Vodafone Spaceted Limited v. State Of Chhattisgarh and Ors

Court: High Court of Chhattisgarh

Bench: HON'BLE THE CHIEF JUSTICE,HON'BLE SHRI JUSTICE PARTH PRATEEM SAHU

Judgment date: 2020-02-10

Case summary

High Court of Chhattisgarh judgment dated 2020-02-10. Vodafone Spaceted Limited v. State Of Chhattisgarh and Ors. Read the judgment and case details on...

Judgment text

AFR HIGH COURT OF CHHATTISGARH, BILASPUR Judgment Reserved on : 02. 12. 2019 Judgment Delivered on : 10. 02. 2020 HIGH COURT OF CHHATTISGARH, BILASPUR WPC No. 6324 of 2011 1. Reliance Infratel Limited, (A subsidiary of Reliance Communications Ltd. ), a Company incorporated and registered under Indian Companies Act, 1956 having its registered office at Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Bombay inter alia circle office at Poojari Complex, Pachpedi Naka, Raipur (C. G. ) 2. Reliance Communications Ltd. , a Company incorporated and registered under Indian Companies Act, 1956 having its registered office at Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Bombay inter alia circle office at Poojari Complex, Pachpedi Naka, Raipur (C. G. ) 3. Reliance Telecom Ltd, (A subsidiary of Reliance Communications Ltd.

), a Company incorporated and registered under Indian Companies Act, 1956 having its registered office at Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Bombay inter alia circle office at Poojari Complex, Pachpedi Naka, Raipur (C. G. ) ---- Petitioners Versus 1. State of Chhattisgarh, Through its Secretary, Department of Urban Administration & Development, Mantralaya, D. K. S. Bhavan, Raipur (C. G. ) 2. Director, Directorate of Urban Administration & Development, Department of Urban Administration & Development, Mantralaya, D. K. S. Bhavan, Raipur (C. G. ) 3. Union of India, Through its : Secretary, Department of Telecommunication, New Delhi (India) ---- Respondents WPC No. 129 of 2017 • M/s Ascend Telecom Infrastructure Private Ltd. , Formerly Known As M/s Aster Infrastructure Pvt. Ltd. Having Registered Office At A 25 And 26, 2nd Crescent Road, Sainikpuri, Secunderabad- 500094 And Having Madhya Pradesh And Chhattisgarh Circle Office At 283 C H, Scheme No.

74 C, Vijay Nagar, Indore Madhya Pradesh 452010, Through Power Of Attorney Holder Mr. Ravindra Upadhyay, S/o Late Shri R. S. Upadhyay, Aged About 47 Years, Working As Circle Head In The Petitioner Company, Having Office At 283 Ch, Scheme No. 74 C, Vijay Nagar, Indore Madhya Pradesh. ---- Petitioner Versus 1. State of Chhattisgarh Through Its Principal Secretary, Department Of Urban Administration And Development, Indravati Bhawan, Naya Raipur, Chhattisgarh 2. Director, Urban Administration And Development Department, Indravati Bhawan, Naya Raipur, Chhattisgarh 2 3. Union of India, Through Secretary, Department of Telecommunication, New Delhi 4. Municipal Corporation, Raipur, Through Its Commissioner, Raipur, Chhattisgarh ---- Respondents WPC No. 154 of 2019 1. Bharat Sanchar Nigam Limited, Through Chief General Manager, Office of Circle Chief General Manager, Bharat Sanchar Nigam Limited, Administrative Building (Vidhansabha- Road) Khamardih Raipur, District Raipur, Chhattisgarh 2.

The General Manager, Bharat Sanchar Nigam Limited, O/o Gmtd, Durg, District Durg, Chhattisgarh ---- Petitioners Versus 1. The State Of Chhattisgarh Through Secretary, Department Of Urban And Urban Administration And Development Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh 2. Director, Panchayat And Rural Development Department Raipur, District Raipur, Chhattisgarh ---- Respondents WPC No. 192 of 2013 1. Tower Vision India Private Limited A Company Registered Under The Companies Act, 1956, Regd Office: L-2A, Hauz Khas Enclave, New Delhi, Branch Office At A-201, 2nd Floor, Muskan Residency, Opposite- Colors Mall, Pachpedi Naka, Raipur CG Through Its Power Of Attorney Holder Shri Shailendra Shinde, Aged About 32 Years, S/o Shri D. S. Shinde Working As Executive Legal Raipur, CG. Tower Vision India Private Limited, Office At A-201, 2nd Floor, Muskan Residency, Opposite Colors Mall, Pachpedi Naka, Raipur, Chhattisgarh, P. S. Pachpedi Naka, P. O.

Pachpedi Naka Raipur CG, Pin 495006 ---- Petitioner Versus 1. State of Chhattisgarh Through Its Principal Secretary Department Of Urban Administration And Development, Mahanadi Bhawan, Mantralaya, Naya Raipur, Chhattisgarh 2. The Director Urban Administration And Development Department, R D A Building, G E Road, Near Shastri Chowk, Raipur, Chhattisgarh 3. Municipal Corporation, Raipur, Through Its Commissioner, Raipur 4. Municipal Corporation, Bilaspur, Through Its Commissioner, Bilaspur 5. Municipal Corporation, Durg, Through Its Commissioner, Durg 6. Municipal Corporation, Chirmiri, Through Its Commissioner, Chirmiri 7. Municipal Corporation, Korba, Through Its Commissioner, Korba 8. Executive Engineer Municipal Corporation, Korba 9. Union Of India Through Its Secretary, Department Of Telecommunication, Shastri Bhawan, New Delhi ---- Respondents 3 WPC No. 207 of 2012 1. Idea Cellular Ltd.

A Company Incorporated Under The Companies Act 1956 Having Its Registered Office At Suman Tower, Plot No. 18, Sector- 11, Gandhi Nagar 382011 Gujrat, Having Its Circle Office At 139-140, Electronic Complex, Pardeshipura Indore M. P. , Through- Its D. G. M. - Legal And Regulatory Shri Bhargov Sarma Having Zonal Office At Ashoka Millennium Complex 3rd Floor Ring Road No. 2, New Rajendra Nagar, Raipur 492601. ---- Petitioner Versus 1. State of Chhattisgarh, Through – The Secretary, Development Urban Administration And Development, Mantralaya, Raipur, Distt. Raipur (C. G. ) 2. Directorate of Urban Administration & Development, Through – Its Director, Raipur(C. G. ) 3. Union Of India, Through – The Secretary, Department Of Telecommunication, New Delhi. 4. C. G. State Power Distribution Co. Ltd. , Through – The Managing Director, Danganiya, Raipur-(C. G. ) 5. Municipal Corporation, Rajnandgaon, Through- The Commissioner, Rajnandgaon-(C. G. ) 6.

Municipal Corporation, Bilaspur, Through- The Commissioner, Bilaspur- (C. G. ) 7. Municipal Corporation, Chirimiri, Through – The Commissioner, Chirimiri, Distt: Korea-(C. G. ) 8. Municipal Corporation, Korba, Through – The Commissioner, Korba, Distt: Korba-(C. G. ) 9. Municipal Corporation, Durg, Through – The Commissioner, Durg, Distt: Durg-(C. G. ) 10. Municipal Corporation, Ambikapur, Through – The Commissioner, Ambikapr, Distt: Surguja-(C. G. ) 11. Municipal Corporation, Raipur, Through – The Commissioner, Raipur, Distt: Raipur-(C. G. ) 12. Municipal Corporation, Bhilai, Through – The Commissioner, Bhilai, Distt: Durg-(C. G. ) 13. Nagar Palika Parishad Baloda Bazar, Through – The Chief Municipal Officer, Distt : Raipur-(C. G. ) 14. Nagar Palika Parishad Dhamtari, Through – The Chief Municipal Officer, Distt : Dhamtari-(C. G. ) 15. Nagar Palika Parishad Champa, Through – The Chief Municipal Officer, Distt : Janjgir Champa-(C. G. ) 16.

Nagar Palika Parishad Birgaon, Through – The Chief Municipal Officer, Distt : Raipur-(C. G. ) 17. Nagar Palika Parishad Bemetara, Through – The Chief Municipal Officer, Distt : Durg-(C. G. ) 4 18. Nagar Palika Parishad Bade Bacheli, Through – The Chief Municipal Officer, Distt : South Bastar Dantewada-(C. G. ) 19. Nagar Palika, Bhilai - Charoda, Through – The Chief Municipal Officer, Bhilai – Charoda, Distt : Durg-(C. G. ) 20. Nagar Palika, Kharsia , Through – The Chief Municipal Officer, Distt : Raigarh-(C. G. ) 21. Nagar Panchayat, Rajpur, Through – The Chief Municipal Officer, Rajpur, Distt : Balrampur-(C. G. ) 22. Nagar Panchayat, Saja, Through – The Chief Municipal Officer, Distt : Durg-(C. G. ) 23. Nagar Panchayat, Aarang, Through – The Chief Municipal Officer, Aarang, Distt : Raipur-(C. G. ) 24. Nagar Panchayat, Dongargaon, Through – The Chief Municipal Officer, Dongargaon, Distt : Rajnandgaon-(C. G. ) 25.

