Atc Telecom Infrastructure ... vs The State Of Andhra Pradesh
2021 Latest Caselaw 452 AP

     HONOURABALE SRI JUSTICE D.V.S.S. SOMAYAJULU

                     Writ Petition No.1877 of 2021

ORDER:

Heard Sri T.D. Phani Kumar, learned counsel for the

petitioner and Sri N. Ranga Reddy, learned standing counsel for

the Municipality.

The grievance of the petitioner before this court is that the

permission granted for erection of cell phone tower (infrastructure

tower) has been summarily cancelled by proceedings in

Roc.No.2181/2009/G1, dated 16.11.2020. Learned counsel for the

petitioner submits that they had obtained permission and basing

on some uncommunicated objections said to have been received

from the public, the permission granted earlier has been cancelled.

He states that before such an order is passed, the petitioner

should have been put on notice. The rules of natural justice,

according to the learned counsel for the petitioner, are totally

flouted. He also points out that the relevant G.O. on the subject

and the settled case law has also not been considered. Drawing the

attention of this court to G.O.Ms.No.146, dated 19.06.2015, the

learned counsel points out that if there is any objection from the

public about the radiation emitting etc., they have to necessarily

approach the Telecom Enforcement and Resources Monitoring

(TERM) Cell of Department of Telecommunications (DoT),

Government of India only with grievance related to radiation.

Learned counsel also points out that the impugned notice is not

clear on this aspect, and therefore, he prays for an order.

In reply to this, Sri N. Ranga Reddy, learned standing

counsel for the respondent Corporation vehemently objected to 2 DVSS, J

W.P.No.1877 of 2021

granting of any order. According to him, under Section 344 (5) of

the A.P. Municipalities Act, 1965, the power to cancel a licence or

permission is available with the respondent Corporation. He points

out that the Act only stipulates that the order should be in writing

and it shall state the ground on which it proceeds. He points out

that both the requirements are satisfied. Learned standing

counsel, relying on the impugned notice, clearly points outs that it

clearly refers to the complaints received from the public. Only for

these two reasons, learned standing counsel submits that the

permission is validly cancelled. Therefore, he objects granting of

any order.

While it is true that Section 344 (5) of the A.P. Municipalities

Act, 1965, gives the power to Municipality to cancel any

permission, this court has to see whether an order having civil

consequence is passed, the rules of natural justice have to be

followed. While the existence of the power is not in doubt, the

question raised is about exercise of the power in the case on hand.

Admittedly, there is no notice given to the petitioner before their

permission was cancelled. Rules of natural justice have to be read

into such provision. Apart from that, this court also notices that

the issue regarding radiation from the cell tower has received

consideration by this court and other courts in number of

judgments. The copy of the order passed in W.P.No.5677 of 2020 is

also relied. Learned counsel for the petitioner submits that there is

no positive proof of radiation being emitted and that the

application cannot be rejected on that ground. He also pleads that

people could approach the TERM Cell for redressal of the 3 DVSS, J

W.P.No.1877 of 2021

grievance. The G.O.Ms.No.146, Municipal Administration and

Urban Development (M2) Department, dated 19.06.2015 that the

learned counsel for the petitioner relies on also makes this issue

clear.

In that view of the matter, this court is of the opinion that

the writ petition has to be allowed, and accordingly, it is allowed.

The impugned order in Roc.No.2181/2009/G1, dated 16.11.2020

is set aside. It is left open to the Municipal Corporation to take

action, if they are so advised, but strictly in accordance with law

and by following the due process.

With the above observations, the writ petition is allowed. No

costs.

As a sequel thereto, miscellaneous petitions, if any, pending

shall stand closed.

___________________________ D.V.S.S. SOMAYAJULU, J Date: 29-01-2021

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