{"id":179413,"date":"2010-04-22T00:00:00","date_gmt":"2010-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010"},"modified":"2017-04-11T08:26:22","modified_gmt":"2017-04-11T02:56:22","slug":"indus-vs-state-on-22-april-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010","title":{"rendered":"Indus vs State on 22 April, 2010"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Indus vs State on 22 April, 2010<\/div>\n
Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/1898\/2009\t 32\/ 32\tJUDGMENT \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1898 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1566 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 2019 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 799 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 1696 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 4259 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 5170 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9204 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 9205 of 2009\n \n\nWith\n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 2024 of 2009\n \n\n \n \nFor\nApproval and Signature:\n \n \nHONOURABLE\nMR. JUSTICE D.A.MEHTA\n \nHONOURABLE\nMS. JUSTICE H.N.DEVANI\n \n \n=========================================\n<\/pre>\n
1<\/span><\/p>\n
Whether
\n\t\t\tReporters of Local Papers may be allowed to see the judgment ?\n<\/p>\n
2<\/span><\/p>\n
To
\n\t\t\tbe referred to the Reporter or not ?\n<\/p>\n
3<\/span><\/p>\n
Whether
\n\t\t\ttheir Lordships wish to see the fair copy of the judgment ?\n<\/p>\n
4<\/span><\/p>\n
Whether
\n\t\t\tthis case involves a substantial question of law as to the
\n\t\t\tinterpretation of the constitution of India, 1950 or any order
\n\t\t\tmade thereunder ?\n<\/p>\n
5<\/span><\/p>\n
Whether
\n\t\t\tit is to be circulated to the civil judge ?\n<\/p>\n
=========================================<\/p>\n
INDUS
\nTOWERS LTD. – Petitioner(s)<\/p>\n
Versus<\/p>\n
STATE
\nOF GUJARAT & 1 – Respondent(s)<\/p>\n
=========================================
\nAppearance
\n:\n<\/p>\n
MR SHALIN N
\nMEHTA for
\nPetitioner(s) : 1,
\nMR PK JANI, GOVERNMENT PLEADER with MS MYTHILI
\nMEHTA, ASSISTANT GOVERNMENT PLEADER for Respondent(s) : 1 – 2.
\nNOTICE
\nSERVED for Respondent(s) :\n<\/p>\n
2,
\n=========================================<\/p>\n
CORAM
\n\t\t\t:\n<\/p>\n
HONOURABLE
\n\t\t\tMR. JUSTICE D.A.MEHTA<\/p>\n
                              and<\/p>\n
HONOURABLE
\n\t\t\tMS. JUSTICE H.N.DEVANI<\/p>\n
Date
\n:  22\/04\/2010 <\/p>\n
COMMON
\nCAV JUDGMENT
\n                       (Per : HONOURABLE MS. JUSTICE
\nH.N.DEVANI)<\/p>\n
1.\t\tThese
\npetitions under Article 226 of the Constitution of India challenge
\nGovernment Resolution dated 11th
\nDecember, 2008 issued by the Government of Gujarat, Urban Development
\nand Urban Housing Department and demand notices issued pursuant
\nthereto providing for levy and recovery of Annual Permission Fees and
\nInstallation Charges on mobile telecommunication towers in the areas
\ncovered under Municipal Corporations\/Municipalities in the State of
\nGujarat. Since common facts and questions of law are involved in all
\nthese petitions the same were heard together and are being disposed
\nof by this common judgment. For the sake of convenience, the facts
\nare taken from Special Civil Application No.1898 of 2009.\n<\/p>\n
2.\t\t\tThe
\npetitioner is a public limited company incorporated under the
\nCompanies Act, 1956 and holds a licence to operate cellular telecom
\nservices under the provisions of the Telegraph Act, 1885.  For the
\npurpose of providing mobile\/telecommunication service to its
\ncustomers\/subscribers, the petitioner company is required to have
\nBase Trans-receiver Stations installed, which are popularly known as
\nmobile towers. For setting up such mobile towers, the company enters
\ninto agreements with private property owners and thereafter, applies
\nfor permission from the concerned local authority to place towers in
\nthe said properties. Mobile towers are placed on structures, either
\non the open ground or on the terrace of the buildings belonging to
\nprivate persons.  The petitioner company has installed or is in the
\nprocess of installing such equipment in various places in the State
\nof Gujarat.\n<\/p>\n
3.\t\t\tThe
\nDirector of Municipalities issued circular dated 12th
\nMay, 2006, under the heading  Instructions for levying fees for
\ninstallation of mobile telecommunications towers and N.O.C. Permit.
\nThe said circular provided for levy of property tax and permission
\nfee. Based upon the said circular, different municipalities started
\ncharging different permission fees and annual fees.\n<\/p>\n
4.\t\t\tSince
\nthere was no uniform policy prevailing for grant of permission for
\ninstallment of the mobile towers more particularly in the matter of
\ncharging of fees for installment, the Idea Cellular Limited, a
\ncellular company challenged the same by way of a writ petition before
\nthis Court being Special Civil Application No.13653 of 2006. Vide
\njudgment and order dated 16.11.2006, the said writ petition came to
\nbe disposed of interalia with the following directions:-\n<\/p>\n
 (2)\t\tIt
\nis further directed that the State Government
\nthrough Secretary, Urban Development
\nDepartment shall examine the matter for providing of uniform policy
\nin the matter of installation charges and annual fees for cellular
\ntower of the Mobile services provider Company, keeping in view the
\nvarious factors like population of the local authority etc. and such
\ndecision shall be taken as early as possible preferably within period
\nof 3 months from the receipt of the order of this Court.\n<\/p>\n
\tIt
\nappears that in the said petition, the legality and validity of such
\nfees was not an issue and as such, had not been examined by the
\nCourt.\n<\/p>\n
5.\t\t\tThe
\nGeneral Body of the Junagadh Municipal Corporation passed a
\nresolution dated 30.8.2007 interalia making provision for payment of
\npermission fees\/administrative penalty and annual rent in relation to
\nmobile telecommunication towers. The legality and validity of the
\nsaid resolution insofar as the same provided for levy of permission
\nfee, annual rent and administrative penalty for installment of mobile
\ntowers on private property, came to be challenged by Reliance
\nCommunication Limited by way of a writ petition before this Court
\nbeing Special Civil Application No.531 of 2008. Vide judgment and
\norder dated 09th
\nSeptember, 2008, passed by a Division Bench of this Court the said
\npetition came to be allowed and the impugned resolution dated 30th
\nAugust, 2007 insofar as the same provided for determination
\nof permission fees, annual rent and administrative
\npenalty came to be quashed and set aside. The Court
\nheld that levy of permission fee, annual rent and penalty was without
\nauthority of law as the Bombay Provincial Municipal Corporations,
\n1949 (BPMC Act) does not authorize levy of such fees.\n<\/p>\n
6.\t\t\tSubsequently,
\npursuant to the directions issued by the learned Single Judge vide
\norder dated 16.11.2006 made in Special Civil Application No. 13653 of
\n2006, the Government of Gujarat issued a Resolution dated 11.12.2008
\nmaking provision for recovery of installation charges, annual
\npermission fees, administrative charges in lieu of penalty fees etc.
