Madras High Court
Bharat Sanchar Nigam Limited vs The Commissioner on 21 December, 2018
Bench: T.S.Sivagnanam, R.Tharani
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.12.2018
CORAM:
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE R.THARANI
Review Application (MD) Nos.77 to 84 of 2018
in W.A. (MD) Nos.328 to 335 of 2018
and C.M.P. (MD) Nos.6801 to 6808 of 2018
Review Application (MD) No.77 of 2018:-
Bharat Sanchar Nigam Limited,
Rep., through its
Deputy General Manager, (CFA & Admin.),
Nagercoil, Kanyakumari District. .. Applicant
-vs-
The Commissioner,
Nagercoil Municipality,
Nagercoil, Kanyakumar District. .. Respondent
Review application filed under Rule 114 and Order XLVII Rules 1 &
2 of Civil Procedure Code to review the order passed by this Court in
W.A.(MD) No.328 of 2018 dated 01.03.2018.
For Applicant : Mr.R.D.Agarwala,
(in all Applications) Senior Counsel
assisted by
: Mr.Pawan Kumar
: and Mr.A.Hajamohideen,
Standing Counsel
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2
For Respondent : Mr.P.Athimoolapandian,
Standing Counsel
******
COMMON ORDER
(Order of the Court was made by T.S.Sivagnanam, J.) These Review Applications have been filed to review the common judgment in Writ Appeal (MD) Nos.1282 to 1289 of 2017, dated 22.09.2017. These appeals were filed against the common order passed in Writ Petition (MD) Nos.15966 to 15973 of 2017, dated 06.10.2017. The said writ petitions were filed by the petitioner herein, viz., Bharat Sanchar Nigam Limited (BSNL) challenging the demand of property tax made by the respondent-Municipality. When the Writ petitions were entertained, a conditional order was passed directing the BSNL to deposit 50% of the amount demanded as against which, BSNL preferred appeals before the Hon'ble Division Bench in W.A.(MD) Nos.1282 to 1289 of 2017, which were dismissed by common judgment dated 22.09.2017. However, the time for payment was extended pursuant to which, 50% of the amount payable was deposited by the BSNL. Subsequently, the writ petitions themselves were dismissed by common order dated 06.10.2017 in which, there was a direction to pay the https://www.mhc.tn.gov.in/judis 3 remaining 50% of the property tax demanded as against which, Writ Appeal (MD) Nos.328 to 335 of 2018 were filed, which were heard by us and the appeals were dismissed by common judgment dated 01.03.2018.
2.Mr.R.D.Agarwala, learned Senior Counsel assisted by Mr.Pawan Kumar, and Mr.A.Hajamohideen, learned Standing Counsel for BSNL/the review petitioner, submitted that at no point of time, BSNL had claimed exemption under Article 285 of the Constitution of India but, what is to be noted is that the date on which the asset stood transferred from Union of India to BSNL assumes importance. In fact, when BSNL filed a suit in O.S.No.209 of 2011 before the Principal District Munsif Court, Nagercoil questioning the demand of property tax, a slightly different contention was raised stating that though the property is used by BSNL, it is not owned by BSNL and still remains with the Department of Telecommunications (DoT). However, the pleadings were not elaborate. Nevertheless, the suit was dismissed by judgment dated 27.06.2014 and the appeal filed before the Sub-Court, Nagercoil in A.S.No.41 of 2015 was also dismissed by judgment dated 03.03.2017. The said judgment has attained finality. Therefore, technically Mr.P.Athimoolapandian, learned Standing Counsel is right in contending that the same issue https://www.mhc.tn.gov.in/judis 4 cannot be once again canvassed by the BSNL before us. However, the endeavour of the learned Senior Counsel for the applicant is that the date on which the property stood transferred is very crucial.
3.In this regard, certain documents were placed before this Court during the course of arguments of these review applications, which were not placed when the appeals were heard by us, nor accepted in the civil suit filed before the Principal District Munsif Court, Nagercoil. Nevertheless, since these communications emanate from the Government of India and they are official records and documents, and there is a presumption attached to this validity, we have not raised any technical objection in admitting these documents and perusing the same. First of such document produced by Mr.R.D.Agarwala, learned Senior Counsel is an Office Memorandum dated 30.09.2000. This memorandum was issued one day prior to the formation of BSNL as a company, that is, with effect from 01.10.2000. In paragraph 3 of the memorandum, it is stated that the Government of India has decided to transfer all assets and liabilities except certain assets, which will be retained by the Department of Telecommunications required for the units and offices under control of DoT, to be worked out later on. https://www.mhc.tn.gov.in/judis 5
4.It is the submission of the learned Senior Counsel that this document is as vague as possible, since the list of assets were not given, what are the liabilities to be transferred and retained have not been mentioned.
