Karnataka High Court
Wireless-Tt Info Services Ltd vs State Of Karnataka on 23 November, 2011
Equivalent citations: AIR 2012 (NOC) 180 (KAR.), 2012 (1) AIR KAR R 696, (2012) 3 KANT LJ 302, (2012) 4 ICC 91
Author: Vikramajit Sen
Bench: Vikramajit Sen
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 238° DAY OF NOVEMBER, 2011
PRESENT
THE HON'BLE MR. VIKRAMAJIT SEN, ACTING CHIEF ml STi CE
AND By
THE HON'BLE MR. JUSTICE'A. S. F OPAN?
W.A.Nos.1/2011 & 551-552 2/2911 LB: -RES)
of :
W.A.Nos,1009/2011, 13-25/2011, 50-51/2011,
130-136/2011, 76/2011, 77-78/2011,-
80-84/2011 & 3307-3316/2011 (LH-RES)
W.A.Nos.1/2011 & 551-5352/2011 _
BETWEEN:
WIRELESS ~?TT IN 9 SE RVIC BS pe Ds,
HAVING ITS OF FICE EAT :
Sr FLOOR, Sid PRIMUS, oO
No.1, INDUSTRIAL LAYOU?
774 BLOCK, KORAMANGAL An
BANGALORE ~ 560-098.
REP BY ITS LEGAL DY. M ANAGE R
MR. GOWTHAM MSs. 5 .. APPELLANT
"By © SRI SHAILESH K KAPOOR, ADV. FOR
_ SRI BN JAYADEVA, ADV.)
AND:
ood, STATE OF KARNATAKA
BY TIS CHIEF SECRETARY
_ URBAN DEVELOPMENT DEPARTMENT
MLS. BUILDING
. BANGALORE-560 001.
2° THE DIRECTOR
DIREC TORAT OP MUNICIP: AL,
ADMINISTRATION, PODI
AMBIEEDAA ARN V TDHL, BANGAL ORE.
ee
THE HEP OPPICITS
TOWN MUNICIPAL COUNCIL
LINGSUR, RAICHUR DISTRICT
RAICHUR ~ 584 120
TRE SECRETARY
Gt IKAI aN. A VILL AGE PANCHAYAUT
KUMTA, UTTARA KAIRNATAKA,
a
5. THE CHIEF OFFICER
TOWN PANCHAYATH a
BEELAGI. . RESPONDENTS . --
[By SRI B VEERAPPA, AGA. FOR Ri & 2°07
SRI PRAMOD P KULKARNI, ADV. POR RS o ,
SRI NERERALAGI, ADV. POR Ra
SRI DS, HOSMATH, ADV. FOR RS)
THESE WRIT APPEALS ARE FILED 5 4 OF THE
KARNATAKA HIGH COURT ACT PI Ove TO. SET ASIDE THE
ORDER PASSED IN THE. W.PLNOS. C162/ f 2009 P4727: 3/2009
DATED 25/11/2010. : a
W.A.No. 1009/2011
BETWEEN:
ATC INDIA TOWER CORP OF RATION, PVE. -LYD.,
(PORM ERLY (XCEL TEES SGM PRIVY AYE LIMITED)
A COMPANY REGISTERED UNDER. THE
COMPANIES ACY. 3 . HAY NG. ts
REGISTERED OF FICE AT AG4 (474 FLOOR
SKYLINE ICON, SEAR MITT. 'AL INDUSTI RIAL
ESTATE, ANDHERT KURLA ROAD,
. ANDIVERI (EAST), MUMBAI - 400 Of Bo
. ANB HAVING
: f * MUNICI
mH BL OF co x
TPS REGIONAL PRESENT OFFICE
LNO.8C-432, 18? STAGE
LAYOUT,
560 043
5D BY us SOUTHERN
L HEAD, LT.COL.ANIL SOOD
, SUT 57 YEARS
SON OF MR. B.R. SOOD .. APPELLANT
{BY SRI COL.BHUPINDER SINGH, ADV}
2. STATE OF RARNATARBA
REP, BY [Ts PRINCIPAL SECRICTARY
TO GOVERNMENT URBAN DEVELOPMENT
DEPARTMENT, VIKASA SOUDHA
BANGALORE-560 001.
(BY SREB VEERAPPA, AGA}
THUS WRIT APPEAL IS FILED U/S 4 OF °
.. RESPONDENTS
PHE KARNATAKA.
