CWP No.20034 of 2006 -: 1 :- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20034 of 2006 Date of decision: March 24, 2009. M/s Bharti Airtel Limited ...Petitioner(s) v. Haryana Urban Development Authority & Ors. ...Respondent(s) CORAM:HON'BLE MR. JUSTICE SURYA KANT 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present: Shri Ashok Aggarwal, Senior Advocate, with Shri Sumeet Goel, Advocate for the petitioner. Shri Ajay Nara, Advocate for the respondents. ORDER Surya Kant, J. - The petitioner – M/s Bharti Airtel Limited seeks quashing of the action of the Estate Officer, HUDA, Karnal whereby the Remote Switching Unit (RSU) operated by it from a residential premises, bearing H. No.1687, Sector 7, Karnal, has been sealed. [2]. The residential plot No.1687 in Sector 7, Urban Estate, Karnal was allotted by Haryana Urban Development Authority (HUDA) to one Smt. Raj Jain, wife of Parmod Kumar Jain, on 2.7.1990 and was later on transferred in favour of one Pawan Kumar Duggal s/o Y.K. Duggal on 25.9.2007. A residential house has been constructed upon the said plot after CWP No.20034 of 2006 -: 2 :- getting the building plans sanctioned from HUDA authorities. It appears that the petitioner-company took the afore-said house on lease and later on purchased it from Pawan Kumar Duggal. After taking the said house on lease, the petitioner-company opened a 'telephone exchange' styled as Bharati Tele Limited and installed its Remote Switching Unit (RSU) there which, according to the respondents, is a 'commercial activity' and cannot be permitted to be run from a residential premises. There is no denial to the fact that the subject premises is not being used for residential purposes. The respondents have accordingly taken action for resumption of the site under Section 17 of the Haryana Urban Development Authority Act, 1977 (in short the 1977 Act) and are stated to have sealed the same in order to prevent its further misuse by the occupier. [3]. The petitioner-company on the other hand asserts its right to run the RSU from the subject premises, it being an “operational construction” within the meaning of Section 2(r) of the 1977 Act and exempted under Section 56 from operation of the said Act. According to the petitioner-company, the setting up and operation of the RSU cannot be termed as a commercial or illegal activity for the reason that the petitioner- company is rendering 'public utility services'. [4]. The respondents have filed their counter affidavit and have controverted the petitioner's claim, pointing out that this Court has already issued directions to stop 'commercial activities' from the residential areas by using coercive means like disconnection of electricity/water/sewerage facility etc. It is explained that even after the electricity supply was disconnected, the petitioner continued to operate its Remote Switching Unit by using a generator set. Lot of complaints were received from the CWP No.20034 of 2006 -: 3 :- neighbourhood as the use of generator set was causing noise and air pollution in the area, due to which there was no option but to seal the premises. It is denied that the activities being carried out by the petitioner from the residential premises are purely commercial and that the disputed premises has already been resumed vide an order dated 6.1.2006. [5]. The petitioner has filed a rejoinder and an additional affidavit reiterating that in terms of the license granted to it by the Central Government under Section 4 read with Section 19-B of the Indian Telegraph Act, 1885 (in Short the Telegraph Act), it is empowered to set up the network “by laying down cables and installing equipment etc.”. Section 3(5) of the Telegraphic Act which defines “post”, is relied upon to claim that installation of RSU is an authorized activity and falls within the meaning of “operational construction” under the 1977 Act. The petitioner's case is that the Telegraph Act has an over-riding effect over the provisions of the 1977 State Act. Section 2 (a) of the Essential Services Maintenance Act, which recognizes telecom services as an 'essential service' requiring uninterrupted provisioning, has also been pressed into aid. [6]. The Chief Administrator, HUDA has filed his affidavit dated 16.9.2008 explaining that only the “non-nuisance professional consultancy services”, as defined under Regulation 2(bb) of the Haryana Urban Development (Disposal of Land and Building) Amendment Regulations, 1978 as amended vide Notification dated 12.1.1999, are permitted to be run from a part of the residential premises in HUDA Sectors which include that of the Doctors, Lawyers, Tax Consultants, Architects, Contractor Consultants, Chartered Accounts/Company Secretaries, Property Consultants and Tourist Guides. The affidavit explains that no residential CWP No.20034 of 2006 -: 4 :- plot/area in any of the Urban Estates of HUDA has been permitted to be used for activities like RSU. As regards the permission to install telecommunication towers in the residential areas, the affidavit of the Chief Administrator explains that following policy decision dated 20.8.2004 has been taken in this regard:- “2). Where it is not possible to avoid the location of this tower in residential area, a possibility should be explored to locate them in park/greenbelts within residential sector or upon spaces community building in the sectors. 