Back
2014 Supreme(Cal) 562
High Court of Judicature at Calcutta
SOUMITRA PAL, J.
Indus Towers Limited & Others
Versus
Kolkata Municipal Corporation & Others
W.P. No. 11, 420 of 2013, 339, 388, 15748 of 2014, G.A. No. 3503 of 2013, 807 of 2014
Decided On : 19-09-2014
Jishnu Saha, L.K. Gupta, Senior Advocates, Atish Ghosh, Arindam Chandra, Souvik Ghosh, Aloke Kumar Ghosh, S. Chowdhury, S. Ghosh, S. Banerjee, Chayan Gupta, D. Bhattacharyay, N.D. Chowdhury, Ashoke Kumar Banerjee, Learned Government Pleader, Biswajit Mukherjee, Piyali Sengupta, Abhrajit Mitra, Senior Advocate, Arindam Banerjee, Rajesh Upadhyay, Dilip Chatterjee, Sourabh Bagaria, Tapan Kumar Mukherjee, Learned Additional Government Pleader, Nilatpal Chatterjee, Bidyut Banerjee, Senior Advocate, Municipality Sheila Sarkar, Advocates.
Headnote:
TAXATION - PROPERTY TAX - MOBILE TOWERS - VALIDITY - KMC ACT, 1980 - WEST BENGAL MUNICIPAL ACT, 1993 - WHETHER TAX LEVIED ON MOBILE TOWERS OR ON THE PORTION OF THE ROOF/TERRACE LET OUT ON THE BASIS OF ANNUAL RENT - WHETHER THE PETITIONERS HAVE LOCUS STANDI TO MOVE THE WRIT PETITIONS - WHETHER THE WRIT PETITIONS ARE MAINTAINABLE - WHETHER THE RATE CARDS, BILLS, SUPPLEMENTARY BILLS AND LETTERS OF DEMAND FOR PAYMENT OF PROPERTY TAX CAN BE CHALLENGED WITHOUT QUESTIONING THE ASSESSMENT ORDERS PASSED BY THE KMC AND THE MUNICIPALITY.
Fact of the Case:
Companies engaged in raising infrastructure for mobile telecommunication or mobile operators, the petitioner no.1, the employees of the companies, the petitioner no.2 and the petitioner no.3, the owners of the premises whereupon towers have been installed, have, inter alia, prayed for a declaration that a mobile tower is not a building which can be subject to property tax within the meaning of Kolkata Municipal Corporation Act, 1980 (for short 1980 Act) due to installation of mobile towers (hereinafter referred to as towers) falling under the jurisdiction of the Kolkata Municipal Corporation (KMC for short) as it is illegal and without the authority of law or legislative competence.
Finding of the Court:
The court held that the tax levied was not on the mobile tower itself but on the portion of the roof/terrace let out on the basis of the annual rent. The court further held that the petitioner companies had no locus standi to move the writ petitions and that the writ petitions at the instance of the lessors were not maintainable.
Issues: 1. Whether the tax levied was on the mobile tower itself or on the portion of the roof/terrace let out on the basis of the annual rent? 2. Whether the petitioner companies had locus standi to move the writ petitions? 3. Whether the writ petitions at the instance of the lessors were maintainable? 4. Whether the rate cards, bills, supplementary bills and letters of demand for payment of property tax could be challenged without questioning the assessment orders passed by the KMC and the Municipality?
Ratio Decidendi: 1. The court held that the tax levied was not on the mobile tower itself but on the portion of the roof/terrace let out on the basis of the annual rent. The court relied on the assessment orders passed by the KMC or Municipality, which annexed to the writ petitions or to the affidavits, that annual value was determined by taking note of the annual rent paid by the petitioner companies to the owners/lessors after making statutory deductions in accordance with the provisions of the 1980 Act or the 1993 Act, as the case may be. 2. The court held that the petitioner companies had no locus standi to move the writ petitions. The court relied on section 186 of the 1980 Act, which stipulates that if aggrieved by the annual value determined by the KMC, the owner or the person liable to pay property tax is entitled to raise objection in writing to the Municipal Commissioner stating in what respect the annual value is disputed. Under section 189(5) any owner or person liable to payment of property tax, if dissatisfied with the determination of objection under section 188, may prefer appeal to the Tribunal. 3. The court held that the writ petitions at the instance of the lessors were not maintainable. The court relied on section 189(5) of the 1980 Act whereby an owner or person liable to pay property tax, if dissatisfied with the determination of objection under section 188 may prefer appeal to the Tribunal and as specific provisions of the 1980 Act prevail over the general law and as the petitioner companies never applied before the KMC for recording their names in the assessment registers.
