Wireless TT Info Services Ltd v. Municipal Corporation of Delhi

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest? GITA MITTAL, J (ORAL) CM No. 16333/2009 Allowed subject to all just exceptions. W.P.(C) 14164/2009 & CM No.16332/2009

1. The present writ petition raises a challenge to the action of the respondent in sealing the towers cell site /tower antenna of the petitioner installed at 223, Satya Niketan, Moti Bagh, New Delhi.

2. The petitioner contends that it has installed tower antennae for the purposes of providing mobile telecommunications. The towers were installed 2009:DHC:5675: 2: by the petitioner after making an application on 15th March, 2004 to the concerned authority of the Municipal Corporation of Delhi. Reliance is placed on the certifications with regard to the structural safety of the proposed installation which were allegedly submitted to the Municipal Corporation of Delhi. Learned counsel appearing for the petitioner contends that this application was processed and contends that there was deemed acceptance of its application by the Municipal Corporation of Delhi which culminated in the petitioners depositing the required charges on the 16th of September, 2004.

3. Mr. Shailesh K. Kapoor, learned counsel appearing for the petitioner contends that so far as this site is concerned, a notice to show cause dated 18.11.2009 was issued by the MCD under Section 345 A of the Delhi Municipal Corporation Act 1957 requiring the owners/builders/occupiers of the property to show cause as to why the construction be not sealed. It is contended that a detailed response dated 22.11.2009 to this notice to show cause was duly submitted by the present petitioner. A grievance is made that without giving any personal hearing to the petitioner and without consideration of any of the contentions raised by the petitioner, the respondents have illegally sealed the cell site of the petitioner resulting in unwarranted hardships not only to the petitioner but also to the subscribers.

4. Appearing on behalf of the respondents, these submissions are vehemently contested by Ms.Maninder Acharya, learned counsel for the MCD, who submits that the installations are illegal and unauthorised.: 3:

5. Be that as it may, having regard to the directions which I propose to take it not necessary to dwell at length on the factual narration or to record a finding thereon. From the available documents, it appears that the petitioner had made an application to the Municipal Corporation of Delhi for permission before erecting its towers.

6. The Municipal Corporation of Delhi does not appear to have considered the contentions of the petitioner before proceeding in the matter with regard to the sealing. The issues raised by the petitioner include a challenge with regard to not only the factual matrix noticed hereinabove but also the jurisdiction of the Municipal Corporation of Delhi to proceed in the matter. Having issued the notice to show cause, the respondents were bound to have considered the response of the owners/buyers/occupiers of the building before proceeding to take action for sealing the towers which were installed by the petitioner.

7. In issuing the notice, the respondents have accepted that they can proceed in the matter only after issuance and service of the notices to show cause.

8. The petitioner contends that the towers in question have been installed in public interest not recently, but that some of them have been raised openly several years ago. The respondents, therefore, were fully aware of the installations of the towers right from the inception. The action in sealing/ cancellations impacts valid interest of third parties. Mobile communication is certainly not only the accepted mode of communication but is also an: 4: imperative part of todays' lifestyles. In view of the above, the impugned action cannot be sustained on grounds of failure to comply with the well settled principles of natural justice. Accordingly it is directed as follows:-

(i) the respondents shall remove the sealing which has been effected on the tower cell site/tower antenna detailed in para 1 above.

(ii) the respondent shall served a fresh notices to show cause upon the petitioner as well within one week from today. The petitioner shall file response thereto within two weeks thereafter. (iii)the respondent shall fix date and time for personal hearing of the petitioner. Reasoned and speaking orders shall be passed by the respondent after hearing the petitioner and taking into the consideration the contentions which are raised by the petitioner.

(iv) the orders shall be communicated to the petitioner, and, if adverse, implementation thereof shall be kept in abeyance for a period of one week of their communication.

(v) The petitioner shall be at liberty to assail the orders passed by the respondents, if still aggrieved thereby. (vi)It is made clear that nothing herein contain is an expression of the opinion on the merits of the contentions of either side and the respondent shall be free to deal with the matter on a fair consideration, uninfluenced by the orders passed in the present petition.: 5:

(vii) Having regard to the factual narrations and nature of the matter in view of the objections taken by the respondents it is directed that the petitioner in future shall file separate writ petitions dealing with each individual tower.