• Telco putting up Towers in areas specifically not permitted

Civil court (Principal Munisiff Court, Mayiladuthurai) passed  order for permanent injunction in year 2008 not to erect AirTel mobile tower in a  particular case and in that area around 300 meters by discussing health hazard problems.  After some years a new Reliance mobile company is trying to install mobile tower in that area which was prohibited by the court for AirTel Tower by discussing the health hazards and the Judge took the case as a common health hazard problem and appreciated the awareness of the people of that area. For contempt petition filing, the new Reliance company can be included as respondent (ie third party - reliance company can be included as per that order) like the case of REM (ie whether the order may be treated as general since health hazards is mainly discussed and on that ground the order was passed. Whether the order passed for AirTel company is eligible for other companies also or not.  Because, many new companies may come and go but the health hazard problem is the main aim of the emission from the tower. So, each and every company a new suit has to be filed or the same can be used for filing contempt petition.  It is requested to kindly advice us properly in order to safeguard the common problem and to protect the people health and also kindly mail the reference case laws for contempt petition by including the new Reliance company as a new respondent who was not the party in the old case in which AirTel was a party. Kindly reply and help the people by considering the health hazard protection and to stop the erection of new mobile company towers.
S.Vijayakumar, Advisor, Punganoor Consumer Council (Regd), Mayiladuthurai-609001, Tamil Nadu
Email: baluelit@gmail.com
Asked 5 years ago in Civil Law from Mayiladuthurai, Tamil Nadu

a. file writ petition of mandamus against such mobile companies in high court or supreme court of india so that high court or supreme court issue necessary directions to said companies not to install mobile towers in specifically prohibited areas.

b. you can also file PIL against such mobile companies in high court or supreme court of india so that high court or supreme court issue necessary directions to said companies not to install mobile towers in specifically prohibited areas as such mobile towers cause serious health hazards to public.

R.K. Nanda
Advocate, New Delhi
457 Answers

4.7 on 5.0

Hi, you cant implead Reliance Company as a Respondent in the contempt petition as the Reliance industry is not a party in the original proceedings so it is better file a suit for bare injunction restraining the Reliance company to install its tower or else file a writ petition before the Hon'ble High Court.

Pradeep Bharathipura
Advocate, Bangalore
4653 Answers
231 Consultations

4.5 on 5.0

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 1 of 32

IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment reserved on: 24.05.2010

Judgment delivered on: 31.5. 2010

1. CM. 6546/2010 in W.P.(C)No.3267/10

Cellular Operators Association

of India & Ors. ……Petitioners

Through: Dr. A.M. Singhvi, Sr. Advocate, Mr.

C.A. Sundaram, Sr. Adv. and Mr.

Ramji Srinivasan, Sr. Adv. with Mr.

Manjul Bajpai, Mr. Ashish Yadav, Mr.

Aneesh Patnaik and Ms. Rohini Musa

Adv.

Versus

MCD .......Respondent

Through: Mr. Parag P. Tripathi, ASG

with Ms. Maninder Acharya, Adv.

2. CM. 6867/2010 in W.P.(C)No.3423/2010

Idea Cellular Ltd. ……Petitioner

Through: Mr. Sandeep Sethi, Sr. Adv. with Ms.

Sonali Jaitely and Ms. Devika, Adv.

Versus

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 2 of 32

MCD & Ors. ..... Respondents

Through: Mr. Parag P. Tripathi, ASG

with Ms. Maninder Acharya, Adv.

CORAM:

HON'BLE MR. JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

be allowed to see the judgment? Yes

2. To be referred to Reporter or not? Yes

3. Whether the judgment should be reported

in the Digest? Yes

KAILASH GAMBHIR, J.

*

1. This order shall dispose of two interim applications bearing Nos.

6546/10 and CM 6867/10 filed by the respective petitioners in W.P.

(C) No. 3267/2010 and W.P.(C) No. 3423/2010. Since common

questions of law and facts are involved in both the writ petitions and

identical reliefs have been claimed by the petitioners in their

respective interim applications, therefore, the same are being

disposed of by this common order.

2. These writ petitions have been filed by various individual

companies as well as associations representing the interest of cellular

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 3 of 32

licensees. In the past few years, cellular mobile industry has grown

exponentially and as per the facts placed on record, cellular

subscribers crossed 563 million by February, 2010, covering roughly

half the country’s population. The paradox is that more people have

access to mobile phones than toilets in India. With the first telephone

services in 1881 to first time cellular services in 1999 and now

boasting to be the second largest user of mobile phones in the world,

the cellular phone has indeed been a revolution of one of a kind. It is

an inevitable truth that mobile phone is no more a luxury but a part of

our very existence. We cannot dispute our dependence on the mobile

phone today when owning it has become proportional to personal

empowerment. It is a silver bullet to the vagaries and vicissitudes of

life.

Earlier, the connectivity was scarce but now the service providers

with their impeccable connectivity have lured the rickshaw vala and

the millionaire alike to its consortium. Our voice and messages

through mobile reaches to the other end. These cellular service

providers are required to establish a complete cellular network. The

cellular towers carry the regular signals and pass on the calls from

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 4 of 32

one cell to another and, therefore, these towers are an integral

component of the mobile network and are required to be strategically

located keeping in mind the radio frequency design, topography,

traffic and coverage in the given area. As per the petitioners, cellular

towers are the backbone of the cellular mobile telephony and are

critical for providing seamless cellular services.

