[1] IN THE HIGH C IN THE HIGH C IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.7824 OF 2005 1. Bharti Tele-Ventures Limited, a company incorporated under the Companies Act, 1956 and having its registered office at Qutub Ambience, B-5/12, Meheroli Road, New Delhi - 110 030 and having its office at VEGA Centre, "A" Building, Swargate, Shankar Seth Road, Pune-37. 2. Mr. Sunil Bharti Mittal, of New Delhi, Indian Inhabi- tant, having his address at H-5/12, Qutab Ambience, Mehrauli Road, New Delhi - 110 030. .... Petitioners - Versus - 1. State of Maharashtra, through the Secretary, Urban Development Depart- ment, Mantralaya, Mumbai-400 020. 2. Pune Municipal Corporation, having its head office at Shivaji Nagar, Pune-5. .... Respondents Sarvasri Aspi Chinoy and F.E. Devitre, Senior Advocates with Farhan Dubhash, Nusarat Hasan, Ms Neha Pathak and Prakash Dande, Advocates i/b M/s. D.H. Law Associates for the Petitioners. Shri Pradip Patil, Asst. Government Pleader, for the Respondent No.1. Sarvasri D.R. Zaiwalla, Senior Advocate with V.G. Muzumdar, Advocate for the Respondent No.2. [2] CORAM: CORAM: CORAM: R.M.S. KHANDEPARKAR & V.M. KANADE, JJ. DATED: DATED: DATED: MARCH 08, 2007 JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): JUDGMENT (Per R.M.S.Khandeparkar, J.): 1. Heard the learned Advocates at length. Perused the records. 2. By the present petition, the petitioners seek to challenge the Notification dated 4-7-2005 issued by the respondent No.1 under Section 154 of the Maharashtra Regional and Town Planning Act, 1966, hereinafter called as "the MRTP Act" by which the respondent No.1 has sought to amend its earlier order dated 9-10-1996 and thereby has authorised and/or required various Municipal Corporations in the State to charge retrospectively from 9-10-1996, the premium at the rate of the land value as per the ready reckoner for the area occupied by the cabin, the tower height premium at the rate of Rs.10,000/- per running metre and a deposit of Rs.50,000/- for granting permission under Section 45 of the MRTP Act to the petitioners and the other cellular operators for installing semi-permanent structures/cabins on the top of the building for housing Base Station/Telephone Connector to set-up a cellular mobile tele-communication system, in view of licence [3] granted under Section of the Indian Telegraph Act, 1885, hereinafter called as "the Telegraph Act" and the demand notices in that respect being Exhibits-E to E-10 annexed to the petition. 3. In and around 1995 the Government of India, pursuant to new telephone policy, decided to allow private operators to provide cellular tele-communication services and pursuant to the said policy, till 2001 issued licence to three cellular operators in the Maharashtra Telecom Circle, namely, BPL, Idea Cellular and VSNL. In the year 2001 the Government decided to allow fourth cellular operator in the Maharashtra Telecom Circle for the State of Maharashtra and Goa and the same was awarded in favour of the petitioner No.1, by issuing the licence under Section 4 of the Telegraph Act, followed by the necessary licence agreement dated 28-9-2001. 4. In furtherance of the said policy, the Urban Development Department of the Government of Maharashtra had issued directives dated 9-10-1996 under Section 154 of the MRTP Act to all the Municipal Corporations in the State, except the Brihanmumbai Municipal Corporation, that the Corporations shall initiate a proposal for modification under Section 37 of the MRTP Act to incorporate a provision in the Development Control [4] Regulations, hereinafter called as "DCRs" to the effect that "The area of one room for installation of telephone connectors as per the requirements of the Department of Telecommunication or the companies authorized on that behalf but not exceeding 20 sqm per building with the written permission of the Commissioner can be permitted free of FSI.". Simultaneously it was clarified that where similar provision had been already existing in the DC Regulations, the same can be made operative to the companies to whom valid license is issued by the Department of Telecommunication. It was also clarified that the decision as per the directives would come into force with immediate effect, pending the decision on the proposal for modification under Section 37 of the MRTP Act. In continuation of the said directives dated 9-10-1996 further directions dated 4-7-2005 under Section 154 r/w Section 37 of the MRTP Act were issued to remove the deficiencies in the directives dated 9-10-1996 and to have a uniform policy in respect of charging of deposit and the premium. The further directions were to the effect that such permission should be granted under Section 45 of the MRTP Act, and deposit of Rs.50,000/- should be charged, the premium shall be charged at the rate of the land value as per the ready reckoner for the area occupied by the cabin, while the tower height premium shall be Rs.10,000/- per running metre, to be effective from 9-10-1996. [5] Besides,under the Notification dated 24-5-1999 issued by the Government of India in exercise of powers under Section 19-B of the Telegraph Act, the holders of the licence under Section 4 of the Telegraph Act were conferred with the power to seek way-leave from the owners of the immovable property in the respective licence service area in connection with providing the telephone services by such licensees in such area during the currency of its licence as specified in the said Notification. 