Madras High Court
The Commissioner vs M/S.Indus Towers Limited on 23 June, 2022
Author: T.Raja
Bench: T.Raja
W.A.No.1408 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2022
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
AND
THE HONOURABLE MR.JUSTICE K.KUMARESH BABU
W.A.No.1408 of 2018
and
C.M.P.No.11248 of 2018
The Commissioner,
Coimbatore Corporation,
Coimbatore District. ... Appellant
Vs.
1.M/s.Indus Towers Limited,
No.901, Park Centra,
Sector-30, NH-8, Gurugram,
Gurgaon, Haryana,
India- 122 001.
[amended as vide Court order dated
10.06.2022 made in CMP.No.5184/2022
in W.A.No.1408/2018 by TRJ & KBJ]
2.T.Krishnaraj ... Respondents
1
https://www.mhc.tn.gov.in/judis
W.A.No.1408 of 2018
Prayer: Writ Appeal filed under Clause 15 of the Letter Patent Act,
to set aside the order passed by this Court in W.P.No.5065 of 2012
dated 12.12.2017.
For Appellant : Mr.K.Magesh
For Respondent : Mr.Om Prakash, Sr. Counsel
No.1 for Mr.P.Elayarajlumas
for M/s.Ramalingam Associates
For Respondent : No Appearance
No.2
JUDGMENT
(Judgment of the Court was made by T.RAJA , J.) The Commissioner of Coimbatore Municipal Corporation has brought this appeal, assailing the correctness of conclusion reached by the learned Single Judge in W.P.5065 of 2012 vide order dated 12.12.2017.
2. Heard Mr.K.Magesh, learned counsel appearing for the appellant/Coimbatore Corporation and Mr.Om Prakash, learned Senior Counsel appearing on behalf of the first respondent. 2 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018
3. Learned counsel appearing for the appellant would submit that the Writ Petitioner/first respondent herein is a licensed telecom infrastructure service provider known as M/s.Bharti Cellular Limited and was later changed as M/s.Bharat Infratel Ltd., and further known as Bharti Televentures Ltd and it was further changed to Bharti Intratel Ventures Ltd. The first respondent herein, while carrying on its business, had opened new vistas for private sector enterprises to establish telephone services, pursuant to the license given by the Government of India for various parts of the country known as Telecom Circle. Although the Government of India is permitting necessary establishment of infrastructure including Base Stations, Trans Receiver Stations, Cables establishing Ducts and provide services to the public under various categories including fixed land lines, GSM based mobile services, Wireless Loop (WLL), CDMA based mobile services, Broad Band connection etc., the appellant has passed a resolution enabling them to collect the license fee for erecting a telephone tower, in exercise of the power under Sections 360 & 361 of the Coimbatore City Municipal Corporation Act, 1981 [hereinafter referred to as “CCMC Act”]. 3 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 Questioning the same, without even challenging the resolution passed by the Coimbatore Corporation, a Writ Petition has been filed by the first respondent herein, for issuance of a Writ of Certoriarified Mandamus, calling for the records of the appellant in demand notice dated 31.01.2012, claiming a licence fee of Rs.37,500/- for the year 2011-2012 for the business of Airtel tower and to quash it and the same was allowed by this Court on the ground that the appellant has no source or power to levy such charge. It was also the claim of the Writ Petitioner/first respondent herein before the learned Single Judge that when the Government of India pursuant to liberisation of the economy, had opened up new vistas for private sector enterprises to establish telephone services, pursuant to the licence given by the Government of India for various parts of the country known as telecom circle, the Government of India is permitting necessary establishment of infrastructure including Base Stations, Trans Receiver Stations, Cables establishing Ducts and provide services to the public under various categories including fixed land lines, GSM based mobile services, Wireless Loop (WLL), CDMA based mobile services, Broad Band connection etc., and further taking a stand that the 4 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 Department of Telecommunication is the authority under the Telegraph Act to apply for licence for various telecom circles in the country, they are entitled to install telephone towers in the place in question. After taking licence from the Central Government, they need not to pay any more licence fee to the State Government. The learned Single Judge also accepting the case of the Writ Petitioner overlooking the fact that the Writ Petitioner has failed to challenge the resolution passed by the Coimbatore Corporation and that no Writ will lie challenging the demand notice, allowed the Writ Petition, as the appellant is not entitled to make any demand for payment of license fee. Arguing further, learned counsel for the appellant would submit that the learned Single Judge has failed to consider the vital fact that the licence granted by the Central Government to the first respondent under the Telegraph Act is not a blanket exemption to them from the applicability of various other legislations of the concerned State. Moreover, the learned Single Judge has failed to consider that the Government Order in G.O.(Ms) No.2 dated 01.04.2002, G.O.(Ms) No.302 dated 12.12.2002 and G.O.