w w w . L a w y e r S e r v i c e s . i n

M/s ATC Telecom Infrastructure Pvt. Ltd., Ranchi v/s The Union of India through Department of Telecommunications, Ministry of Communications and IT, Government of India & Others

Company & Directors' Information:- ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U72200MH2004PTC289328

Company & Directors' Information:- ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U72200DL2004PTC228400

Company & Directors' Information:- ATC LIMITED [Active] CIN = U16000TZ1973PLC018100

Company & Directors' Information:- T P COMMUNICATIONS LIMITED [Active] CIN = U22211UP1995PLC019014

Company & Directors' Information:- J. K. TELECOM LIMITED [Active] CIN = U64201JK1987PLC000978

Company & Directors' Information:- A AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74899DL1993PTC056539

Company & Directors' Information:- S P COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U45100WB1997PTC085372

Company & Directors' Information:- L-3 COMMUNICATIONS INDIA PRIVATE LIMITED [Active] CIN = U31909KA1999PTC025302

Company & Directors' Information:- P AND N TELECOM PRIVATE LIMITED [Strike Off] CIN = U64200DL1998PTC097592

Company & Directors' Information:- K. D. TELECOM PRIVATE LIMITED [Active] CIN = U32200GJ2007PTC051291

Company & Directors' Information:- A V INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45203WB2006PTC111599

Company & Directors' Information:- D. P. TELECOM PRIVATE LIMITED [Active] CIN = U64200UP2008PTC035035

Company & Directors' Information:- P U COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74899DL1995PTC070141

Company & Directors' Information:- J. P. COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U51395UP1998PTC024022

Company & Directors' Information:- S R COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U72900DL2000PTC106970

Company & Directors' Information:- M G COMMUNICATIONS PRIVATE LTD [Converted to LLP] CIN = U74899DL1986PTC023568

Company & Directors' Information:- B S TELECOM PRIVATE LIMITED [Active] CIN = U64201TZ2012PTC017798

Company & Directors' Information:- K & J TELECOM PRIVATE LIMITED [Active] CIN = U85110KA1989PTC009902

Company & Directors' Information:- T AND S TELECOM PRIVATE LIMITED [Strike Off] CIN = U64202DL2004PTC127144

Company & Directors' Information:- P R TELECOM PRIVATE LIMITED [Strike Off] CIN = U64202DL2003PTC122691

Company & Directors' Information:- S N COMMUNICATIONS PRIVATE LIMITED [Converted to LLP] CIN = U72900DL2002PTC118175

Company & Directors' Information:- A V TELECOM PRIVATE LIMITED [Active] CIN = U74999WB2012PTC182303

Company & Directors' Information:- J R D TELECOM PRIVATE LIMITED [Active] CIN = U74900TN2013PTC093158

Company & Directors' Information:- A TO Z TELECOM PRIVATE LIMITED [Active] CIN = U72900DL2000PTC104721

Company & Directors' Information:- L H TELECOMMUNICATIONS INDIA PRIVATE LIMITED [Strike Off] CIN = U74900JK2009PTC003032

Company & Directors' Information:- B E COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64204WB2007PTC117516

Company & Directors' Information:- J K R TELECOM INDIA PRIVATE LIMITED [Strike Off] CIN = U64204TG2010PTC068426

Company & Directors' Information:- R. P. INDIA TELECOM PRIVATE LIMITED [Active] CIN = U72900UP2017PTC089129

Company & Directors' Information:- V H B INFRASTRUCTURE PRIVATE LIMITED [Strike Off] CIN = U45400DL2008PTC172682

Company & Directors' Information:- RANCHI INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U45309JH2018PTC011336

Company & Directors' Information:- S A COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64204MH2020PTC343477

Company & Directors' Information:- L B TELECOM PRIVATE LIMITED [Active] CIN = U64200KA2020PTC137646

Company & Directors' Information:- L B N TELECOM PRIVATE LIMITED [Strike Off] CIN = U64201KA1998PTC024089

Company & Directors' Information:- N AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U92112MH1996PTC102814

Company & Directors' Information:- U V F INFRASTRUCTURE LIMITED [Active] CIN = U45400WB2010PLC153786

Company & Directors' Information:- E 6 COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74899DL1986PTC024856

Company & Directors' Information:- B N B COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U30009DL1996PTC081267

Company & Directors' Information:- ATC INDIA INFRASTRUCTURE PRIVATE LIMITED [Active] CIN = U74140HR2011FTC042774

Company & Directors' Information:- G C TELECOM (INDIA) PRIVATE LIMITED [Strike Off] CIN = U51505MH2004PTC144292

Company & Directors' Information:- VERSUS COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74300WB2005PTC103033

