Madras High Court
The Bharat Sanchar Nigam Limited vs Commissioner on 29 July, 2022
W.P.(MD)Nos.3554 to 3561 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 29.07.2022
CORAM
THE HONOURABLE MR. JUSTICE M.NIRMAL KUMAR
Writ Petition (MD) Nos.3554 to 3561 of 2011
and
M.P.(MD)Nos.1 and 2 of 2011 (in all the W.Ps.)
The Bharat Sanchar Nigam Limited,
Tirunelveli,
Through its General Manager. .. Petitioner in all the W.Ps.
Versus
1.Commissioner,
Shencottai Municipality,
Shencottai.
2.The Union of India,
Rep. by the Secretary,
Department of Telecommunication,
New Delhi. .. Respondents in all the W.Ps.
[R2 is suo motu impleaded vide order dated 22.03.2017,
made in W.P.(MD)No.3554 of 2011]
Prayer in W.P.(MD)No.3554 to 3560 of 2011.:- Petitions filed under Article
226 of the Constitution of India praying for issuance of a Writ of Certiorari, to
call for the records of the first respondent in Na.Ka.4487/2010, dated
28.12.2010 and quash the same in respect of Demand Nos.8294, 8295, 8296,
8297, 8298, 8299 and 8300, Door Nos.353/184, 355/184A, 357/184B,
359/184C, 361/184D, 363/184E and 365/184F, K.C.Road, Shencottai,
respectively.
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W.P.(MD)Nos.3554 to 3561 of 2011
Prayer W.P.(MD)No.3561 of 2011.:- Petition filed under Article 226 of the
Constitution of India praying for issuance of a Writ of Certiorari, to call for the
records of the first respondent in Letter No.Na.Ka.848/2008/A1, dated
26.11.2010, in
(i) Demand No.14001 with respect to Telephone Exchange, 8, North Car
Street, Sublane III, Sankarankovil, for the period of 2010-2011.
(ii) Demand No.14553 with respect to Coaxil building 66,
Melarathaveethi Part I Sankarankovil, for the period of 2008-2011.
(iii) Demand No.14611 with respect to Telephone Office staffs house,
12, Melarathaveethi, Sankarankovil, for the period of 2010-2011, and
(iv) Demand No.14612 with respect to Telephone Office 1st Floor, 8/1,
North Car Street, Sublane III, Sankarankovil, for the period of 2010-2011.
For Petitioner : Mr.K.Govindarajan
(in all the W.Ps.)
For R1 : Ms.Balameenakshi
(in all the W.Ps.) for Mr.Pala.Ramasamy
For R2 : Mr.S.Jeyasingh
(in all the W.Ps.) Senior Panel Counsel for
Government of India
COMMON ORDER
Since the issue involved in all the Writ Petitions is one and the same,
they are heard together and disposed of by this common order.
2.Bharat Sanchar Nigam Limited [in short ''BSNL''] through its General
Manager has filed W.P.(MD)Nos.3554 to 3560 of 2011, seeking a direction in
the nature of Certiorari, to call for records of the first respondent namely, the
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W.P.(MD)Nos.3554 to 3561 of 2011
Commissioner, Shencottai Municipality, in Na.Ka.4487/2010, dated
28.12.2010 and quash the same in respect of Demand Nos.8294, 8295, 8296,
8297, 8298, 8299 and 8300, Door Nos.353/184, 355/184A, 357/184B,
359/184C, 361/184D, 363/184E and 365/184F, K.C.Road, Shencottai,
respectively.
3.W.P.(MD)No.3561 of 2011 is filed seeking to quash the following the
demands made by the first respondent in Letter No.Na.Ka.848/2008/A1, dated
26.11.2010:-
(i) Demand No.14001 with respect to Telephone Exchange, 8, North Car
Street, Sublane III, Sankarankovil, for the period of 2010-2011.
(ii) Demand No.14553 with respect to Coaxil building 66,
Melarathaveethi Part I Sankarankovil, for the period of 2008-2011.
(iii) Demand No.14611 with respect to Telephone Office staffs house,
12, Melarathaveethi, Sankarankovil, for the period of 2010-2011.