3. These mobile service providers did not raise the question of

competence or jurisdiction of the MCD so long they were being

governed under the previous policy of the MCD dated 20.11.03 and

7.2.2008 but the regnant power of these cell phone service providers

has got a jolt by the new policy of the MCD. Besides others, the main

cause of heart burn of the petitioners is the fee hike of 2000% in 2010

from that of what was in the year 2000.

To give a conspectus, these cellular operators have been granted

licence under the Telegraph Act and various mobile towers have been

installed by them on various private lands and buildings in various

parts of Delhi after taking the consent of the private property owners.

The petitioners have also stated that for erection of a

telecommunication tower at any location an approval/clearance is

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 5 of 32

required to be taken from Wireless Planning Committee i.e. Standing

Advisory Committee on Frequency Allocation (for short referred as

SACFA). This Committee clears the height of towers from the point of

civil aviation also. It has also been stated that various Government

agencies like Airport Authority of India, Railways, ISRO, ONGC, AIR

Department of Electronics, Navy, Defence etc. are part of SACFA.

Besides this, the cellular operators were also required to take the

permission of the MCD for the installation of cellular towers in the

area under the jurisdiction of the Municipal Corporation of Delhi. Vide

office order dated 20.11.2003 issued by the MCD, permission for

installation of temporary structure on roof top of various premises for

cellular/basic mobile phone was to be accorded on payment of one

time permission charges of Rs. 1 lakh per site and in case the

site/tower was to be shared by other cellular phone

operator/operators an additional amount of Rs. 50,000/- per sharing

was required to be paid. Before granting the said permission these

cellular/basic telecom operators were required, besides the fee, to

fulfill other conditions laid down by the MCD, which are referred as

under:-

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 6 of 32

“1. That Cellular and Basic Telecom Operators shall apply to the Commissioner,

MCD along with the consent letter of the building owner, necessary drawings

and structural Safety Certificate issued by a qualified Structural Engineer from

one of the following five institutions:-

(a) Indian Institute of Technology (I.I.T), Delhi.

(b) Central Building Research Institute (CBRI), Roorkee.

(c) Rail India Technical and Economic Services Ltd. (RITES), Delhi.

(d) National Council for Building Material, Faridabad.

(e) Indian Institute of Technology (I.I.T), Roorkee.

MCD shall not recognize Structural Safety Certificate from any other source.

2. That they shall be solely responsible for any damage to the building and for

public safety.

3. That they shall take special precautions for fire safety, lightening etc.

4. That permission shall not be granted for any listed Heritage building or any

other building falling within Bunglow zone area (Civil Lines).

5. That they shall furnish to Assessor and Collector MCD a copy of the

agreement concluded between the Cellular or Basic Telecom Operator and

the owner of the building.

6. Generator sets installed at the tower site to cater to the power requirements

of the antenna should conform to the noise and emission norms prescribed

by DPCC.

7. In cae of buildings which were unauthorized or which may be so declared at a

latter point of time, permission for installation of towers shall be granted on

fulfillment of all the above conditions. However, that shall not imply any

change whatsoever in the status of the unauthorized building and shall be

without prejudice to the right of the MCD to demolish the said building

through the due process of law. In undertaking such a demolition MCD will

not be under any obligation to send prior intimation to the owner of the

tower, nor will it be liable for the loss of the owner of the tower as a

consequence of demolition of the unauthorized building. The operators shall

indemnify MCD to this effect.

8. The licencees shall share the towers for fixing their respective antennas

provided that the prescribed conditions are duly fulfilled so as to ensure

curtailing of multiple towers and optimizing the use of the existing ones.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 7 of 32

9. In case of any complaints against such tower construction, the time shall be

referred to the office of Director General Cellular Operators Association of

India and Secretary General, Association of Basic Telecom Services to

investigate the complaints and take remedial measures wherever necessary.”

4. While the said office order dated 20.11.2003 was in operation,

another circular dated 7.2.2008 was issued by the MCD directing

these cellular operators to comply with certain other directives. The

need for issuing the said fresh directions arose as vide letter dated

13.9.2007 the Hon’ble Lt. Governor of Delhi gave directions to keep

the permission for the cellular tower operators in abeyance

apprehending these towers to be a source of health hazard.

Subsequent to the said communication from the Hon’ble Lt. Governor,

Principal Secretary, Government of NCT of Delhi vide its DO letter

dated 10.1.2008 communicated the approval of the Lt. Governor for

permitting the cell towers in the residential areas only after due

consultation with the concerned RWAs and not merely to be left to

bilateral negotiations between telecom companies and individual

residents/house owners. Keeping in view the apprehension of health

hazard in mind, the said circular imposed further conditions to the

conditions already enforced vide office order dated 20.11.2003, which

are as follows:-

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 8 of 32

? “Installation of Base Station Antennas within the premises of schools and

hospitals may be avoided because children and patients are more susceptible

to Electro Magnetic Field.

? Installation of Base Station Antennas in narrow lanes should be avoided in

order to reduce the risks caused by any earthquake or wind related disaster.

? The Base Station Antennas should be at least 3 m away from the nearby

building and antennas should not directly face the building. Further, the

lower end of the antenna should be at least 3 meter above the ground or

roof.

? In case of multiple transmitter sites at a specific locality, operator be asked

for sharing of a common tower infrastructure as far as possible.