Nagar Panchayat, Dharamjaigarh, Through – The Chief Municipal Officer, Dharamjaigarh, Distt : Raigarh-(C. G. ) 26. Nagar Panchayat, Shivpur Churcha, Through – The Chief Municipal Officer, Shivpur Churcha, Distt : Korea-(C. G. ) 27. Nagar Panchayat, Charama, Through – The Chief Municipal Officer, Chrama, Distt : North Bastar Kanker-(C. G. ) 28. Nagar Panchayat, Bodri, Through – The Chief Municipal Officer, Bodri, Distt : Bilaspur-(C. G. ) 29. Nagar Panchayat, Bodla, Through – The Chief Municipal Officer, Bodla, Distt : Kabirdham-(C. G. ) 30. Nagar Panchayat, Bilha, Through – The Chief Municipal Officer, Bilha, Distt : Bilaspur-(C. G. ) 31. Nagar Panchayat, Bilaigarh, Through – The Chief Municipal Officer, Bilaigarh, Distt : Raipur-(C. G. ) 32. Nagar Panchayat, Bhanupratappur, Through – The Chief Municipal Officer, Bhanupratappur, Distt : North Bastar, Kanker-(C. G. ) 33. Nagar Panchayat, Bhakhara, Through – The Chief Municipal Officer, Bhakhra, Distt : Dhamtari-(C. G. ) 34.

Nagar Panchayat, Basna, Through – The Chief Municipal Officer, Basna, Distt : Mahasamund-(C. G. ) 35. Nagar Panchayat, Bagbahera, Through – The Chief Municipal Officer, Bagbahera, Distt : Mahasamund-(C. G. ) 36. Nagar Panchayat, Abhanpur, Through – The Chief Municipal Officer, Abhanpur, Distt : Raipur-(C. G. ) 37. Nagar Panchayat, Ahiwara, Through – The Chief Municipal Officer, Ahiwara, Distt : Durg-(C. G. ) ---- Respondents WPC No. 784 of 2014 1. Vodafone Spaceted Limited, A Company Incorporated Under The Company Act, 1956 Having Its Registered Office At C-48, Okhla Industrial Area, Phase-Ii, New Delhi-110020 And Having Its Circle Office At First Floor, Centre Point, New Market, Bhopal-462003, Through Its 5 Deputy General Manager, Shri Rabindra Purohit S/O Shri K. C. Purohit Age 38 Years, Having Zonal Office At : Pujari Complex, Pachpedi Naka, Raipur, C. G. Having Fax No. 0755-4000400 And Email Id Rabindra. Purohit@Vodafone. Com ---- Petitioner Versus 1.

State Of Chhattisgarh, Through- The Secretary, Panchayat And Rural Development Department, Mantralaya, D. K. S. Bhawan, Raipur, Dist Raipur, Chhattisgarh 2. Director Panchayat And Rural Development Department, Raipur, Dist Raipur, Chhattisgarh 3. Union Of India, Through-The Secretary, Department Of Telecommunication, New Delhi ---- Respondents WPC No. 800 of 2010 • Vodafone Essar Spacetel Ltd. , Registered Office At C-48, Okhla Industrial Area, Phase-Ii, New Delhi-110 020: Circle Office At Centre nd Point, 2 Floor, Tt Nagar, Bhopal And Zonal Office At Shop No. 1-8: Ashoka Millenium, Ring Road No. 1, New Rajendra Nagar, Raipur, C. G. ---- Petitioner Versus 1. State Of Chhattisgarh Through Its Secretary, Department Of Urban Administration & Development, Mantralaya, D. K. S. Bhawan, Raipur, C. G. 2. Municipal Corporation Of Raipur, Through : The Commissioner, Municipal Corporation Of Raipur, Raipur (C. G. ) 3.

Municipal Corporation Of Rajnandgaon, Through : The Commissioner, Municipal Corporation Of Rajnandgaon, Rajnandgaon (C. G. ) 4. Municipal Corporation Of Durg, Through : The Commissioner, Municipal Corporation Of Durg, Durg (C. G. ) 5. Municipal Corporation Of Bilaspur, Through : The Commissioner, Municipal Corporation Of Bilaspur, Bilaspur (C. G. ) 6. Municipal Corporation Of Dhamtari, Through : The Commissioner, Municipal Corporation Of Dhamtari, Dhamtari (C. G. ) 7. Union Of India Through Its Secretary Department Of Telecommunication New Delhi ---- Respondents WPC No. 859 of 2017 1. Bharti Infratel Limited Through Its Authorised Signatory, H-3, 4th Floor, Metro Tower, Nr. Vijay Nagar Sqr. , A. B. Road, Indore Madhya Pradesh Having Its Registered Office At Bharti Crescent, 1, Nelson Mandela Road Phase- Il, Vasant Kunj, New Delhi 110070, Delhi ---- Petitioner Versus 1. State Of Chhattisgarh Through The Secretary, Panchayat And Rural Development Department, Mantralaya D. K. S.

Bhawan, Raipur, Distt. Raipur Chhattisgarh 6 2. Director, Panchayat And Rural Development Department Raipur, District Raipur Chhattisgarh 3. Union of India, Through The Secretary, Department of Telecommunications, New Delhi ---- Respondents WPC No. 1405 of 2010 1. Bharti Infratel Ltd, A Company Incorporated Under The Companies Act 1956 Having Its Registered Office At Aravali Crescent, 1, Nelson Mandela Road, Vasant Kunj, Phase-Ii, New Delhi-110070 And Its Circle Office At H-3, Ground Floor, Metro Tower, Near Vijay Nagar Sqr. , Skim No. -54, A. B. Road, Indore (M. P. ) ---- Petitioner Versus 1. State Of Chhattisgarh, Through Its Secretary, Department Of Urban Administration & Development, Mantralaya, D. K. S. Bhawan, Raipur (c. g. ) 2. Commissioner, Directorate Of Urban Administration & Development, Department Of Urban Administration & Development, R. D. A. Building, G. E. Road, Near Shastri Chowk, Raipur (c. g. ) 3.

Municipal Corporation Of Raipur, Through: The Commissioner, Municipal Corporation Of Raipur, Raipur (c. g. ) 4. Municipal Corporation Of Durg, Through: The Commissioner, Municipal Corporation Of Durg, Durg (c. g. ) 5. Municipal Corporation Of Bilaspur, Through: The Commissioner, Municipal Corporation Of Bilaspur, Bilaspur (C. G. ) 6. Municipal Corporation Of Rajnandgaon, Through: The Commissioner, Municipal Corporation Of Rajnandgaon, Rajnandgaon (C. G. ) 7. Municipal Corporation Of Bhilai, Through: The Commissioner, Municipal Corporation Of Bhilai, Durg (C. G. ) 8. Municipal Corporation Of Ambikapur, Through: The Commissioner, Municipal Corporation Of Ambikapur, Surguja (C. G. ) 9. Municipal Corporation Of Raigarh, Through: The Commissioner, Municipal Corporation Of Raigarh, Raigarh (C. G. ) 10. Municipal Corporation Of Jagdalpur, Through: The Commissioner, Municipal Corporation Of Jagdalpur, Bastar (C. G. ) 11.

Municipal Corporation Of Korba, Through: The Commissioner, Municipal Corporation Of Korba, Korba (C. G. ) 12. Municipal Council Of Champa, Through: Chief Municipal Officer, Distt. Janjgir-Champa (C. G. ) 13. Municipal Council Of Janjgir-Naila, Through: Chief Municipal Officer, Distt. Janjgir-Champa (C. G. ) 14. Union Of India Through Its Secretary Department Of Telecommunication, Sanchar Bhawan, 20 Ashoka Road, New Delhi-110001 ---- Respondents 7 WPC No. 1485 of 2010 1. Reliance Infratel Ltd. A Subsidiary Of Reliance Communications Ltd. , A Company Incorporated And Registered Under Indian Companies Act, 1956 Having Its Registered Office At Block-H, Dhirubhai Ambani Knowledge City, Koper, Khairane, Navi Bombay Inter Alia Circle Office At Ashoka Millennium, Ring Road No. -1, Raipur (C. G. ) ---- Petitioner Versus 1. State Of Chhattisgarh Through Its Secretary, Department Of Urban Administration And Development, Mantralaya, D. K. S. Bhawan, Raipur, (C. G. ) 2.

Director, Directorate Urban Administration And Development, Department Of Urban Administration And Development, R. D. A. Building, G. E. Road, Near Shastri Chowk, Raipur (C. G. ) 3. Municipal Corporation Of Raipur, Through : The Commissioner, Municipal Corporation Of Raipur, Raipur (C. G. ) 4. Municipal Corporation Of bilaspur, Through : The Commissioner, Municipal Corporation Of bilaspur, bilaspur (C. G. ) 5. Municipal Corporation Of Korba, Through : The Commissioner, Municipal Corporation Of Korba, Korba (C. G. ) 6. Municipal Corporation Of Ambikapur, Through : The Commissioner, Municipal Corporation Of Ambikapur, Distt. Surguja (C. G. ) 7. Chhattisgarh State Power Distribution Company Ltd. , Through The Chairman / Principal Officer, Cspdcl, Dangania, Raipur (C. G. ) 8. Union of India Through Its Secretary Department Of Telecommunication, New Delhi ---- Respondents WPC No. 1743 of 2013 • Tower Vision India Private Ltd.

A company registered under indian companies act, 1956 Having Its Registered Office At L-2a, Hauz Khas Enclave, New Delhi, Branch Office At A-201, 2nd Floor, Muskan Residency, Opposite Colors Mall, Pachpedi Naka, Raipur, C. G. Through Its Authorized Signatory Mr. Shailendra Singh Shinde, S/o Shri D. S. Shinde, Age 32 Yrs Working As Executive Legal In Tower Vision India Pvt. Ltd, Office At L-2A, Muskan Residency, Opposite Colors Mall, Pachpedi Naka, Raipur, Chhattisgarh ---- Petitioner Versus 1. State Of Chhattisgarh Through Its Principal Secretary, Panchayat And Rural Development Department, Mantralaya, Naya Raipur, Distt Raipur, CG 2. Director Panchayat And Rural Development Department, Post G. P. O. , PS Gole Bazar, Raipur, Distt Raipur, CG 3. Union Of India, Through Secretary, Department Of Telecommunication, New Delhi 8 4. Gram Panchayat Dhaneli Through Its Sarpanch, Vikaskhand Gurur, Distt Balod, CG 5.

