Bombay High Court
Pune Municipal Corporation And Ors vs Bharti Airtel Ltd. And And Ors on 1 August, 2025
Author: G. S. Kulkarni
Bench: G. S. Kulkarni
5-IA-2055-2021 AND ORS (C).DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 2055 OF 2021
IN
WRIT PETITION NO.2678 OF 2017
Pune Municipal Corporation And Ors ....Applicants/Petitioners
VERSUS
Vodafone Mobile Services Limited. ..Respondent
WITH
INTERIM APPLICATION NO. 2069 OF 2021
IN
WRIT PETITION NO.557 OF 2015
ATC Telecom Infrastructure Pvt. Ltd. And Anr ....Applicants/Petitioners
VERSUS
Pune Municipa Corporation And Anr. ...Respondent
WITH
INTERIM APPLICATION NO. 2068 OF 2021
IN
WRIT PETITION NO.2561 OF 2015
Pune Municipal Corporation And Ors. ....Applicants/Petitioners
VERSUS
Viom Infra Network Maharashtra Ltd. And Anr. ...Respondents
WITH
INTERIM APPLICATION NO. 2051 OF 2021
IN
WRIT PETITION NO.2679 OF 2017
Pune Municipal Corporation And Ors. ....Applicants/Petitioners
VERSUS
Bharti Airtel Ltd. And And Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 2050 OF 2021
IN
WRIT PETITION NO.417 OF 2017
Pune Municipal Corporation And Ors. ....Applicants/Petitioners
VERSUS
Ascend Telecom Infrastructure Private Limited. ...Respondent
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WITH
INTERIM APPLICATION NO. 2057 OF 2021
IN
WRIT PETITION NO.7327 OF 2009
Pune Municipal Corporation And Anr. ...Applicants/Petitioners
VERSUS
Idea Cellular Limited And Ors. ...Respondents
WITH
INTERIM APPLICATION NO. 2052 OF 2021
IN
WRIT PETITION NO.2698 OF 2017
Pune Municipal Corporation And Ors. ....Applicants/Petitioners
VERSUS
Tata Teleservices (maharashtra) Limited And Anr. ...Respondents
WITH
INTERIM APPLICATION NO. 2070 OF 2021
IN
WRIT PETITION NO.557 OF 2015
Pune Municipal Corporation And Anr. ....Applicants/Petitioners
VERSUS
Idea Cellular Limited And Anr. ...Respondent
WITH
INTERIM APPLICATION NO. 2054 OF 2021
IN
WRIT PETITION NO.2515 OF 2017
Pune Municipal Corporation And Ors. ...Petitioners
VERSUS
Tower Vision India Private Limited And Anr. ...Respondents
WITH
WRIT PETITION NO. 11190 OF 2018
Indus Towers Ltd. ...Petitioner
VERSUS
The Pune Municipal Corporation And Ors. ...Respondents
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WITH
CIVIL APPLICATION NO. 136 OF 2019
IN
WRIT PETITION NO.11190 OF 2018
WITH
INTERIM APPLICATION NO. 14966 OF 2023
WITH
INTERIM APPLICATION NO. 896 OF 2025
WITH
INTERIM APPLICATION NO. 895 OF 2025
WITH
INTERIM APPLICATION NO. 2946 OF 2021
IN
WRIT PETITION NO.11190 OF 2018
Indus Towers Ltd. Through Its Authorised Signatory ...Applicant/Petitioner
VERSUS
The Pune Municipal Corporation And Ors. ....Respondents
WITH
WRIT PETITION NO. 7327 OF 2009
WITH
INTERIM APPLICATION NO. 10636 OF 2025
WITH
INTERIM APPLICATION (ST) NO.21801 OF 2025
IN
WRIT PETITION NO.7327 OF 2009
Elevar Digitel Infrastructure Pvt Ltd And Anr. ...Petitioner
VERSUS
Pune Municipal Corporation And Anr. ...Respondents
WITH
CIVIL APPLICATION IN WP NO. 1656 OF 2012
IN
WRIT PETITION NO.7327 OF 2009
WITH
CIVIL APPLICATION IN WP NO. 21 OF 2017
IN
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WRIT PETITION NO.7327 OF 2009
WITH
CIVIL APPLICATION NO. 167 OF 2019
IN
WRIT PETITION NO.7327 OF 2009
Idea Cellular Limited Formerly Known as
ATC Inftracture Service Private Limited and Anr. ...Applicants
VERSUS
Pune Municipal Corporation And Anr. ....Respondents
WITH
WRIT PETITION NO. 8929 OF 2018
Indus Towers Ltd ....Petitioner
VERSUS
The Commissioner, Pune Municipal Corporation And Ors. ...Respondents
WITH
WRIT PETITION NO. 557 OF 2015
WITH
INTERIM APPLICATION NO. 10629 OF 2025
WITH
INTERIM APPLICATION (ST) NO.21816 OF 2025
IN
WRIT PETITION NO.557 OF 2015
Elevar Digitel Infrastructure Pvt Ltd And Anr. ...Petitioners
VERSUS
Pune Municipa Corporation And Anr. ...Respondents
WITH
CIVIL APPLICATION NO. 168 OF 2019
IN
WRIT PETITION NO.557 OF 2015
Idea Cellular Limited Formerly Known As
ATC Inftracture Service Private Limited ...Applicant
VERSUS
Pune Municipa Corporation And Anr. ...Respondents
_______
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Mr. Aspi Chinoy, Senior Advocate a/w Ms. Sneha Jaisingh aw Ms. Jaidhara Shah
aw Mr. Zashank Mehta aw Mr. Esham Karanjikar i/by Bharucha & Partners for the
Petitioner in WP/2678/2017 and for Respondent in IA/2055/2021.
