Karnataka High Court
M/S. Ameya Presence Marketing, ... vs The Bangalore City Corporation And ... on 2 July, 1998
Equivalent citations: AIR1998KANT400, 1998(5)KARLJ398, AIR 1998 KARNATAKA 400, (1998) ILR (KANT) 3378 (1998) 5 KANT LJ 398, (1998) 5 KANT LJ 398
Author: R.P. Sethi
Bench: R.P. Sethi, K.R. Prasad Rao
JUDGMENT R.P. Sethi, C.J.
1. All the appellants herein are running advertising agencies which are stated to be registered with the respondent-Corporation. They allege to have filed applications before the 2nd respondent seeking permission to erect hoardings at different places in the City. As, despite receipt of the applications and the expiry of the statutory period, no order was passed, they filed petitions in this Court for issuance of directions to the respondent-Corporation not to remove the hoardings erected by them on the ground that they be deemed to have permission in terms of the provisions of Section 443(10) of the Karnataka Municipal Corporations Act, 1976 ('Act' for short). The writ petitions were dismissed by the learned Single Judge vide the orders impugned in these appeals holding that the deemed provisions under Section 443(10) of the Act were not applicable in view of the mandatory provisions made under Sections 134 and 135 of the Act providing for tax and seeking of written permission.
2. It is contended on behalf of the appellants that the learned Single Judge was not justified in holding that the provisions of the deemed permission in terms of Section 443(10) of the Act were not applicable in the case. As the statutory authority under the Act had failed to perform its statutory obligation to communicate the orders within the statutory period, the right of deemed permission is claimed to have accrued in favour of the appellants.
3. In order to appreciate the rival contentions of the parties, it is necessary to have a reference to some of the relevant provisions of the Act. Section 134 of the Act provides that every person who erects, exhibits, fixes or retains upon or over any land, building, wall or structure any advertisement or who displays any advertisement for public view in any manner whatsoever in any place whether public or private, shall pay a tax calculated at such rates and in such manner and subject to such exemptions, as the Corporation may, with the approval of the Government, by resolution determine. Section 135 of the Act provides:
"Prohibition of advertisements without written permission of Commissioner.--
1. No advertisement shall, after the levy of the tax under Section 134 has been determined upon by the Corporation, be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure within the city or .shall be displayed in any manner whatsoever in any place without the written permission of the Commissioner.
2. The Commissioner shall not grant such permission if.--
(i) the advertisement contravenes any bye-law made by the Corporation; or
(ii) the tax, if any, due in respect of the advertisement has not been paid.
3. Subject to the provisions of sub-section (2), in the case of an advertisement liable to the advertisement tax, the Commissioner shall grant permission for the period to which the payment of the tax relates and no fee shall be charged in respect of such permission:
Provided that the provisions of this section shall not apply to any advertisement erected, exhibited, fixed or retained on the premises of a railway relating to the business of a railway".
Sub-section (10) of Section 443 provides:
The acceptance by the Corporation of the prepayment of the fee for a licence or permission or for registration shall not entitle the person making such prepayment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration, but an applicant for the renewal of a licence or permission or registration, shall until communication of orders on his application, be entitled to act as if the licence or permission or registration had been renewed; and save as otherwise specially provided in this Act, if orders on an application, for licence or permission or for registration are not communicated to the applicant within forty-five days after the receipt of the application by the Commissioner, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application and subject to the provisions of this Act, the rules, bye-laws, regulations and all conditions ordinarily imposed.
4. After referring to the aforesaid sections, the learned Single Judge held:
According to sub-section (10) of Section 443 if no order is passed on an application for licence or permission and has been communicated to the applicant within forty-five days after the receipt of the application by the Commissioner, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application. Under Section 135 of the Act no advertisement shall after the levy of tax determined under Section 134 of the Act be displayed without the written permission of the Commissioner. From the reading of Sections 134 and 135 of the Act, it is clear that before displaying any advertisement the tax that is required to be paid under Section 134 has to be determined. Therefore, without the written permission of the Commissioner no advertisement shall be displayed in Bangalore City. Section 135 of the Act specifically provides for consideration of the application for permission to erect advertisement hoardings by the Commissioner under which there cannot be any advertisement on the hoardings without the written permission of the Commissioner. Section 443(10) of the Act is applicable only where there is no specific provision providing for consideration of the application for permission to erect advertisement hoardings. Therefore, I am of the considered view that Section 443(10) of the Act has no application since Section 135 clearly provides for written permission to display the advertisement.