Gram Panchayat Bhurkoni Through Its Sarpanch, Janpad Panchayat Pithora, Distt Mahasamund, CG 6. Gram Panchayat Bhanbeda Through Its Sarpanch, Janpad Panchayat Bhanupratappur, Distt North Bastar, Kanker, CG 7. Gram Panchayat Sontara, Thorugh Sarpanch, Vikaskhand Tilda, Distt Raipur, CG 8. Gram Panchayat Podi Uproda, Through Sarpanch, Janpad Panchayat Podi Uproda, Distt Korba, CG 9. Gram Panchayat Nikum Through Sarpanch, Janpad Panchayat Durg, Distt Durg, CG 10. Gram Panchayat Jhamlmala Through Sarpanch, Janpad Panchayat Kawardha, Distt Kabirdham, CG 11. Gram Panchayat Dhanora Through Sarpanch, Janpad Panchayat, Durg, Distt Durg, CG 12. Gram Panchayat Kutela Bhata Through Sarpanch, Janpad Panchayat, Durg, Distt Durg, CG 13. Gram Panchayat Pirda Through Sarpanch, Vikaskhand Pithora, Distt Mahasamund, CG 14. Gram Panchayat Sodh Through Sarpanch, Janpad Panchayat Berla, Distt Durg, CG 15.

Gram Panchayat Pandariya Through Sarpanch, Vikaskhand Baloda Bazar, Distt Raipur, CG ---- Respondents WPC No. 1752 of 2012 • Bharti Infratel Limited A Company Incorporated Under The Companies Act, 1956 Having Its Registered Office At H-5/12, Bharti Ambience, Mehrauli Road, New Delhi 110 030 And Its Circle Office At H-3 Fourth Floor, Metro Tower, Near Vijay Nagar Square, Scheme No. -54 A. B. Road,Indore, Madhya Pradesh ---- Petitioner Versus 1. State Of Chhattisgarh Through Secretary Deptt Of Urban Administration And Development, Mantralaya, Dks Bhawan, Raipur, Cg, Chhattisgarh 2. Directorate Of Urban Administration And Development Through its Director, R. D. A. Building, Ge Road, Near Shastri Chowk, Raipur, Cg 3. C. G. State Power Distribution Co. Ltd Trough Its Managing Director, Dangarniya, Raipur, Cg 4. Union Of India Through Its Secretary Deptt Of Telecommunication, New Delhi ---- Respondents WPC No. 2058 of 2015 • A T C Telecom Infrastructure Pvt. Ltd.

(Formerly Known As Viom Networks Ltd. ) A Company Registered Under The Companies Act, 1956, Having Registered Office At 403, 4th Floor, Skyline Icon, Andheri Kurla 9 Road, Andheri East, Mumbai, Mumbai City, Maharashtra, India, 400059 And Circle Office At Plot No. 162, Modi Heights, M. P. Nagar, Zone- Il, Bhopal Madhya Pradesh ---- Petitioner Versus 1. State Of Chhattisgarh Through Its Principal Secretary, Panchayat And Rural Development Department, Mantralaya, Naya Raipur Chhattisgarh 2. Director, Panchayat And Rural Development Department, Post G. P. O. , P. S. Gole Bazar, Raipur C G 3. Union Of India, Through Secretary, Department Of Telecommunication, New Delhi 4. Gram Panchayat Gatauri Through Its Sarpanch, Janpad Panchayat Bilha, District Bilaspur C G ---- Respondents WPC No. 2092 of 2012 1. Reliance Infratel Ltd. A subsidiary of reliance communication ltd.

A company incorporated and registered under indian companies act, 1956 having its registered office at Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairance, Navi Bombay Inter Alia C. Off. At Poojari Cmplx, Panchepedi Naka, Raipur C. G. pin 492001 2. Reliance Communications Ltd. A company incorporated and registered under indian companies act, 1956 having its registered office at Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Bombay Inter Alia C. Off. At Poojari Compx. , Panchpedi Naka, P. S. Tikrapara, Raipur C. G. pin 492001 3. Reliance Telecom Ltd. A subsidiary of reliance communication ltd. A company incorporated and registered under indian companies act, 1956 having its Reg. Off. Block-H, Dhirubhai Ambani Knowledge City, Kopar Khairane, Navi Bombay Inter Alia C. Off. At Poojari Compx. , Panchpedi Naka, P. S. Tikrapara, Raipur C. G. pin 492001 ---- Petitioners Versus 1. State Of Chhattisgarh Thru Its Secrty. , Deptt. Of Rural And Panchayat Devel. Mantrly.

Mahanadi Bhawan, Naya Raipur C. G. , Chhattisgarh 2. Union Of India Thru Its Secrty. Deptt. Of Telecommunication, New Delhi India, District ---- Respondents WPC No. 2227 of 2012 • Idea Cellular Ltd. A company incorporated under the companies act, 1956 having its registered office at suman tower, plot no. 18, sector-11, gandhi nagar 382011 gujrat, having its circle office at 139-140, electronic complex, pardeshipura, indore (M. P. ) through its-DGM- Legal & regulatory shri bhargov sharma, having zonal office at Ashoka Millennium Complex, 3rd Flr, Ring Road No. 2, New Rajendra Nagar, Post Rajendra Nagar, Ps. Pandri, Raipur 492601, Chhattisgarh ---- Petitioner 10 Versus 1. State Of Chhattisgarh Thru The Secrty. Panchayat And Rural Devel. Deptt. Mantrly. Post And Ps. Rakhi Raipur C. G. , Chhattisgarh 2. Director, Panchayat And Rural Devel Deptt. Post G. P. O. , Ps. Golebazar Raipur C. G. , District : Raipur, Chhattisgarh 3. Union Of India Thu The Secrty. , Deptt.

Of Telecommunication, Post And Ps. New Delhi, District : New Delhi, Delhi 4. C. G. State Power Distb. Co. Ltd. Thru The Md, Danganiya Post Danganiyak, Ps. Sarasawati Nagar Raipur C. G. 5. Gram Panchayat Chandi Thru The Sarpanch, Janpad Panchayat Berla, Dist. Bemetara C. G. , District : Bemetara, Chhattisgarh 6. Gram Panchayat, Tulsi Thru The Sarpanch, Janpad Panchayat Aarang, Post And P. S. Aarang, Dist. Raipur C. G. , District : Raipur, Chhattisgarh 7. Gram Panchayat, Chanwaridand Thru The Sarpanch, Janpad Panchayat Manendragarh, Post And Ps. Manendrgarh, Dist. Koriya C. G. , District : Koriya (Baikunthpur), Chhattisgarh 8. Gram Panchayat Parsapani Thru The Sarpanch, Block Nagri, Post And P. S. Nagari, Dist. Dhamtari C. G. , District : Dhamtari, Chhattisgarh 9. Gram Panchayat, Karandola Thru The Sarampanch, Janpad Panchayat Bastar, Post And P. S. Bastar, Dist. Bastar C. G. , District : Bastar(Jagdalpur), Chhattisgarh 10.

Gram Panchayat, Gadhfuljhar Thru The Sarampanch, Block Basna, Post And Ps. Basna, Dist. Mahasamund C. G. , District : Mahasamund, Chhattisgarh 11. Gram Panchayat, Amora Thru The Sarpanch, Block Bemetara, Post And P. S. And Dist. Bemetara C. G. , District : Bemetara, Chhattisgarh 12. Gram Panchayat, Binjhara Thru The Sarpanch, Block Podi Uproda, Post And Ps. Podi, Uproda, Dist. Korba C. G. , District : Korba, Chhattisgarh 13. Gram Panchayat, Navapara Thru The Sarampanch, Janpad Panchayat Baloda, Post And Ps. Baloda, Dist. Janjgir-Champa C. G. , District : Janjgir-Champa, Chhattisgarh 14. Gram Panchayat, Podatarai Thru The Sarampanch, Block Pussaur, Post And P. S. Pussaur, Dist. Raigarh C. G. , District : Raigarh, Chhattisgarh 15. Gram Panchayat, Tilai Thru The Sarampanch, Block ,ps. And Post And Dist. Rajnandgaon C. G. , District : Rajnandgaon, Chhattisgarh 16. Gram Panchayat, Navapara Thru The Sarampanch, Janpad Panchayat Dharamjaigarh, Post And Ps. Dharamjaigarh Dist. Raigarh C. G.

, District : Raigarh, Chhattisgarh 17. Gram Panchayat, Nipania Thru The Sarampanch, Janpad Panchayat- Bhatapara, Post And Ps. Bhatapara Dist. Baloda Bazar C. G. , District : Balodabazar-Bhathapara, Chhattisgarh 18. Gram Panchayat, Badearapur Thru The Sarampanch, Janpad Panchayat Tokapal, Post And P. S. Tokalpur, Dist. Bastar C. G. , District : Bastar(Jagdalpur), Chhattisgarh ---- Respondents 11 WPC No. 3482 of 2018 1. Bharat Sanchar Nigam Limited Through Chief General Manager, Office Of Circle Chief General Manager Bharat Sanchar Nigam Limited, Administrative Building (Vidhansabha- Road) Khamardih Raipur, District Raipur, Chhattisgarh. , District : Raipur, Chhattisgarh 2. The General Manager Bharat Sanchar Nigam Limited, O/o Gmtd, Durg, District Durg, Chhattisgarh. ---- Petitioners Versus • State Of Chhattisgarh Through Secretary Department Of Urban And Urban Administration And Development, Mahanadi Bhawan, New Raipur, District Raipur, Chhattisgarh.

