Delhi High Court
Cellular Operators Association ... vs Municipal Corporation Of Delhi on 29 April, 2011
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 29th April, 2011
+ W.P.(C) 3267/2010
% CELLULAR OPERATORS ASSOCIATION OF
INDIA & ORS. .... Petitioners
Through: Mr. C.S. Vaidyanathan, Sr. Adv., Mr.
Sandeep Sethi, Sr. Adv. &
Mr. Maninder Singh Sr. Adv. with
Mr. Manjul Bajpai & Mr. Ashish
Yadav, Advocates
Versus
MUNICIPAL CORPORATION OF DELHI ... Respondent
Through: Mr. Parag P. Tripathi, ASG with Mr.
Amey Nargolkar &
Mrs. Maninder Acharya, Advocates
for MCD
AND
+ W.P.(C) 3423/2010
% IDEA CELLULAR LIMITED ..... Petitioner
Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.
Sonali Jaitley, Ms. Devika Chadha &
Mr. Varun Arora, Advocates
Versus
MCD AND ORS ... Respondents
Through: Mr. Parag P. Tripathi, ASG with
Mr. Amey Nargolkar & Mrs. Maninder
Acharya, Advocates for MCD
Mr. Sudhindra Tripathi for
Mr. Peeyoosh Kalra, Advocate for R-2
W.P.(C) 3267, 3423, 439/10, 13476, 13863, 14178, 14199/ 09, 2382, 4084/10 Page 1 of 68
AND
+ W.P.(C) 439/2010
% TOWER VISION INDIA PRIVATE LIMITED ..... Petitioner
Through: Mr. Sudhir K. Makkar with
Ms. Meenakshi Singh, Advocates
Versus
UNION OF INDIA AND ORS ..... Respondents
Through: Mr. Asit Tiwari, Advocate for R-1
Mr. Ashutosh Lohia, Adv. for NDMC
AND
+ W.P.(C) 13476/2009
% WIRELESS TT INFO SERVICES LTD ..... Petitioner
Through: Mr. Shailesh Kapoor &
Mr. Shahnawaz Ahmed Malik,
Advocates
Versus
MUNICIPAL CORPORATION OF
DELHI AND ORS .. Respondents
Through: Mr. Parag P. Tripathi, ASG with
Mr. Amey Nargolkar & Mrs. Maninder
Acharya, Advocates for MCD.
AND
W.P.(C) 3267, 3423, 439/10, 13476, 13863, 14178, 14199/ 09, 2382, 4084/10 Page 2 of 68
W.P.(C) 13863/2009
% WIRELESS TT INFO SERVICES LTD .... Petitioner
Through: Mr. Shailesh Kapoor &
Mr. Shahnawaz Ahmed Malik,
Advocates
Versus
MUNICIPAL CORPORATION OF DELHI
& ANR .......Respondents
Through: Mr. Parag P. Tripathi, ASG with
Mr. Amey Nargolkar & Mrs. Maninder
Acharya, Advocates for MCD.
AND
+ W.P.(C) 14178/2009
% WIRELESS TT INFO SERVICES LTD ..... Petitioner
Through: Mr. Shailesh Kapoor &
Mr. Shahnawaz Ahmed Malik,
Advocates
Versus
MUNICIPAL CORPORATION OF
DELHI AND ANR ..... Respondents
Through: None
AND
W.P.(C) 3267, 3423, 439/10, 13476, 13863, 14178, 14199/ 09, 2382, 4084/10 Page 3 of 68
+ W.P.(C) 14199/2009
% WIRELESS TT INFO SERVICES LTD ..... Petitioner
Through: Mr. Shailesh Kapoor &
Mr. Shahnawaz Ahmed Malik,
Advocates
Versus
MUNICIPAL CORPORATION OF
DELHI AND ANR ..... Respondents
Through: None
AND
W.P.(C) 2382/2010
% WIRELESS TT INFO SERVICES LTD. ..... Petitioner
Through: Mr. Shailesh Kapoor & Mr.
Shahnawaz Ahmed Malik,
Advocates
Versus
MUNICIPAL CORPORATION OF DELHI
& ANR. ..... Respondents
Through: None
AND
W.P.(C) 3267, 3423, 439/10, 13476, 13863, 14178, 14199/ 09, 2382, 4084/10 Page 4 of 68
+ W.P.(C) 4084/2010
% GTL INFRASTRUCTURE LTD. .... Petitioner
Through: Mr. Shailesh Kapoor &
Mr. Shahnawaz Ahmed Malik,
Advocates
Versus
MCD AND ORS. ..... Respondents
Through: Mr. Parag P. Tripathi, ASG with Mr.
Amey Nargolkar & Mrs. Maninder
Acharya, Advocates for MCD
Mr. Laliet Kumar, Advocate for UOI
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may Yes
be allowed to see the judgment?
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. These writ petitions impugn Office Order dated 20 th November,
2003, Circular dated 7 th February, 2008 and the Office Order dated
8th April, 2010 of the respondent MCD levying fee and stipulating other
conditions for grant of permission for installation of temporary structures /
towers on rooftops for providing Cellular Basic Mobile Phone services.
The Office Order dated 20th November, 2003 levied ―One Time Permission
Charges‖ of `1 lac per site/tower and in case the site/tower was shared with
other Cellular Phone Operator(s), an additional amount of `50,000/- per
sharing; it also prescribed certain other conditions to be satisfied.
However, the Lt. Governor, Delhi, in the light of certain reports that the
said towers are a health hazard, vide order dated 13th September, 2007
directed the Municipality to keep fresh applications for permission for
installation of towers in abeyance. Vide subsequent letter dated 10th
January, 2008 the Lt. Governor permitted consideration of fresh
applications for installation of towers on compliance of certain other
conditions. The same resulted in the Circular dated 7 th February, 2008
supra, impugned in these writ petitions. Vide Office Order dated 8 th April,
2010, and which was / is ―in supersession of all earlier orders on the
subject‖, MCD laid down fresh terms and conditions for grant of
permission for installation of the said towers and also required the existing
towers to satisfy/comply with the conditions so laid down. The fee was
also enhanced to `5 lacs per tower for a period of five years and `1 lac per
service provider in case of sharing.
2. The challenge by the petitioners is primarily to the fee prescribed for
grant of permission. However, certain other terms and conditions imposed
are also challenged. It is the contention of the petitioners that imposition
of fee and any other condition for installation of towers is beyond the
purview of the jurisdiction of MCD. The writ petitions were accompanied
with applications for interim relief.
3. Notice of the writ petitions and the applications for interim relief
was issued. Vide order dated 31st May, 2010, the operation of the Office
Order dated 8th April, 2010 was stayed till the decision of the writ
petitions subject to payment of `2 lacs out of `5 lacs per tower and
`50,000/- per service provider in case of sharing, in the name of Registrar
General of this Court by FDR and on furnishing undertaking that the
balance amount along with interest at the Bank rate payable on fixed
deposit shall be paid in the event of the writ petitions being dismissed. A
direction was also issued for constitution of a Committee of Technical and
Medical Experts to examine the question of health hazard, if any from the
said towers.