\nby the municipal corporations\/municipalities in relation to mobile
\ntelecommunication towers erected by the cellular companies in the
\nMunicipal Corporation\/Municipality areas of the State.\n<\/p>\n
7.\t\t\tBeing
\naggrieved, the petitioners have moved the present petitions,
\nchallenging the aforesaid Government Resolution and the consequential
\naction taken pursuant thereto.\n<\/p>\n
8.\t\t\tHeard
\nthe learned advocates appearing on behalf of the petitioners as well
\nas the respondents in each of the petitions.\n<\/p>\n
9.\t\t\tThe
\nmain submission advanced by the learned counsel for the petitioners
\nis that the impugned Government Resolution is ultra vires Article 265
\nof the Constitution of India as well as ultra vires the provisions of
\nthe BPMC Act and the Gujarat Municipalities Act, 1963 (Municipalities
\nAct). Elaborating upon the said submission the learned counsel have
\ninvited the attention of the Court to the provisions of Article 265
\nas well as clause (28) of Article 366 of the Constitution of India
\nwhich defines  taxation  to submit that tax includes any tax or
\nimpost, whether general or special or local and that in view of the
\nsaid provisions it is not permissible for the State to levy or
\ncollect any tax or even a duty, cess or fee except by authority of
\nlaw. Attention is also invited to List II of the Seventh Schedule to
\nthe Constitution which enumerates the matters with respect to which
\nthe Legislature of any State has power to make laws and more
\nparticularly to Entry 66 thereof which relates to  Fees in respect
\nof any of the matters in the said List, but not including any fee
\ntaken in any Court  to submit that the State Legislature has the
\npower to levy a fee, which is coextensive with its power to legislate
\nwith respect to substantive matters and that the Legislature while
\nmaking a law relating to a subject matter within its competence can
\nlevy a fee with reference to the services that would be rendered by
\nthe State under such law.  Referring to Entry 5 of List II of
\nSchedule 7 which reads thus    5.\n<\/p>\n
Local Government, that is to say, the constitution and powers of
\nmunicipal corporations, improvement trusts, district boards, mining
\nsettlement authorities and other local authorities for the purpose of
\nlocal self-Government or village administration  it
\nis submitted that it is clear that for levy of permission fee and
\nannual permission fee on mobile telecommunication towers there should
\nbe a specific provision for such a levy in the BPMC Act and the
\nMunicipalities Act.  It is accordingly submitted that it is
\npermissible for the respondent authorities to levy and collect only
\ntax and fee as provided under the provisions of the BPMC Act and the
\nMunicipalities Act.\n<\/p>\n
10.\t\t\tAttention
\nis invited to the provisions of section 127 of
\nthe BPMC Act which provides for  Taxes to be imposed under the Act
\nto submit that the fees sought to be levied by the impugned
\nResolution dated 11th
\nDecember, 2008 namely, annual permission fees and installment charges
\non the mobile telecommunication towers do not fall within any of the
\ncategories enumerated therein.\n<\/p>\n
11.\t\t\tLearned
\ncounsel for the petitioners, have also invited attention to Chapter
\nXXII of the BPMC Act which provides for  Licences and Permits .
\nReferring to the provisions of Part I to Part VIII thereunder, which
\nprovide for the conditions and mode of grant of licences in respect
\nof the categories specified thereunder; as well as to the provisions
\nof section 386 of the BPMC Act which lays down general provisions
\nregarding grant, suspension or revocation of licences and levy of
\nfees etc. it is submitted that in view of the provisions of section
\n386 of the BPMC Act, it is permissible for the Corporation to grant,
\nsuspend or revoke licences or levy fees only in respect of matters
\nspecified in Part I to Part VIII of Chapter XXII.  It is submitted
\nthat Part I to Part VIII do not envisage grant of licences or
\npermission under the Act for the purpose of installation of mobile
\ntowers or poles or other telecommunication equipment. Thus, under the
\nBPMC Act, there is no provision either for grant of any permission or
\nlicence for installation of mobile telecommunication towers etc. nor
\ndoes it contain any provision for levy of any installment fee or
\nannual permission fee on such mobile towers.  It is contended that in
\nview of the provisions of Article 265 of the Constitution which
\nstipulates that no tax shall be levied or collected, except by
\nauthority of law, the levy and collection of annual permission fees
\nand installment charges on mobile telecommunication
\ntowers under the impugned GR dated 11th
\nDecember, 2008 without there being any corresponding authority to
\nlevy such fees under the BPMC Act, is ultra vires the Constitution as
\nwell as the BPMC Act. It is submitted that without there being any
\nprovision in the relevant statute providing for levy of any such fee
\nor impost, it is not permissible under law for the executive to levy
\nany such fee or impost merely on the basis of executive instructions.\n<\/p>\n
12.\t\t\tThe
\nlearned counsel for the petitioners have also invited attention to
\nthe General Development Control Regulations (GDCR) framed by the
\nGovernment of Gujarat under the Gujarat Town Planning and Urban
\nDevelopment Act, 1976 (the Town Planning Act) and more particularly
\nto Chapter 21 thereof which provides for  Control of signs
\n(hoardings) and outdoor display structures and paging tower and
\ntelephone tower and outdoor display structures . Referring to
\nRegulation 21.11 thereof which provides for  Telecommunication
\ninfrastructure (paging, cellular mobiles,  V  Sat, MTNL, etc.) it
\nis submitted that the said Regulation does not provide for levy of
\nany permission fee or recurring permission fee nor  does the same
\nprovide for levy of any kind of fees in respect of telecommunication
\ninfrastructure.\n<\/p>\n
13.\t\t\tNext
\nit is submitted that similar is the case under the Gujarat
\nMunicipalities Act, 1963 inasmuch as the said Act also does not make
\nany provision for the levy and collection of annual permission fees
\nand installment charges on mobile telecommunication towers. Attention
\nis invited to Chapter VIII of the Municipalities Act which provides
\nfor  Municipal Taxation . Referring to the provisions of section
\n99 which falls under the sub-heading  Imposition of taxes  under
\nthe said Chapter and provides for  Taxes that may be imposed  it
\nis pointed out annual permission fees and installation charges on
\nmobile telecommunication towers do not find place among the
\ncategories specified thereunder. Referring to section 118 under
\nsub-heading (3)  Power to charge fees  under the said Chapter, it
\nis submitted that the said provision provides for charging fees when
\nany licence is granted under the Act or any permission is given
\nthereunder in relation to the categories specified thereunder. It is
\npointed out that under the Act there is no provision for grant of
\nlicence in respect of Mobile telecommunication towers nor does the
\npresent case fall within any of the categories in relation to which