, District : Raipur, Chhattisgarh ---- Respondent WPC No. 6527 of 2011 • Vodafone Essar Spacetel Limited A Company Incorporated Under The Companies Act, 1956 Having Its Registered Office At C-48, Okhla Industrial Area, Phase - Il, New Delhi - 110020 And Having Its Circle Office At First Floor, Centre Point, New Market, Bhopal - 462003, Through Its Sr. Manager - Legal, Shri Rabindra Purohit S/o Shri K. C. Purohit Aged About 36 Years, Having Zonal Office At Pujari Complex, Pachpedi Naka, Raipur C G Having Fax No. 0755-4000400 And Email Id rabindra. purohit@vodafone. com ---- Petitioner Versus 1. State of Chhattisgarh Through Secretary, Department Of Urban Administration And Development, Govt. Of Chhattisgarh, Mantralaya, D. K. S. Bhavan, Raipur C. G. , Chhattisgarh 2. Municipal Corporation Of Raipur Through The Commissioner, Municipal Corporation Of Raipur, Raipur (C. G. ) 3.

Municipal Corporation Of rajnandgaon, Through The Commissioner, Municipal Corporation Of Rajnandgaon, rajnandgaon (C. G. ) 4. Municipal Corporation Of bhilai Through The Commissioner, Municipal Corporation Of bhilai, durg (C. G. ) 5. Nagar Palika Parishad , Bhilai Charoda, Through: Its CMO, Bhilai Charoda Distt. Durg (C. G. ) 6. Nagar Palika Parishad , Jamul, Through: Its CMO, Jamul, Distt. Durg (C. G. ) 7. Nagar Palika Parishad , Dongergarh, Through: Its CMO, Dongergarh, Distt. Rajnandgaon (C. G. ) 8. Nagar Palika Parishad , Balod, Through: Its CMO, Balod, Distt. Durg (C. G. ) 9. Nagar Palika Parishad , kumhari, Through: Its CMO, Kumhari Distt. Raipur (C. G. ) 10. Nagar Palika Parishad , Baloda Bazar, Through: Its CMO, Baloda Bazar, Distt. Raipur (C. G. ) 12 11. Nagar Panchayat, Naya Baradwar, Through Its CMO, Distt Janjgeer Champa (C. G. ) 12. Nagar Panchayat, Rajim, Through Its CMO, Distt Raipur (C. G. ) 13. Nagar Panchayat, Bhilainagar, Through Its CMO, Distt Raipur (C. G. ) 14.

Nagar Panchayat, Manacamp, Through Its CMO, Distt Raipur (C. G. ) 15. Nagar Panchayat, Chandrapur, Through Its CMO, Distt Janjgeer Champa 16. Nagar Panchayat, Dabhra, Through Its CMO, Distt Janjgeer Champa 17. Nagar Panchayat, Ahiwara, Through Its CMO, Distt Durg(C. G. ) 18. Nagar Panchayat, Patan, Through Its CMO, Distt Durg (C. G. ) 19. Nagar Panchayat, Saraipali, Through Its CMO, Distt Mahasamund (C. G. ) 20. Nagar Palika Parishad, Mahasamund, Through Its CMO, Distt Mahasamund (C. G. ) 21. Nagar Panchayat, Kurud, Through Its CMO, Distt Dhamtari (C. G. ) 22. Nagar Panchayat, Bhatagaon, Through Its CMO, Distt Surguja (C. G. ) 23. Nagar Panchayat, Sahashpur, Through Its CMO, Distt Kabirdham (C. G. ) 24. Chhattisgarh State Power Distribution Co. Ltd. Through the Managing Director Dhangania, Raipur CG 25. Directorate of Urban Administration and Development through its Director, Raipur 26.

Union of India through its Secretary Department of Telecommunication, New Delhi ---- Respondents WPC No. 7334 of 2011 • A T C Telecom Infrastructure Private Limited Formerly Viom Networks Limited A Company Registered Under The Companies Act 1956 Registered Office D- 2, 5th Floor, Southern Park, Saket Place, Saket New Delhi 110017 And Circle Office At Plot No. 162, Modi Hights, M. P. Nagar Zone- Il, Bhopal M. P. , Madhya Pradesh ---- Petitioner Versus • State Of Chhattisgarh Through Its Principal Secretary Department Of Urban Administration And Development, D K S Bhawan, Mantralaya, Raipur, Chhattisgarh ---- Respondent WPC No. 7359 of 2011 • A. T. C. Telecom Tower Corp. Pvt. Ltd.

a Company Registered under the Companies Act 1956 having its registered Office at 403, Fourth Floor Sky Line Icon Near Mittal Estate Andheri, Kurla Road, Andheri (East) Mumbai – 400 059 and having its Circle Office at SM 1-B, Third Floor, Mansarover Complex, Bhopal – 462 011 through its Authorised Signatory, Shri Sameer Singh Bhal, aged about 43 years, S/o Shri Ranbir Singh Bhal, working as Senior Manager, Estate Management and Acquisition, M. P. /C. G. R/o 273-A, Chuna Bhatti, Bhopal (M. P. ) ---- Petitioner 13 Versus 1. State of Chhattisgarh Through Secretary, Department Of Urban Administration And Development, Govt. Of Chhattisgarh, Mantralaya, D. K. S. Bhavan, Raipur C. G. , Chhattisgarh 2. Municipal Corporation Of Raipur Through The Commissioner, Municipal Corporation Of Raipur, Raipur (C. G. ) 3. Municipal Corporation Of Rajnandgaon, Through The Commissioner, Municipal Corporation Of Rajnandgaon, rajnandgaon (C. G. ) 4.

Municipal Corporation Of Bhilai Through The Commissioner, Municipal Corporation Of bhilai, durg (C. G. ) 5. Nagar Palika Parishad , Bhilai Charoda, Through: Its CMO, Bhilai Charoda Distt. Durg (C. G. ) 6. Nagar Palika Parishad , Jamul, Through: Its CMO, Jamul, Distt. Durg (C. G. ) 7. Nagar Palika Parishad , Dongergarh, Through: Its CMO, Dongergarh, Distt. Rajnandgaon (C. G. ) 8. Nagar Palika Parishad , Balod, Through: Its CMO, Balod, Distt. Durg (C. G. ) 9. Nagar Palika Parishad , kumhari, Through: Its CMO, Kumhari Distt. Raipur (C. G. ) 10. Nagar Palika Parishad , Baloda Bazar, Through: Its CMO, Baloda Bazar, Distt. Raipur (C. G. ) 11. Nagar Panchayat, Naya Baradwar, Through Its CMO, Distt Janjgeer Champa (C. G. ) 12. Nagar Panchayat, Rajim, Through Its CMO, Distt Raipur (C. G. ) 13. Nagar Panchayat, Bhilainagar, Through Its CMO, Distt Raipur (C. G. ) 14. Nagar Panchayat, Manacamp, Through Its CMO, Distt Raipur (C. G. ) 15.

Nagar Panchayat, Chandrapur, Through Its CMO, Distt Janjgeer Champa 16. Nagar Panchayat, Dabhra, Through Its CMO, Distt Janjgeer Champa 17. Nagar Panchayat, Ahiwara, Through Its CMO, Distt Durg(C. G. ) 18. Nagar Panchayat, Patan, Through Its CMO, Distt Durg (C. G. ) 19. Nagar Panchayat, Saraipali, Through Its CMO, Distt Mahasamund (C. G. ) 20. Nagar Palika Parishad, Mahasamund, Through Its CMO, Distt Mahasamund (C. G. ) 21. Nagar Panchayat, Kurud, Through Its CMO, Distt Dhamtari (C. G. ) 22. Nagar Panchayat, Bhatagaon, Through Its CMO, Distt Surguja (C. G. ) 23. Nagar Panchayat, Sahashpur, Through Its CMO, Distt Kabirdham (C. G. ) 24. Chhattisgarh State Power Distribution Co. Ltd. Through the Managing Director Dhangania, Raipur CG 25. Directorate of Urban Administration and Development through its Director, Raipur 26. Union of India through its Secretary Department of Telecommunication, New Delhi ---- Respondents 14 WPC No. 7445 of 2010 1. Essar Telecom Infrastructure Pvt. Ltd.

403, 4th Floor Skyline Icon, near Mittal Industrial Estate, Andheri Kurla Road, Andheri (East), Mumbai 400- 059 through its Authorised Signatory Shri Manoj Chaturvedi, aged about 33 years, S/o Shri L. M. Chaturvedi, working as Assistant Manager, Site Acquisition, R/o AS-1, Shivlok, Phase-III, Piplani, Bhopal (M. P. ) ---- Petitioner Versus 1. State of Chhattisgarh through the Secretary, Department of Urban Administration and Development, D. K. S. Bhawan, Mantralaya, Raipur (C. G. ) 2. Municipal Corporation, Raipur, through Commissioner, Municipal Corporation, Raipur (C. G. ) 3. Nagar Palika Ambikapur, through its Chief Executive Officer, Nagar Palika, Ambikapur, Surguja (C. G. ) 4. Union of India, through Secretary, Department of Telecommunication, New Delhi. ---- Respondents _______________________________________________________________ For respective Petitioners : Mr. Brian D'Silva, Sr. Advocate with Mr. Sachin Singh Rajput, Mr. Vaibhav Shukla, Mr. Amiyakant Tiwari, Smt.

Astha Shukla, Mr. Swajeet Singh, Mr. Shishir Dixit and Mr. Sandeep Dubey, Advocates. For Respondent/State : Mr. Gagan Tiwari, Deputy Govt. Advocate For respective Respondent/ : Mr. H. B. Agrawal, Sr. Advocate with Municipal Corporation Mr. Pankaj Agrawal, Mr. A. S. Kachhawaha, Mr. B. D. Guru and Mr. Sourabh Sharma, Advocates For Respondent/UOI : Mr. B. Gopa Kumar, Assistant Solicitor General ________________________________________________________________ Hon'ble Shri P. R. Ramachandra Menon, Chief Justice Hon'ble Shri Parth Prateem Sahu, Judge CAV JUDGMENT Per P. R. Ramachandra Menon, Chief Justice 1. The common challenge raised in all these writ petitions is in respect of the power and authority of the State / local authority to realise tax / fees on erection of mobile towers by the Petitioners and also as to the exorbitant 15 hike in the 'initial permit fee'; the subsequent yearly 'renewal fees' and also the 'compounding / settlement fees'.

The main ground of challenge is that no power or authority is vested with the State to issue any Circulars/ Directions/ Rules; it being a subject coming under Entry No. 31 of List I of the Seventh Schedule of the Constitution of India, to which field there cannot be any intrusion by the State. It is also pointed out that the impugned proceedings are in conflict with the clear stipulations under Sections 10(c) and 12 of the Indian Telegraph Act, 1885 (for short 'the Act, 1885'); insofar as it enables realisation of only the 'expenses' incurred by the local authority and no other amount is payable for installation of mobile towers by the Petitioners, who are the licensees under Section 4 of the Act, 1885. It is further contended that the Central Government had recently notified 2016 Rules i. e.

the Indian Telegraph Right of Way Rules, 2016 (for short, '2016 Rules') and in the said circumstance, since the field is taken over by the Central Government and since the same has been implemented in the State, no tax or fees can be realised by the local authorities with reference to the Instructions/ Directions/ Rules issued by the State. 2. The genesis of the dispute reveals that, way back on 06. 06. 2006, a Circular was issued by the State, addressing to the local authorities to cause realisation of one time permit fee while granting sanction for erection of mobile towers in the area under jurisdiction of the Municipal Corporations / Municipalities / Gram Panchayats and also for realisation of the yearly renewal fees. The fee structure was as given below : 16 S. No. Local Authority One Time Permit Yearly Renewal Fee Fee 1. Municipal Corporation 15,000/- 1,500/- 2. Municipalities 10,000/- 1,000/- 3.

Gram Panchayat 5,000/- 500/- No grievance was raised from any corner with regard to the stipulation or as to the authentication of the Circular and the amount due was being satisfied by the parties concerned. Things took a different turn, when the aforesaid Circular was superseded by a subsequent Circular bearing No. 6137/175/18/2006 dated 18. 11. 2009, whereby the fee structure was enhanced by several folds as given below : S. No. Local Authority One Time Permit Yearly Renewal Fee Fee 1. Municipal Corporation 75,000/- 15,000/- 2. Municipalities 50,000/- 10,000/- 3. Gram Panchayat 25,000/- 5,000/- Apart from the hike, it was also stipulated that those who had unauthorisedly erected the Towers could settle the matter on payment of settlement / compounding fee to an extent of 15 to 50 times of the one time permit fee. In view of the enhanced permit fee by 5 times and renewal fee by way of 10 times and settlement fee by 15 to 50 times, the above Circular dated 18. 11.

2009 was subjected to challenge by various service providers / licensees by filing different writ petitions. Writ Petition (C) Nos. 800/2010, 1485/2010, 1405/2010, 7445/2010 are the cases involving similar challenge against the Circular. 17 3. Later, the State Government issued the Chhattisgarh Municipal Corporation (Erection of Temporary Tower or Structure for Cellular Mobile Phone) Rules, 2010 (for short, 'the 2010 Rules') providing for realisation of one time permit fee, the yearly renewal fee and the compounding/settlement fee as given in the earlier Circular dated 18. 11. 2009. This made the aggrieved parties to challenge the said Rules by filing separate writ petitions, raising almost similar challenge as to legislative competency and ultra vires nature of the Rules stated as in conflict with the specific provisions contained in the Act, 1885 and all such other grounds. Writ Petition (C) Nos.

6324/2011, 6527/2011, 7334/2011, 7359/2011, 207/2012, 1752/2012, 192/2013, 129/2017 and 3482/2018 raise the challenge against the Rules as above. 4. Meanwhile, the Government issued an instruction / Circular bearing No. @459@funsZ'k@fo-@2009 dated 28. 03. 2012 invoking the power under Section 77(2) of the Panchayat Raj Adhiniyam, 1993 (for short, 'the Act, 1993') read with S. No. (9) of Schedule-2, whereby the Gram Panchayats were set at liberty to realise the one time permit fee in connection with the erection of the mobile towers in the panchayat area, with the annual renewal fee and also stipulating the compounding fee / settlement fee. The one time permit fee was stipulated as Rs. 25,000/-, whereas the yearly renewal fee was fixed as Rs. 10,000/- and compounding the fee was to be 15 to 50 times of the one time permit fee.

The service providers / licensees who set up mobile towers in the panchayat areas, came to be aggrieved by the said Circular, who sought to challenge the same by filing writ petitions; such as Writ Petition (C) Nos. 2092/2012, 18 2227/2012, 1743/2013, 784/2014, 2058/2015, 859/2017 and 154/2019. The grounds of challenge are almost similar. 5. One case stands a little apart from the nature of challenge in the other cases and this is WPC No. 1243/2010, which has been filed by the Petitioner, who has already moved this Court by filing Writ Petition (C) No. 800/2010 challenging the Circular dated 18. 11. 2009 issued by the State. The Petitioner in the said petition had challenged the coercive steps taken from the part of the different local authorities, arrayed as Respondents in WPC No. 800/2010, simultaneously seeking to set aside the Circular dated 18. 11. 2009 claiming exorbitant amounts for registration / renewal / compounding.

There was an interim order in the said case, as mentioned already, for causing the towers sealed by the local authorities to be de-sealed, subject to satisfaction of the amount as per the first Circular issued on 06. 06. 2006 and on such other terms. But, Ambikapur Municipal Corporation was never made a respondent in the said writ petition; i. e. WPC No. 800/2010. The towers of the Petitioner erected in the area of the Ambikapur Municipal Corporation came to be sealed for non-satisfaction of the fees in connection with the erection / renewal, which made the Petitioner to file a fresh case as WPC No. 1243/2010. It was observed by this Court on 26. 03. 2010 that the tower sealed by the Ambikapur Municipal Corporation was later de-sealed and hence no interim relief was required. It is stated that the Petitioner in the said case was satisfying the amounts as per Circular dated 06. 06.

2006 as ordered by this Court in the connected cases, but a formal NOC is still to be issued and hence the grievance. It is also 19 pointed out that the Petitioner has filed Annexure-P/3 series applications in respect of the different towers before the Ambikapur Municipal Corporation, which have not been finalized so far, despite the endorsement as to the receipt by affixing seal of Municipal Corporation; by virtue of which, the Petitioner is stated as having 'deemed permission'. No reply / return has been filed by the Municipal Corporation in the said case and since the application was submitted before the date of the Circular issued on 18. 11. 2009, in view of the deemed permission, the Petitioner is stated as not liable to satisfy any enhanced registration fee or settlement charges in respect of the existing towers covered by Annexure-P/3 series applications and that the dispute, if at all, could only be in respect of the revised annual renewal fee.

The submission of the application on time is not denied by the Municipal Corporation and hence the contention is that there cannot be any penalty as well, to be mulcted upon the Petitioner. 6. As mentioned already, the challenge raised against the Circulars/Rules is with reference to the alleged legislative incompetency of the State to deal with the subject. The main ground raised is that it is a Central subject under Entry No. 31 of the List I of the Seventh Schedule, which is exclusively within the domain of the Central Government and hence no power is vested with the State of legislate or cause to realise any tax / fees in respect of mobile towers. The State however contends that, it does not come within the purview of Entry No. 31 of the List I of the Seventh Schedule and that the State is having sufficient power to legislate upon the subject, mobile tower being a structure coming within 20 the Entry No. 49 of List II of the Seventh Schedule dealing with 'land and building'.

Support is sought to be drawn with reference to Entries No. 5, 18 and 66 as well, of the State list. 7. Meanwhile, a similar dispute which arose in the State of Gujarat had come up for consideration before the Apex Court in Ahmedabad Municipal Corporation Vs. GTL Infrastructure Ltd. (2017) 3 SCC 545. After in-depth analysis, the Apex Court held that Entries in the List of the different Schedules in the Constitution had to be widely interpreted, clearly holding that 'mobile tower' will definitely come within the Entry No. 49 of List II, dealing with 'land and building'. On bringing the said issue to the notice of this Court, it was observed on 11. 01. 2017, that the decision rendered by the Apex Court had almost covered the entire case. But then, reliance was sought to be placed by the Petitioners on the Indian Telegraph Right of Way Rules, 2016 framed on 15. 11. 2016 by the Central Government.

This Court observed that, in view of the decision rendered by the Apex Court in Ahmedabad Municipal Corporation (supra), the stay granted in favour of the Petitioners may have to be vacated, however the matter was adjourned on the request made by the Petitioners. It will be worthwhile to extract the order dated 12. 09. 2012 passed by this Court (after considering the question of confirmation of the interim order granted on 09. 12. 2011 and the subsequent orders passed on 09. 01. 2012, 09. 02. 2012 and 23. 08.

