C.W.P. No. 20354 of 2009 [ 1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 20354 of 2009 (O&M) Date of decision: June 03 ,2011 M/s Wireless TT. Info Services Limited and another ..Petitioners v. The State of Haryana and others .. Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. A. K. Chopra and Mr. Kanwaljit Singh, Senior Advocates with Mr. Vishal Gupta, Mr. Rohit Khanna, Mr. V. K. Sharma, Mr. D. K. Singal, Mr. Sandeep Chabbra and Mr. Arjun Lakhanpal, Advocates for the petitioners. Mr. H. S. Hooda, Senior Advocate Mr. Kulvir Narwal and Mr. Randhir Singh, Additional Advocates General, Haryana and Mr. Sanjay Chauhan, Advocate for respondent Nos. 3 and 4 and Mr. Deepak Balyan, Advocate for respondent No. 5 in CWP No. 11489 of 2010. .... Rajesh Bindal J. 1. This order will dispose of a bunch of writ petitions bearing Nos. 20354 of 2009, 577, 586, 711, 713, 1700, 1701, 2159, 2380, 2420, 4285, 10663, 11489 of 2010 and 6029 of 2011, primarily challenging the validity of Haryana Municipal (Erection of Communication Towers) Bye- laws, 2009 (for short, `the Bye-laws'). 2. The facts have been extracted from C.W.P. No. 20354 of 2009. 3. The petitioners in this bunch of writ petitions are claiming to be registered Infrastructure Provider Category-I (IP-1). They erect towers C.W.P. No. 20354 of 2009 [ 2] for the purpose of using or renting out the same to the licensees of telecom services. The petitioners in furtherance to the permission granted by the Central Government as per registration certificate, started the work for erecting and maintaining towers over the premises of private persons on mutually agreed terms. The petitioners had obtained permission from the local authorities in whose jurisdiction the towers were being installed in terms of Section 12 of the Indian Telegraph Act, 1885 (for short, `the 1885 Act') and paid the requisite fee also. However, later on the authorities started demanding huge money. On 12.8.2009, in exercise of powers conferred under Section 200(xxx) of the Haryana Municipal Act, 1973 (for short, `the 1973 Act'), the State of Haryana notified draft Bye-laws for the purpose and invited objections. Petitioner No. 1 filed detailed objections which included objection regarding incompetence of the State on the subject considering the fact that telecommunication falls within the domain of Union Government. Without considering the objections filed by petitioner No.1, final notification was issued on 11.11.2009 notifying the Bye-laws. It is these Bye-laws, which have been impugned in the bunch of writ petitions. 4. In some of the writ petitions, the Bye-laws so impugned have been framed in exercise of power conferred under Sections 88, 392 and 393 of the Haryana Municipal Corporation Act, 1994 (for short, `the 1994 Act'). These are in similar lines. 5. Learned counsel for the petitioners submitted that telecommunication being covered under Entry 31 in List-I of Seventh Schedule to the Constitution of India (Union List), the towers erected by the petitioners meant for use for telecommunication purposes, the State is totally incompetent to frame any law to control the same. It was submitted that towers are the integral part of telecommunication system for which the power vests in the Union Government. The definition of terms `post' and `telegraph authority' as contained in Section 3(5) and (6) of the 1885 Act were referred to. It was submitted that the petitioners have been notified as telegraph authority. Further it was submitted that Section 10 thereof provides power to the telegraph authority to place and maintain telegraph C.W.P. No. 20354 of 2009 [ 3] line under, over, along, or across, and posts in or upon, any immovable property subject to certain exceptions provided therein. In the absence of any competence with the State, exercise of power in any manner in the form of grant of licences/permission or levy of fee etc. for setting up of tower will be totally incompetent. 6. It was further submitted that there being no substantive provision as such even in the 1973 Act, Section 200, sub-section (xxx) was added enabling the State to make Bye-laws, inter alia, to regulate erection of communication tower. Under the garb of power so delegated, the State Government has notified the impugned Bye-laws which not only provide for the power to the concerned authority even to see the location of the tower without realising the fact that towers at different places are not erected for the sake of it rather it is either to boost the signal or maintain the requisite radio frequency. Even maximum height of the tower has also been fixed in the Bye-laws though the same has to be need based. Exhorbitant amount of licence fee has been fixed to be paid for each of the site. In addition thereto, annual renewal fee @ 10% of the licence fee has been prescribed. In fact, there is no power conferred in the 1973 Act to the local authority to levy any tax of this kind. Article 265 of the Constitution of India comes to the rescue of the petitioners, which provides that no tax can be imposed or recovered without any authority of law. Even if the same is considered as a fee, the element of quid pro quo is totally missing. Even for levy of fee there is no enabling provision under the 1973 Act. The petitioners are erecting towers by taking land on lease/rent or otherwise from the owners thereof on mutually agreed terms. In fact, it clearly violates the petitioners' fundamental rights guaranteed under Article 19(1)(g) of the Constitution of India. The levy of such exhorbitant fee is sought to be justified by the local authority by stating in the reply that the local authorities are also entitled to share huge income earned by the telecom service providers as they need huge funds for developing and maintaining infrastructure in cities/towns and there financial health is quite poor. The levy of fee would strengthen the financial condition of the local authority. The submission of learned C.W.P. No. 20354 of 2009 [ 4] counsel for the petitioners was that the aforesaid reason given by the State to levy fee, though beyond its legislative or delegated authority, cannot be justified. 