Tower Vision India Pvt Ltd. vs State of Gujarat

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V.M. Sahai, J.—We have heard Mr. Nikhil S. Kariel, learned counsel appearing for the appellant, Mr. Vishal Patel, learned Assistant Government Pleader appearing for respondent No. 1 and Mr. Nishant Lalakiya, learned counsel appearing for respondent No. 2.

In this Letters Patent Appeal, the appellant-original petitioner has challenged the judgment and order dated 9.7.2013 passed by the learned Single Judge in Special Civil Application No. 11635 of 2012 whereby the learned Single Judge dismissed the writ petition of the appellant.

The challenge in the writ petition is against the demand notice dated 1.6.2012 issued by the respondent No. 2 Corporation and also against the decision of the respondent No. 2 Corporation to levy annual charges, installation charges and penalty charges for installation of telecommunication towers of the appellant Company, installed within the limits of respondent No. 2 Corporation.

We did not go into the facts of the present case as the controversy involved in this Letters Patent Appeal is squarely covered by the Division Bench decision of this Court wherein the facts and grievances have been elaborately dealt with.

Mr. Kariel, learned counsel appearing for the appellant has urged that the controversy involved in this Letters Patent Appeal is squarely covered by the decision of the Division Bench of this Court rendered in the case of Indus Towers Ltd. Vs. State of Gujarat and Another, wherein it has been held that the power to levy annual permission fee and/or installation charges also cannot be traced to the provisions of Section 118 of the Municipalities Act. Thus, it is apparent that there is no provision under the Gujarat Municipalities Act, which authorises the authorities thereunder to levy and collect annual permission fee and installation charges in respect of mobile telecommunication towers. Hence, the action of the Municipal authorities in the State imposing annual permission fees, installation charges and administrative charges for erection of mobile telecommunication towers by cellular companies on private land in pursuance of Government Resolution dated 11.12.2008 was found to be ultra vires the Constitution of India and relevant statutory provisions and the same was quashed and set aside.

In the instant case also, on the basis of the same Government Resolution, the respondent No. 2 Corporation has imposed annual charges, installation charges and penalty charges for installation of telecommunication towers of the appellant Company.

Hence, following the aforesaid Division Bench judgment, we are of the considered opinion that the present Letters Patent Appeal is required to be allowed. In the result, the Letters Patent Appeal succeeds and is allowed. The impugned judgment and order dated 9.7.2013 passed by the learned Single Judge in Special Civil Application No. 11635 of 2012 is set aside. The demand notice dated 1.6.2012 (Annexure H to the writ petition) issued by the respondent No. 2 Corporation is also set aside. Parties to bear their own costs.

In view of disposal of main Letters Patent Appeal, Civil Application also stands disposed of.

Any amount deposited by the appellant in pursuance of the aforesaid demand notice with the respondent No. 2 Corporation shall be refunded to the appellant by the respondent No. 2 Corporation within a period of two months from the date a copy of this judgment is produced before the respondent authorities.

Direct service is permitted.