Delhi High Court
Wireless Tt Info Services Ltd vs Municipal Corporation Of Delhi ... on 23 December, 2009
Author: Gita Mittal
38
*IN THE HIGH COURT OF DELHI
+ W.P.(C) No.14164/2009
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. 16333/2009
Allowed subject to all just exceptions.
W.P.(C) 14164/2009 & CM No.16332/2009
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 223, Satya Niketan, Moti Bagh, 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 an application on 15th March, 2004 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 this
application was processed and contends that there was deemed acceptance of
its application by the Municipal Corporation of Delhi which culminated in the
petitioners depositing the required charges on the 16th of September, 2004.
3. Mr. Shailesh K. Kapoor, learned counsel appearing for the petitioner
contends that so far as this site is concerned, a notice to show cause dated
18.11.2009 was issued by the MCD under Section 345 A of the Delhi Municipal
Corporation Act 1957 requiring the owners/builders/occupiers of the property
to show cause as to why the construction be not sealed. It is contended that a
detailed response dated 22.11.2009 to this notice to show cause was duly
submitted by the present petitioner. A grievance is made that without giving
any personal hearing to the petitioner and without consideration of any of the
contentions raised by 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. 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.
5. 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 an application to the Municipal Corporation of Delhi for permission
before erecting its towers.
6. The Municipal Corporation of Delhi does not appear to have considered
the contentions of the petitioner before proceeding in the matter with regard to
the sealing. 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.
Having issued the notice to show cause, the respondents were bound to have
considered the response of the owners/buyers/occupiers of the building
before proceeding to take action for sealing the towers which were installed by
the petitioner.
7. In issuing the notice, the respondents have accepted that they can
proceed in the matter only after issuance and service of the notices to show
cause.
8. 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
several years 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 tower 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.
9. This writ petition and application are disposed of in the above terms.
Dasti to parties.
GITA MITTAL,J
DECEMBER 23, 2009
rds