4. Intra Court Appeals were preferred by the petitioners as well as the
MCD against the said interim order. Vide interim order dated 4 th June,
2010 in the said Appeals, out of `2 lacs directed to be deposited in this
Court by way of FDR, `1 lac was directed to be paid directly to the MCD
and `1 lac by way of FDR in favour of the MCD. The constitution of the
Committee was also stayed. The petitioners preferred Special Leave
Petitions to the Supreme Court. Though the said SLPs were dismissed but
it was directed that till the disposal of the appeals, MCD shall not encash
the FDRs directed in its favour. The Division Bench of this Court vide
judgment dated 8th July, 2010 disposed of the appeals in terms of the order
dated 4th June, 2010 as modified by the Supreme Court and with a further
direction for expeditious decision of the writ petitions. The counsels for
the parties have been heard.
5. First, the pleadings of the petitioners (all counsels argued with
reference to pleadings in W.P.(C) No.3267/2010) may be noticed as
under:-
(i) That earlier the Central Government through the Department
of Telecommunications worked telegraph throughout India.
(ii) National Telecom Policy, 1994 was framed with the objective
of improving telecom services in the country including by
association of the private sector.
(iii) National Telecom Policy, 1999 also had as its objective, the
availability of affordable and effective communications for the
citizens including the provision of telecommunication services to all
areas which till then had remained uncovered, including the rural
areas.
(iv) As part of the aforesaid Policies, licences were issued by the
Central Government to the private players to provide telecom
services including Cellular Mobile services in India and the private
sector has invested more than `1,50,000 crores in setting up the
infrastructure and has surpassed the targets set for coverage and tele-
density and competitive tariffs, with the tariffs now prevailing being
lowest in the world.
(v) Such telecom services provided by the private players have
contributed tremendously to the socio economic development of
India and has brought the rural areas of the country, till now un-
connected to the rest of the country, into the mainstream.
(vi) The Cellular towers carry the Cellular signals and hand over
the calls from one Cell to another and are essential for providing the
Cellular Mobile services and for the Operators/licencees to achieve
the coverage parameters prescribed in the licences and to maintain
the quality of service also provided for in the telegraph licences
given to the Operators. It is thus the contention that the said towers
are the backbone of Cellular Mobile telephony and are critical for
providing seamless Cellular services. It is further pleaded that
therefore it is essential that Policies for installation of towers should
not act as impediment to the growth of Cellular Mobile services but
facilitate the growth of national telecom infrastructure.
(vii) Erection/installation of a tower at any location requires
clearance/approval from Standing Advisory Committee on
Frequency Allocation (SACFA) which also clears the height of the
tower from the point of civil aviation; numerous governmental
agencies are part of SACFA; recognizing the importance of towers,
SACFA also has simplified the procedure for granting
clearances/approvals/permissions.
(viii) Telegraph, telephone, wireless and other forms of
communications are Central subject covered by Entry 31 of List-I in
the Seventh Schedule to the Constitution of India and under Entry 96
of the said List, ―fees in respect of any of the matters‖ in List-I is the
domain of the Central Government and not of the State Government.
It is thus pleaded that telecommunication is a Central subject and
Central Government is exclusively empowered to legislate thereon.
(ix) The approvals/permissions for telegraph, under the Indian
Telegraph Act, 1885 (Telegraph Act) are to be granted by the
Central Government only.
(x) The Central Government has issued Notifications dated 24 th
May, 1999 and 4th February, 2002 empowering the private service
providers as the Telegraph Authority to carry out certain acts under
Part III of the Telegraph Act. It is pleaded that under the Telegraph
Act, the question for obtaining permission from Local Authority, as
the respondent MCD is, arises only when any telegraph equipment
as a tower, is required to be installed/erected on a property of the
Local Authority and not when the same is to be installed/erected on
property of any other person even if within the jurisdiction of the
said Local Authority. It is thus pleaded that MCD has no right or
locus to require any permission to be obtained from it for
installation/erection of the towers or demand any fee therefor. The
actions of MCD impugned in these writ petitions are pleaded to be
ultra vires the Delhi Municipal Corporation Act, 1957 (DMC Act),
unfair, unjust, unreasonable, ad hoc, arbitrary, without power and
jurisdiction, unconstitutional and violative of the petitioners' rights
under Articles 14, 19(1)(g) and 21 of the Constitution of India.
6. MCD was vide order dated 19 th May, 2010 directed to file an
affidavit explaining the rationale for enhancing the fee from earlier existing
‗One Time' (for 20 years) of `1 lac to `5 lacs for a period of 5 years. In
response thereto an affidavit dated 22nd May, 2010 was filed stating that
the amount charged was a regulatory fee and for which existence of quid
pro quo was not necessary. It was further stated that MCD under the DMC
Act was required to promote public safety, health, convenience, general
welfare, secure removal of dangerous buildings and places, take action
against the unauthorized constructions, remove nuisance etc. and as such it
was not necessary for it to explain as to for which service to the
licencees/operators, the said fee was being charged; that in the performance
of its functions, it had to ensure that the building on which the tower is
installed is structurally stable, the citizens are not exposed to harmful
radiations emanating from the said towers; that the requisite distance is
maintained; that the requisite precautions to protect the citizens from the
harmful effects of radiation are taken. It was further pleaded that all these
issues are intricately related to the issues of public health, public safety etc.
and which MCD is bound to maintain. It is pleaded that the enhancement
of fee was with the approval of the Standing Committee of the MCD and
the expenses of the MCD were mounting and thus it was justified in
enhancing the fee.
7. The petitioners have filed a rejoinder reiterating that MCD had no
jurisdiction in the matter and also controverting that for regulatory fee quid
pro quo was not necessary.
8. Mr. C.S. Vaidyanathan, senior counsel for the petitioners has
argued:-
(i) Cellular telephony is in the public interest inasmuch as it
avoids digging of roads.
(ii) There are approximately 11000 towers in Delhi of which 5500
are in MCD area and the financial impact on the licencees/operators
is thus of `250 crores.
(iii) That though MCD did not have the locus or jurisdiction to
charge the ‗One Time' fee of `1 lac also but the licencees/operators
paid the same to avoid litigation.
(iv) The affidavit of MCD, inspite of specific direction in the order
dated 19th May, 2010 has failed to justify the said fee.
(v) MCD has also been unable to cite any provision of law under
which it is empowered/entitled to levy the said fee.
(vi) Under Article 243P(e) of the Constitution of India, MCD is an
institution of self government and under Article 243X, MCD is
entitled to levy only such fee which it is authorized by the State
Legislature to collect.
(vii) That under Entry 5 read with Entry 66 of List-II also, the
power in any Municipality to levy any fee has to be conferred by the
Legislature and the Municipality thus is not empowered to levy such
fee.
(viii) The pith and substance relates to telecom and thus Entry 31 of
List-I would prevail and the subject matter would not be referable to
Entry 5 of List-II.
(ix) The licences granted to the petitioners are under the proviso to
Section 4 of the Telegraph Act; that under Section 3(1AA), the
towers are ―telegraph‖; that under Section 7, the power to make
rules with respect to the ―telegraph‖ is in the Central Government
only including for residuary matters under Section 7(2)(k).
(x) That the Operators/licencees as well as the tower owning
companies (who have also filed some of these writ petitions) have
been conferred powers of the Telegraph Authority.
(xi) Under Section 10 of the Telegraph Act, the
Operators/licencees as well as the tower owning companies have
been empowered to erect and install telegraph line which includes
towers upon any immovable property and require the sanction of the
Local Authority i.e. the Municipality only if desire to erect/install
any tower on any property of the said Local Authority.