3). Where it is not possible to find such suitable space mentioned at Sr. No.2) above, tower should be permitted on the roof top of residential building subject to the condition of nonstructural safety certificate from one of the following institutes:- a) IIT Delhi b) Punjab Engineering College, Chandigarh c) Department of Civil Engineering Roorkey d) Kurukshetra University e) or any such reputed institution.” [7]. I have heard Learned Counsel for the parties at some length and perused the records. [8]. The solitary question which arises for determination is as to whether or not the petitioner-company, who is a Licensee under the Telegraph Act, can be permitted to install and run its RSU from a 'residential premises'? [9]. In exercise of its powers under Section 4 of the Indian CWP No.20034 of 2006 -: 5 :- Telegraph Act, 1885, the Central Government has granted license to the petitioner-company to operate cellular mobile telephone services in the Haryana Telecom Circle. Pursuant thereto and in exercise of its powers under Section 19-B of Part III of the Telegraph Act, the Central Government vide its notification dated 24.5.1999 has conferred the following powers on a licensee like the petitioner:- “... to seek way-leave from any person including public authority, public corporation, autonomous body, State Government or Central Government (hereinafter referred as to as the “Owner” of immovable property) in the respective licensed service area for the following in respect of a property vested in or under the control or management of the Owner in connection with providing the telephone service by the said licensee(s) to its subscribers in the said licensed service area during the currency of its license, namely:- 1(a) To place and maintain telephone lines, under, over, along or across and post in or upon property vested in or or under the control or management of concerned owner. (b) To enter on that property under, over, along, across, in or upon which the line or post has been placed, in order to examine, repair, alter or remove telephone lines or posts established or being maintained by the said licensee(s). Provided that the said licensee shall:- CWP No.20034 of 2006 -: 6 :- (i)always comply with the provisions of the said Act or any other law for the time being in force and; (ii) not exercise the powers conferred under this notification in respect of the said property vested in or under the contract or management of the concerned owner, without the express permission of the owner; (iii) pay full compensation to the aggrieved owner for any damage sustained by them by reason of the exercise of the powers conferred on the said licensee under this notification.” [10]. The petitioner has also entered into an agreement with the Government of Haryana on 28.1.2002, regarding “Right of Way for Laying Communication Backbone in the State of Haryana”. [11]. If one reads the terms and conditions of the Licence granted to the petitioner, coupled with the authorization-notification dated 24.5.1999 and the agreement entered into between the petitioner and the Haryana Govt., it goes without saying that with a view to provide cellular mobile telephone services, the petitioner-company is responsible for installation, networking and operation of the necessary equipment and systems and for that purpose, it may seek way-leave from any individual or public authority/corporation/autonomous body or the State/Central Govt., namely, whosoever is owner of such immovable properties. However, while entering into an agreement to seek way-leave or while entering such property, the petitioner is required not only to comply with the provisions of the Telegraph Act but also the “other laws” in force. The License or the Authorization nowhere proclaims that the petitioner can use a property in CWP No.20034 of 2006 -: 7 :- violation of the prohibition imposed by the State Law. Suffice it to say that the authorization obligates the petitioner-company to comply with the “other laws” also while entering into such agreement. The petitioner's contention that having been licensed under Section 4 of the Telegraph Act it is immune from complying with the provisions of a State Act like the 1977 Act is, wholly misconceived and hence rejected. [12]. The legislative fields occupied by the Indian Telegraph Act on one hand and the Haryana Urban Development Authority Act, 1977 or the Haryana Development and Regulation of Urban Areas Act, 1975 are altogether different. The question of repugnancy arises only in connection with the subjects enumerated in the Concurrent List with regard to which both the Union and the State Legislature have concurrent powers. No conflict can be read between the licensing powers contained in Section 4 of the Telegraph Act or the regulatory measures for urban development prescribed by the two State Legislations. The petitioner has failed to point out any provision of