5.Be that as it may, this office memorandum was issued on 30.09.2000, one day prior to the formation of BSNL, that is, on 01.10.2000. Therefore, at best, it can be taken as a guideline as to how the formation of BSNL, transition or transfer of the assets and liabilities have taken place. Therefore, we are of the considered view that the respondent-Municipality will not be justified in construing the subject assets to have become assets owned by BSNL as on 01.10.2000. It is more so because, the office memorandum dated 30.09.2000, is a decision taken by the Government of India, Ministry of Communications, Department of Telecommunication Services, since on 01.10.2000, the new company will come into being and provide telecom services to the country and maintenance of the telecom network/telecom factories were separated and carved out of the Department of Telecommunications. Over ten years, there were no further notification issued and the next presidential order was issued on 19.04.2011 in exercise of the powers https://www.mhc.tn.gov.in/judis 6 conferred by Article 145 of the Article of Association of Bharat Sanchar Nigam Ltd. Thereby, the President approves the retention of certain assets as indicated in Annexures A and B for the use of field units and offices of DoT, viz., office of the Principal Controller/Controller/Joint Controller of Communication Accounts Officers. Admittedly, the subject asset, viz., Exchange at Nagercoil did not find place in the list of assets to be retained by the field units and offices of DoT. However, one asset in Ethiraj Salai, Chennai was shown in Annexure A. Subsequently, by another Presidential Order dated 17.05.2013, which was issued in supersession of the order dated 19.04.2011, the list of assets, which were retained, was notified. Insofar as Tamil Nadu is concerned, the only change was one more asset in Chennai and an asset in Coimbatore was included in the list.
6.It is the submission of Mr.R.D.Agarwala, that even in the Presidential Order dated 17.05.2013, it is stated that this order is without prejudice to further orders for retention of assets in pursuance of the DoT Office Memorandum dated 30.09.2000. Thus, the question would be what would be the date on which the asset deemed to have been transferred in favour of BSNL.
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7.The endeavour of learned Senior Counsel is to convince the Court that it is the date on which the revenue records were mutated, that is, on 17.06.2016. However, we are not inclined to accept the said submission because, mutation is a consequent act to be done by the Revenue Administration and what is required to be seen is that by operation of law or by an order, when the asset stood vested with BSNL.
8.In our considered view, the appropriate date for vesting shall be with effect from 19.04.2011. Though this order stood superseded by the order dated 17.05.2013, the supersession should be taken only for the purpose of substitution or inclusion of assets and nothing more.
9.Thus, for all purposes, the subject asset, viz., telephone exchange and quarters building is deemed to be vested with BSNL with effect from 19.04.2011. The date of mutation of the revenue records cannot be taken into consideration for such purposes, as the effective date is based upon a Presidential Order. Therefore, to that extent, we are not inclined to grant relief to the petitioner in these review applications.
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10.Accordingly, these review applications are partly allowed and the order and direction issued in the writ appeals is modified and the respondent-Municipality is directed to assess the petitioner's property with effect from 19.04.2011. The payment so far made by the petitioner shall be adjusted towards the tax dues and if there is anything more in cash than what is payable, the same may be adjusted towards future liability.
11.The learned Senior Counsel for the petitioner contended that there is a dispute with regard to the measurement and this Court while disposing of the appeals by judgment dated 22.09.2017, had noted the same in paragraph 4 stating that there was no proper investigation of the petitioner's building. The officials of BSNL, who are present in Court, raised an objection with regard to the number of quarters available in the building. It is the submission of the officer that there are only three quarters, but the Municipality has assessed the same as six quarters.
12.The officer of the respondent-Municipality, who is present is Court submits that the assessment is correct and measurement is also correct. However, we do not want to precipitate the matter any further and taking note of the fact that the petitioner is also a Government of https://www.mhc.tn.gov.in/judis 9 India company, we direct the respondent-Municipality to re-inspect the quarters area of the building, re-measure the same in the presence of senior officers of BSNL and then, make proper assessment. In the event, if there is any discrepancy in the measurement, the benefit shall be given to BSNL. No costs. Consequently, the connected miscellaneous petitions are closed.
(T.S.S., J.) (R.T., J.)
21.12.2018
Index : Yes / No
Speaking / Non-speaking Order
abr
To
The Commissioner,
Nagercoil Municipality,
Nagercoil, Kanyakumar District.
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10
T.S.Sivagnanam, J.
and
R.Tharani, J.
(abr)
Rev. Aplw.(MD) Nos.77 to 84 of 2018
in W.A. (MD) Nos.328 to 335 of 2018
and C.M.P. (MD) Nos.6801 to 6808 of 2018
21.12.2018
https://www.mhc.tn.gov.in/judis