5. Pursuant to the licence agreement, the petitioner No.1 set-up the cellular mobile telephone services in various parts of the State and for that purpose entered into suitable arrangement with the various building owners in order to enable them to install Cell Sites on the roof of the buildings. Consequently, the petitioners filed various applications to the respondent No.2 seeking permission to place the necessary equipments on the roof top of the buildings and to construct temporary cabins on the roof top of various buildings situated in different parts of the City of Pune and in anticipation of the permission proceeded to erect the temporary cabins/shelters to house such equipments at various locations. The respondent No.2, however, refused to grant permission to install such Cell Sites unless the petitioner No.1 paid the premium, [6] as demanded by the Corporation and further threatened to take action for demolition of the Cell Sites in case of failure to pay the premium. Refusing to comply with the demand of the premium, the petitioners filed Writ Petition No.8518 of 2003 inter alia contending that the Telegraph Act does not require permission of the Corporation for erecting such sites and in any case the respondent No.2 has no power to levy any premium for grant of such permission. This Court disposed of the said Writ Petition by Judgment dated 13-12-2004, permitting the respondent No.2 to take appropriate steps to ascertain whether there is any violation of the DCRs by the petitioners and in case of any such violation, to issue show cause notice specifying the violation before taking any action or making any demand. breach. The contention of the petitioners about the absence of power to the Corporation to levy premium in light of the provisions of the Telegraph Act was specifically kept open. The respondent-Corporation after carrying out the inspection, issued notices, firstly under Section 260(1) of the Bombay Provincial Municipal Corporations Act, 1949, hereinafter called as the "BPMC Act", and then under Section 260(2) of the BPMC Act and demanded the premium and deposit in exercise of powers under Rule 6.6.2.2. of DCRs r/w Section 124A of the MRTP Act and the said Notification dated 4-7-2005. [7] 6. The challenge to the impugned Notification and to the demand notices is threefold. Firstly, that the DCRs are framed and approved under Section 22(m) of the MRTP Act which does not confer any power to recover any tax/premium related to the area or height of the structure as a condition for granting the development/planning permission, nor Section 154 empowers the Government to authorise/require the planning authority to recover such premium as a condition for grant of permission under Section 45 of the MRTP Act. In any case, the premium sought to be claimed is not related to any expenses or cost incurred by the Corporation nor in relation to any service being rendered to the petitioners for performing their statutory duty under the MRTP Act and, therefore, without the authority of law. Secondly, it is the contention on behalf of the petitioners that the Telegraph Act is an exhaustive and a complete Code regarding the installation and operation of telegraph and telecom systems and the rights and obligations of the telegraph authorities and the licence regarding the installation of the equipments necessary for the operation of telegraph and telephone systems and Section 10(c) and (d) r/w Section 12 of the Telegraph Act expressly provide that the telegraph authority or a licensee to whom the power thereunder is delegated under Section 19-B of the Telegraph Act can exercise all the [8] rights of telegraph authority and there is no provision in the Telegraph Act which requires payment on that count to the local authority and, therefore, there cannot be any demand for premium or deposit for installation of cabin or erection of tower on the roof top of buildings. And the third ground of challenge is that the Telegraph Act falls within Entry No.31 of List I of the Seventh Schedule of the Constitution of India and the Parliament accordingly has exclusive jurisdiction to legislate with respect thereto and by virtue of Article 246(1) of the Constitution of India any provision of the MRTP Act or any order made thereunder would be invalid if they are repugnant or in conflict with the Telegraph Act or the rules and requirements made thereunder. The Section 7(2)(e) and (f) of the Telegraph Act confer exclusive jurisdiction on the Central Government to make the rules regarding the conditions and restrictions subject to which any telegraph line, appliance or apparatus for telegraphic communication shall be established and the charges in respect of the establishment of any telegraph line, appliance or apparatus. Hence the demand for premium for installation of the equipments for the operation of the licence for cellular mobile telephone services by the petitioners in the State of Maharashtra is repugnant to and in direct and irreconcilable conflict with the Telegraph Act and therefore void and without competence. [9] 7. On the other hand, it is the case of the respondents that the subject-matter of the present petition being a semi-permanent structure in the form of cabin and tower on a building, the same does not fall within the purview of the definition of "telegraph lines" and "posts" as defined under the Telegraph Act and the provisions of the Telegraph Act are silent about the construction of cabins as well as the erection of towers on or above the buildings. Any construction or development within their territorial jurisdiction is controlled by the Corporation being the planning authority under the MRTP Act and to that extent the Corporation exercises control over the construction activities and the construction of the buildings, or cabins/rooms/towers on and above the buildings. The Notification under Section 19-B r/w Section 4 of the Telegraph Act dated 24-5-1999 does not permit the licensee to exercise the powers of telegraph authority under the Telegraph Act and on the contrary the licensees require the express permission of the owners of the property in order to construct cabin and to erect tower on the building. The owners of the properties have no power to permit any such construction