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Judgment
H.N. Nagamohan Das, J.—In these writ petitions the Petitioners have prayed for a declaration that the municipal authorities/local bodies under the provisions of the Karnataka Municipalities Act, 1964 (for short, ''Municipalities Act''), Karnataka Municipal Corporations Act, 1976 (for short, ''KMC Act'') and Karnataka Panchayat Raj Act, 1993 (for short, ''Panchayat Raj Act'') have no authority to make physical demand in respect of telecommunication towers installed in their limits, further for a writ of certiorari to quash the demand notices issued by the Respondents to the Petitioners demanding payment of certain amounts as hereunder
W.P. Nos.
Annexures
Dated
Amount
19530 of 2005
F
8-7-2005
1,40,000/-
7162, 7472 and 7473 of 2009
NIL
NIL
NIL
7163 and 7487 to 7492 of 2009
NIL
NIL
NIL
7164, 7485 and 7486 of 2009
E1
18-2-2009
3,12,520/-
E2
18-2-2009
1,23,039/-
E3
18-2-2009
4,31,852/-
7165 and 7474 to 7484 of 2009
G1
26-2-2009
25,000/-
G2
4-2-2009
25,000/-
G3
18-2-2009
2,39,244/-
G4
18-2-2009
89,826/-
G5
18-2-2009
1,30,453/-
G6
18-2-2009
1,32,024/-
G7
18-2-2009
1,30,630/-
G8
18-2-2009
1,29,268/-
G9
18-2-2009
1,22,508/-
G10
18-2-2009
1,30,154/-
G11
18-2-2009
2,31,981/-
G12
18-2-2009
1,28,748/-
G13
18-2-2009
50,000/-
8124 to 8132 of 2009
E1
18-2-2009
85,980/-
E3
25-2-2009
32,000/-
E7
29-1-2009
50,000/-
8133 and 8134 of 2009
E1
16-3-2009
7,500/-
E2
4-3-2009
25,000/-
12368 of 2009
A
22-1-2009
50,000/-
Petitioners contend that they have obtained licence from the Department of Telecommunications, Ministry of Communications, Government of India under the Indian Telegraph Act, 1885 to provide infrastructure support and assistance to telecom service providers. In terms of the licence, Petitioners are establishing telecommunication network and as a part of it, they are erecting and installing base trans-receiver stations/telecommunication towers all over the State of Karnataka and within the limits of various local bodies. Petitioners are erecting and installing the towers on private properties after obtaining necessary permission by way of lease or licence from the respective owners. Since the local bodies are creating problems for the Petitioners in the matter of erecting towers by insisting them to obtain no objection certificate, licence, permission etc., Petitioners approached Government of Karnataka for a general direction to all the local bodies. Reacting to the request of the Petitioners and others, Government of Karnataka issued a circular on 2-3-2005 permitting them to install and erect the towers subject to the following conditions:
(i) The companies shall ensure safety of the structure and upon which the tower is erected and also the stability of the tower itself.
(ii) The companies shall be bound by any levy imposed by the local bodies.
(iii) The companies shall be responsible for the safety of general public.
(iv) The companies shall abide by all the applicable rules and regulations.
Despite this general Circular dated 2-3-2005 issued by the Government of Karnataka, the local bodies/Respondents are issuing demand notices as stated above to pay licence fee/tax/charges/cess etc. Aggrieved by this action of the Respondents and local bodies, Petitioners are before this Court.
Sri Vijayashankar, learned Senior Counsel for the Petitioners contend that under the provisions of Indian Telegraph Act licences are issued in favour of the Petitioners by collecting necessary licence fee. Therefore, the Petitioners are not liable to pay any other fee or licence charges to the local bodies/Respondents under the provisions the three enactments-Municipalities Act, KMC Act and Panchayat Raj Act. Under the provisions of these three Acts, Respondent-local bodies can only levy property tax in respect of land and buildings and as such they are not entitled to collect any fee/tax or cess from the Petitioners for erecting telecommunication towers. The demand of Respondent local bodies is therefore contrary to the provisions of the Acts referred to above. It is contended that the power to levy tax under the provisions of the above three Acts is traceable only to Article 246 of the Constitution of India read with Entry 49 of List II of Seventh Schedule which deals with tax on lands and buildings. The said entry under Article 246 do not authorise the State Legislature to impose tax on telecommunication towers. Therefore, it is contended that the impugned demand notices are liable to be quashed. Reliance is placed on the following decisions:
(i) Indus Towers Limited v. State of Gujarat and Anr. 2010(2) Guj. L.R. 1730;
(ii) Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla and others, .
