Gujarat High Court
Bharti vs Surat on 7 March, 2012
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
Print
LPA/1785/2011 19/ 19 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1785 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2430 of 2011
To
LETTERS
PATENT APPEAL No. 1872 of 2011
In
SPECIAL
CIVIL APPLICATION No. 2763 of 2011
With
CIVIL
APPLICATION No. 12002 of 2011
In
LETTERS
PATENT APPEAL No. 1785 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE A.J. DESAI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To
be referred to the Reporter or not ? YES
3
Whether
their Lordships wish to see the fair copy of the judgment ? YES
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? YES
5
Whether
it is to be circulated to the civil judge?NO
=========================================
BHARTI
INFRATEL LTD, THROUGH CONSTITUTED ATTORNEY, RAJU
Versus
SURAT
MUNICIPAL CORPORATION & ANR
=========================================
Appearance :
MR
SHALIN N MEHTA ASSISTED BY MS. VIDHI J. BHATT for Appellant
MR
PRASHANT G. DESAI, SENIOR COUNSEL ASSISTED BY MR KAUSHAL
D PANDYA for Respondent No. 1
MR N.J. SHAH AGP for Respondent No.
2
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE A.J. DESAI
Date
: 07/03/2012
CAV
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 The appellant - original petitioner M/s Bharti Infratel Limited which is a public limited company incorporated under the Companies Act, 1956 is established to operate Cellular Telephone Services under the licence which has been granted under the provisions of the Indian Telegraph Act, 1885, has challenged the judgment and order dated 14.10.2011 passed by the learned Single Judge in above referred writ petitions dismissing it's petitions, by which the appellant/petitioner had challenged the action of Surat Municipal Corporation demanding the documents by its letter dated 23.12.2010 to obtain No Objection Certificate to construct the telecommunication towers at different places.
2 The short facts arising in these appeals are as under:
The appellant - petitioner Bharti Infratel Limited, is a public limited company incorporated under the Companies Act, 1956 on 13.11.2006 and the registered office of the company is in New Delhi. The company commenced its business on 10.4.2007.
In and around 1995, the Government of India, pursuant to the new Telecom policy, decided to allow private operators to provide basic and cellular telecommunication and paging services in India which would put the country on the global telecommunication map. The Government of India issued circulars to various authorities requiring them to extend all possible help to the private telecom service operators.
To operate cellular telecom services, a licence under the provisions of the Indian Telegraph Act, 1885 is necessary. Government of India, Ministry of Communications and IT, Department of Telecommunication, had issued a registration certificate on 25.1.2007 registering the appellant-petitioner as infrastructure provider to establish and maintain assets like Dark Fibres, Right of Way, Duct and Tower to be granted on lease, rent, sale basis to the licensees of telecom services under Section-4 of the Indian Telegraph Act, 1885. For providing cellular telephone service, the equipments comprise of a cell site or a cellular mobile transmission tower contain a pre-fabricated shelter made of insulating PUF material made on fibres; electronic panel; base Transceiver Station (BTS) and other ratio transmission and reception equipment; a diesel generator set; six pieces of 6 to 9 meters length each made of hollow steel galvanized pipes and steel fabricated tower.
By a Notification dated 24.5.1999, the Government of India in exercise of powers vested in it under Section 19-B of the Indian Telegraph Act, 1885, conferred upon all the licensee/ Private basic telephone service operators the powers under Section -4 of the said Act. By another Notification dated 7.2.2002, the term `private basic telephone service operators' was widened to include the `cellular telephone service operators". In view of the power granted to them by the Central Government, the appellant- petitioner is deemed to be a `telegraph authority' within the meaning of Section-4 of the said Act.
Under Sections 10 and 11 of the Indian Telegraph Act, 1835, a telegraph authority is vested with certain powers including the power to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property and to enter on property in order to repaid or remove such telegraph lines, etc. upon payment of compensation to the aggrieved party owners. The Sections 10 and 11 of the Indian Telegraph Act, 1885 reads as under:
"10. Power for telegraph authority to place and maintain telegraph lines and posts. The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across and posts in or upon, any immovable property; Provided that (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained.