or installation of any equipment in the building without prior permission of the Corporation. The Notification specifically provides that the licensee is bound to comply with the provisions of the Telegraph Act as well [10] as "of any other law for the time being in force" and the same would include the provisions of the MRTP Act and the DCRs. 8. It is further case of the respondent No.2 that it has framed the procedure for permitting the cellular towers (equipments) on the roof tops and the construction of semi-permanent structure by the circular dated 7-12-2000. The petitioners had obtained licence on 28-9-2001 and were fully aware of the requirement of the permission to install and construct cabins/rooms/cellular towers on the roof tops. The petitioners had submitted incomplete information while applying for permission and they have carried out the construction of the cabins unauthorisedly and illegally. For the purpose of installation of Cell Sites on the roof top of houses/buildings, the concerned telephone company has to install structures and for that purpose has to carry out construction necessary for the structural safety of the building and only thereafter can construct cabins and/or erect DG Sets and such installations and constructions are not covered under the provisions of the Telegraph Act. The demand of the premium is not illegal. There are many contingencies and construction activities which are allowed free of FSI in terms of the DCRs which are subject to payment of premium. The expression "free of FSI" indicates that [11] even if the permissible FSI has been consumed by the owner of a building, the permission to construct a cabin can be granted on the roof top of such building, not exceeding 20 sq.metres per building, but it does not mean that such permission has necessarily to be unconditional and/or without any other liability or obligation. On the contrary, the provisions of the MRTP Act and the DCRs framed thereunder specifically empower the Corporation to decide the conditions under which such permission can be granted. The instructions issued by the State Government do not prohibit the levy of premium, development charges, security deposit, etc., nor it even suggests that the provisions of the DCRS would not apply to such constructions. 9. It is further case of the respondents that Writ Petition No.8518 of 2003 was not allowed in entirety by the order dated 13-12-2004 and the question of levy of premium by the Corporation was left open. Further, in terms of the directions issued in the said order, the Cell Site had already been inspected and show cause notices were issued for the violation of the DC Rules by the petitioners. As the petitioners failed to comply with the said notices, further notice under Section 260(2) of the Bombay Provincial Municipal Corporation Act, 1949, hereinafter called as "the BPMC Act", was issued. [12] 10. It is further case of the respondents that the construction of cabin admeasuring 20 sq.metres and the installation of the tower on the roof top of the buildings fall within the purview of the word "development" under the DCRs and, therefore, the respondents are empowered to charge and recover the premium and deposit, as demanded. However, since the construction exceeds the FSI as well as it is beyond the permissible height of the building and there is non-permissible use of terrace and therefore the same could be tolerated in terms of 6.6.2.2. of the DCRs by charging premium to avoid hardship of demolition of such construction/development. Every permission for construction of a building or development is granted by the respondent No.2 under Sections 44 and 45 of the MRTP Act r/w Sections 253 and 254 of the BPMC Act. The cabin and tower fall within the meaning of the explanation "Building" under the MRTP Act and the BPMC Act. Besides, the Notification dated 4-7-2005 issued under Section 154 of the MRTP Act empowers to charge and recover the premium and deposit as stipulated thereunder and such demand cannot be treated as tax or fee, as alleged by the petitioners. The demand is in relation to charges recoverable in terms of the provisions of law stated above. [13] 11. The Cell Sites and towers, the construction and erection of which is the cause for the dispute between the parties, comprise of combination of Microwave Equipment, GSM Base Transmission Equipment and other equipments. A BTS Site/Cell Site consists of a pre-fabricated shelter housing the power system and Radio component together with an antenna tower. This Station receives and transmits signals by means of electromagnetic waves, which are transmitted without any line connection, from and to cellular mobile phones and the Basic Telephone Exchanges, and thus establishes a network for mobile cellular communication. The installation and operation of Cell Sites on the top of the house is said to be essentially for better and proper functioning and operation of cellular mobile telephone system in the concerned area. 12. The first point which arises for consideration is whether the licensees, under Section 4 of the Telegraph Act who have been delegated the powers under the Notification dated 24-5-1999, are empowered to exercise all the powers of the telegraph authority under Section 10 of the Telegraph Act? 13. The Section 10 of the Telegraph Act deals with the power of the telegraph authority power of the telegraph authority power of the telegraph authority to place and maintain telegraph lines and posts. It specifically provides [14] that 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. The proviso (a) thereto provides that the telegraph the telegraph the telegraph authority authority authority shall not exercise the powers conferred by the said Section except for the purpose of a telegraph established or maintained by the Central Government or to be so established or maintained. The Clause (b) of the proviso provides that 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 the telegraph authority the telegraph authority places any telegraph line or post. The Clause (c) of the proviso provides that except as provided under the Telegraph Act, the the the telegraph authority telegraph authority telegraph authority shall not exercise those powers in respect of any property vested in or under the control or management of any local authority, without the permission of that authority. The Clause (d) of the proviso provides that in the exercise of the powers conferred by the said Section, the telegraph authority the telegraph authority 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. (Emphasis supplied) [15] 14. The Section 12 deals with the power of the local authority to give permission under Section 10, Clause (c) of the proviso thereto. It provides that 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, or as to any other thing connected with or relative to any work undertaken by the the the telegraph authority telegraph authority telegraph authority under those powers. (Emphasis supplied) 15. As far as Clause (a) of the proviso to Section 10 of the Telegraph Act is concerned, the same relates to the telegraph established and maintained or to be so established or maintained by the Central Government and the powers to be exercised by the telegraph authority in relation to such telegraph. Apparently, it does not relate to the powers to be exercised by the licensee under Section 4 of the Telegraph Act. As far as Clause (b) is concerned, it merely provides for limitation of the rights of the Central Government over the property wherein the telegraph line or post is placed by the telegraph authority in exercise of powers under the said Section. As regards the Clause (c) of the proviso to [16] Section 10 is concerned, it is nobody’s case that the construction of the Cell Site, cabin and erection of tower has been done or is being done in the property vested in or under the control or management of the Corporation or any other local authority. As regards Clause (d) is concerned, it relates to the powers exercisable by the telegraph authority under Clauses (a) to (c) of the said proviso to Section 10 and the obligation to pay compensation to the persons interested on account of damage sustained in exercise of such powers by the telegraph authority. Obviously therefore, all the provisions of law comprised under Section 10 are essentially in relation to the powers of the telegraph authority for placing telegraph line or post in respect of the telegraph established or maintained or to be so established or maintained by the Central Government and the same do not relate to the powers of the licensee under Section 4 of the said Act. 16. The Section 3 of the Telegraph Act deals with the definitions of the expressions used in the Telegraph Act. The Section 3(2) defines the term "telegraph officer" to mean any person employed either permanently or temporarily in connection with a telegraph established, maintained or worked by the Central Government or by a person licensed under the Telegraph Act. The expression "telegraph authority" has been [17] defined under Section 3(6) to mean 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 the Telegraph Act. From the definition clauses it is, therefore, abundantly clear that the expression "telegraph authority" specifically refers to the Director General of Posts and Telegraphs or any other officer specifically empowered by such Director General of Posts and Telegraphs to perform all or any of the functions of the telegraph authority under the Telegraph Act. In other words, the officer so empowered can be called as telegraph authority only when such empowerment is related for the purpose of exercise of any of the functions of the telegraph authority under the Telegraph Act and not otherwise. Besides, the delegation in that regard has necessarily to be by the Director General of Posts and Telegraphs and not by any other authority. 17. The Section 19-B of the Telegraph Act provides that the Central Government may, by Notification in the Official Gazette, confer upon any licensee under Section, in respect of the extent of his license and subject to any conditions and restrictions which the Central Government may think fit to impose and to the provisions of Part-III, all or any of the powers which the telegraph authority possesses under Part-III with [18] regard to a telegraph established or maintained by the Government or to be so established or maintained. The provisions of law comprised under Section 19-B or any other Section of the Telegraph Act nowhere speak of delegation of powers of telegraph authority in relation to the telegraph established or maintained by the Central Government to the licensees. The Section 4 of the Telegraph Act which relates merely to the power of issuance of licences for the establishment and maintenance of telegraph lines by such licensees and not for licensee to be appointed as telegraph authority under the Telegraph Act for or in respect of such establishment in the area in which the licence is granted. 18. If one peruses the Notification dated 24-5-1999, it is apparent that the Notification nowhere delegates the powers of the telegraph authority under the Telegraph Act to the licensees. On the contrary, the delegation is absolutely limited to the extent of "seeking way-leave" from the private owners to place and maintain telephone lines and to enter such properties for that purpose. The Notification clearly states that: "S.O. 382(E):- In exercise of the provisions of section 19B, of Part-III of the Indian Telegraph Act, 1885 (13 of [19] 1885) (hereinafter referred to as the said Act), the Central Government, hereby, confers the powers upon duly authorised licensee(s)/private basic telephone service operator(s) under section 4