(Ms) No.177 dated 17.12.2002, had granted certain exemption to the BTS Towers constructed by Telecom Companies from the 5 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 applicability of the Tamil Nadu District Municipalities Building Rules, 1972 and Multi-storeyed Public Building Rules, 1973, by itself will imply that various State legislations like Coimbatore City Municipal Corporation Act are specifically applicable to the first respondent. Yet another view taken by the learned Single Judge shows that Section 360 of the CCMC Act has been completely overlooked. As per the said Section, no place within the limits of the Corporation area shall be used for any purpose mentioned in Schedule IV, without a licence obtained from the Commissioner and except in accordance with the conditions specified therein. Therefore, when Sections 360 & 361 of the CCMC Act are empowering the Commissioner of Coimbatore Corporation to levy licence fee from the owner of the telephone tower, it is not open to them to canvass before the learned Single Judge or before this Court that they have already paid licence fee to the Central Government and they cannot once again be compelled to pay licence fee to the Coimbatore Corporation. When the Coimbatore Corporation has been collecting various licence fee and enumerated taxes which are the main source of income to the appellant Corporation, the Writ Petitioner cannot approach the learned Single Judge for refusing the claim of 6 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 the demand made by the appellant, which is untenable and unjustifiable. Concluding his argument, he has contended that the learned Single Judge, while relying upon the order passed by this Court in W.P.(MD) No.17 of 2015 [M/s.Indus Towers Ltd., Coimbatore Vs. The Commissioner, Dindigul Municipal Corporation, Dindigul] dated 23.03.2017 has failed to consider the facts of the case in hand which is different from the one dealt with in the said Writ Petition (MD) No.17 of 2015, which was relating to permission for construction of BTS Tower, to which the various Government Orders, including the G.O.(Ms) No.177 dated 17.02.2012 may be applicable, whereas the present case is relating to the licence fee charged under Sections 360, 361 (a) and 451 of the CCMC Act and therefore the impugned order passed by the learned Single Judge, is liable to be interfered with.
4. Mr.Om Prakash, learned Senior counsel for the first respondent herein/Writ Petitioner in reply, submitted that G.O.(Ms) No.2 dated 01.04.2002 was issued, granting permission to the licenced telecom operators to install BTS towers on the roof top or on the ground of premises and buildings belonging to Government 7 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 of Tamil Nadu on the basis of technical feasibility. Yet another G.O.(Ms) No.302, dated 30.01.1997, was issued extending the facility to private buildings also. Once again another G.O.(Ms) No.177, dated 17.12.2007 was issued, granting exemption of BTS tower constructed by the telecom companies from the provisions of Tamil Nadu District Municipal Building Rules, 1972 and Multi Storeyed and Public Building Rules, 1973. A perusal of the same would clearly show that the issuance of the demand notice by the appellant Corporation dated 31.01.2012, demanding a sum of Rs.37,500/- from the Writ Petitioner/first respondent herein for the year 2011-12, perpetuating to claim under Sections 360 & 361 of the CCMC Act, is only baseless. The reason is that a careful reading of Sections 360 & 361 of the CCMC Act would put an end to any doubt or confusion raised by the appellant. Explaining further, learned Senior Counsel would submit that the appellant has no power to claim any licence fee, if the item is not covered under Schedule IV mentioned in Section 360(1) and also 361(1)(b). It is therefore necessary to extract Sections 360 & 361 of CCMC Act, which reads as under:
“360. Purposes for which places within the 8 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 limits of the City may not be used without a license. — (1) No place within the limits of the City shall be used for any of the purposes mentioned in Schedule IV without a license obtained from the Commissioner and except in accordance with the conditions specified therein:
Provided that no such license shall be required for the use of any place for a lodging house as defined in the Tamil Nadu Public Health Act, 1939 (Tamil Nadu Act III of 1939), if the keeper thereof has been registered under that Act.
(2) The owner or occupier of every place for the use of which for any purpose a license is required under sub-section (1) shall apply to the Commissioner for such license not less than forty-five and not more than ninety days before the place is used for such purpose.
(3) Every application for a license for the use of any place for the purpose of storing or selling explosives, timber or other combustible materials shall contain a Statement showing the boundaries and measurement of such place.
(4) (a) On receipt of any such application as is referred to in sub-section (2), the Commissioner may subject to the provisions of 9 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 clauses (b) and (c), grant the license specifying therein such conditions as he may think fit to impose in accordance with the rules, if any, made by the Government in this behalf, or refuse to grant the same.