? Operator should be asked to prohibit the Access to Base Station Antenna

sites for general public by suitable means such as wire fencing, locking of the

door to the roof etc. Access to tower site, even for the maintenance

personnel, should be for a minimum period as far as possible.

? Operator should be asked to put up sign boards/Warning Signs at the Base

Station Antenna sites, which should be clearly visible and identifiable. A

warning sign should be placed at the entrance of such zone. The “Warning

Sing” should discourage longer stay in the zone, even for the maintenance

personnel. The sign board may contain the following text:

i) Danger! RF radiations, Do not enter!

ii) Restricted Area

? While granting permission, it should be advised to the operators that the

operators and maintenance personnel, who are dealing with radio frequency

devices should be educated for possible hazards and for taking measures for

protection from electromagnetic radiations from these devices with Base

Station Antennas installed on towers and at any other outdoor sites.”

5. Even after the imposition of the aforesaid further conditions, the

MCD felt that adequate measures were still not in place to ensure the

safety and health of the people from other harmful effects of cellular

towers, hence it issued yet another office order dated 8.4.2010 in

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 9 of 32

supersession of all earlier orders on the subject. This time the MCD

formulated comprehensive conditions to be fulfilled by the cellular

operators before they could install the towers on the roof tops of

private properties, lands and other structures within the jurisdiction

of the MCD. Besides laying down various other conditions, one of the

condition is the imposition of fee of Rs. 5 lakhs per tower and Rs. 1

lakh per service provider in case of sharing for a period of five years.

No doubt the petitioners are aggrieved with certain other stringent

conditions imposed in the new policy but their Achilles’ heel is clause

6 of the said office order under which the said fee has been imposed.

Before proceeding further it would be appropriate to reproduce the

new policy of the MCD, which came into force through office order

No. TP/G/6901/10 dated 8.4.2010:-

OFFICE ORDER

SUBJECT: Permission for installation of Temporary Structures for Cellular Mobile Phone

Services on Roof Top/Ground Level or various Premises Falling in the Area under

Jurisdiction of Municipal Corporation of Delhi.

In supersession of all earlier orders on the subject mentioned above,

permission/License for installation of temporary structures on Roof-Tops/Ground level of

various premises for Cellular/Basic Mobile Phone Services shall be accorded as per the policy

approved by the Corporation vide Item no.U.B.No.392 dated 16th March, 2010, earlier

approved by the Standing Committee vide Resolution No.722 dated 09.02.2010 and para 25

modified vide in anticipation approval from Chairman Standing Committee dated 29.03.2010

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 10 of 32

and Hon’ble Mayor (for Corporation) on dated 06.04.2010, subject to the following

conditions:-

1. For installation of Base Station Antennas, clearances is required from Airports

Authority of India, DUAC, Chief Fire Officer (DFS), ASI & DMRC (wherever applicable).

2. Structural stability certificate from any one of the following five institutions are

required to be obtained by the Cellular and Basic Cellular Operators:-

(a) Indian Institute of Technology (IIT), Delhi.

(b) Central Building Research Institute (CBRI), Roorkee.

(c) Rail India Technical & Economic Services Ltd. (RITES), Delhi.

(d) National Council for Cement & Building Material, 34 KM Stone, Delhi

Mathura Road, Faridabad (Haryana).

(e) Indian Institute of Technology (IIT), Roorkee.

3. In case of buildings which were unauthorized or which may be so declared at a later

point of time, permission for installation of tower shall be granted on fulfillment of all

the conditions. However, that shall not imply any change whatsoever in the status of

the unauthorized building and shall be without prejudice to the right of MCD to

demolish the said building through the due process of law. While undertaking such a

demolition, MCD will not be under any obligation to send prior intimation to the

owner of the tower, nor will it be liable for loss of the tower as a consequence of

demolition of the unauthorized building. The operators shall indemnify MCD to this

effect.

4. The licensees shall share the towers for fixing their respective antennas provided that

the prescribed conditions are duly fulfilled so as to ensure curtailing of multiple

towers and optimizing the use of the existing ones.

5. Priority of Selection of site shall be as under;-

a. All Municipal Buildings including Community Centres, except schools,

hospitals & dispensaries.

b. Other Government Building.

c. Other Non-Residential buildings i.e. industrial, commercial & institutional

buildings.

d. Along the right of way of major drains after clearance from DEMS of

MCD.

e. Vacant land after clearance from concerned authority.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 11 of 32

f. i) Residential vacant plot leaving 3M setback all around.

ii) Residential buildings.

Note:- Erection of Cell Tower on residential buildings shall only be

allowed in those case where no alternative is available.

iii) Group Housing.

6. Fees:

Rs.5 lacs per tower plus.

Rs.1 lacs per service provider in case of sharing.

7. For Municipal Building Rs.25/- per sq. ft. per month shall be charged towards license

fee for the space to be used for erecting the temporary structure subject to a

minimum of Rs.25,000/- per month. License fee shall be payable for three months in

advance and thereafter by 10th day of each month.

Any Cell Operator desirous to erect tower on any Municipal Building or land will make

an application to the land owning agency i.e. to the office of ADC (L& E) for Municipal

Buildings and to the Estate Department of Slum & JJ for their buildings and also

execute an agreement for license fee as mentioned above.

The license fee shall be deposited in the office of ADC (L&E) and Estate Department

of Slum & JJ, as the case may be:-

(i) No objection nfrom the concerned department having its administrative

control on the building/land where erection of Cell Tower is proposed.

(ii) No objection from Engineering Department from structural safety point of

view. In case, the Engineering Department is not in a position to certify the

structural safety aspect, the same could be got examined by Cell Operators

from the Institutes already identified and approved for private building.

Once the agreement for license is entered into, Cell Operator can apply for a

permission to the EE (Bldg.) of concerned Zone, who will process the case for

grant of permission in accordance with the guidelines issued.

8. That Cell Operator shall be solely responsible for any damage to the building

and for public safety.

9. That Cell Operator shall take special precautions for fire safety, lightening etc.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 12 of 32

10. That Cell Operator shall furnish to Assessor & Collector, MCD a copy of the agreement

executed between the Cellular or Basic Telecom Operator and the owner of the building.

11. Generator sets installed at the tower site to cater to the power requirements

of the antenna should conform to the noise and omission norms and other

requirements prescribed by DPCC.

12. That Cellular & basic Telecom Operators shall produce a certificate from the

Manufacturer of D.G. set to the effect that set installed meets the following

Standards and Guidelines as laid down in the Noise Pollution (regulation and Control)

Rules, 2000 as notified by Ministry of Environment and Forest vide its notification

dated 14th February, 2000.”

NOISE STANDARDS FOR DG SETS (15-500KVA)

The total sound power level, Lw of a DG Set should be less than 94+10 log10

(KVA), db(A), at eth manufacturing stage, where KVA is the nominal power

rating of a DG Set.

This level should fall by 5 db(A) every five year, till 2007 i.e. in 2002 and then in

2007.

13. MANDATORY ACOUNSTIC ENCLOUSRE /ACOUSTIC TREATMENT OF

ROOM FOR STATIONARY DG SETS 95 KVA 7 ABOVE)

Noise from the DG Set should be controlled by providing an acoustic

enclosure or by treating the room acoustically.

The acoustic enclosure/acoustic treatment of the room should be designed

for minimum 25 (dB(A) Insertion loss or for meeting the ambient noise

standards, whichever is on the higher side (if the actual ambient noise is on

the higher side), it may not be possible to check the performance of the

acoustic enclosure / acoustic treatment. Under such circumstances the

performance may be checked for noise reduction upto actual ambient noise

level, preferably, in the right time. The measurement for insertion loss may be

done at different points at 0.5m from the acoustic enclosure/room, and then

averaged.

The DG set should also be provided with proper exhaust muffler with insertion

loss of minimum 25 dB(A). To ensure the compliance of Guidelines at user

end, Cell Operators will furnish noise-monitoring report from DPCC.

14. The Operator shall ensure to prohibit the access to base station antenna sites

for general public by suitable means such as wire fencing, locking of the door

to the roof etc., access to tower site even for maintenance personnel should

be for a minimum period as far as possible.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 13 of 32

15. Installation of Base Station Antennas shall be allowed only on:-

(a) The buildings which abuts on minimum 9.00 M wide road in order to

reduce the risks caused by any earthquake or wind related disaster.

(b) The existing sites of the Cell Towers abutting on roads having ROW less

than 9.00 M could only be regularized after the specific clearance from

the Fire Department regarding the width of the road.

16. The Base Station Antennas should be atleast 3m away from the

nearby building and antennas should not directly face the building. Further,

the lower end of the antenna should be at least 3.00 meter above the ground

or roof.

17. In case of multiple transmitter sites at a specific locality sharing of a common

tower infrastructure, should be explored, as far as possible which can be

coordinated through a nodal agency.

18. Access to base Station Antenna sites should be prohibited for general public

by suitable means such as wire fencing, locking of the door to the roof etc.

Access to lower site, even for the maintenance personnel, should be for a

minimum period as far as possible.

19. Sign boards/Warning signs are to be provided at Base Station Antenna sites

which should be clearly visible and identifiable. A warning sign should be

placed at the entrance of such zone.

20. The ‘Warning Sign” should discourage longer stay in the zone, even for the

maintenance personnel. The sign board may contain the following text:

i. Danger ! RF radiations, Do not enter.

ii. Restricted Area.

21. The operators and maintenance personnel, who are dealing with radio

frequency devices, specially with Base Station Antenna installed on towers

and at any other outdoor sites, should be protected from electromagnetic

radiations. The operator and maintenance personnel dealing with the radio

frequency devices should be properly educated for possible hazards and for

taking measures for protection from electromagnetic radiations when &

where required.

22. Submission of an undertaking from the Operator that installation of Cell

Tower does not cause any adverse effect to the health of human being of the

area and MCD shall be kept harmless out of this.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 14 of 32

23. The operator shall display on board (minimum size 24”x48’) at conspicuous

space of the building at Ground Floor, the following details;

(i) Operators name and Address

(ii) Contact persons name, address and Telephone Number

(iii) Address of Complaint Redressing Authorities with Telephone

Numbers

(iv) Police Control Room : 100

(v) Fire Control Room : 101

(vi) Ambulance : 102

(vii) Any other important information, if any

(viii) Details of insurance policy

24. In case of any complaints against such tower construction, the same

shall be referred to the office of Director / General Cellular Operators

Association of India and Secretary General, Association of Basic Telecom

Services, to investigate the complaints and to take remedial measures

wherever necessary.

25. The operators, who have erected cell towers without permission, shall apply

to MCD for regularization within 30 days, as per earlier policy in force, prior to

implementation of this new policy after obtaining NOC from ASI & AAI

wherever applicable.

NOC from R.W.As shall not be insisted upon and the fee shall be paid as per the

new policy. In case of non-compliance, action for removal of Cell towers shall

be initiated as per Law. The existing towers abutting on roads having ROW

less than 9 mtrs. shall be regularized after clearance of the Fire Department.

26. Identification of the sites:-

For issuing of any NOC, a recommendation is to be given by TRAI to the fact that

the proposed tower is essentially required at the site/vicinity as the nearest

tower of this company is existing at a distance of…………M and no sharing

of tower with other company is available. In case of residential buildings, it

shall also be certified that no other alternative is available with the service

provider.

27. NOCs:

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 15 of 32

(i) In case of group housing residential building, NOC from all the

occupants of the housing block along with the NOC of the society is

required.

(ii) (a) In case of the plotted residential building owned by different

floor owners, NOC from all the floor owners is required.

(b) In case of lease hold property NOC of lessor is required.

(iii) In case, building abuts on road having less than 9 M ROW, NOC from

Fire Department is required.

28. Application:

(a) Before erection of Cell Tower, application shall be filed jointly by

the owner(s) of the building & the Mobile Service Provider Co.

Copy of agreement between the service provider company & the

owner shall also be submitted alongwith the application.

(b) In case of the Municipal building, NOC of the Head of the

Department / Land & Estate Deptt. under whose jurisdiction

building or land is situated is required.

(c) The application shall be filed under the signature of Architect,

registered with the Council of Architecture who will certify that

the proposed tower is safe in all respect. Alongwith the structural

design calculation on the basis of which certificate is being issued

for record purpose.

(d) Erection of tower shall only be permitted only on regularized

buildings.

(e) A certificate on affidavit shall be submitted by the service

provider company that erection of the proposed tower is not

harmful to the health of the nearby residents.

(f) Permission shall only be granted to the service providers who

have license from Telecommunication Department, Govt. of India.

(g) The service provider company shall provide 3rd party insurance

and details of the insurance policy shall be depicted on the display

board.

(h)

(i) The NOC shall be got renewed on payment of requisite fee every

5 years.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 16 of 32

(iii) The Towers existing more then 5 years are also required to be

renewed within one month on payment of requisite fee.

(iv) MCD reserves its right to withdraw permission at any time without

assigning any reason.

(v) The erection of the tower shall be completed within 3 months from

grant of NOC and report of erection be made to the Building Deptt. of

the concerned Zone.

29. Revised guidelines shall be prepared time to time keeping in mind the

international standards & technology.

CHIEF TOWN PLANNER”

6. The petitioners have taken various legal objections questioning

the very jurisdiction and competence of the MCD to legislate in the

field of the Central Government, Telegraph being a central subject

under Entry 31 of List-I of Schedule VII of the Constitution of India.

Fiercely denouncing enhancing the rate of fee from Rs. 1 lakh, which

was for a block of 20 years, to Rs. 5 lakhs for a block of 5 years, the

petitioners term such an increase as wholly unfair, unjust, arbitrary

and illegal. The contention of the petitioners was that such a hike in

the fee does not commensurate with the cost of services being

provided by the Municipal Authority besides the fact that the

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 17 of 32

imposition of such levy is beyond the competence, jurisdiction and

power of the MCD.

7. Before hearing arguments on interim applications of the

petitioners, this Court vide orders dated 19.5.2010 directed the MCD

to first show this Court the rationale behind increasing the fee from

the existing Rs. 1 lakh, which was a one time measure for a period of

20 years to Rs. 5 lakhs for a period of 5 years. Pursuant to the said

directions given by this Court, the Commissioner, MCD has filed his

affidavit. The said affidavit has been filed by the respondent/MCD

confining its stand to one of the conditions of the policy relating to

the fee hike. The only justification given by the MCD in its affidavit is

that the fee imposed by the respondent MCD is a regulatory fee and

for imposition of a regulatory fee, existence of quid pro quo is not

necessary. The Commissioner has further explained that the MCD has

certain other statutory and obligatory functions, which include

promoting public safety, health, convenience, general welfare,

securing or removal of dangerous buildings and places, taking actions

against unauthorized constructions, removal of nuisance etc. and with

these services being rendered by the MCD, there need not be direct

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 18 of 32

co-relation of the fee and the services rendered by the MCD. The

Commissioner has further submitted that the MCD has to ensure that

the buildings on which the said towers are installed are structurally

stable and that the citizens are not exposed to harmful radiations

emanating from these towers. The Commissioner has also explained

that vide resolution No. 569 dated 25.9.2002, the Standing Committee

approved the enhancement of one time charges from Rs. 1 lakh per

site to Rs. 2 lakhs per site and when this issue was considered again

on 11.11.2002, the hike was recommended to be raised to Rs. 5 lakhs

per site, but the said order could not be enforced due to protest

lodged by the Cellular Operators Association. The Commissioner has

also clarified that in the last ten years the salaries of the personnel of

MCD have increased manifold and besides that lot of money has been

spent by the MCD on improving the infrastructure of Delhi. The

Commissioner has also pointed out the huge deficit between the

receipt and expenditure of the respondent Corporation during the

year 2008-09 and even the estimated receipt for the current year is

far less than the estimated expenditure.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 19 of 32