Mr. Darius Khambata, Senior Advocate aw Mr. Tushar Hathiramani aw Ms. Sneha
Jaisingh aw Ms. Jaidhara Shah aw Mr. Zashank Mehta aw Mr. Esham Karanjikar
i/by Bharucha & Partners for the Petitioner in WP/2679/2017.
Mr. Girish Godbole, Senior Advocate aw Mr. Sugandh Deshmukh aw Ms.
Karishma Shinde aw Mr. Aniket Kanawade aw Mr. Irvin D'Souza aw Mr. Vaibhav
Thorave for the Petitioner in WP/11190/2018 and WP/8929/2018,
WP/4006/2024 and applicant in IA(ST)/10431/2025.
Mr Himanshu Vidhani aw Mr. Rushab Chopra aw Mr Niket Dalal i/b Himanshu
Vidhani C/o Chandhiok & Mahajan for the Petitioners in WP/7327/2009,
WP/557/2015, WP/2561/2015.
Mr. Amit Khairwar aw Mr. Prasad Dhande aw Ms. Swati Chandan i/by D.H. Law
Associates for Petitioners in WP/2698/2017.
Mr. Kanishk Ahuja aw Mr. Parikshit Desai aw Ms. Riya Shah aw Ms. Samta
Pathare aw Ms. Neha Khule for the Petitioner in WP/417/2017, WP/2517/2017
and for applicant in IA(L)/23219/2025.
Mr. Anil Y. Sakhare, Senior Advocate aw Mr. Abhijit Kulkarni aw Mr. Vishwanath
Patil aw Ms. Nidhi Chauhan aw Mr. Akshay Naidu for Respondent PMC in
WP/2679/2017, WP/2678/2017.
Mr. A. A. Kumbhakoni, Senior Advocate a/w Mr. Abhijit Kulkarni aw Mr.
Vishwanath Patil aw Ms. Nidhi Chauhan aw Mr. Akshay Naidu aw Mr. Gourav
Shahane aw Ms. Sneha Bhange aw Ms. Sweta Shah aw Mr. Abhishek Roj for for
Respondent Corporation(PMC) in WP/1932/2015,
WP/2515/2017,WP/417/2017, WP/557/2015 & WP/7327/2009 and Applicants
in IA/2050/2021, IA/2051/2021, IA/2052/2021, IA/2053/2021, IA/2054/2021,
IA/2055/2021, IA/2057/2021, IA/2068/2021, IA/2070/2021.
Dr. Birendra Saraf, Advocate General aw Mr. P.P. Kakade,Addl.G.P. aw Ms. M.P.
Thakur, AGP for the State.
_______
CORAM: G. S. KULKARNI &
ARIF S. DOCTOR, JJ.
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1. At the outset, Dr. Saraf, Learned Advocate General informs the Court that in the distant past he had represented one of the Petitioners in a similar issue, hence, he can appear in the proceedings only if there is no objection to his appearing, by all the Petitioners in the present petitions. All the learned Senior Counsel representing the Petitioners fairly state that the petitioners have no objection to Dr. Saraf representing the Respondent/State in these proceedings. Accordingly we proceed to take up these petitions.