7. Referring to the definition of `building', as contained in Section 2(2) of the 1973 Act, it was submitted that tower cannot be said to be a building used for the purpose of human habitation. Once the tower is not a building, the local authorities do not have any power to direct the petitioners to obtain licences/permission or pay any fee for the purpose. In fact, the same would amount to interference in the telecom services being provided by the petitioners, which clearly falls within the domain of Union Government. In case, as per the requirement, a tower is to be erected at a particular place and of a particular height and the local authorities refuse the permission therefor, the petitioners will not be able to provide telecom services or non-grant of permission for any reason would lead to interference in the telecom services. The Bye-laws notified by the State confer arbitrary power on the authorities to grant or refuse permission or even point out the premises where such towers should be erected. These things cannot be provided in the Bye-laws, as it is need based considering the strength of signal and frequency, which is highly technical. In fact, the local authorities do not have any expertise to examine these aspects while granting or refusing the permission. 8. Learned counsel further referred to the recommendations made by the Telecom Regulatory Authority to the Department of Telecommunication to clarify that the local authority's power in terms of the 1885 Act is limited only to those properties which are vested or controlled or managed by the local authority and also opined that a Joint Secretary in the Department of Telecommunication be set up as a dispute resolution authority for dealing with the cases of refusal of permission or imposition of condition for grant of permission by the local authorities. The submission was that such directions were issued by the statutorily constituted authority for the reason that there were numerous problems being faced by the telecom service providers on account of different conditions/restrictions put by the local authorities while granting/refusing C.W.P. No. 20354 of 2009 [ 5] permission for erection of tower, as the same were causing hurdles in the smooth implementation of the telecom policy of the government. 9. In support of the submissions, learned counsel for the petitioners placed reliance upon The Hingir-Rampur Coal Co. Ltd. and others v. State of Orissa and others, AIR 1961 SC 459; Om Parkash Agarwal etc. v. Giri Raj Kishori and others, AIR 1986 SC 726; Calcutta Municipal Corpn. and others v. Shrey Mercantile (P) Ltd. and others, (2005) 4 SCC 245; Jindal Stainless Ltd. and another v. State of Haryana and others, AIR 2006 SC 2550; Gupta Modern Breweries v. State of J&K and others, (2007) 6 SCC 317 and M/s Indian Oil Corporation Limited v. State of Haryana and another, 2008(4) RCR (Civil) 620. 10. On the other hand, learned counsel for the State submitted that the subject on which the State has framed Bye-laws does not fall in Entry 31 of List-I of Seventh Schedule to the Constitution of India, as it has nothing to do with the telecommunication, rather, the State has wide power under Entries 5, 6, 18 and 49 of List-II of Seventh Schedule to the Constitution of India to deal with building activities in the local areas. There are two different aspects, namely, erection of a structure in the form of a tower and secondly providing of service. The State/local authorities do not want to interfere with the working of the petitioners with regard to their providing telecom service. However, they certainly have a right to regulate the erection of towers. It would be totally misconceived to argue that the towers do not fall within the term `building'. The definition as contained in Section 2(2) of the 1973 Act does not include only the premises which are used for human habitation, rather, it also uses the term `or otherwise' and further `steel structure' is also included therein. Along with this, the definition of `building' as contained in Bye-law 2(xii) of Haryana Municipal Building Bye-laws, 1982 (for short, `Building Bye- laws') was referred to. The Building Bye-laws provide that various aspects, such as safety, structural strength, height, load carrying capacity etc. of the building to be erected in different areas within the municipal limits, are to be considered by the local authority while granting or refusing permission. The petitioners in the present case erect towers which have the height of C.W.P. No. 20354 of 2009 [ 6] 30 to 50 meters. The case projected by them is that they enter into agreement with the owners of various private buildings and erect the towers on the top of the building. As to who will ensure that a tower of such a height should not be erected at a particular place for the reason that the same may either be not safe considering the strength of the building beneath or it may result in spoiling the skyline of the city. It would be totally misconceived to argue that tower has not specifically been mentioned in the definition of `building'. The definitions as contained in the statute are to be considered in the light of changing times. The statutes are living documents. These have to be given purposive interpretation. In addition to that, the impact of electromagnetic wave on the health of the people residing in the area is also to be considered by the local authority as the same also falls within the domain of the local authority. 