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Showing contexts for: article 243X in Vodafone Mobile Servies Limited vs State Of Gujarat & on 23 March, 2017Matching Fragments
(PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] By way of this petition under Article 226 of the Constitution of India, the petitioner as such challenges the levy of General Property Tax on IBS / Booster installed by the petitioner. The petitioner has also by way of amendment prayed for an appropriate writ, direction and order to declare Section 141B of the Gujarat Provincial Municipal Corporations HC-NIC Page 1 of 26 Created On Fri Mar 24 00:14:43 IST 2017 Act, 1949 (hereinafter referred to as "GPMC Act") as ultra vires to Article 243X of the Constitution of India. By way of amendment the petitioner has also prayed for an appropriate writ, direction and order to strike down Rule 8B of the Taxation Rules (Amendment), 2001 (hereinafter referred to as "Taxation Rules") under Chapter VIII of Schedule A to the GPMC Act as arbitrary to the extent the same provide for computation of levy of Tax on Mobile / Microwave Towers.
[2.6] Now, so far as the challenge to the vires of Section 141B of the GPMC Act as ultra vires Article 243X of the Constitution of India and the prayer to strike down Rule 8B of the Taxation Rules under Chapter VIII HC-NIC Page 5 of 26 Created On Fri Mar 24 00:14:43 IST 2017 of Schedule A to the GPMC Act is concerned, Shri Joshi, learned Counsel appearing on behalf of the petitioner has submitted that Article 243X of the Constitution of India permits that the Legislature of a State, may, by law authorize the Municipality to levy, collect and appropriate such Taxes etc. in accordance with such procedure and subject to such limits as may be specified in the law. It is submitted that the law authorizing the Municipality to levy; collect and appropriate Tax must have been passed by the Legislature of the State and the Legislature itself must prescribe the procedure and the limits. It is submitted that for the purpose of Article 243X of the Constitution of India, "law" will not include Rules, Regulation, Notification etc. It is submitted that on the one hand in clause (b) of subsection (3) of Section 141B of the GPMC Act the Legislature has prescribed the limits for levy of property Tax on nonresidential buildings, while on the other hand in subsection (4) of Section 141B of the GPMC act, Legislature empowers the Corporation to increase or decrease the rate of Tax subject to the Rules. It is submitted that therefore and in such circumstances section 141(3)(b) is rendered redundant, as the Corporation under Section 141B(4) may increase or decrease the rate of Tax, which may exceed the limits prescribed under Section 141B(3)(b). It is submitted that therefore, section 141B(4) of the GPMC Act to the extent it provides powers to the Corporation to increase or decrease the rate of Tax is ultra vires Article 243X of the Constitution of India.
[4.6] Now, so far as the submission on behalf of the petitioner that determination of Tax on the Mobile Towers of the petitioner is contrary to the ceiling limit prescribed under Section 141B(3) of the GPMC Act and therefore, the same is ultra vires the Article 243X of the Constitution of India is concerned, the aforesaid has no substance. It is the case on behalf of the petitioner that section 141B(3) of the GPMC Act provides that rate of Tax determined under subsection (1) read with subsection (2) which can be less than and/or more than the amount mentioned in the said subsection i.e. same cannot be less than Rs.20 per sq. meter of carpet area and more than Rs.80 per sq. meter of the carpet area in case of buildings, other than residential are concerned, and in the case of Mobile Tower of the petitioner same would be Rs.302 per sq. meter after applying the factors mentioned in the Taxation Rules, and therefore, as the same shall be more than maximum limit prescribed under Section 141B(3) of the GPMC Act and therefore, the same shall be bad in law, HC-NIC Page 13 of 26 Created On Fri Mar 24 00:14:43 IST 2017 illegal and/or ultra vires to Article 243X of the Constitution of India. The aforesaid submission seems to be directive but has no substance. Section 141B of the GPMC Act is required to be read as a whole and the same cannot be read in piecemeal. Subsection (3) of section 141B of the GPMC Act is required to be read alongwith subsection (4) of section 141B. Subsection (4) of section 141B specifically authorizes and/or permits the Corporation to increase or decrease or neither increase nor decrease the rate of Tax determined under section (1) read with sub sections (2) and (3), however subject to the Rules which may be framed for that. As observed hereinabove, what are the factors to be taken into consideration while increasing or decreasing the rate of Tax determined under subsection (1) read with subsections (2) and (3) of the GPMC Act are provided under Section 141B(4)(a) of the GPMC Act. Therefore, the words which are used under subsection (4) of section 141B of the GPMC Act are that "the Corporation may increase or decrease, rate of Tax determined under subsection (1) read with subsections (2) and (3) of the GPMC Act. Therefore, under the Statute itself it authorizes the Corporation to increase or decrease the rate of Tax determined under subsection (1) read with subsections (2) and (3) of Section 141B of the GPMC Act. Therefore, rate of Tax which are determined under sub section (3) of Section 141B of the GPMC Act also can be increased or decreased by the Corporation, however subject to the Rules. In the present case the Taxation Rules are framed by the Corporation in exercise of powers under Section 454 of the GPMC Act. Under the circumstances, when the Statute itself permits the Corporation to increase or decrease the rate of Tax determined under subsection (1) read with subsections (2) and (3), the determination of the Tax in the present case cannot be said to be either illegal and/or contrary to the provisions of the Statute and/or the same cannot be said to be ultra vires to Article 243X of the Constitution of India. If the submission on behalf of the petitioners is accepted, in that case the powers conferred under HC-NIC Page 14 of 26 Created On Fri Mar 24 00:14:43 IST 2017 subsection (4) of Section 141 of the GPMC Act would become nugatory and/or otiose. As per the cardinal principle of law of interpretation of Statute while considering a particular provision of Statute, the Court is required to see that another provision of the Statute may not become nugatory and/or otiose. Under the circumstances it cannot be said that the determination of the property Tax on IBS / Booster sites of the petitioner is in anyway illegal and/or bad in law and ultra vires to Article 243X of the Constitution of India.
[4.7] Now, so far as the challenge to the vires of Section 141B of the GPMC Act and the submission on behalf of the petitioner that levy of General Property Tax as per the Rules as provided under Section 141B(4) of the GPMC Act and the submission that the same is ultra vires to Article 243X of the Constitution of India is concerned, the aforesaid issue is also now not res integra in view of the decision of the Division Bench of this Court in the case of Adani Gas Limited (Supra). While considering the constitutional validity of section 141B of the GPMC Act insofar as it provides for General Taxes as per the Taxation Rules, while holding that section 141B of the GPMC Act to levy General Property Tax as per the Taxation Rules is constitutionally valid and/or the same cannot be said to be ultra vires to Article 243X of the Constitution of India, the Division Bench of this Court in paras 16.1 to 16.9 has observed and held as under: