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SCA/2239/2009 10/ 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2239 of 2009
With
SPECIAL
CIVIL APPLICATION No. 2240 of 2009
With
SPECIAL
CIVIL APPLICATION No. 2060 of 2009
With
SPECIAL
CIVIL APPLICATION No. 9198 of 2009
For
Approval and Signature:
HONOURABLE
MR. JUSTICE D.A.MEHTA
HONOURABLE
MS. JUSTICE H.N.DEVANI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
VODAFONE
ESSAR GUJARAT LIMITED, THRO VARANASI SRINIVAS, – Petitioner(s)
Versus
STATE
OF GUJARAT & 2 – Respondent(s)
=========================================
Appearance
:
MR AMIT M
PANCHAL with
MS SHIVANI S RAJPUROHIT for
Petitioner(s) : 1,
MR PK JANI, GOVERNMENT PLEADER with MS MYTHILI
MEHTA, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE
SERVED BY DS for Respondent(s) : 1,
RULE SERVED for Respondent(s)
: 2 – 3.
MR TULSHI R SAVANI for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR. JUSTICE D.A.MEHTA
and
HONOURABLE
MS. JUSTICE H.N.DEVANI
Date
: 22/04/2010
COMMON
CAV JUDGMENT
(Per : HONOURABLE MS. JUSTICE
H.N.DEVANI)
1. Since
common issues are involved in the present petitions, the same were
taken up for hearing together and are being disposed of by this
common judgment.
2. In
Special Civil Application No.2060 of 2009, the petitioner has mainly
challenged letter dated 07th
February, 2009 issued by the respondent no.3 Jesar Gram Panchayat
calling upon the petitioner to pay annual tax of Rs.60,000/- in
respect of its mobile telecommunication tower.
3. In
Special Civil Application No.2239 of 2009, the petitioner has
challenged notice dated 08th
February, 2009 issued by the respondent No.3 Jesar Gram Panchayat
calling upon the petitioner to pay annual rent of Rs.12,000/- as well
as installation charges of Rs. 50,000/- per year for two years in
respect of its mobile telecommunication tower. .
4. In
Special Civil Application No.2240 of 2009, the petitioner has
challenged notice dated 08th
February, 2009 issued by the respondent no.3 Jesar Gram Panchayat
calling upon the petitioner to pay annual rent of Rs.12,000/- as well
as installation charges of Rs.50,000/- per year for three years in
respect of its mobile telecommunication tower.
5. In
Special Civil Application No.9198 of 2009, the petitioner has
challenged Demand Notices dated 30.09.2008 and 8.04.2009 issued by
the Satapar Gram Panchayat calling upon the petitioner to pay annual
rent of Rs.50,000/- in respect of its mobile telecommunication tower.
6. In
all the aforesaid notices, the tax/rent is calculated on the basis of
the height of the respective tower at the rate of Rs.1000/- per
metre.
7. Heard
the learned advocates for the parties.
8. All
the above referred letters/demand notices have been challenged on the
ground that the annual rent is sought to be levied and recovered in
respect of Mobile telecommunication towers without support of any
statutory power under the Gujarat Panchayats Act, 1993 (the Act).
Attention is invited to the decision of this Court in the case of
Reliance Communications Limited v.
Junagadh Municipal Corporation,
rendered on 09.09.2008 in Special Civil Application No.531 of 2008
wherein the Court had set aside the resolution passed by the said
Municipal Corporation insofar as the same provided for determination
of permission fees, annual rent and administrative penalty as being
without authority of law since the same was not backed by any
statutory authority. It is submitted that the said decision would be
applicable on all fours to the present petitions inasmuch as there is
no provision under the Gujarat Panchayats Act, 1993 which empowers
the concerned Gram Panchayat to levy
annual rent in relation to mobile telecommunication towers set up on
private properties. It is further submitted that though the said
Panchayats have not directly placed reliance on the Government
Resolution dated 11.12.2008 issued by the State of Gujarat, the
annual rent has been calculated in terms of the said resolution. It
is pointed out that the said Government Resolution is subject matter
of challenge in Special Civil Application No.1898 of 2009 and cognate
matters, to submit that the petitioners also adopt the contentions
advanced by the learned advocates in those petitions.