2012); the operative portion of which is to the following effect : 21 "Having heard the learned counsel for the parties and on appreciating the controversy involved, in the light of the submission urged and further keeping in view various judgments rendered by the different High Courts in the country on somewhat identical issue, declaring the impugned impost as ultra vires, which is subject matter of these petitions, we are inclined to confirm the interim orders passed by this Court subject to the following modifications and imposing terms and conditions, which are required to be complied with by the respective parties to their writ petitions during the pendency of this writ petition. (A) The petitioner/s shall continue to pay/deposit permission fees in terms of the Circular dated 6. 6. 2006 (Annexure P/6 in W. P. (C) No. 6324/2011), issued by the State (Urban Administration Department to the concerned municipalities / local authorities.

(B) The petitioner/s shall submit/furnish an undertaking in writing with concerned local authorities/ bodies that in the event of petition being dismissed and impugned demand/ levy/ impost, which is challenged in this writ petition by the petitioner/s, is upheld as being constitutional and intra vires, then in that event the petitioner/s shall pay the entire demand/s raised by the respondent/s with interest as may be determined by this Court at the time of final hearing within a period of one month from the date of the judgment / order and consequential demand. (C) In the event of petition being allowed and impugned levy/ demand/ impost is declared ultra vires/ illegal then whatever amount the petitioner/s may have deposited with the local authorities the same shall be refunded to the petitioner/s by passing appropriate order in that regard by this Court at the time of final hearing.

(D) The respondent/s shall not disturb, demolish, seal, seize, confiscate or in any way create any disturbance/ hindrance in the installation of the tower which the petitioner/s have erected for providing mobile service to public at large. 22 (E) The respondent/s if have sealed/seized/ confiscated any installed tower during the pendency of any of the writ petitioner, then the same should be restored back in favour of the petitioner/s by lifting/ removing seal etc. put on such tower subject to condition that if seizure was effected for non-payment of the duties then the petitioner/s will pay the amount in terms of the Circular dated 6. 6. 2006, as indicated supra, if not already paid and then the tower would be released as per this condition. With the aforesaid terms/ condition/ directions, the application made by the petitioner/s in all these writ petitions for grant of ad interim writ stands accordingly disposed of. Parties are directed to complete the pleadings within three months.

" 8. The order dated 11. 01. 2017, extracting paragraphs 28 to 31 of the verdict passed by the Apex Court in Ahmedabad Municipal Corporation (supra) and observing the necessity to vacate the interim stay is to the following effect : "The Respondents have placed before this Court a judgment of the Apex Court rendered in Ahmedabad Municipal Corporation v. GTL Infrastructure Ltd. & Others (Civil Appeal No. s. 5360-5363 of 2013), wherein the Apex Court has no in uncertain terms held that the mobile towers falls within the ambit of the phrase 'Land' and 'Building'. Relevant portion of the judgment reads as follows:- “28.

Coming specifically to the expression “building” appearing in Entry 49 List II of the Seventh Schedule in view of the settled principles that would be applicable to find out the true and correct meaning of the said expression it will be difficult to confine the meaning of the expression “building” to a residential building as commonly understood or a structure raised for the purpose of habitation. In 23 Government of Andhra Pradesh and Others Vs. Hindustan Machine Tools Ltd. , AIR 1975 SC 2037 = (1975) 2 SCC 274 a tax on a building housing a factory has been understood to be a tax on building and not on the factory or its plant and machinery.

A general word like ‘building’ must be construed to reasonably extend to all ancillary and subsidiary matters and the common parlance test adopted by the High Court to hold the meaning of levy of tax on building and machinery does not appear to be right keeping in mind the established and accepted principles of interpretation of a constitutional provision or a Legislative Entry. A dynamic, rather than a pedantic view has to be preferred if the constitutional document is to meet the challenges of a fast developing world throwing new frontiers of challenge and an ever changing social order. 29.

The regulatory power of the Corporations, Municipalities and Panchyats in the matter of installation, location and operation of ‘Mobile Towers’ even before the specific incorporation of Mobile Towers in the Gujarat Act by the 2011 Amendment and such control under the Bombay Act at all points of time would also be a valuable input to accord a reasonable extension of such power and control by understanding the power of taxation on ‘Mobile Towers’ to be vested in the State Legislature under Entry 49 of List II of the Seventh Schedule. 30. The measure of the levy, though may not be determinative of the nature of the tax, cannot also be altogether ignored in the light of the views expressed by this Court in Goodricke (supra). 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 24 is imposed on the “person engaged in providing telecommunication services through such mobile towers” (Section 145A 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 Entry 49 List II of the Seventh Schedule. 31.

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 Entry 49 List II so as to deny the State Legislature the power to levy a tax thereon. Such a law can trace its source to the provisions Entry 49 List II of the Seventh Schedule to the Constitution. ” This decision almost covers the entire case. However, now the Petitioners want to place reliance on the Rules framed on 15. 11. 2016 known as Indian Telegraph Right of Way Rules, 2016. These rules were enacted before the judgment was passed by the Apex Court but it appears that none of the companies some of which are represented before us even thought it fit to bring the Rules to the notice of the Apex Court.

We are not sure whether these rules have any impact on the decision of the case because these rules deal with the matters relating to setting up of underground and overground telegraph infrastructure. The rules lay down the manner in which the applications have to be filed. In view of the judgment of the Apex Court in Ahmedabad Municipal Corporation (supra), we are of the view that the stay order granted in favour of the Petitioners may have to be vacated. The Petitioners should have been ready to argue the matter. Now, they want an adjournment. However, before doing so, we deem it proper to give one more opportunity to the Petitioners. List these matters on 1. 3. 2017. It is made clear that the Petitioners should be ready 25 to argue the case on the said date. If the Petitioners are not ready to argue the case or seek adjournment on the next date, the stay order shall stand automatically vacated. The rival contentions have to be analysed and appreciated in the above context. 9.

We heard Mr. Brian D'silva, Senior Advocate on behalf of the Petitioners supported by Mr. Sachin Singh Rajput, Mr. Vaibhav Shukla, Mr. Amiyakant Tiwari, Mr. Shishir Dixit and Mr. Sandeep Dubey. The version of the Central Government, who virtually, has filed two different returns (with diametrically opposite pleadings; the first one against the Petitioners and in support of the State / local authorities; wehreas the second one, virtually in support of the Petitioners and against the State) was put forth by Mr. B. Gopa Kumar, the learned Assistant Solicitor General. The case on behalf of the State was asserted by Mr. Gagan Tiwari, the learned Deputy Government Advocate and the version of the local authorities was put forth by Mr. Ashutosh Kachawaha, the learned counsel appearing on behalf of Municipal Corporation Bilaspur, Durg and Rajnandgaon. 10.

The main contention raised by the Petitioners, as noted already, is with reference to the absence of legislative competence of the State and the right of the Local Authorities to prescribe or realise tax / fees. The basis for the said contention is that, “post and telegraphs, telephones, wireless, broadcasting and other like forms of communication” are specifically included under Entry No. 31 of List I of the Seventh Schedule, which is a Central subject and hence there cannot be any legislation by 26 the State in this regard. When the State does not have any power to legislate, it cannot issue any Circular to realise the tax / fees in respect of such instances. Reliance is also sought to be placed on Entry No. 96 of List I, which deals with fees in respect of any of the matters in List I, but not inclusive of the fees taken in any Court. Further reference is made to Entry No.

97 of the very same List which deals with any other matters not enumerated in List II or III including any tax not mentioned in either of those Lists. By virtue of the residual entry under 97 of List I and further since there is no entry in List II enabling the State to legislate upon telecommunication (by virtue of specific Entry No. 31 of List I), there is a total bar of entry in this regard and hence the impugned proceedings / Circulars / Rules framed / issued by the State are to be set aside. This is more so, since no tax can be levied without any authority of law as per the mandate of Article 265 of the Constitution of India. 11.

The above contention is sought to be rebutted by the State with reference to Article 243H of the Constitution dealing with the power of the State to authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees to the extent as specified therein as well as the power under Article 243X dealing with similar power of the State to authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees as mentioned therein. The version of the Petitioners is that, such power has to be exercised by the State "by law" i. e. by legislating a proper Enactment which is conspicuously absent in the instant case. The State further contends that in respect of the Panchayats, Section 77 of the Act, 1993 authorises the Panchayats to realise “other taxes”. 27 Section 77(1) deals with the 'Obligatory tax' as dealt with under Schedule No. I, like property tax, whereas Section 77(2) is in respect of 'Optional taxes' as deals with under Schedule No. II.

It is also pointed out that as per Annexure-P/1 in WPC No. 2092/2012; it has been made clear that Panchayat is at liberty to realise one time permit fee / renewal fee / compounding fee. What is sought to be realised is only a fee ('kqYd) and not a tax (dj). It is further pointed out that it is for the Municipality / Panchayat to ensure proper check and balance in respect of the erection of mobile towers and to ascertain the infringement of the statutory provisions / conditions, if any, by deploying sufficient number of staff and incurring much expenses in this regard, which necessitates satisfaction of the one time permit fee and yearly renewal fee, the adequacy of which cannot be questioned by the Petitioners. Reference is also made to the enabling provisions by way of Section 132 of the Chhattisgarh Municipalities Act, 1961 (for short, 'the Municipalities Act') – Power of State Government to grant exemption from taxes.

Sections 355 – Power to make rules and Section 356 – General provisions regarding rules. Similar provisions, as contained in Chhattisgarh Municipal Corporation Act, 1956 (for short, 'the Municipal Corporation Act'), Section 317A - Laying railways, tramways or electrical, telephone poles and Section 433 – Power of State Government to make rules, are also sought to be pressed into service. It is further pointed out that, insofar as the State is having power to legislate on the subject by virtue of Entry No. 49 of the List II, read with Entries 5, 18 and 66 and such other enabling provisions as referred to above, in the absence of any statutory Rules, it is quite 28 open for issuance of executive instructions which will be having the sanctity of law, by virtue of Article 162 of the Constitution of India. 12.