(b) the Central Government shall not acquire any right other than that of user only in the property under, over , along, across, in or upon which the telegraph authority places any telegraph line or posts; and
(c) except as hereinafter provided, the telegraph authority shall not exercise those powers in respect of any property vested in or under the control of management of any local authority, without the permission of that authority; and
(d) in the exercise of the powers conferred by this section, the telegraph authority shall do as little damage as possible, and, when it has exercised those powers in respect of any property other than that referred to in clause (c), shall pay full compensation to all persons interested for any damage sustained by them by reason of the exercise of those powers.
11. Power to enter on property in order to repair or remove telegraph lines or posts-The telegraph authority may,at any time, for the purpose of examining, repairing, altering or removing any telegraph line or post, enter on the property under, over, along, across, in or upon which the line or post has been placed. Provisions applicable to property vested in or under the control or management of local authorities."
Section 12 of the Indian Telegraph Act, 1885 provides for power for local authority to give permission under Section -10, Clause (c) subject to conditions stipulated therein.
"12 Power for local authority to give permission under section 10, clause (c), subject to conditions-Any permission given by a local authority under section 10, clause (c), may be given subject to such reasonable conditions as that authority thinks fit to impose, as to the payment of any expenses to which the authority will necessarily be put in consequence of the exercise of the powers conferred by that section, or as to the time or mode of execution of any work, as to any other thing connected with or relative to any work undertaken by the telegraph authority under those powers."
3 The appellant - petitioner maintains and operates more than about 200 sites within the area covered by respondent No.1 - Surat Municipal Corporation. However, in the present case, it relates to about 87 sub-sites, for which, the appellant -petitioner made an application to the Corporation for No Objection Certificate which is provided under the General Development Control Regulations ("hereinafter referred to as "GDCR" for short) framed by Government of Gujarat under the Gujarat Town Planning and Urban Development Act, 1976. The application was submitted by the appellant-petitioner to the Executive Engineer, Surat Municipal Corporation, on 22.11.2010 and requested to grant No Objection Certificate as required under the provisions of GDCR. It is the case of the appellant-petitioner that they had followed the provisions of GDCR as far as raising the Telecommunication Infrastructure is concerned, which is provided under Chapter-XI of the said GDCR.
4 In response to the application, the appellant received a communication dated 23.12.2010 from the respondent No.1- Corporation, by which the Corporation demanded about 8 documents for getting NOC to install the telecom towers on the building. The said demands mentioned in the communication are as under:
1) Certified copy of development permissions and approved plan of the concerned building.
2) Certified copy of structural stability certificate of the concerned building (from registered Structural Engineer, Surat Municipal Corporation or competent authority equivalent to it).
3) Certified copy of No Objection Certificate of Airport Authority.
4) Certified copy of Understanding from SACFA.
5) Certified copy of contract with owner (Memorandum of Understanding).
6) Certified copy of Terrace plan along with floor heights.
7) "No Objection Certificate"
with signature of each and every member of the Society.
8) Evidence regarding payment towards increment contribution (I.C.) of the concerned building.
5 In response to the demand, the appellant by its reply dated 7th February, 2011, explained that as per Chapter-21 of the GDCR and particularly as per Regulation No. 20.11, there is no provision to provide the above referred documents. By quoting a decision of this Court, it was requested by the appellant company that in view of the judgment, there is no need to supply the documents which were demanded by the respondent No.1 - Corporation.
6 It is the case of the appellant that the respondent No.1 - Corporation instead of following the decision rendered by the High Court, issued another letter and called upon the appellant to produce the documents within a period of three days, failing which, the telecommunication towers would be sealed.
7 It is the case of the appellant that even before the period of three days is over, some of the cellular sites were sealed by the Corporation. Therefor appellant approached the Surat Municipal Corporation to resolve the problem and the appellant was verbally informed that the sealed towers would be opened only on payment of Rs.50,000/- per cellular tower. It is the case of the appellant that for several operators, it has paid a sum of Rs. 130 lacs under duress to open the seals and to prevent further sealing of mobile towers.
8 The appellant, being aggrieved and dissatisfied with the communication dated 23.12.2010 and with the high handed action of the respondent-Corporation, filed writ petitions before this court.