(xii) It is thus contended that the entire field in relation to the said
towers is occupied by the Telegraph Act and even if MCD under any
of the provisions of the DMC Act were to be held entitled to impose
any condition, the field being occupied, MCD would not be so
entitled.
(xiii) Attention is invited to Section 15 of the Telegraph Act
providing for resolution of disputes between the Telegraph Authority
and the Local Authority by an Officer of the Central Government.
(xiv) It is contended that the Telegraph Act having made separate
provisions for installation of towers on properties of Local
Authorities and properties of other private persons within the
jurisdiction of Local Authority, MCD has no power to make any
provision with respect to the installation of towers on the properties
of private persons.
(xv) Per contra, the DMC Act has no provision regarding such
towers. Section 113 provides for the taxes which MCD is entitled to
levy and has no provision for levying of tax on such towers unless
refuge is taken under Section 113(1)(f) by treating the towers as
―building‖.
(xvi) But in which case also the tax has to be as provided in Section
149 and not as levied under the Circulars impugned in these writ
petitions.
(xvii) Attention is invited to Section 330A of the DMC Act making
the exercise of powers by the Commissioner, MCD under Chapter
XVI ―Building Regulations‖ of the DMC Act under the general
superintendence, direction and control of the Central Government.
It is contended that the power to make Bye-Laws under the DMC
Act has also been vested in the Central Government under Section
349A of the DMC Act.
(xviii) Though Section 430 of the DMC Act enables the MCD to
levy a fee for granting any permission but only if there is a provision
therefor under the Act or the Bye-Laws. It is contended that there is
no provision under any of the Bye-Laws of the MCD for levying the
impugned fee.
(xix) That though under Section 481 of the DMC Act, MCD is
entitled to make Bye-Laws but under Section 349A (supra), the said
power vis-à-vis Building Bye-Laws has been vested in the Central
Government.
(xx) Attention is invited to the impugned Orders/Circulars to show
that they do not refer to any statute or authority under which the
same have been issued.
(xxi) On enquiry, as to whether under the licences issued, any
amount as being levied by the MCD has been levied, the copies of
the licences were handed over. A perusal thereof does not show that
the same provide for any such levy or with respect to the clearance,
if any required of the Local Authority/Municipality.
(xxii) On enquiry, it was further informed that Municipalities are
not a part of SACFA.
(xxiii) On further enquiry as to in whom, the air waves vest, it was
argued that the same vest in Central Government and not in any
Local Authority.
(xxiv) Reliance is placed on:-
(a) Jindal Stainless Ltd.(2) Vs. State of Haryana
(2006) 7 SCC 241 (para 38) on difference between tax,
fee and a compensatory fee and the difference between
taxing and regulatory power.
(b) M. Chandru Vs. Member-Secretary, Chennai
Metropolitan Development Authority (2009) 4 SCC 72
(para 24) laying down that in the case of fee, the
principle of quid pro quo applies.
(c) Gupta Modern Breweries Vs. State of J&K
(2007) 6 SCC 317 laying down that taxes, excise duties
and fee must be authorized by Parliament and a tax can
only be imposed by way of legislation and cannot be
imposed by way of Bye-Laws and Rules.
(d) Ahmedabad Urban Development Authority Vs.
Sharadkumar Jayantikumar Pasawalla (1992) 3 SCC
285 laying down that the power of imposition of tax or
fee by delegatee must be very specific and there is no
scope of implied authority for imposition of such tax or
fee.
(e) Govt. of Andhra Pradesh Vs. Hindustan
Machine Tools Ltd. (1975) 2 SCC 274 also laying
down that there should be an element of quid pro quo in
the imposition of a fee.
(f) Judgment dated 22nd April, 2010 of a Division
Bench of the Gujarat High Court in Special Civil
Application No. 799/2009 titled Indus Towers Ltd. Vs.
State of Gujarat on the same facts as before this Court
and holding that the Municipality had no power to levy
any fee with respect to the towers.
9. Mr. Sandeep Sethi, Sr. Advocate also appearing for the petitioners
has supplemented the arguments by contending:-
(i) That under Section 99 of the DMC Act, Municipal Fund is to
comprise only of monies received under the provisions of the DMC
Act and thus MCD is not entitled to charge what the Act does not
permit it to charge.
(ii) Section 150 of the DMC Act also empowers the House of the
MCD to pass a Resolution only with respect to the taxes provided
under the Act and which would relate to the taxes provided under
Section 113 and not any other taxes.
(iii) Section 430 of the DMC Act is not a charging section and can
be attracted only when the Act or any Bye-Laws provide for grant of
any licence or permission; if there is no provision in the Act or in
any Bye-Laws for seeking any such permission, the claim cannot be
made under Section 430.
(iv) With reference to the Property Tax Bye-Laws, it is shown that
the towers have been made a unit for assessment under the ‗Unit
Area Method'. It is contended that without there being any Bye-
Laws requiring permission for installation/erection of the towers, no
such permission or fee therefor can be insisted upon.
(v) Attention is invited to:-
(a) Ramesh Chandra v. MCD AIR 2009 Delhi 58 holding
that in the absence of the power to frame Bye-Laws extending
to making Bye-Laws to recover fee for parking or levy any tax
in that regard, MCD to augment its finances could not have
levied such parking fee and quashing the same (I may
however add that the Intra Court Appeal against the said
judgment is pending before the Division Bench of this Court).
(b) Jaipur Golden Transport Company (P) Ltd. Vs. MCD
124 (2005) DLT 393 quashing the levy of fee on storage of
goods in transit for want of quid pro quo.
(c) Mohd. Yasin Vs. MCD ILR (1970) I Delhi 612
quashing the fee for slaughtering on the ground of the same
not answering the description of a fee.
(d) Puran Chand Vs. The Commissioner, MCD ILR
(1980) II Delhi 1321 quashing the storage fee levy for want of
quid pro quo.
(vi) That there is no provision in the DMC Act or in any of the
Bye-Laws requiring permission for installation/erection of the
towers.
(vii) That the other conditions imposed are also arbitrary; MCD
cannot insist that in the matter of installation of towers priority
should be given to certain buildings over others inasmuch as the
location of the towers is dependent upon the SACFA clearance; that
MCD cannot appropriate to itself right to demolish a building on
which the tower was installed without notice to the
licencee/operator, it will obstruct the entire service; that the same
will lead to a situation where in certain areas no towers can be
installed, severely affecting the telephony services in those areas;
that since the Central Government is satisfied regarding compliance
of health standards and has made provision therefor in the licences
issued, there is no need for satisfying the MCD with respect thereto.
(viii) That the increase in fee is of 2000% and without disclosing
any basis therefor.
10. Mr. Shailesh Kapoor, counsel for some of the petitioners has
contended:-
(i) That though MCD has failed to disclose that in exercise of
which powers, the Orders/Circulars impugned in these writ petitions
have been issued but from the notices issued of sealing of the
towers, it appears that the towers are being treated as a ―building‖.
However since the towers are ―telegraph‖ under the Telegraph Act,
they cannot be ―building‖. It is also contended that MCD has in the
past never treated the towers of the Department of
Telecommunication of the Government of India as ―building‖.
