TaxTMI 
TaxTMI 
2011 (4) TMI 1501
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....vying fee and stipulating other conditions for grant of permission for installation of temporary structures / towers on rooftops for providing Cellular Basic Mobile Phone services. The Office Order dated 20th November, 2003 levied ―One Time Permission Charges‖ of Rs. 1 lac per site/tower and in case the site/tower was shared with other Cellular Phone Operator(s), an additional amount of Rs. 50,000/- per sharing; it also prescribed certain other conditions to be satisfied. However, the Lt. Governor, Delhi, in the light of certain reports that the said towers are a health hazard, vide order dated 13th September, 2007 directed the Municipality to keep fresh applications for permission for installation of towers in abeyance. Vide subsequent letter dated 10th January, 2008 the Lt. Governor permitted consideration of fresh applications for installation of towers on compliance of certain other conditions. The same resulted in the Circular dated 7 th February, 2008 supra, impugned in these writ petitions. Vide Office Order dated 8th April, 2010, and which was / is ―in supersession of all earlier orders on the subject‖, MCD laid down fresh terms and conditions for gr....
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....ls argued with reference to pleadings in W.P.(C) No.3267/2010) may be noticed as under:- (i) That earlier the Central Government through the Department of Telecommunications worked telegraph throughout India. (ii) National Telecom Policy, 1994 was framed with the objective of improving telecom services in the country including by association of the private sector. (iii) National Telecom Policy, 1999 also had as its objective, the availability of affordable and effective communications for the citizens including the provision of telecommunication services to all areas which till then had remained uncovered, including the rural areas. (iv) As part of the aforesaid Policies, licences were issued by the Central Government to the private players to provide telecom services including Cellular Mobile services in India and the private sector has invested more than Rs. 1,50,000 crores in setting up the infrastructure and has surpassed the targets set for coverage and tele- density and competitive tariffs, with the tariffs now prevailing being lowest in the world. (v) Such telecom services provided by the private players have contributed tremendou....
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....ired to be installed/erected on a property of the Local Authority and not when the same is to be installed/erected on property of any other person even if within the jurisdiction of the said Local Authority. It is thus pleaded that MCD has no right or locus to require any permission to be obtained from it for installation/erection of the towers or demand any fee therefor. The actions of MCD impugned in these writ petitions are pleaded to be ultra vires the Delhi Municipal Corporation Act, 1957 (DMC Act), unfair, unjust, unreasonable, ad hoc, arbitrary, without power and jurisdiction, unconstitutional and violative of the petitioners' rights under Articles 14, 19(1)(g) and 21 of the Constitution of India. 6. MCD was vide order dated 19 th May, 2010 directed to file an affidavit explaining the rationale for enhancing the fee from earlier existing ‗One Time' (for 20 years) of Rs. 1 lac to Rs. 5 lacs for a period of 5 years. In response thereto an affidavit dated 22nd May, 2010 was filed stating that the amount charged was a regulatory fee and for which existence of quid pro quo was not necessary. It was further stated that MCD under the DMC Act was required to promote....
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....y thus is not empowered to levy such fee. (viii) The pith and substance relates to telecom and thus Entry 31 of List-I would prevail and the subject matter would not be referable to Entry 5 of List-II. (ix) The licences granted to the petitioners are under the proviso to Section 4 of the Telegraph Act; that under Section 3(1AA), the towers are ―telegraph‖; that under Section 7, the power to make rules with respect to the "telegraph"is in the Central Government only including for residuary matters under Section 7(2)(k). (x) That the Operators/licencees as well as the tower owning companies (who have also filed some of these writ petitions) have been conferred powers of the Telegraph Authority. (xi) Under Section 10 of the Telegraph Act, the Operators/licencees as well as the tower owning companies have been empowered to erect and install telegraph line which includes towers upon any immovable property and require the sanction of the Local Authority i.e. the Municipality only if desire to erect/install any tower on any property of the said Local Authority. (xii) It is thus contended that the entire field in relation to the said....
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....g levied by the MCD has been levied, the copies of the licences were handed over. A perusal thereof does not show that the same provide for any such levy or with respect to the clearance, if any required of the Local Authority/Municipality. (xxii) On enquiry, it was further informed that Municipalities are not a part of SACFA. (xxiii) On further enquiry as to in whom, the air waves vest, it was argued that the same vest in Central Government and not in any Local Authority. (xxiv) Reliance is placed on:- (a) Jindal Stainless Ltd.(2) Vs. State of Haryana (2006) 7 SCC 241 (para 38) on difference between tax, fee and a compensatory fee and the difference between taxing and regulatory power. (b) M. Chandru Vs. Member-Secretary, Chennai Metropolitan Development Authority (2009) 4 SCC 72 (para 24) laying down that in the case of fee, the principle of quid pro quo applies. (c) Gupta Modern Breweries Vs. State of J&K (2007) 6 SCC 317 laying down that taxes, excise duties and fee must be authorized by Parliament and a tax can only be imposed by way of legislation and cannot be imposed by way of Bye-Laws and Rules. (d) Ahmedabad Urban Deve....
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....this Court). (b) Jaipur Golden Transport Company (P) Ltd. Vs. MCD 124 (2005) DLT 393 quashing the levy of fee on storage of goods in transit for want of quid pro quo. (c) Mohd. Yasin Vs. MCD ILR (1970) I Delhi 612 quashing the fee for slaughtering on the ground of the same not answering the description of a fee. (d) Puran Chand Vs. The Commissioner, MCD ILR (1980) II Delhi 1321 quashing the storage fee levy for want of quid pro quo. (vi) That there is no provision in the DMC Act or in any of the Bye-Laws requiring permission for installation/erection of the towers. (vii) That the other conditions imposed are also arbitrary; MCD cannot insist that in the matter of installation of towers priority should be given to certain buildings over others inasmuch as the location of the towers is dependent upon the SACFA clearance; that MCD cannot appropriate to itself right to demolish a building on which the tower was installed without notice to the licencee/operator, it will obstruct the entire service; that the same will lead to a situation where in certain areas no towers can be installed, severely affecting the telephony services in those areas....
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....ls thereof. 11. Mr. Sudhir K. Makkar, counsel for the petitioner in W.P.(C) No.439/2010 while adopting the arguments of the other counsels has added that the terms and conditions of the licences issued by the Central Government deal with the subject of radiation hazard if any from the towers and has also handed over a report of the Committee constituted on health hazards to contend that there is no such health hazard. 12. The Additional Solicitor General (ASG) appearing for MCD has at the outset cited M. Nagaraj Vs. Union of India (2006) 8 SCC 212 laying down that Constitutional adjudication is like no other decision making; there is a moral dimension to every major Constitutional case; the language of the text is not necessarily a controlling factor; that our Constitution works because of generalities and because of the good sense of the Judges when interpreting it; it is that informed freedom of action of the Judges that helps to preserve and protect our basic document of governance. He has contended that the question as to the jurisdiction and locus of the MCD in the matter of installation of the cellular towers is to be decided in the light of the said principles. 13. ....
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....rs Control) Act, 1952 was impugned on the ground of being in excess of the powers conferred on the State Legislature. The said Act inter alia prohibited use of any sound amplifier, save with the permission of the prescribed authority. The challenge to the Act was on the ground that the amplifier was a telegraph and no legislation with respect thereto could be made by the State Government. The Apex Court held that though the amplifier was an instrument of broadcasting and communication and thus fell within Entry 31 of the Union List but the control and use of such apparatus though legitimately owned and possessed, to the detriment of tranquility, health and comfort of others was distinct from its manufacture or licencing. It was held that the power to legislate in relation to public health included the power to regulate the use of amplifiers to the detriment of tranquility of others. The legislation was therefore upheld. (vii) That the fee imposed under the Orders/Circulars impugned in these writ petitions is a regulatory fee and is not required to satisfy the criterion of quid pro quo. Reference is further made to:- (a) State of West Bengal Vs. Kesoram Industries ....
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....d that it cannot be denied that the towers do create an electromagnetic field which can be harmful. 14. The counsel for the Union of India has contended that the MCD needs to justify the fee demanded with respect to the towers. The counsel for the Union of India has also handed over the Circular dated 8 th April, 2010 of the Department of Telecommunication prescribing the radiation norms to be adhered to with respect to the towers and the penalty for exceeding the same. 15. Mr. Sandeep Sethi, senior counsel for the petitioners in rejoinder has contended that if MCD is treating the towers as building then it cannot charge fee therefor at rates more than that being charged for sanctioning construction of buildings and which is informed to be at the rate of Rs. 1 per sq. ft. of the covered area. It is contended that on the said basis, the fee would be much less than Rs. 5 lacs demanded and would be a ‗One Time' fee only and not recurring fee as imposed in case of towers. It is contended that the Office Orders and Circulars also do not treat the towers as a building and the said argument has been raised by the learned ASG as an afterthought. It is contended that there a....
