Madhya Pradesh High Court
Quippo Telecom Infrastructure Ltd. vs The State Of Madhya Pradesh on 19 September, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821
1 W.P. No. No.1063/2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 19th OF SEPTEMBER, 2024
WRIT PETITION No. 1063 of 2011
QUIPPO TELECOM INFRASTRUCTURE LTD.
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Aditya Narayan Sharma - Advocate for petitioner.
Ms. Shraddha Tiwari - Panel Lawyer for respondent No.1/State.
Shri Ritwik Parashar - Advocate for respondents no.2 and 3.
ORDER
This petition under Article 226 of the Constitution of India has been filed seeking the following reliefs:-
A. To call for records of the case.
B. To direct the respondents no.2 & 3 to act in strict compliance of the Circular dated 14.03.2002, 4.05.2006, 12.06.2006 & 17.04.20077 of the Government of Madhya Pradesh.
C. To hold that the actions of the respondents no.2 & 3 is totally against the law and is violative of the Circular dated 14.03.2002, 4.05.2006, 12.06.2006 & 17.04.2007. D. To quash the notice/letter dated notice dated 30.11.10, 23.12.2010 & 28.12.2010 raising demand of ₹ 4,11,000 towards license fees issued by the respondent no.3. E. To restrain the respondents no.2 & 3 or their representatives/agent from taking any action against the petitioners mobile tower installed at Jabalpur.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 2 W.P. No. No.1063/2011 F. A writ, Order, or direction of appropriate nature restraining the Respondents from interfering in the functioning of the Mobile towers of the Petitioner Company and in performance of Public Convenience services.
G. A Writ Order of appropriate nature holding that the Petitioner is not a licensee of the Respondent No.2. H. To grant any other reliefs looking to the facts and circumstances of the case, that this Hon'ble Court deems fit and proper.
2. It is submitted by counsel for petitioner that in furtherance of Legislative intent to strengthen Mobile Telecom Infrastructure, petitioner is in the business of providing telecom network and is providing & maintaining passive infrastructure to the telecom operators pursuant to the receipt of registration, i.e. erection of telecom towers in the country including State of Madhya Pradesh and further maintaining the same. The telecommunication towers / poles are basic part of telecom infrastructure installation providing 24 X 7 network to provide uninterrupted network for the telecommunication towers. The towers erected by the petitioner company are being used/shared by the telecom service providers for the purposes of mobile/cellular services. In order to erect the towers in the area of respondent no.2, no objection certificate is required to be obtained from respondent no.2 under the guidelines/policy of respondent no.1. The petitioner has been called upon to deposit a sum of Rs.4,11,000/- towards the licence fee, failing which a decision has been taken to seal the towers of the petitioner/company. Thus, it was submitted that the petitioner is apprehending that the respondent/Municipal Corporation may remove the telecom towers installed at Jabalpur, which may result in serious impediment to the telecom services being rendered by the petitioner Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 3 W.P. No. No.1063/2011 company to its consumers through those towers and may also blemish the reputation of the company resulting into various litigations with the consumers thereby causing irreparable loss. It is submitted that by show-cause notice dated 30/11/2010 petitioner was called upon to deposit Rs.4,11,000/- towards the license fee at the rate of Rs.3,000/- per year for every tower. A reply was given asking for complete details of 25 towers in respect of which the licence fee from the year 2007-08 till 2010-11 was being charged. Thereafter, on 23/12/2010 again a reminder was sent to petitioner and by letter dated 28/12/2010 details of 25 towers were also given to petitioner and accordingly, on 7/1/2011 petitioner submitted its representation against levy of licence fee on mobile towers installed within the jurisdiction of Municipal Corporation, Jabalpur. It is the case of petitioner that as per circular No.1576/18-2/2002 dated 14/3/2002, fee chargeable for grant of NOC/permission for installation of mobile towers in Municipal Corporation area shall be Rs.20,000/- only and vide circular dated 14/11/2002 it was clarified by the State Government that no other fee shall be charged on cellular companies except what has been prescribed and the Government had also expressed its displeasure for its unauthorized demands made by the Municipal Corporation. Thus, it is submitted that the demand of Rs.3,000/- per year for every tower with late fee is bad in law and, hence, liable to be quashed.