8. Mr. Parag P. Tripathi, learned ASG appearing for the

respondent submitted that the respondent/MCD has imposed only a

regulatory fee and not a compensatory fee, the case, which the

petitioners are trying to build up. Counsel further submitted that it is

the MCD who is primarily responsible to take care of public health

and building bye laws and for that the MCD is legally competent to

charge the regulatory fee. In support of his arguments counsel placed

reliance on the judgment of the Apex court in the case of State of

West Bengal vs Kesoram Industries Ltd. 2004 (10) SCC 201 and

B.S.E. Brokers Forum, Bombay & Ors. vs Securities and

Exchange Board of India & Ors. 2001(3) SCC 482. He further

submitted that based on various reports of the experts taking a view

that the mobile phone radiations have a serious effect on human

health, therefore, as a precautionary and regulatory measure, the

respondent/MCD has formulated the said policy and has also

simultaneously imposed a fee of Rs. 5 lakhs for regulating the

installation of these cellular towers. Counsel thus submitted that it is

the prime duty of the MCD being the civic municipal authority to take

care of the health of its people so that they are not exposed to any

harm with the installation of the said mobile towers. Counsel further

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 20 of 32

submitted that if the fee imposition is excessive or extortionist then

the onus is on the petitioners to show how and in what manner they

claim it to be excessive or extortionist and not for the MCD who has

imposed such fee.

9. Mr. Parag Tripathi in the alternative also submitted that even if

the said fee is termed as a compensatory fee then also there is a

complete justification for the MCD to impose the said fee. The

contention of counsel for the respondent was that the MCD has to

spend large amounts of money to take care of the health of the people

and for maintaining the roads and other infrastructure and for

supervising and regulating the said towers, therefore, in comparison

to the expenses incurred by the MCD for regulating the said towers,

the hike in fee cannot be termed as unjustifiable.

10. Mr. Sundram, learned Sr. Advocate appearing for the petitioner

on the other hand submitted that the respondent MCD has failed to

disclose, either from the record or from its short affidavit, the exact

reasons or rationale behind raising the fee from Rs. 1 lakh, which was

a one time measure for 20 years, to Rs. 5 lakhs for a period of 5

years. Counsel further submitted that it is for the MCD to show that

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 21 of 32

for charging the regulatory fee what extra measures or regulations

the MCD will be required to undertake and what is the co-relation

between such measures and the fee being imposed by them.

11. Refuting the contentions of counsel for the respondent, counsel

for the petitioners submitted that the judgment of the Apex Court in

State of West Bengal vs Kesoram Industries Ltd. (Supra) relied

on by the respondent has overlooked para 110 of the same which

gives a view contrary to the one canvassed by the respondent/MCD.

Counsel for the petitioners also placed reliance on the decision of the

Constitution Bench in Jindal Stainless Ltd. & Anr. vs State of

Haryana 2006 (7) SCC 241. Mr. Sundram also placed reliance on

the report of the World Health Organisation, placed on record at

pages 167 to 169 of the paper book, wherein WHO has given an

opinion that there is no convincing scientific evidence to show that

weak RF signals from its stations and wireless networks cause

adverse health effects. Counsel also submitted that the regulatory fee

in view of the judgment of the Constitution Bench in Jindal Stainless

Ltd. case now is a part of the compensatory fee and for that corelation

has to be shown for imposing a particular fee and in the

absence of such co-relation counsel submitted that it would come

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 22 of 32

under the category of tax and not a regulatory fee or a compensatory

fee.

12. Dr. A.M Singhvi, learned Sr. Advocate appearing for the

petitioners also placed reliance on the judgment of Jindal Stainless

(supra) relying on the principle of equivalence as envisaged by the

said judgment with special emphasis on para 45 of the same. He also

placed reliance on the judgment of the Apex Court in Gupta Modern

Breweries vs. State of J& K & Ors. (2007) 6 SCC 317 (with

special emphasis on para 33 of the same) and on M.Chandru vs.

Member- Secretary, Chennai Metropolitan and Development

Authority & Anr. (2009) 4 SCC 72.

13. Both the counsel for the petitioners and respondent addressed

arguments only with regard to one of the conditions of the policy i.e.

the fee hike, while with regard to other conditions no arguments were

addressed.

14. I have heard learned counsel for the parties at considerable

length and given my conscious consideration to the pleas raised by

both the parties.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 23 of 32

15. The petitioners are seeking quashing of the office order dated

20.11.03, circular dated 7.2.08 and office order dated 8.4.10 in the

main writ petitions and in the interim application they are seeking the

stay of these office orders and circular till the final disposal of these

writ petitions. It is a settled legal position and is well known rule of

practice and procedure that at the interlocutory stage normally the

High Court will not grant such interim relief, grant of which will

amount to granting the final relief in the writ petition. The Apex Court

as far back as in 1985 in Assistant Collector of Central Exercise

vs. Dunlop India Ltd. (1985) 1 SCC 260 has settled the law in this

regard where it held that:

“We repeat and deprecate the practice of granting

interim order which practically give the principal relief

sought in the petition for no better reason than that a

prima facie case has been made out, without being

concerned about the balance of convenience, the public

interest and a host of other relevant considerations.”

This was subsequently followed in State of Rajasthan vs. Swaika

Properties (1985) 3 SCC 217 till late in State of U.P vs. Ram

Sukhi (2005) 9 SCC 733.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 24 of 32

This court is also mindful of the judicial trend for granting stay,

settled from the case of Siliguri Municipality vs. Amalendu Das

(1984) 2 SCC 436 to the recent rulings of the Apex Court in the case

of Benara Valves Ltd. Vs. CCE (2006) 13 SCC 347 which has been

reiterated lately in Pennar Industries Ltd. State Of A.P (2009) 5

SCC 208.

Hence, taking note of the well established legal principles and

peculiar facts and situation of the case in hand, this Court is of the

view that any decision on the interim application of the petitioners

would tantamount to giving a final view in the matter and, therefore,

better course in the given facts and circumstances of the case would

be to hear the present writ petitions finally. Even otherwise both the

parties have addressed the arguments only on one of the components

of the policy and not on the entire policy itself and, from this point

also it would not be appropriate to forficate the said policy and take a

view on one of its elements. Hence, taking a holistic approach, it

would be more appropriate to give opportunity to the respondents to

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 25 of 32

file their counter affidavit, and once the pleadings are complete, then

only to hear these matters finally.

16. Therefore, keeping in mind the ensconced legal principles, and

in the peculiar facts and circumstances of the case at hand, during the

course of the arguments with a view to find out a workable solution, a

proposal was given to the MCD to accept a provisional amount of Rs.

2.5 lakhs after giving an adjustment of Rs. 1 lakh already received by

them, but the MCD adopting a very recalcitrant and obstinate position

refused to accept the said suggestion given by the Court. In such a

scenario, to balance the equities and to safeguard the economic

interest of the respondent/MCD, this Court directs the petitioners

and their members to deposit an amount of Rs. 2 lakhs out of Rs. 5

lakh per tower, as stipulated by condition No. 6 in the impugned

policy and Rs. 50,000/- per service provider in case of sharing, in the

name of the Registrar General of this Court by way of FDR for an

initial period of six months and for the balance amount the

petitioners shall give an undertaking by way of an affidavit that they

shall pay the said amount along with interest thereon at the bank rate

payable on the fixed deposit in the event of the impugned policy

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 26 of 32

raising the fee is ultimately upheld. However, in the event the said fee

hike is set aside by this Court, then the amount of FDRs shall be

released in favour of the licensees along with interest accrued

thereupon.

17. One of the most important issues on which the parties have yet

to address arguments is that whether these cell towers are a source

of health hazard or not. There cannot be any two views about the

fact that the issue of public health and public safety must be placed

at a higher pedestal than monetary considerations. Earlier in the

circular dated 7.2.2008, reference has been made to the

communication received from the office of the Lt.Governor, wherein

the stand taken was that the cell towers are a source of health hazard.

18. During the course of arguments, Mr. Parag Tripathi, learned

Additional Solicitor General placed reliance on a report culled out

from the internet site known as Wikipedia. The said report suggests

that the radiations emitted by the fixed infrastructure used in mobile

telephones indicates that base stations and their antennas can result

in fatigue, destruction of health and loss of memory. The report

further goes on to state that in contrast to mobile hand sets, the

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 27 of 32

antennas emit radiations continuously and therefore, the same are

more powerful at close quarters.

19. On the other hand, the report of the World Health Organisation,

on which reliance was placed by the petitioners suggests otherwise.

The WHO report states that the level of RF exposure from base

stations and wireless networks are so low that the temperature

increase is insignificant and does not affect human health. The report

further suggests that the recent surveys have indicated that RF

exposures from base stations and wireless technologies in publicly

accessible areas (including schools and hospitals) are normally

thousands of times below international standards.

20. A healthy body is the very foundation for all human activities.

Our ancient scriptures have laid down the aphorism “Sariramadyam

khaludharma sadhanam” i.e the body has to be taken care of with a

sense of high priority. In a welfare State, therefore, it is the obligation

of the State to ensure the creation and the sustaining of conditions

congenial to good health. Right to Health, a fundamental human right

stands enshrined in socio-economic justice of our Constitution and the

Universal Declaration of Human Rights. The maintenance of health is

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 28 of 32

a most imperative constitutional goal whose realisation requires

interaction of many social and economic factors. The Apex Court in

Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161

aptly observed that:

“It is the fundamental right of everyone in this country, assured

under the interpretation given to Article 21 by this Court in

Francis Mullin case to live with human dignity, free from

exploitation. This right to live with human dignity enshrined in

Article 21 derives its life breath from the Directive Principles of

State Policy and particularly clauses (e) and (f) of Article 39

and Articles 41 and 42 and at the least, therefore, it must

include protection of the health and strength of the workers,

men and women, and of the tender age of children against

abuse, opportunities and facilities for children to develop in a

healthy manner and in conditions of freedom and dignity,

educational facilities, just and humane conditions of work and

maternity relief. These are the minimum requirements which

must exist in order to enable a person to live with human

dignity and no State — neither the Central Government nor any

State Government — has the right to take any action which will

deprive a person of the enjoyment of these basic essentials.”

Article 21 by way of its vast scope has encompassed within its fold

Right to health as a fundamental right guaranteed by the Constitution.

It would also be pertinent to refer to Article 47 in Part IV of the

Constitution which provides that:

“The State shall regard the raising of the level of nutrition and

the standard of living of its people and the improvement of

public health as among its primary duties and, in particular, the

State shall endeavour to bring about prohibition of the

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 29 of 32

consumption except for medicinal purposes of intoxicating

drinks and of drugs which are injurious to health.”