(iv) Demand No.14612 with respect to Telephone Office 1st Floor, 8/1,
North Car Street, Sublane III, Sankarankovil, for the period of 2010-2011.
4.The contention of the petitioner is that BSNL was formed on
01.10.2000 by the Government of India under the Companies Act, 1956.
Before formation of BSNL, the entire Department was controlled by the
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W.P.(MD)Nos.3554 to 3561 of 2011
Ministry of Telecom, Government of India. All the properties stood only in
the name of the Government of India, Ministry of Telecom. Even though the
BSNL was formed as a separate entity, it is under the control of the
Government of India, Ministry of Telecom. The property situated in Ward J,
Block 2, T.S.No.2, with an extent of 1.652 Hectares is the property under the
Telephone Office, situated at Shencottai Town. The above said property till
today stands in the name of the Central Government Poramboke. In order to
prove the same, the petitioner has produced ''A'' Register Extract issued by the
Tahsildar, Shencottai.
5.Further, when the facts remain so, the first respondent issued a
demand notice for the following demands:-
W.P.No. Property details and Demand Notice Financial Balance
Address Date & No. Year Amount
3554/2011 D.No.353/184, Na.Ka.No. 2000-2011 Rs.1,89,748/-
Telephone Office, 4487/2010, dated
Ward J, Block-2, 28.12.2010 &
T.S.No.2, Demand No.8294
K.C.Road,
Shenkottai Town.
3555/2011 D.No.355/184A, Na.Ka.No. 2005-2011 Rs.7,980/-
Telephone 4487/2010, dated
Inspector Quarters, 28.12.2010 &
Ward J, Block-2, Demand No.8295
T.S.No.2,
K.C.Road,
Shenkottai Town.
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W.P.(MD)Nos.3554 to 3561 of 2011
3556/2011 D.No.357/184B, Na.Ka.No. 2005-2011 Rs.7,980/-
Telephone 4487/2010, dated
Inspector Quarters, 28.12.2010 &
Ward J, Block-2, Demand No.8296
T.S.No.2,
K.C.Road,
Shenkottai Town.
3557/2011 D.No.359/184C, Na.Ka.No. 2005-2011 Rs.7,980/-
Telephone 4487/2010, dated
Inspector Quarters, 28.12.2010 &
Ward J, Block-2, Demand No.8297
T.S.No.2,
K.C.Road,
Shenkottai Town.
3558/2011 D.No.361/184D, Na.Ka.No. 2005-2011 Rs.7,980/-
Telephone 4487/2010, dated
Inspector Quarters, 28.12.2010 &
Ward J, Block-2, Demand No.8298
T.S.No.2,
K.C.Road,
Shenkottai Town.
3559/2011 D.No.363/184E, Na.Ka.No. 2005-2011 Rs.7,980/-
Telephone Sub- 4487/2010, dated
Inspector Quarters, 28.12.2010 &
Ward J, Block-2, Demand No.8299
T.S.No.2,
K.C.Road,
Shenkottai Town.
3560/2011 D.No.365/184F, Na.Ka.No. 2005-2011 Rs.7,980/-
Cleaner Quarters, 4487/2010, dated
Ward J, Block-2, 28.12.2010 &
T.S.No.2, Demand No.8300
K.C.Road,
Shenkottai Town.
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W.P.(MD)Nos.3554 to 3561 of 2011
3561/2011 (i) No.8, Telephone Na.Ka.No. 2010-2011 Rs.21,204/-
Exchange, North 848/2008/A1
Car Street, Sub-lane dated 26.11.2010
III, Sankarankovil. & Demand No.
14001
(ii) No.66, Coaxil Na.Ka.No. 2008-2011 Rs.45,700/-
Building, 848/2008/A1,
Melarathaveethi dated 26.11.2010
Part - I, & Demand No.
Sankarankovil. 14553
(iii) No.12, Na.Ka.No. 2010-2011 Rs.7,422/-
Telephone Office 848/2008/A1,
Staffs House, dated 26.11.2010
Melarathaveethi, & Demand No.