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDE RE BS ASSE D UN
THEE WOP NOT 2368/2009 DATED 25/ LE f2O.10,
W.ANos,13-25/2011
BETWEEN:
L. RELIANCE COMMUNICATION LIM cE D i
HAVING ITS CIRCLE OFFICe At No. Pay
"SUBRAMANYA ARCADE', a
TOWER B. GROUND FLOC Re
BANNERG HA' TA ROAD
BANGALORE -be0.029° |
REP BY TTS A THORIZE 1D SIGN: APORY,
MR. PADMAI \BHAN, G.
2. RELIANCE INFRATE! oO iMITED .
HAVING ITS GC PRICIS AT No J2/2,
"SUBR AMANYA & RCADE',
TOWER.B, GROUND FL OOR-
BANNERGHATTA ROAD... >
BANGALORE -560.029, --
REP. BY ITS ALY PHORIZED SIGNATORY
MR. PADMANABF TANG.
- (By SREUDAY HOLLA, Sr. COUNSEL FOR
+ .SREG VW. BHAP& SRI 5.T. GIRISH, ADVS.]
AND:
".-STATE OF KARNATAKA
"BY TTS CHIEF SECRETARY
_ URBAN DEVELOPMENT DEPARTMENT
-M.S.BUILDING, BANGALORE.
OO PPES DIRECTOR
DIRECTORATE OF MUNICIPA
ADMINISTRATION, POD!
AMBPETISAR VIDHI, RANGA! OR °F.
wAPPELLANTS
3. THE SECRETARY
KOLUIRU VILLAGE PANCHAYATH
BELLARY TALL, BELLARY
VHS COMMISSIONER
CITY MUNICIPAL COUNCIL
BHADRAVATHT.
cs
THE COMMISSIONER
CTPY MUNICIPAL COUNCIL a
TUMEUR, dS BON DENT. S
ae
(py SKI B VEERRAPPA, AGA. FOR RI & 2
SRE D NAGARAJ, ADV.POR R4 ,
SRD M NEKHILESH RAO, ADV. FOR
M/S. INDUS LAW, FOR RS, RO-SERVED)
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURE ACE PRAYING TO SET ASIDE THE
JERE
ORDER PASSED IN THE. W.P.NOS.7165/2009 & 7474-84/2009
DATED 25/11/2010. -- ne,
W.A.Nos. 50-81 /2014 -
BETWEEN: |
AIRCEL LIMITE _
HAVING ITS fe LE. OFFICE. AT
38D FLOOR, HM VIBHA TOWERS
NO.66/5-25, LUSKER HOSUR ROAD
ADUGO BS BENGALURU-560 029
_ REP. BY ITS AUTHORIZED SIGNATORY
oMR, Vv TOA KGMAR BAHL. . APPELLANT
i (BY SR LS: Vv SHAY & SEE GBT. GURESH, ADVS.)
AND:
SL SIRE OF KARNATAKA
BY TTS CHIEF SECRETARY
URBAN DEVELOPMENT DEPARTMENT
M.S. BUILDING, BANGALORE.
2 "THE DIRECTOR
DIRECTORATE OF MUNICIPAL
ADMINISTRATION, UM BLOCK,
AMBEDKAR VIDHI, BANGALORE.
3. THE SECRETA!
VILLAGE, PA
GOPALA, TARIKERE TAL AK
CHIRRAMAGALITR DISTRICT.
4, THE SECRETARY
VILLAGE PANCHAYATH
HALINGANAHALLL
NAGAMANGALA TALIK
MANDYA DISTRICT. ..RESPONDENTS.
(By SRL B VEERAPPA, AGA. FOR R1 & 2
R3 & R4- SERVED)
THESE WRIT APPEALS ARE FILED -U/S 4 OF THE *
KARNATAKA HIGH COURT ACT PRAYING TO "SEP ASIDE THE
ORDER PASSED IN THE W.P.NOS.8193-8134/2009 "DATED
25/11/2010. |
W.A.Nos. 130-136/2011 _
BETWEEN:
INDUS TOWERS L IMITED on
A COMPANY INGOFPORATED: LE NDER"
INDIAN COMPANIES
HAVING ITS CIRCLE OFFICE Ar NO. 12.
SUBRAMANYA.ARCADE, TOWER-D
Mt FLOOR: BAN NEROE LATTA' ROAD
BANGAL ORE -- 560 029,
REP. BY TTS''AUTHCRISED
SIGNATORY 'SHRINATH. M Ss, oe .. APPELLANT
.
