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10] Per contra, Mr Reis, learned Senior Counsel appearing on behalf of MCGM, submitted that in view of provisions of Section 328A of the MMC Act, no person can erect a hoarding or structure for advertisement without the written permission of the Commissioner. He submitted that clause (d) of second proviso to sub-section (1) of Section 328, would reveal that such of the hoardings which are facing any street, are also included in the category of the hoardings, which require permission under Section 328A. The learned Senior Counsel submitted that in view of Section 479, since the permission is required under Section 328A, MCGM is entitled to charge fees at such rate as 1 ILR XXXIV 252 2 ILR Vol XVI 104 3 AIR 1982 Bombay 512 4 (2012) 8 SCC 680 904-WP-1648-17 group.sxw shall from time to time be fixed by the Commissioner. He submitted that immunity which is granted to the railways under Sections 184 and 185 of the Railways Act is only in so far as taxes are concerned and what is being charged by the MCGM is not a "tax" but a "fee" for grant of permission under Section 328A. The learned Senior Counsel further submitted that Division Bench of this Court in the case of Yog Advertising & Marketing Services and Ors. vs. Municipal Corporation of Greater Mumbai and Ors.1 has held such a levy to be "fee" and not "tax". The learned Counsel further submitted that the Division Bench has further found that there need not be any direct co-relation between the services rendered and the fees levied. He submitted that even if some co-relation is established, charging of such a fee would be permissible. The learned Counsel submitted that the Corporation is processing the applications and, as such, it cannot be said that fees/charges are without there being any co-relation with the services rendered and, as such, the same are not a tax but fees. 11] The learned Counsel further submitted that, as a matter of fact, fees are not being paid by the Railways but by the advertisers acting as 1 2016(2) ABR 229 : 2017(1) ALLMR 349 904-WP-1648-17 group.sxw agents of the Railways and, as such, there could not be any restriction on levy of the fees on such advertisers. The learned Senior Counsel further submitted that the Apex Court in the case of Links Advertisers and Business Promoters vs. Commissioner, Corporation of the City of Bangalore1, has clearly held that, the Bangalore Municipal Corporation was entitled to levy tax on advertisement, fixed behind compound wall if it was facing towards the street, even if it was within the railway premises. He further submitted that the learned Single Judge of the Madras High Court in Ragavendra Ad Lab vs. Senior Divisional Commercial Manager2, has also held that the hoardings in the railway premises are also subject to regulation of the statutory provisions enacted by the concerned State. He further submitted that Division Bench of this Court in its various orders passed in PIL has held that railways are also bound by the policy framed by the Corporation. Learned Senior Counsel, therefore, submitted that all these Petitions deserve to be dismissed.

"(a) That the Hon'ble Court be pleased to direct the General Manager, Central Railway and General Manager, Western Railway to obtain the permission from M.C.G.M before erecting hoardings on their land and to pay the advertisement fees as per the provisions of section 328 / 328A of MMC Act.

(b) That the Hon'ble Court be pleased to direct the General Manager, Central Railway and General Manager, Western Railway to rectify the hoardings and remove the violations as pointed out by the M.C.G.M by issuing the notices to Central Railway and Western Railway for having erected the hoardings against the Policy Guidelines failing which they will be liable for removal by the M.C.G.M. (c ) That the Hon'ble Court be pleased to issue directions that all advertisements visible from public streets attract the provisions of Section 328 / 328A of the BMC Act and come under the purview of the Policy Guidelines framed by the MCGM in 904-WP-1648-17 group.sxw pursuance of the same."