2. Dr. Saraf then submitted that he has a preliminary objection to the maintainability of these petitions. In such context, Dr. saraf submitted that the challenge as raised in the present batch of Writ Petitions stands concluded by the decision of the Supreme Court in the case of Ahmedabad Municipal Corporation versus GTL Infrastructure Limited and Ors 1. Dr. Saraf submits that the Supreme Court in deciding the case of Ahmedabad Municipal Corporation (supra), also disposed off a batch of Writ Petitions/Special Leave Petitions (SLP's) which were transferred to the Supreme Court. He submitted that many Petitioners in the present batch of Writ Petitions were also the Petitioners before the Supreme Court in those transferred Writ Petitions and SLP's. He thus submitted that it is hence imperative to first examine whether the challenge as raised in each of the said transferred Writ Petitions and SLP's would conclude the issues in the present petitions qua such petitioners, before the Court proceeds further, so as to ascertain 1 . (2017) 3 Supreme Court Cases 545 Page 6 of 13 Sajakali Jamadar ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 21:57:19 ::: 5-IA-2055-2021 AND ORS (C).DOC if the challenge in the present proceedings is now barred by the principles of res judicata or analogous thereto.
3. Dr. Saraf in such context invited our attention to the observations in paragraphs 2 and 3 of the decision of the Supreme Court in the case of Ahmedabad Municipal Corporation (supra) thereof, the Supreme Court recorded as follows:
"2. This group of cases may be conveniently arranged in four different categories. The first are the appeals arising from the judgment and order dated 24-4-2013/25-04-2013 passed by the Gujarat High Court declaring Section 145A of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Gujarat Act") as ultra vires the Constitution and on that basis interdicting the levy of property tax on "mobile towers".
The High Court, by the impugned judgment, however, took the view that the Cabin in a mobile tower in which BTS system, details of which are noticed below, is located, would be a building and, therefore, exigible to tax under the Gujarat Act. The State Government and the different Municipal Corporations have challenged the first part of the order of the High Court whereas the Cellular operators have challenged the later part.
3. The Bombay High Court which was in seisin of a somewhat similar challenge, by the order under challenge, has taken the view that the writ petitions challenging the levy of property tax on mobile towers should not be entertained and the aggrieved writ petitioners therein (cellular operators) should be left with the option of exhausting the alternate remedies provided by the Act. This would be the third category of cases. In this regard, it must be noticed that in the Bombay Provincial Municipal Corporations Act, 1949, the charging section does not specifically contemplate levy of taxes on mobile towers as in the Gujarat Act. The impugned levy, nevertheless, was imposed on the reasoning that mobile towers are buildings as defined in the Act. At this stage, it must also be noticed that the Bombay Provincial Municipal Corporations Act, 1949 was applicable to the State of Gujarat also until the year 2011 when by the Gujarat Short Titles (Amendment) Act, 2011 the word 'Gujarat' has been inserted in place of the word 'Bombay'. "
4. Dr. Saraf next submits that the Supreme Court while disposing of the said proceeding has made the following categorical observations:
"32. Viewed in the light of the above discussion, if the definition of "land"
and "building" contained in the Gujarat Act is to be understood, we do not find any reason as to why, though in common parlance and in everyday life, a mobile tower is certainly not a building, it would also cease to be a building for the purposes of List II Entry 49 so as to deny the State Legislature the Page 7 of 13 Sajakali Jamadar ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 21:57:19 ::: 5-IA-2055-2021 AND ORS (C).DOC power to levy a tax thereon. Such a law can trace its source to the provisions of Schedule VII Entry 49 to the Constitution.
33. Though several other decisions of this Court and also of different High Courts have been placed before us we do not consider it necessary to refer to or to enter into any discussion of the propositions laid down in the said decisions as the views expressed in all the aforesaid cases pertain to the meaning of the expressions 'land' and 'building' as appearing in the definition clause of the statutes in question.
34. We, therefore, set aside the judgment passed by the Gujarat High Court and answer the appeals arising from the order of the Bombay High Court; transferred cases and the writ petitions accordingly. However, we leave it open, so far as the cellular operators in the Bombay cases are concerned, to agitate the issue with regard to the retrospective operation of the assessment/demand of tax and the quantum thereof before the appropriate forum, if so advised. Consequently, and in the light of the above all the appeals, writ petitions and the transferred cases are disposed of. "
5. Basis the aforesaid observations of the Supreme Court, Dr. Saraf submitted that the issue being raised in the present proceedings is no more res integra, for the reasons that the Supreme Court disposed of all the transferred Writ Petitions and SLP's, in the aforesaid terms. It is thus submitted that it is imperative to first ascertain as to what was the specific challenge in each of the said transferred petitions and the SLP's as decided by the Supreme Court in Ahmedabad Municipal Corporation (supra). Dr. Saraf hence prays for a direction to the Petitioners to produce/furnish copies of the transferred petitions/SLP's to enable the State to go through the same and ascertain whether the challenge in the present batch of Writ Petitions stands concluded, hence these proceedings stand barred by res judicata. He submitted that the State would then if necessary take out an appropriate application.