(ii) Without prejudice, it is contended that for anything to be
―building‖, it has to be habitable while a tower can never be
habitable. A tower is plant & machinery and is not a building. If the
tower is not a building, it cannot be within the jurisdiction of the
Municipality.
(iii) The only ground taken in the affidavit of the MCD is qua
health reasons; however List-III in the Seventh Schedule does not
have any Entry providing for taxation for public health.
(iv) Article 243W of the Constitution read with the Twelfth
Schedule does not show any mention of telegraph; therefore
municipalities are not concerned with telegraph; telegraph is a
special Entry and special overrides the general.
(v) Once telegraphs have been excluded from the said List, the
telegraph cannot be included in land and building so as to extend the
law making power of the State to telegraph.
(vi) That the health concerns due to emissions from the towers are
incidental to the telegraph law and cannot be made the subject
matter of the State list. Reference is made to:-
(a) New Manek Chowk Spinning & Weaving Mills Co.
Ltd. Vs. Municipal Corporation of the City of Ahmedabad
AIR 1967 SC 1801 to contend that plant & machinery even
though for use of the building, cannot be made subject matter
of the State list.
(b) Three volumes of judgments relied upon are handed
over but it is not deemed expedient to burden this judgment
with details thereof.
11. Mr. Sudhir K. Makkar, counsel for the petitioner in W.P.(C)
No.439/2010 while adopting the arguments of the other counsels has added
that the terms and conditions of the licences issued by the Central
Government deal with the subject of radiation hazard if any from the
towers and has also handed over a report of the Committee constituted on
health hazards to contend that there is no such health hazard.
12. The Additional Solicitor General (ASG) appearing for MCD has at
the outset cited M. Nagaraj Vs. Union of India (2006) 8 SCC 212 laying
down that Constitutional adjudication is like no other decision making;
there is a moral dimension to every major Constitutional case; the language
of the text is not necessarily a controlling factor; that our Constitution
works because of generalities and because of the good sense of the Judges
when interpreting it; it is that informed freedom of action of the Judges that
helps to preserve and protect our basic document of governance. He has
contended that the question as to the jurisdiction and locus of the MCD in
the matter of installation of the cellular towers is to be decided in the light
of the said principles.
13. The learned ASG has further contended:-
(i) That the doctrine of occupied field has no applicability qua
competing Entries in List-I and List-II of the Seventh Schedule--
the said doctrine is relevant only for List-III i.e. the Concurrent List.
(ii) Even if it is to apply, it is first to be seen whether the matter
falls in any of the Entries in List-II; that in a Federal Structure,
List-II has the greatest play and the question of looking into List-I
arises only if there is no Entry in List-II. It is for this reason only
that several Entries in List-I have been made subject to List-II. Thus
List-II is to be seen first.
(iii) The judgment of the Apex Court in Jindal Stainless Ltd.
(supra) is not to be read as a statute--that case was concerned with
compensatory tax and it was in that context that the observations
relied upon by the petitioners came to be made.
(iv) Reliance is also placed on:-
(a) State of Rajasthan Vs. Vatan Medical & General Store
(2001) 4 SCC 642 laying down that if an enactment is within
the four corners of the Entries in List-II, no Central law,
whether made with reference to an Entry in List-I or with
reference to an Entry in List-III can affect the validity of such
State enactment and that the argument of occupied field is
totally out of place in such a context.
(b) South Indian Film Chamber of Commerce, Madras Vs.
Entertaining Enterprises, Madras (1995) 2 SCC 462 laying
down that once the subject of regulation is found within the
pith and substance of the concerned legislature's competence,
it cannot be said that requiring a person to obtain a licence for
doing the business concerned, is not within the competence of
the legislature. It is contended that it is List-I which has the
residuary powers.
(c) ITC Ltd. Vs. Agricultural Produce Market Committee
(2002) 9 SCC 232 (paras 59 to 61) also in support of the
contention of List-II having precedence.
(d) State of A.P. Vs. McDowell & Co. (1996) 3 SCC 709
(para 38) also in support of the same proposition.
(v) Attention is invited to Entries 5 & 6 in List-II regarding local
self government and providing fee therefor. It is contended that
local self government includes Building Bye-Laws etc.
(vi) Attention is invited to State of Rajasthan Vs. G. Chawla AIR
1959 SC 544 where the Ajmer (Sound Amplifiers Control) Act,
1952 was impugned on the ground of being in excess of the powers
conferred on the State Legislature. The said Act inter alia
prohibited use of any sound amplifier, save with the permission of
the prescribed authority. The challenge to the Act was on the
ground that the amplifier was a telegraph and no legislation with
respect thereto could be made by the State Government. The Apex
Court held that though the amplifier was an instrument of
broadcasting and communication and thus fell within Entry 31 of the
Union List but the control and use of such apparatus though
legitimately owned and possessed, to the detriment of tranquility,
health and comfort of others was distinct from its manufacture or
licencing. It was held that the power to legislate in relation to public
health included the power to regulate the use of amplifiers to the
detriment of tranquility of others. The legislation was therefore
upheld.
(vii) That the fee imposed under the Orders/Circulars impugned in
these writ petitions is a regulatory fee and is not required to satisfy
the criterion of quid pro quo. Reference is further made to:-
(a) State of West Bengal Vs. Kesoram Industries Ltd. AIR
2005 SC 1646 on the proposition that levy/impost which is
regulatory, is a sovereign or Police function.
(b) BSE Brokers' Forum, Bombay Vs. SEBI (2001) 3
SCC 482 observing that there has been a sea change in
judicial thinking as to the difference between a tax and a fee
and that even if the State is found to have ultimately benefited
indirectly from a levy, the same is of no consequence and that
there is no generic difference between a tax and fee and both
are compulsory exactions of money by public authorities.
(viii) With respect to the judgment in Jindal Stainless Ltd. though
it is informed that the matter has been referred to a larger Bench but
it is reiterated that observations therein are only with respect to
compensatory tax and not with reference to regulatory fee. It is also
contended that Jindal Stainless Ltd. is not relevant to the present
controversy.
(ix) Attention is also invited to State of Punjab Vs. Devans
Modern Breweries Ltd. (2004) 11 SCC 26 (paras 118 to 120)
reiterating the well established legal statutory and operational
distinction demarcating and dealing separately with several distinct
activities in relation to liquor, namely, manufacture, possession, sale,
transport, import, export, consumption etc. and holding that statutory
provisions qua each of the said functions must be interpreted and
read broadly and not narrowly.
(x) It is contended that under Section 2(3) of the DMC Act
―building‖ includes a metal structure and thus has nothing to do with
habitability and the DMC Act has to be read robustly.
(xi) It is further argued that at the time of enactment in the year
1957 of the DMC Act, telecom was at a nascent stage, has to be
interpreted in the present context.
(xii) It is argued that just like higher levies are imposed on liquor
to cut down its consumption, the fee on the towers have also been
enhanced to encourage reduction in the number of towers by use of
more sophisticated instruments by the Operators/licencees.
(xiii) During the course of hearing, approval of the House of the
MCD to the order of the Commissioner enhancing the licence fee
was handed over.
(xiv) It is argued that the petitioners having earlier paid the fee of
`1 lac without any demur are estopped from now challenging the
power of MCD.
(xv) It is argued that it cannot be denied that the towers do create
an electromagnetic field which can be harmful.