5. Learned Counsel for the respondent-Corporation has vehemently argued that the provisions of Section 443(10) of the Act were not applicable in the case as, according to him, the aforesaid section deals with cases relating to licences and registrations. Such a submission cannot be accepted in view of the fact that the section deals not only with licences and registrations but also permissions. The section forming part of Chapter XXI is a general provision dealing with procedure and miscellaneous matters. Restrictions imposed vide Sections 134 and 135 of the Act are regulated by the miscellaneous provisions as incorporated under Section 443. It cannot be said that Sections 134 and 135 of the Act are self-contained provisions and the residuary, procedural miscellaneous provisions as incorporated in Section 443 of the Act would not be applicable with respect to cases like that of the appellants. This Court while dealing with analogous provisions as existed in Section 385(10) of the City of Bangalore Municipal Corporation Act in the case of Corporation of the City of Bangalore v N. Laxminarayana and Another , held:
The said sub-section (10) runs as follows:
"(10) The acceptance by the Corporation of the pre-payment of the fee for a licence or permission or for registration shall not entitle the person making such pre-payment to the licence or permission or to registration, as the case may be, but only to refund of the fee in case of refusal of the licence or permission or of registration; but an applicant for the renewal of a licence or permission or registration shall, until communication of orders on his application, be entitled to act as if the licence or permission or registration had been renewed; and, save as otherwise specially provided in this Act, if orders on an application for licence or permission or for registration are not communicated to the applicant within forty-five days after the receipt of the application by the Commissioner, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application and subject to the law, rules, bye-laws, regulations and all conditions ordinarily imposed".
"The first part of sub-section (10) provides that acceptance by the corporation of the pre-payment of the fee does not entitle the person making such pre-payment to the licence or permission or to registration, on account of which such pre-payment has been made; in case of refusal of his prayer, he becomes entitled only to the refund of that fee. With this part we are not concerned in the present case. The second part deals with an applicant for the renewal of a licence or permission or registration; it is provided that until the communication of orders on his application, such applicant will be entitled to act as if the licence or permission or registration had been renewed. The third part of the sub-section states that save as otherwise specially provided in the Act. If orders on an application for licence or permission or for registration are not communicated to the applicant within 45 days after the receipt of the application by the Commissioner, the application shall be deemed to have been allowed for the year or for such less period as is mentioned in the application. It was suggested by Sri Satyanarayan that the third part of this sub-section would not be applicable to applications for renewal and that it would be applicable only to applicants for licence or permission or for registration. It seems to us, that there is no justification to take such a narrow view of the language in this part of the sub-section. The second part of this sub-section which specifically refers to an applicant for the renewal of a licence, permits him to act as if the licence had been renewed. The latter part of sub-section (6) which envisages the renewal of a licence even in cases where an application for renewal has been made after the expiry of the prescribed period, has been made subject to sub-section (10). It does not stand to reason as to why such a narrow construction should be placed on the language of the third part of sub-section (10) as to exclude therefrom an application for renewal of licence. On the other hand, when the provisions of sub-section (6) of the Act are taken into consideration along with the second part of sub-section (10), it becomes clear that the provision in the last part of sub-section (10) will be applicable, not merely to an application for licence or permission or for registration, but also to an application for the renewal of a licence or permission or for registration. To take any other view of the matter would be, in our opinion, to unduly restrict the beneficial provisions of this sub-section and to place a construction which may lead to much inconvenience and hardship. As pointed out by Sri Nanjunda Sastri in the course of his arguments, an applicant for the renewal of a licence, will be a person who will be a person who will already have invested in the business venture for which he seeks the renewal of the licence; the fact that he had already been granted licence for a prior period, is proof that he had complied with the requirements of the Act and the rules and bye-laws applicable to that particular kind of business. The need to safeguard the interests of such an applicant, in the event of the concerned authority not passing any orders on his application within the prescribed time, will be as great (if not greater) as in the case of a person making an application for the first time for a licence or permission or for registration. Therefore, we arc satisfied that the expression "an application for licence or permission or for registration" in the latter part of sub-section (10) includes also an application for renewal of a licence, permission or for registration.
6. To rebut the arguments addressed on behalf of the appellants, learned Counsel for the Corporation has relied upon the judgment of this Court in Premchand and Others v Corporation of the City of Bangalore and Others. In that case while dealing with Section 443(4) of the Karnataka Municipal Corporations Act, this Court had held that as the provisions of Sections 295 to 321 of Chapter XV were self-contained, resort could not be had to the provisions of Section 443 of the Act. Sub-section (4) of Section 443 as it then existed provided that "Subject to the special provisions in Chapters XV and XVII regarding buildings and private markets and subject to such sanction as may be required for the refusal of a licence or permission". It is worth noting that by Act 32 of 1986, the aforesaid words were substituted by the words "notwithstanding anything contained in this Act". The reliance of the learned Counsel for the respondent is misplaced inasmuch as sub-section (10) of Section 443 of the Act does not prescribe the applicability of the provisions subject to any other provision of the Act as was noticed in Premchand's case, supra.
