Indus Towers Ltd vs Ahmedabad Municipal Corporation
2022 Latest Caselaw 1401 Guj

      C/SCA/7287/2014                                ORDER DATED: 08/02/2022



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/SPECIAL CIVIL APPLICATION NO. 7287 of 2014
                              With
          R/SPECIAL CIVIL APPLICATION NO. 7288 of 2014

=============================================
                      INDUS TOWERS LTD
                            Versus
          AHMEDABAD MUNICIPAL CORPORATION & 2 other(s)
=============================================
Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE assisted by MS ADITI S RAOL
(8128) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 2,3
=============================================

     CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 08/02/2022

                                 ORAL ORDER

1. These two petitions are having identical facts and raise

similar issue. At the request of learned Advocates for the parties,

both these petitions are heard jointly. The facts are taken from

Special Civil Application No.7287 of 2014.

2. The petition is filed originally for reliefs as under:-

"A) Your Lordships may be pleased to issue a writ of certiorari or any other writ, order or direction, to quash and set aside the impugned notice dated 21.04.2014, issued by the respondent Corporation being in contrary to the principles of natural justice, arbitrary, beyond the authority and power

C/SCA/7287/2014 ORDER DATED: 08/02/2022

of respondent Corporation and thus ultra vires the Gujarat Provisional (sic-Provincial) Municipal Corporations Act, 1949 and General Development Control Regulations (GDCR) and violative of Articles 14, 19(1)(g) and 300A of the Constitution;

               B)       Your Lordship may be pleased to issue a writ of
                        mandamus          commanding               the       respondent

Corporation to issue No Objection Certificate (NOC) to the petitioner for installing, operating and maintaining mobile tower on the roof top of terrace of building situated at Achaleshwar Mahadev, Plot no.11, C/o Satkarm Seva Trust, near Ananddham Row House, Opposite Ambika toll naka Ranip, Taluka city and District Ahmedabad;

               C)       Your Lordships may be pleased to pass cease and
                        desist    order        restraining         the       respondent

Corporation from demolishing the installation and thereafter functioning and operation of the mobile tower of the petitioner in any manner;"

2.1 Pending the petition, amendment was moved, which

was granted and amended prayer clauses-CC) and CD) were added,

which read as under:-

"CC) Your Lordships may be pleased to issue a writ of certiorari or any other writ, order or direction to quash and set aside the impugned order dated 1.9.2014 issued by the respondent Corporation as being arbitrary, beyond the authority and power of respondent Corporation and thus, ultra vires

C/SCA/7287/2014 ORDER DATED: 08/02/2022

the Gujarat Provincial Municipal Corporations Act, 1949 and General Development Control Regulations and Violative of Articles 14, 19(1)(g) and 300A of the Constitution of India.

              CD)      Your Lordships may be pleased to declare the
                       order    dated      1.9.2014      passed      by     respondent

Corporation rejecting the petitioner's application dated 18.7.2013 for grant of No Objection Certificate for installation of mobile tower on the said site as arbitrary, capricious, bad in law, illegal and in violation of General Development Control Regulations and the Judgment of this Honourable court in Indus Towers Limited Vs. Surat Municipal Corporation, reported in 2012 (1) GLR 909 and thus violative of Articles 14, 19(1)

(g) and 300A of the Constitution of India.

3. The petition pertains to installation of a mobile tower

on terrace of building situated at Achaleshwar Mahadev, Plot

no.11, C/o Satkarm Seva Trust, near Ananddham Row House,

Opposite Ambila toll naka Ranip, Taluka city and District

Ahmedabad, which, according to the petitioner, is in possession of

one Satkarm Seva Trust and with whom, the petitioner has entered

into an agreement.

4. Learned Senior Advocate for the petitioner submitted

that the petitioner made an application to the respondent

Corporation for installing, operating and maintaining the mobile

tower on terrace of building situated at Achaleshwar Mahadev, Plot

C/SCA/7287/2014 ORDER DATED: 08/02/2022

No.11, C/o Satkarm Seva Trust, near Ananddham Row House,

Ranip, Taluka city and District Ahmedabad admeasuring about 750

sq. feet. Along with the application, the petitioner supplied all the

documents required under Regulation 21.11 of the General

Development Control Regulations (GDCR). This application was

received by the respondent Corporation on 18.07.2013.