(By SRI UDAY 'HOLLA, SR. ¢ © Ot JNSEDL FOR
Sk J SV. BHAT & OR ES. . GTRISH, ADVS
AND.
1 o STATE OF K
3y EE SECRETARY
Ut IDI "VELOPMENT DEPARTMENT
MLS. BU DING, BANGALORE
OURECTOR
, CTORATE OF MUNICIPAL
ADMINISTRATION, PODIUM BI JOCK,
AMBEDBAR VIDEHI, BANGALORE,
"9. THE
Reale
CH) iE Be oO PRICE
REMY pA, "NORT id : OKANNAE BAL
4. CPUEP OFFICER
MUNICIPAL COMMITTPTER
ULLALA, DAKSHINA KANNADA,
THI MUNICIPAL COMMESSIONIER
CITY MUNICIPAL COUNCIL oo
RALCHIUR., » RESPONDENTS.
wn
(Sy SREB VICSRAPPA, AGA, FOR RI & 2
RO. R4 & RS- SERVED)
AILED u is b. OF
THESE WRIT APPEALS ARE -t Pur
TO. SE AS! SDE THE
VET
RARNATABA HIGH COURT ACT PRAYING
ORDER PASSED IN THE W.P.NOS.7168 AND 5
25/11/2010. :
WLANG.76/2611
BETWEEN :
VODAFONE ESSAR SOUTH LTD. wo
(PORMERLY ate WAS HUTCH! SON
ESSAR SOU" ELL MD. 7. - :
NOW AP LI/1. 1oyh _KORAMANG AL A :
INTERMED? ATE T i ANGE PROADD © an
AMARIYOTHI LAYOUT.
BANGALORE ~560 C7 be. .
REP, BY ITS DEPUTY MANAG ER 7
LEGAL SHRI: NIEHIL M. ROR) ALATS .. APPELLANT
SRI GURURAY-D.M. ADV. FOR
M/S. GURURAJ ASSOCIATES)
AND
CORPORATION. OF THE CITY OF BELGAUM
~ BELGAUM.
Jo REP. BY ITS COMMISSIONER, .. RESPONDENT
- (BY SRI B.VEERAPPA, AGA}
7 THE WRIT APPEAL [S FILED U/S 4 OF THE KARNATAKA
* EG COURT ACT PRAYING TO SEP ASIDE THE ORDER PASSED IN
THEE WUPLNO. 19530 /2005 DATED 25/11/2010.
WS
ty
W oA.Mas. 77-79 /2611
BETWEEN:
" JDAPONE ESSAR SOUTH LTD..
1/1, 12/1, KORAMANGALA
INT NORMEDIATE RING ROAD
AMARIYOTHI LAYOUT
BANGALORE-56O O71.
NOW REP. BY ITS DEPUTY MANGER me -
-LISGAL SHRI NIKHIL M KORWAR J APPELLANT -.
(BY SRI GURURAJ D.M. ADV. FOR
M/S, GURURAJT ASSOCIATES)
AND:
i. STATE OF KARNATAKA:
BY ITS PRINCIPAL SECRET ay
M.S.BUILDING, BANGALORE.
2. THE DIRECTOR: nn
DIRECTORATE OF MUNICIPAL © oe
ADMINISTRATION, PODLIM BLOCK.
AMBEDEAR VIF OnE, BANG? SI LORE. ,
MUNICIPAL COMMISSIONER.
CITY MUNICIPAL COUNCE, |
BHADRAVATHE 0% .. RESPONDENTS
oy
Tae
:
(BY SRI B.VEERA PPA, AGA"
THESE WRIT APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO SEY ASIDE THE
ORDER PASSED IN THE W.P.NOS.7164 AND 7485-86/2009 DATED
"28/1 1/2016.
W.A.Nos. 80-54/2011 & 3307-3310/2011
Do. BETWEEN:
BMARATI AIRTEL LIMITED
a. DIVYASHREE TOWERS
HOROMATTA ROADS
POSITE JAYADEVA HOSPITAL
DANGALORE-S60 029
© IEP. BY TDS OF PICER-LIEGAL
sliRi. N.PRASHANTH .. APPELLANT
RAG DM. AD' PC aN
URAG ASSOCIATES
UBY SRI GUE
Mss. C
fe
AND:
Lo SPATE OF KARNATAKA
BY ITS CHIEF SECRETARY
URBAN DEVELOPMENT DEPARTME
MLS. RLUTLDING, BANGALORE,
2 ThE DIRECTOR
DIRECTORATE OF MUNICIPAL
ADMINISTRATION, PODIUM BLOCK
AMBEDBAR VIDUHT
BANGALORE. ee
3. MUNICIPAL COMMISSIONER
CTPY MUNICIPAL COUNCIL
BHADRAVATHE.