14. The counsel for the Union of India has contended that the MCD
needs to justify the fee demanded with respect to the towers. The counsel
for the Union of India has also handed over the Circular dated 8 th April,
2010 of the Department of Telecommunication prescribing the radiation
norms to be adhered to with respect to the towers and the penalty for
exceeding the same.
15. Mr. Sandeep Sethi, senior counsel for the petitioners in rejoinder has
contended that if MCD is treating the towers as building then it cannot
charge fee therefor at rates more than that being charged for sanctioning
construction of buildings and which is informed to be at the rate of `1 per
sq. ft. of the covered area. It is contended that on the said basis, the fee
would be much less than `5 lacs demanded and would be a ‗One Time' fee
only and not recurring fee as imposed in case of towers. It is contended
that the Office Orders and Circulars also do not treat the towers as a
building and the said argument has been raised by the learned ASG as an
afterthought. It is contended that there are no residuary functions of the
MCD other than those prescribed in Sections 41 to 43 under Chapter III of
the DMC Act and there is no allegation of the installation of towers being
per se offensive as is the case with liquor and cigarettes. It is contended
that telecommunications has in Delhi Science Forum Vs. Union of India
(1996) 2 SCC 405 been recognized as of public importance. Attention is
also invited to the opinion obtained by the MCD itself from World Health
Organization (WHO) regarding the health hazard if any from the use of
mobiles/telephones. It is contended that though MCD has sought to justify
the levy as regulatory but has not disclosed as to what regulatory functions
it is going to perform as was the case in BSE Brokers' Forum (supra)
case. It is further argued that in the judgments cited by the learned ASG
either there was a specific power to levy fee concerned or the manner in
which the fee was used was shown; on the contrary, MCD inspite of
having collected fee for towers for the last over 10 years has been unable to
show as to how the same has been spent. It is contended that the case is
otherwise fully covered by the judgments in Ramesh Chandra, Puran
Chand and Mohd. Yasin (supra).
16. Mr. C.S. Vaidyanathan, Sr. Advocate in rejoinder has contended
that:-
(i) Section 243 of the DMC Act requires the legislature to
authorize the Municipality to levy tax and has not left it to the
discretion of the Municipality.
(ii) Section 149 of the DMC Act (as it stood before 17 th
December, 2004) r/w Sixth Schedule thereto nowhere mentions a
Cellular tower, for MCD to be authorized to demand and collect any
fee or tax for sanctioning the installation/erection of a Cellular
tower; same is the position after amendment.
(iii) There is thus no question of MCD being authorized to make a
demand with respect to towers as with respect to a building.
(iv) Wherever the legislature deemed it appropriate to empower
MCD to grant licence or give permission, provision therefor has
been made. Attention in this regard is invited to Sections 407, 416,
420, 425 & 422 of the DMC Act. However no provision whatsoever
has been made for the towers in question.
(v) The Standing Committee of the MCD is no where in picture
in the matter of Building Bye-Laws, owing to Section 349A of the
DMC Act.
(vi) The Resolution of the House of the MCD approving the order
of the Commissioner also does not treat the levy as a regulatory fee;
there is no application of mind; that the argument of regulatory fee
has been taken for the first time during the course of hearing.
(vii) That if the towers are a health hazard there is no question of
increasing the fee and other steps with respect thereto need to be
taken.
(viii) That it is only law which can justify any compulsory
extraction; more towers are needed for improving the standards of
connectivity as required under the licences - merely because a high
fee is charged, would not lead to fewer towers.
(ix) The judgment in Mohinder Singh Gill Vs. Chief Election
Commissioner (1978) 1 SCC 405 is cited to contend that the
impugned order cannot be justified for reasons not considered at the
time of making of the order.
(x) The argument of the learned ASG that the doctrine of
occupied field is applicable for interpretation of List III only is
controverted. It is argued that the same has been applied at times to
interpretation of Lists I & II also.
(xi) Qua health also the appropriate authority is the Union of India
and cannot be the Municipality.
(xii) Example of Environmental Laws is cited to contend that the
powers with respect thereto are also with the Central Government
and not with the Municipality.
(xiii) Reliance is placed on In Re Noise Pollution (V) (2005) 5
SCC 733 to contend that the old judgment in State of Rajasthan Vs.
G. Chawla (supra) is no longer good law. It is argued that once the
Telegraph Act occupies the field, Municipality has no role.
Attention in this regard is also invited to State of M.P. v. Kedia
Leather & Liquor Ltd. (2002) 10 SCC 382.
(xiv) Attention is invited to A.P. Bankers & Pawn Brokers'
Association v. Municipal Corporation of Hyderabad (2001) 3 SCC
646 where the powers of the Municipality were held to be restricted
owing to other legislations dealing with the subject.
(xv) That the entire regulation with respect to the telegraph is with
the Central Government, MCD has no role.
(xvi) That a special Act would override a general Act; here the
Telegraph Act is the special Act.
17. It is contended that the Department of Telecommunications is
already taking care of the apprehensions of health hazards from the use of
cellular phones and equipment therefor and MCD is not required to
regulate the same.
18. Mr. Shailesh Kapoor, Advocate in rejoinder has controverted the
contentions of the learned ASG of List II having precedence. It is
contended that the entry relating to Telegraph is a special entry and the
entire power in relation to telegraph is with the Parliament. Reliance is
placed on Welfare Association, A.R.P. Maharashtra v. Ranjit P. Gohil
(2003) 9 SCC 358 para 28 to contend that the fountain source of legislative
power is not Seventh Schedule but Article 246 and the function of the
three lists in the Seventh Schedule is merely to demarcate legislative fields
between Parliament and States and not to confer any legislative power; it
was further held that express words employed in an entry would
necessarily include incidental and ancillary matters so as to make the
legislation effective. It is contended that there are no known health hazards
from towers and similar radiations are emanated from Radios, Televisions
and other similar equipment. It is contended that the radiation emanating
from the Cell phone are much more than those from the tower. It is rather
submitted that increasing the number of towers would reduce the hazards.
It is contended that the DMC Act treats bridges and structures on the
streets separately from buildings and if those structures are not building,
the towers cannot also be treated as building.
19. Mr. Sudhir K. Makkar, Advocate in rejoinder has referred to
Calcutta Municipal Corporation v. Shrey Mercantile Pvt. Ltd. (2005) 4
SCC 245 to contend that there is no ancillary power of taxation.
20. The ASG was given a further opportunity owing to new judgments
having been cited in rejoinder. He has contended that the said judgments
have no applicability to the matter in controversy.
21. The counsel for the NDMC which is also a respondent in W.P.(C)
No.439/2010 has invited attention to Section 387 of the New Delhi
Municipal Council Act, 1994 which empowers the Central Government to
make any regulation which under the Act the NDMC is entitled to make. It
is further contended that NDMC has the power to make the Building Bye-
Laws. Attention is also invited to the charges fixed by the NDMC with
respect to the towers. Attention is also invited to Article 239 AA (3)(a)
whereunder the Legislative Assembly has been empowered to make laws
for the National Capital Territory of Delhi in some matters. He has also
handed over photocopies of reports of effect of Cellular telephony on
health.