The Petitioners contend with reference to the law declared by the Supreme Court in Ahmedabad Municipal Corporation (supra), holding 'mobile tower' as “land / building” under Entry No. 49 of List II, that the relevant provision in the statute, applicable in the Gujarat State was amended to include 'mobile tower' as well. It is also pointed out that the judgment has to be read as a whole and that it cannot be read as a statute. Reliance is sought to be placed on the judgments passed by the Apex Court in Goan Real Estate and Construction Limited and 1 Another vs. Union of India and Others (para 31) and Bihar School 2 Examination Board vs. Suresh Prasad Sinha (para 18) in this regard. It is also pointed out that the meaning of the particular term in a particular statute cannot be the same as given in another statute.

There is no dispute with regard to this settled propositions, but so far as the Act, 1993 is concerned, the term "building" is not defined and in the said circumstance, it can be ascertained with reference to the meaning of the term given in other similar statutes like Section 5(7) of the Municipal Corporation Act and Section 3(2) of the Municipalities Act. Similarly, reference is made from the part of the State to Section 5(31) defining the term "land" under the Municipal Corporation Act (which include the benefits from the attachment to the earth) as well as Section 3(16) of the Municipalities Act, by virtue of which mobile tower is to be included as part of the land and hence the State is competent to legislate upon the (2010) 5 SCC 388 (2009) 8 SCC 483 29 said subject with reference to Entry No. 49 of List II.

Reference is also made to Section 5(41) of the Municipal Corporation Act defining the term "occupier" and similar term as mentioned under Section 3(23) of the Municipalities Act, by virtue of which the Petitioners, being occupiers, are liable to meet the demand. Under Section 5 (56-a) of the Municipal Corporation Act, the term "tax" is defined which includes toll, cess, fee etc. which is almost similar to the said term defined under Section 3(37) of the Municipalities Act. Obviously the Municipality is imposing only a 'fee' and not a 'tax', though the term "tax" includes fee. What the fee payable need not necessarily be a tax and as such, the reliance sought to be placed on Article 265 of the Constitution of India is not applicable to the given context.

Various provisions of the Madhya Pradesh (Rajya) Bhumi Vikas Nigam Adhiniyam, 1976 (for short, 'the Act, 1976') and the Madhya Pradesh Bhumi Vikas Rules, 1984 (for short, 'the Rules, 1984') are also referred to, in particular, Rule 3(2) of the Rules, 1984; which says that, for erection of the building, Rules will apply for designs and constructions; Rule 14(2) with regard to the permission to be obtained; Rule 17(6) as to 'building plan' and Rule 17(5) as to the 'Sub-Division / Layout Plan'. 13. The Petitioners further contend that the 2010 Rules formulated by the State had to be tabled in the Legislative Assembly as envisaged under Section 433(3) of the Municipal Corporation Act as well as under Section 356(4) of the Municipalities Act and admittedly since this has not been done, the Rule is invalid.

This is sought to be rebutted from the part of the State, pointing out that the Rules have come into effect on the date of 30 notification in the official gazette and that the 'non-tabling' of the Rules in the Assembly is only an irregularity, which is a curable defect and it will not invalidate the Rules. That apart, it is pointed out that the necessity to have the Rules tabled in the Legislative Assembly was existing only in the State of Madhya Pradesh and it was not there; insofar as State of Chhattisgarh is concerned, where the said provision was incorporated only with effect from 09. 08. 2012 and hence the Rules which were framed and notified before 09. 08. 2012 cannot attract any invalidity in this regard, it being only prospective. It is also pointed out by the learned counsel for the State, that as per Rule 17 of the '2010 Rules', the course and proceedings pursued earlier, based on the Circular dated 18. 11.

2009, have been validated and hence the executive order has been given legal effect; apart from the fact that it was quite open and legally valid to have issued such Circular by virtue of the mandate under Article 162 of the Constitution of India. 14. It is brought to the notice of this Court by the learned counsel for the State that the Madhya Pradesh Bhumi Vikas Rules, 1984 have been framed, which is applicable to the State of Chhattisgarh as well, and that it is for providing layout plans for construction of building; by virtue of which there is power to regulate the activities in this regard. Under Chapter 24 of the Municipal Corporation Act, permission has to be obtained for construction of building. Mobile tower, being a building as held by the Apex Court in Ahmedabad Municipal Corporation case (supra), it requires permission. Reference is made to Section 5(23) of the Municipal Corporation Act and Section 3(11) of the Municipalities Act in this regard.

Similarly, reference 31 is made to Section 293 of the Municipal Corporation Act dealing with prohibition of erection or reconstruction of building without permission; Section 294 as to the application to the Commissioner for permission; Section 295 power of the Commissioner to refuse permission and Section 308-A providing for penalty and compounding of offences for construction of building without permission. Reference is also made to various provisions of the Municipalities Act, such as Section 187 application / notice of the intention to construction the building (and also to the effect that no construction shall be affected without permission); Section 187-A regarding compounding of offences; Section 191 issuance of completion certificate; Section 194 where permission is stated as necessary for certain projections.

With reference to the above provisions, it is asserted that the State has got power to legislate upon the subject involving mobile tower and that only a fee is sought to be realised in connection with erection, which is not a tax and that it can be effected by executive orders / circulars in view of the power under Article 162 of the Constitution of India; which stand validated as per Annexure- P/2 the 2010 Rules. By virtue of mushrooming of mobile towers set up by various companies, it has to be regulated which involves the safety, security, health and such other instances affecting the general public and that local authority is rendering a service in this regard; for which it is entitled to be adequately compensated and hence the fees. Rule 6 of the 2010 Rules clearly points out that, it is only permit fee / renewal fee and not a tax.

It is pointed out that, even in the town of Bilaspur itself, there are more than 200 towers and part of the service in connection with 32 erection of the mobile towers, laying of lines along the road, digging and various incidental activities require are to be supervised by the team of Engineers / staff of the local authority. Many service providers have already erected mobile towers without any prior permission, which amounts to offences and hence a provision is made for compounding the same by satisfying the settlement fee, which is quite optional, as the parties are at liberty to face the consequences / appropriate proceedings, in case any offence is involved and if it is not settled / compounded. 15.

Coming to the main challenge, it is to be noted that the pleadings and prayers have been moulded, pointing to the alleged legislative incompetency of the State to issue Circulars / Rules, contending that it will amount to encroachment into the arena where the Central Government alone is having the jurisdiction, by virtue of the Entry No. 31 of List I of the Seventh Schedule. The said Entry reads as follows : “31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication. ” Even a plain reading of the said Entry clearly reveals that, it is in respect of different forms of communication; such as postal, telegraphs, telephones, wireless, broadcasting and other like forms. Erection of mobile tower is not a form of communication, but is only a means / structure to hold or support such device used for the above purposes. 16. Entry No. 49 of List II is in respect of tax on 'lands and buildings'.

As mentioned already, Section 2 (xxviii) of the Act, 1993, Section 5(56-a) of the Municipal Corporation Act and Section 3(37) of the Municipalities Act 33 clearly define the term "tax" which includes 'fee' as well. The Apex Court has already held in Ahmedabad Municipal Corporation (supra) that 'mobile tower' will come under 'land / building' enlisted under Entry No. 49 of List II and this being the position, erection of mobile tower cannot be a Central subject, but a State subject. Hence the alleged violation of the constitutional provision is without any pith or substance. 17. It is the contention of the Petitioners that the impugned Circulars / Rules are in conflict with the provisions of the Act, 1885. Specific reference is made to Section 10(c) and Section 12 of the Act, 1885, pointing out that the Municipality can realise 'only the expenses' as a reasonable condition to be imposed under Section 12 for granting permission under Section 10(c) of the Act, 1885. 18.

Infact, the earlier statute i. e. the Indian Telegraph Act, 1876 was found inadequate due to certain anomalies therein, when it was felt necessary to have a new legislation, in turn leading to the Indian Telegraph Act, 1885. As per the earlier Act, the Governor-General in Council and his licensees had no power to place telegraph lines upon the land of Municipal or other similar bodies or of private persons. When the property belongs to local authority, the powers conferred by the Act cannot be exercised without the consent of that authority. Consent may be given subject to conditions; one among which requires that any expenses to which the local authority may be put by exercise of the power shall be made good. But, no provision was incorporated for payment of compensation on any other count to a local authority whose property is used of for this purpose; construction of telegraph being a 34 matter in which the public is interested.

At the same time, it was sought to be ensured that, when it involves a private property, full compensation has to be paid for exercising the power. 19. As per the Act, 1885, 'three' amendments were brought to the existing Indian Telegraph Act, 1876, whereby definition of term "telegraph" was widened to an appropriate extent as one of the 'three' amendments. Definition of the terms "telegraph" under Section 3 (1AA), "telegraph line" under Section 3(4), "post" under Section 3(5) and the term “telegraph authority” under Section 3(6) are relevant, which are reproduced below : “3. Definitions. - (1AA) ‘telegraph’ means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means. Explanation.

—''Radio waves'' or ''Hertzian waves'' means electro-magnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide;] (4) ‘telegraph line’ means a wire or wires used for the purpose of a telegraph, with any casing, coating, tube or pipe enclosing the same, and any appliances and apparatus connected therewith for the purpose of fixing or insulating the same; (5) ‘post’ means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line; (6) 'telegraph authority' means the Director-General or Post and Telegraphs], and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act. ” 35 20. To have a proper understanding as to the mandate of Section 10(c) and 12 of the Act, 1885, which are heavily relied on by the Petitioners and allegedly violated; the said provisions are reproduced below for easy reference : “10.

