Important Point:
Whether the Legislature should have itself said everything and dealt with every spectrum in the statute or left some aspects to be filled up or supplemented or backed by the rules. It is contended with vehemence that by such prescription not only there is violation of the provisions of the Constitution but there is abdication of the essential power of the legislative functions of the State Legislature. As far as the first facet of this contention is concerned, we are not at all impressed as the provisions in the Constitution use the word "law" made by the legislature. Legislature itself has authorised under the statute the State Government to made rules. The second question that forms a part of this submission is whether such a power could have been delegated. It is well settled in law that the Legislature cannot visualize all circumstances. Some power has to be conferred on the rule making authority for carrying out the purposes of the Act

M.R. Shah, J.

1. By way of this petition under Article 226 of the Constitution of India, the petitioner as such challenges the levy of General Property Tax on IBS/Booster installed by the petitioner. The petitioner has also by way of amendment prayed for an appropriate writ, direction and order to declare Section 141B of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "GPMC Act") as ultra vires to Article 243X of the Constitution of India. By way of amendment the petitioner has also prayed for an appropriate writ, direction and order to strike down Rule 8B of the Taxation Rules (Amendment), 2001 (hereinafter referred to as "Taxation Rules") under Chapter VIII of Schedule A to the GPMC Act as arbitrary to the extent the same provide for computation of levy of Tax on Mobile/Microwave Towers.

2. At the outset it is required to be noted that as such the levy of Tax on Mobile Towers by the respondent No. 2 Corporation has been upheld by the Division Bench of this Court in recent decision dated 07.03.2017 in the case of ATC Telecom Tower Corporation Private Limited & Anr. v. State of Gujarat and Others rendered in Special Civil Application Nos. 2693/2017 and other allied matters and by detailed judgment and order and for the reasons stated in the said judgment and order, the Division Bench has negatived the similar challenge to levy of property Tax on Mobile Towers. The aforesaid is not disputed by Shri Joshi, learned Counsel appearing on behalf of the petitioner.

2.1 However, it is the case on behalf of the petitioner that in the case before the Division Bench of this Court in Special Civil Application No. 2693/2017 and even in subsequent decision rendered in Special Civil Application No. 5322/2017 the Division Bench had considered the levy of property Tax on Mobile Towers. It is the case on behalf of the petitioner that as such in the present case the dispute is with respect to the levy of property Tax on IBS/Booster, which according to the petitioner cannot be termed as and/or equated with Mobile Tower. It is further submitted that in the present petition some additional grounds are also raised which were not raised in Special Civil Application Nos. 2693/2017 and 5322/2017, which are not sought to be raised in the present petition.

2.2 It is the case on behalf of the petitioner that the petitioner, for the purpose of providing telecommunication services, is required to establish a cellular mobile network which comprises of various telecom sites. That each of which have two components viz. (1) Passive Infrastructure and (2) Active Infrastructure. That Passive Infrastructure comprises of a Mobile Tower, a pre-fabricated shelter made of insulating polyurethane foam etc. whereas the Active Infrastructure comprises of the Electronic equipment like Base Trans receiver Station/Microwave Antennae and other Active Telecom Equipment. It is the case on behalf of the petitioner that it become necessary for technical reasons for uninterrupted coverage of services, to install in building solutions of micro sites, booster sites etc. and therefore, cellular operators worldwide are increasingly using such small sites to address reception problems in large building, residential or commercial areas as an IBS site to boost signal strength and provide high quality in-house coverage at an additional high cost just to ensure that the subscribers enjoy high quality seamless connectivity and does not experience any call drops. It is the case on behalf of the petitioner that therefore the petitioner is installing IBS/Booster which cannot be said to be Mobile Towers. It is the case on behalf of the petitioner that IBS/Booster is a just fraction of the site of telecom site and can be clearly distinguished from a telecom site. That an IBS/Booster set does not comprise of a Mobile Tower, but consist of a small structure made up of 2 to 4 poles of 4 inch diameter upto 6 meter in height on which a booster is affixed. Th