Sankarankovil. 14611
(iv) No.81, Na.Ka.No. 2010-2011 Rs.16,584/-
Telephone Office, I 848/2008/A1,
Floor, North Car dated 26.11.2010
Street, Sub-Lane & Demand No.
III, Sankarankovil. 14612
Immediately, the petitioner informed the first respondent that the property
stands only in the name of the Government of India and not in the petitioner's
Company name, as such, they are exempted as per Article 285 of Constitution
of India. In spite of repeated representations, the first respondent is not ready
to accept the well settled legal propositions and the constitutional safeguards
available to the properties stand in the name of the Central Government.
Added to it, the first respondent threatened the petitioner day in and day out
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W.P.(MD)Nos.3554 to 3561 of 2011
with coercive actions, hence, left with no other effective or efficacious
remedy, the petitioner filed the above Writ Petitions.
6.In support of his submissions, the petitioner referred to ''A'' Register
Extract, dated 04.02.2011, wherein it is recorded as ''kj;jpa murhq;f
Gwk;Nghf;F''. Further, in support of his contentions, the petitioner has
produced the Gazette Notification of the Government of India, dated
17.03.2001, to emphasise that a Memorandum of Understanding, dated
30.09.2000, entered into between the President of India [acting through the
Secretary to the Government of India, Ministry of Communications,
Department of Telecommunications (DoT)] and Bharat Sanchar Niagam
Limited, the business of providing telecom services in the Country,
maintaining the telecom network/running the telecom factories by the
Department of Telecom Services (DTS) and the Department of Telecom
Operations (DTO) [which were earlier provided by the Department of
Telecommunications (DoT)] later has been transferred to the newly formed
Company viz., Bharat Sanchar Nigam Limited (BSNL) with effect from
01.10.2000. All assets and liabilities (except certain assets which will be
retained by DoT required for the units and offices under control of DoT) of the
Department of Telecom Services (DTS) and the Department of Telecom
Operations (DTO) stood transferred to BSNL with effect from the said date.
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W.P.(MD)Nos.3554 to 3561 of 2011
Further, the petitioner also referred to the Office Memorandum, dated
15.12.2009, issued by the Government of India, Ministry of Urban
Development, following the Hon'ble Apex Court's judgment in Rajkot
Municipal Corporation and others vs. Union of India and others [Civil
Appeal Nos.9458-9463 of 2003], wherein, the Hon'ble Apex Court had
directed the Union of India and its Departments to pay service charges for the
service provided by the Rajkot Municipal Corporation and no property tax will
be paid by the Union of India, but service charges calculated @ 75%, 50% or
33 1/3% of property tax levied on property owners will be paid, depending
upon the utilization of full or partial or Nil services. For the said purpose,
agreements will be entered into by the Union of India, represented by
concerned Departments with the respective Municipal Corporations.
7.The learned counsel for the petitioner further referred to another
communication of the Ministry of Communications and IT, dated 23.11.2012,
wherein, it is stated that in accordance with the Gazette Notification, dated
23.01.2001, published on 17.03.2001, all the assets and liabilities (except
certain assets which will be retained by the DOT required for the units and
offices under control of DoT) of the Department of Telecom Services (DTS)
and the Department of Telecom Operations (DTO) stood transferred to BSNL
with effect from the said date and the concerned Government Pleader at
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W.P.(MD)Nos.3554 to 3561 of 2011
District/Taluk level may be consulted to ascertain the formalities required for
such mutation of titles.
8.The learned counsel for the petitioner also referred to a
Communication of the BSNL, dated 02.07.2014. Further, the learned counsel
referred to the proceedings of the Revenue Divisional Officer, Tirunelveli,
dated 15.04.2016, wherein a direction has been given to the Tahsildar,
Ambasamudram and the Tahsildar, Shencottai, for mutating the name of
Department of Telecommunications as ''BSNL'' in the revenue records.
9.The learned counsel for the petitioner also produced MoU, dated
30.09.2000, entered into between the President of India [acting through the
Secretary to Government of India, Ministry of Communications, Department
of Telecommunications (DoT)] and the BSNL, wherein the modalities of
formation of BSNL and taking over the assets of DoT are given.
