1. This appeal is by the writ petitioner in W.P. No. 879 of 1973 and directed against an order made therein by Jagannatha Shetty, J. dismissing the petition.
2. The material facts are few and briefly as follows :-
The appellant is a firm carrying on a business of advertising commercial goods and various other items. One of the modes adopted for the purpose of such business is to put up hoardings on properties taken on lease or license from their owners. Thus it came to put up hoardings on railway lands in the compound of the railway station at Bangalore. Such hoardings had been put up in such a way that the advertisements displayed thereon were in the plain view of the members of the public using the street and surrounding localities. The Municipal Corporation of the City of Bangalore ('Corporation for short) demanded of the appellant to pay the necessary advertisement tax in accordance with the relevant provisions of the City of Bangalore Municipal Corporation Act ('Act' for short). The appellant challenged this demand by a petition under article 226 of the Constitution. The learned Single Judge dismissed the petition. Hence this appeal.
3. At the outset we may set out the relevant portions of Section 136 of the Act under which the tax on advertisements has been imposed. IT reads :
'136. Tax on advertisements. - Every person who errects, exhibits, fixes or retains upon or over any land, building, wall, hoarding or structure any advertisement or who displays any advertisement to public view in any manner whatsoever, in any place whether public or private, shall pay on every advertisement which is so erected, exhibited, fixed, retained or displayed to public view, a tax so 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 :
Provided always that the rates shall be subject to the maxima and minima laid down by the Government in this behalf :
Provided -- -'Provided further that no such tax shall be levied on any advertisement which is not a sky-sign and which -
- -(d) relates to the business of any railway; or
(e) is exhibited within any railway station or upon any wall or other property of a railway except any portion of the surface of such wall or property fronting any street
Explanation 2 -
Provided that such board, frame or other contrivance be of the one continuous face and not openwork, and does not extend in height more than three feet above any part of the wall, or parapet or ridge to, or against, or on which it is fixed or supported; or
(d) any advertisement relating exclusively to the business or a railway, and placed wholly upon or over any railway, railway station, yard, platform or station approach belonging to a railway, and so placed that it cannot fall into any street or public place :
'Explanation 3. - 'Public Place' shall, for the purpose of this section, mean any place which is open to the use and enjoyment of the public, whether it is actually used to enjoyed by the public or not.'
4. On behalf of the appellant placing reliance almost exclusively on the terms of clause (e) of the third Proviso to Section 136, which shall hereafter or the sake of convenience be referred to simply as 'exemption clause,' it has been contended thus :
Generally any exhibition of an advertisement within a railway station or on the surface of the wall or any other physical property belonging to a railway is exempt from advertisement tax. But when it is exhibited on the surface of such a wall which is flush with a public street, it would attract owner of the street. Similarly then tax would be exigible when the surface of a physical property of a railway which is flush with a street, is used for advertising. Since in the case on hand there has not been any such user the tax in question would not be exigible.
5. We are not persuaded to accept the above proposition formulated on behalf of the appellant. Section 136 of the Act provides, inter alia, that every person who erects a hoarding and displays an advertisement to public view in any manner whatsoever in any place whether public or private shall be liable to pay the tax on such advertisements subject to exemptions specified in that section. What is noteworthy is that the tax is levied on advertisements which are displayed to public view.
6. The 'exemption clause' (i.e. clause (e) of third provision to Section 136) provides for exemption from payment of tax in regard to advertisements displayed within a railway station and on walls and other property belonging ton a railway. But in regard to the latter class of advertisements, an exception is engrafted the effect of which is to take away the protection of such exemption if the surface of such wall or property is 'fronting any street.'
7. In the instant case, we are not faced with any situation as the one envisaged in the second part of the exemption clause relative to advertisements on a wall or other property of the railway 'fronting any street'. We are concerned herein with the case of a hoarding put up by and belonging to the appellant and not the railway. Hence it is plain that no exemption on that score could be claimed on behalf of the appellant. In this view, the question of the examining the further contention of the appellant whether or not the surface of wall or other property ought to be flush with the street in order to attract tax under the Act in the context of the exception in the said exemption clause, would not arise for consideration. In these circumstances, the charging provisions of Section 136 of the Act are clearly attracted but not any of the clauses of the further proviso exempting tax, and the appellant cannot escape the liability arising therefrom.
8. In this connection, reference was invited to a decision of the High Court at Madras in the case of the Corporation of Madras vs. The Oriental Mercantile Company (1966 (2) Mad. L.J. 440), wherein section 129-A of the Madras City Municipal Corporation Act, which is in pari-materia with section 136 of the present Act came in for consideration. In our opinion that case is of much assistance to eh appellant as it is clearly distinguishable on facts as can be seen from the following passage in that decision setting out the facts of that case :
'..... The advertisement has been exhibited on a wall which is the property of the railway company, which certainly does not front any street These outer walls front the compound or the enclosure, and it is quite conceivable in a case that the compound wall may itself be high enough to exclude the view of the advertisement by pedestrians passing in the street ....'
9. But the alternative argument of Mr. V. Krishnamurthy, learned counsel for the appellant, is that the land on which the hoarding had been put up was part and parcel of the railway station and clearly fell within the ambit of the words 'within any railway station' occurring in the exemption clause which was not subject to any exception as in the case of a wall or other property belonging to a railway.
10. In this context, it has to be noted that it is common ground between parties that the hoarding in question is situated on a vacant plot belonging to the railway and appurtenant to the railway station which is not used by travelling passengers in any manner. The question, therefore, arises whether such land could properly be said to fall within the scope of the description 'within any railway station' occurring in the exemption clause.
11. It seems to us that if the legislative intent in enacting the further proviso was to exempt all advertisements in a railway station, understood in its widest sense, including such vacant land appurtenant to it, there was no need for it to have resorted to separate specification in the context of advertisements on walls and other property of a railway as has been done. Moreover, that such could not have been the intention can be gathered from the language employed in another clause relating to exemption occurring in section 136 itself, namely, clause (d) of Proviso to explanation 2 reproduced earlier. This clause specifically provides for an exemption in favour of the railway in respect of all advertisements relating exclusively to the business of a railway, and placed wholly 'upon' or 'over' any 'railway station, yard, platform of station approach'. Such elaboration would have been unnecessary if the term 'railway station' was intended to be comprehensive enough to include all those parts mentioned therein for the purpose of clause (e) of the further proviso. If this clause (clause (d) to the proviso to explanation 2) and and the exemption clause (clause (e) of the further proviso with which we are concerned are read together it will be seen that the legislature was conscious of the distinction between a railway station on one had and other railway property like yard, station approach etc. on the other. The preparations 'within', 'upon' and 'over' in these provisions are intended to connote different concepts. In our opinion, therefore, the expression 'within any railway station' must be given a narrower meaning and restricted to the premises of a railway station where the trains halt or stand before moving passangers alight or get up the trains or wait before or after so doing and luggage and goods are attacked before loading into or after unloading form trains. Hence this contention also must fail.
12. As a result of the foregoing, we are clearly of the view that this appeal must fail and is accordingly dismissed. In the circumstances, there will be no order as to costs.