolkata Municipal Corporation Act, 1980 allows the Corporation authorities to charge advertisement tax for advertisement set up in any building when such advertisement is visible from a public place or from a public street. The inside of Eden Gardens stadium or in other words, the portion of the stadium which a person enters upon production of a valid authority to enter, cannot be considered as a public place within the meaning of Section 204 of the Kolkata Municipal Corporation Act, 1980.
The provisions of the Kolkata Municipal Corporation Act, 1951 along with Article 285 of the Constitution of India came up for consideration in Turf Properties Limited (supra). It has been held that, as the law stands, it does not enable the State Legislature or the Corporation of Kolkata to levy the consolidated rate or any part thereof upon lessee of a property belonging to the Union. The present case is governed by the provisions of the Kolkata Municipal Corporation Act, 1980. I need not enter into the arena as to whether or not the Kolkata Municipal Corporation Act, 1980 allows the Corporation authorities to levy advertisement tax for a advertisement set up on a building belonging to the Union of India when such advertisement is visible to the members of the public from a public street or a public place as in the instant case admittedly the first writ petitioner has paid for the same and the same is not under challenge here.
Calcutta Swimming Club & Anr. (supra) considers Article 285 of the Constitution of India and the various provisions of the Kolkata Municipal Corporation Act, 1980. It has been held in that case that the structure belongs the club and that the club is liable to pay property tax in respect of the building, structure and swimming pool.
The next factual question that arises for consideration is whether the advertisements for which the first writ petitioner is being asked to pay for was visible to the members of the public from a public street or not. In other words, whether the advertisements were in such place of the Eden Gardens stadium that they were visible to the public from a public place or public street or not. It is admitted by the parties in course of hearing of the writ petition that, the writ petitioners have paid advertisement tax for all advertisements set up outside the Eden Gardens stadium and were visible to the public from the public street. The reference to the complaint dated December 30, 1996 made by the Corporation authorities to the Police authorities as a piece of evidence to establish that the advertisements within the stadium were visible from outside, does not assist the Corporation. The complaint speaks of the advertisements in the stadium being visible from a public street or a public place. The complaint is in printed form. The allegation of visibility of the advertisement from a public street or a public place is printed. This allegation made in the complaint is not repeated by the Corporation in its affidavit used opposing the writ petition. Such allegation is not substantiated during hearing. No material has been placed on record by the Corporation authorities in support of their contention that, the advertisement concerned was visible to the public from a public street. That being the factual position, in my view, the respondent authorities could not have invoked Section 204 of the Kolkata Municipal Corporation Act, 1980 to issue the impugned demand notice.
In view of the discussion above, W.P. No. 2662 of 1996 is allowed. The impugned demand dated March 27, 1996 is quashed. The authorities concerned will give effect to the quashing of the demand, in accordance with law. No order as to costs.
[DEBANGSU BASAK, J.]