The Central Government may at any time revoke or vary a notification issued under sub-section (1)." 15] Perusal of Section 328 of MMC Act would reveal that, no person can erect, fix or retain any sky-sign without the permission of the Commissioner of MCGM. It would further reveal that where a sky- sign is a poster depicting any scene from a cinematographic film, stage play or other stage performance, such permission shall not be granted, unless prior scrutiny of such poster is made by the Commissioner and he is satisfied that the erection or fixing of such poster is not likely to offend against decency or morality. Under Section 328A, a similar provision is made, requiring written permission of Commissioner for erecting, exhibiting, fixing or retaining any advertisement whether now existing or not upon any land, building, wall, hoarding or structure. Perusal of clause (d) of second proviso of sub-section (1) of Section 328A would reveal that such permission shall not be necessary in respect of any advertisement which is exhibited within any railway 904-WP-1648-17 group.sxw station or upon any wall or other property of a railway company. However, when any portion of the surface of such wall or property is fronting any street, it will be carved out from clause (d). The effect would be that, when any portion of the surface of such wall or property fronts any street, permission would be required under section 328A. Under section 479 of MMC Act, it is required that whenever it is provided under the Act that a licence or a written permission may be given for any purpose, such licence or written permission shall specify the period for which, and the restrictions and conditions subject to which, the same is granted, and shall be given under the signature of the Commissioner or of a municipal officer empowered under section 68 to grant the same. Sub-section (2) of Section 479 provides that, for every such licence or written permission, a fee may be charged at such rate as shall from time to time be fixed by the Commissioner, with the sanction of the Corporation.

We, therefore, reverse the decree of the lower Court and allow the appeal dismissing the suit with costs throughout."

(Emphasis supplied) 26] It could be seen that provisions which are contained in section 11 of the 1989 Act are identical with Section 7 of the 1890 Act. Section 11 also begins with non-obstante clause. It provides that, notwithstanding anything contained in any other law for the time being in force, railway administration is empowered to execute various measures for the purpose of constructing or maintaining railway. Clause (d) thereof deals with erection and construction of such houses, warehouses, offices and other buildings, and such yards, stations, wharves, engines, machinery apparatus and other works and conveniences as the railway administration thinks proper. Clause (da) thereof, which is inserted by the Act 47 of 2005, enables it to take steps for developing any railway land for commercial use. Clause (h) thereof, enables it to do all other acts necessary for making, maintaining altering or repairing and using the railway. 27] We find that in view of interpretation placed by the Division 904-WP-1648-17 group.sxw Bench of this Court on Section 7 of 1890 Act, which is analogous to Section 11 of the 1989 Act, that too while construing the conflict between the provisions of the said Act and City of Bombay Municipal Act, which is a predecessor of the MMC Act, it will have to be held that the provisions of section 328 and 328A and 479, would not be applicable to any of the activities that railway administration may execute in pursuance of the powers vested in it under Section 11. Undisputedly, since under clause (da) of Section 11, the railway administration is also empowered to develop any railway land for commercial use and since under clause (d), it is also empowered to erect and construct such houses, warehouses, offices and other buildings, and such yards, stations, wharves, engines, machinery apparatus and other works and conveniences as the railway administration thinks proper; the hoardings which are erected by the railways on its land would not require the permission of the Corporation either under Section 328 or 328A of the MMC Act and consequently no license would be required under section 479. 28] The next question that we are required to answer is, as to whether the Corporation would be entitled to levy advertisement tax 904-WP-1648-17 group.sxw or not on the advertisements displayed on the hoardings erected on the land of the railways. Ordinarily, having answered the first question, it would not have been necessary for us to answer the said question. However, since the Corporation relied on the judgment of the Apex Court in the case of Links Advertisers and Business Promoters vs. Commissioner, Corporation of the City of Bangalore 1, we find that it will be necessary for us to deal with the said issue. 29] It will have to be noted that the case of Link Advertisers and Business Promoters (supra) was decided by the Hon'ble Supreme Court on 21st April, 1977. However, the Railways Act, 1989 which contains section 185 has been enacted in the year 1989. Their Lordships, in the said case, have referred to Section 136 of Bangalore Municipal Corporation Act, 1949, relevant part of which reads thus: