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:
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(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.
