- (1.) This writ petition has been filed for challenging the Gorakhpur Nagar Nigam Main Vigyapanon Par Kar Ka Nirdharan Aur Vasooli Niyamawali, 2015 (hereinafter referred to as 'Niyamawali'), Annexure -2 to the writ petition.
(2.) At the very outset, we may record that the recital in the prayer clause that Niyamawali has been framed by the State Government is factually incorrect. The Niyamawali has been framed by the Gorakhpur Nagar Nigam in exercise of powers under Section 545 of the U.P. Nagar Mahapalika Adhiniyam, 1959. Sri Ravi Kant, senior advocate, made a statement that the last line of the prayer clause may be deleted. The other prayer made in the writ petition is for a writ of mandamus commanding the Nagar Nigam not to give effect to the Niyamawali, 2015. Written submissions have been filed which are taken on record.
(3.) Sri Ravi Kant submitted before us that in view of Full Bench judgement of this Court in the case of Anurag Bansal vs. State of U.P. and others, 2011 (5) ADJ 879 (LB) (FB), the impugned Niyamawali cannot be legally sustained. It is explained to the Court that the right to advertise is a facet of freedom of speech and expression guaranteed under Article 19(1)(a) of the Constitution of India. The Nagar Nigam in exercise of its power to frame rules which is in the nature of subordinate legislation, cannot impose a tax in the matter of exercise of such fundamental right. It is submitted that the powers conferred upon the Municipal Corporation to that extent would be hit by Article 19(1) (a) of the Constitution of India. Similarly, it is stated that Rule 6 -A, 6 -B, 7(2) and 8 as well as Rule 9 are patently arbitrary, they affect the fundamental right of the persons like the members of the petitioners association, who are involved in the business of advertising. Similarly, it is stated that Rule 6(9) is vague in the background that it requires minimum premium to be fixed by a Committee before right to advertise is granted by auction or tender. Similarly, it is stated that if an advertisement or pole of the hoarding falls down on account of an accident or any other act of God, the licensee would be held responsible for compensation when no person can be held liable for an act of God i.e. for an act beyond his control. Rule 7(2) is challenged on the ground that it empowers the allotment committee to fix minimum amount of premium in light of items provided therein which is arbitrary. It confers absolute discretion in the Committee to fix the amount of premium according to its own estimate of said factors.;