4, "THIS COMMISSIONER
MATANAGARA PALUAE ._
DAVANAGERE ~
7
MUNICIPAL COMM
PAVAGABA a.
TUM<UR DIS PRICY a
7. CHIE var FRIC ER _ oe
MUNICIPAL © (COMMIT: PEE *s
SANDOOR™ ~~
"OS, THE PRESIDENT
"VEE LAGE PANCHAYAT
_ NEGHUDSHIRSI
- NORTH. KA NADA
Gg. SHE SECRE i "ARY
BAILU VRADHIGERI VILLAGE
PANCHAYAT, HOSPETE TALUK. . RESPONDENTS
(PY SRI B.VEERAPPA, AGA. FOR R1& 2
. SRE BLK MANJLUNATH, ADV. FOR R4
. SRIY.S.H. REDDY. ADV. FOR R7
R38 & RS- SERVED)
THESE WRIF APPEALS ARE FILED U/S 4 OF THE
KARNATAKA HICH COURT ACT PRAYING TO SET ASIDE THE
ORDER PASSED IN THE W.P.NOS.8194-8139/20090 DATED
25/13 P9010.
Bf SA
it
Ae
THESE APPEALS HAVING BEEN RESERVED FOR ORDERS,
COMING ON POR PRONOUNCEMENT THIS DAY. A. 8, BOPANNA J.,
PRONOUNCED THE FOLLOWING:
JUDGMENT
# The appellants herein who are the liceficees. under ihe provisions of the Telegraph Act. 1885. fer providing --
telecommunication services to th e general 'pu bli, shad approached this Court by . filing. the vespective writ petitions from which the present app vals. arise In the said writ petitions, the petitioners had called in question the demands | raised "against. the : petitioners by the respective peal Bodies. he demands had been raised in respect of. the. erection 'of the base trans-receiver station. The contention | or behalf of the petitioners therein was that the Munici pal authorities/Local Bodies have no . authority to make.plysical demand in respect of the
-telecomimu nication towers installed. It was their contention "that the provisions of the Karnataka 'Municipalities Act, Panchavath Rai Act and Karnataka / i 3 J "Municipal Corporation Act does not provide for the imposition of property tax, licence fee, permission fee ete., . or) telecommunication towers.
2. iO
2. The learned Single Judge though has accepted the contention that there is no provision to collect the permission fee and installation charges in re: Sp sect of communication towers has thereafter held - that "the structure viz., the telecommiutnication tower sansiwer rs the definition of 'building' as defined under Section 23). and - 2{1-A) of the respective Actse. M hows! gh the demand re ite cs were quashed, the learned Single J udge was oft the view that the quantified arrowat as. fixed by the Bruhat Bangalore Mahanagara Paltke is is 40 be ater spted by the other local bodies. AR fusther aire on was also issued for iraming such tas feces | in this, | regard. The petitioners claiming be 'a ggrieve d by ; the decision of the learned Single Jud ge are betor re this Court in these intra-Court . appeals.
3. Heard Sri Udaya Holla, learned senior counsel, Sri | Shailesh: 1. Kapoor, -01. Bhupinder Singh, Sri Gururaj.
"learned counsel appearing for the respective appellants : and Sti 3. Veerappa, learned Additional Government . 7 Advocate, Sri fndra Kumar. learned senior counsel and the respective learned counsel for the other respondents and perused the appeal papers.
oy f i a
8. im:
4. 'The sum and substance of the contentions urged * on behalf of the appellants is that the installation of the towers is for the wireless communicatior system as provided under the Indian Telegraph Act, 1@8&.- "The licence is granted under the Act by the Ministry of:
Communication and IT, pursuant to-which a licence. agreement is entered into which would govern the nature of installation of the equipments "as, per the rights guaranteed to the petitioners. 'The communication apparatus in question theugh ce bea @ tower is a 'post' to which the equipments ore fixed and aS such the same cannot be considered as suc ch structure' which is included in the de enition o of 'pul img as contained in Sections 2{3) and 2(1- A) of the. redpective Acts governing the local bodies. 'The omy right under the said Acts to the Local + Bedies is to impose tax on land and buildings and as such, tae telecommmunication equipment which does not answer
- the definition cannot be taxed. There is no other provision Wik Le said Acts which empowers the Local Bodies to raise a demand, more particularly. when the permission granted = to the appellants is under a Central enactment. In this regard, it is also contended that the telephones, wireless or otherwise is indicated ai Entry 31 to List 1 of the VI BE ae .
