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Judgment
B.S. Verma, J.—Heard learned Counsel of the parties and perused the record.
This writ petition has been filed by the petitioner for the following reliefs:
i) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the impugned order dated 12.04.2007 and the letter dated 03.04.2007 (contained in Annexure-1 & 2 to the writ petition).
ii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus to declare the Bye-laws published on 27.03.1973 (Annexure-3 to the writ petition) the provisions of Uttarakhand Municipalities Act, 1916 ultravires.
iii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus, directing the opposite parties not to demand the advertisement tax from the petitioner;
iv) Issue a writ of mandamus to declare the provisions of Section 298(2) List I (H) (f), of the Uttrakhand Municipalities Act, 1916 ultra vires the provisions of Article 246, Article 243W, List II and List III of the VIIth. Schedule read with XIIth. Schedule of the Constitution.
v) Issue a writ of mandamus to declare the provisions of Section 298(1) of the Uttrakhand Municipalities Act, 1916 ultravires the provisions of Article 246, Article 243W, List II and List III of the VIIth. Schedule read with XIIth. Schedule of the Constitution so far as it relates to Regulation and Control of the Advertisements.
vi) Issue such other writ, order or direction be also issued as the Hon''ble Court may deem just and proper in the circumstances of the case.
vii) Award the cost of the writ petition to the petitioner.
The petitioner has sought relief No. 1 to issue a writ in the nature of certiorari for quashing the impugned order dated 12.04.2007 and the letter dated 03.04.2007 (Annexure-1 to the writ petition), where by the demand was raised by the contractor against the petitioner for advertisement tax for the year 2007-08 and Annexure-2 is the letter of authorization issued by the Municipal Board.
On 29-04-2010, the arguments of the learned Counsel for the petitioner was heard at length. During the course of the argument it came to the notice of the court that there is some hand written side notes on Annexure-3, this Court had directed the respondents No. 2 and 3 to file the original copy of the gazette notification having amended bye-laws, which is also under challenged.
Today, the learned Counsel appearing for the respondents Nos. 2 and 3, Sri Ramji Srivastava has stated at Bar that in response to the order dated 29-04-2010, on the basis of instruction received from Mr. Dileep Kapoor, Executive Officer, who is also present in the court stated that the bye-laws have not been notified as yet by the State Government and it is only a draft proposal of bye-laws for amendment.
It is well settled that unless and until the bye-laws are amended in accordance with law that cannot be enforced. It is pertinent to mention here that in existing bye-laws of respondent No. 2, there is no such provision to realize the advertisement tax.
In case at hand without amendment of bye-laws the respondent Nos. 2 and 3 authorized the contractor-respondent No. 4 to realize the advertisement tax from the petitioner. The realization of advertisement tax as well as authorization is bad in law. The impugned orders are liable to be set-aside only on this ground alone.
Other reliefs sought by the petitioner are pertaining for setting aside the bye-laws framed under the act and amended bye-laws also. Since the amended bye-laws regarding the advertisement tax have not been notified by the State Government. In view of this fact, the petitioner is not pressing other reliefs at this stage.
The impugned orders (Annexure No. 1) and the authorization order (Annexure2) are set aside.
The writ petition is allowed for relief one.
The amount of advertisement tax deposited by the petitioner under the interim order passed by this Court on 10-09-2007 before the respondent Nos. 2 and 3 shall be refunded to the petitioner within a period of four weeks from the date of production of certified copy of this order.
However, the petitioner would be at liberty to take all the pleas and challenge various provisions of the statute as well as bye-laws by filing fresh writ petition, if the occasion arises in future.
All pending applications stand disposed of accordingly.