10.In support of his contention, the learned counsel for the petitioner
relied on the judgment of the Hon'ble Apex Court in the case of Rajkot
Municipal Corporation vs. Union of India reported in 2013 (14) SCC 599,
for a proposition that the Union of India and its Departments will pay service
charges and they will not pay any property tax.
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W.P.(MD)Nos.3554 to 3561 of 2011
11.The learned counsel for the petitioner also referred to a decision of
the Punjab and Haryana High Court in the case of Union of India vs.
Municipal Council, Batala [RSA No.3584 of 2010, dated 20.09.2012],for
the same proposition, wherein it is held that protection under Article 285 of
the Constitution of India, cannot be overridden by the administrative circulars
or instructions.
12.Lastly, the learned counsel for the petitioner relied on a decision of
the Hon'ble Apex Court in Food Corporation of India vs. Brihanmumbai
Mahanagar Palika and others [Civil Appeal Nos.9350 and 9351 of 2019,
dated 19.03.2020], wherein the Hon'ble Apex Court held that the Food
Corporation of India is exempted from payment of property tax by virtue of
Article 285 of the Constitution of India, but they are liable to pay service
charges for the services rendered by the Corporation.
13.The first respondent filed a counter affidavit and submitted that it is
admitted by the petitioner in his affidavit that the BSNL was formed on
01.10.2000 by the Government of India under the Companies Act, 1956.
Before formation of BSNL, the entire Department was controlled by the
Ministry of Telecom, Government of India. BSNL is a commercial
organization formed under the Companies Act, 1956 and it is not exempted
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W.P.(MD)Nos.3554 to 3561 of 2011
from payment of the property tax. Hence, the first respondent issued the
demand notices. The petitioner's Organization in Karaikudi Municipality paid
property tax to the Karaikudi Municipality. Being a Company spread
throughout the India, they cannot take a different stand for different regions.
14.In support of her contentions, the learned counsel for the first
respondent referred to a letter of Deputy Director General of BSNL
Headquarters, dated 14.08.2001, addressed to the Chief General Manager
[CGM], Rajasthan Circle, Jaipur, with copies marked to all the Chief General
Managers of BSNL. The Deputy Director General of BSNL, in the said
communication, clarified that BSNL cannot claim exemption of local taxes
under Article 285 of the Constitution of India and therefore, taxes must be
paid subject to availability of funds in the relevant heads of account. Thus,
after this communication, the petitioner ought not to have challenged the tax
demand. Further, vide communication dated 26.07.2005, again, the BSNL
Headquarters, New Delhi, confirmed the same and given a direction to the
Civil Wing Unit under the control of BSNL to comply with the instructions.
Further, the Commissioner of Municipal Administration, Chennai, in
R.O.C.No.60804/2005/R1, dated 14.10.2005, had given instructions to all
Municipal Corporation Commissioners and the Corporation Commissioners
that the High Court of Delhi in the case of International Airport Authority
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W.P.(MD)Nos.3554 to 3561 of 2011
of India vs. Municipal Corporation of Delhi and others reported in AIR
1991 Delhi 302, held that the property owned by the Union Government
Company or a statutory Corporation, which has a corporate personality of its
own, cannot be said to be the property of the Government of India and
therefore, it is liable to State or Municipal Taxation. Further, the Hon'ble
Apex Court has given a specific direction to all the Commissioners of
Municipalities and Corporations to take action to assess the property owned by
the statutory corporations like, Bharat Sanchar Nigam Limited, Bharat Heavy
Electricals Limited, Indian Airlines etc., for levy of property tax as they cannot
claim any exemption on the ground that their properties belonged to the
Central Government. The Director of Municipal Administration, by another
communication, dated 05.11.2009, after referring to the earlier Circular, dated
14.10.2005, had directed the Executive Authorities to follow Article 285 of the
Constitution strictly for bringing into the property tax net of all the Statutory
Corporations and the same provision should be informed to all the Statutory
Corporations concerned, if the same are housed within the jurisdiction.