\npermission can be granted by the municipality, in the circumstances,
\nthe levy of annual permission fees and installation charges, not
\nbeing backed by any statutory provision under the Municipalities Act
\nis without authority of law and mere executive instructions cannot
\nvest in the concerned local authority the power to levy such fees or
\nimpost without any statutory authority.  Thus, even under the Gujarat
\nMunicipalities Act, no annual permission\/licence fee can be levied on
\nthe mobile telecommunication towers.  It is further submitted that
\nsection 271 of the Act enjoins upon the Municipalities to make rules
\nprescribing the fees to be charged for the licence\/permission granted
\nunder section 118. In the circumstances without making rules
\nprescribing the rates of fees to be charged, the Municipality cannot
\nlevy such fee.\n<\/p>\n
14.\t\t\tReferring
\nto the decision of this Court in Reliance
\nCommunication Limited vs. Junagadh Municipal Corporation<\/a> (supra),
\nit is submitted that this Court has clearly held
\nthat levy of permission fees, annual rent and penalty is without
\nauthority of law as the BPMC Act does not authorize levy of such fees
\ndespite which the State Government has subsequent thereto, issued the
\nGovernment Resolution in question which is contrary to the said
\ndecision.\n<\/p>\n
15.\t\t\tIt
\nis accordingly submitted that the impugned Government Resolution
\nwhich purports to levy Annual Permission Fee and Installation charge
\non Mobile Telecommunication Towers in the Municipal
\nCorporation\/Municipality areas at the rates specified therein is
\nwithout authority of law and is ultra vires the Constitution as well
\nthe provisions of the BPMC Act and the Municipalities Act.\n<\/p>\n
16.\t\t\tAttention
\nis also invited to the provisions of sections 10 and 12 of the Indian
\nTelegraph Act, 1885 to submit that the Telegraph Act and in
\nparticular sections 10 and 12 thereof clearly preclude a local
\nauthority from seeking to recover anything apart from expenses
\nincurred by it from the telegraph authority or a licensee seeking to
\nplace a telegraph line\/posts\/telephone equipment necessary for the
\noperation of a telegraph\/telephone system.  It is submitted that the
\nsaid provisions were enacted to prevent local authorities from making
\nlicences granted by the Central Government unworkable or hampering
\nlicensees by seeking to exact fees for permission.\n<\/p>\n
17.\t\t\tOn
\nthe other hand, Mr. P.K. Jani learned Government Pleader has
\nvehemently opposed the petitions. Reliance is placed upon the
\nprovisions of Article 162 of the Constitution to submit that where
\nthe Legislature is competent to legislate, the State would be
\ncompetent to make a resolution in that regard in exercise of its
\nexecutive power. It is submitted that the challenge to the impugned
\nresolution is barred by acquiescence inasmuch as it was at the
\ninstance of some of the petitioners that the Court had directed the
\nGovernment to frame a policy for maintaining uniformity in the rates
\nimposed by various Municipal Corporations and municipalities in the
\nState; and that it is pursuant to the directions issued by this Court
\nthat the impugned resolution has been framed. It is submitted that
\nprior to issuing the said Government Resolution several meetings were
\nheld and the representatives of the petitioners had remained present
\nbefore the committee in five meetings. It is contended that in the
\ncircumstances, it is now not open to the petitioners to challenge the
\nsaid Government Resolution on the ground of competence of the State
\nto levy such fees.\n<\/p>\n
18.\t\t\tIt
\nis urged that despite the fact that it was well within the knowledge
\nof the petitioners that this Court had struck down the levy of annual
\nrent and permission fees vide judgment and order dated 9\/9\/2008, the
\nsame had not been brought to the notice of the State Government and
\nthat despite the decision of this Court the petitioners and other
\ncompanies have agreed to pay annual fees. In the circumstances, the
\npetitioners are now estopped from contending that the State
\nGovernment has no authority to provide for levy and recovery of such
\nfees and charges.\n<\/p>\n
19.\t\t\tMr.\n<\/p>\n
R.M. Chhaya appearing on behalf of the Rajkot Municipal Corporation
\nhas drawn the attention of the Court to the impugned Government
\nResolution. It is submitted that the Government Resolution can be
\ndivided into different heads. It is submitted that insofar as
\ninstallation charges for mobile telecommunication towers is
\nconcerned, for erection of tower on building, permission is required
\nto be obtained from the Municipal Corporation under the provisions of
\nthe BPMC Act. Reference is made to the provisions of sub-section (5)
\nof section 2 of the BPMC Act which defines  building  to submit
\nthat mobile telecommunication towers would fall within the ambit of
\nthe said provision. Attention is invited to clauses (viii) and (xvii)
\nof section 2 of the Town Planning Act which define  development
\nand  operational construction  respectively. It is further
\nsubmitted that in view of the provisions of section 26 and 29 of the
\nTown Planning Act, it is incumbent to obtain permission for
\ninstallation of mobile telecommunication towers. It is submitted that
\nwhen an application is made for permission to put up a mobile
\ntelecommunication tower, the authority is well within its right to
\nlevy scrutiny fees etc. under the provisions of the Town Planning
\nAct. Hence insofar as installation charges are concerned, the
\ndecision of the Division Bench in the case of Reliance Communication
\nLtd. (supra) would not be applicable. It is also submitted that under
\nthe General Development Control Regulations specific provision has
\nbeen made for deposit and fees in relation to telecommunication
\ninfrastructure (Paging, Cellular Mobiles,  V  Sat, MTNL etc.)
\nunder Regulation 21.11 thereof. It is submitted that in clause (2) of
\nthe said Regulation inadvertently the words  maintenance of the
\nhoarding  appear to have crept in. However, since the said clause
\nappears under Regulation 21.11 it is apparent that the intention of
\nthe Rule making body is to provide for deposit and fee in relation to
\ntelecommunication infrastructure. It is submitted that in the
\ncircumstances, the Municipal Corporations also being urban
\ndevelopment authorities under the TP Act, the Corporations are
\nempowered to levy and collect fees in respect of telecommunication
\ntowers.\n<\/p>\n
20.\t\t\tIn
\nrejoinder, as regards the contention that the impugned Government
\nResolution had been issued in exercise of powers under Article 162 of
\nthe Constitution, the learned counsel for the petitioners have placed
\nreliance upon a decision of the Apex Court in Commissioner
\nof Income Tax, Udaipur, Rajasthan v. McDowell and Company Limited,<\/a>
\n(2009) 10 SCC 755 for the proposition that to support a tax
\nlegislative action is essential, it cannot be levied and collected in
\nabsence of any legislative sanction by exercise of executive power of
\nthe State under Article 73 by the Union or Article 162 by the State.
