Allowed

M/s. Bharti Cellular Limited, v. Government of Andhra Pradesh

Telangana HC12 Jun 2013WP/8268/2005

Case brief

AI extract

What is this about?

This common order disposed of three writ petitions challenging the demand of licence fees by Gram Panchayats for Base Transceiver Station (BTS) towers. The court, following a prior precedent, held that BTS towers are metallic structures not falling under the definition of 'building'. Consequently, the court allowed the petitions, quashed the demand, and directed a refund of any amounts paid.

What did the court decide?

Gram Panchayats held not entitled to demand licence fees; amounts paid shall be refunded with interest at 6% per annum.

M/s. Bharti Cellular Limited, Vs… — Pension and Retirement Benefits | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO WP Nos.3048, 8268 and 27452 of 2005.

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Common Order:

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1) As the issue involved in these writ petitions is one and same, they are clubbed, heard together and are being disposed of by this common order.

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2) These three writ petitions are filed to declare the action of the 3^rd respondent-Gram Panchayats in demanding certain amounts towards licence fee for installation and operation of petitioner’s Base Transceiver Stations ( for short “BTS”) Tower and Equipment on the premise that the 3^rd respondent-Gram Panchayats are entitled to demand and collect the same under the provisions of G.O.Ms.No.67 Panchayat Raj and Rural Development (Pts.IV). Department dt.26.2.2002.

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3) For the purpose of convenience, facts in W.P.No.27452 of 2005 are considered in this order as they are illustrative of the facts in other two writ petitions also. 4) The case of the petitioner is that it is a company incorporated under the provisions of the Companies Act; that it was granted licence to establish, maintain and operate Cellular Mobile Telephone Services in specified areas including the State of Andhra Pradesh under the terms and conditions set out in the licence agreement dt.22.1.1995; that for the said purpose it needs to install BTS Towers within the jurisdiction of the respondent-Gram Panchayat; that vide Government Memo

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No.9185/Pts.IV/A2/2004-2 dt. 22.12.2004, the 1^st respondent-Government had exempted the petitioner from the operation of the building regulations to erect and construct BTS towers with related services in the jurisdiction and administrative control of any Gram Panchayat, Mandal Parishad and Zilla Parishad; that the said exemption was conferred by the Government in exercise of its powers under Part 7 of A.P. Panchayat Raj Act, 1994 ( for short “the Act”); therefore the petitioner is exempted from application of A.P. Gram Panchayat Land Development (Layout & Building) Rules 2002 issued vide G.O.Ms.No.67 Panchayat Raj and Rural Development (Pts.IV) Department dt.26.2.2002. It is further contended that the 3^rd respondent is insisting that it will not permit installation of BTS installation unless petitioner pays the demanded licence fee and this stand is contrary to law and unsustainable.

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5) In the counter affidavit filed by the 1^st respondent, it is stated that Andhra Pradesh Gram Panchayat and Land Development (Layout and Building) Rules, 2002 deal with the procedure for obtaining permission for construction of any building; that section 121 of the Act contemplates that “no piece of land shall be used as a site for construction of building without the permission of the Gram Panchayat granted in accordance with provision of any Rule or byelaws.”; that proviso to said Section 121 empowers the State Government to exempt all buildings or any class of buildings from all or any of the provisions of any rule or bye-

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laws made under the Act; that Rule 15(h) of the Rules made in Andhra Pradesh Panchayat Land Development (Layout and Building) Rules, 2002 empowers the State Government to exempt “ any other services which the Government may declare to be a public utility service from time to time for the purpose of this clause”; and that in exercise of the powers vested with the 1^st respondent under Section 121 of the Act and the above Rules, the 1^st respondent had granted exemption to petitioner from taking permission from the Gram Panchayat/Mandal Parishad/Zilla Parishad for establishment of ground based tower/roof top towers/ Poles and other infrastructure like Diesel generators, containers etc., ( vide Government Memo.No.9185/RP & RD (Pts.IV) Dept. dt.22.12.2004) subject to the following conditions :

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“ 1. They should obtain approval of Air Traffic Controller, Airport Authority of India for exemption of roof antenna from height restriction, in case, such exemption is required : 2. They are solely responsible for any damage to the building and for safety.

