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2013 Supreme(Guj) 163
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
AKIL KURESHI, SONIA GOKANI, JJ.
G.T.L INFRASTRUCTURE LTD. - Petitioner(s)
Versus
STATE OF GUJARAT & ORS. - Respondent(s)
SPECIAL CIVIL APPLICATION NO. 4084 of 2012 With SPECIAL CIVIL APPLICATION NO. 11059 of 2008 With SPECIAL CIVIL APPLICATION NO. 11730 of 2008 With SPECIAL CIVIL APPLICATION NO. 2843 of 2009 With CIVIL APPLICATION NO. 2967 of 2010
With
In SPECIAL CIVIL APPLICATION NO. 2843 of 2009 With SPECIAL CIVIL APPLICATION NO. 3157 of 2009 With CIVIL APPLICATION NO. 3446 of 2010
With
In SPECIAL CIVIL APPLICATION NO. 3157 of 2009 With SPECIAL CIVIL APPLICATION NO. 8407 of 2009 With SPECIAL CIVIL APPLICATION NO. 9162 of 2009 TO SPECIAL CIVIL APPLICATION NO. 9186 of 2009 With SPECIAL CIVIL APPLICATION NO. 9187 of 2009 TO SPECIAL CIVIL APPLICATION NO. 9197 of 2009 With SPECIAL CIVIL APPLICATION NO. 9206 of 2009 With SPECIAL CIVIL APPLICATION NO. 677 of 2010 TO SPECIAL CIVIL APPLICATION NO. 706 of 2010 With SPECIAL CIVIL APPLICATION NO. 1337 of 2010 With SPECIAL CIVIL APPLICATION NO. 1497 of 2010
With
SPECIAL CIVIL APPLICATION NO. 1590 of 2010
With
SPECIAL CIVIL APPLICATION NO. 2452 of 2010
With
SPECIAL CIVIL APPLICATION NO. 2456 of 2010
With
SPECIAL CIVIL APPLICATION NO. 2473 of 2010
With
SPECIAL CIVIL APPLICATION NO. 3684 of 2010
With
SPECIAL CIVIL APPLICATION NO. 6049 of 2010
With
SPECIAL CIVIL APPLICATION NO. 4721 of 2012
With
SPECIAL CIVIL APPLICATION NO. 3411 of 2012
With
SPECIAL CIVIL APPLICATION NO. 3412 of 2012
With
SPECIAL CIVIL APPLICATION NO. 3413 of 2012
With
SPECIAL CIVIL APPLICATION NO. 7088 of 2012
With
SPECIAL CIVIL APPLICATION NO. 11950 of 2012
With
SPECIAL CIVIL APPLICATION NO. 15596 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1681 of 2013
With
SPECIAL CIVIL APPLICATION NO. 3785 of 2013
With
SPECIAL CIVIL APPLICATION NO. 3786 of 2013
With
SPECIAL CIVIL APPLICATION NO. 3787 of 2013
Decided On: 24,25/04/2013
Advocate Appeared:
MR SN SOPARKAR, SR COUNSEL, MR SHALIN MEHTA WITH MS VIDHI J BHATT, MR AMAR N BHATT, MR AMIT M PANCHAL, MR NIKHIL S KARIEL, MR KETAN A DAVE, MR AH MOHAPATRA, MR ANKUR Y OZA, for the Petitioners.
MR KAMAL TRIVEDI, ADVOCATE GENERAL WITH MS. SANGEETA VISHEN AND MR JAIMIN A GANDHI FOR THE STATE GOVERNMENT.