\nAttention is invited to the provisions of Article 243X of the
\nConstitution which provides for the power to impose tax by, and the
\nFunds, of the Municipalities. It is submitted that unless the
\nLegislature of a State in exercise of powers under Article 243X of
\nthe Constitution authorizes Municipalities in the State to levy,
\ncollect and appropriate taxes, duties, tolls and fees, in the light
\nof the provisions of Article 265, which expressly prohibit the levy
\nand collection of tax except by authority of law, it is not
\npermissible for any municipality to impose any tax or fee.  It is
\nsubmitted that the expression  law  is defined under Article
\n13(3)(a) to include any Ordinance, order, bye-law, rule, regulation,
\nnotification, custom or usage having in the territory of India the
\nforce of law. It is submitted that the opening words of Article 162
\nare  subject to the provisions of this Constitution , hence
\nexercise of powers under the said provision is subject to the other
\nprovisions,
\nincluding Article 265 and 243X of the Constitution. Hence, any levy
\nhas to be under legislative power and in absence of the same the levy
\nof Annual Permission fee and installation charges in exercise of
\npowers under Article 162 is bad in law and deserves to be struck
\ndown. Insofar as the contentions regarding acquiescence and estoppel
\nare concerned, it is submitted that it is well settled that there can
\nbe no estoppel against statute. It is submitted that there was no
\nacquiescence on the part of the petitioners. However, assuming
\nwithout admitting that there was acquiescence on the part of the
\npetitioners that by itself would not render an otherwise
\nunconstitutional levy, valid.\n<\/p>\n
21.\t\t\tA
\nperusal of the impugned Government Resolution shows that the same has
\nbeen issued in the matter of determining installation charge and
\nannual fee etc. within the limits of Municipal
\nCorporations\/Municipalities. Under the said resolution it has been
\ndecided to fix the rates of installation charge as well as annual
\npermission fee in respect of mobile telecommunication towers erected
\nby Cellular Companies in the Municipal Corporation\/Municipal areas of
\nthe State as provided there under. The resolution then provides for\n<\/p>\n
(i) initial installation charge at the rate of Rs.25,000\/- per tower;\n<\/p>\n
(ii) annual permission fee according to the height of a tower at the
\nrate of Rs.1000\/- per metre; (iii) fees for amended permission at the
\nrate of 10% of the prevailing rate; (iv) where towers have been
\nerected on buildings constructed without building use permission or
\nwhere towers have been erected without permit, a fee at the rate of
\nthe prevailing annual permission fee, additionally Rs.50,000\/-
\nadministrative charges towards penalty fee; (v) increase in rates as
\nper (i) and (ii) above-annual fee to be computed by increasing the
\nannual fee by 10%  every two years; (vi) in respect of recovery of
\nproperty tax on telecommunication towers it is provided that as
\nannual fees are being recovered no property tax shall be recovered in
\nrespect of towers.\n<\/p>\n
22.\t\t\tThe
\naforesaid Government Resolution is challenged to the extent it seeks
\nto levy and recover Annual Permission fees and Installation Charges
\non Mobile Telecommunication Towers in the areas falling under
\nMunicipal Corporation\/Municipalities in the State.\n<\/p>\n
23.\t\t\tIn
\nthe light of the submissions advanced on behalf of the respondent
\nState, it is apparent that the impugned Government Resolution has
\nbeen issued in exercise of powers under Article 162 of the
\nConstitution of India. Article 162 reads thus:\n<\/p>\n
 162.
\nExtent of executive power of State. Subject
\nto the provisions of this Constitution, the executive power of a
\nState shall extend to the matters with respect to which the
\nLegislature of the State has power to make laws:\n<\/p>\n
Provided
\nthat in any matter with respect to which the Legislature of a State
\nand Parliament have power to make laws, the executive power of the
\nState shall be subject to, and limited by, the executive power
\nexpressly conferred by this Constitution or by any law made by
\nParliament
\nupon the Union or authorities thereof.\n<\/p>\n
Thus,
\nunder Article 162 the executive power of the State extends to the
\nmatter which the Legislature of the State has power to make laws.
\nHowever, as the opening portion of the  said provision suggests, the
\npower conferred under Article \t162 is subject to the provisions of
\nthe Constitution. Thus, in case any provision of the Constitution
\nprovides   otherwise, the       executive power of the State would
\nstand circumscribed to that extent.\n<\/p>\n
24.\t\t\tIn
\nthis regard it may be germane to refer to the provisions of Articles
\n265 and 243-X of the Constitution which read thus:\n<\/p>\n
\t 265.
\nTaxes not to be imposed save by authority of \tlaw. No
\ntax shall be levied or collected except by \tauthority \tof law.\n<\/p>\n
 243-X.\n<\/p>\n
Power to impose taxes by, and Funds of, the Municipalities. The
\nLegislature of a State may, by law, <\/p>\n
\t(a)\tauthorise
\na Municipality to levy, collect and appropriate such taxes, duties,
\ntolls and fees in accordance with such procedure and subject to such
\nlimits;\n<\/p>\n
\t(b)\tassign
\nto a Municipality such taxes, duties, tolls and fees levied and
\ncollected by the State Government for such purposes and subject to
\nsuch conditions
\nand limits;\n<\/p>\n
\t(c)\tprovide
\nfor making such grants-in-aid to the Municipalities
\nfrom the Consolidated Fund of the State;\n<\/p>\n
and<\/p>\n
\t(d)
\n provide for constitution of such Funds for crediting all
\nmoneys received, respectively, by or on behalf of the
\n   Municipalities  and  also  for  the  withdrawal  of  such
\nmoneys therefrom, as may be specified in the law.\n<\/p>\n
25.\t\t\tOn
\na plain reading of Article 265 of the Constitution, it is apparent
\nthat under the said Article there is an express bar against levy or
\nrecovery of tax except by authority of law. The expression  law
\nhas been defined under Article 13(3)(a) to include any Ordinance,
\norder, bye-law, rule, regulation, notification, custom or usage
\nhaving in the territory of India the force of law. The question that
\ntherefore, arises is whether the impugned Government Resolution falls
\nwithin any of the categories enumerated under Article 13(3)(a) or
\nwould otherwise fall within the inclusive definition. The impugned
\nresolution evidently is neither an Ordinance, bye-law, rule,
\nregulation, notification, custom nor usage having the force of law in
\nthe territory of India. At best it may fall within the definition of
\norder in the ordinary sense. However, the expression  order  as
\nemployed in Article 13(3)(a) envisages orders made in exercise of
\nstatutory powers conferred by statutory provisions but not
\nadministrative orders having no statutory sanction. In the
\ncircumstances, it cannot be stated that the impugned resolution is
\nissued under authority of law as envisaged under Article 265.\n<\/p>\n
26.\t\t\tTo
\nput it differently insofar as legislative competence is concerned,
\nthere is no dispute that the State Legislature is competent to enact
\na legislation providing for the imposts in question.  In view of the
\nprovisions of Article 162 of the Constitution, the executive power of
\nthe State Government is co-extensive with the legislative power of
\nthe State legislature.  If the State legislature has power to enact
\nlaws on a matter enumerated in the State List or in the Concurrent
\nList the State has executive power to deal with those matters subject
\nto other provisions of the Constitution.  If a subject matter falls
\nwithin the legislative competence of State legislature, the exercise
\nof executive power by the State Government is not confined, as even
\nin the absence of a law being made, the State Government is competent
\nto deal with the subject matter in exercise of its executive power.
\nHowever, Article 162, itself carves out an exception, viz., the
\nexecutive power is subject to the other provisions of the
\nConstitution.  Article 265 imposes a limitation on the taxing power
\nof the State insofar as it provides that the State shall not levy or
\ncollect a tax, except by authority of law, that is to say, a tax
\ncannot be levied or collected by a mere executive fiat.  Thus, the
\nState under the garb of exercise of powers under Article 162, cannot
\nlevy any tax, fees, cess etc. unless the same is backed by a
\nstatutory enactment.\n<\/p>\n
27.\t\t\tApart
\nfrom Article 265 which prohibits levy or recovery of tax except by
\nauthority of law, Article 243-X specifically provides that the
\nLegislature
\nof a State may, by law authorise a Municipality to levy, collect and
\nappropriate such taxes, duties, tolls and fees in accordance with
\nsuch procedure and subject to such limits as may be specified by law.
\nThus on a conjoint reading of Articles 265 and 243-X, there is a
\nprohibition
\nagainst levy and recovery of tax by a Municipality unless the
\nLegislature of the State in exercise of powers under Article 243-X
\nauthorises the Municipality to levy and collect such taxes, fees etc.