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....the House of the MCD approving the order of the Commissioner also does not treat the levy as a regulatory fee; there is no application of mind; that the argument of regulatory fee has been taken for the first time during the course of hearing. (vii) That if the towers are a health hazard there is no question of increasing the fee and other steps with respect thereto need to be taken. (viii) That it is only law which can justify any compulsory extraction; more towers are needed for improving the standards of connectivity as required under the licences - merely because a high fee is charged, would not lead to fewer towers. (ix) The judgment in Mohinder Singh Gill Vs. Chief Election Commissioner (1978) 1 SCC 405 is cited to contend that the impugned order cannot be justified for reasons not considered at the time of making of the order. (x) The argument of the learned ASG that the doctrine of occupied field is applicable for interpretation of List III only is controverted. It is argued that the same has been applied at times to interpretation of Lists I & II also. (xi) Qua health also the appropriate authority is the Union of India and cann....
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....mber of towers would reduce the hazards. It is contended that the DMC Act treats bridges and structures on the streets separately from buildings and if those structures are not building, the towers cannot also be treated as building. 19. Mr. Sudhir K. Makkar, Advocate in rejoinder has referred to Calcutta Municipal Corporation v. Shrey Mercantile Pvt. Ltd. (2005) 4 SCC 245 to contend that there is no ancillary power of taxation. 20. The ASG was given a further opportunity owing to new judgments having been cited in rejoinder. He has contended that the said judgments have no applicability to the matter in controversy. 21. The counsel for the NDMC which is also a respondent in W.P.(C) No.439/2010 has invited attention to Section 387 of the New Delhi Municipal Council Act, 1994 which empowers the Central Government to make any regulation which under the Act the NDMC is entitled to make. It is further contended that NDMC has the power to make the Building Bye- Laws. Attention is also invited to the charges fixed by the NDMC with respect to the towers. Attention is also invited to Article 239 AA (3)(a) whereunder the Legislative Assembly has been empowered to make laws for the ....
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....ildings for installation of towers. vi. prescribing fees. vii. providing for damages owing to such towers and requiring Undertaking qua health hazards. viii. making provisions with respect to generators accompanying the towers, including as to noise emanating therefrom. ix. laying down criteria with respect to buildings on which towers shall be permitted. x. providing for warnings to be displayed. 25. Not finding the Telegraph Act to be providing for any of the above, it was enquired from counsels for the petitioners whether the licences issued, deal with any of the above. Though copies of licences were handed over, they do not show that any of the above is in conflict with the powers exercised by the Centre or terms and conditions thereof. Nor do I find any of the aforesaid to, MCD appropriating to itself any power qua establishment, maintenance or working of telegraphs. 26. I had during the hearing repeatedly asked from the counsels as to who is responsible for maintaining the skyline of the city of Delhi. It was asked, whether the same would not fall in municipal governance of Delhi and for which purpose the DMC Act was enacted. I refuse....
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....rs of public convenience and compel public to conform to certain rules, the non- compliance whereof will result in dislocation of normal comforts which such statutes are intended to assure. It was held that the sense of orderly living in cities and the aesthetic sense of modern man will be shocked if such like structures (in that case underground petrol tank) are allowed to come up unregulated. It was further held that such statutes as the DMC Act must be construed in such a manner as will best effectuate its purpose and protect its intended beneficiaries; one has to see whether or not a particular structure was intended to be covered by the statute. 31. It is all very well for the petitioners to argue that there is no mention of such Cellular towers in the DMC Act or in the Bye-Laws. The learned ASG is correct in contending that at the time when the said laws were enacted, such towers could not even have been in the realm of the lawmakers. The courts cannot be silent spectators in such a situation and allow an activity unabated for which control is deemed necessary. The Supreme Court in State of Maharashtra Vs. Dr. Praful B. Desai AIR 2003 SC 2053 on the principle of interpreta....