Ege 12 schedule and therefore, the Local Bodies in any event a cannot rely upon the State Law to raise demands. Elaborating the said submissions and by placing: reHance on the decisions which would be referred to B exearter, 'the appellanis contend that the respondents cannot raise any"
demand in respect of the same.
5. On the other hand, the gist of the | cotttention on behalf of the respondents is that the Entry 49-10 List 2 to Schedule VY of the Consti ution of initia relates to taxes on lands and buildings, "Therefore, the State legislature is empowered to-.make laws for impcsition of tax on lands and buildings. "In this régard. Section 94 of the Municipalities Act. provides for imposing tax on land and building. Similarly. Section 103 of Mu nicipal Corporations » Act-arid, Section 199-0f the Karnataka Panchayath Raj Act also 'provides. for levy of tax. In this background, the stmucture put up by the appellants is a Duilding as defined Soe, in Sections 2{3} and 2(1-A) of the res pective Acts governing ~ the. Local Bodies and as sucn, the local bodies are empowered to regulate as well as impose tax. In this 'regard, the word 'structure' as contained in the definition of 'building' is heavily relied on to contend that the tower is ) os ee id lo be construed as building and therefore, the tax levied is justified.
6. In the light of the rival contentions and lkeeping in view the justification sought to be put. forth. bv "the respondents that the telecommuinication equipment viz...
the tower is a metal structure and therefore the. saine fits into the definition of 'building' as contained i-Séction 2(3) of the Karnataka Municipalities, Act, Section 201-A} of Karnataka Municipal Corporations Act. and Section A{S) of Karnataka Panchayath Raj Act, tis necessary to notice the definitions as contained therein".
KARNATAKA MISNICIPALITIES ACT ""2(3). "Building" inchides a house, out-
» hiouse, stable, latrine, urinal, shed, hut, wall.
"verandah, fixed platform, plinth, doorstep, staircase or any other such structure, whether of masonry, bricks, wood, m ud, metal or any _ oUner material whatsoever: but does not include _a-portable shelter."
"KARNATAKA MUNICIPAL CORPORATIONS ACT "(2) L1-Al Guilding inchides,-
fa} a house, cut-house, stable, privy, shed, hut, wall, verandah, fixed platiorm, plinth, door step and any other such Structure, whether of masonry, bricks. wood, mud. metal or any other materic whatsoever;
f 5 "po a fo eae Sere i (bo) a stracture on wheels simply resting on the ground without foundations:
(©) a ship. vessel, boat, tent and any other structure used for human habitation or used for keeping or storing any article or goods. me KARNATAKA PANCHAYATH RAJ ACT "2(3). "Building" incles des (Aa. hou SC out) house, shop, stable. warcho: Ise, worksnop, canopy. shed, hut or ether enclusure whether used as a humatri. dwell! ing. or: otherwise and shall include a wall, compound wall, fencing, verandah, platform. -olinth doorste p and the like." - : -
%. Phe respondents en contending that the metal SITUCLUYES - erecte a. for. telecomimunication, either on the building or.on lafie' should also be construed as 'building' since the relevarit definitions in the instant case includes "other such. structure'; relied on the decision of the ~ Hone. Supreme Ceurt in the case of Municipal = Cerporation of Greater Bombay and Others -vs- indian Oil Corporation Ltd. (1991 Suppl(2) SCC 18). The "que restion that arose for consideration in the said case was 'ag to. whether the petroleum st brage tank is a 'building' or and. The said question was considered in the
- bac Ksround of the definition COMLaHIEd i Section S Fi ane
(s) of Bombay Municipal Corporations Act, 1888, which Ee iO included "every other sueh structure', In that context, it was considered as io whether the land therein was amenable to property tax as provided in Section 14.3 al and 154 of that Act. Their Lordships ultimately ent reluded. as hereunder:
"32. The tanks, thouh, are: resti ing One: arth on"
their own weight without bein ig lixed with nuts and bolts, they have permanently been erected without being shifted from place 'to place. Pert maneney is the test. The chattel whether is movable to another place of use in the same position: orHable to-be dismantled and re-erected at the later place?. If the answer is yes to the former, it) must be a movable property and thereby it must be held that il.is-niot attached to the earth. Hi 'he answer is yes to the jatter it is attached to the 'earth. For instance ~a shop for sale of merchandise « 'or ealables is a structure. The same cour' be-seld by Keeping in a push cart which has its nobility: front" plac €&. 1G piace. Merely because it is stationed: at a particular place and business was carried on, it cannot be said that push cart is a shop. The fact that no nets and bolts were used to imbed the tank tothe earth by itself is not conclusive, _ Though the witness stated that the tank is capable of ., Deins shifted, as a fact the tanks were never shifted rom the places of erection. By scientific process, the .. tanks stand on their own weight on the earth at the ". place-of erection as a permanent structure.
