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2017 Supreme(Guj) 618
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
M.R. Shah, B.N. Karia, JJ.
Reliance Jio Inforcomm Limited - Appellant
Vs.
State of Gujarat and Ors. - Respondents
Special Civil Application Nos. 5322 and 5324 of 2017
Decided On : 21-03-2017
For the Appellant : Mihir Joshi, Kunal Nanavati, Kunal J. Vyas, for Nanavati Associates
For the Respondents: Manisha Lavkumar, Government Pleader and Hardik Vora, AGP
Headnote:
Constitution of India- Article 226 - Gujarat Provincial Municipal Corporations Act, 1949 – Section 145A – Property tax – Demand notices – Mobile Towers installed by the respective petitioners – Telecommunication Service Providers 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 – Held, Taxation Rules are framed by the Corporation in exercise of powers under Section 454 of the GPMC Act. Under the circumstances, when the Statute itself permits the Corporation to increase or decrease the rate of tax determined under sub-section (1) read with sub-sections (2) and (3), the determination of the tax in the present case cannot be said to be either illegal and/or contrary to the provisions of the Statute and/or the same cannot be said to be ultra vires to Article 243X of the Constitution of India. If the submission on behalf of the petitioners is accepted, in that case the powers conferred under sub-section (4) of Section 141 of the GPMC Act would become nugatory and/or otiose. As per the cardinal principle of law of interpretation of Statute while considering a particular provision of Statute, the Court is required to see that another provision of the Statute may not become nugatory and/or otiose. Under the circumstances it cannot be said that the determination of the property tax on mobile towers of the petitioners in anyway illegal and/or bad in law and ultra vires to Article 243X of the Constitution of India – Application dismissed
M.R. Shah, J.
1. As common question of law and facts arise in both these petitions, both these petitions are decided and disposed of by this common judgment and order.
2. In both 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 Telecommunication Service Providers 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. Shri Mihir Joshi, learned Senior Advocate has appeared on behalf of the respective petitioners in the respective petitions. Ms. Manisha Lavkumar, learned Government Pleader has appeared with Shri Hardik Vora, learned Assistant Government Pleader on behalf of the State of Gujarat. We have heard learned Counsel appearing on behalf of the respective parties at length.
4. Shri Mihir Joshi, learned Counsel appe