\nIn the present case, a bare reading of the impugned Government
\nResolution indicates that the same has not been issued in exercise of
\nany statutory power. However, even if the statutory provision under
\nwhich the power is derived is not mentioned, so long as there is some
\nstatutory provision under which such power is derived, the Government
\nResolution would not stand vitiated. In the circumstances it would
\nnext be required to be examined as to whether there is any statutory
\nprovision which vests in the State or the Municipal Corporations or
\nMunicipalities, the power to levy and collect annual permission fees
\nand installation charges for erection of mobile telecommunication
\ntowers put up by cellular companies.\n<\/p>\n
28.\t\t\tIn
\nthis regard it may be pertinent to refer to certain provisions of the
\nBPMC Act and the Municipalities Act. Chapter XI of the BPMC Act
\nprovides for  Municipal Taxation  and section 127 thereof lays
\ndown the categories of taxes which may be imposed by the Corporation.
\nSub-section (1) of section 127 provides for imposition of (a)
\nproperty taxes and (b) a tax on vehicles, boats and animals for the
\npurposes of the Act. Sub-section (2) thereof lays down that in
\naddition to the taxes specified in sub-section (1) the Corporation
\nmay for the purposes of the Act and subject to the provisions thereof
\nimpose the following taxes, namely (a) octroi; (c) a tax on dogs; (d)
\na theatre tax; (e) a toll on animals and vehicles entering the City;\n<\/p>\n
(f) any other tax (not being a tax on professions, trades, calling
\nand employment) or a tax on payments for admission to any
\nentertainment which the State Legislature has power under the
\nConstitution to impose in the State. Sub-section (3) of section 127
\nlays down that the municipal taxes shall be assessed and levied in
\naccordance with the provisions of the Act and rules. On a plain
\nreading of the aforesaid provision it is apparent that annual
\npermission fee and installation charges are not among the categories
\nspecifically named thereunder. However, under clause (f) of
\nsub-section (2) other levies in the nature of tax could be levied.
\nTherefore, it has to be ascertained as to whether the imposts in
\nquestion fall within the category of  other taxes  under section
\n127(2). In this regard it may be pertinent to note that under the Act
\nspecific provision is made for assessment and levy of the specified
\ncategories enumerated thereunder. Insofar as  other taxes  are
\nconcerned, section 149 of the BPMC Act provides for the procedure to
\nbe followed in levying other taxes. The section lays down that in the
\nevent of the Corporation deciding to levy any of the taxes specified
\nin sub-section (2) of section 127, it shall make detailed provision
\nin so far as such provision is not made by the Act, in the form of
\nrules, modifying, amplifying or adding to the rules at the time in
\nforce in the matters enumerated thereunder which interalia are the
\nnature of tax, the rates thereof, the class or classes of persons,
\narticles or properties liable thereto and exemptions therefrom, if
\nany to be granted; the system of assessment and method of recovery
\nand the powers exercisable by the Commissioner or other officers in
\nthe collection of the tax; the information required to be given of
\nliability to tax; the penalties to which persons evading liability or
\nfurnishing incorrect and misleading information or failing to furnish
\ninformation may be subjected; such other matters, not inconsistent
\nwith the provisions of the Act as may be deemed expedient by the
\nCorporation. The proviso to sub-section (1) of section 149 lays down
\nthat no rules shall be made by the Corporation in respect of any tax
\nunder clause (f) of sub-section (2) of section 127 unless the State
\nGovernment shall have first given provisional approval for selection
\nof tax by the Corporation. The subsequent provisions lay down the
\nprocedure for sanction of the rules submitted by the Corporation by
\nthe State Government. Thus, for the purpose of levying tax under the
\nheading  other taxes  an elaborate procedure is required to be
\nfollowed and specific provisions have to be made. In the present
\ncase, it is an admitted position that in respect of the imposts in
\nquestion no such provisions for levy and collection have been made in
\nthe rules. Thus, the said imposts clearly do not fall within the
\ncategory of other taxes so as to attract the provisions of section
\n127 of the BPMC Act.\n<\/p>\n
29.\t\t\tSince
\nthe levy in question is termed annual permission fee and installation
\ncharge, it may be pertinent to refer to the provisions of Chapter
\nXXII of the BPMC Act which provides for  Licences and Permits .
\nThe said Chapter is subdivided into nine parts as under:\n<\/p>\n
Licensing
\n\tof Surveyors, Architects or Engineers, Structural Designers, Clerks
\n\tof Works and Plumbers;\n<\/p>\n
Trade
\n\tlicences and other licences for keeping animals and certain
\n\tarticles;\n<\/p>\n
Licences
\n\tfor sale in municipal markets;\n<\/p>\n
Licences
\n\tfor private markets;\n<\/p>\n
Licences
\n\tfor sale of Articles of Food outside of Markets;\n<\/p>\n
Licensing
\n\tof Butchers, etc.;\n<\/p>\n
Licensing
\n\tfor diary products;\n<\/p>\n
Licences
\n\tfor hawking, etc.; and <\/p>\n
General
\n\tProvisions regarding licences and Permits.\n<\/p>\n
30.\t\t\tA
\nbare perusal of the categories enumerated under Chapter XXII makes it
\namply clear that none of the categories provide for licences or
\npermits in relation to annual permission fee or installation charges.
\nNo other provision under the BPMC Act is pointed out by the learned
\nadvocates for the respondents which would enable the respondents to
\nlevy and collect annual permission fee and installation charges for
\nmobile telecommunication towers put up by Cellular companies. Thus,
\ninsofar as the BPMC Act is concerned, the same does not contain any
\nprovision which provides for levy and collection of annual permission
\nfee and installation charge in respect of mobile telecommunication
\ntowers.\n<\/p>\n
31.\t\t\tA
\nfaint attempt had been made to suggest that the provisions of section
\n253 and 254 of the BPMC Act which provides for  Notice to be given
\nto Commissioner of intention to erect building  and  Notice to be
\ngiven to Commissioner of intention to make additions, etc. to
\nbuilding  both of which fall under Chapter XV under the heading
\n Building Regulations , would be applicable to erection of mobile
\ntelecommunication towers. However, the said contention is irrelevant
\ninasmuch as in the present case we are concerned with the imposition
\nof annual permission fee and installation charges and not with grant
\nor breach of building permission.\n<\/p>\n
32.\t\t\tIt
\nhas been contended on behalf of the respondents that in view of the
\nfact that under the provisions of section 26 and 29 of the Town
\nPlanning Act, it is incumbent to obtain permission for installation
\nof mobile telecommunication towers and that while processing an
\napplication for permission to put up a mobile telecommunication
\ntower, the authority is well within its right to levy scrutiny fees
\netc. under the provisions of the Town Planning Act. Therefore,
\ninsofar as installation charges are concerned, the decision of the
\nDivision Bench in the case of Reliance Communication Limited (supra)
\nwould not be applicable. In this regard it may be pertinent to refer
\nto Chapter 3 of the GDCR which provides for  Procedure for Securing
\nDevelopment . Regulation 3.1 thereof provides for  Application
\nfor development permission  and Regulation 3.2 makes provision for
\n scrutiny fee . Regulations 3.2.1 to 3.2.7 lay down different
\ntypes of development and the corresponding rates of scrutiny fee.