Per contra, learned Counsel for the Respondent local bodies contend that the telecommunication towers erected and installed by the Petitioners are within the ambit of the word ''building'' as defined under the provisions of three Acts. Therefore, the Respondent-local bodies are competent to levy tax on the telecommunication towers erected and installed within the limits of the local bodies. Respondents justify the levy of tax under the impugned demand notices.
Heard arguments on both the side and perused the entire writ papers.
Article 265 of Constitution of India specifies that no tax shall be levied or collected except by authority of law. Article 243-H empowers the Legislature of a State to enact law authorising the panchayaths to levy and collect taxes, duties, tolls and fees. So also Article 243-X empowers the State Legislature to enact the law authorising the Municipalities to levy and collect taxes, duties, tolls and fees. The Government of Karnataka had enacted the Municipalities Act, 1964, KMC Act, 1976 and the Panchayat Raj Act, 1993. Under these three Acts necessary provisions are made for levy of taxes, fees, cess, etc. Provisions are also made for issue of licences. The provisions under these three Acts do not specify authorising the local bodies under these three enactments to levy and collect the annual permission fee and installation charges in respect of mobile telecommunication towers. Further the provision under these three Acts do not specify that the cellular companies are required to obtain licences and permissions for providing telecom service. In the absence of any such authority under these three enactments, the local bodies are barred from levying and collecting any fee or installation charges on Petitioners and other cellular companies for providing telecom service.
It is not in dispute that the Petitioners are registered infrastructure provider category I with the Government of India, Ministry of Communications and IT, Department of Telecommunications u/s 4 of the Indian Telegraph Act, 1885. The Government of India has also issued registration certificates under the Indian Telegraph Act, 1885 to the Petitioners to operate cellular mobile telephone services in Karnataka Telecom Circle Service. It is on the strength of the certificates issued under the Indian Telegraph Act, the Petitioners are erecting the mobile towers in different parts of the country including the State of Karnataka for providing cellular mobile telephone services. Therefore, the Petitioners need not require to obtain any licence or permission from the Respondent local bodies for providing and operating telegraph services. Even otherwise, the provisions under these three enactments though provide for obtaining licence or permission in respect of the areas specified in the schedule mentioned therein, they do not provide to obtain licence or permission for providing and operating telegraph service. Therefore, the Petitioners who have already obtained the registration certificates under the Indian Telegraph Act need not require to obtain any licence or permission from the Respondent-local bodies for providing and operating telegraph service.
Section 94 of the Municipalities Act provides for levy of tax on building or vacant land or both situated within the Municipal area. Section 2(3) of the Municipalities Act defines the word ''Building'' as under:
Building" includes a house, out-house, stable, latrine, urinal, shed, hut, wall, verandah, fixed platform, plinth, doorstep, staircase or any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever; but does not include a portable shelter.
Sections 181 to 192 of the Municipalities Act deals with the power of Municipality to regulate the construction of buildings.
So also Section 103 of the KMC Act specifies the levy of tax on buildings or vacant lands or both situated within the city. Section 2(1-A) of the KMC Act defines the word ''building'' as under
Building" includes.--a house, out-house, stable, privy, shed, hut, wall, verandah, fixed platform, plinth, doorstep and any other such structure, whether of masonry, bricks, wood, mud, metal or any other material whatsoever".
(emphasis supplied)
Further Sections 295 to 321 of the KMC Act deals with the power to regulate construction of buildings.
Similarly, Section 199 of the Karnataka Panchayat Raj Act specifies levy of tax upon the buildings and lands. Section 2(3) of the Act defines the word ''building'' as under:
Building" includes.--a house, out-house, shop, stable, warehouse, workshop, canopy, shed, hut or other enclosure whether used as a human dwelling or otherwise and shall include a wall, compound wall, fencing, verandah, platform, plinth doorstep and the like.
Section 65 specifies the power to regulate the erection of buildings, Section 66 specifies that no person shall without permission of Grama Panchayat install in any premises any machinery or manufacturing plant, driven by any power etc.
A reading of the provisions in the Municipalities Act and the KMC Act specifies the word ''building'' includes a structure made out of metal or other material whatsoever. Further Section 66 of the Panchayat Raj Act specifies that no person shall install the machinery on any premises without permission of the Grama Panchayat. Petitioners in order to provide cellular mobile telephone services are constructing metal towers. The erection of these metal towers comprises installation of communication towers, installation of shelter and a diesel generator set attached to it. Invariably these transmission towers are erected over residential, commercial and industrial buildings, vacant lands etc. Therefore, the erection of these communication towers falls within the definition of the word ''Building'' specified under the provisions of the three Acts referred to above. Whenever a person erects a metal tower within the limits of the City, Town or Municipality or Grama Panchayat are required to secure permission/licence from the concerned local body. On completion of erection of tower, then the concerned local body is entitled to levy tax on it. Therefore, the Petitioners who are erecting towers within the limits of the local bodies are required to obtain permission/licence and liable to pay taxes to the concerned local body.