33: th € » petroler im products are being stored through pipes and are taken out by mechanical process. The operational mechanisation also though relevant, is net conclusive. The rateable value is based on the rent, which the building or land is eapable to fetch. Due to erection of the tanks whether the value of the demised property had appreciated or not, is also vet another consideration. Undoubte ciy, when the tanks are erected and used for commerc fal purposes, the value of the demised property would get appreciated. The annual letting value is capable of increase.
ff a ee AE Sees i?
case also, the question that was considered was rélating to the petroleum storage tanks.
9. That apart, when the sweep of the phrase "other such structures" arose for consideration befire the Hor:'ble Supreme Court in the case of Indian City Properties Ltd.. and another -vs- Municipal Commissioner of --
Greater Bombay and another [2005 #6) SCC 417, the decision in the case. of Indian "Oil Corporation Lid, (supra) was also referred therein, - Pu ether, though the question that arose for consideration was with regard to the acquisition" of the" property by the Municipal Corporation. in "hte "with "the. street, the manner of determination of. the nature of structure was explained keeping _ VIEW Section 299 of the Bombay Municipal
- Cotporations Act." 1888 in construing the phrase "not ; oto pied. by any pullding" and "some other structure external to a building'. In the background of the existing me _., Structures that were listed out, the Court referred to section 3(s) of the Act wherein building was defined in a US in these cases. Therefore, the purport of the similar phrase "every other such structure' arose for 7 ae . Koen aN ae consideration. On consideration, the Court prescribed the iest as follows:
"19. The word "structure" is used as-generic termi so that while all buildings may be structtres, all structures are not buildings. That structure: which is not a building and is a platform, ver andah, step, or' some other such structure external to a building may. be taken over by the Commissioner under. Section ~ 290()) if it is within the regs ular ine of the street, The words "some other such" 'mist be =< construed aS structures similar or like platform, verandah and step. The words must be read ejusdem generis with the preceding werds since the word "such" means "of the type previousty mentioned': The word "other"
has also been held to andicate that it must be construed . ejusden. generis. ~~ The underlying characteristic o/ plath forms, verandahs and steps is that they are not independent structures and are external to a building, that is ihey are attached to the outside and Jorm-an inessential part of a building. In our opinion, therefore in order to be a building for the pur pose. of Section 299, the structure would have to be. an independent, permanent structure. Thus, there is no | repugnancy if one were to read the definition of bu ilding and Section 299 and in our _ opinion, the word "building" has been used in Section 299 in the sense defined in Section S{s)."
os 100 a ifs the above manner, the 'structure' which is the subject matter in the instant case is considered, it is a me tak pole or tower to which the antenna is attached and his t the backup system at its base. No doubt, it would have to be fastened to the roof of the building or embedded to the land with conereie base. nuts, bolts and the h eight of the pole may vary from case to case. Such structure Ag "4 ere rrr 18 though may suggest an clement of permanency, in our opinion does not belong to the genus of the type previously mentioned in the section defining the building. . If the phrase used was "other structures". the term. would have been wider to include other structures without reference.to™.
the first part of the section. But when it states, "other -
such structure", the structure in question will have to be of nature of the items mentioned in the first part of the section. Therefore, the towér/ post which is not relatable to the items mentioned inthe first part fe snot be construed as a building, to bring it within the sweep of Section 94 of the Karnataka Vinnicipalities Act 1964, Section 1O3(b) () of Karnataka Municipal Corporations Act. 1976 and Section 64 of Karnataka Panch ayath Raj Act, 1993.
