Andhra Pradesh High Court - Amravati
M/S. Atc Telecom Infrastructure ... vs Gvmc on 21 June, 2021
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION No. 10591 of 2021
ORDER:-
Heard Sri G. Sridhar, learned counsel appearing for the
petitioner and Sri N. Ragna Reddy, learned standing counsel for
the Municipality.
2. The petitioner before this Court is a Company that was
engaged in the business to provide Telecom Infrastructure (IP-I) in
all telecom circles in India including the State of Andhra Pradesh.
Accordingly, the petitioner company had identified site in
Sy.No.35-5, Ward No.19, Ramnagar, Yalamanchili Municipality,
Visakhapatnam District, Andhra Pradesh, for construction of
telecommunication tower and secured approval of the respondent
vide proceedings bearing Roc.No.83/2020-21/G1, dated
23.03.2021.
3. 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 dated
23.04.2021, the petitioner was directed to stop the work, as there
is objection raised from the public against the proposed erection of
the cell tower.
4. 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.
5. In reply to this, Sri N. Ranga Reddy, learned standing
counsel for the respondent Corporation vehemently objected to
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.
6. 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
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.
7. 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.83/2021/G1, dated 23.04.2021 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.
8. With the above observations, the writ petition is allowed. No
costs. As a sequel thereto, miscellaneous petitions pending, if any,
in this writ petition shall stand closed.
_______________________
JUSTICE D.RAMESH
Date: 21.06.2021
Pnr
THE HONOURABLE SRI JUSTICE D.RAMESH
WRIT PETITION NO. 10591 of 2021
Dated 21-06-2021
Pnr
