2011 (4) TMI 1501 - HC - Indian Laws

Summary

Issues Involved:
1. Jurisdiction of MCD to levy fees and impose conditions for installation of cellular towers.
2. Validity of the fees imposed by MCD.
3. Applicability of the Indian Telegraph Act and the Delhi Municipal Corporation Act.
4. The role of municipal governance in regulating the installation of cellular towers.
5. Health and safety concerns related to cellular towers.

Issue-wise Detailed Analysis:

1. Jurisdiction of MCD to levy fees and impose conditions for installation of cellular towers:
The primary contention of the petitioners was that the imposition of fees and conditions by the Municipal Corporation of Delhi (MCD) for the installation of cellular towers was beyond its jurisdiction. They argued that telecommunication is a central subject under Entry 31 of List-I in the Seventh Schedule to the Constitution of India, and only the Central Government has the authority to legislate on this matter. The petitioners further claimed that the Indian Telegraph Act, 1885, empowers only the Central Government to grant permissions for telegraph installations, and the MCD has no locus to demand fees or impose conditions for such installations.

2. Validity of the fees imposed by MCD:
The petitioners challenged the fees prescribed by the MCD, arguing that the fees were arbitrary, excessive, and lacked legal backing. They contended that the MCD had failed to justify the rationale for enhancing the fee from Rs. 1 lac to Rs. 5 lacs for a period of five years. The petitioners also argued that the fee imposed by the MCD did not satisfy the principle of quid pro quo, which is necessary for any regulatory fee.

3. Applicability of the Indian Telegraph Act and the Delhi Municipal Corporation Act:
The court examined whether the provisions of the Indian Telegraph Act, 1885, precluded the applicability of the Delhi Municipal Corporation Act (DMC Act) concerning the installation of cellular towers. The court noted that while the Telegraph Act grants the Central Government exclusive privilege to establish telegraphs, it does not bar the applicability of other laws concerning other facets of telegraph establishment, maintenance, or working. The court held that the impugned circulars/orders of the MCD did not encroach upon the exclusive domain of the Centre regarding telegraphs but regulated other aspects such as structural stability, public safety, and aesthetics.

4. The role of municipal governance in regulating the installation of cellular towers:
The court emphasized the importance of municipal governance in regulating the skyline, aesthetics, and safety of the city. It held that the MCD is responsible for maintaining the skyline of Delhi and ensuring that the installation of cellular towers does not negatively impact the city's aesthetics or safety. The court observed that the MCD has the authority to regulate the installation of towers as "buildings" under the DMC Act, which includes structures of metal or other materials.

5. Health and safety concerns related to cellular towers:
The court acknowledged the health and safety concerns raised by the MCD regarding the installation of cellular towers. It noted that the MCD is responsible for ensuring that buildings, including towers, comply with safety standards and do not pose a health hazard to citizens. The court upheld certain conditions imposed by the MCD, such as requiring structural stability certificates and prohibiting installations on unauthorized buildings, to address these concerns.

Conclusion:
The court held that the MCD has the jurisdiction to regulate the installation of cellular towers as "buildings" under the DMC Act. However, it struck down the fees imposed by the MCD as arbitrary and beyond its competence. The court emphasized the need for legislative amendments to the Building Bye-Laws and the Telegraph Act to address the regulation of cellular towers comprehensively. The court upheld certain conditions imposed by the MCD related to public safety and aesthetics but struck down others that were beyond the scope of municipal governance. The writ petitions were partly allowed, and the impugned fees were quashed.