IMPORTANT POINT: There cannot be two and/or separate definition of building and land, one for the purpose of constitutional validity and another under the Statute.

M.R. SHAH, J.

1. As common question of law and facts arise in this group of petitions, all these petitions are decided and disposed of by this common judgment and order.

2.0 In all these petitions under Article 226 of the Constitution of India, respective petitioners have challenged the impugned demand notices issued by the respective Municipal Corporations demanding the property tax on the respective Mobile Towers installed by the respective petitioners.

2.1. At the outset it is required to be noted that this is the second round of litigation and the attempt on the part of the respective petitioners to avoid payment of property tax on the Mobile Towers. Earlier mobile telecommunication service providers like the petitioners raised the question of levy of property tax on Mobile Towers and also challenged the vires of section 145A of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as “GPMC Act”) before this Court. The respective telecommunication service providers like the petitioners succeeded before this Court and the Division Bench of this Court declared section 145A of the GPMC Act as ultra vires to the Constitution of India more particularly legislative Entry No.49 of List II and held that Mobile Towers cannot be stated to be a “building” and therefore, to levy the tax on Mobile Towers treating the same as “building”, is beyond the competence of State Legislature to provide for taxation. That by common judgment and order dated 16.12.2016 passed in Civil Appeal Nos.5360 – 5363/2013, the Hon’ble Supreme Court has allowed the said appeals and quashed and set aside the decision of the High Court and has held “Mobile Towers” as “land and building” and therefore, it is held that the State is having the competency to enact the law to levy the tax on Mobile Towers. At this stage it is required to be noted that during the pendency and final disposal of the appeals before the Hon’ble Supreme Court against the decision of the Division Bench of this Court, the Hon’ble Supreme Court stayed the judgment and order passed by the Division Bench of this Court and stayed the order of refund passed by the High Court, on condition that the respective Corporations deposit the amount already collected, before the Hon’ble Supreme Court. The Hon’ble Supreme Court also clarified that the respective Corporations may determine the tax on Mobile Towers under the GPMC Act and raise the demand on the respective Mobile Towers, however, such demand shall not be enforced until disposal of the appeals. The Hon’ble Supreme Court also observed that the determination of such tax shall be subject to the final decision in the appeals. Consequently, during the pendency of the appeals before the Hon’ble Supreme Court, the recovery of tax was kept in abeyance. That thereafter when the Hon’ble Supreme Court set aside the order passed by the Division Bench of this Court and held against the respective petitioners – Telecommunication Service Providers and upheld the vires of section 145A of the GPMC Act, when the respective Corporations raised the demand of the property tax on the Mobile Towers for the past period as well as current periods, at that stage again the respective petitioners – Telecommunication Service Providers have preferred the present Special Civil Applications again challenging the demand of property tax on the Mobile Towers, which is the subject matter of the respective petitions.

3.0. Shri Mihir Joshi, learned Senior Advocate, Shri S.N. Soparkar, learned Senior Advocate, Shri K.S. Nanavati, learned Senior Advocate, Shri Shalin Mehta, learned Senior Advocate, have appeared on behalf of the respective petitioners in the respective petitions. Shri Kamal Trivedi, learned Senior Advocate has appeared on behalf of the Ahmedabad Municipal Corporation and Shri Prashant G. Desai, learned Senior Advocate has appeare