M.S. Aiyar and Company and Others vs G. Srinivasalu Naidu

Mockett, J.—The petitioner has been convicted and fined by the Senior Bench Court of Coimbatore for advertising without a licence in

Coimbatore in two manners, (1) in his bullock cart and (2) by means of a board hung over his roof. Mr. Bhashyam Aiyangar argues that the

conviction is without jurisdiction because no offence has been committed. That depends on a consideration of the District Municipalities Act. There

is an express provision in the Madras City Municipal Act, Section 129-A. which was introduced by the Amending Act X of 1936 making-special

provision for taxing advertisements but the only provision with regard to advertisements to be found in the District Municipalities Act is Section

306, Clause (28). Section 306 says:

The council may make by-laws not inconsistent with this Act or with any other law to provide (28) for the prohibition and regulation of

advertisements in public streets or parks.

This section is in the same words as Section 349 (28) of the Madras City Municipal Act (IV of 1919). There will be found in Section 306

several provisions relating to licences, for example, Clause 10 (c) for licensing of builders and surveyors, 18 (c) for licensing and controlling of

brokers, etc., and 22 (b) for the levy of fees for the use of certain burial and burning grounds. ''Licences and fees'' are comprehensively dealt with

in Chapter XII, ,which is so headed. Therein are specified a number of acts for which licences are required and for which fees may be levied. But

there is no provision there for the granting of any licence or levying of fees in relation to advertisements. The learned Public Prosecutor has rested

his case entirely on Section 321 which reads as follows:

(1) Every license and permission granted under this Act or any rule or by-law made under this Act shall specify the period, if any, for which, and

restrictions, limitations and the conditions, subject to which the same is granted, and shall be signed by the executive authority.

(a) Save as otherwise expressly provided in or may be prescribed under this Act, for every such licence or permission, fees may be charged on

such units and at such rates as may be fixed by the Municipal Council.

There is a distinction in the Act between ""licence"" and ""permission"" and ""regulating"" as an examination of the chapter shows, for example, u/s

255 a licence to use a slaughterhouse is required, but u/s 250 permission is required to establish a factory. I observe too that, although private

markets can be regulated by by-laws, under Chapter XIV, Section 306 (18) (b), licence fees are leviable on them under Chapter XII. Chapter

XIV is headed ""Rules, by-laws and Regulations"", and Chapter XII, as I have already stated, ""Licences and fees."" The Public Prosecutor contends

that u/s 306, Clause (28) the ""regulation of advertisements"" would include giving permission to advertise and therefore, by further implication, a

power to levy licence fees. But, although in the Act advertisements may be prohibited, I can find nowhere that they are prohibited or permitted

only by licence as in the case of all the other numerous subjects mentioned. Licensing, permitting and regulating are, in my view, distinct matters

and are dealt with distinctly and differently under the Act. The intention of Section 306, Clause (28) seems to me to empower the Municipality to

prohibit altogether advertisements in public streets and parks or to regulate their exhibition, for example as to size and position--no doubt a

necessary provision in the interests of the appearance of the streets and parks. I do hot think--indeed I think it is contrary to a general reading of

the Act--that it can be implied that a further power to levy licence fees in respect of the advertisements is given. But under the by-laws which are

attached to the record, it is expressly provided that fees shall be levied. ""Regulate"" according to the Oxford Dictionary, means ""to control by rule,

subject to restrictions, moderate, adapt to requirements."" It does not seem possible to stretch this meaning to include levying fees, especially when

such elaborate provision is made in other parts of the Act for this purpose with regard to other specified matters. What the true meaning and sense

of ""regulate"" in this Act is can be derived from its use in Section 306 (2), (3-B), (9), (10-A), (11), (12), (18-B) and (22-A). It is a general

principle, that any provision by which members of the public may be taxed should be clearly stated, so should, in my view, an analogous provision

by which any payment can be compelled from them.

My conclusion is therefore that neither directly nor by implication is there any provision in this Act to enable a District Municipality to levy

licence fees for advertisements any more than in the City Municipal Act before the introduction of the amending Act of 1936 which provided

especially for taxation for advertisements. It is for the Legislature to deal with this omission if it thinks fit. The by-law therefore appears to be ultra -

vires, and in consequence this revision petition will be allowed, the conviction set aside and the fine, if paid, refunded..

Crl. R. Cs. Nos. 1101, 1103 and 1104 of 1940.

The learned Public Prosecutor agrees that my order in Crl.R. C. No. 1100 of 1940 applies to these cases, and the order will be the same.