22. I am unable to accept the proposition as sought to be urged, that
owing to the towers aforesaid being ―telegraph‖ within the meaning of the
Telegraph Act, and being a Central subject, the State or other authorities
are to adopt a hands off approach with respect thereto. A ―thing‖ or an
―activity‖ may and necessarily has several facets. Merely because a
particular law regulates one facet, does not and cannot mean that other
laws, even if concerning/applicable to other facets would not apply.
Article 246(1) r/w Entry 31 in List I of the Seventh Schedule confers
exclusive power in the Centre to make laws with respect to Post &
Telegraph; what has to be seen is whether the Circulars / Orders impugned
in these petitions are seeking to affect the arena of post and telegraph; if
they are, notwithstanding any other arguments, they cannot; however if
they are not affecting the functioning as post and telegraph, but controlling
/ regulating some other facet, then need will arise to go into the power of
MCD to do so, but the same cannot be quashed for the reason of impinging
on the centre's powers. Section 4 of the Telegraph Act also provides for
exclusive privilege of Central Government for granting licence for
establishing, maintaining and working telegraphs and does not as in fact it
cannot, bar applicability of any other law qua any other facet of
establishment, maintenance or working of telegraphs.
23. What has to be first seen is whether the impugned Circulars/Orders
are in any way seeking to do what is in the exclusive domain of Centre.
24. A reading of the Office Order dated 8th April, 2010 now in vogue
and in supersession of other two Circular/Order impugned in this petition
shows that MCD is -
i. requiring its permission to be taken for installation of Towers.
ii. for granting such permission, requiring (a) prior permission of
Airports Authority of India, DUAC, Chief Fire Officer, ASI and
DMRC (wherever applicable), (b) Structural Stability Certificate
from specified authorities.
iii. making provision with respect to towers on unauthorized
buildings.
iv. insisting upon sharing of towers.
v. laying down priority to be followed in selection of buildings for
installation of towers.
vi. prescribing fees.
vii. providing for damages owing to such towers and requiring
Undertaking qua health hazards.
viii. making provisions with respect to generators accompanying the
towers, including as to noise emanating therefrom.
ix. laying down criteria with respect to buildings on which towers
shall be permitted.
x. providing for warnings to be displayed.
25. Not finding the Telegraph Act to be providing for any of the above,
it was enquired from counsels for the petitioners whether the licences
issued, deal with any of the above. Though copies of licences were handed
over, they do not show that any of the above is in conflict with the powers
exercised by the Centre or terms and conditions thereof. Nor do I find any
of the aforesaid to, MCD appropriating to itself any power qua
establishment, maintenance or working of telegraphs.
26. I had during the hearing repeatedly asked from the counsels as to
who is responsible for maintaining the skyline of the city of Delhi. It was
asked, whether the same would not fall in municipal governance of Delhi
and for which purpose the DMC Act was enacted. I refuse to hold or
accept that there is no occasion for maintaining or regulating the skyline of
a city. Example was also cited during the hearing, of the tower recently
erected by the Delhi Police as a Memorial in the heart of Delhi and with
respect whereto hue and cry was raised and which compelled the Delhi
Police to dismantle the same. The objection to the said tower was also on
the ground of the same spoiling the skyline of the Lutyens Bungalow
Zone. The towers in question in the present case are the same as the said
Delhi Police tower which under public pressure had to be dismantled.
27. None of the counsels for the petitioners has shown or cited any
provision whereunder the Department of Telecommunications or any other
Central Government authority which has granted the telecom licences is
required to satisfy itself as to whether the erection/installation of a tower at
a particular location is feasible or not. SACFA is only concerned with
location from the point of view of adjusting various radio frequencies.
Otherwise none of the myriad authorities which are members of SACFA
are required to look into the matter from the point of view of the skyline.
28. Municipal governance today also extends to ensure heritage of the
city and for maintaining the aesthetics. Restrictions on maximum height of
buildings in various areas/localities are also imposed inter alia for the
purpose of maintaining skyline of the city. If anyone is permitted to
build/erect any building anywhere, it would lead to slum like situations and
the city would soon be reduced to unlivable standards. The law and the
Courts cannot turn a blind eye thereto. Neither is the Telegraph Authority
competent in this regard nor has any other authority concerned with grant
of licence to the petitioner been shown to have applied itself to the said
factors. Rather the safety aspect has also not been ensured. Once SACFA
has given the clearance for a site, it is not concerned whether the tower
erected/installed at the site complies with safety standards or not.
29. I have wondered as to which authority would be expected to regulate
the same. The answer cannot be any other except the municipal authority.
30. The Division Bench of this Court as far back as in United Taxi
Operators (Urban) Thrift & Credit Society Ltd. Vs. MCD 2 (1996) DLT
281 held that the object of the DMC Act is to regulate the matters of public
convenience and compel public to conform to certain rules, the non-
compliance whereof will result in dislocation of normal comforts which
such statutes are intended to assure. It was held that the sense of orderly
living in cities and the aesthetic sense of modern man will be shocked if
such like structures (in that case underground petrol tank) are allowed to
come up unregulated. It was further held that such statutes as the DMC
Act must be construed in such a manner as will best effectuate its purpose
and protect its intended beneficiaries; one has to see whether or not a
particular structure was intended to be covered by the statute.
31. It is all very well for the petitioners to argue that there is no mention
of such Cellular towers in the DMC Act or in the Bye-Laws. The learned
ASG is correct in contending that at the time when the said laws were
enacted, such towers could not even have been in the realm of the
lawmakers. The courts cannot be silent spectators in such a situation and
allow an activity unabated for which control is deemed necessary. The
Supreme Court in State of Maharashtra Vs. Dr. Praful B. Desai AIR
2003 SC 2053 on the principle of interpretation of an ongoing statute (in
that case Cr.P.C.) relied on the commentary titled ―Statutory
Interpretation‖, 2nd Edition of Francis Bennion laying down:
"It is presumed the Parliament intends the Court to
apply to an ongoing Act a construction that
continuously updates its wordings to allow for changes
since the Act was initially framed. While it remains law,
it has to be treated as always speaking. This means that
in its application on any day, the language of the Act
though necessarily embedded in its own time, is
nevertheless to be construed in accordance with the
need to treat it as a current law.
In construing an ongoing Act, the interpreter is to
presume that Parliament intended the Act to be applied
at any future time in such a way as to give effect to the
original intention. Accordingly, the interpreter is to
make allowances for any relevant changes that have
occurred since the Act's passing, in law, in social
conditions, technology, the meaning of words and other
matters. .....That today's construction involves the
supposition that Parliament was catering long ago for
a state of affairs that did not then exist is no argument
against that construction. Parliament, in the wording of
an enactment, is expected to anticipate temporal
developments. The drafter will foresee the future and
allow for it in the wording.
An enactment of former days is thus to be read today, in
the light of dynamic processing received over the years,
with such modification of the current meaning of its
language as will now give effect to the original
legislative intention. The reality and effect of dynamic
processing provides the gradual adjustment. It is
constituted by judicial interpretation, year in and year
out. It also comprises processing by executive
officials."
32. Similarly in Suresh Jindal Vs. BSES Rajdhani Power Limited AIR
2008 SC 281, it was held that creative interpretation of the provisions of
the statute demands that with the advance in science and technology, the
Court should read the provisions of a statute in such a manner so as to give
effect thereto.