3. Per contra, it is submitted by counsel for the Municipal Corporation that as per Section 366 (3) of the Municipal Corporation Act, 1956 (in short "Act, 1956") a fee for every such licence or written permission may be charged at such rate as may be fixed by the Commissioner and such fee shall be payable by the person to whom the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 4 W.P. No. No.1063/2011 licence is granted. It is submitted that the State Government along with circular dated 21/12/2009 notified the guidelines for complying with the limits for human exposures to Electro Magmentic Field (Base Station Antennas and Mobile Telephones / Radio Terminals). In the said circular dated 21/12/2009 it was categorically mentioned that the Municipal Corporation shall be the Nodal Agency for ensuring compliance of the said guidelines. It was also mentioned that the practise of installing Base Stations Antennas needs to be regulated in order to protect the general public from undesired effects caused by Electromagnetic Fields around the Antenna. Copy of circular dated 21/12/2009 alongwith guidelines has been filed as Annexure R/2. Clause 2 of the said guidelines provides that access to Base Station antenna sites should be prohibited for general public by suitable means. It has also been provided that access to tower site, even for the maintenance personnel, should be kept at the minimum level. Similarly, in other sub-clauses, the mobile companies have been instructed to comply with various requirements to reduce the effect of exposure to Electro Magnetic Field. Therefore, it is the case of the respondents that as per circular dated 21/12/2009 installation of mobile service antennas, towers, Base Stations and terminals are offensive trade, which requires regulation and as per the letter dated 21/12/2009 the Municipal Corporation has been appointed as a Nodal Agency for ensuring compliance. It is the statutory duty of the Corporation to regulate the same as per the provisions of Sections 66(1)(e), 67(j), 67(mm) and 67(oo) of Act, 1956. For regulating the dangerous trades and to ensure that the service providers are complying with the guidelines, the Corporation is required to take suitable action from time to time, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 5 W.P. No. No.1063/2011 carryout inspections, issue instructions and detect & correct the violation, as and when they take place. It was claimed that all these activities amount to regulation of aforesaid dangerous trades being carried out by the petitioner company and thus, it was claimed that the Corporation is entitled to impose a licence fee as provided under Section 366(3) of Act, 1956. Vide notification dated 6/6/2007 a licence fee at the rate of Rs.3,000/- per annum per tower was fixed and since the petitioner has failed to deposit the said licence fee, therefore, the impugned demand notice was issued demanding lincence fee along with late fee.
4. In reply, it is submitted by counsel for petitioner that the mobile towers do not generate any revenue. They do not provide any service and the same cannot be placed in the category of hazardous business. However, it was accepted by counsel for petitioner that if the electromagnetic field exceeds the minimum limit, then it would cause danger to the life of human being as well as other living creatures.
5. Heard learned counsel for the parties.
6. So far as the contention of counsel for petitioner that the mobile towers do not generate any revenue and do not provide any service is concerned, the same is misconceived. Only because of the mobile towers, the Telecom Companies are in a position to provide wireless signals to the customers, who are using mobile phones and other wireless services. Furthermore, in the writ petition itself, petitioner has claimed that installation of mobile tower is an equipment as a part of telecommunication companies and with the help of mobile towers, an uninterrupted 24 X 7 network is provided to the customers. Even otherwise, it is observed that if petitioner is of the view that the mobile Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 6 W.P. No. No.1063/2011 towers have nothing to contribute in the effective working of Telecommunication Companies, then it may remove its mobile towers, but the petitioner cannot claim that the mobile tower do not generate any revenue or provide any service. Therefore, the first contention made by counsel for the petitioner is rejected with liberty to the petitioner that if so advised, then it may remove its towers.
7. Respondents have relied upon the letter dated 21/12/2009 by which all the Municipal Corporations and Municipalities have been appointed as Nodal Agency for implementation of the guidelines annexed alongwith this letter. The aforesaid guidelines read as under:-
"DRAFT GUIDELINES FOR COMPLYING WITH LIMITS FOR HUMAN EXPOSURE TO ELECTROMAGNETIC FIELDS (BASE STATION ANENNAS AND MOBILE TELEPHONES/RADIO TERMINALS) 2.0 Base Station Antennas.
