Wireless TT Info Services Ltd v. Municipal Corporation of Delhi and Anr

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. 16387/2009 Allowed subject to all just exceptions. W.P.(C) 14198/2009 & CM No.16386/2009

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 Mustakil No.030, Killa No.7, Min.Village Kapashera, popularly called 23, West End Plaza, 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:5676: 2: by the petitioner after making applications 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 these applications were processed. The submission is that its application stood accepted by the Municipal Corporation of Delhi and that the required charges were deposited by the petitioner.

3. A grievance is made that without giving any notice or personal hearing to 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. Mr.Kapur, learned counsel who contends that despite full knowledge of the fact that it was the petitioner who had approached the Municipal Corporation of Delhi for permission, no notice to show cause at all has been served upon the petitioner.

5. 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.

6. 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 applications to the Municipal Corporation of Delhi for permission before erecting its towers. On behalf of the petitioner it is urged that no: 3: notice has been issued or served with regard to this site. 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.

7. 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 some time 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 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 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.: 4:

(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.

(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.

8. This writ petition and application are disposed of in the above terms. Dasti to parties. GITA MITTAL,J DECEMBER 23, 2009 rds