33. There is no question that we now live in an era of steadily
accelerating technological progress and advances. The proliferation of
wireless devices and facilities necessitates a giant infrastructure comprising
of antennae, power sources, towers, cabling and wiring, and all the
ancillary equipment needed to transmit and receive signals. All this
equipment has to be located somewhere, on someone's property, in
someone's view, occluding someone's light, and, perhaps, generating a
great deal of radio frequency emissions. The problem which has arisen
here is not unique. The United States Circuit Court of Appeals for the
Ninth Circuit in MetroPCS, Inc. v. City and County of San Francisco 400
F.3d 715 (9th Cir. 2005) also noticed the struggle in this context between
the federal regulatory power and local administrative prerogative and the
need to strike the balance of power between the national and the local. This
issue came to a head in a stunning Ninth Circuit Court of Appeals decision
handed down in January of 2006, Sprint PCS Assets, L.L.C. v. City of La
Canada Flintridge 435 F.3d 993 (9th Cir. 2006). The Los Angeles Times
first reported on the case on January 18, 2006, in their Business Section, on
its front page:
―Cell phone towers may be ugly, but that's not reason
enough for cities to block their construction, a federal
appeals court ruled Tuesday. In the nation's first
appellate ruling on an increasing contentious local issue,
the US Ninth Circuit Court of Appeals struck down parts
of a La Canada Flintridge law that had allowed the city
to withhold building permits on public rights of way for
purely aesthetic reasons.‖
34. Similar Ordinances in cities across California and the United States
have slowed efforts by wireless companies to offer better coverage and
advanced services. The municipal officials in the US also countered
contending that they had a responsibility to protect their residences from
a proliferation of unsightly infrastructure. Unlike telephone or cable lines,
cell phone transmitters cannot be buried underground and need to be high
enough to relay signals without obstruction. On the other hand, the same
significantly damage the existing character of the neighbourhood and
result in a negative aesthetic impact on the Right of Way.
35. The Telecommunications Act, 1996 of the United States of America
recognizes the right of the City / Municipality to deny such installation for
substantial evidence; while preserving the local authority's power to
regulate the placement of Cellular towers, it places some federal
restrictions on the same and also provides a dispute resolution mechanism.
Such restrictions have prompted some of the providers to dress up their
gear as giant trees or hide them to pass visual muster. Unfortunately, our
country has not made any law in this regard and which is the need of the
hour. The Union of India instead of rising to the situation has decided to
adopt a hands-off attitude. Unfortunately, the Telecom Policy here while
permitting private players in the telecommunication sector failed to make
a provision therefor.
36. The Courts in US have acknowledged that community and
neighbourhood visual concerns should be considered paramount in the
consideration of and selection of sites. Provisions have been made for
careful design siting, landscape screening and innovative camouflaging
technique and for maximizing the the use of existing and new support
structures so as to minimize the need to construct newer, additional
facilities. Attempts have been made to preserve the architectural integrity
of designated areas within the city and the scenic quality of protected
national habitats. The growth of Cellular technology has thus not been
allowed to outpace the Zoning Codes which have been amended suitably.
Alas! It has not happened over here. Unless the legislature reacts
immediately to resolve the problem, the pace of construction of the
towers may outstrip the Government's ability to react to and resolve the
problem. Once a Cell tower is built, and a lease is entered into, it is
unlikely that it will be demolished or removed. If the legislative system
cannot catch up, the issue will become moot.
37. The United States Circuit Court of Appeals for the Ninth Circuit in
Sprint Telephony PCS, L.P. v. County of San Diego 543 F.3d 571 (9th
Cir. 2008) has also held that the local government can regulate wireless
towers and poles as long as they do not actually prohibit wireless service
within their borders or create a significant gap in service coverage. Thus,
the Cities and Counties were given the ability to even-handedly control the
environment in their neighbourhood.
38. The next question to be determined is as to the nature of the said
towers i.e. whether they are merely apparatus/equipment or their
installations and functioning falls in the domain of the MCD. The ASG
has sought to justify installation and operation of the said towers as an
activity which can be licenced by the MCD. However MCD can insist
upon such licence/permission only if empowered in this regard. The DMC
Act does not permit the MCD to require licence for any and everything
done within its jurisdiction. The activities/purposes which cannot be
carried out without licence are specified in Section 417 of the Act. No
specific reference to any provision of the MCD Act prohibiting installation
of an antenna without a licence has been pointed out, nor is found.
Section 417 is also not omnibus. Licence is required for use of premises
for the purposes specified in Part-I of the Eleventh Schedule to the DMC
Act or for any purpose which in the opinion of the Commissioner is/are
dangerous to life, health and property or likely to create nuisance or for
keeping horses, cattle or any animals or birds or for storing articles
specified in Part-II of the Eleventh Schedule. I have gone through the
Eleventh Schedule carefully; even by extending any entry therein, it is not
possible to include such installation of towers therein. As far as requiring
licence for the towers for the reason of the Commissioner forming an
opinion of the same being dangerous to life, health or property or likely to
create nuisance is concerned, neither is there any opinion in this regard nor
can it be at this stage said that such installation will fall in the said
category. The reliance on Section 430 is misconceived without showing
that licence or written permission is needed for such licence. I am thus
unable to hold that the Commissioner under the Act is empowered to
prevent installation of such towers without a licence.
39. Though merit is found in the contention of the ASG that at the time
of promulgation of the DMC Act such towers could never have been in
contemplation and the Courts must interpret the laws to suit the need of the
times but the Courts can for this reason not take over the legislative
function. A perusal of Section 417 and particularly Eleventh Schedule
shows that the purport was to empower the municipality to regulate
anything or any activity likely to affect others. Installation of a tower
certainly affects the character of the neighbourhood and results in a
negative aesthetic impact. Going by the spirit of the DMC Act, the towers
would be required to be licenced particularly when no provision with
respect thereto has been made therefor under the Building Regulations
also; however, the Legislature having not left any window for such
interpretation, this Court, inspite of dicta noticed above in Dr. Praful B
Desai and Suresh Jindal (supra), can but make a strong suggestion for
amendment to the DMC Act for permitting municipalities to regulate the
installation and functioning of such towers.
40. I am however firmly of the view that the said towers definitely fall
within the definition of ―building‖ which includes within its ambit a
structure of metal or other materials. What else is a tower but a metallic
structure. The contention of the senior counsels for the petitioners that a
building has to be necessarily a house/habitable cannot be accepted.
41. Lord Parker CJ in Cheshire County Council v. Woodward [1962] 1
All ER 517 said
―...it seems to me that when the Act defines a building as
including ‗any structure or erection and any part of a
building so defined', the Act is referring to any structure or
erection which can be said to form part of the realty, and to
change the physical character of the land.‖
42. The Queen's Bench Division as far back as in The Uckfield Rural
District Council v. The Crowborough District Water Company [1899] 2
Q.B. 664 was faced with the question whether a water tower could be
built without submitting plans and sections to the District Council as
required to be submitted for construction of a building. It was held that the
water tower being a permanent erection was a building and the bye-laws
made by the District Council applied to it.