9 Pursuant to the notice issued by th learned Single Judge, the respondent Corporation appeared through its Lawyer and filed its affidavit-in-reply opposing the petition filed by the appellant company and also produced its own Circular dated 29.7.2008 wherein certain conditions have been mentioned by the Executive Engineer of Surat Municipal Corporation to be followed before granting permission to raise the telecommunication tower. By placing reliance on the said Circular dated 29.7.2008, it has been categorically stated in paragraph-9 of the affidavit-in-reply that in Clause-5 of the said Circular it is mentioned that "if the tower is placed/raised on a building of which the plans are sanctioned or regularized, the Corporation will charge Rs. 10,000/- and the tower which is placed on the illegal construction, the Corporation will charge Rs.25,000/-. It is also contended in the reply that the Corporation is acting in accordance with the law and in accordance with the GDCR and, therefore, the petition shall be dismissed.
10 We have heard learned Advocate Mr. Shalin N. Mehta assisted by Ms. Vidhi J. Bhatt for appellants; learned Senior Counsel Mr. Prashant G. Desai assisted by Mr. Kaushal D. Pandya for respondent No.1 and learned AGP Mr. N.J.Shah for respondent No.2. We have also perused the judgment and order passed by the learned Single Judge. The learned Single Judge raised three questions for determination which are as under:
Whether the Surat Municipal Corporation was justified in asking for 8 items as mentioned in the requisition letters dated 23.11.2010 (Bharti Infratel Ltd.) and 10.02.2011 (Indus Towers Ltd.)?
Whether the Surat Municipal Corporation was justified in asking for Rs.25,000/- for removing the seal of the cell sites/towers?
Whether for maintenance and erection of the mobile tower/cell sites, the Building Use Permission and/or occupation certificate for the building on which the mobile tower/cell site is erected is required?
11 After elaborate reasons, the learned Single Judge answered the Questions No.1 and 3 against the appellant/petitioner and the Question No. 2 is concerned, it is answered in favour of the appellant-petitioner.
12. The appellant, being aggrieved and dissatisfied with the said judgment and order by which the learned Single Judge has held against them, qua, the observations made by holding the Questions No.1 & 3 against the appellant/petitioner, has preferred this appeal under Clause-15 of the Letters Patent. After considering the matter, the learned Single Judge in paragraph-7 has held as under:
" In view of the above and for the reasons stated herein above, all the petitions succeed in part and it is held that the insistence on the part of the respondent Corporation to produce the development permission and/or sanctioned plan of the building on which the mobile towers are to be placed and other items asked for in the checklist in the requisition letters dated 23.11.2010 (Bharti Infratel Ltd.) and 10.02.2011 (Indus Towers Ltd.), are neither illegal nor arbitrary. However, it is directed that the Corporation shall consider the application of the respective petitioners for NOC to install the mobile tower without insisting for Building Use Permission at this stage, however can insist for production of development permission and sanctioned plan with respect to the building on which the tower is to be installed. However, before making use of such mobile tower, such person has to produce the Building Use Permission and/or occupancy certificate of the building on which such mobile tower is placed and is used. In other words, the application for NOC for erecting/placing the mobile tower on the roof top/terrace of a building can be considered without insisting for the Building Use Permission, however, has to produce the development permission and sanctioned plan with respect to the building on which such tower is to be installed, however, the Building Use Permission shall be required before making use of such mobile tower as required under regulation 6.3 of the GDCR. So far as charging of Rs.25,000/- for sealing/desealing the mobile tower, petitions succeed and it is held that charging of Rs.25,000/- per tower for sealing/desealing the mobile tower is too excessive and unreasonable which is quashed and set aside, however, it will be open for the respondent Corporation to charge reasonable amount considering the expenses to be incurred for sealing/de-sealing of the tower and some other additional amount towards administrative expenses, if they advise. Consequently, the respondent Corporation is directed to refund the amount of Rs.25,000/- which is charged for sealing/de-sealing the mobile towers in question. Rule is made absolute to the aforesaid extent only in each of the petitions. No cost."
