TMI Blog2011 (4) TMI 1501X X X X Extracts X X X X X X X X Extracts X X X X ..... lation 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 8th 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Structur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trument 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired 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) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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 othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere 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 show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly 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 Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use/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. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ek 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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