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TMI Blog2016 (12) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... aside the judgment passed by the Gujarat High Court and answer the appeals arising from the order of the Bombay High Court; transferred cases and the writ petitions accordingly. - Civil Appeal Nos. 5360-5363 of 2013 - - - Dated:- 16-12-2016 - Ranjan Gogoi And Prafulla C. Pant, JJ. C.A. No. 5364/2013, C.A. No. 5365/2013, C.A. Nos. 6385-6387/2013, C.A. Nos. 6737-6738/2013, C.A. No. 6739/2013, C.A. Nos. 6836-6926/2013, C.A. Nos. 7865-7894/2013, C.A. No. 8114/2013, C.A. No. 8115/2013, C.A. No. 8116/2013, C.A. No. 8117/2013, C.A. No.12209/2016 @ SLP(C) No. 362/2014, C.A. Nos. 2854-2855/2014, C.A. No.12211/2016 (arising out of SLP(C) No. 12567/2014), C.A. No.12212/2016 (arising out of SLP(C) No. 21521/2014), C.A. No.12213/2016 (arising out of SLP(C) No. 22653/2014), C.A. Nos. 12214-12215/2016 (arising out of SLP(C) Nos. 29803-29804/2014), C.A. No. 12216/2016 (arising out of SLP(C) No. 29765/2014), C.A. No. 12217/2016 (arising out of SLP(C) No. 31442/2014), C.A. No.12218/2016 (arising out of SLP(C) No. 31986/2014), C.A. No.12220/2016 (arising out of SLP(C) No. 24053/2014), C.A. No.12219/2016 (arising out of SLP(C) No. 3550/2015), C.A. No.12221/2016 (arising out of SLP(C) No. 614 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 . 4. The fourth and fifth categories of cases would be the writ petitions raising identical issues which have been transferred from the Bombay High Court to this Court and the writ petitions filed before this Court by the cellular operators under Article 32 of the Constitution raising a similar challenge as in the writ petitions filed before the High Court. 5. As the elaborate arguments advanced in the course of the prolonged hearing have centered around the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for tax on mobile towers at rates not exceeding those prescribed by order in writing by the State Government. Such tax which is levied on mobile towers is to be collected from persons engaged in providing telecommunication services through service towers. Section 145A is in the following terms. 145A Tax on mobile towers.- (1) A tax at the rates not exceeding those prescribed by order in writing by the State Government in this behalf from time to time shall be levied on mobile towers from the person engaged in providing telecommunication services through such mobile towers. (2) The Corporation shall from year to year, in accordance with Section 99, determine the rates at which the tax shall be levied. 11. By the aforesaid Gujarat Local Authorities Laws (Amendment) Act, 2011 similar provisions for levy of tax on mobile towers have been inserted in the Gujarat Municipalities Act, 1963 and also the Gujarat Panchayats Act, 1993. 12. The short contention of the cellular operators advanced before the High Court is that Section 127(1)(c) read with Section 145A of the Gujarat Act are legislatively incompetent as mobile towers are beyond the scope of Entry 49 of Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the interpretation of a Constitutional provision specially an Entry in any of the legislative fields under the Seventh Schedule to the Constitution. 16. Certain accepted and settled principles of Constitutional interpretation may now be taken note of. It will not be necessary to enter into any detailed deliberations and debate in this regard in view of the undisturbed precedents on which such principles have come to rest. Broadly and illustratively some of the principles which have been culled out from the decisions of this Court are enumerated hereinbelow. (i) In interpreting the provisions of the Constitution, particularly the Legislative Entry, a broad, liberal and expansive interpretation is to be preferred as the meaning of an Entry is always inclusive. [Synthetics and Chemicals Ltd. vs. State of Uttar Pradesh (1990) 1 SCC 109 Para 67 ] (ii) Principles of interpretation of a statute are not foreign and altogether irrelevant for the purposes of interpreting a constitutional provision and/or a specific Legislative Entry. [Good Year India Ltd. vs. State of Haryana Anr. AIR 1990 SC 781 Para 17] (iii) A Constitution is an organic document that must grow and l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule (in this Constitution referred to as the Union List ). (2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the Concurrent List ). (3) Subject to clauses (1) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the State List ). (4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included (in a State) notwithstanding that such matter is a matter enumerated in the State List 19. Though Article 246 has often been understood to be laying down the principle of Parliamentary supremacy, it must be qualified that such supremacy, if any, is extremely limited and very subtle. This has to be said when the federal structure of the Indian Union has been recognised as a basic feature of the Constitution. Both, the Central and the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by