13 Mr. Shalin Mehta, learned Advocate, appearing for the appellant-petitioner has submitted that in absence of any contention raised by the Corporation about the provisions of GDCR with regard to development, occupancy certificate, there was no need for the learned Single Judge to consider the same in light of special provisions made qua raising telecommunication towers upon a building. It was argued by Mr.Mehta that if the telecommunication tower can be constructed either on an open land or on a building and to raise such tower, the company, which is to raise such construction, shall have to follow Clause 20.11 of the GDCR and no other requirement/documents is necessary as demanded by the Corporation. Clause 20.11 of the GDCR makes provision for telecommunication infrastructure (paging, cellular, mobile, etc) which reads as under:
20.11 Telecommunication Infrastructure (Paging, Cellular mobiles, 'V' SAT, MTNL, etc.) Following provision shall apply for telecommunication infrastructure.
a) Location:
The Telecommunication Infrastructure shall be either placed on the building roof tops or on the ground or open space within the premises subject to other regulations.
b) Type of Structure:
(i) Steel fabricated tower or antennae's on M.S. Pole
(ii) Pre-fabricated shelter of fibre glass or PVC on the building roof top/terrace for equipment.
(iii) Masonry Structure/Shelter on the ground for equipment.
(iv) DG Set with sound proof cover to reduce the noise level.
c) Requirement:
(i) Every applicant has to obtain/procure the necessary permission from the "Standing Advisory Committee or Radio Frequency Allocation" (SACFA) issued by the Ministry of Telecommunications.
(ii) Every applicant will have to produce the structural stability certificate from the registered structural engineer which shall be the liability of both parties.
(iii) Applicant have to produce/submit plans of structure to be erected.
d) Projection:
No pager and/or Telephone Tower shall project beyond the existing building line of the building on which it is erected in any direction.
2) Deposit and Fees: The fees for erection and maintenance of the Telecommunication infrastructure shall be charged as decided by Competent Authority from time to time."
14 Another contention raised by Mr.Mehta, learned Advocate for the appellant that the Corporation itself has provided under its Circular dated 29.7.2008 and particularly Clause-5 that the tower can be raised either on a legally constructed building or on an illegally constructed one, but the fees would be different for raising the telecommunication tower. Therefore, indirectly, the Corporation has accepted that the telecommunication tower can be raised even on a building which was constructed without any permission by the Corporation.
15 On the other hand, Mr. Prashant G. Desai, learned Senior Counsel, appearing for the respondent No.1 - Corporation has argued that, as per the GDCR, the documents which are demanded by the Corporation are necessary to grant NOC to raise the telecommunication towers. However, it was further submitted by Mr. Desai that if the Court comes to the conclusion that the Corporation cannot demand the documents other than Clause 20.11 of the GDCR, it may be clarified that if the building, upon which the telecommunication tower is constructed, is without any legal permission, which is required under the Bombay Provincial Municipal Corporation Act (BPMC Act), granting the NOC to raise the telecommunication tower on such building, would not be treated as permission to the building which is otherwise necessary under the BPMC Act, and is granted to the building itself.
16. We have considered the submissions advanced by the learned Advocates for the respective parties and have carefully perused the documents produced by the appellant/petitioner along with the petition and by respondent with it's affidavit-in-reply. Appellants have relied upon some unreported judgments which are annexed with these appeals.
17In the case of Indus Towers Ltd vs. State of Gujarat & Ors.(Special Civil Application No. 14591 of 2008), by Order dated 7.10.2009, the Division Bench of this Court (Coram:
K.S. Jhaveri & Z.K. Saiyed, JJ) has observed in paragraph-6 as under:
"6. We would like to emphasize here than an application for permission for installation of a Mobile Tower needs to be considered only in the light of the provisions of Regulation 21.11 of the General Development Control Regulations. Once an applicant fulfills the requirements envisaged in the Regulation 21.11,the competent authority cannot ruse permission for other extraneous reasons which are outside the parameters of the Regulation governing telecommunication infrastructure. It can be gleaned from the record that the petitioner Company has fully complied with the requirements envisaged in Regulation 21.11 of the General Development Control Regulations. Nothing more is needed to be complied with by the petitioner for getting permission for the installation of the Mobile Tower. In this view of the matter, we are of the opinion that this petition requires to be allowed and the impugned communication dated 02.12.2008 as also the impugned order dated 02.03.2009 are required to be quashed and set aside."