(b) Before granting or refusing to grant a license under clause (a), the Commissioner shall cause a full and complete investigation to be made in the prescribed manner in respect of the application and shall have due regard to
(i) the suitability of the place in respect of which the license is applied for;
(ii) the possibility of any danger to life or health or property or the likelihood of any nuisance being created either by reason of the manner in which or by the conditions under which the place is proposed to be used or by the nature of such use; (iii) the provisions of other Acts, if any, and the rules and by-laws made there under, regulating the use of places for the purpose for which a license is applied for under this Act; and
(iv) such other matters as may be prescribed.
(c) If the Commissioner is satisfied either on a reference made to him in this behalf or 10 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 otherwise that —
(i) a license granted under clause (a) has been obtained by misrepresentation as to an essential fact, or
(ii) the holder of a license has, without reasonable cause, failed to comply with conditions subject to which the license has been granted or has contravened any of the provisions of this Act or the rules made thereunder, then, without prejudice to any other penalty to which the holder of the license may be liable under this Act, the Commissioner may, after giving the holder of the license an opportunity of showing cause, revoke or suspend the licence.
(d) Subject to any rules that may be made in this behalf by the Government, the Commissioner may also vary or amend a license granted under clause (a).
(5) Every such license shall expire at the end of the year for which it is granted or at such earlier date as the Commissioner may, for special reasons, specify in the license.
(6) Applications for renewal of such licenses shall be made not less than forty-five and not more than ninety days before the 11 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 commencement of the year for which the renewal is sought.
361. Application to be made for construction, establishment or installation of factory, workshop or work-place in which steam or other power is to be employed. — (1) Every person intending -
(a) to construct or establish any factory, workshop or work place in which it is proposed to employ steam-power, water-power or other mechanical power or electric power, or,
(b) to construct any building, hut or structure which is intended to be used for any of the purposes mentioned in Schedule IV; or
(c) to install in any place, any machinery or manufacturing plant driven by steam, water, electric or other power as aforesaid, not being machinery or manufacturing plant exempted by rules, shall before beginning such construction, establishment or installation make an application in writing to the Commissioner for permission to undertake the intended work.
(2) The application in respect of matters specified in clauses (a) and (c) of sub-section (1) shall specify the maximum number of workers 12 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 proposed to be simultaneously employed at any time in the factory, workshop, work-place or premises and shall be accompanied by
(a) a plan of the factory, workshop, work-
place or premises prepared in such manner as may be prescribed by rules made in this behalf by the Government; and
(b) such particulars as to the power, machinery, plant or premises as the Council may require by by-laws made in this behalf. (3) The application in respect of matters specified in clause (b) of sub section (1) shall contain such particulars as the Council may require by by-laws made in this behalf.
(4) The Commissioner, with the previous sanction of the Standing Committee, shall, as soon as may be, after the receipt of the application –
(a) grant the permission applied for either absolutely or subject to such conditions as he thinks fit to impose, or
(b) refuse permission if he is of opinion that such construction, establishment or installation is objectionable by reason of the density of the population in the neighbourhood or is likely to cause a nuisance.
13 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 (5) Before granting permission under sub-
section (4), the Commissioner -
(a) shall, if more than nine workers are proposed to be simultaneously employed at any time in the factory, workshop, work-place, or premises, obtain the approval of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act LXIII of 1948) having jurisdiction in the City or if there is more than one such Inspector, of the Inspector designated by the Government in this behalf by general or special order, as regards the plan of the factory, workshop, work-place or premises with reference to —
(i) the adequacy of the provisions for ventilation and light;
(ii) the sufficiency of the height and dimensions of the rooms and doors;
(iii) the suitability of the exits to be used in the case of fire; and
(iv) such other matters as may be prescribed by rules made by the Government; and
(b) shall consult and have due regard to the opinion of the Health Officer as regards the suitability of the site of the factory, workshop, 14 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 workplace or premises or building or hut or structure for the purpose specified in the application.
(6) All chimneys in connection with any such factory, workshop or work place or any such machinery or manufacturing plant shall be of such height and dimensions as the Commissioner may determine.
(7) More than nine workers shall not be simultaneously employed at any time in any factory, workshop, workplace or premises, unless the permission granted in respect thereof under sub-section (4) authorises such employment or unless fresh permission authorising such employment has been obtained from the Commissioner. Before granting such fresh permission, the Commissioner shall obtain the approval of the Inspector of Factories, referred to in clause (a) of sub-section (5), as regards the plan of the factory, workshop, workplace, or premises with reference to the matters specified in that clause.
(8) The grant of permission under this section -
(a) shall, in regard to the replacement of machine, the levy of fees, the conditions to be 15 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 observed, and the like, be subject to such restrictions and control as may be prescribed; and
(b) shall not be deemed to dispense with the necessity for compliance with the provisions of sections 272 and 274 or sections 288 and 289, as the case may be.
