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SCA/3992/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3992 of 2010
=========================================
BHARTI
INFRATEL LTD., THRO CONSTITUTED ATTORNEY, RITESH SHAH - Petitioner(s)
Versus
STATE
OF GUJARAT & 1 - Respondent(s)
=======================================
Appearance :
MS
VIRAJ FOZDAR FOR MR SHALIN N MEHTA
for Petitioner(s) : 1,
MR
PRANAV DAVE, ASSTT. GOVERNMENT PLEADER for Respondent(s) : 1,
None
for Respondent(s) : 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 30/04/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
By
this petition under Article 226 of the Constitution of India the
petitioner challenges the demand note dated 8th
December, 2009 issued by the respondent No.2 Corporation demanding
permission fee, administrative penalty and rent for the years
2002-03 to 2009-10 aggregating to Rs.1,27,320/- on the Mobile Tower
of the petitioner Company.
Ms.Viraj
Fozdar, learned advocate appearing for the petitioner has invited
attention to the impugned demand note dated 8th
December, 2009 (Annexure A ),
to point out that the same has been issued pursuant to amended
resolution No. NPL/4508/5427/M dated 28th
November, 2009 issued by the Government of Gujarat, Urban
Development and Urban Housing Department. It is submitted that the
said Government Resolution dated 28th
November, 2009 was subject matter of challenge before this Court in
Special Civil Application No.157 of 2010 and this Court vide order
dated 22nd
April, 2010 has quashed the said resolution.
Despite
service of notice, there is no appearance on behalf of the
respondent No.2 – Corporation. However, considering the fact that
the controversy in issue stands concluded by the above referred
decision of this Court, the matter is taken up for final hearing
today.
As
noted hereinabove, the controversy involved in the present petition
stands concluded vide judgment and order dated 22nd
April, 2010 made in Special Civil Application No.157 of 2010 whereby
the resolution No. NPL/4508/5427/M dated 28th
November, 2009 issued by the Government of Gujarat, Urban
Development and Urban Housing Department has been quashed and set
aside. In the said case, this Court has followed its decision in the
case of Indus
Towers Ltd. v. State of Gujarat and others,
rendered on 22nd
April, 2010 in Special Civil Application No.1898 of 2009 and other
cognate matters, whereby the Resolution dated 11th
December, 2008 issued by
the Government of Gujarat, Urban Development and Urban Housing
Department, providing
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
has been struck down as being ultra vires the provisions of Article
265 of the Constitution of India as well as ultra vires the
provisions of the Bombay Provincial Municipal Corporation Act, 1949
and the Gujarat Municipalities Act, 1963.
In
the circumstances, in the light of the order dated 22nd
April, 2010 made in Special Civil Application No.157 of 2010, when
the Government Resolution which forms the basis of the demand in the
present case has been set aside, the demand cannot be sustained.
For
the foregoing reasons the petition succeeds and is accordingly
allowed. The impugned demand note dated 8th
December, 2009 (Annexure A to the petition) is hereby quashed
and set aside.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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