'Liv in order to appreciate this aspect in better light, "ff is méeessary. to notice the charging sections in the respective enactments.
Karnataka Municipalities Act 1964 "Section 94. Taxes which may be imposed .- (1) Subject to the general or special orders of the Government, a municipal council,-
1} XKKX f i Raa (b} (xxxx) at rates not exceeding those (specified in et this Act} may levy any one or more of the following taxes.-
pate wf 0 "S4y fA a tax on building or vacant lands or both situated within the municipal area (hereinatter referred to as 'property tax) XXXX SOA XXXX XXX XMM XXNX XXKX oo XXXX XXXXK XXKX on . oe A duty on transfers of 'immovable, property in the shape of an additional stamp mets oe A lax on advertistments fother 'than advertisements published in news papers} erected, exhibited, fixed or retained upon or over any land, building, wall, hoarding, frame, post-or struc ture or upon or in any vehicle or, 'display to priblic View in any manner whatsoever' visible from 2 public street or public place». fincluding. any. adv: ertisement exhibited by meals cf cine emaiograph ye cE Explanation 4. "The "word 'structure' in this sub- clause includes any movable board on wheels used as an advertisetaent or an advertisement mediurn:
"Explanation ¥)- 'Public place' for the purpose of this ane. Ge sub- clatise means any place w hhich is open to the use yoyment of the public, whether it is actually ~used or enjoyed by the public or not; expla ination 3.- The word "advertisement" in this sub-clause means any word, letter, model, sign, placard, notice, device or representation. whether 'Ulurminated or not, in the nature of, and employed wholly or in part for the purpose of, advertisement, announcement or direction:
: Ne rom eS Karnataka Municipal Corporations Act. 1976.- "103. Taxes which may be imposed.- Subject to the general or special orders of Government, a Corporation shall.- fe |
(a) XXKKNM (pb) fat rates not exceeding these specific d in this.
Act] levy any one or rAore of the fol itex wind. -
a tax on (buildings or vac vant lands Or both situated within the city (he: reinafte cre terre od to as the property tax): :
XEXKXX) XXKXEN: a XXMKAXT XRXMAN:
a tax on advertisement:
_a'duty on certain transfers or property in the shape » Of an additional stamp duty:
OX) ceecsccas 'Karnataka Panchayat Raji Act, 1993 "199, Levy of taxes, rate, etc. by Grama Pancha 2yats.- (1) Every Gramma Panchayat shall in such manner and subject to such exemptions as m: ay be prescribed and mot exceeding the maximum rate specified in Schedule - IV jevy tax upon buildings and lands SEA eles be bed which are not subject to agricultural assessment, within the limits of the Panchayat areas.
Provided that where an owner of the building or land has left the Panc diavat area or cannot otherwise be found, the occupier of such bi ulding or fand shall be Hable for the tax leviable on such owner:
(2) (3)set inarket fee on persons who expose their good for A Grama Panchayat may levy water fate. for supply of water for drinking and other'. purposes -- ca rn"
A Grama Panchayat may also levy. all or any. - of the following taxes and fees at sue rates as "the Grama Panchayat. may by bye-laws determine but not exeeeding.the maximum specified in ochedule-lV and in suc Hemanneér-and subject to such exe miptions. as. umieay be prescribed, namely. - me tax. on-ente rain nent ot her: than clnematograph SHOWS:
iax ona veh ich eS, ether than motor vehicles: tax ee adve rtisement and hoarding: ~ pile grim ine Of) pes sons attending the jatras, festivals, etc., where necessary arrangement for water supply, health and sanitation are made "hy the Grama Panchayats:
Fa sale in any market place:
fee on the registration of cattle brought for sale in any market place;
lee on buses and taxies and auto-stands provided adequate lacilities are provided for the travellers by the Grama Panchayat; and jee on grazing cattle in the grazing lands".