9. A
perusal of the impugned letter/notices indicates that that there is
no reference to any statutory provision in the said letter/notices to
indicate as to in exercise of which power, the tax is sought to be
recovered. Nonetheless, merely because the said letter/notices do not
refer to any statutory provision would not render the same invalid if
the same can be traced to some statutory provision which empowers the
concerned Panchayat to levy such tax. In all these petitions, the
impugned letter/notices have been issued by the concerned Gram
Panchayats hence, the relevant statute would be the Gujarat
Panchayats Act, 1993. What is now required to be examined is as to
whether there is any provision under the said Act which empowers the
concerned Gram Panchayat to recover such annual rent towards
telecommunication towers set up on private lands.
10. Chapter
IX of the Panchayats Act makes provision for Taxation . Chapter
IX is sub-divided into five parts, viz. Part-I: Taxation by the State
Government, Part-II: Taxation by Village Panchayat, Part-III:
Taxation by Taluka Panchayat, Part-IV: Taxation by District Panchayat
and Part-V: Procedure of Levying Tax or Fee by Taluka Panchayat and
District Panchayat. In the present case the tax is sought to be
recovered by Gram Panchayats, hence the relevant provisions would be
the provisions of Part-II of Chapter IX, which consists of sections
200 to 205. Section 200 provides for Levy of taxes and fees by
village panchayats ; section 201 provides for Lump-sum
contribution by factories in lieu of taxes levied by panchayat ;
section 202 provides for Framing of fees on markets etc. ;
section 203 provides for Levy and Collection upto twenty five
paise as cess on every rupee of land revenue ; section 204 provides
for Power of taluka panchayat to increase taxation of panchayat ;
and section 205 provides for Recovery of cost of watch and ward .
On a perusal of the provisions of Part II it is apparent that, in the
facts of the present cases, the relevant provision would be Section
200 of the Act which reads thus:-
200.
Levy of taxes and fees by
village panchayats. – (1)
Subject to any general or special order (including an order fixing
the minimum and maximum rates of a tax or fee) which the State
Government may make in this behalf, it shall be competent to a
village panchayat to levy all or any of the following taxes and fee
at such rates as may be decided by it and in such manner and subject
to such exemptions as may be prescribed, namely
:-
a
tax on buildings (whether subject to payment of agricultural
assessment or not) and lands (which are not subject to payment of
agricultural assessment) within the limits of the village;
octroi
on animals or goods or both brought within the village for
consumption, use or sale therein;
a
pilgrim tax;
a
tax on fairs, festivals and other entertainments not being a tax on
payments for admission to any entertainments;
a
tax on vehicles, boats or animals used for riding, draught or
burden, kept for use within the village, whether they are actually
kept within or outside the village;
a
toll on vehicles and animals used as aforesaid entering the village
but not liable to taxation under clause (v) of this sub-section;
a
tax on dogs kept within the village;
a
general sanitary cess for the construction or maintenance, of public
latrines and for the removal and disposal of refuse;
a
general water rate which may be imposed in the form of a rate
assessed on buildings and lands or in any other form as may be best
adapted to the circumstances of any class of cases;
any
other prescribed tax (not being a toll on motor vehicles or
trailers, save as provided by section 20 of the Bombay Motor
Vehicles tax Act, 1958 (Bombay LVX of 1958) or tax on professions,
trades, callings and employments or a tax on payments for admission
to any entertainment) which the State Legislature has under the
Constitution, powers to impose in the State;
a
fee on markets and weekly bazars;
a
fee on cart-stands and tonga-stands;
a
special water rate for water supplied by the panchayat through
pipes, which may be imposed in any form including that of charges
for such water supplied fixed in such mode or modes as shall be best
adapted in the circumstances of any class of cases;
a
fee for the supply of water from wells and tanks vesting in it, for
purposes other than domestic use and for cattle;
fee
for temporary erection, on or putting up projections over, or
temporary occupation of, any public street or place;
a
special sanitary cess upon private latrines, premises or compounds
cleaned by the panchayat agency;
a
drainage tax;
a
lighting tax;
a
fee for cleansing a cess pool constructed on land whether belonging
to a panchayat or not’
a
fee for grazing cattle on grazing lands vesting in a panchayat;
in
lieu of any two or more separate taxes specified in clauses (I),
(viii), (ix) and (xviii), a consolidated tax on buildings or lands
or both situated within the limits of the village.