(9) The Standing Committee shall, before giving sanction to the Commissioner for the granting or refusing to grant permission under subsection (4), give due regard to the provisions of this section.”
5. A careful reading of the above provisions would show that no place within the limits of the City shall be used for any of the purposes in Schedule IV. Again Section 361(1) (b) also says that every person intending to construct any building, hut or structure which is intended to be used for any of the purposes mentioned in Schedule IV, shall before beginning such construction, establishment or installation make an application in writing to the Commissioner for permission to undertake the intended work. In the instant case, if we look at the Schedule IV framed under Section 360 listing out various areas where the Corporation can raise 16 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 licence fee, nowhere we are able to see that the telephone towers are to be installed with the permission of the Commissioner by the Writ Petitioner/first respondent herein either in any of the Government land or Private land, by making licence fee and therefore, the argument advanced by the learned Senior Counsel that there is no source or power to show either before the learned Single Judge or before this Court by the appellant to claim licence fee from the Writ Petitioner for installing telephone towers does hold good. The learned single Judge, relying upon the order dated 23.3.2017 passed in W.P.(MD) No.17 of 2015, has referred to the following legal position. G.O.Ms.No.177 dated 17.2.2002 shows that the telephone towers have been exempted from the Tamil Nadu District Municipalities Building Rules, 1972 and Multi-storeyed and Public Building Rules, 1973. Besides, G.O.Ms.No.302 dated 12.12.2002 has directed that the installation of Base Trans Receiver Station Towers shall be permitted in all the land use zones in the master plan. Even the letter No.5742/C3/2008-G dated 26.3.2009 sent by the Secretary to Government, Energy Department, Chennai to the Principal Secretary and Chairman, Tamil Nadu Electricity Board, Chennai also shows that all municipalities and local bodies 17 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 have been instructed not to insist upon building permission from the cell phone companies for erection of Base Trans Receiver Station Towers, in view of the orders issued in G.O.Ms.No.177. In addition thereto, the Secretary to the Department of Telecommunications by D.O.No.17-2/2013-S-1 dated 8.8.2013 made it clear that necessary guidelines should be framed by the State Governments for issue of clearance for installation of mobile towers. In the said guidelines, it is made clear that the telecom towers have been given infrastructure status by the Government of India and all benefits as applicable to infrastructure industry should be extended to the construction of towers. Again the learned Single Judge, referring to the earlier order dated 23.3.2017 passed in W.P.(MD) No.17 of 2015, found that the letter dated 02.06.2014 from the Deputy Secretary to Government, Municipal Administration Department to the Principal Secretary and Commissioner, Corporation of Chennai, Commissioner of Municipal Administration, Chennai and Director General of Panchayats showed that as on date no such guidelines have been framed by the Government. Therefore, the action of the municipality in insisting on licence/permission for construction of towers is not in accordance with the existing law as well as the 18 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018 Government Orders issued referred to supra. Therefore, when the petitioner had obtained licence from the Central Government by making necessary charges, they cannot be once again made to pay the licence fee, as there is no power for the appellant to claim any licence fee. This legal issue has also been considered by the learned Single Judge in his order dated 23.03.2017 passed in W.P.17 of 2015, dealing with a similar and identical issue, holding that the action of the Dindigul Municipality seeking for licence fee or permission to install telephone towers was not in accordance with the existing law, as well as the Government Orders issued therein. On this basis, the Writ Petition was allowed. In the present case also, as it was contended by the Writ Petitioner that they had already installed the telephone tower after obtaining licence by making necessary fee from the Central Government, in the absence of any source or power traced to the appellant Corporation to demand licence fee from the Writ Petitioner, we do not find any infirmity in the impugned order passed by the learned Single Judge in W.P.No.5065 of 2012, dated 12.12.2017.
19 https://www.mhc.tn.gov.in/judis W.A.No.1408 of 2018
6. In the result, the Writ Appeal stands dismissed, confirming the order passed by the learned Single Judge. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.
(T.R., J.) (K.B., J.)
23.06.2022
DP
Index:Yes/No
Order:Speaking/Non Speaking
20
https://www.mhc.tn.gov.in/judis
W.A.No.1408 of 2018
To
1.The Commissioner,
Coimbatore Corporation,
Coimbatore District.
21
https://www.mhc.tn.gov.in/judis
W.A.No.1408 of 2018
T.RAJA, J.
and
K.KUMARESH BABU, J.
DP
JUDGMENT MADE IN
W.A.No.1408 of 2018
and
CMP.No.11248 Of 2018
23.06.2022
22
https://www.mhc.tn.gov.in/judis