43. I fail to see as to why the said tower cannot be a ―building‖ within
the meaning of Section 2(3) of the DMC Act. The lawmakers then also
were careful in including within the meaning of ―building‖, a structure
whether of masonry, brick, wood, metal or other material. The Full Bench
of this Court in MCD v. Pradeep Oil Mills P. Ltd AIR 2010 Delhi 119 has
held underground storage tank which can by no stretch of imagination be
said to be habitable as building, and upheld the levy of property tax
thereon. The same was the position in United Taxi Operators (supra)
where the contention as raised before this Court that to be a ―building‖, it
must be habitable was expressly negated. Putting together sheets of steel
to install an underground cellar was held to be a ―building‖. I may notice
that the Apex Court in judgment reported in MANU/SC/0414/2011 has
upheld the Full Bench judgment of this Court in Pradeep Oil Mills P. Ltd.
(supra).
44. Once it is held that the tower will fall within the definition of
building, the regulation thereof will fall within the jurisdiction of MCD
and MCD would be entitled to not only prohibit installation/erection of
such towers without its permission.
45. However, that is not the end of the matter. The towers even though
a building and as such requiring sanction/approval before construction but
neither in the DMC Act nor in the Building Bye-Laws is there any
provision with respect thereto. The question would thus arise that on what
parameters, future requests for installation of towers are to be allowed or
disallowed. There is a danger of MCD sitting over all applications in this
regard.
46. Once, it is held that MCD is not empowered to insist upon a licence
for installation of the towers, the question of MCD levying any fee therefor
does not arise. There is thus no justification whatsoever for the fee so
demanded by the MCD and the same is set aside/quashed. MCD can
charge only the fee for processing the plan for installation of a tower as a
building processing fee and charge a building fee as provided therein.
Need is also felt for the Act and the Building Bye Laws to be amended to
also provide for the fee, tax etc. on buildings of the said nature which do
not appear to have been in contemplation at the time of fixing the rates
therefor.
47. No merit is found in the contention of the petitioners of the MCD
being not entitled to intervene for the reason of the petitioners having been
conferred the powers of the Telegraph Authority as contended. A perusal
of the Notification dated 24 th May, 1999 in this regard shows that the
licencees have only been permitted to seek way-leave from any person
including any public authority, State Government etc. to place and
maintain posts etc; in fact the same is also subject to the licencees
complying with any other law for the time being in force. The said
Notification also thus recognizes the applicability of other laws in the
licencees taking steps for seeking way-leave and which other laws would
include the municipal laws. There is nothing in Section 10 of the
Telegraph Act empowering the Telegraph Authority to place and maintain
telegraph upon any immovable property, to suggest that in so placing the
telegraph over any immovable property, the other laws concerned with
placing such telegraphs are not required to be complied with. There is no
non obstante clause in Section 10.
48. I am also unable to find that allowing the municipality to ensure that
the towers comply with safety, aesthetic and other similar aspects amounts
to the municipality exercising powers under Entry 31 of List I of the
Seventh Schedule to the Constitution. The municipality, as long as it does
not prohibit wireless services within its jurisdiction, is entitled to regulate
it.
49. Besides in Gujarat, I find a similar question to have arisen before
the High Court of Bombay also in Bharti Tele-Ventures Limited Vs. State
of Maharashtra (2007) 109 BomLR 585. The challenge was to the
Notification under the Maharashtra Regional and Town Planning Act,
1966 authorizing and/or requiring the various Municipal Corporations in
the State to charge retrospectively premium at the rate of land value for
the area occupied by the cabin, the tower height premium etc. for granting
permission for installation of semi-permanent structures, cabins on top of
the buildings for housing Base Station / Telephone Connector to set up
Cellular Mobile Telecommunication system in pursuance to the licences
granted under the Telegraph Act. The contention of the petitioner therein
also was that the Telegraph Act did not require permission of the
Municipal Corporation for erecting such systems and the municipality had
no power to levy any premium for grant of permissions. The Division
Bench of the Bombay High Court upon perusal of the Notification dated
24th May, 1999 referred to hereinabove also held that the same no where
delegates the powers of the Telegraph Authority under the Telegraph Act
to the licencees; on the contrary, the delgation was limited to the extent of
seeking way-leave from private owners to place and maintain telephone
lines and to enter such properties for that purpose. It was further held that
the said Notification clearly required the licencee to comply with the
provisions not only of the Telegraph Act, but also of any other law for the
time being in force. The Division Bench further held such installations to
be a building. The definition of ―building‖ under the Maharashtra Act
(Bombay Provincial Municipal Corporations Act, 1949) is found to be the
same as in the Delhi Act.
50. Coming now to the other conditions imposed by the respondent
MCD, till the Building Regulations are suitably amended, need is felt to
allow such of the conditions contained therein which pertain to the matter
of buildings. Thus nothing wrong can be found in:-
(i) Avoiding installation in narrow lanes.
(ii) Requiring a warning sign to be placed.
(iii) Providing for training the operating and maintenance
personnel.
(iv) Requirement of a Structural Safety Certificate.
(v) Prohibiting installations on heritage buildings.
(vi) Prohibiting installation on unauthorized buildings.
(vii) Requiring the antenna and D.G. Sets to conform to the
prescribed standards.
51. However, the following conditions cannot be sustained and neither
have anything to do with Building Regulations/Safety norms, nor is the
MCD entitled to insist on installations on its own buildings. Similarly,
once the NOC of the Residents Welfare Association (RWA) is not required
for raising a building, no such NOC can be insisted upon for installation of
an antenna. Thus the following conditions are struck down:-
(i) Clause 5 regarding ―Priority of selection of site‖.
(ii) Clause 6 regarding ―Fees‖.
52. After the closure of hearing, applications further seeking interim
relief/directions were filed. It was the contention of the senior counsels of
the petitioners that MCD was not de-sealing the towers in terms of the
interim orders. Per contra, it was the contention of the counsel for the
respondent MCD that the petitioners were not complying with the
conditions under the old Policy and with respect whereto there was no
stay. Need is not now felt to deal with the same inasmuch the said
applications are to be now dealt with in accordance with this judgment.
53. The writ petitions are accordingly partly allowed as under:-
A. It is held that the temporary structures / towers on rooftops for
providing Cellular Basic Mobile Phone services are ―building‖
within the meaning of the Municipal Acts and hence cannot be
erected / installed without obtaining the permission of the
Municipality.
B. In the grant of the said permission, all provisions of the
Municipal Act and the Bye-Laws apply.
C. Strong recommendation is made to the Central Government
and the Municipalities to make appropriate changes in the Building
Bye-Laws to make specific provisions deemed necessary, of specific
application to such installations / structures / towers.
D. Recommendation is further made for making suitable changes
to the Telegraph Act, as noticed above in the Telecommunications
Act, 1996 of the United States of America with respect to the extent
of intervention by the State Government / Municipalities in the
matter of installation / erection of such equipment which fall within
the definition of ―telegraph‖.
E. Till the aforesaid is done, it is deemed expedient for this
Court to step in and as such the Office Order dated 8 th April, 2010 is
dealt with as under:-
(i) Clause 5 (providing for Priority of selection of site) and
Clause 6 (providing for Fee) are struck down as illegal
and beyond the competence of MCD.
(ii) The other Clauses of the Office Order insofar as they
are not inconsistent with the Building Bye-Laws to
continue to apply till Building Bye-Laws expressly
applicable to such installations / towers or amendments
as suggested to the Telegraph Act are promulgated.
The writ petitions are disposed of. No order as to costs.
RAJIV SAHAI ENDLAW
(JUDGE)
APRIL 29, 2011
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