Company & Directors' Information:- TELECOM (INDIA) PVT LTD [Strike Off] CIN = U51395WB1984PTC037454

Company & Directors' Information:- A P COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U94201DL2001PTC112095

Company & Directors' Information:- N V COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U72200DL2005PTC135640

Company & Directors' Information:- N C COMMUNICATIONS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U72500DL1996PTC075119

Company & Directors' Information:- S AND S COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U32102KA1991PTC012068

Company & Directors' Information:- U AND I COMMUNICATIONS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900PN2012PTC144206

Company & Directors' Information:- N & D COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74900TN2003PTC050717

Company & Directors' Information:- R C COMMUNICATIONS PVT LTD [Strike Off] CIN = U93090OR2006PTC008788

Company & Directors' Information:- G AND M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U72900DL2006PTC146926

Company & Directors' Information:- D S COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64202DL2005PTC142556

Company & Directors' Information:- O. T. S. COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U93000MH2007PTC169128

Company & Directors' Information:- V & D TELECOMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64200MH2008PTC179961

Company & Directors' Information:- R K D COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U64200MH2011PTC217962

Company & Directors' Information:- R K D TELECOM PRIVATE LIMITED [Active] CIN = U74999MH2014PTC252496

Company & Directors' Information:- N S S COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U72200TG2010PTC071384

Company & Directors' Information:- D T N COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64203TN1982PTC009325

Company & Directors' Information:- B R I O COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U22300DL2012PTC242469

Company & Directors' Information:- S V S TELECOM PRIVATE LIMITED [Strike Off] CIN = U74140DL2009PTC194045

Company & Directors' Information:- D D TELECOM PRIVATE LIMITED [Active] CIN = U74140DL2015PTC282251

Company & Directors' Information:- K AND I COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74999DL2005PTC140331

Company & Directors' Information:- G V TELECOM PRIVATE LIMITED [Active] CIN = U74999DL2012PTC234694

Company & Directors' Information:- M M M COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U32204DL2007PTC164017

Company & Directors' Information:- D W W COMMUNICATIONS PRIVATE LIMTIED [Strike Off] CIN = U64200DL2007PTC169339

Company & Directors' Information:- V G TELECOMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U64202DL2005PTC138929

Company & Directors' Information:- S D N TELECOM PRIVATE LIMITED [Active] CIN = U64200AP2014PTC095500

Company & Directors' Information:- M R TELECOM PRIVATE LIMITED [Strike Off] CIN = U32304KA2009PTC050372

Company & Directors' Information:- K 2 COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74300KA2007PTC042842

Company & Directors' Information:- K. R. COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74999GJ2016PTC093336

Company & Directors' Information:- A. N. COMMUNICATIONS PRIVATE LIMITED [Active] CIN = U74130DL2020PTC372569

Company & Directors' Information:- V R COMMUNICATIONS INDIA PRIVATE LIMITED [Active] CIN = U74999PN2021PTC202406

Company & Directors' Information:- U F O COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U92100DL1997PTC087625

Company & Directors' Information:- U R TELECOM PRIVATE LIMITED [Strike Off] CIN = U00360KA1996PTC019674

Company & Directors' Information:- K & K COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74300TN1995PTC030627

Company & Directors' Information:- Z AND N COMMUNICATIONS PRIVATE LIMITED [Strike Off] CIN = U74300TZ1996PTC007333

    Civil Writ Jurisdiction Case No. 25477 of 2013

    Decided On, 29 September 2020

    At, High Court of Judicature at Patna


    For the Petitioner: Rajendra Kumar, Advocate. For the Respondents: Lalit Kishore, AG.