the State Laws which cannot be obeyed without disobeying the provisions of the Central Act, i.e., the Telegraph Act. [13]. The Haryana Urban Development Authority Act, 1977 has been enacted to establish an Authority for undertaking urban development in the State of Haryana and for matters ancillary thereto. Section 2 thereof defines various expressions including “operational construction” and “urban area”. Section 13 empowers the Authority to acquire and dispose of land through various means for its objects of promoting and securing development of the urban areas; Section 15 authorizes it to dispose of the land; Section 54 empowers it to make Regulations including to regulate “the erection of building” and “terms and conditions in which transfer of any right, title and CWP No.20034 of 2006 -: 8 :- interest in any land or building may be permitted”. [14]. In exercise of its powers under Section 54 of 1977 Act, the HUDA has framed Haryana Urban Development (Disposal of Land and Building) Regulations, 1978 (in short the 1978 Regulations), regulations 5 and 6 whereof provide a clear distinction between residential, industrial and commercial plots/buildings and the mode of their allotment. Regulation 16 prohibits the use of the allotted land/building for a purpose other than the one for which it has been disposed of and reads as follows:- “16. Use of land/building.- The transferee or lessee shall not use the land/building for a purpose other than that for which it has been disposed of to him. Provided that the transferee or lessee of a land/building can use 25% of the built-up covered area of the building or 50 square meter, whichever is less, for rendering non-nuisance professional consultancy services with the prior permission of Chief Administrator on payment of fee....” (emphasis applied) [15]. The Regulations have prescribed Form-C as the format of allotment letter and its clause 14 reads as follows:- “14. The plot/building shall not be used for any purpose other than that for which it has been allotted in accordance with the plans approved by the competent authority except for rendering non-nuisance professional consultancy services in land/building disposed of for residential purposes to the extent of 25% of the built up covered area of the building or 50 square meters, whichever is less, with CWP No.20034 of 2006 -: 9 :- the prior permission of the Chief Administrator on payment of fees, as mentioned in proviso to regulation 16. No obnoxious trade shall be carried out in or on any land/building.” (emphasis applied) [16]. A part of the residential premises can be used for rendering no- nuisance professional consultancy service, provided that permission to that effect is obtained from the Estate Officer, HUDA under regulation 16-A read with regulation 16-B, on fulfillment of certain conditions. [17]. There is no provision under the 1977 Act and/or the 1978 regulations authorizing the change of use of a plot/building from 'residential' to 'commercial' or vice-versa. Partial use of a residential building for rendering 'non-nuisance professional consultancy services', is also permitted only when the premises continues to be predominantly used for residential purposes only. [18]. Section 17 of the 1977 Act empowers the HUDA authorities to resume or forfeit any plot/building for breach of conditions of transfer. The misuse of a premises by using it for a purpose other than the one for which it had been allotted, has been held to be breach of conditions of transfer, warranting resumption proceedings. It is only where misuse of the premises is stopped by the allottee that the courts have intervened. In R.C. Chawla v. State of Haryana & Ors., 1996(2) SCC 151, the Supreme Court directed to withdraw the order of cancellation of allotment only on the condition that the allottee who was using the residential premises for a commercial purpose, had stopped the misuse and filed an affidavit to that effect. [19]. In the case in hand, the petitioner was given opportunity to stop CWP No.20034 of 2006 -: 10 :- the misuse of the premises and use the same for the residential purpose only. Instead, the petitioner has filed an affidavit reiterating its tall claim that being a Licensee under the Central Act, it can use the subject premises to run its RSU. [20]. In all fairness to the petitioner, its contention that installation of a RSU is an 'operational construction' within the meaning of Section 2(r) of the 1977 Act, also deserves to be dealt with. Section 2(r) reads as follows:- “2(r) “operational construction” means any construction, whether temporary or permanent, which is necessary for the operation, maintenance, development or execution of any of the following services, namely-- (i)railways; (ii) national highways; (iii) national waterways; (iv) major ports; (v) airways and aerodromes; (vi) posts and telegraphs, telephones, wireless broadcasting and other like forms of communication; (vii) regional grid for electricity; (viii) any other service which the State Government may, it is is of the opinion that the operation, maintenance, development or execution of such service is essential