Power for telegraph authority to place and maintain telegraph lines and posts. -xxx xxx xxx (c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority; and xxx xxx xxx 12. Power for local authority to give permission under section 10, clause (c), subject to conditions. —Any permission given by a local authority under section 10, clause (c), may be given subject to such reasonable conditions as that authority thinks fit to impose, as to the payment of any expenses to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that section, or as to the time or mode of execution of any work, or as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers. ” 21.

The main contention raised by the Petitioners is that they are licensees, having obtained necessary licences under Section 4 of the Act, 1885 with exclusive privilege as enjoyed by the Central Government to establish and maintain 'telegraph' as defined under Section 3(1AA) of the Act, 1885. Insofar as the involvement of the Municipality is concerned, it is contended that, for drawing / erecting / establishing such telegraph, the only requirement is the permission of the Municipality and nothing else. For granting such permission under Section 10(c), the Municipality can 36 fix reasonable conditions as provided under Section 12; which only provides for satisfaction of 'expenses', if any, to be incurred by the Municipality, in consequence of exercising the powers conferred under Section 10(c) for granting the permission. 22.

Here, it is to be noted that the permission to be granted by the Municipality under Section 10(c) is in respect of the instance when the property concerned is 'vested in' or 'under the control or management' of the local authority. The terms "vested in or under the control or management of the local authority" are clearly mentioned under Section 82 of the Municipal Corporation Act, which clearly mentions under 'Clause h' that, it will not involve private land or Government land. Admittedly, in all these cases, the mobile towers are established or sought to be established in private property and not in any property vested in or under the control or management of the local authority.

When the installation is in a private property, it is separately dealt with under Section 10(d) which provides that, in such cases, the Telegraph Authority / Petitioners, when they exercise the power in respect of any property other than the property referred to in Section 10(c), shall pay full compensation to all persons interested, any damage sustained by them by the reason of exercise of those powers. Since the reasonable condition for granting permission, accepting only the 'expenses' as envisaged under Section 12 is with specific reference to an instance covered by 10(c) i. e. where the property is exclusively 'vested in' or 'under the control or management' of the local authority and not with reference to a property owned by a private individual {which stands 37 separately covered under Section 10(d)}; the plea as to the alleged infringement of Section 10(c) and 12 does not hold any water.

The whole idea and understanding of the Petitioners in this regard is thoroughly wrong and misconceived and we hold that Section 10(c) and 12 of the Act, 1885 are not applicable to a case involving erection of mobile tower in a 'private property' as coming under Section 10(d). 23. As mentioned already, when the matter was considered by this Court on 11. 01. 2017, the challenge was noted as almost covered against the Petitioners, in the light of the verdict passed by the Apex Court in Ahmedabad Municipal Corporation (supra) insofar as 'mobile tower' will become part of the land / building (with reference to Entry No. 49 of List II) and hence that the interim order was to be vacated. The Petitioners then sought to rely on the Central Rules i. e. the Indian Telegraph Right of Way Rules, 2016 to contend that the field had been taken over by the Central Government and hence the State Rules cannot have any further application.

The Central Rules have been formulated in exercise of the power under sub-Section (1) and (2)(e) of Section 7, read with Sections 10, 12 and 15 of the Act, 1885 to regulate the underground infrastructure (optical fibre) and overground infrastructure (mobile towers). It was pointed out that said Rules have been accepted and implemented by the State Government and a Nodal Officer has already been appointed in terms of Section 4 of the said Act. The contention of the Petitioners is that, under Rule 9 of the said Rules, an application has to be filed by the licensee for establishing overground telegraph infrastructure under sub-Rule (1) alongwith supporting documents 38 mentioned under sub-Rule (2). Proviso to sub-Rule (3) to Rule 9 clearly stipulates that, it shall be accompanied with a fee to meet the administrative expenses for scrutiny of the application as the appropriate authority may, by general order deem it fit.

The proviso stipulates that the 'one time fee' in this regard shall not exceed Rs. 10,000/-. 24. To understand the scope of the above provision, it is relevant to note that, the application to be submitted by the licensee, as mentioned under Rule 5, has to contain some vital information (along with supporting documents). Rule 5(2) (vi) and (vii) of the said Rules 2016 (Central Rules) are to the following effect : “5. Application by a licensee. — (1) A licensee shall, for the purposes of establishment of telegraph infrastructure under any immovable property vested in or under the control or management of any appropriate authority, make an application, supported by such documents, to that authority in such form and manner as may be specified by that appropriate authority.

(2) The information along with supporting documents to be provided by the licensee in the application made under sub-rule (1) shall include-xxx xxx xxx xxx xxx xxx (vi) the inconvenience that is likely to be caused to the public and the specific measures proposed to be taken to mitigate such inconvenience; (vii) the specific measures proposed to be taken to ensure public safety during the execution of the work. ” 25. Scrutiny of the application is with reference to the different parameters mentioned under Rule 6 of the 2016 Rules (Central Rules) which is in the following terms : 39 “6. Grant of permission by appropriate authority.

- (1) The appropriate authority shall examine the application with respect to the following parameters, namely:- (a) the route planned for the proposed underground telegraph infrastructure and the possible interference, either in the establishment or maintenance of such telegraph infrastructure, with any other public infrastructure that may have been laid along the proposed route; (b) the mode of execution; (c) the time duration for execution of the work and the time of the day that the work is proposed to be executed; (d) the estimation of expenses that the appropriate authority shall necessarily be put in consequence of the work proposed to be undertaken; (e) the responsibility for restoration of any damage that the appropriate authority may necessarily be put in consequence of the work proposed to be undertaken; (f) assessment of measures to ensure public safety and inconvenience that the public is likely to be put to in consequence of the work proposed and the measures to mitigate such inconvenience indicated by the licensee; (g) any other matter, consistent with the provisions of the Act and these rules, connected with or relative to the establishment or maintenance of underground telegraph infrastructure, through a general or special order, by the Central Government, appropriate State Government or the appropriate local authority.

(2) The appropriate authority shall within a period not exceeding sixty days from the date of application made under rule 5- (a) grant permission on such conditions including, but not limited to, the time, mode of execution, measures to mitigate public inconvenience or enhance public safety and payment of restoration charge, as may be specified, subject to the provisions of the Act and these rules; or (b) reject the application for reasons to be recorded in writing: 40 Provided that no application shall be rejected unless the applicant licensee has been given an opportunity of being heard on the reasons for such rejection: Provided further that the permission shall be deemed to have been granted if the appropriate authority fails to either grant permission under (a) or reject the application under (b); and the same shall be communicated in writing to the applicant not later than five working days after permission is deemed to have been granted.

(3) Where the appropriate authority accepts the undertaking by the licensee to discharge the responsibility to restore the damage that such appropriate authority shall necessarily be put in consequence of the work, the appropriate authority, while granting permission under clause (a) of sub-rule (2), may seek a bank guarantee for an amount in lieu of expenses for restoration of such damage, as security for performance in the discharge of the responsibility. (4) The appropriate authority shall not charge any fee other than those prescribed under sub-rule (3) of rule 5 and clause (a) of sub-rule (2) from the licensee for establishing underground telegraph infrastructure. ” 26. The above provision clearly points to the fact that, it is only in respect of the “inconvenience” likely to be caused to the public and the specific measures to mitigate the same, ensuring public safety during the execution of work.

This is applicable only when mobile tower is erected in a 'public property', where the general public is having access and it cannot have any application insofar as the erection is done in a private property, as in the instant case. Rule 9 of the above Rules deals with the documents to be produced by the Licensee along with the application, reads as follows : “9. Application by a licensee. —(1) A licensee shall, for the purposes of establishing overground telegraph infrastructure, upon any immoveable property vested in or under the control or management of any appropriate 41 authority, make an application, supported by such documents, to that appropriate authority in such form and manner as may be specified by that appropriate authority.

(2) The information along with supporting documents to be provided by the licensee in the application made under sub-rule(1) shall include- (i) a copy of the licence granted by the Central Government; (ii) the nature and location, including exact latitude and longitude, of post or other above round contrivances proposed to be established; (iii) the extent of land required for establishment of the overground telegraph infrastructure; (iv) the details of the building or structure, where the establishment of the overground telegraph infrastructure, is proposed; (v) the copy of approval issued by the duly authorised officer of the Central Government for location of the above ground contrivances proposed to be used for the transmission of Radio waves or Hertzian waves; (vi) the mode of and the time duration for, execution of the work; (vii) the inconvenience that is likely to be caused to the public and the specific measures proposed to be taken to mitigate such inconvenience; (viii) the measures proposed to be taken to ensure public safety during the execution of the work; (ix) the detailed technical design and drawings of the post or other above ground contrivances; (x) certification of the technical design by a structural engineer attesting to the structural safety, of the overground telegraph infrastructure; (xi) certification, by a structural engineer, attesting to the structural safety of the building, where the post or other above ground contrivances is proposed to be established on a building; 42 (xii) the names and contact details of the employees of the licensee for the purposes of communication in regard to the application made; (xiii) any other matter relevant, in the opinion of the licensee, connected with or relative to the work proposed to be undertaken; and (xiv) any other matter connected with or relevant to the work as may be specified, through a general or special order, by the Central Government or appropriate State Government or appropriate local authority.

(3) Every application under sub-rule (1) shall be accompanied with such fee to meet administrative expenses for examination of the application and the proposed work as the appropriate authority may, by general order, deem fit: Provided that the one-time fee, to meet administrative expenses, accompanying every application shall not exceed ten thousand rupees. ” 27. Rule 9(1) of the 2016 Rules (Central Rules) clearly shows that, it is having application only in respect of establishing o

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