The
duties and obligation of persons liable to any tax or fee under
sub-section (1) shall be such as may be prescribed.
Rules
made under sub-section(1) may, interalia provide, –
for
the assignment and payment of a part of the proceeds of pilgrim tax
levied by village panchayat to a district panchayat or taluka
panchayat to such extent and in such circumstances and on such
conditions as may be prescribed;
for
lump sum payment of tax on vehicles or animals by persons liable to
pay such tax.
The
tax on buildings or lands referred to in clauses (i) and (xxi) of
sub-section (1) shall be leviable from the owners or occupiers
thereof:
Provided
that when an owner of a building or land has left the village or
cannot otherwise be found, any person to whom such building or land
has been transferred shall be liable for the tax leviable from the
owner.
The
State Government may, by notification in the Official Gazette,
direct that the tax upon buildings or lands referred to in clause
(i) of sub-section (1) shall not be levied, or shall be levied on
such reduced scale, on all buildings and lands or on any class of
buildings or lands situated in an area predominantly populated by
members of Scheduled Castes or Scheduled Tribes.
Any
person aggrieved by the assessment, levy or imposition of any tax or
fee may appeal to the district panchayat within the prescribed
period.
No
such appeal shall be entertained unless the amount claimed from the
appellant has been deposited by the appellant with the panchayat.
The
State Government may suspend the levy or imposition of any tax or
fee and may at any time rescind such suspension.
11. Under
the scheme of the Panchayats Act insofar as village panchayats are
concerned the only provision which empowers the panchayat to levy
taxes is section 200. A perusal of the provisions of Section 200
shows that the same lays down 21 categories in respect of which it is
permissible for the panchayat to levy taxes. On a plain reading of
the 21 categories enumerated under section 200, it is apparent that
there is no provision which permits the village panchayat to collect
annual rent in relation to telecommunication towers set up on private
properties. Thus, the power to levy and collect annual rent in
respect of mobile telecommunication towers does not flow from any of
the provisions of the Act. As rightly submitted
by the learned advocates for the petitioners, the controversy
involved in the present petitions stands concluded by the decision of
this Court in the case of Reliance
Communications Limited v. Junagadh Municipal Corporation
(supra), though the same has been rendered in the context of the
Bombay Provincial Municipal Corporations Act, 1949 and the Gujarat
Municipalities Act, 1963.
12. Moreover,
on a perusal of the impugned letter/notices it is apparent that the
levy of annual rent on mobile telecommunication towers on the basis
of the height of each individual tower at the rate of Rs.1000/- per
metre, though not directly based upon the Government Resolution dated
11th
December, 2008 appears to be in the context of the said resolution.
The resolution dated 11th
December, 2008 issued by the Government of Gujarat, Urban
Development and Urban Housing Department provided for levy and
recovery of Annual Permission Fees and Installation Charges on mobile
telecommunication towers in the areas covered under Municipal
Corporations/Municipalities in the State of Gujarat. It
is common ground between the parties that Government Resolution dated
11th
December, 2008 was subject matter of challenge in the case of Indus
Towers Limited vs. State of Gujarat in Special Civil Application
No.1898 of 2009 and other cognate matters. By judgment of even date
rendered in Special Civil Application No.1898 of 2009, this Court has
quashed the said resolution holding that in absence of any statutory
provision permitting the respondents therein to impose installation
charges and/or permission fees in respect of mobile towers, such levy
was without authority of law and
violative of Article 265 of the
Constitution of India. The ratio of the said decision would also be
applicable to the present cases.
13. In
view of the above discussion, the petitions succeed. For the reasons
stated in the case of Reliance
Communications Limited v. Junagadh Municipal Corporation
(supra) as well as in the order of even date rendered in Special
Civil Application No.1898 of 2009 and cognate matters, these
petitions are allowed. The impugned letter/demand notices which are
subject matter of challenge in the respective petitions are hereby
quashed and set aside. Rule is made absolute in each of the
petitions with no order as to costs.
14. Registry
is directed to place a copy of this judgment in each petition.
(
D.A. Mehta, J. )
(
Harsha Devani, J. )
hki
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