\nHowever, none of the types of development referred to in the said
\nregulations are in respect of mobile telecommunication towers. Hence,
\nthere is no provision for scrutiny fee in relation to erection of
\nmobile telecommunication towers. In the circumstances, the said
\nprovisions cannot be stated to be the source of authority to levy
\ninstallation charge.\n<\/p>\n
33.\t\t\tA
\nperusal of the GDCR shows that specific provision is made in respect
\nof Telecommunication infrastructure which includes cellular mobiles,
\nunder Chapter 21 thereof, and more particularly under Regulation
\n21.11. However, while sub-regulation (1) provides for regulation of
\nthe location, type of structure, requirement and projection in
\nrespect of such structures, sub-regulation (2) which provides for
\n Deposit and Fees  lays down that the fees for erection and
\nmaintenance of  the
\nhoarding
\nshall be charged as decided by Competent Authority from time to time.
\nThus, insofar as the provision for deposit
\nand fees is concerned, the same is in respect of hoardings and not
\ntelecommunication infrastructure. In this regard it has been
\nsubmitted by the learned advocates for the respondents, there may be
\nan error on the part of the rule making authority. In reply to the
\nsaid contention, the learned advocates for the petitioners have
\nplaced reliance upon the decision of the Supreme Court in Janapada
\nSabha Chhindwara v. The Central Provinces Syndicate Ltd. and Another,<\/a>
\n1970 (1) SCC 509
\nand more particularly paragraph 7 thereof, wherein it has been held
\nthus:\n<\/p>\n
\t\t xxx.\n<\/p>\n
If the
\nAct does not by the plain language used \t\ttherein carry out the
\nobject, the Court will not be \t\tjustified in supplying deficiencies
\nin the Act. As ob\t\tserved by Rowlatt, J., in Cape
\nBrandy Syndicate
\nv. \t\tCommissioners
\nof Inland Revenue:\n<\/p>\n
\t\t In
\na taxing Act one has to look merely at what is \t\tclearly said. There
\nis no room for any intendment. \t\tThere  is  no  equity  about a tax.
\nThere is no pre-\t\tsumption  as  to  a  tax. Nothing  is  to be read
\nin, \t\tnothing  is  to be implied. One can only look fairly \t\tat the
\nlanguage used.\n<\/p>\n
It
\nmay also be apt to refer to the following observations made by the
\nSupreme Court in Nalinakhya
\nBysack v. Shyam Sunder,
\nAIR<\/a> 1953 SC 148:\n<\/p>\n
 It
\nmust always be borne in mind, as said by Lord Halsbury in
\nCommissioner
\nfor Special Purposes of Income Tax v.\n<\/p>\n
Pemsel,
\nthat it is not competent to any court to proceed upon the assumption
\nthat the legislature has made a mistake. The Court must proceed
\non the footing that the legislature intended what it has said. Even
\nif there is some defect in the phraseology used by the legislature
\nthe court cannot, as pointed out in Crawford
\nv. Spooner,
\naid the legislature s defective phrasing of an
\nAct or add and amend or, by construction, make up deficiencies which
\nare left in the Act. Even where there is a casus omissus,
\nit is, as said by Lord Russell of Killowen in Hansraj
\nGupta v.\n<\/p>\n
Official
\nLiquidator of Dehra Dun-Mussoorie Electric Tramway Co., Ltd.,
\nfor others than the courts to remedy the defect.\n<\/p>\n
Thus,
\nif at all there is any mistake in the wording of Regulation 21.11
\n(2), it is for the concerned rule making body to correct the same.
\nInsofar as the Court is concerned, the Court has to go by the literal
\nmeaning of the provision. On a plain reading of sub-regulation (2) of
\nRegulation 21.11, it is apparent that the same does not in any manner
\nprovide for deposit or fees in relation to telecommunication
\ninfrastructure. Hence, the power to levy annual permission fees and
\ninstallation charges does not originate from the said provision.\n<\/p>\n
34.\t\t\tIn
\nthe light of the aforesaid discussion, it is apparent that insofar as
\nMunicipal Corporations are concerned, the respondents have not been
\nin a position to point out any statutory force behind the levy of
\nannual permission fee and\/or installation charges. The Apex Court in
\nCommissioner
\nof Income Tax, Udaipur v. McDowell and Company Limited<\/a>
\n(supra) has held thus :\n<\/p>\n
 Tax ,
\n duty ,  cess  or  fee  constituting a class denotes to
\nvarious kinds of imposts by State in its sovereign power of taxation
\nto raise revenue for the State. Within the expression of each specie
\neach expression denotes different kind of impost depending on the
\npurpose for which they are levied. This power
\ncan be exercised in any of its manifestation only under any
\nlaw authorising levy and collection of tax as envisaged under Article
\n265 which uses only the expression that no  tax  shall be levied
\nand collected except authorised by law. It in its elementary meaning
\nconveys that to support a tax legislative action is essential, it
\ncannot be levied and collected in the absence of any legislative
\nsanction by exercise of executive power of State under Article 73 by
\nthe Union or Article 162 by the State.\n<\/p>\n
In
\nthe light of the law laid down by the Supreme Court in the decision
\ncited hereinabove, it is apparent that in absence of legislative
\nsanction, the State Government in exercise of its executive power
\nunder Article 162 cannot levy and collect annual permission fee and
\ninstallation charges in relation to mobile telecommunication towers
\nput up by Cellular companies.\n<\/p>\n
35.\t\t\tInsofar
\nas Municipalities are concerned, it has been contended on behalf of
\nthe respondent municipalities that the power to levy annual
\npermission fee and installation charges flows from section 99 and\/or
\nsection 118 of the Municipalities Act.\n<\/p>\n
Section 99 of the Municipalities Act falls under Chapter VIII of the
\nAct which provides for  Municipal Taxation  under sub-heading (1)
\nwhich provides for imposition of taxes. Section 99 makes provision
\nfor imposition of taxes by a municipality and enumerates the specific
\ncategories. A perusal of section 99 shows that annual fee and\/or
\ninstallation charges for putting up mobile telecommunication towers
\nby cellular companies does not find place among the categories
\nenumerated thereunder. Clause (xv) of section 99 provides for any
\nother tax. However, as in the case of the BPMC Act, before levying
\nany other tax, the municipality is required to follow the procedure
\nlaid down under section 101 of the Municipalities Act which provides
\nfor  Procedure preliminary to imposing tax . In the present case
\nit is an admitted position that no procedure under section 101 has
\nbeen followed for the purpose of levying annual permission fee and\/or
\ninstallation charges, hence the power to levy such imposts cannot be
\ntraced to section 99 of the Municipalities Act. The other provision
\non which reliance has been placed to justify the impost is section
\n118 of the Municipalities Act which provides for charging of fees for
\ncertain licences. The said provision provides for charging fees when
\nany licence is granted under the Act or when permission is given
\nthereunder for making any temporary erection or putting up any
\nprojection, or for the temporary occupation of any public street or
\nother land vested in the municipality. A perusal of the provisions of
\nthe Municipalities Act shows that there are only two sections which
\nmake provision for issuing licences, viz. section 207 which provides
\nfor  Licensing markets and slaughter houses  and section 213
\nwhich provides for  Licensing of dairies .  Thus, insofar as
\ngrant of licence is concerned the provisions of section 118 would
\nclearly not be attracted.\n<\/p>\n
Insofar as permission under section 118 is concerned, the same is
\nrequired to be obtained in respect of the categories mentioned
\nthereunder. Dealing with each category individually, insofar as
\nmaking temporary erection or putting up any projection is concerned,
\nit is nobody s case that the mobile telecommunication towers are
\ntemporary erections. As regards putting up any projection is
\nconcerned, section 176 of the Municipalities Act provides for
