2008 Supreme(Guj) 296

2008 (3) GCD 2372 (Guj) (DB)
Hon’ble Mr. Justice D.A. Mehta &
Hon’ble Ms. Justice H.N. Devani
Reliance Communications Limited
Versus
Junagadh Municipal Corporation & Anr.
Special Civil Application No. 531 of 2008—Decided on 09/09/2008

Point in Issue :
Permission fee, annual rent and administrative penalty — Resolution for — Determination and issuance of warrant of attachment — Sustainability — Finding of.

Headnote:Head Note :

       Constitution of India, 1950 — Article 265 — Bombay Provincial Municipal Corporation Act, 1949 — Sections 127 and 386 (1) & (2) — Bombay Provincial Municipal Corporation Taxation Rules — Rule 42 — Permission fee, annual rent and administrative penalty — Resolution for — Determination and issuance of warrant of attachment — Sustainability — Finding of — For setting up Mobile Towers the petitioner–Company engaged in business of telecommunication entered into agreements with private property owners and applied for permission from the local authority to place towers in such property — The Respondent No. 1 Municipal Corporation passed a Resolution No. 63 dated 30.08.2007, whereby petitioner-Company was required to pay permission fee/administrative penalty and annual rent and in the end Respondent No. 1 issued attachment warrant directing petitioner-Company to pay a total of Rs. 13,99,000/- within seven days — Court observed that in the Act there is no provision providing for licences and permits in relation to Mobile Towers — In absence of such provision respondents cannot impose the fee in respect of Mobile Towers — Similarly there is no provision for determination of annual rent for putting up towers on private property — Respondent No. 1, therefore, has no right to charge annual rent in respect of private property — Respondent has also claimed administrative penalty in absence of any provision either under the Act or Rules — In view of this Court set aside the resolution of Respondent No. 1 providing for determination of permission fee, annual rent and penalty — Court as a result quashed and set aside the impugned demand notice and attachment warrant also.

       Held :

       It is apparent that the Corporation is empowered to determine the rates of fees for such licence or written permission only in those cases where the Act provides that a licence or a written permission may be given for any purpose. Thus, the purpose for which licence or written permission may be given is required to be specified under the BPMC Act, and it is only in case of such licence or written permission that the Corporation is empowered to determine the rates of fees. A perusal of the provisions of the BPMC Act shows that provision for “Licences and Permits” is made under Chapter XXII and specific categories of cases are enumerated thereunder in Parts I to VIII of the said Chapter, which have been referred to hereinabove in detail. A perusal of the said categories shows that the same do not include licences or permits in respect of Mobile Towers. [Para 11]

       As regards determination of annual rent, the source of powers according to the respondents is Section 386(2) of the BPMC Act. From the language employed in the said provision it is clear that the same empowers the Commissioner to determine the rate of fees for licences or written permissions. The same nowhere envisages the determination of annual rent. Besides, undisputedly, the towers/bases/poles are set up on private properties, hence, the Respondent No. 1 has no right or authority to charge annual ret in respect of private property. In the circumstances, the levy of annual rent is also bad in law. [Para 12]

       Insofar as administration penalty is concerned, the learned Advocate for the respondents is not in a position to point out any provision of law that permits the respondents to impose such penalty. It is settled legal position that in absence of any statutory provisions for imposition of penalty, no penalty can be imposed. In the circumstances, merely by virtue of a resolution passed by the Respondent No. 1 administrative penalty could not have been imposed, that too without first enacting any provisions as to under what circumstances such penalty could be imposed. In other words without specifying the default, which would entail the imposition of penalty no penalty could have been imposed. Hence, the imposition of administrative penalty being without any authority law cannot be sustained. [Para 13]

       Law Laid Down :

       No tax can be levied or collected except by authority of law.

       Case Law Analysis :

       Mumbai Agricultural Produce Market Committee & Anr. vs. Hindustan Lever Limited & Ors., 2008 (5) SCC 575 [Para 5];; Ahmedabad Urban Development Authority vs. Sharadkumar Jayantikumar Pasawala & Ors., 1993 (1) GLR 655 [Para 5].—Relied on

       Petition Allowed