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....and wiring, and all the ancillary equipment needed to transmit and receive signals. All this equipment has to be located somewhere, on someone's property, in someone's view, occluding someone's light, and, perhaps, generating a great deal of radio frequency emissions. The problem which has arisen here is not unique. The United States Circuit Court of Appeals for the Ninth Circuit in MetroPCS, Inc. v. City and County of San Francisco 400 F.3d 715 (9th Cir. 2005) also noticed the struggle in this context between the federal regulatory power and local administrative prerogative and the need to strike the balance of power between the national and the local. This issue came to a head in a stunning Ninth Circuit Court of Appeals decision handed down in January of 2006, Sprint PCS Assets, L.L.C. v. City of La Canada Flintridge 435 F.3d 993 (9th Cir. 2006). The Los Angeles Times first reported on the case on January 18, 2006, in their Business Section, on its front page: ―Cell phone towers may be ugly, but that's not reason enough for cities to block their construction, a federal appeals court ruled Tuesday. In the nation's first appellate ruling on an in....
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....bly. Alas! It has not happened over here. Unless the legislature reacts immediately to resolve the problem, the pace of construction of the towers may outstrip the Government's ability to react to and resolve the problem. Once a Cell tower is built, and a lease is entered into, it is unlikely that it will be demolished or removed. If the legislative system cannot catch up, the issue will become moot. 37. The United States Circuit Court of Appeals for the Ninth Circuit in Sprint Telephony PCS, L.P. v. County of San Diego 543 F.3d 571 (9th Cir. 2008) has also held that the local government can regulate wireless towers and poles as long as they do not actually prohibit wireless service within their borders or create a significant gap in service coverage. Thus, the Cities and Counties were given the ability to even-handedly control the environment in their neighbourhood. 38. The next question to be determined is as to the nature of the said towers i.e. whether they are merely apparatus/equipment or their installations and functioning falls in the domain of the MCD. The ASG has sought to justify installation and operation of the said towers as an activity which can be licenced....
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....so; however, the Legislature having not left any window for such interpretation, this Court, inspite of dicta noticed above in Dr. Praful B Desai and Suresh Jindal (supra), can but make a strong suggestion for amendment to the DMC Act for permitting municipalities to regulate the installation and functioning of such towers. 40. I am however firmly of the view that the said towers definitely fall within the definition of ―building‖ which includes within its ambit a structure of metal or other materials. What else is a tower but a metallic structure. The contention of the senior counsels for the petitioners that a building has to be necessarily a house/habitable cannot be accepted. 41. Lord Parker CJ in Cheshire County Council v. Woodward [1962] 1 All ER 517 said ―...it seems to me that when the Act defines a building as including ‗any structure or erection and any part of a building so defined', the Act is referring to any structure or erection which can be said to form part of the realty, and to change the physical character of the land.‖ 42. The Queen's Bench Division as far back as in The Uckfield Rural District Council v. The Crowbo....
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....or installation of a tower as a building processing fee and charge a building fee as provided therein. Need is also felt for the Act and the Building Bye Laws to be amended to also provide for the fee, tax etc. on buildings of the said nature which do not appear to have been in contemplation at the time of fixing the rates therefor. 47. No merit is found in the contention of the petitioners of the MCD being not entitled to intervene for the reason of the petitioners having been conferred the powers of the Telegraph Authority as contended. A perusal of the Notification dated 24 th May, 1999 in this regard shows that the licencees have only been permitted to seek way-leave from any person including any public authority, State Government etc. to place and maintain posts etc; in fact the same is also subject to the licencees complying with any other law for the time being in force. The said Notification also thus recognizes the applicability of other laws in the licencees taking steps for seeking way-leave and which other laws would include the municipal laws. There is nothing in Section 10 of the Telegraph Act empowering the Telegraph Authority to place and maintain telegraph upon ....
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....t, 1949) is found to be the same as in the Delhi Act. 50. Coming now to the other conditions imposed by the respondent MCD, till the Building Regulations are suitably amended, need is felt to allow such of the conditions contained therein which pertain to the matter of buildings. Thus nothing wrong can be found in:- (i) Avoiding installation in narrow lanes. (ii) Requiring a warning sign to be placed. (iii)Providing for training the operating and maintenance personnel. (iv) Requirement of a Structural Safety Certificate. (v)Prohibiting installations on heritage buildings. (vi) Prohibiting installation on unauthorized buildings. (vii) Requiring the antenna and D.G. Sets to conform to the prescribed standards. 51. However, the following conditions cannot be sustained and neither have anything to do with Building Regulations/Safety norms, nor is the MCD entitled to insist on installations on its own buildings. Similarly, once the NOC of the Residents Welfare Association (RWA) is not required for raising a building, no such NOC can be insisted upon for installation of....