Judgment Text

Oral JudgmentSanjay Karol, C.J.,Petitioner who is engaged in the business of telecommunications has established passive infrastructure, over private properties, at different places within the State of Bihar.Concerning that, respondent no.4 has issued notice(s) to the petitioner (Annexure 3 and 3/1) asking it to pay fee/charges in terms of and under the provisions of the Bihar Communication Towers and Related Structures Rules, 2012. (Referred to as the 2012 Rules) Challenging these Rules as also the notice(s), Annexure-3, on 20.12.2013 petitioner filed the instant Petition praying for the following reliefs:"(i) To declare that the Bihar Act No.7 of 2011 namely Bihar Municipal (Amendment) Act, 2011 in so far as it relates to Amendment of Section 127 of the Bihar Municipal Act, 2007 in sub-section (1) clause (l) whereby and whereunder clause(l) has been substituted as follows, namely "(i) communication towers and related structures/Disc antennas" is ultra virus to Article 14,19(1)(g) read with Article 251 and 254 of the Constitution of India;(ii) To declare that the Bihar Communication Towers and Related Structure Rules, 2012 (hereinafter referred to as the "Rules") framed by the State of Bihar in exercise of powers vested under section 127(1)(l) and section 419 of the Act of 2007 is ultra-virus to Article 14, 19(1)(g) read with Article 246 and 252 of the Constitution of India;(iii) To quash and cancel the order, as contained in Memo No. 3607/U.D & H.D/Patna dated 4.10.2012, issued under signature of Arvind Kumar Singh, Joint Secretary, whereby and whereunder the order passed by the Secretary, Urban Development and Housing Development, Bihar on 3 rd October, 2012, rejecting the objections raised by the Telecom Infrastructure Companies, has been circulated to the petitioner;(iv) Any other relief/relief(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."On 02.01.2014 this Court passed interim order to the following effect:"Admit.To be heard with CWJC No. 15373 of 2012.The petitioner seeks to challenge the constitutional validity of Clause (i) inserted in sub-Section (1) of Section 127 of the Bihar Municipal Act, 2007 on the ground of legislative incompetence.Pending the writ petition, there shall not be coercive recovery from the writ petitioner pursuant to the demand dated 11th July 2013 on condition that petitioner will, within two weeks from today, pay the registration fee of Rs. 40,000/- and the renewal fee of Rs.10,000/- for the current year for each tower constructed or installed by the petitioner within the limits of the respondent- Hajipur Nagar Parishad, Hajipur.This order is made without prejudice to the rights and contentions raised in the writ petition and shall be subject to the final result of the writ petition".Learned counsel for the parties submit that the present petition be disposed of in view of the contentions recorded; observations made; and directions issued on 29.09.2020 in CWJC No.3300 of 2013 titled as ATC Telecom Infrastructure Pvt. Ltd. & Anr. Vs. The State of Bihar & Ors., making the same applicable, mutatis mutandi, also in the instant case.However, learned counsel for the petitioner clarifies that the case of the petitioner is not covered to the extent of issuance of Bank Guarantee, for the amount stands deposited in terms of the interim order dated 02.01.2014, reproduced supra. This Court on 29.09.2020 in CWJC No.3300 of 2013 titled as ATC Telecom Infrastructure Pvt. Ltd. & Anr. Vs. The State of Bihar & Ors., being the lead case had passed the following order:"4. On 18.04.2013, this Court rejected petitioners' prayer seeking modification of interim relief in the following terms:"This application is made by the writ petitioners for modification of the interim relief so that the writ petitioners may give bank guarantee in lieu of the registration fee and the renewal fee.Application is rejected."5. The matter was taken up to Hon'ble the Apex Court, wherein the parties to the instant lis were also parties and vide order dated 9th December, 2013 in Civil Appeal Nos.11001-02 of 2013, titled as ATC India Tower Corp. Pvt. Ltd. & Anr. Versus State of Bihar & Ors., the Court passed the following order:"Leave granted.Heard Mr. Harish N. Salve, learned senior counsel appearing for the appellants and Mr. Ranjit Kumar, learned senior counsel appearing for the respondents at some length.Looking at the facts of the case, we request the High Court to dispose of the batch of Writ Petitions pending before it expeditiously, preferably within six months from the date of communication of this order to it.In the meantime, the appellants shall give before the High Court a Bank Guarantee in respect of the amount which has been demanded so far and for the amount which they might have to pay by way of the demand, if raised in future.It is made clear that there shall not be any interim refund in the meantime.With the above observations and directions, the Civil Appeals are disposed of as allowed with no order as to costs."(Emphasis supplied)6. However, subsequently, Hon'ble the Apex Court passed an order dated 04.11.2019 in Petition (s) for Special Leave to Appeal (C) No(s).25447/2019, titled as Bharti Infratel Ltd. Versus The State of Bihar & Ors. which reads as under:"Application for exemption from filing official translation is allowed.Application for permission to file additional documents/facts/annexures is allowed.Issue notice.There shall be no recovery under the new demands till the next date.The towers sealed, in the meantime, be de-sealed."