to the life of the community, by notification, declare to be a service for the purposes of this clause. Explanation-- For the removal of doubts, it is hereby CWP No.20034 of 2006 -: 11 :- declared that the construction of-- (i) new residential buildings (other than gate lodges and quarters for limited essential operational staff and the like), roads and drains in railway colonies, hospitals, clubs, institutions and schools, in the case of railways; and (ii) a new building, new structure or new installation or any extension thereof, in the case of any other service, shall not be deemed to be construction within the meaning of this clause;” [21]. Section 56 of the 1977 Act provides that, “nothing in this Act shall apply to the operational constructions”. [22]. According to the petitioner, any construction being used for 'posts and telegraphs, telephones, wireless broadcasting and other like forms of communication', is liable to be declared as an 'operational construction', exempted from the restrictions of the 1977 Act. In my considered view, the contention is wholly misconceived and misleading. The “operational construction” has been purposefully defined as a separate category of construction (temporary or permanent) which may be required to be raised for the operation, maintenance, development or execution of various services including the post and telegraphs, telephones and wireless broadcasting, etc. Unless a site is earmarked for the operation, maintenance etc. of the 'services' enlisted under Section 2(r) of the 1977 Act, the structure built thereupon cannot be exempted from the provisions of the 1977 Act if such site is located in an 'Urban Area' developed by HUDA. CWP No.20034 of 2006 -: 12 :- [23]. As explained earlier, the subject premises was a plot allotted for the residential purposes only. The residential house has been constructed as per the sanctioned building plan. It is not the petitioner's case that it ever applied to the HUDA authorities for allotment of a site for 'operational construction' or raised the construction for that purpose. The exemption from the 1977 Act can be claimed only when an applicant raises 'operational construction' at a site/plot/land which is permitted to be used for the purposes of operation, maintenance, development or execution of the services illustrated by section 2(r) of the Act. No such permission has been sought by the petitioner or granted to him. The shelter sought to be taken behind section 2(r) and Section 56 of the Act is, thus, of no help. [24]. The petitioner is a public-services provider. It has its network throughout the country. Its management officials and executives belong to the effluent and educated section of society who are expected to be well conversant with the regulatory laws and ensure strict adherence thereto. No one, howsoever mighty he may be, is above law. The arrogance exhibited in the pleadings or displayed during the course of hearing clearly suggests the petitioner's misconception as if it is not answerable to anyone and is immune from the State laws. [25]. This Court is not oblivious to the fact that a new generation of litigants, who are well equipped with men, money and minds, and who unmindful of their own brazenly illegal actions, are burdening the courts' dockets for taking chance of a favourable windfall, of course, by hiring best of the legal brains and creating a hype as if the courts are their facilitation centres. A poor litigant with a chocked voice has no option but to wait for his turn while pitted against these 'chance-takers', who relentlessly keep on CWP No.20034 of 2006 -: 13 :- breaking into the ever-lasting queues. These unscrupulous litigants will keep on adding to the agony of the victims of injustice for whom the courts are actually meant for, unless discouraged with a firm determination. This petition is also a glaring example of frivolity in litigation. The petitioner firstly violated the laws, misused its position and then approached the court taking it for a ride. [25]. The petitioner is equally guilty of concealing the material facts and has approached this court with tainted hands. Nowhere has it disclosed in the writ petition that the subject site had already been resumed on 6.1.2006 under the 1977 Act on the ground of its misuse and after a show- cause notice. Contrary to it, para 10 of the writ petition gives a false impression as if the respondents have suddenly sealed the premises. It is only after disclosure of these facts in their counter-affidavit by the respondents that the petitioner filed its rejoinder and placed on record the show-cause notice(s) etc. That apart, the resumption order was lying unchallenged and the petitioner had not even gone in appeal at the time of filing of this writ petition as the appeal (Annexure P-18) was filed in the year 2007, i.e., after filing of the present writ petition in December, 2006. It is, thus, manifest that the premises was sealed only when the petitioner continued to misuse it even after the resumption. The writ petition is, accordingly, dismissed with costs of Rs.50,000/-. March 24, 2009. [ Surya Kant ] kadyan Judge