6. Dr. Saraf then pointed out that this Court, infact, after the decision of the Supreme Court in the case of Ahmedabad Municipal Corporation (supra) Page 8 of 13 Sajakali Jamadar ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 21:57:19 ::: 5-IA-2055-2021 AND ORS (C).DOC disposed of two writ petitions by referring to the said decision of the Supreme Court in Ahmedabad Municipal Corporation (supra). The first decision as relied by Dr. Saraf is in the case of ATC India Tower Corporation vs. Pune Municipal Corporation and Others2 and another decision of the Division Bench of this Court at Nagpur in the case of GTL Infrastructure Limited vs. Nagpur Municipal Corporation and Another3. The relevant extract of both these decisions need to be noted which read thus:
ATC India Tower Corporation vs. Pune Municipal Corporation and Others (Supra)
1. Heard the learned Counsel for the petitioner.
2. This petition which was filed on 4 March 2015. The substantive prayers as made in the petition are as under-
"(a) That this Hon'ble Court do declare that the Respondents are not entitled to levy or demand any property taxes on telecommunication sites of the Petitioners.
(b) Pass an appropriate writ, order or direction declaring that the Respondents have no legislative competence to levy tax pertaining to telecommunications towers.
(c) That this Hon'ble Court do issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction calling for the records pertaining to the impugned demand at Exhibits B-1 to B-8' hereto and after going through the legality or otherwise thereof, do quash and set aside the same."
3 The issue as raised by the petitioner is no more res integra in view of the decision of the Supreme Court in "Ahmedabad Municipal Corporation v. GTL infrastructure Ltd." in which the Supreme Court interpreting the provisions of the Gujarat Provincial Municipal Corporation Act, 1949, has held that the mobile towers would fall within the definition of "land" and "building" as defined under the Act and for the Municipal Corporation to enable to levy tax thereon. The Court in paragraph 32 has observed thus :-
"32. Viewed in the light of the above discussion, if the definition of "land" and "building" contained in the Gujarat Act is to be understood, we do not find any reason as to why, though in common parlance and in every day life, a mobile 2 2018 SCC Online Bom. 7205.3
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4. In view of the above authoritative pronouncement of the Supreme Court, we are of the opinion that the reliefs as prayed by the petitioner cannot be granted.
5. We however clarify that if the petitioner has any grievance in regard to the bills which are issued, it will be open for the petitioner to avail of statutory remedies as available under the law.
6. The Writ Petition is accordingly disposed of in the above terms. No costs.
7. As the Writ Petition is disposed of, the pending Civil Application No. 1014 of 2018 does not survive. It is accordingly disposed of." GTL Infrastructure Limited vs. Nagpur Municipal Corporation and Another (Supra) " 5. We have gone through the decision of the Hon'ble Apex Court. The Hon'ble Apex Court has transferred the matters pending in the Bombay High Court which arose out of the Bombay Provincial Municipal Corporation Act. After considering the provisions of the Bombay Provincial Municipal Corporation Act and the Gujarat Provincial Municipal Corporation Act, the Hon'ble Apex Court has held in paragraph 31 of the said decision as under : -
"31. The measure of the levy, though may not be determinative of the nature of the tax, cannot also be allogether ignored in the light of the views expressed by this Court in Goodricke Under both the Acts read with the relevant Rules, tax on Mobile Towers is levied on the yield from the land and building calculated in terms of the rateable value of the land and building Also the incidence of the tax is not on the use of the plant and machinery in the Mobile Tower, rather it is on the use of the land or building, as may be, for purpose of the mobile tower. That the tax is imposed on the 'person engaged in providing telecommunication services through such mobile towers (Section 145-A of the Gujarat Act) merely indicates that it is the occupier and not the owner of the land and building who is liable to pay the tax Such a liability to pay the tax by the occupier instead of the owner is an accepted facet of the tax payable on land and building under Schedule VII List 1 Entry 49."
