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12. The petitioners contend that the licenses issued for sky sign and hoardings are regulated under section 244 of the MMC Act, under which the legislature did not intend to earn revenue by levy of license fee at such exorbitant rates, as what was contemplated by the legislature was mere administrative charges as license fee and not otherwise. The reason being that the property on which the advertisements are displayed are already taxed under Section 127 of the MMC Act and it would be unreasonable to again tax the sky signs which are installed on such buildings. Section 244 and Section 245 of the MMC Act are not provisions for generating revenue, but only to regulate the "skyline of the city." In such context, it is the petitioners case that under Section 386 (2), the license fee could be recovered, only to cover administrative charges for regulation and not for revenue generation, hence, it is for such reason that it was necessary for the WP10684_2018 & Ors.docx State Government to prescribe a reasonable percentage of rateable value of the property as the License fee for display of advertisements.

87. No distinction can be made between the terms "Sky-sign" and "Advertisement" for the purpose of levying fee for the permission under Section 244 of the MMC Act in view of the specific inclusive definitions of "Sky-sign"

and "Advertisements".

87.1 It is submitted that to save the statutory provisions, an attempt has been made by the respondents to segregate the subject 'advertisement' from the term AIR 1962 SC 1073 AIR 1965 SC 1107 AIR 1955 Bom 185 AIR 1966 Bom 15 WP10684_2018 & Ors.docx "Sky-sign" employed in Section 244 of the MMC Act. Such contention is stated to be misconceived inasmuch as the specific statutory definition of "sky-sign" for the purpose of Section 244 and other relevant definitions make "advertisement" as an integral part of "sky-sign" (Rule 1 of Chapter XI of Schedule D of the MMC Act). Further, Section 245 deals with 'Advertisements' specifically. It is submitted that Entry-55 in List II of the Seventh Schedule demarcates the fields of legislation, on the subject 'advertisement' which is neither defined in the Constitution nor in the MMC Act, but it is defined in Rule 2(2) of the 2003 Rules to mean and include any representation in any manner such as announcement or direction by words, letters, models, signs. It is submitted that the word "hoarding" means any surface or the structure erected on ground or roof of the building or above the parapet for the purpose of advertising. 87.2 Further, the definition of "Sky-sign" necessarily includes an "advertisement" supported or attached to any structure or surface (Rule 1 of Chapter XI of Schedule D of the MMC Act). Clause 2(a) of Rule 1 makes it clear that unless used for the purpose of 'advertisement' the structural support would not be treated as a 'sky-sign'.

91.10 Section 244 does not even remotely suggest that it deals with 'advertisement(s)' in any manner whatsoever. It is submitted that the plain reading of the provision makes it clear that it deals simply and exclusively with erection/fixation/retention of 'sky-signs'. It is submitted that various aspects such as the location, the extent of its user or non-user etc. relating to the sky-signs are distinct issues, for which the requirement for obtaining permission of the Commissioner for erecting/fixing/retaining any sky-sign thereunder remains. Further, even if the sky-sign is not at all used or is not used for the purpose of putting up any advertisement, still by operation of Section 244 the requirement of obtaining the 'written permission' of the Commissioner will continue to operate or hold the field. It is submitted that though sky-sign or hoarding is 'erected/fixed/retained for the 'purpose' of using it for 'advertisement', in fact it may not be 'actually/factually used" for that purpose at all and may be kept WP10684_2018 & Ors.docx blank/unused, even then the license fee will be payable under Section 244 read with section 386(2) of the MMC Act.

WP10684_2018 & Ors.docx 91.15 The principles of interpretation of statutes need to be appreciated in the light of the definition clause in Rule 2, which specifically clarifies: "unless the context otherwise requires". It is submitted that the only relation of 'advertisement' in this regard, is the one contemplated by Section 245, which relates to 'the regulation and control of the advertisement' put up on any land, building, wall, hoarding or structure. It is submitted that the 2003 Rules are framed both, under Section 244 as well as Section 245 of the MMC Act. Hence, 'the fees' contemplated by 2003 Rules are not restricted for issuance of mere 'written permission' i.e. 'license' under Section 244, but also, relate to supervising the strict observance of the terms and conditions of such license by the license holder, at the ground level, during the entire period for which such license is granted, as also the 'regulation and control' of the manner of using the sky-sign, contemplated by the Section 245. Hence, the 'license fee' payable under Section 386 (2) read with Section 244 and Section 245 is clearly 'regulatory' in nature and is not at all 'compensatory'. It is next submitted that it is a settled principle of law that 'taxation' is not intended to be comprised in the 'main subject' in which, it might on an extended construction, be regarded as included, but is treated as a distinct matter for the purposes of legislative competence. In such context, general power of 'regulation and control' does not include power 'to tax' the very same activity/thing/subject/exercise for example 'conduct of lottery'. 91.16 That only because the municipal corporation is empowered or entrusted with the duty or power or jurisdiction or authority of 'regulation and control of WP10684_2018 & Ors.docx the advertisement', displayed within the Corporation limits, does not mean that the Corporation also has or is claiming to have, the legislative competence to tax the 'advertisement', which it is not. It is submitted that the converse is equally true, as merely because the Corporation does not have legislative competence to tax the 'advertisement' does not mean that the Corporation does not have the legislative competence of the 'regulation and control of the advertisement' displayed within the Corporation limits and further that the Corporation cannot impose 'a regulatory fee' in that regard.