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3. They should take special precautions like fire safety and lighting etc.

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4.They should inform of any such installation to the local authority.”

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It is further stated in the counter that 1^st respondent had only granted exemption to petitioner from taking prior approval for installation of BTS Towers and its related services, but there is no exemption granted to petitioner from payment of

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betterment or any other charges payable to the concerned Gram Panchayat, Mandal Parishad or Zilla Parishad under the provisions of the Act on such installations. 6) Heard the learned counsel for the petitioners, learned Government Pleader for 1^st respondent, and Sri P. Raghavender Reddy, learned Standing Counsel for the respondents 2 to 4.

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7) Section 121 of the Act reads :

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“ 121. Construction of building : - No piece of land shall be used as a site for the construction of a building and no building shall be constructed or reconstructed and no addition or alteration shall be made to an existing building without the permission of the gram panchayat granted in accordance with the provisions of any rules or bye-laws made under this Act, relating to the use of building sites or the construction or reconstruction of buildings;

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Provided that the Government may, in respect of all gram panchayats or with the consent of the gram panchayat, in respect of any particular gram panchayat or portion thereof, exempt all buildings or any class of buildings from all or any of the provisions of any rules or bye-laws made under this Act. ”

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8) Section 2 (3) of the Act states:

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“(3) “ building” includes a house, out-house, shop, stable, latrine, shed ( other than a cattle shed in an agricultural land), hut, wall and any other such structure whether of masonry, bricks, wood, mud, metal or other material whatsoever; ”

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9) In M. BALARAM v. BHARAT SANCHAR NIGAM

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LIMITED^[1] , this Court had an occasion to consider whether provisions of Section 99 and 121 of the Act were attracted in the case of erection of Cell towers by a licencee and whether obtaining of permission from Gram Panchayat is mandatory. This Court held :

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“ 5. I have carefully examined the provisions of Section 99 and I am of the view that the said provision is attracted only where the owner or occupier of any building proposes to put up verandahs, balconies, sunshades, whether frames and the like to protect over a public road vested in such Gram Panchayat. The learned counsel also relied on Section 121 of the Act in this regard. The said provision is not attracted either, because it pertains to the requirement of permission to be obtained from the Gram Panchayat for construction of a building. Section 2(3) of the Act defined ‘building’ as including a house, out-house, shop, stable, latrine, shed ( other than a cattle shed in an agricultural land), hut, wall and any other such structure whether of masonry, bricks, wood, mud, metal or other material whatsoever.

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6. In my opinion, a metallic structure, which does not have any characteristic of house, out-house, shop, stable etc., does not fall within the definition of building. The words “whether of masonry, bricks, wood, mud, metal or other material” used in the said definition were preceded by the words “such structure” which necessarily means the structures such as house, out-house, shop, stable, latrine, shed etc., as mentioned in the earlier part of the definition. Therefore, this contention of the learned counsel is rejected.”

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In the above case, this Court also held that BTS Towers being erected by the petitioner are only metallic structures and do not have any characteristic of a house and so it does not fall within the definition of the term ‘building’ as defined in Section 2(3) of the Act.

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10) Both the counsel have agreed that these writ petitions are squarely covered by the decision reported in M. BALARAM’s case (1 supra ).

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11) Respectfully following the above decision in M. BALARAM’s case ( 1 supra), I hold that respondents 2 to 4 are not entitled to demand from the petitioner any amounts towards licence fee for construction of BTS Tower. If any amounts have been paid by the petitioner to the respondents 2 to 4 towards building licence fee for obtaining permission for construction of BTS Tower, the same shall be refunded to the petitioner with interest @ 6% per annum from the date of such payment within four weeks from the date of receipt of a copy of this order.

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12) With the above directions, the writ petitions are allowed. No costs.

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JUSTICE M.S. RAMACHANDRA

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RAO

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KK/ 12/6.2013

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THE HON’BLE SRI JUSTICE M.S. RAMACHANDRA RAO

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WP Nos.3048, 8268 and 27452 of 2005.

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12-6-2013

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[1] 2010 (6) ALD 34

M/s. Bharti Cellular Limited, v. Government of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

M/s. Bharti Cellular Limited, v. Government of Andhra Pradesh

Case brief

What is this about?

What did the court decide?

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