CELLULAR OPERATORS ASSOCIATION OF INDIA Vs. MCD

JUDGEMENT

(1.) This order shall dispose of two interim applications bearing Nos. 6546/10 and CM 6867/10 filed by the respective petitioners in W.P. (C) No. 3267/2010 and W.P.(C) No. 3423/2010. Since common questions of law and facts are involved in both the writ petitions and identical reliefs have been claimed by the petitioners in their respective interim applications, therefore, the same are being disposed of by this common order.

(2.) These writ petitions have been filed by various individual companies as well as associations representing the interest of cellular licensees. 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 countrys 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. Our voice and messages through mobile reaches to the other end. These cellular service providers are required to establish a complete cellular network. The cellular towers carry the regular signals and pass on the calls from one cell to another and, therefore, these towers are an integral component of the mobile network and are required to be strategically located keeping in mind the radio frequency design, topography, traffic and coverage in the given area. As per the petitioners, cellular towers are the backbone of the cellular mobile telephony and are critical for providing seamless cellular services.

(3.) These mobile service providers did not raise the question of competence or jurisdiction of the MCD so long they were being governed under the previous policy of the MCD dated 20.11.03 and 7.2.2008 but the regnant power of these cell phone service providers has got a jolt by the new policy of the MCD. Besides others, the main cause of heart burn of the petitioners is the fee hike of 2000% in 2010 from that of what was in the year 2000. To give a conspectus, these cellular operators have been granted licence under the Telegraph Act and various mobile towers have been installed by them on various private lands and buildings in various parts of Delhi after taking the consent of the private property owners. The petitioners have also stated that for erection of a telecommunication tower at any location an approval/clearance is required to be taken from Wireless Planning Committee i.e. Standing Advisory Committee on Frequency Allocation (for short referred as SACFA). This Committee clears the height of towers from the point of civil aviation also. It has also been stated that various Government agencies like Airport Authority of India, Railways, ISRO, ONGC, AIR Department of Electronics, Navy, Defence etc. are part of SACFA. Besides this, the cellular operators were also required to take the permission of the MCD for the installation of cellular towers in the area under the jurisdiction of the Municipal Corporation of Delhi. Vide office order dated 20.11.2003 issued by the MCD, permission for installation of temporary structure on roof top of various premises for cellular/basic mobile phone was to be accorded on payment of one time permission charges of Rs. 1 lakh per site and in case the site/tower was to be shared by other cellular phone operator/operators an additional amount of Rs. 50,000/- per sharing was required to be paid. Before granting the said permission these cellular/basic telecom operators were required, besides the fee, to fulfill other conditions laid down by the MCD, which are referred as under:-