The studies of possible hazards to human health from exposure to radio frequency electromagnetic ficlds suggest that there is need to control the unwanted exposure as per WHO guidelines.
The radio frequency electromagnetic field generated around the Base station antenna may be harmful to general public and operator/maintenance personnel. The practice of installing Base Stations Antennas needs to be regulated in order to protect the general public from undesired effects caused by Electromagnetic Fields around the Antennas.
The following precautionary measures are recommended for Macro Base Station antenna.
(i) Installation of Base Station Antennas within the premises of schools and hospitals may be avoided to the extent possible because children & patients are more susceptible to EMF Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 7 W.P. No. No.1063/2011
(ii) Installation of Base Station Antennas in narrow lanes should be avoided in order to reduce casued by any earth quake or wind related disaster.
(iii) The base station antennas should be at least 3m away from the nearby building and antennas should not directly face the building. Further the lower end of the antenna should be at least 3 meter above the ground or roof.
(iv) In case of multiple transmitter sites at a specific locality sharing of a common tower infrastructure, should be explored, as far as possible, which can be coordinated through a nodal agency.
(v) Access to Base Station antenna sites should be prohibited for general public by suitable means such as wire fencing, locking of the door to the roof etc. Access to tower site, even for the maintenance personnel, should be for a minimum period as far as possibic.
(vi) Sign boards/ Warning Signs are to be provided at Base Station antenna sites which should be clearly visible and identifiable. A warning sign should be placed at the entrance of such zone, wherein the survey has shown that RF levels exceed the values specified in Annex I. The "Warning Sign" should discourage longer stay in the zone, even for the maintenance personnel. The sign board may contain the following text
1) Danger! RF radiations, Do not enter!
2) Restricted Arca The colour code may be as follows:
Symbol- Red text against white- background Mobile Phones / Radio Terminals i. The tissues of children are tender and therefore they are likely to be more affected by use of mobile phones. Children below 16 years age Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 8 W.P. No. No.1063/2011 should be discouraged from using mobile phones.
ii. The use of mobile phones/radio terminals by persons, using medical aids such as pace makers, defibrillators, hearing aids cochlear implants and other implants etc should be minimized.
iii. The use of mobile phones/radio terminals in vulnerable areas of hospitals such as Intensive Care Unit, should be prohibited or restricted as decided by hospital authority iv. The Specific Absorption Rate (SAR) value for each hand a=set should be provided by the manufacturers on the website as well as in the user's manual, as per ICNIRP guide lines. This is as per international approach taken in the year 2000 and agreed upon by manufacturers (Please see annexure-2). If possible SAR information as option on screen of Mobile phone/Radio Terminal may be made available. v. As a precautionary measure, the mobile phone service provider / manufacturers should avoid promotional advertisements showing vulnerable segments like children pregnant women etc. using mobile phones."
8. Thus, it is clear that the State Government has issued circular as well as guidelines for regulation of the mobile towers and the Municipal Corporations as well as Municipalities have been made Nodal Agencies.
9. Furthermore, Sections 66(1)(e), 67(j), 67(mm) and 67(oo) of Act, 1956 read as under:-
"66. Matters to be provided for by Corporation.-
(1) The Corporation shall make adequate provision, by any means or measures which it may lawfully use or take, for each of the following matters, namely:-Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 9 W.P. No. No.1063/2011
(e) regulating or abating dangerous or offensive trades or practices ** *
67. Matters which may be provided for by Corporation at its discretion.- In addition to the other powers and duties, conferred or imposed on it by or under this Act or any other Act for the time being in force, the Corporation may in its discretion provide from time to time either wholly or partly for all or any of the following matters, namely:-
(j) securing or assisting to secure suitable places for the carrying on of the offensive trades or practices;
(mm) any other matter likely to promote the public health, safety or convenience of the public; (oo) Regulations of land-use and construction of buildings;"
10. Apart from circular dated 21/12/2009, it is clear that the Municipal Corporation has a duty to regulate or abate the dangerous or offensive trades or practices, to secure suitable places for carrying on of the offensive trades or practices, any other matter likely to promote the public health, safety or convenience of the public and regulation of land use and construction of buildings. To regulate the hazardous trade, periodical inspections and directions to the telecom companies are required. There is a difference between fee and tax. Fee is charged for services rendered by the State.
