Indus Towers Limited, vs The State Of Andhra Pradesh
2021 Latest Caselaw 866 AP

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         HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

                WRIT PETITION No.7426 of 2020

ORDER:

This Writ Petition has been filed by a company, which is

involved in the setting up of cell towers / equipment in order

to provide mobile signal coverage to the public through the

various cell site operators. The petitioner identified the land

in Sy.No.126/1 of Dandamudi Rammohan Rao Street,

Satyanarayanapuram, Vijayawada, for setting up of

Telecommunication Infrastructure Tower. After entering into

the lease deed with the landlord it made an application to the

2nd respondent for grant of permission. The permission was

not granted within the time and relying on a deeming clause

the petitioner started the construction work of a

tower. However, on 03.02.2020 the impugned order was

passed directing the petitioner to stop the construction of the

work. This is on the ground that the neighbours have

seriously complained about the erection of the tower. This

order is now challenged.

This Court has heard Sri T.D.Phani Kumar for the

petitioner and the learned Government Pleader for Municipal

Administration for the 1 respondent and Sri Naresh Kumar st

representing Sri M. Manohar Reddy, learned standing counsel

for the 2 and 3 respondents.

nd rd

Learned counsel for the petitioner argued that as per the

guideline-D of G.O.Ms.No.146, dated 19.06.2015, the

permission is deemed to have been approved / accorded if

permission or refusal is not communicated within 30

days. Learned counsel for the petitioner points out that it is

an admitted fact that the petitioner submitted an application

on 14.09.2019 for construction of a tower. Permission was

not expressly granted nor it was specifically

refused. Therefore, learned counsel submits that as per

guideline-D deemed approval would come into force. He

points out that even if an appeal is filed against the rejection

it should be disposed off within 30 days. He also submits

that this special rule of approving the plan within 30 days has

been incorporated in the GOs., because of the need

recognized by the governments for setting up of

telecommunication towers. These towers relay the signals for

the cell phone users. According to the learned counsel for the

petitioner, recognizing this importance the Government had

introduced this deeming provision and the 30 day limit. He

submits that apart from this the impugned order refers to

alleged complaints given by the third parties /

neighbours. Learned counsel argues that securing the

consent of the neighbours is no longer necessary and that

similar arguments were considered and negatived in

W.P.No.5677 of 2020, wherein the learned single Judge saw

the rules that existed in 2012 and the subsequent

amendment thereto. He points out and rightly shows that the

applicant is only needed to furnish an NOC from the building

owner or the land owner. This submission was accepted by

the learned single Judge. To the same effect, is another order

passed by the learned single Judge in W.P.No.8418 of 2019,

which is appended as a material papers. As far as revision is

concerned, learned counsel submits that if there is radiation

the complaints will have to approach the statutory body called

TERM with regard to radiation. He submits that there is no

radiation effect at all. Therefore, learned counsel argues that

this is a fit case in which order prayed for should be granted.

In reply to this learned standing counsel Sri Manohar

Reddy argues that the petitioner started construction without

securing the approval as required under law. In addition, he

also submits that the neighbours very strongly objected

against the proposed erection of the tower and therefore the

respondents had to step in and stop the construction. It is

his contention that as the approval is not granted the

petitioner cannot continue the construction. Apart from that

he submits that after public had raised serious objections the

respondents had to keep the interest of the public in mind

and reject the application vide endorsement dated

03.02.2020. Therefore, he submits that since the permission

was expressly rejected the petitioner cannot, therefore, insist

that he should be granted a Mandamus and should continue

the construction.

This Court after hearing both the learned counsel

notices that the rule as it stands viz., Guideline D(i) of

G.O.Ms.No.146 clearly states that if permission is not

accorded nor is a refusal is communicated within 30 days

there shall be a deemed approval. This provision has been

specifically introduced in this G.O. Similar 30 day period is

there for disposal of an appeal also. The amendment in the

rules has also been considered by a learned single Judge in

the Judgment passed in W.P.No.5677 of 2000. The change

that is now introduced now merely states that the applicant

should furnish an NOC from the building owner

concerned. In the case on hand there is no dispute that the

building owner has consented. The earlier requirement of

securing NOC from the neighbour owners has been deleted in

the G.O. The consent of the neighbours is no longer

necessary. Similarly, as far as the radiation is concerned, the

complainants have been given an option of approaching the

TERM. This issue was also considered in the judgments

relied upon by the learned counsel for the petitioner viz.,

W.P.No.5677 and 8418 of 2019. There is no scientific or

other evidence produced to show that this particular tower

emits any radiation.

In the opinion of this Court, in the absence of any

tangible material, respondents could not have cancelled the

permission that is deemed to have been granted. The rules

are clear and they provide 30 day period for the accord of

sanction. If sanction is not accorded within this period the

petitioner can rely upon the deeming clause and proceed with

the construction. No other fact has been brought to the

notice of this Court with regard to the construction of the

tower or that it does not meet any other statutory

guidelines. In that view of the matter, this Court is of the

opinion that the petitioner is entitled to an order as prayed

for.

Accordingly, the Writ Petition is allowed. There shall

be no order as to costs.

Consequently, the Miscellaneous Applications pending,

if any, in these Writ Petitions shall also stand allowed.

__________________________ D.V.S.S.SOMAYAJULU, J Date:16.02.2021.

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