7. Sub-section (10) of Section 443 appears to have been enacted with the object of putting the authorities under the Act on alert, casting a statutory obligation upon them to pass appropriate orders within the specified time. On their failure to take appropriate action, the Legislature in its wisdom, has conferred a concession upon the person approaching the authorities for the grant of licence or permission or registration. For inaction of the statutory authorities, no citizen can be deprived of the licence, permission or registration intended to be granted or conferred upon him subject to the provisions of the Act, the Rules, the bye-laws, regulations and on conditions ordinarily imposed. The sub-section has been incorporated apparently with the object of providing speedy remedy keeping in view the nature of the matter requiring licence, permission or registration and the consequential adverse effect on the applicant, of the inaction of the statutory authorities.
8. The term 'deemed' is used in the statute in various senses. Sometimes it means "generally regarded, taken prima facie to be, and taken conclusively to be". When used in a statute it means some matter or thing has happened, the way in which it has to be attached. When a statute enacts that something should be deemed to be done, which in fact and truth was not done, the Court is required to ascertain for what purpose and between what persons statutory fiction was intended to be resorted to. In the modern statute, this expression is used to introduce artificial conceptions -which are intended to go beyond legal principles and to give an artificial construction to a word or a phrase. The deeming provision is generally made to include what is obvious or what is uncertain or to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. The Supreme Court in Commissioner of Income-tax I Excess Profits Tax, Bombay City u Mis. Bhogilal Laherchand, Bombay, while dealing with the provisions of Section 42(1) of the income-tax Act where the term 'deemed to accrue' had been used, held:
"The term 'deemed' brings within the net of chargeability income not actually accruing but which is supposed notionally to have accrued. It involves a number of concepts. By statutory fiction income which can in no sense be said to accrue at all may be considered as so accruing. Similarly, the fiction may relate to the place, the person or be in respect of the year of taxability. Section 42(1) defines what income is deemed to accrue 'within taxable territories'. It is only by application of this definition that one class of income "deemed to accrue to a resident within taxable territories" within the meaning of Section 4(1)(b)(i) can be estimated. The words "in the case of any person residing out of British India" were deleted from Section 42(1) during the pendency of the amendment bill of 1939 in the Council of State presumably with the object of making the section applicable to any person who had any income which in a primary sense arose in British Lidia, even though technically it had arisen abroad, irrespective of the circumstance whether that person was resident, ordinarily resident or not ordinarily resident".
9. The word 'permission' is a word of wide import which means to do some act which but for the leave, would be illegal. A joint reading of the provisions of Sections 134 and 135 and 443(10) would lead to the conclusion that the respondent-Corporation has imposed a tax on the advertisement which cannot be erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding or structure within the city without the written permission of the Commissioner. Such permission has to be obtained in accordance with the procedure prescribed under the Act. If the licensing authority or the authority conferred with the power of granting permission fails to pass effective orders on any application for licence or permission within forty-five days after the receipt of the application, the application has to be deemed to have been allowed for the year or for such less period as is mentioned in the application and such deemed permission is subject to the provisions of the Act, the Rules, 'the Bye-laws, Regulations and all conditions ordinarily imposed for granting such permission. It has to be kept in mind that deemed permission is the converse of deemed rejection. The Legislature in its wisdom has the power to provide for deemed permission or deemed rejection on the happening or the non-happening of a particular event or contingency. The Legislature in the instant case had thought it proper to make provision for deemed permission which if interpreted otherwise, would defeat the purpose intended to be achieved by incorporating sub-section 10 of Section 443 of the Act.
10. Under the circumstances, the appeals are allowed and the order of the learned Single Judge is set aside. It is held that the provisions of sub-section (10) of Section 443 of the Act prescribing deemed permission is applicable in cases where applications are filed for seeking permission for the purposes of Section 135 of the Act.
11. The disposal of these appeals would, however, not in any way, benefit the appellants herein because admittedly the period for which they had applied for permission has already expired. They shall be at liberty to file fresh applications for the grant of permission and if those applications are not decided within the time specified by sub-section (10) of Section 443, the consequences in terms of this judgment shall follow.
12. Parties to bear their own costs.