Final Decision: The writ petitions were dismissed. The petitioners were directed to pay the demands raised by the KMC and the Municipality within four weeks from the date of presentation of a copy of the certified copy of the order failing which the KMC and the Municipality were at liberty to take steps in accordance with law. A cost of Rs. 8500/- was imposed on each of the petitions in W.P. No. 11 of 2013, W.P. No. 420 of 2013, W.P. 339 of 2014 and W.P. No. 388 of 2014 payable to the KMC. In W.P. No. 15748 (W) of 2014 too the petitioners were directed to pay cost of Rs. 8500/- and Rs. 3400/- to the Kanchrapara Municipality and State respectively.
SOUMITRA PAL, J.
In the writ petitions, in the Original Side, being W.P. 11 of 2013, W.P. 420 of 2013 and W.P. 388 of 2014, companies engaged in raising infrastructure for mobile telecommunication or mobile operators, the petitioner no.1, the employees of the companies, the petitioner no.2 and the petitioner no.3, the owners of the premises whereupon towers have been installed, have, inter alia, prayed for a declaration that a mobile tower is not a building which can be subject to property tax within the meaning of Kolkata Municipal Corporation Act, 1980 (for short 1980 Act) due to installation of mobile towers (hereinafter referred to as towers) falling under the jurisdiction of the Kolkata Municipal Corporation (KMC for short) as it is illegal and without the authority of law or legislative competence. Reliefs sought for are to cancel the supplementary bills, rate cards and assessments slips issued with regard to payment of property tax and to restrain the authorities from imposing any property tax at a higher rate or on a higher assessment of annual valuation for installation of tower on the premises concerned. It is to be noted that in W.P. 339 of 2014, the son of the recorded owner of the premises, whereupon the tower has been installed, is the proforma respondent no.4.
As Mr. Jishnu Saha learned senior advocate for the petitioner in W.P. 11 of 2013, Mr. L.K. Gupta, learned senior advocate for the petitioner in W.P. 420 of 2013, Mr. Abhrajit Mitra, learned senior advocate in W.P. 339 of 2014, Mr. Saurabh Bagaria, learned advocate for the petitioner in W.P. 388 of 2014, Mr. Aloke Kumar Ghose and Mr. Biswajit Mukherjee, learned advocates for KMC were unanimous that in these Original Side matters, being W.P. 11 of 2013, W.P. 420 of 2013, W.P. 339 of 2014 and W.P. 388 of 2014, common questions of law are involved, matters were heard analogously.
In the writ petition being W.P. No. 15748 (W) of 2014, an Appellate Side matter, the petitioner no.1, Indus Towers Limited, the petitioner no.2, its employee and the petitioner no.3 the owner of the building whereupon the tower has been installed have prayed, inter alia, for a declaration that the provisions contained in the West Bengal Municipal Act, 1993 (for short 1993 Act) have no application to the towers installed within the jurisdiction of the Kanchrapara Municipality (for short the Municipality) and to recall or rescind the letters demanding property tax and bills relating thereto. Since issues are identical, it was taken up for hearing along with the matters in the Original Side. It appears from the records that affidavits have been filed and exchanged.
Let the arguments advanced on behalf of the petitioners in the writ petitions filed in the Original Side be noted in brief. It was submitted on behalf of the petitioners that the petitioner companies, having been recognised as infrastructure service providers by the Government of India by issuing circulars and/or notifications, had been granted licenses under the Telegraph Act, 1885 (for short 1885 Act) by the Central Government to set up, expand and upgrade cellular services, have installed towers atop the buildings within the jurisdiction of the KMC after entering into lease and/or license agreement with its respective owners. Since a tower is a mode for receiving and relaying telegrams and/or wireless messages and is a form of telegraphic equipment, a telecom tower falls within the purview of definition of Telegraphs within the meaning of the 1885 Act. Telegraphs is placed under List I, Entry 31 of the 7th Schedule of the Constitution of India and cannot be made subject to any law or rules or taxes but for any law enacted by Parliament or rules framed thereunder, and KMC is not competent to access or impose property tax on such towers. Since for cellular communication, telecommunication equipments are installed on towers and mobile telephone communication is not possible without a tower, which is not an enclosed sp
