Kerala High Court
Bharat Sanchar Nigam Limited ... vs Principal Secretary (Lsgd) on 18 February, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
FRIDAY, THE 18TH DAY OF FEBRUARY 2022 / 29TH MAGHA, 1943
WP(C) NO. 26366 OF 2021
PETITIONER:
BHARAT SANCHAR NIGAM LIMITED
REPRESENTED BY ASSISTANT GENERAL MANAGER,
(L&B), OFFICE OF GENERAL MANAGER TELECOM,
BSNL,
KOLLAM DISTRICT, PINCODE-691 012.
BY ADV SRI.MATHEWS K.PHILIP, SC, BSNL
RESPONDENTS:
1 PRINCIPAL SECRETARY (LSGD)
GOVERNMENT OF KERALA,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
TAXES DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
3 PIRAVANTHOOR GRAMA PANCHAYATH
VETTITHITTA P.O., PIRAVANTHOOR,
KOLLAM DISTRICT-689 696
REPRESENTED BY ITS SECRETARY.
BY SMT.JASMIN M.M., GOVT. PLEADER
ADV MANOJ RAMASWAMY
W.P.(C) No.26366/21
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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 14.02.2022, THE COURT ON 18.02.2022 DELIVERED
THE FOLLOWING:
W.P.(C) No.26366/21
-:3:-
BECHU KURIAN THOMAS, J.
--------------------------------
W.P.(C) No.26366 of 2021
---------------------------------
Dated this the 18th day of February, 2022
JUDGMENT
M/s.Bharat Sanchar Nigam Limited (BSNL) has filed this writ
petition challenging the prosecution steps initiated against them
under section 210 of the Kerala Panchayat Raj Act, 1994. They also
seek to set aside the demand notices issued against them, demanding
property tax due for the period 2013-14 to 2021-22, for the mobile
towers erected by the petitioner, after a reassessment of the area and
the rate of tax imposed.
2. Petitioner claims to be one of the largest public sector
undertakings providing telecom services in India, having around
65000 mobile towers. The mobile telephone tower was included as
one of the categories of building for imposing basic property tax as
per notification dated 14.01.2011. Subsequent to the imposition of
property tax for mobile towers, demand notices were issued against
the petitioner, claiming tax due thereon for the towers erected and
installed by them. When there was default in payment of tax,
prosecution proceedings were also initiated as S.T. No.85 of 2021 and
S.T. No.86 of 2021 before the Judicial First Class Magistrate Court,
W.P.(C) No.26366/21
Pathanapuram.
3. In the meantime, petitioner, through its officers, submitted
request letters to reduce the high rate of tax imposed on the mobile
towers, after carrying out a re-assessment. Though the said request
was rejected and proceedings for prosecution were initiated,
subsequently, a joint inspection was conducted on 09.09.2021 and
the report consequent to the joint inspection was prepared, which was
communicated to the petitioner as per Ext.P13. Petitioner pointed out
through Ext.P14 several anomalies in the assessment of tax
demanded by the respondents and alleged that in respect of some of
the mobile towers, the plinth area was calculated incorrectly and that
the demands were excessive. In spite of such requests, the
respondents proceeded with the demand and also initiated
prosecution proceedings. The writ petition was initiated in the above
circumstances.
4. When the writ petition came up for admission, this Court
expressed its disinclination to interfere with the prosecution
proceedings since, petitioner's remedy was not through this writ
petition in which even the complaint filed by the Panchayat had not
been produced.
5. Today when the case was taken up, learned counsel for the
petitioner submitted that he is not pressing relief No.1, i.e.; for a
W.P.(C) No.26366/21
direction to the local bodies to refrain from initiating prosecution
proceedings. It was submitted that the prosecution proceedings have
already been challenged before this Court under section 482 of the
Cr.P.C. Petitioner therefore confined the submissions to relief Nos.2
and 3, i.e.; for a direction to reassess the tax on the basis of actual
plinth area at the correct rates and to quash Ext.P6 and Ext.P7
demand notices.
6. Sri.Manoj Ramaswamy, learned counsel appearing on behalf
of the third respondent, submitted that, they are willing to re-assess
the plinth area and reconsider the rate of tax based upon the area
assessed as per the joint inspection report, copy of which is produced
as Ext.P13.
