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C.V. Srinivasan Vs. the Corporation of Madras - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Reported in(1956)2MLJ317
AppellantC.V. Srinivasan
RespondentThe Corporation of Madras
Excerpt:
.....act, that is, for failure to enrol himself as a licenced advertiser after making the requisite security deposit. that being so, the security deposit is clearly unnecessary for the purpose of making adjustment towards advertisement-tax. viii itself or for the adjustment of the advertisement-tax as stated by the learned counsel, the security deposit is wholly unnecessary, as indeed there is no by-law which enables the council or the commissioner either to forfeit it in the event of failure on the part of any advertiser of the due observance of any by-law, or to adjust the same towards the advertisement-tax if it remains unpaid. in other words, the council has failed to establish that the security deposit was intended for the 'regulation of advertisements' within the meaning of clause..........act, that is, for failure to enrol himself as a licenced advertiser after making the requisite security deposit. that by-law provides thus:persons or agencies who undertake the display of advertisements on behalf of others shall enrol themselves as licensed advertisers on payment of a security deposit of not more than rs. 100 and hot less than rs. 50 each as the commissioner may decide for the due observance of the by-law.2. this and the other by-laws were framed by the council under the powers given to it by clause (28) of section 349 of the madras city municipal act. that section enables the council to make by-laws not inconsistent with the act or with any other law to provide for the prohibition and regulation of advertisements. under that section, it is open to the council to.....
Judgment:

Ramaswami Gounder, J.

1. In this case, the accused was convicted for breach of By-law No. VIII of the by-laws framed under Clause (28) of Section 349 of the Madras City Municipal Act, that is, for failure to enrol himself as a licenced advertiser after making the requisite security deposit. That by-law provides thus:

Persons or agencies who undertake the display of advertisements on behalf of others shall enrol themselves as licensed advertisers on payment of a security deposit of not more than Rs. 100 and hot less than Rs. 50 each as the Commissioner may decide for the due observance of the by-law.

2. This and the other by-laws were framed by the Council under the powers given to it by Clause (28) of Section 349 of the Madras City Municipal Act. That section enables the Council to make by-laws not inconsistent with the Act or with any other law to provide for the prohibition and regulation of advertisements. Under that section, it is open to the Council to prohibit altogether all advertisements in certain, areas, and it is also open to the Council to regulate the advertisements in the non-prohibited areas. That being so, the question that arises for our decision in this case is whether the security deposit of Rs. 50 or Rs. 100 provided for by By-law No. VIII was one that was intended for the regulation of advertisements. If such security deposit was for the regulation of advertisements, then, there can be no doubt that By-law No. VIII would be within the powers of the Council. It will be seen that the by-law in question applies only to persons or agencies who undertake the display of advertisements on behalf of others and not to persons who display their own advertisements. It will further be seen that the by-law provides that the security deposit was to be 'for the due observance of the by-law'. But there is no by-law to show how this security deposit was to be utilised for the due observance of the by-law. But Mr. B. Lakkappa Rai, learned Counsel for the Corporation, represented to us that the object of the security deposit was two-fold : (1) for the due. observance of the by-laws, by forfeiture of the security deposit, and (2) for adjustment of the security deposit towards the advertisement-tax. In the first place, this argument cannot be accepted for the mere reason that there is no by-law which enables the Council either to forfeit the security deposit in the event of any non-observance of the by-law or to adjust it if there is default in the payment of the advertisement-tax. In fact, the learned Counsel was forced to concede that the deposit would simply be retained by the Council. If so, the security deposit would serve no purpose whatever.

3. Secondly, there are ample provisions in the Act itself to enforce the due observance of the by-laws and also for the realisation of the advertisement-tax. Section 129-A of the Act directs that every person who erects, exhibits, fixes or retains upon or over any land, building, wall, etc., any advertisement or who displays any advertisement to the public in any manner whatsoever, in any place, whether public of private, shall pay on every such advertisement a tax calculated at such rates and in such, manner as the Council may, with the approval of the State Government, by resolution determine. Then Section 129-B provides that no advertisement shall be erected, exhibited, fixed or retained upon or over any land, building, etc., or be displayed in any manager whatsoever in any place without the written permission of the Commissioner. That section also enjoins that the Commissioner shall not grant such permission if the advertisement contravenes any by-law made by the Council under Clause (28) of Section 349. This section, therefore, provides a safeguard for the due observance of the by-laws. Further, Section 129-C provides that the permission granted under Section 129-B shall become void if the advertisement contravenes any by-law made by the Council under Clause (28) of Section 349. This is another safeguard provided by the statute for the due observance of the by-law. Then there is Section 129-E, which enables the Commissioner by notice in writing to require the owner or occupier of the land or building, upon or over which the advertisement is erected, exhibited or fixed, to take down or remove such advertisement, or himself enter upon any building, land or property and have the advertisement removed, if the advertisement is erected, exhibited, or fixed after the written permission of the Commissioner had expired or become void. It will thus be seen that these provisions give ample powers to the Council and its Commissioner for the enforcement of the due observance of the by-laws, so that the requirement of By-law No. VIII of a security deposit of lis. 50, or Rs. 100 for that purpose appears to us to be wholly unnecessary. Then, as regards the contention that the deposit might be adjusted towards the advertisement-tax payable, Section 129-B(2) provides that the Commissioner shall not grant such permission if the tax, if any, due in respect of the advertisement has not ben paid. That being so, the security deposit is clearly unnecessary for the purpose of making adjustment towards advertisement-tax. In our view, therefore, either for the due observance of the by-law as stated in By-law No. VIII itself or for the adjustment of the advertisement-tax as stated by the learned Counsel, the security deposit is wholly unnecessary, as indeed there is no by-law which enables the Council or the Commissioner either to forfeit it in the event of failure on the part of any advertiser of the due observance of any by-law, or to adjust the same towards the advertisement-tax if it remains unpaid. In other words, the Council has failed to establish that the security deposit was intended for the 'regulation of advertisements' within the meaning of Clause (28) of Section 349. We are therefore constrained to hold that By-law No. VIII is ultra vires of the powers of the Municipal Council under that section.

4. In the above view, it has become unnecessary for us to examine the further question how far By-law No. VIII would offend the provisions of Article 19 of the Constitution, as, in fact, the learned Counsel on both sides did not consider it necessary to argue that point before us.

5. The revision petition is allowed, and the conviction set aside. The fine, if paid, will be refunded.


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