18 In another case of Indus Towers Limited vs. State of Gujarat & Anr.
(Special Civil Application No.1898 of 2009 and allied matters) the Division Bench of this Court (D.A. Mehta and H.N. Devani, JJ.) by judgment and order dated 22.4.2010 has held that the action of the Government by issuing a Resolution to levy and recover annual permission fee on mobile telecommunication towers in the areas covered under Municipal Corporation/ Municipalities in the State was quashed and set aside. In paragraphs 40 and 41 it was held as under:
"40. In view of the above discussion, it is hereby declared that the impugned Government Resolution dated 11th December, 2008 issued by the Government of Gujarat Urban Development and Urban Housing Department is ultra vires the provisions of Article 265 of the Constitution as well as ultra vires the provisions of the Bombay Provincial Municipal Corporations Act, 1949 as well as the Gujarat Municipalities Act, 1963. In the aforesaid premises, the impugned Government Resolution being contrary to the decision of this Court in Reliance Communications Limited (supra) as well as having been issued without any authority of law cannot be sustained and deserves to be quashed and set aside.
41. In the result the petitions succeed and are accordingly allowed. The impugned Government Resolution dated 11th December, 2008 issued by the Government of Gujarat, Urban Development and Urban Housing Department as well as the demand notices issued pursuant thereto are hereby quashed and set aside. Rule is made absolute accordingly with no order as to costs."
19 In view of the above said judgment, it was argued that the demand of Rs. 50,000/- by respondent No.1-Surat Municipal Corporation is not tenable in law.
20 It was further argued that in the case of Fascel Limited vs. AEC Co. Limited (Special Civil Application No. 6270 of 2001) a Division Bench of this Court (Coram: Hon'ble the Chief Justice Mr. D.M. Dharmadhikari as His Lordship then was and Hon'ble Mr. Justice Ravi R. Tripathi), has held that the petitioner has to fulfill the requirements of Regulation 21.11 of the GDCR and the building Use Permission is not necessary for installation of BTS, shelter and antennae. This decision was challenged by the Municipal Corporation by way of filing Civil Appeals No. 6530 of 2004 and 6531 of 2004 before the Apex Court. The Apex Court by its order dated 29.9.2010 disposed of the appeals in view of the decision in Civil Appeal No. 6529 of 2004. The decision in Civil Appeal No. 6529 of 2004 is perused by us by which the Apex Court has confirmed the judgment and order passed by the Division Bench of this Court in Special Civil Application No. 6270 of 2001. The decision in Civil Appeal No. 6529 of 204 was perused by us by which the Apex Court has confirmed the judgment and order passed by Division Bench of this Court in above referred Special Civil Application No. 6270 of 2001.
21 In view of above, the provisions contained in Clause 20.11 of GDCR, the contents of Circular dated 29.7.2008 issued by the respondent No.1 - Corporation and in view of the judgments delivered by two different Benches of this Court, we hereby hold that the respondent No.1- Corporation was not justified in asking for 08 documents mentioned in Letter dated 23.11.2010.
22 We also hereby hold that if the appellant fulfills the conditions of Clause 20.11 of the GDCR, no other documents shall be demanded by the respondent No.1-Corporation.
23. We further hold that any amount paid by the appellant - company other than the prescribed by the respondent No.1 - Corporation shall be refunded to the appellant within a period of six weeks from today.
24. It is also clarified that in the case of No Objection Certificate issued by the respondent No.1-Surat Municipal Corporation to raise telecommunication towers on a building, which was constructed without obtaining necessary permission from the Corporation as required under the provisions of BPMC Act, such builders/occupants of such buildings, shall not claim any right that since No Objection Certificate has been issued to the appellant company to raise the telecommunication tower, it tantamounts to regularizing the construction of the building. It is further clarified that if the respondent Corporation finds that a building is constructed in violation of any provisions of the BPMC Act and is having a telecommunication tower with NOC granted under Clause 20.11 of the GDCR, then it is open for the Corporation to take appropriate legal steps in accordance with law and the appellant company shall not raise any objections in that case.
25. In view of the aforesaid, the appeals are allowed and the judgment and order dated 14.10.2011 passed by the learned Single Judge in Special Civil Application No.2430 of 2011 and other cognate matters, is hereby quashed and set aside as far as the issues which were decided against the appellant. No order as to costs.
26. In view of the aforesaid order passed in the Appeal, Civil Application No.12002 of 2011 also stands disposed of accordingly.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair Top