A company by name M/s. Reliance Infratel Limited approached the Bruhat Bengaluru Mahanagara Palike (for short, ''BBMP'') for permission to establish a Base Transceiver Stations comprising erecting 15 meters communication tower, installation of a shelter and a diesel generator set at Nos. 63 and 64, I Main, Upkar Layout, Whitefield, Bangalore-66. The residents of Upkar Layout complained to the BBMP opposing the erection of mobile tower in that area on the ground that it would cause serious health hazard and radiation pollution in the residential area. Consequently the BBMP referred the matter to Central Power Research Institute for furnishing their opinion on health hazard aspects of erecting a communication tower. Pending receipt of the report from CPRI, the BBMP issued an endorsement not to proceed with the installation and commissioning of the tower. Aggrieved by the endorsement issued by the BBMP, M/s. Reliance Infratel Limited approached this Court in W.P. No. 22931 of 2009. During the pendency of W.P. No. 22931 of 2009 the BBMP secured a report from the Indian Institute of Science specifying the guidelines in the matter of erecting a communication tower so as to limit the exposure of electro magnetic fields radiated from mobile base stations. The BBMP further brought to the notice of the Court in the said writ petition the Government Orders dated 20-2-1999, 12-11-2001 and 29-5-2002 specifying the guidelines in the matter of erecting communication towers and the substance of these Government orders is as under:
a. That they should obtain approval of Air Traffic Controller, Airport Authority of India, for exemption of Roof top Antena from restriction, in case such exemption is required.
b. That they should inform the local authority concerned i.e., Commissioner, Municipalities, Urban Development Department, etc., along with the necessary drawings and consent letter of the building owner before installation.
c. That they are solely responsible for any damage to the building and public safety.
d. That they should take special precautions for fire safety and lightening etc.
e. Granting permission to the Company to install electric equipments for telecom operation, the Department of Urban Development, Municipal Corporation shall ensure that the company shall obtain clearances from the following agencies:
(i) No objection certificate from Electrical Inspectorate.
(ii) No objection certificate from Directorate of Fire Services.
(iii) No objection certificate from owners associations of building.
In W.P. No. 22931 of 2009 M/s. Reliance Infratel Limited submitted that they will comply with the requirement specified in the report submitted by the Indian Institute of Science dated 3-11-2008 and Government Orders dated 20-2-1999, 12-11-2001 and 29-5-2002. Recording the undertaking given by M/s. Reliance Infratel Limited, the said W.P. No. 22931 of 2009 came to be disposed of.
The installation of communication tower either on vacant land or on the roof of a building comprises installation of communication tower, installation of shelter and a diesel generator set attached to it. This activity of erecting a communication tower involves the safety of building, safety of people residing in the said building and in the neighbourhood. Further it involves the health of residents in the locality due to emission of radiation from such towers. Therefore, the erection of mobile towers necessarily involves the regulation by local body similar to the regulation of erection of a building. The local bodies are having an obligation under the provisions of three enactments referred to above to regulate the erection, installation and commissioning of the mobile towers. As such the Petitioners are required to obtain permission/licence for erection of the mobile towers.
The licence obtained by the Petitioners u/s 4 of the Telegraph Act is only in respect of providing cellular mobile telephone services. The said licence under the Telegraph Act is not for the purpose of erecting a mobile tower. As already held, erecting of mobile tower comes within the definition of the word ''building''. Whenever a building is erected in the limits of the local body then the same requires to be regulated in the interest of public safety and health. Therefore, the licence obtained by the Petitioners under the Telegraph Act is entirely different from the permission or licence to be obtained from the local bodies for erecting mobile towers. The licence obtained under the Telegraph Act serves different purpose and the licence/permission to be obtained under the local bodies serves a different purpose. Therefore, the Petitioners are required to obtain the permission/licence from the Respondent/local bodies for the purpose of erecting the mobile towers.
Once the Petitioners erect a mobile tower within the limits of Respondent-local bodies by obtaining permission from them, they fall under the definition of the word ''building''. If a building is erected within the limits of the Respondent-local bodies then they are empowered to levy and collect taxes as per the provisions of the enactments and the Rules. Therefore, the Petitioners who have erected mobile towers are liable to pay taxes to the Respondent-local bodies as per the provisions of the enactments and the rules.
