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SCA/2457/2010 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 2457 of 2010
=========================================
RELIANCE
COMMUNICATIONS LIMITED & 1 - Petitioner(s)
Versus
DAMNAGAR
NAGARPALIKA & 1 - Respondent(s)
=========================================
Appearance :
MR
AMAR N BHATT for
Petitioner(s) : 1 - 2.
RULE SERVED BY DS for Respondent(s) : 1 -
2.
MR PRANAV TRIVEDI, ASSTT. GOVERNMENT PLEADER for Respondent(s)
: 2,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE D.A.MEHTA
and
HONOURABLE
MS.JUSTICE H.N.DEVANI
Date
: 23/04/2010
ORAL
ORDER
(Per
: HONOURABLE MS.JUSTICE H.N.DEVANI)
By
this petition under Article 226 of the Constitution of India the
petitioners challenge the demand raised vide bill dated 4th
December 2009 for Rs.1,65,000/- towards installation charges and
annual fees for the Mobile Tower of the petitioners in the area of
the respondent No.1 municipality.
The
learned Senior Advocate appearing for the petitioner has invited
attention to the bill dated 4th
December 2009, to point out that the same has been issued pursuant
to amended resolution No. NPL/4508/5427/M dated 28.11.2009 issued by
the Government
of Gujarat, Urban Development and Urban Housing Department. It is
submitted that the said Government Resolution dated 28.11.2009 was
subject matter of challenge before this Court and this Court vide
order dated 22nd
April 2010 made in Special Civil Application NO.157 of 2010, has
quashed the said resolution.
Despite
service of rule, there is no appearance on behalf of the respondent
No.1 municipality.
It
is an accepted position that 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 28.11.2009 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 22.04.2010 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 notice dated 4th
December 2009 (Annexure A to the petition) is hereby quashed
and set aside. Rule is made absolute accordingly.
Vide
order dated 26th
February 2010, this Court had directed the petitioner to deposit 20%
of the amount mentioned in the impugned communication produced at
Annexure A to the petition. In case the petitioner has
deposited the said amount, the petitioner may file appropriate
application before the respondent No.1 Municipality for refund of
the same, which shall be decided in accordance with law.
[D.A.MEHTA,
J.]
[HARSHA
DEVANI, J.]
parmar*
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