MS KHYATI P HATHI, MR MRUGEN K PUROHIT, MR KAUSHAL D PANDYA, MR AG JOSHI, MR NK MAJMUDAR, MS SJ SHEIKH, MR DHARMESH R PATEL, MR HM PARIKH, MR RAJESH H PARIKH, MR PREMAL R JOSHI, MR HS MUNSHAW, MS SEJAL K MANDAVIA, MR MA PAREKH, MR JV JAPEE, MR RM PARMAR, MR RC KAKKAD, MR BY MANKAD, MR DEEPAK SANCHELA, MR SHIVANG M SHAH, MR UDAY JOSHI FOR M/S. TRIVEDI AND GUPTA, MR NILESH A PANDYA, MR MEHUL H RATHOD, MR BIREN A VAISHNAV, MR RR TRIVEDI, MR BHAVESH P TRIVEDI, MR GM JOSHI, MU TULSHI R SAVANI, MR MB PARIKH, MR DEEP D VYAS, MR MEHUL SHARAD SHAH, MR DILIP B RANA, MR MURALI N DEVNANI, MR KJ BRAHMBHATT, MS VARSHA BRAHMBHATT, MR VIJAY H NANGESH, MR NISHAN LALAKIYA, MR DHAVAL G NANAVATI, MR ASHIH M DAGLI, MS JIRGA D JHAVERI for rest of the Respondents
Headnote:
Gujarat Provincial Municipal Corporation Act, 1949 - Sections 145A and 2(5) - Constitution of India, 1950 - Seventh Schedule, List-II, Entry 49 - petitions raise the question of property tax on mobile towers - Held, petitioners are entitled to refund of the tax already paid, however, with a limit that no tax paid prior to one year of filing of the petition would be refundable. - Court sufficiently promptly may not seek refund of the tax without any reference to time limit. - petitions stand disposed of accordingly - Order Accordingly
PER : HONOURABLE MR.JUSTICE AKIL KURESHI
1. Civil Application No.3446/2010 in Special Civil Application No.3157/2009 for amendment is allowed as unopposed and disposed of accordingly.
2. These petitions raise the question of property tax on mobile towers. As simple as the question may appear, the answer is neither simple nor short. In fact, factual aspects concerning such ultimate question are also quite complicated. We may however, refer to the broad facts at first to be able to explain the background in which such question has arisen.
3. Several petitions have been filed by different mobile companies questioning the authority of the local bodies to tax the mobile towers treating them as buildings. Such local bodies fall in three different categories, namely, Municipal Corporations, Municipalities and Panchayats. The challenge of the petitioners can be bifurcated into two broad areas. Their first attack is on the ground of legislative competence. They contend that the mobile towers are not buildings. That being so, the State Legislature does not have competence to enact any law to tax such mobile towers under Entry 49 of List II to Seventh Schedule of the Constitution which pertains to taxation on lands and buildings. There are several contentions raised in this respect to which we would advert at a later stage. Second limb of the petitioners’ challenge is with respect to the mechanism for collection of such taxes. They contend that proper rules after following the procedure provided under the respective Acts have not been framed to enable the local authorities to collect tax on the mobile towers. They contend that some of the Gram Panchayats have raised the bills of property taxes without any authority whatsoever. They also contend that some of the local authorities have relied upon Government Resolutions which have been struck down by this Court. In some of the Municipal Corporations such as Surat Municipal Corporation, where the tax rules have been duly amended empowering the Municipal Corporation to recover such taxes on mobile towers, challenge of the petitioners is that such rules are ultra vires on the same ground of lack of legislative competence as also excessive delegation. Thus the petitioners have challenged different property tax bills raised by the local authorities on the ground of invalidity of the statute under which the same are sought to be collected. Alternatively and additionally, they contend that even if the concerned statutes are valid, the tax collection mechanisms suffer from legal defects.
4. Group of petitions led by Special Civil Application no.4084/2012 have been filed challenging the vires of Gujarat Local Authorities Laws (Amendment) Act, 2011 (here-in-after referred to as “the Amending Act”) which makes certain changes in Bombay Provincial Municipal Corporations Act, 1949 now renamed as Gujarat Provincial Municipal Corporations Act, 1949 (here-in-after referred to as “the GPMC Act”), the Gujarat Municipalities Act and the Gujarat Panchayats Act. Like-wise group of petitions including Special Civil Application No.677/2010 have been filed challenging various taxation rules of the Municipal Corporations and other local bodies.
5. Regarding the petitioners’ first challenge to the validity of the statutory provisions in context of the legislative competence, we may refer to the pleadings from Special Civil Application No.4084/2012. The petitioner is a company registered under the Companies Act. The petitioner is engaged in providing infrastructure for Mobile Telecommunication Services. The petitioner enjoys necessary license and registration issued by the competent authority under the Indian Telegraph Act, 1885. For providing such infrastructure to its customers, the petitioner company is required to install Base Transceiver Station (“BTS” for short), more commonly known as mobile towers. For setting up such mobile towers, the petitioner enters into agreements with private owners. Armed with s