11. The Supreme Court in the case of State of Rajasthan and Others Vs. Sajjanlal Panjawat and others reported in AIR 1975 SC 706 has held as under:-
"40. Under the Constitution a distinction has been made between a tax and a fee and in each of the legislative lists power has been given for levy of Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 10 W.P. No. No.1063/2011 various forms of taxes. There is an entry in each of the three lists as regards fees which could be levied in respect of any of the matters dealt with in the list. As was observed by Latham, C.J. of the High Court of Australia in Mathews v. Chicory Marketing Board [60 CLR 263, 276] :
"A tax is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment for services rendered".
These observations were approved by this Court in Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, where Mukherjea, J., as he then was, said that the essence of taxation is compulsion and imposition made for public purpose without reference to any special benefit to be conferred on the prayer of the tax, that is to say, that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. A fee on the other hand is payment for a special benefit or privilege which the individual receives. It is regarded as a sort of a return or consideration for services rendered and should on the face of the legislative provision be co-related to the expenses incurred by Government in rendering the services. In that case Section 76(1) of the Madras Hindu Religious and Charitable Endowments Act, 1951 (Madras Act 19 of 1951) which related to the payment of annual contribution stated that it was for the purpose of properly administering the religious trusts and institutions wherever they existed. In determining whether that levy was a tax or a fee one of the material facts taken into consideration to negative the theory that it was a fee was that the money raised by levy of the contribution was not earmarked or specified for defraying the expenses that the Government had to incur in performing the services. All the collections went to the Consolidated Fund of the State and all the expenses had to be met not out of those collections but out of the general revenues by a proper method of appropriation as was done in case of other Government expenses. Though Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 11 W.P. No. No.1063/2011 this was so it was nonetheless observed at p. 1044:
"That in itself might not be conclusive". But as there was total absence of any co-relation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76, it was observed that the theory of a return or counter-payment or quid pro quo could not have any possible application to that case. This case was considered in Secretary, Government of Madras, Home Department and v. Zenith Lamp & Electrical Ltd. [(1973) 1 SCC 162, 171 : 1973 SCC (Tax) 203] by the Constitution Bench of this Court, of which one of us (Dwivedi, J.) was a party. Sikri, C.J., referring to the observations of Mukherjea, J., in Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt case, that the fact that collections went to the Consolidated Fund was not in itself conclusive thought that not much stress can be laid on this point, because Article 266 of the Constitution requires that all revenues raised by the State shall form part of the Consolidated Fund. He considered the observations of the Privy Council in Attorney-General for British Columbia v. Esquimalt and Nanimo Railway Company [1950 AC 87, 120, 121] and distinguished [ SCC p. 172 para 40] it, because the Privy Council did not have to deal with fees and taxes but interpreted the word "taxation" in Section 22 of the Act therein considered, to mean a compulsory levy by the State. Whether it was fee or tax did not matter. The only question was whether it was a compulsory levy. In the Zenith Lamp & Electrical Ltd.'s case it was found that there was not enough material to determine whether the fees taken in Courts under Entry No. 3 of List II of Schedule VII to the Constitution were taxes or fees namely, whether the State was making a profit out of the administration of civil justice or whether the amounts so collected from those fees were spent on the administration of civil justice. In that view the case was remanded to the High Court to decide whether the impugned fees were court fees or taxes on litigants or litigation.Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 12 W.P. No. No.1063/2011
41. The case of the State in this case is that the fee is a sort of contribution levied on public trusts towards meeting the expenses incurred by the State Government in rendering services to the public trusts through the agency of the Devasthan Department and that according to the budget provision for the year 1964-65 the expenditure on the Devasthan Department was Rs 2,76,715 as against the income of only Rs 3000 for the same year from the registration fee. This averment in the reply of the Commissioner, Devasthan Department, was not controverted by the petitioners either by a reply thereto or by any other material produced by them. In these circumstances, the mere fact that the amount was paid under Rule 18 into the Consolidated Fund is by itself not sufficient to hold that the levy under Section 17(3) of the Act is tax. As the income by way of fees is far below the expenditure incurred on the Devasthan Department, the levy would be a fee. In this view, Section 17(3) cannot be held to be invalid and ultra vires the powers of State Legislature. We express no opinion on the question whether Section 17(3) can be declared to be invalid on account of Rule 18 requiring the fee to be deposited in the State Consolidated Fund."
