RANJAN GOGOI,J. - (1.) Delay condoned. Leave granted in all the special leave petitions.
(2.) This group of cases may be conveniently arranged in four different categories. The first are the appeals arising from the judgment and order dated 24/25.04.2013 passed by the Gujarat High Court declaring Section 145A of the Gujarat Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the Gujarat Act") as ultra vires the Constitution and on that basis interdicting the levy of property tax on "mobile towers". The High Court, by the impugned judgment, however, took the view that the Cabin in a mobile tower in which BTS system, details of which are noticed below, is located, would be a building and, therefore, exigible to tax under the Gujarat Act. The State Government and the different Municipal Corporations have challenged the first part of the order of the High Court whereas the Cellular operators have challenged the later part.
(3.) The Bombay High Court which was in seisin of a somewhat similar challenge, by the order under challenge, has taken the view that the writ petitions challenging the levy of property tax on mobile towers should not be entertained and the aggrieved writ petitioners therein (cellular operators) should be left with the option of exhausting the alternate remedies provided by the Act. This would be the third category of cases. In this regard, it must be noticed that in the Bombay Provincial Municipal Corporations Act, 1949, the charging section does not specifically contemplate levy of taxes on mobile towers as in the Gujarat Act. The impugned levy, nevertheless, was imposed on the reasoning that mobile towers are buildings as defined in the Act. At this stage, it must also be noticed that the Bombay Provincial Municipal Corporations Act, 1949 was applicable to the State of Gujarat also until the year 2011 when by the Gujarat Short Titles (Amendment) Act, 2011 the word 'Gujarat' has been inserted in place of the word 'Bombay'.;