In a series of pronouncements during the recent years the Apex Court

has ingeminated that right to health as a fundamental right cannot be

compromised. Maintenance and improvement of public health and

safety have to rank high as these are indispensable to the very

physical existence of the community and on the betterment of these

depends the building of a wholesome society. Attending to public

health, therefore, is of high priority. The Apex Court in the case of

N.D Jayal vs. Union of India (2004)9 SCC 364 has held that the

impact of any project on human health cannot be given a go- by and

has to be seriously scrutinized. The Central Government as well as the

Municipal Authorities owe constitutional obligation towards each and

every citizen that any act of the State or of an individual, be it for

commercial gains or otherwise, does not pose any kind of threat to

their safety and health. The RF radiations whether pose any such

serious health threat or not and what precautions are required to be

taken so that there are minimal chances of causing any threat to the

health of the public at large appears to be still at the investigation

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 30 of 32

stage and also various studies and research in different countries are

in progress, but no final consensus has emerged as yet. As per the

respondent MCD, the latest policy has taken due care of the health

and public safety of the citizens. The MCD has taken a stand in their

affidavit that the citizens will not be exposed to harmful radiations

emitted from the said towers.

21. In view of the conflicting views and studies, this Court is of the

view that the Secretary, Telecommunication and Commissioner, MCD

shall constitute a broad based committee of Technical and Medical

experts who can examine all these various studies and the technology

and policy adopted by the developed countries in regulating the

installation of cellular towers and antennas. The committee so

constituted by these authorities shall also have some representatives

from the NGOs’ ,Cellular Associations or public spirited citizens who

are engaged in the field of espousing the cause of public health and

safety. The Secretary, Telecommunication shall convene such a

meeting within a period of two weeks from the date of this order and

the broad based committee shall be constituted by the Secretary

Telecommunication and the Commissioner MCD within a maximum

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 31 of 32

period of four weeks from the date of this order. The committee so

constituted shall submit its report within a period of three months

from the date of its constitution.

W.P. (C) Nos. 3267/2010, 3423/2010

22. Since the Ministry of Telecom, Government of India is not a

party to these petitions and keeping in view the issues raised in the

present petitions, the impleadment of the said Ministry is necessary

for the proper and effective adjudication of the controversy involved.

Petitioners are accordingly directed to implead Ministry of Telecom as

respondent No.2 and an amended memo of parties be filed within a

period of two days and steps be taken by the petitioner to serve the

newly impleaded respondent No.2 through the standing counsel,

Union of India. The petitioner shall also supply a copy of this order to

the standing counsel along with complete set of these petitions.

Counter affidavit be filed by the respondent within a period of four

weeks. Rejoinder, if any, be filed by the petitioners within a period of

three weeks thereafter.

CM. 6867/2010 in W.P.(C)No.3423/2010 & CM. 6546/2010 in W.P.(C)No.3267/10 Page 32 of 32

23. In the light of the aforesaid directions the latest policy of the

MCD dated 8.4.2010 shall remain in abeyance till the final disposal of

these writ petitions, subject to the deposit of amount by way of FDR

by individual licensees as directed herein above. It is, however, made

clear that these service providers shall continue to remain bound by

the terms of the earlier two policies dated 20.11.2003 and 7.2.2008 in

addition to the directions given by this court herein above.

24. Matter shall be taken up for final hearing on 15.9.2010.

May 31, 2010 KAILASH GAMBHIR, J.

R.K. Nanda
Advocate, New Delhi
457 Answers

4.7 on 5.0

the above cited delhi high court judgement which has also discussed many apex court judgements will be very helpful in ur case.

R.K. Nanda
Advocate, New Delhi
457 Answers

4.7 on 5.0

1) you have to file separate case against Reliance Communications to restrain them form erecting tower in your area

2) in support you can rely upon judgement passed by court restraining Airtel from erecting any towers in your area .

3) no contempt of court proceedings will lie against Reliance as no order s have been passed restraining Reliance from erecting tower in your area

Ajay Sethi
Advocate, Mumbai
69070 Answers
4155 Consultations

5.0 on 5.0

Orders passed in civil disputes will bind only the parties to the suit. Instead of filing civil suit go for a public interest litigation at the Madras High Court restricting any telecom companies from errecting towers.

Buvaneswari
Advocate, Chennai
40 Answers
20 Consultations

4.3 on 5.0

1. The Order was against AirTel & not Reliance, so you shall have to take fresh Order restraining reliance also,

2. While filing application before the High court for restaining reliance, you can refer to the order passed against Air Tel,

3. No contempt charge lies against Reliance since there has been no order on them,

4. You can add the authority who sanctions erection of such Mobile towers, praying for a restrain order on them in permitting any party in constructing mobile towers.

Krishna Kishore Ganguly
Advocate, Kolkata
22781 Answers
613 Consultations

5.0 on 5.0

1. Reliance was not a party to the order, consequently no contempt proceedings can be drawn out against it.

2. A fresh application would have to be filed in the court if reliance is to be brought within the realm of the court order.

Ashish Davessar
Advocate, Jaipur
26720 Answers
797 Consultations

5.0 on 5.0

there is two type of injunctions one is temporary ant other is permanent, the later is passed by decree, permanent injunction is applicable against any person of the world it does not mean that he was party in the decree or not.

when permanent injunction has passed against airtel then each and every company is bound to obey permanent injunction order and if it is infringed by any company you can only give a notice to that company who infringed that order and if it is disobeyed you can file a contempt application in the court.

Shivendra Pratap Singh
Advocate, Lucknow
5108 Answers
78 Consultations

4.9 on 5.0

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