\npermission necessary for certain projections. Under the said
\nprovision owners or occupiers of buildings in public streets may be
\ngiven permission to put up open verandahs, balconies or rooms to
\nproject from any upper storey of such buildings, to an extent not
\nexceeding 1.24 meters beyond the line of the plinth or basement wall
\nof the building. Thus, written permission qua projections envisages
\nprojections beyond the line of the plinth or basement wall of the
\nbuilding, which is not so in the present case. The last category is
\nfor the temporary occupation of any public street or other land
\nvested in the municipality. The present case evidently does not fall
\nin the said category since mobile telecommunication towers are not
\nput up by way of temporary occupation on any public street or land
\nvested in the municipality. In the circumstances, the power to levy
\nannual permission fee and\/or installation charges also cannot be
\ntraced to the provisions of section 118 of the Municipalities Act. No
\nother provision is pointed out to the Court. Thus, it is apparent
\nthat there is no provision under the Gujarat Municipalities Act,
\nwhich authorises the authorities thereunder to levy and collect
\nannual permission fee and installation charges in respect of mobile
\ntelecommunication towers.\n<\/p>\n
36.\t\t\tIt
\nhas been contended on behalf of the respondents that
\nthe impugned Government Resolution has been issued pursuant to
\ndirections of the High Court in Special Civil Application No.13653 of
\n2006 whereby the State
\nhas come out with a uniform policy providing for levy and recovery of
\ninstallation charges, annual permission fees, administrative charges
\nin lieu of penalty fees etc. However as discussed in the preceding
\nparagraphs in view of the provisions of section 265 of the
\nConstitution, no tax can be levied or collected unless the same is
\nbacked by some statutory force. Merely because the Government
\nResolution has been issued pursuant to directions of this Court would
\nnot vest power in the Municipal Corporations and Municipalities to
\nimpose and recover tax from the petitioners. The directions issued by
\nthe Court proceed on the footing that the uniform policy to be
\nformulated shall be as permissible in law.  The Executive cannot use
\nthe directions of the Court for doing something which the law does
\nnot permit.  The Court having not issued any such direction, namely
\nto act contrary to law, the Executive cannot be permitted to contend
\nso, and cannot be permitted to usurp powers vested specifically in
\nthe legislature by the Constitution of India.  Besides, it may be
\nnoticed that there was a supervening circumstance, between the
\nissuance of the directions by this Court and the issuance of the
\nimpugned Government Resolution in the form of a decision of this
\nCourt rendered on 9.09.2008 in Special Civil Application No.531 of
\n2008 laying down that in absence of any statutory provision
\npermitting the respondents to impose permission fees in respect of
\nMobile Towers, the levy of permission fees is without authority of
\nlaw and violative of Article 265 of the Constitution. The Court had
\nalso held that administrative penalty could not have been imposed
\nwithout first enacting any provision as to under what circumstances
\nsuch penalty could be imposed. However, despite the aforesaid binding
\nprecedent of this Court, the respondent State authorities have issued
\nthe present Government Resolution which is directly in conflict with
\nthe law laid down in the said decision and have provided for levy of
\nannual permission fee, installation charges and administrative charge
\ntowards penalty.\n<\/p>\n
37.\t\t\tThe
\nprovision for recovering administrative charge in lieu of penalty is
\nalso not sustainable in view of the law laid down in the aforesaid
\ndecision, inasmuch as unless there is a provision for imposition of
\npenalty, the question of recovering such penalty would not arise.
\nWhen there is no question of recovery of penalty the question of
\nadministrative charges in lieu of penalty also would not arise.\n<\/p>\n
38.\t\t\tInsofar
\nas the contention regarding estoppel and acquiescence is concerned,
\nit is settled legal position that there cannot be estoppel against
\nstatute. Besides in view of the law laid down by this Court there
\ncannot be any acquiescence on the part of the petitioners. Moreover,
\nif the impugned Government Resolution is not in accordance with law,
\nit is bad in law. Powers cannot be derived by consent and an impost
\ncannot be levied by concession.\n<\/p>\n
39.\t\t\tBefore
\nparting it may be noticed that the BPMC Act has been enacted in the
\nyear 1949 whereas the Gujarat Municipalities Act, 1963 has been
\nenacted in 1963. At the relevant time there were no mobile phones,
\nhence the question of making any provision for mobile
\ntelecommunication towers did not arise. With the advent of new
\ntechnology which was not envisaged when the legislation was framed,
\nnecessary amendments are required to be made in the Acts making
\nprovision for bringing the technological advances within the purview
\nof the Acts. However, till such exercise is undertaken by the
\nLegislature, it is not permissible for the respondent authorities to
\nlevy and collect taxes or fees in respect of mobile telecommunication
\ntowers which do not find place in the corresponding statutes.\n<\/p>\n
40.\t\t\tIn
\nview of the above discussion, it is hereby declared that the impugned
\nGovernment Resolution dated 11th December, 2008 issued by
\nthe Government of Gujarat Urban Development and Urban Housing
\nDepartment is ultra vires the provisions of Article 265 of the
\nConstitution as well as ultra vires the provisions of the Bombay
\nProvincial Municipal Corporations Act, 1949 as well as the Gujarat
\nMunicipalities Act, 1963.  In
\nthe aforesaid premises, the impugned Government Resolution being
\ncontrary to the decision of this Court in Reliance Communications
\nLimited (supra) as well as having been issued without any authority
\nof law cannot be sustained and deserves to be quashed and set aside.\n<\/p>\n
41.\t\t\tIn
\nthe result the petitions succeed and are accordingly allowed. The
\nimpugned Government Resolution dated 11th December, 2008 issued by
\nthe Government of Gujarat, Urban Development and Urban Housing
\nDepartment as well as the demand notices issued pursuant thereto are
\nhereby quashed and set aside. Rule is made absolute accordingly with
\nno order as to costs.\n<\/p>\n
42.\t\t\tIn
\nSpecial Civil Application No.2024 of 2009, the petitioner
\nhas challenged demand notices pursuant to the impugned Government
\nResolution dated 11th
\nDecember, 2008.  The petitioner has already challenged Government
\nResolution dated 11th
\nDecember, 2008.  In view of the fact that the impugned Government
\nResolution which forms the basis for the demand notices in question
\nhas been quashed and set aside, the impugned demand notices cannot be
\nsustained.\n<\/p>\n
43.\t\t\tThe
\npetition is accordingly allowed.  The impugned demand notices dated
\n01st
\nJanuary, 2009 and 02nd
\nFebruary, 2009 are hereby quashed and set aside.  Rule is made
\nabsolute.\n<\/p>\n
44.\t\tRegistry
\nis directed to place a copy of this judgment in each petition.\n<\/p>\n
\t\t\t\t\t\t\t\t(
\nD.A. Mehta, J. )<\/p>\n
\t\t\t\t\t\t\t\t(
\nHarsha Devani, J. )<\/p>\n