7. A perusal of Ext.P13 reveals that the joint inspection
revealed mistakes in the calculation of area at least in respect of
Elikkattoor and Mukkadavu mobile tower locations. Petitioner had
pointed out the anomalies through Ext.P14 also. Even the rate of tax
is alleged to be calculated wrongly.
8. In view of the explicit error in calculating the plinth area of
the tower building, as evident from the joint inspection report, it is
essential in the interests of justice to redo the assessment based
upon such inspection report. To enable a reassessment of the area
and the tax imposed, this Court is of the opinion that Ext.P6 and
W.P.(C) No.26366/21
Ext.P7 ought to be set aside and a fresh assessment of the property
tax due on the mobile towers erected by the petitioner be carried out
in a time bound manner.
9. Accordingly, Ext.P6 and Ext.P7 shall stand set aside. The
third respondent is directed to re-assess the tax on actual rate and
the plinth area arrived at as per the joint inspection report, produced
as Ext.P13. On the basis of the said re-assessment, fresh demand
notices shall be issued thereafter. Needful shall be done, within a
period of three months from the date of receipt of a copy of this
judgment.
The writ petition is allowed in part.
Sd/-
BECHU KURIAN THOMAS
JUDGE
vps
W.P.(C) No.26366/21
APPENDIX OF WP(C) 26366/2021
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE NOTIFICATION NO.17/11
OF LSGD DATED 14.1.2011 WAS WITH RESPECT
TO MUNICIPALITIES.
EXHIBIT P2 TRUE COPY OF THE NOTIFICATION NO.19/11
OF LSGD DATED 14.1.2011 WITH RESPECT OF
PANCHAYATH.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED
28.11.2017 IN WPC NO.30376/2012.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 12.4.2018
IN RP NO.176/2018 IN WPC NO.30376/2012.
EXHIBIT P5 TRUE COPY OF THE LETTER SENT BY THE DGM
BSNL KOLLAM TO THE RESPONDENT DATED
23.6.2021.
EXHIBIT P6 TRUE COPY OF THE DEMAND NOTICE IN
RESPECT OF MUKKADAVU MOBILE TOWER SEND
BY THE 3RD RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE DEMAND NOTICE IN
RESPECT OF ELIKKATTOOR MOBILE TOWER SENT
BY THE 3RD RESPONDENT.
EXHIBIT P8 TRUE COPY OF THE REQUEST SEND BY DGM
PLANNING BSNL KOLLAM TO THE SECRETARY.
EXHIBIT P9 TRUE COPY OF THE REPLY DATED 14.7.2021
TO THE PETITIONER.
EXHIBIT P10 TRUE COPY OF THE REQUEST DATED 27.7.2021
SEND BY THE PETITIONER.
EXHIBIT P11 TRUE COPY OF THE REPLY DATED 24.8.2021
SEND BY THE RESPONDENT TO THE
PETITIONER.
EXHIBIT P12 TRUE COPY OF THE LETTER DATED 6.9.2021
WITH RESPECT OF JOINT SITE INSPECTION
INTIMATED BY THE 3RD RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE LETTER DATED 14.9.2021
ISSUED BY THE RESPONDENT TO THE
PETITIONER.
W.P.(C) No.26366/21
EXHIBIT P14 TRUE COPY OF THE REPRESENTATION MADE BY
THE DGM PLANNING BSNL KOLLAM.
EXHIBIT P15 TRUE COPY OF THE PANCHAYATH COMMITTEE
PROCEEDINGS DATED 27.10.2021.
EXHIBIT P16 TRUE COPY OF THE JUDGMENT IN
W.A.NO.2620/2017.
EXHIBIT P17 TRUE COPY OF THE ORDER IN
R.P.NO.411/2018 IN W.A.2620/2017.
EXHIBIT P18 TRUE COPY OF THE REPRESENTATION DATED
23.8.2021 TO THE IST RESPONDENT BY CGM
BSNL.
EXHIBIT P19 TRUE COPY OF THE CHARGE SHEET IN ST
85/2021 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT -III, PUNALUR.
EXHIBIT P20 TRUE COPY OF THE CHARGE SHEET IN ST
86/2021 ON THE FILE OF JUDICIAL FIRST
CLASS MAGISTRATE COURT -III, PUNALUR.