11. Still further, it was pleaded that reliance of the petitioners on Articles 19(1)(g) or 265 of the Constitution of India is totally mis-placed for the reason that the local authority in the present case has not levied any tax as it has levied only a regulatory fee. The amount being charged as a licence fee per tower is quite nominal. The same is one time. The renewal fee is 10% p.a. thereafter. A reasonable classification has been made considering the potential of the town where the towers have to be erected. No specific service as such is required to be provided as the element of quid pro quo is not required. The impugned Bye-laws have been framed strictly in terms of the powers conferred under Section 200(xxx) of the 1973 Act. In support of his submissions, reliance was placed upon Aircel Digilink India Ltd., Allahabad v. Nagar Nigam, Allahabad and another, 2000 1 AWC 562; Bharti Tele-Ventures Limited, a company incorporated under the Companies Act, 1956 and Mr. Sunil Bharti Mittal v. State of Maharashtra, through the Secretary, Urban Development Department and Pune Municipal Corporation, 2007(2) ALLMR 841; Reliance Telecommunication Ltd. v. S.I. Of Police, MANU/KE/2352/2010; Cellular Operators Association of India and others v. MCD, MANU/DE/1198/2010; Kerala State Science & Technology Museum v. Rambal Co. and others, (2006) 6 SCC 258 and Cellular Operators C.W.P. No. 20354 of 2009 [ 7] Association of India and others v. Municipal Corporation of Delhi, W.P. (C) No. 3267 of 2010, decided on 29.4.2011. 12. No other argument was raised. 13. Heard learned counsel for the parties and perused the paper book. 14. The relevant provisions of various statutes/Bye-laws, as referred to above, are extracted below: “Articles 19(1)(g) and 265 and Entries 31 of List-I, Entries 5, 6, 18, 49 and 66 of List-II of the Constitution of India Article 19(1)(g) 19. Protection of certain rights regarding freedom of speech, etc. - (1) All citizens shall have the right -- xx xx xx (g) to practise any profession, or to carry on any occupation, trade or business. Article 265 265. Taxes not to be imposed save by authority of law.- No tax shall be levied or collected except by authority of law. Entry 31 of List-I 31. Posts and telegraphs, telephones, wireless,broadcasting and other like forms of communication. Entries 5, 6, 18, 49 and 66 of List-II 5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration. 6. Public health and sanitation; hospitals and dispensaries. xx xx xx 18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization. xx xx xx C.W.P. No. 20354 of 2009 [ 8] 49. Taxes on lands and buildings. xx xx xx 66. Fee in respect of any of the matters in this List, but not including fees taken in any court. Sections 3(5) and (6) and 10 of the 1885 Act 3. Definitions.- In this Act, unless there is something repugnant in the subject or context,- xx xx xx (5) “post” means a post, pole, standard, stay, strut or other above ground contrivance for carrying, suspending or supporting a telegraph line; (6) “telegraph authority” means the Director-General of Posts and Telegraphs, and includes any officer empowered by him to perform all or any of the functions of the telegraph authority under this Act; xx xx xx 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 post; 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 or management C.W.P. No. 20354 of 2009 [ 9] 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. Sections 2(2), 70 and 200 (xxx) of the 1973 Act 2. Definitions- In this Act, unless there is anything repugnant in the subject or context,- xx xx xx (2) “building” means any shop, out-house, hut, house, shed or stable, whether used for the purpose of human habitation or otherwise and whether of masonary, bricks, wood, mud, thatch, metal or any other material whatever, and includes a wall and a well; xx xx xx 70. Taxes that may be imposed.