hki<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Indus vs State on 22 April, 2010 Author: D.A.Mehta,&Nbsp;Honourable Ms.Justice H.N.Devani,&Nbsp; Gujarat High Court Case Information System Print SCA\/1898\/2009 32\/ 32 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 1898 of 2009 With SPECIAL CIVIL APPLICATION No. 1566 of 2009 With SPECIAL CIVIL APPLICATION No. 2019 of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-179413","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nIndus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Indus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2010-04-21T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2017-04-11T02:56:22+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"40 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\\\/\\\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010#article\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Indus vs State on 22 April, 2010\",\"datePublished\":\"2010-04-21T18:30:00+00:00\",\"dateModified\":\"2017-04-11T02:56:22+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010\"},\"wordCount\":8006,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"articleSection\":[\"Gujarat High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010\",\"name\":\"Indus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\"},\"datePublished\":\"2010-04-21T18:30:00+00:00\",\"dateModified\":\"2017-04-11T02:56:22+00:00\",\"breadcrumb\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/indus-vs-state-on-22-april-2010#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Indus vs State on 22 April, 2010\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#website\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.\",\"publisher\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\"},\"alternateName\":\"Free judgements of Supreme Court & High Court of India | Legal India\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Organization\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#organization\",\"name\":\"Judgements of Supreme Court & High Court | Legal India\",\"alternateName\":\"Legal India\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/\",\"logo\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\",\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"contentUrl\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/wp-content\\\/uploads\\\/sites\\\/5\\\/2025\\\/09\\\/legal-india-icon.jpg\",\"width\":512,\"height\":512,\"caption\":\"Judgements of Supreme Court & High Court | Legal India\"},\"image\":{\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/logo\\\/image\\\/\"},\"sameAs\":[\"https:\\\/\\\/www.facebook.com\\\/LegalindiaCom\\\/\",\"https:\\\/\\\/x.com\\\/Legal_india\"]},{\"@type\":\"Person\",\"@id\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/#\\\/schema\\\/person\\\/0bfdffe9059fb8bb24a86d094609c5ea\",\"name\":\"Legal India Admin\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"url\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"contentUrl\":\"https:\\\/\\\/secure.gravatar.com\\\/avatar\\\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g\",\"caption\":\"Legal India Admin\"},\"sameAs\":[\"https:\\\/\\\/www.legalindia.com\",\"https:\\\/\\\/x.com\\\/legaliadmin\"],\"url\":\"https:\\\/\\\/www.legalindia.com\\\/judgments\\\/author\\\/legal-india-admin\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Indus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010","og_locale":"en_US","og_type":"article","og_title":"Indus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India","og_url":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010","og_site_name":"Free Judgements of Supreme Court & High Court | Legal India","article_publisher":"https:\/\/www.facebook.com\/LegalindiaCom\/","article_published_time":"2010-04-21T18:30:00+00:00","article_modified_time":"2017-04-11T02:56:22+00:00","og_image":[{"width":512,"height":512,"url":"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1","type":"image\/jpeg"}],"author":"Legal India Admin","twitter_card":"summary_large_image","twitter_creator":"@legaliadmin","twitter_site":"@Legal_india","twitter_misc":{"Written by":"Legal India Admin","Est. reading time":"40 minutes"},"schema":{"@context":"https:\/\/schema.org","@graph":[{"@type":"Article","@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010#article","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010"},"author":{"name":"Legal India Admin","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea"},"headline":"Indus vs State on 22 April, 2010","datePublished":"2010-04-21T18:30:00+00:00","dateModified":"2017-04-11T02:56:22+00:00","mainEntityOfPage":{"@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010"},"wordCount":8006,"commentCount":0,"publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"articleSection":["Gujarat High Court","High Court"],"inLanguage":"en-US","potentialAction":[{"@type":"CommentAction","name":"Comment","target":["https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010#respond"]}]},{"@type":"WebPage","@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010","url":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010","name":"Indus vs State on 22 April, 2010 - Free Judgements of Supreme Court & High Court | Legal India","isPartOf":{"@id":"https:\/\/www.legalindia.com\/judgments\/#website"},"datePublished":"2010-04-21T18:30:00+00:00","dateModified":"2017-04-11T02:56:22+00:00","breadcrumb":{"@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010#breadcrumb"},"inLanguage":"en-US","potentialAction":[{"@type":"ReadAction","target":["https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010"]}]},{"@type":"BreadcrumbList","@id":"https:\/\/www.legalindia.com\/judgments\/indus-vs-state-on-22-april-2010#breadcrumb","itemListElement":[{"@type":"ListItem","position":1,"name":"Home","item":"https:\/\/www.legalindia.com\/judgments\/"},{"@type":"ListItem","position":2,"name":"Indus vs State on 22 April, 2010"}]},{"@type":"WebSite","@id":"https:\/\/www.legalindia.com\/judgments\/#website","url":"https:\/\/www.legalindia.com\/judgments\/","name":"Free Judgements of Supreme Court & High Court | Legal India","description":"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. A comprehensive database for lawyers, advocates, and law students.","publisher":{"@id":"https:\/\/www.legalindia.com\/judgments\/#organization"},"alternateName":"Free judgements of Supreme Court & High Court of India | Legal India","potentialAction":[{"@type":"SearchAction","target":{"@type":"EntryPoint","urlTemplate":"https:\/\/www.legalindia.com\/judgments\/?s={search_term_string}"},"query-input":{"@type":"PropertyValueSpecification","valueRequired":true,"valueName":"search_term_string"}}],"inLanguage":"en-US"},{"@type":"Organization","@id":"https:\/\/www.legalindia.com\/judgments\/#organization","name":"Judgements of Supreme Court & High Court | Legal India","alternateName":"Legal India","url":"https:\/\/www.legalindia.com\/judgments\/","logo":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/","url":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","contentUrl":"https:\/\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg","width":512,"height":512,"caption":"Judgements of Supreme Court & High Court | Legal India"},"image":{"@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/logo\/image\/"},"sameAs":["https:\/\/www.facebook.com\/LegalindiaCom\/","https:\/\/x.com\/Legal_india"]},{"@type":"Person","@id":"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea","name":"Legal India Admin","image":{"@type":"ImageObject","inLanguage":"en-US","@id":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","url":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","contentUrl":"https:\/\/secure.gravatar.com\/avatar\/4faa9d728ed1af3b73d52225c7f12901ac726fe6f7ea0a3348a1d51f3a930987?s=96&d=mm&r=g","caption":"Legal India Admin"},"sameAs":["https:\/\/www.legalindia.com","https:\/\/x.com\/legaliadmin"],"url":"https:\/\/www.legalindia.com\/judgments\/author\/legal-india-admin"}]}},"modified_by":null,"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_likes_enabled":true,"jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/179413","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/comments?post=179413"}],"version-history":[{"count":0,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/posts\/179413\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/media?parent=179413"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/categories?post=179413"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.legalindia.com\/judgments\/wp-json\/wp\/v2\/tags?post=179413"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}