BHARAT SANCHAR NIGAM LIMITED Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) These Special Leave Petitions have been preferred by the petitioners herein, being aggrieved by the order dtd. 10/2/2020 passed by the High Court of Chhattisgarh.

(2.) In the writ petitions filed before the High Court, the challenge was to the power and authority of the State Government/local authority to realise tax/fee or a charge on erection of mobile towers by the petitioners herein and also as to the exorbitant quantum of tax/fee (being "initial permit fee") as well as the subsequent yearly renewal fee as well as the compounding/settlement fee. The main ground of challenge was with regard to the State or local authority not having any power vested with them to issue any Circulars/Directions/Rules as the subject would fall within the scope of Entry 31 of List I of the Seventh Schedule of the Constitution of India, in respect of which there cannot be any intrusion by the State Legislature or any authority of the State. It was contended that under the provisions of the Indian Telegraph Act, 1885, the Central Government had notified the Indian Telegraph Right of Way Rules, 2016 ("2016 Rules", for short) and therefore the field of legislation being within the Central Government's domain, the State had no power to impose any tax or fee much less the local authorities.

(3.) A Circular was issued by the State of Chhattisgarh dtd. 6/6/2006, addressed to the local authorities to cause realisation of one time permit fee while granting sanction for erection of a mobile tower in the area under jurisdiction of the Municipal Corporations/Municipalities/Gram Panchayats and also for realisation of the yearly renewal fee. There was no grievance raised from any quarter with regard to the said Circular. However, the aforesaid Circular was superseded by a subsequent Circular whereby the fee structure was enhanced several fold. It was also stipulated that those who had unauthorisedly erected the mobile towers could settle the matter on payment of settlement or compounding fee to an extent of 15 to 50 times of the one time permit fee. In view of the enhancement of the permit fee by five times and renewal fee by 10 times and settlement fee by 15 to 50 times, the Circular dtd. 18/11/2009 was assailed in several writ petitions before the High Court. Subsequently, the State Government issued the Chhattisgarh Municipal Corporation (Erection of Temporary Tower or Structure for Cellular Mobile Phone) Rules, 2010 ("2010 Rules", for short) for collection of one time permit fee, yearly renewal fee and the compounding/settlement fee as stipulated in the earlier Circular dtd. 18/11/2009. These Rules were assailed by the petitioners herein in several writ petitions. Thereafter, the State Government issued an Instruction/Circular dtd. 28/3/2012 under Sec. 77(2) of the Panchayat Raj Adhiniyam, 1993 (for short, "the Act of 1993") read with S.No. (9) of Schedule II, whereby the Gram Panchayats were at liberty to realise 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. Being aggrieved by the said Circular, several writ petitions were filed before the High Court.