15.Further, the learned counsel for the first respondent referred to the
communication of the Deputy General Manager, BSNL, Chennai, dated
16.07.2011, wherein directions have been issued to all concerned that
challenging the imposition of property taxes by the local bodies in a Court of
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W.P.(MD)Nos.3554 to 3561 of 2011
law may not yield success, and the payment of property tax appears to be
imminent, and hence, requested to pay the property tax wherever claims have
been raised by the local bodies. Following the same, the local bodies, the
State of Tamil Nadu, have issued the demand notices. The petitioner has no
locus to challenge the same and take umbrage under Article 285 of the
Constitution of India.
16.In support of her contentions, the learned counsel for the first
respondent referred to a judgment of the Hon'ble Apex Court in Municipal
Commissioner of Dum Dum Municipality and Others vs. Indian Tourism
Development Corporation and Others reported in 1995 (5) SCC 251,
wherein, it is held that the properties of Union of India vested with statutory
corporations or Government Companies, not exempted from tax imposed by
the Municipal Corporations. After the date of vesting, the properties so vested
are no longer the properties of the Union of India for the purpose of and within
the meaning of Article 285 of the Constitution.
17.Further, the learned counsel for the first respondent relied upon a
decision rendered by the High Court of Kerala in the case of Bharat Sanchar
Nigam Limited vs. State of Kerala and others reported in 2017 (3) KLT
672, wherein it has been clearly held that BSNL which is a Company
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incorporated under the Companies Act, 1956, is a legal entity distinct and
separate from the Central Government. Hence, the BSNL cannot claim
exemption from taxation under Article 285 of the Constitution.
18.The second respondent Union of India filed a status report and
submitted that BSNL has been formed as a Company on 01.10.2000. The
Assistant General Manager (Admin), Office of the Principal General Manager,
BSNL, Tirunelveli, had sent a communication dated 15.07.2022, to the
Accounts Officer (Admin), Tamil Nadu Circle, Chennai, referring to the
present batch of writ petitions viz., W.P.(MD)Nos.3554 to 3560 of 2011 as
well as W.P.(MD)No.3561 of 2011, pertaining to the property at
Sankarankovil, wherein it has been admitted that the revenue documents have
been mutated on 18.07.2016 for 40 cents and on 08.02.2016 for 40 cents and
59 cents, respectively. Further, the Town Survey Field Register of Shencottai
Town has been enclosed, wherein it is recorded that S.No.113/7A Part, Old
Survey No.299 of 0.16.52 Hectares stands in the name of BSNL. Thus, the
learned Senior Panel Counsel submitted in unequivocal terms, it is confirmed
that the property stands in the name of BSNL and prayed for dismissal of the
Writ Petitions.
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19.Considering the submissions and on perusal of the materials from the
documents produced by the respective counsels, it is seen that the Government
of India, published a Gazette Notification, dated 17.03.2001, wherein, it is
seen that BSNL has been formed with effect from 01.10.2000. All the assets
and liabilities (except certain assets which will be retained by DoT required for
the units and offices under control of DoT) of the Department of Telecom
Services (DTS) and the Department of Telecom Operations (DTO) stood
transferred to the BSNL with effect from the said date. Further, it is stated that
the land and building and supply or services, subsisting on the date of transfer
of business and/or required for operation of BSNL have also been transferred
and assigned to BSNL with effect from 01.10.2000. Further, in Sl.No.3 of the
Office Memorandum, dated 15.12.2009, it is stated that in the event of any
Department or Railways owning a property changes the Agreement
unilaterally or falls to reach settlement through Mediation Committee, the
concerned Municipal Corporation could initiate action as it deems fit in
accordance with law. The only caveat is that the Municipal Corporation shall
not resort to coercive steps. Further, in the Communication of the Deputy
Director General of Ministry of Communications and IT, directions given to
transfer the respective immovable properties from DOT to BSNL.
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W.P.(MD)Nos.3554 to 3561 of 2011
20.The Memorandum of Understanding, dated 30.09.2000, which is
between the Department of Telecommunications (DoT) and BSNL, has given
the effective date of implementation from 01.10.2000. The assets and
liabilities of the business shall stand transferred to BSNL from the said date
onwards. Thus, the BSNL, which is a commercial Company, had come into
existence from 01.10.2000 and from thereon, they cannot take any umbrage
under Article 285 of the Constitution.
