Wireless Tt Info Services Ltd vs Municipal Corporation Of Delhi ...
2009 Latest Caselaw 5413 Del

45
                          *IN THE HIGH COURT OF DELHI

                             + W.P.(C) No.14198/2009

                                        Date of decision: 23rd December, 2009

            WIRELESS TT INFO SERVICES LTD          ..... Petitioner
                           Through    Mr. Shailesh Kapoor with
                                      Mr. Arvind Kumar, Advocates

                              versus

            MUNICIPAL CORPORATION OF DELHI
            AND ANR                                   ..... Respondent

                              Through     Ms. Maninder Acharya, Advocate

          CORAM:
          HON'BLE MS. JUSTICE GITA MITTAL

1. Whether reporters of local papers may be allowed to see the Judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

GITA MITTAL, J (ORAL)

CM No. 16387/2009

Allowed subject to all just exceptions.

W.P.(C) 14198/2009 & CM No.16386/2009

1. The present writ petition raises a challenge to the action of the

respondent in sealing the towers cell site /tower antenna of the petitioner

installed at Mustakil No.030, Killa No.7, Min.Village Kapashera, popularly called

23, West End Plaza, New Delhi.

2. The petitioner contends that it has installed tower antennae for the

purposes of providing mobile telecommunications. The towers were installed

by the petitioner after making applications to the concerned authority of the

Municipal Corporation of Delhi. Reliance is placed on the certifications with

regard to the structural safety of the proposed installation which were allegedly

submitted to the Municipal Corporation of Delhi. Learned counsel appearing for

the petitioner contends that these applications were processed. The

submission is that its application stood accepted by the Municipal Corporation

of Delhi and that the required charges were deposited by the petitioner.

3. A grievance is made that without giving any notice or personal hearing to

the petitioner, the respondents have illegally sealed the cell site of the

petitioner resulting in unwarranted hardships not only to the petitioner but also

to the subscribers.

4. Mr.Kapur, learned counsel who contends that despite full knowledge of

the fact that it was the petitioner who had approached the Municipal

Corporation of Delhi for permission, no notice to show cause at all has been

served upon the petitioner.

5. Appearing on behalf of the respondents, these submissions are

vehemently contested by Ms.Maninder Acharya, learned counsel for the MCD,

who submits that the installations are illegal and unauthorised.

6. Be that as it may, having regard to the directions which I propose to take

it not necessary to dwell at length on the factual narration or to record a

finding thereon. From the available documents, it appears that the petitioner

had made applications to the Municipal Corporation of Delhi for permission

before erecting its towers. On behalf of the petitioner it is urged that no

notice has been issued or served with regard to this site. The issues raised by

the petitioner include a challenge with regard to not only the factual matrix

noticed hereinabove but also the jurisdiction of the Municipal Corporation of

Delhi to proceed in the matter.

7. The petitioner contends that the towers in question have been installed

in public interest not recently, but that some of them have been raised openly

some time ago. The respondents, therefore, were fully aware of the

installations of the towers right from the inception. The action in sealing/

cancellations impacts valid interest of third parties. Mobile communication is

certainly not only the accepted mode of communication but is also an

imperative part of todays' lifestyles. In view of the above, the impugned

action cannot be sustained on grounds of failure to comply with the well

settled principles of natural justice.

Accordingly it is directed as follows:-

(i) the respondents shall remove the sealing which has been effected

on the cell site/tower antenna detailed in para 1 above.

(ii) the respondent shall served a fresh notices to show cause upon the

petitioner as well within one week from today. The petitioner shall

file response thereto within two weeks thereafter.

(iii)the respondent shall fix date and time for personal hearing of the

petitioner. Reasoned and speaking orders shall be passed by the

respondent after hearing the petitioner and taking into the

consideration the contentions which are raised by the petitioner.

(iv) the orders shall be communicated to the petitioner, and, if

adverse, implementation thereof shall be kept in abeyance for a

period of one week of their communication.

(v) The petitioner shall be at liberty to assail the orders passed by

the respondents, if still aggrieved thereby.

(vi)It is made clear that nothing herein contain is an expression of the

opinion on the merits of the contentions of either side and the

respondent shall be free to deal with the matter on a fair

consideration, uninfluenced by the orders passed in the present

petition.

(vii) Having regard to the factual narrations and nature of the matter

in view of the objections taken by the respondents it is directed

that the petitioner in future shall file separate writ petitions dealing

with each individual tower.

8. This writ petition and application are disposed of in the above terms.

Dasti to parties.

GITA MITTAL,J DECEMBER 23, 2009 rds