6. Bare perusal of the law laid down by the Hon'ble Apex Court clearly shows that incorporation of Section 145-A of the Gujarat Provincial Municipal Corporation Act, clearly indicates that it is the occupier and not the owner of the land and building, who is liable to pay the tax. The provisions of Section 2(34-AA), Section 127(1)(c) and Section 145-A in the Gujarat Provincial Municipal Corporation Act, and its absence in the Bombay Provincial Municipal Corporation Act, or the City of Nagpur Corporation Act or the Maharashtra Municipal Corporation Act, in our view Page 10 of 13 Sajakali Jamadar ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 21:57:19 ::: 5-IA-2055-2021 AND ORS (C).DOC would not make the ratio of the decision of the Hon'ble Apex Court inapplicable to the present case. The matter is fully covered and is required to be dismissed.
7. In view of above, the Writ Petition is dismissed. The petitioner shall be at liberty to challenge the taxes demanded on its own merits by filing an appropriate appeal, if it is provided under the Act, as we have not gone into the correctness of the demand notices issued to the petitioner. In spite of knowing fully well that the matter is covered by the judgment delivered by the Apex Court, the petitioner insisted that without recording concession, the matter be disposed of. It cannot be done without considering the grounds raised and decided. We were constrained to spend time which we could have utilised for dealing with important and urgent matters of medical admissions. The Writ Petition is therefore dismissed with costs of Rs. 25,000/- to be paid to the High Court Bar Association at Nagpur.
8. Rule stands discharged.
9. Costs be paid within a period of two weeks. Put up for compliance after two weeks."
7. The Learned Senior Counsel appearing on behalf of the Petitioners in chorus submitted that the preliminary objection raised by Dr. Saraf is not tenable. Mr. Chinoy, learned Senior Counsel submitted that the decision of the Supreme Court in the case of Ahmedabad Municipal Corporation (supra) was only in the context of the relevant municipal laws applicable in the State of Gujarat, which specifically provided for the levy of property tax on mobile towers. He submitted that hence the said decision would have no application to the challenge as raised in the present batch of petitions, since the challenge pertains to the levy of property taxes on mobile towers, which do not fall within the definition of 'land' and 'building' under the provisions of the MMC Act. Mr. Khambata, learned Senior Counsel submitted that the question of res judicata would not arise since the Petitioner whom he represents was not a party before the Supreme Court in any of the Petitions which were disposed of by the Supreme Court in the case of Ahmedabad Municipal Corporation (supra). Mr. Godbole referring to paragraph 33 of the decision in Ahmedabad Municipal Corporation (supra) submits that the Page 11 of 13 Sajakali Jamadar ::: Uploaded on - 16/08/2025 ::: Downloaded on - 22/08/2025 21:57:19 ::: 5-IA-2055-2021 AND ORS (C).DOC Supreme Court has clearly observed that several decisions of the different High Courts or even of the Supreme Court were rendered only in the context of the relevant municipal laws which were subject matter of consideration of the Courts, in the respective decisions. It is hence submitted that the decision in the Ahmedabad Municipal Corporation (supra) needs to be read in the context of the Gujarat law.
8. However, all learned Counsel fairly submitted that they would not have any objection in furnishing copies of the Writ Petitions/Transfer Petitions/SLPs (if any) filed by their respective clients as sought by the learned Advocate General, which had fell for adjudication of the Supreme Court and disposed of by the Supreme Court in Ahmedabad Municipal Corporation (supra). Let such copies be furnished by such Petitioners within a period of ten days from the day a copy of this order is made available, to be submitted with the office of the Learned Advocate General.
9. We also accept the request as made on behalf of the Learned Advocate General and Mr. Kumbhakoni for the Corporation, for leave to file an appropriate interim application raising the plea of res judicata and principles and/or analogous thereto, as may be permissible in law.
10. Let such application be filed within a period of 10 days after the copies of the proceedings are served by the Petitioners in the office of the Learned Advocate General. Copies of such application be served on all the parties. Replies if any to be filed one week thereafter.
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11. List on 12th September 2025, High on Board.
12. We may also clarify that in passing the aforesaid order, we have not examined any of the individual cases and more particulary those cases which were not before the Supreme Court. Also as to what would be the legal position in such cases considering the aforesaid decisions as noted by us would fell for consideration at the subsequent stage of the proceedings.
13. All contentions of the parties on the proceedings as also on the proposed applications are expressly kept open.
WRIT PETITION NO. 417 OF 2017 & WRIT PETITION No. 2517 OF 2017.
14. Writ Petition No. 2517 of 2017 is not on board. Taken on Board.
15. Time to carry out the amendment is extended by a period of three weeks from today.
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