T. Sen, J. - (1.) The Petitioners carry on business of setting up hoardings in an around Kolkata by letting out the same to different clients for display of their Advertisements therein. They have entered into various agreements with Private individuals as also different authorities like the Railways, P.W.D., KMDA etc. for putting up hoardings at different places within the municipal limits of Kolkata. The Petitioner No. 1 (M/s. Selvel Advertising Private Ltd.), has, in an around Kolkata and specially the B.B.D. Bag area, various sites for display of Advertisement and approved sites of the Kolkata Municipal Corporation for which taxes and fees are realised by the said Corporation under Ss. 202, 203 and 204 of the Kolkata Municipal Corporation Act, 1980 (hereinafter referred to as the said Act). Sections 202, 203 and 204 of the said Act read as follows: 202. Prohibition of advertisements without written permission of the Municipal Commissioner. - (1) No person shall erect, exhibit, fix or retain upon or over any land, building, wall, hoarding, frame, post, kiosk or structure any advertisement, or display any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph), in any place within Kolkata without the written permission of the Municipal Commissioner. (2) The Municipal Commissioner shall not grant such permission if: a) a licence for the use of the particular site for purpose of advertisement has not been taken out, or b) the advertisement contravenes any provisions of this Act or the rules or the regulations made thereunder, or c) the tax, if any, due in respect of the advertisement [ has not been paid, or] d) the Mayor -in -Council, on the basis of the recommendation of the Heritage Conservation Committee, is of the view that such advertisement will obstruct the view of, or destabilise the structure of, or will not be in harmony with, any heritage building.] 3. No person shall broadcast any advertisement, except on radio or television, without the written permission of the Municipal Commissioner. 203. Licence for use of site for purpose of advertisement. - (1) Except under and inconformity with the terms and conditions of a licence, no person being the owner, lessee, sub -lessee, occupier or an advertising agent shall use or allow to be used any site in any land, building, wall or erect or allow to be erected on any site, any hoarding, frame, post, kiosk, structure, neon -sign or sky -sign for the purpose of display of any advertisement. (2) For the purpose of advertisement, every person" (a) using any site before the commencement of this Act, within ninety days from the date of such commencement, or (b) intending to use any site, or (c) whose licence for use of any site is about to expire, shall apply for a licence or renewal of a licence, as the case may be, to the Municipal Commissioner in such form as may be specified by the Corporation. (3) The Municipal Commissioner shall, after making such inspection as may be necessary and within thirty days of the receipt of the application, grant, refuse, renew or cancel a licence, as the cast may be, on payment of such fees as may be determined by the Corporation by regulations [ or as the budget estimate shall state under Sub -section (3) of Sec. 131]. (4) The Municipal Commissioner may, if in his opinion the proposed site for any advertisement is unsuitable from the considerations of public safety, traffic hazards [ aesthetic design, or obstruction of the view of , or harmony with, any heritage building,] refuse a licence or refuse to renew any existing licence. (5) Every licence shall be for a period of one year except in case of sites used for temporary fairs, exhibitions, sports, events or cultural or social programmes. (7) The Municipal Commissioner shall cause to be maintained a register wherein the licences issued under this Sec. shall be separately recorded in respect of advertisement sites; (a) on telephone, telegraph, tram, electric or other posts or poles erected on or along public or private streets or public places. (b) In lands or buildings. (c) In cinema halls, theatres or other places or public resort. 204. Tax on advertisements. -(1) Every person, who erects, exhibits, fixes or retains upon or over any land, building, wall, hoarding, frame, post, kiosk or structure any advertisement or, displays any advertisement to public view in any manner whatsoever, visible from a public street or public place (including any advertisement exhibited by means of cinematograph) shall pay for every advertisement which is so erected, exhibited, fixed or retained or so displayed to public view, a tax calculated at such rate as the Corporation may determine by regulations [or as the budget estimate shall state under Sub -section (3) of Sec. 131]: [Provided that] a surcharge not exceeding fifty per cent, of the applicable rate may be imposed on any advertisement on display in temporary fairs, exhibitions, sports events or cultural or social programmes. (2) Notwithstanding the provisions of Sub -section (1), no tax shall be levied under this Sec. on any advertisement which: (a) relates to a public meeting or to an election to Parliament or the State Legislature or the Corporation or to candidature in respect of such election; or (b) is exhibited within the window of any building if the advertisement relates to the trade, profession or business carried on in that building; or (c) relates to the trade, profession or business carried on within the land or building upon or over which such advertisement in exhibited or to any sale or letting of such land or building or any effects therein or to any sale, entertainment or meeting to be held on or upon in the same; or (d) relates to the name of the land or building upon or over which the advertisement is exhibited or to the name of the owner or occupier of such land or building; or (e) relates to the business of a railway administration and is exhibited within any railway station or upon any wall or other property of a railway administration; or (f) relates to any activity of the Government or the Corporation. (3) The tax on any advertisement leviable under this Sec. shall be payable in advance in such number of instalments and in such manner as the Corporation may be regulations determine [ or as the budget estimate shall state under Sub -section (3) of Sec. 131]: Provided that the Corporation may under the terms and conditions of the licence under Sec. 203 require the licensee to collect and pay to the Corporation, subject to a deduction of five per cent to be kept by him as collection charges, the amount of tax in respect of such advertisements as are displayed on any site for which he is the licensee. (Quoted)
(2.) According to the Petitioners, they had earlier filed a Writ Petition being W.P. No. 2003 of 2003 (Selvel Advertising Pvt. Ltd. and Anr. v/s. Kolkata Municipal Corporation and Anr.) wherein they had inter alia prayed: a) for a direction upon the Respondents to dispose of their pending applications for grant of licence b) for a Writ of mandamus striking down the provision of Sec. 203 of the said Act regarding the provision for payment of Advertisement tax before the issuance of the permission to erect any hoarding or structure, c) an interim Order restraining the Respondents from refusing to renew their existing licence or from removing any of the existing 394 hoardings, d) a Writ of Mandamus Commanding upon the Respondents to produce all records relating to the tender of the sites of Pump House and 17 Passenger Shelters, e) for an injunction restraining the Respondents from allotting any such sites to any person either by re -tender or by private treaty without intimation of the results of the tender to the Petitioners, f) Injunction restraining the Respondents from giving effect to the Notice and directing them to disclose the basis of the demand of Rs. 75,99,882/ - with details as to the rate and number of hoardings.
(3.) The Petitioners have stated that by an Order dated 29.9.2003, the Hon'ble Mr. Justice Kalyan Jyoti Sengupta, passed an Order Directing the Municipal Authorities to furnish details of the amounts received as against each advertising site. Thereafter, although the Corporation gave details of adjustments showing that the Corporation had sanctioned 394 hoardings on payment of taxes and fees, no licence was given in favour of the Petitioners although the same was required to be issued under the Statute. According to the Petitioners, the Municipal authorities were directed to issue the licence. However, since there was non -compliance of the Order, a Contempt Petition was moved by the Petitioners.;