It is brought to my notice that the Bruhat Bangalore Mahanagara Palike amended the Rules relating to assessment of buildings for the period 2008-09 to 2010-11. under these Rules provision is made to levy taxes on mobile towers at Rs. 12,000/- per annum per tower. It is not brought to my notice any such amendment to the taxation Rules in respect of Municipalities Act, KMC Act and Panchayat Raj Act. The Respondent-local bodies under these three enactments are entitled to amend their taxation Rules providing levy of taxes on mobile towers. Till the relevant Rules are amended by the Respondent-authorities in accordance with law, the Respondent-authorities are at liberty to adopt the rules framed by Bruhat Bangalore Mahanagara Palike in the matter of levying taxes on mobile towers. The impugned notices issued by the Respondents are not based on any rules. These demand notices based on resolutions passed by the Respondent-local bodies are arbitrary, unguided and not supported by any rules and as such they are liable to be quashed. It is always open for the Respondent-local bodies, under the three enactments, to levy and collect taxes in accordance with law. By quashing the impugned notices there will be a void situation in the matter of collecting taxes from the Petitioners who have already erected and operating the mobile towers in the limits of Respondent-local bodies. In the circumstances it is necessary to balance the interest of both the parties. Therefore, the Petitioners are liable to pay tax of Rs. 12,000/- p.a. per mobile tower till appropriate rules are framed for levying taxes on mobile towers. The payment of Rs. 12,000/- per mobile tower per annum is subject to the framing of rules by the Respondent-local bodies and the same is adjustable.
Learned Counsel for the Petitioners relying on a judgment of Gujarat High Court in Indus Towers Limited v. State of Gujarat 1. 1951(2) Guj. L.R. 1730, contend that it is not permissible for the Respondent-authorities to levy and collect permission fees and installation charges in respect of mobile telecommunication towers. In Indus Towers Limited''s case the Government resolution dated 11-12-2008 issued by the Government of Gujarat and Urban Housing Department and the demand notices issued pursuant thereto providing for levy and recovery of annual permission fees and installation charges on mobile telecommunication towers was challenged. In the instant case, the impugned notice specifies that the Respondent-local bodies have passed resolution demanding permission fee and installation charges. I am in agreement with the law laid down in Indus Towers Limited''s case. On this ground also the impugned notices are liable to be quashed.
For the reasons stated above, the following order.--
(i) Writ petitions are partly allowed.
(ii) The impugned orders/demand notices as under are hereby quashed:
W.P. Nos.
Annexures
Dated
Amount
19530 of 2005
F
8-7-2005
1,40,000/-
7162, 7472 and 7473 of 2009
NIL
NIL
NIL
7163 and 7487 to 7492 of 2009
NIL
NIL
NIL
7164, 7485 and 7486 of 2009
E1
18-2-2009
3,12,520/-
E2
18-2-2009
1,23,039/-
E3
18-2-2009
4,31,852/-
7165 and 7474 to 7484 of 2009
G1
26-2-2009
25,000/-
G2
4-2-2009
25,000/-
G3
18-2-2009
2,39,244/-
G4
18-2-2009
89,826/-
G5
18-2-2009
1,30,453/-
G6
18-2-2009
1,32,024/-
G7
18-2-2009
1,30,630/-
G8
18-2-2009
1,29,268/-
G9
18-2-2009
1,22,508/-
G10
18-2-2009
1,30,154/-
G11
18-2-2009
2,31,981/-
G12
18-2-2009
1,28,748/-
G13
18-2-2009
50,000/-
8124 to 8132 of 2009
E1
18-2-2009
85,980/-
E3
25-2-2009
32,000/-
E7
29-1-2009
50,000/-
8133 and 8134 of 2009
E1
16-3-2009
7,500/-
E2
4-3-2009
25,000/-
12368 of 2009
A
22-1-2009
50,000/-
(iii) The Petitioners are required to obtain licence from the Respondent-local bodies under the relevant enactments for erecting mobile towers.
(iv) If the Petitioners have all ready erected mobile towers, then they have to seek regularisation from the Respondent-local bodies. In that event the Respondent-local bodies have to consider the same in accordance with law keeping in mind the public safety and health.
(v) The Respondent local bodies are at liberty to amend the Taxation Rules providing for levy of taxes on mobile towers or they may adopt the amended tax rules of Bruhat Bangalore Mahanagara Palike.
(vi) As a tentative arrangement the Petitioners are liable to pay a sum of Rs. 12,000/- per annum per mobile tower as tax to the Respondent-local bodies and the same is subject to amendment of taxation rules by Respondent local bodies and the same is a adjustable.
(vii) Ordered accordingly.