2 Jun 2010

Delhi High Court on sealing of towers

In a detailed interim order, the Delhi High Court has temporarily restrained the Municipal Corporation of Delhi (MCD) from sealing towers belonging to cellular phone operators. With senior counsels appearing from both the sides and both sides leading relying upon constitutional and legal provisions, the High Court thought fit to provide for an interim arrangement between the parties, constitute a committee to examine in detail various factual issues and set to terms the parties till the determination in the petition. 

The disputes arose in view of a Circular dated 08.04.2010 issued by the MCD which stipulated "comprehensive conditions to be fulfilled by the cellular operators before they could install the towers on the roof tops of private properties, lands and other structures within the jurisdiction of the MCD". The cellular operators argued that there was no power with the Municipal Corporation to impose such conditions as the power vested with the Central Government in terms of the provisions of the Telegraph Act. They also argued that for allowing these towers, "enhancing the rate of fee from Rs. 1 lakh, which was for a block of 20 years, to Rs. 5 lakhs for a block of 5 years ... (was) wholly unfair, unjust, arbitrary and illegal". 

The MCD sought to defend the Circular and the increase in fees arguing that it was their constitutional obligation to protect the public health and also that "MCD has to spend large amounts of money to take care of the health of the people and for maintaining the roads and other infrastructure and for supervising and regulating the said towers, therefore, in comparison to the expenses incurred by the MCD for regulating the said towers, the hike in fee cannot be termed as unjustifiable."

The High Court took note of the contention that cell towers are a source of health hazard and being of the view that "it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health", directed "that the Secretary, Telecommunication and Commissioner, MCD shall constitute a broad based committee of Technical and Medical experts who can examine all these various studies and the technology and policy adopted by the developed countries in regulating the installation of cellular towers and antennas. The committee so constituted by these authorities shall also have some representatives from the NGOs’, Cellular Associations or public spirited citizens who are engaged in the field of espousing the cause of public health and safety." Thus the High Court provided for an interim arrangement to await the report of the and decide the petition on the basis thereon. 

The High Court, however, took its turn at commenting at the state of affairs relating to the mobile-phone usage in the country. It inter alia observed as under;
In the past few years, cellular mobile industry has grown exponentially and as per the facts placed on record, cellular subscribers crossed 563 million by February, 2010, covering roughly half the country’s population. The paradox is that more people have access to mobile phones than toilets in India. With the first telephone services in 1881 to first time cellular services in 1999 and now boasting to be the second largest user of mobile phones in the world, the cellular phone has indeed been a revolution of one of a kind. It is an inevitable truth that mobile phone is no more a luxury but a part of our very existence. We cannot dispute our dependence on the mobile phone today when owning it has become proportional to personal empowerment. It is a silver bullet to the vagaries and vicissitudes of life. Earlier, the connectivity was scarce but now the service providers with their impeccable connectivity have lured the rickshaw vala and the millionaire alike to its consortium

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