12. The Supreme Court in the case of M/s Kishan Lal Lakhmi Chand and Others Vs. State of Haryana and Others reported in 1993 Supp (4) SCC 461 has held as under:-
"5. ..... Suffice to reiterate the ratio laid in Sreenivasa General Traders v. State of A.P. [(1983) 4 SCC 353] that the traditional view that there must be actual quid pro quo for a fee has undergone a sea change. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary purpose of regulation in public interest; if Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 13 W.P. No. No.1063/2011 the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fee, there is, and must always be, correlation between the fee collected and the service intended to be rendered. In determining whether a levy is a fee, the true test must be whether its primary and essential purpose is to render specific services to a specified area or class; it may be of no consequence that the State may ultimately and indirectly be benefited by it. The power of any legislature to levy a fee is conditioned by the fact that it must be "by and large" a quid pro quo for the services rendered. However, correlationship between the levy and the services rendered/expected is one of general character and not of mathematical exactitude. All that is necessary is that there should be a "reasonable relationship" between the levy of the fee and the services rendered. There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered by the authority to each individual nor that each should obtain the benefit of the service. The ratio in K.K. Puri case [(1980) 1 SCC 416 : (1979) 3 SCR 1217] that [SCC p. 435, para 23(7)] "At least a good and substantial portion of the amount collected on account of fees, may be in the neighbourhood of two-thirds or three-fourths, must be shown with reasonable certainty as being spent for rendering services of the kind mentioned above" was held to be "an obiter" which is the main plank on which the contention of Shri Shanti Bhushan rests.Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06
NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 14 W.P. No. No.1063/2011
6. In Ram Chandra v. State of U.P. (1980 Supp SCC 27), Southern Pharmaceuticals and Chemicals, Trichur v. State of Kerala (1981) 4 SCC 391 benches of three Judges and Municipal Corpn. of Delhi v. Mohd Yasin (1983) 3 SCC 229 a bench of two Judges took the same view. ..."
13. The Supreme Court in the case of P. Kannadsan etc. Vs. State of Tamilnadu reported in (1996) 5 SCC 670 has held as under:-
"36. The sixth contention of the learned counsel for the appellants-petitioners is premised upon the supposition that Parliament is bound to utilise the taxes realised under the impugned Act only for the purpose of regulation of mines and mineral development. It is on this supposition, it is argued, that inasmuch as the Union has not established that the impugned levy is required for the purpose of the said regulation and development, the imposition is incompetent. In our opinion, the very supposition is misplaced. What is levied under the impugned enactment is a tax/cess and not a fee. Even in the matter of fees, it is not necessary that element of quid pro quo should be established in each and every case, for it is well settled that fees can be both regulatory and compensatory and that in the case of regulatory fees, the element of quid pro quo is totally irrelevant. (See Corpn. of Calcutta v. Liberty Cinema [AIR 1965 SC 1107 :
(1965) 2 SCR 477] .) Taxes are raised for augmenting the general revenues of the State and not for any particular purpose -- much less for rendering a particular service."
14. Since it is the duty of Municipal Corporation to regulate the hazardous business like towers which emits electromagnetic field/ radiation and any excessive radiation or electromagnetic field is harmful to the human being as well as other living creatures, therefore, this Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06 NEUTRAL CITATION NO. 2024:MPHC-JBP:47821 15 W.P. No. No.1063/2011 Court is of considered opinion that fee can be charged for regulating the business of the petitioner.
15. Furthermore, respondent Municipal Corporation had decided to charge nominal fee of Rs.3,000/- per year for every tower and the petitioner did not pay the said fee.
16. Under these circumstances, this Court is of considered opinion that no illegality could be pointed out by the petitioner in the impugned demand note raised by Municipal Corporation.
17. Accordingly, this petition fails and is hereby dismissed.
18. It is made clear that in case if the fee is not paid within a period of 15 days from today, then it shall carry 6% from the date when it accrued.
(G.S. AHLUWALIA) JUDGE Arun* Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 23-09-2024 11:01:06