- (1) Subject to any general or special orders of the State Government in this behalf and to the rules, a committee may, from time to time, for the purposes of this Act, impose in the whole or any part of the municipality any of the following taxes, tolls and fees, namely: (i) a tax on professions, trades, callings and employments; (ii) a tax on vehicle plying for hire or kept or registered under, the Motor Vehicles Act, 1988 (Act 59 of 1988), within the municipality; (iii) a tax on animals used for riding, draught or burden, kept for use within the municipality, whether they are actually kept within or outside the municipality; (iv) a tax on dogs kept within the municipality; C.W.P. No. 20354 of 2009 [ 10] (v) a show tax; (vi) a toll on vehicles entering the municipality; (vii) a tax on boats moved within the municipality; (viii) a tax on the consumption of electricity at the rate of not more than five paise for every unit of electricity consumed by any person within the limits of the municipality; (viiia) a fire fix; (viiib) a sanitation tax; (viiic) a tax on driving licences issued under the Motor Vehicles Act, 1988 (Act 59 of 1988), within the municipality; (viiid) a development tax on the increase in urban land values caused by the execution of any development or improvement work; (viiie) a general tax not more than 15% of the annual value of buildings and lands within the municipal area; Provided that the general tax may be levied on a graduated scale, if the government so determines; Provided further that the general tax would not be leviable on the buildings and lands within the Lal Dora of villages forming part of the municipal area provided they are self- occupied. (ix) a fee with regard to pilgrimages; (x) a fee with regard to drainage; (xi) a fee with regard to lighting; (xii) a fee with regard to scavenging; (xiii) a fee for cleansing of latrines and privies; (xiv) a fee in the nature of costs for providing internal services under the scheme framed under section 203; (xv) with the previous sanction of the State Government, any other tax, toll or fee which the State Legislature has power to impose in the State under the Constitution of C.W.P. No. 20354 of 2009 [ 11] India. (2) The rates of any tax, toll or fee under sub-section (1) except that under clause (viii) thereof shall be determined by the Committee. Provided that such rates shall not exceed the maximum limits which the State Government may, from time to time, by notification, specify in this behalf. xx xx xx 200. General bye-laws- The State Government shall make bye-laws applicable to all or any of the municipalities as it may, by notification, specify, by which the committees shall- xx xx xx (xxx) regulate the laying of communication cables (underground as well as overground), erection of communication towers and dish antennas established and maintained by private agencies as well as semi-Government agencies; and xx xx xx 15. The contention raised by learned counsel for the petitioners that erection of towers cannot be regulated by the local authority for the reason that it does not fall within the definition of building and there being no other provision in the 1973 Act under which it can be controlled, is untenable. The contention raised that any premises to be included in the definition of `building' should be used only for human habitation is also mis-conceived. A perusal of the definition of `building' as contained in Section 2(2) of the 1973 Act shows that the same means any shop, out-house, hut, house, shed or stable whether used for the purpose of human habitation or otherwise and whether of masonary, bricks, wood, mud, thatch, metal or any other material whatever and includes a wall and a well. The aforesaid definition is inclusive in character. It is not restricting the meaning of word 'building' in any manner. It includes any structure, which is made of metal. Along with this, C.W.P. No. 20354 of 2009 [ 12] reference can be made to the definition of `building' as contained in Building Bye-laws as well, which provides that it can be any structure may be any part of the building or affixed thereto. The towers in the present case are made of steel and they are erected on the roof tops or in a compound of the building. 16. Even if the word `tower' as such has not been mentioned in the definition of the term `building', as contained in the 1973 Act or the Building Bye-laws framed thereunder, but still when the aforesaid laws were framed, the erection of towers in such a large number within the residential area was not foreseen. The courts cannot be silent spectators in such a situation and allow an activity unabated which is required to be controlled. The courts are required to interpret the statutes in a manner that continuously updates its wordings with the changing time. It is to be presumed that enactment has to be applied at any future time, considering the changed conditions and need of the hour. Reliance for the purpose can be placed upon a judgment of Hon'ble the Supreme Court in State of Maharashtra v. Dr. Praful B. Desai, AIR 2003 SC 2053, where their Lordships on the principle of interpretation of an ongoing statute (in that case Cr. P.C.) relied on the commentary titled “Statutory Interpretation”, 2nd Edition of Francis Bennion and opined as under: “It is presumed the Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wordings to allow for changes since the Act was initially framed. While it remains law, it has to be treated as always speaking. This means that in its application on any day, the language of the Act though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as a current law. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred since the Act's C.W.P. No. 20354 of 2009 [ 13] passing, in law, in social conditions, technology, the meaning of words and other matters .... That today's construction involves the supposition that Parliament was catering long ago for a state of affairs that did not then exist is no argument against that construction. Parliament, in the wording of an enactment, is expected to anticipate temporal developments. The drafter will foresee the future and allow for it in the wording.