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2020 Supreme(Chh) 134
IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR
P.R. Ramachandra Menon, CJ. and Parth Prateem Sahu, J.
RELIANCE INFRATEL LIMITED - Appellant
Versus
STATE OF CHHATTISGARH - Respondent
Writ Petition (Civil) No. 6324 of 2011, 129 of 2017, 154 of 2019, 192 of 2013, 207 of 2012, 784 of 2014, 800 of 2010, 859 of 2017, 1405 of 2010, 1485 of 2010, 1743 of 2013, 1752 of 2012, 2058 of 2015, 2092 of 2012, 2227 of 2012, 3482 of 2018, 6527 of 2011, 7334 of 2011, 7359 of 2011, 7445 of 2010
Decided On : 10-02-2020
Brian Dsilva, Advocate, Sachin Singh Rajput, Advocate, Vaibhav Shukla, Advocate, Amiyakant Tiwari, Advocate, Astha Shukla, Advocate, Swajeet Singh, Advocate, Shishir Dixit, Advocate, Sandeep Dubey, Advocate, Gagan Tiwari, Advocate, H.B. Agrawal, Advocate, Pankaj Agrawal, Advocate, A.S. Kachhawaha, Advocate, B.D. Guru, Advocate, Sourabh Sharma, Advocate, B. Gopa Kumar, Advocate
Headnote:
Indian Telegraph Act, 1885 - Sections 10(c) and 12 - Indian Telegraph Right of Way Rules, 2016 - Section 77(2) - Initial permit fee - Petitioner who has already moved this Court by filing Writ Petition (C) No-800/2010 challenging Circular issued by State - Petitioner in said petition had challenged coercive steps taken from part of different local authorities arrayed as Respondents in WPC simultaneously seeking to set aside Circular claiming exorbitant amounts for registration / renewal / compounding- There was an interim order in said case as mentioned already for causing towers sealed by local authorities to be de-sealed subject to satisfaction of amount as per first Circular issued on and on such other terms - But Municipal Corporation was never made a respondent in said writ petition WPC - Towers of Petitioner erected in area of Municipal Corporation came to be sealed for non-satisfaction of fees in connection with erection / renewal which made Petitioner to file a fresh case as WPC - It was observed by this Court on that tower sealed by Municipal Corporation was later resealed and hence no interim relief was required - Held, There is a plea on part of Petitioners that mobile tower is part and parcel of communication- This has already been dealt with by this Court in previous paragraphs with reference to specific definition of terms telegraph and posts and mandate of Section 10 conferring power upon Central Government / Telegraph Authority and delegation of such power under Section 19B of Act 1885 - State Rules 2010 issued by State enables Municipal Corporation / Municipalities to realise one time permit fee in respect of mobile towers also providing for renewal fees and compounding fees - Basic challenge with reference to absence of power of State because of alleged absence of legislative authority stands already repelled - No tenable ground has been brought to notice of this Court to draw any inference as to ultra vires nature of Rules and hence this challenge is also repelled - Above Rules also validate Circular and quantum of fees in Circular are exactly same in Rules as well - Writ petitions stand dismissed
JUDGMENT
P. R. Ramachandra Menon, C.J. - The common challenge raised in all these writ petitions is in respect of the power and authority of the State / local authority to realise tax / fees on erection of mobile towers by the Petitioners and also as to the exorbitant hike in the 'initial permit fee'; the subsequent yearly 'renewal fees' and also the 'compounding / settlement fees'. The main ground of challenge is that no power or authority is vested with the State to issue any Circulars/ Directions/ Rules; it being a subject coming under Entry No. 31 of List I of the Seventh Schedule of the Constitution of India, to which field there cannot be any intrusion by the State. It is also pointed out that the impugned proceedings are in conflict with the clear stipulations under Sections 10(c) and 12 of the Indian Telegraph Act, 1885 (for short 'the Act, 1885'); insofar as it enables realisation of only the 'expenses' incurred by the local authority and no other amount is payable for installation of mobile towers by the Petitioners, who are the licensees under Section 4 of the Act, 1885. It is further contended that the Central Government had recently notified 2016 Rules i.e. the Indian Telegraph Right of Way Rules, 2016 (for short, 2016 Rules') and in the said circumstance, since the field is taken over by the Central Government and since the same has been implemented in the State, no tax or fees can be realised by the local authorities with reference to the Instructions/ Directions/ Rules issued by the State.
2. The genesis of the dispute reveals that, way back on 06.06.2006, a Circular was issued by the State, addressing to the local authorities to cause realisation of one time permit fee while granting sanction for erection of mobile towers in the area under jurisdiction of the Municipal Corporations / Municipalities / Gram Panchayats and also for realisation of the yearly renewal fees. The fee structure was as given below :
| S.No. | Local Authority | One Time Permit Fee | Yearly Renewal Fee |
| 1. | Municipal Corporation | 15,000/- | 1,500/- |
| 2. | Municipalities | 10,000/- | 1,000/- |
| 3. | Gram Panchayat | 5,000/- | 500/- |
No grievance was raised from any corner with regard to the stipulation or as to the authentication of the Circular and the amount due was being satisfied by the parties concerned. Things took a different turn, when the aforesaid Circular was superseded by a subsequent Circular bearing No.6137/175/18/2006 dated 18.11.2009, whereby the fee structure was enhanced by several folds as given below :
| S.No. | Local Authority | One Time Permit Fee | Yearly Renewal Fee |
| 1. | Municipal Corporation | 75,000/- | 15,000/- |
| 2. | Municipalities | 50,000/- | 10,000/- |
| 3. | Gram Panchayat | 25,000/- | 5,000/- |
Apart from the hike, it was also stipulated that those who had unauthorisedly erected the Towers could settle the matter on payment of settlement / compounding fee to an extent of 15 to 50 times of the one time permit fee. In view of the enhanced permit fee by 5 times and renewal fee by way of 10 times and settlement fee by 15 to 50 times, the above Circular dated 18.11.2009 was subjected to challenge by various service providers / licensees by filing different writ petitions. Writ Petition (C) Nos. 800/2010, 1485/2010, 1405/2010, 7445/2010 are the cases involving similar challenge against the Circular.
3. Later, the State Government issued the Chhattisgarh Municipal Corporation (Erection of Temporary Tower or Structure for Cellular Mobile Phone) Rules, 2010 (for short, 'the 2010 Rules') providing for realisa