(Emphasis supplied)7. It is not in dispute that this order continues to be in operation.8. In the month of June 2020, all old matters of different categories (challenging the Constitutional Validity of Acts/ Income Tax/Sales Tax/ and other fiscal statutes) were listed for hearing.9. On its turn, a bunch consisting of the present matter, being the lead case, was taken up and on 18th August, 2020, we had passed the following order:"Having heard learned counsel for the parties, Substitution Application is allowed. Registry to make necessary correction in the memo of parties.Re: CWJC No.3300 of 2013 As prayed for, list on 7th September, 2020.Learned counsel for the State states that the pleadings of the case shall be transmitted through an electronic mode both to the learned counsel for the petitioner as also to the Court Master.Wherever the Bank Guarantee furnished by the petitioner has expired or is likely to expire in the near future, the same shall be got renewed immediately/ or within time, as the case may be. On receipt of fresh Bank Guarantee wherever otherwise required, the Registry shall take up steps for returning the documents of renewable/expired Bank Guarantee."10. It is not in dispute that in terms of the orders reproduced supra, petitioners have furnished the bank guarantees in favour of the Registrar General of this Court, which are still alive.11. Petitioners herein claimed to be governed only under the Indian Telegraph Right of Way Rules, 2016 (Referred to as the 2016 Rules) as extended in the year 2018 to the petitioners who fall under category I.P.-I, whereas the State's action is based on the applicability of 2012 Rules.12. Significantly, during the pendency of the present Petition, the State Government has now issued a Notification dated 19th August, 2020, notifying the Bihar Mobile Towers, Optical Fibers Cables (OFC) and Related Telecom Infrastructures Rule, 2020 (Referred to as the 2020 Rules) thereby also repealing the 2012 Rules.13. In this view of the matter, learned counsel for the petitioners, while maintaining its stands, submits that if only the petitioners' interest stands protected to the extent of interim orders passed by the Hon'ble Apex Court/this Court, petitioners will take recourse to the mechanism provided under the 2020 Rules or as per law.However, this would be without prejudice to the petitioners' right of agitating all issues before the authority established under the 2020 Rules or as per law. Also, petitioners would keep the bank guarantee alive till such time a proper decision stands taken, per law, by the authority on all the issues, be it regularization of the petitioners' actions; payments/dues under all or any one of the Rules referred to supra.14. Sri Gopal Jain, learned counsel for the petitioners further submits that petitioners' cases are not governed under the 2012 Rules. In fact, they are governed under the 2016 Rules as extended to the petitioners in the year 2018. Hence, the question of payment of any fee under the 2012 Rules does not arise. Also, under the 2020 Rules, there is no dispute resolution mechanism for payment of fee/ charges.15. Also, at this point, petitioners would not press the relief (a), reserving liberty to agitate the same, if the need so arises subsequently on the very exact cause of action. Further, there is no predicament or bar of this Court in disposing of this Petition, even though the matter on the larger issue is pending before Hon'ble the Apex Court.16. Sri P.N. Shahi, learned AAG-VI, has no objection to the same, save and except that under all circumstances, the interest of the Revenue is protected, be it by way of keeping the bank guarantees alive or depositing the amount and the issue to be adjudicated by the authority constituted under the 2020 Rules. Also liberty be given to all, for raising all pleas, available to them as per law.17. Mr. P. N. Shahi, learned AAG-VI, further clarifies that the issue is no longer res integra and stands settled by the Hon'ble Apex Court in Ahmedabad Municipal Corporation Versus GTL Infrastructure Limited and others, (2017) 3 SCC 545.18. We are inclined to accept the petitioners' prayer and as such dispose of the present Petition on the following terms:(a) Liberty, as prayed for, is granted.(b) Petitioners are allowed to take recourse to such measures as are provided under the 2020 Rules.(c) This, they must positively do so within the time frame prescribed thereunder or within four weeks from today, whichever is later.(d) With the receipt of the application, the authority constituted under the 2020 Rules shall positively decide all issues within a period of three months.(e) Bank guarantees shall be kept alive till such time, the petitioners' application stands finalized.(f) Prayer (a) reproduced supra stands left open to be agitated subsequently, on the same cause of action, if so required and desired.(g) Equally, all issues on merits are le

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ft open to be agitated under and in terms of 2020 Rules or other remedies available in law.(h) Demand, if at all, to make payment under the 2012 Rules is left open to be considered and adjudicated as per law. However, no demand in terms of notices, Annexure-4 series, shall be enforced until the process under 2020 Rules stands finalized.(i) If the petitioners fail to take action within the stipulated time, respondents can encash the bank guarantees without any further reference to this Court.(j) Petitioners' motion shall be without prejudice to their right to challenge the validity of 2020 Rules.(k) Liberty is reserved to the petitioners to approach this Court on the same and subsequent cause of action.19. The Petition stands disposed of in the above terms."As prayed for, petition stands disposed of in terms of the judgment dated 29.09.2020 passed in C.W.J.C. No. 3300 of 2013, titled as ATC Telecom Infrastructure Pvt. Ltd. & Anr. Vs. The State of Bihar & Ors., reproduced supra. The directions issued shall be applicable to the extent possible also to the facts of the instant case.All applications and petitions stand disposed of in the aforesaid terms.