it or through the agencies of the States. A perusal of the legislative entries relating to taxes imposable by the Central and the State legislatures do indicate that the larger share of the revenue goes to the Union because of the very nature of the taxes leviable by the Union Parliament which would stand credited to the consolidated fund of the Union. The allocation of revenue heads/taxation power in the States certainly shows a disequilibrium which, however, is sought to be balanced by the constitutional scheme aforementioned, namely, equitable distribution of revenues between the Union and the States even though such revenues may be derived from taxes and duties imposed by the Union and collected by it. This aspect of the Constitutional scheme which has been echoed in para 50 of the decision in State of West Bengal vs. Kesoram Industries Ltd., (supra) has to be kept in mind as the discussions unfold. 22. We may now see what a Mobile Tower is and consists of. In technical terms a Mobile Tower is called a Base Transceiver Station. It involves the making of structure consisting of the following: a. A pre-fabricated shelter made of insulating PUF material made of fib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also, in its legal significance, indestructible. The contents of the space may be physically severed, destroyed or consumed, but the space itself, and so the land , remains immutable. Peter Butt, Land Law 9 (2nd Edition, 1988). P. Ramanatha Aiyar s Law Lexicon (Second Edition) observes that the word land is a comprehensive term, including standing trees, buildings, fences, stones, and waters, as well as the earth we stand on. Standing trees must be regarded as part and parcel of the land in which they are rooted and from which they draw their support. The word land , in the ordinary legal sense, comprehends everything of a fixed and permanent nature and therefore embraces growing trees. 48 All 498 95 IC 150 = 24 ALJ 583 = 1926 All 689. BUILDING Stroud s Judicial Dictionary (Fifth Edition) observes that what is a building must always be a question of degree and circumstances: its ordinary and usual meaning is, a block of brick or stone work, covered in by a roof (per Esher M.R., Moir v. Williams [1892] 1 Q.B. 264). The ordinary and natural meaning of the word building includes the fabric and the ground on which it stands (Victoria City v. Bishop of Van ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rkunde on behalf of the petitioner Company has urged that under Entry 49 of the State List in the Seventh Schedule to the Constitution, the State Legislature is empowered to enact a law relating to taxes on lands and buildings. It is submitted that the State Legislature has no competence under the above entry to enact a law for levying tax in respect of the area occupied by the underground supply lines. The word land , according to the learned counsel, denotes the surface of the land and not the underground strata. We are unable to accede to the above submission. Entry 49 of List II contemplates a levy of tax on lands and buildings or both as units. Such tax is directly imposed on lands and buildings and bears a definite relation to it. Section 129 makes provision for the levy of property tax on buildings and lands. Section 139 merely specifies the persons who would be primarily responsible for the payment of that tax. The word land includes not only the face of the earth, but everything under or over it, and has in its legal signification an indefinite extent upward and downward, giving rise to the maxim, Cujus est solum ejus est usque ad coelum (see p. 163, 73 Corpus Juris Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with regard to the true meaning and scope of the expressions land and building contained in the statute. As already observed by us principles of interpretation of the ordinary statute are not foreign to the principles of interpretation of the constitutional provisions. Paragraph 18 of the report in Municipal Corporation of Greater Bombay (supra) may now be noticed. 18. In S.P. Gupta v. Union of India 1981 Supp SCC 87 interpreting Section 123 of the Indian Evidence Act, this Court held that the section was enacted in the second half of the last century, but its meaning and content cannot remain static. The interpretation of every statutory provision must keep pace with changing concepts and the values and it must, to the extent to which its language permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord with the requirements of the fast changing society which is undergoing rapid social and economic transformation. The language of a statutory provision is not a static vehicle of ideas and concepts and as ideas and concepts change, as they are bound to do in any country like ours with the establishment of a democratic structure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ind 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 calculat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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