21.As per Schedule-I of Memorandum of Understanding, all apparatus
and plants, lines and wires, cables, land and buildings and motor vehicles have
been transferred. Thus, it is clear that all buildings and properties after
01.10.2000 are standing in the name of BSNL.
22.The citations relied on by the learned counsel for the petitioner are
not relevant to the facts of this case.
23.The High Court of Delhi in International Airport Authority of
India vs. Municipal Corporation of Delhi and others reported in AIR 1991
Delhi 302, held that the property owned by the Union Government Company
or a statutory Corporation, which has a corporate personality of its own,
cannot be said to be the property of the Government of India and therefore, it
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is liable to State or Municipal Taxation. It is further held that all the
Commissioners of Municipalities and Corporations shall take action to assess
the property owned by the statutory corporations like, Bharat Sanchar Nigam
Limited, Bharat Heavy Electricals Limited, Indian Airlines etc., for levy of
property tax as they cannot claim exemption on the ground that their properties
belonged to Central Government, which has been reiterated by the Hon'ble
Apex Court in the case of Municipal Commissioner of Dum Dum
Municipality and others vs. Indian Tourism Development Corporation
and others reported in 1995 (5) SCC 251. The Deputy Director General of
BSNL, vide communication dated 14.08.2001, in unequivocal terms, confirms
that there is no exemption of local tax under Article 285 of the Constitution. In
this context, it would be apposite to extract below the same:-
''A copy of BSNL Head Quarters
Lr.No.BSNL/15-1/SR/ND, dated 14.08.2001 addressed to
CGM Rajasthan Circle, Jaipur.
Sub:- Payment of local trades under Article 285 of
the Constitution of Land and Building.
...
Kindly refer to Yr D.O.Lr.No.BLDG/171-
RLG/IV/14, dated 21.06.2001 addressed to
Shri.S.P.Purwar, Director (Finance) BSNL regarding
payment of taxes for various land and building situated at
Jodhpur in Rajasthan Circle.
The case has been examined in the BSNL Head
Quarters and it has been decided that BSNL cannot claim
exemption of local taxes under Article 285 of the
Constitution and therefore the taxes may be paid subject
to availability of funds in the relevant head of account.''
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24.The Circular of Commissioner of the Municipal Administration,
dated 14.10.2005 and the Circular of the Director of Municipal
Administration, dated 05.11.2009, confirm the properties of BSNL are not
exempted under Article 285 of the Constitution and the Municipal authorities
can levy property tax, since BSNL cannot claim any exemption on the ground
that their properties are vested with the Central Government. Thus, there is no
ambiguity or doubt that from 01.10.2000 onwards that all the properties of
Department of Telecommunications are vested with the BSNL and thereafter,
the properties were transferred and acquired by the BSNL and therefore, the
Municipal authorities can levy tax.
25.In view of the above, this Court finds no merit in the contentions of
the learned counsel for the petitioner. Hence, all the Writ Petitions are
dismissed. It is for the BSNL authorities to approach the Municipal
authorities, if they are aggrieved on raising of demand, within 30 days from
the date of receipt of a copy of this order. The Municipal authorities are
directed to consider the same within a period of 30 days thereafter, to collect
the municipal tax dues. No costs. Consequently, connected Miscellaneous
Petitions are closed.
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26.Before parting with these cases, this Court places its appreciation to
Ms.Balameenakshi, learned counsel appearing for first respondent, for her
thorough preparation, sustained resistance and meticulous assistance to this
Court for disposal of this batch of Writ Petitions.
29.07.2022
Index : Yes/No
smn2
To
1.The Commissioner,
Shencottai Municipality,
Shencottai.
2.The Secretary,
Union of India,
Department of Telecommunication,
New Delhi.
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W.P.(MD)Nos.3554 to 3561 of 2011
M.NIRMAL KUMAR, J.
smn2
Common order made in
W.P.(MD)Nos.3554 to 3561 of 2011
29.07.2022
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