E :
e 2 2 z i2. The above provisions indicate that a part fromm the other specific items for which power to tax has been provided, the power is also to impose tax on dand and building alone. In fact in Karnataka Munieipalities Act, 1964, the provision for tax on advertisements is exhaustive . and includes 'post' and 'structure' and the: term 'structure has been explained furtier put it only. relates to advertisement. This in' fact ind icates . that the telecommunication stituct are has 7 not been indicated separately nor does jt. get included "fei the definition of 'building'. Therefore. we are oft he 'considered opinion that the telecommunication cower/ post is not Hable to tax under the existing power available to impose tax on 'land' and 'buildings'. ° 1S: lt-is in a circumstance of the present nature that Article. 265 of the Constitution of India comes into play wherein' the mandate is that no tax shall be levied or oo eollected except by authority of law. On this proposition, thé-tearned counsel for the a ppellanis have relied on the decision rendered by the Hon'ble Supreme Court in the case of Bimal Chandra Banerjee vs. State of Madhya Pradesh [1970(2) SCC 467}: State of Kerala us. Madras 4 eee OF Rubber Factory Lid [1998(1) SCC 61 6); State of West Bengal vs. Kesoram Industries Ltd and Ors [2004(10) SCC 261 and Gupta Modern Breweries vs. 'State of Jammu and Kashmir and ors [2007(6}. SCC BL). Having noticed the said decisions, we do. not. find it necessary to claborate further on the well established legal - position as contained in Article 265 of the 'Constitution of India itself,
14. Further in 'the case cof Indus Towers Ltd Vs.State of Gujarat (201 0 - GHs-24:329) relied on by the appellants: thre "Division . 'Bench af the High Court of Guja rat Was Seized : of an identical situation as in the case on hand "whe rein th ere. was moO specific provision for imposing tax OIL teleconitmunication equipment, but it had : been 'considered as a building and the regulations were : eiiforced : cin . fact in that case, in the absence of provision in the Act, which is a requirement under Article 2965 ef the _. Constitution of India a Government resolution had been issued in exercise of powers under Article 162 of the Constitution of India providing for such regulations. The vaidiiy of the same had arisen for consideration. The Court after adverting to all aspects of the matter and also & ia SE SNe 36 Keeping in view the decisions of the Hon'ble Supreme Court had quashed the same. However, in the course of the Judgment, the Court observed that it would be open for the legislature to make such amendments~ inthe. Acts making provision for bringing the tec hnological_ adv anes. .
within the purview of the Act. We are in agreement and :
subscribe to the said view: as otherwise. if would: nol be permissible for the local authorities tor gu late, levy and collect taxes or fees in. respect re of inobile felecommunication towers/posts under the - presently 'subsisting charging section of the. Acts umider consideration. Be Having arrived at the above conclusion, the next aspect for consi derat ion is. ais to whether the learned Single Judge was justified iin the instant case in holding that the = appell larits "are liable tO pay tax of © 12,000/-p.a. per ; mobile tower ul appropriate Rules are framed for levying taxes on mobile t towers by adopting the Rules stated to
-- Rave been lramed by the Bruhat - pangalore Mahanagara Es Palike (BBMP). Though we do not propose to express ary opinion about the validity or otherwise of the Regulations stated to have been framed by the BBMP as the same do fmol arise for consideration herein, we are of the opimion :
fi) that the course adopted by the learned Single Judge is not justified in law.
16. The decisions of the Hon'ble Su preme Court referred supra is categorical that the tax catinot he levied in the absence of express provision to do so. if there is a void, it is for the legislature to reme dy the Sitaatio'n itis also the well-settled position of law that, it is, not 'for thie Courts either to legislate ord rect the legislate re to enact ihe law in any particiilai wn tn "this regard, it is apposite to rete bo the a cisions rence red by the Hon'ble Supreme Court in the: case of State of Himachal Pradesh us. A parent of a 'Student a Medical College, Shimla and ors. ( AIR 1985 919): S.4.Batra and another vs. Taruna Batra Sur wo0719) SCC 169) and Divisional ". Manager, Aravali Golf Club and another vs. Chander "Hass and another (2008(1) SCC 683) relied on by the learned senior counsel for the appellants wherein the said .. position has been succinctly stated. Hence, in the absence of th é fiscal demands be ing backed by iaw on the subject, thi is Court would strike down the same, It is for the legislature to take info consideration all aspects and enact such law as it deers fit in its wisdom.
er re . eo lv. For the various reasons stated above. while upholding the order dated 25.11.2010 passed oy thie learned Single Judge to the extent of c uashinge. the & & eR AEA ay impugned orders/demand notices, the funihier. directions, reserved to the respon dents to enact suc h amendments in accordance with law, In any event. with 'regard to the amendments to be mace, the official respondents have not assailed that portion of the , order. passed by the learned Single Judge. They have conceded : to the position that the amendments are necessary to.be made. The appeais are accérdingly allowed, with no order as to costs, Sdi/-
Acting Chief Justices Sd e . "ake / Drides: ¥/N