4.1 It is submitted that on 05.05.2014, the petitioner

received notice dated 21.04.2014 from the respondent Corporation

informing the petitioner that its application for NOC permission

dated 18.07.2013 has been rejected. The reason stated in the said

notice for rejecting the NOC application was that the land on which

the mobile tower is erected belongs to the Government. Therefore,

the petitioner was asked to remove or pull down the mobile tower

from the said site or the respondent Corporation will be forced to

take appropriate actions. The said notice dated 21.04.2014 is intact

an Order in itself and has been issued without affording any

hearing to the petitioner.

4.2 It is submitted that the respondent Corporation is

required to grant NOC to the petitioner as the petitioner fulfills all

the requirements mentioned in Regulation 21.11 of the GDCR. The

respondent Corporation is not required to look into anything except

the requirements mentioned in the Regulation 21.11 of the GDCR.

Even if the land belongs to the Government then the appropriate

authority for removing unauthorized occupants would be the

C/SCA/7287/2014 ORDER DATED: 08/02/2022

Collector, District Ahmedabad. The respondent Corporation has no

power to evict the occupants if they are unauthorized occupants or

encroachers. Moreover, the trust which is also occupying the said

site but no steps have been taken to remove them or demolish the

property of the Trust by the respondent Corporation. The

respondent Corporation has simply stated that the land situated at

Achaleshwar Mahadev, Plot no. 11, C/o Satkarm Seva Trust, near

Ananddham Row House, opposite Ambika toll naka, Ranip, Taluka

City and District Ahmedabad belongs to the Government .

4.3 It is submitted that under the Gujarat Provisional

Municipal Corporation Act, 1949 ("Act"), the respondent

Corporation has power to demolish any structure or building (i) if

the building or work commenced by the concerned person is

contrary to rules or bye-laws (Section 260 of the Act); (ii)

demolition or alter lawfully constructed huts or sheds infringing

rules or bye-laws (Section 263A of the Act); (iii) removal of

structures which are in ruins or likely to fall (Section 264 of the

Act); (iv) any building that cannot be used human habitation

(Section 300 read with section 301 of the Act); and (v) any

obstructive building (Section 303 read with section 304 of the Act).

In all these section where the respondent Corporation has power to

demolish the building or structure, is first required to issue a show

cause notice and then give personal hearing to the affected person.

4.4             It is submitted that being aggrieved by the impugned






       C/SCA/7287/2014                                        ORDER DATED: 08/02/2022



notice    dated         21.4.2014,    preferred       the   present       petition.       On

9.5.2014, this court passed an oral order issuing notice to the

respondents and granting ad-interim relief in terms of paragraph

20(D) and (F). Further, the Court directed the respondent

corporation to consider the case of the petitioner for issuing No

Objection Certificate pursuant to the application made by it on

18.7.2013. It is submitted that in compliance of the aforesaid oral

order dated 9.5.2014 rejected the application dated 1.9.2014

rejected the application dated 18.7.2013 submitted by the

petitioner for granting No Objection Certificate. The main reason

given by the Corporation for rejecting petitioner's application dated

18.7.2013 was that the land situated at Achaleshwar Mahadev,

Plot No.11 C/o Satkarm, Seva Trust, Near Ananddham Row House,

Ranip Taluka city and District Ahmedabad belongs to Government.

4.5 It is further submitted that the respondent Corporation

has relied on Regulation No.3.3(i)(a) of GDCR for asserting that the

petitioner, who seeks No Objection Certificate for installation of

mobile tower, is under an obligation to provide certain documents

of title. The petitioner states that Regulation No.3.3(i)(a) appears

in Chapter 3 - "Procedure for securing Development Permission".

Thus, provisions of Regulation No.3.3(i)(a) do not apply to

installation of mobile towers. The installation of mobile towers is

governed and regulated by Chapter 21 "Control structure and

Paging Tower and Telephone Tower and outdoor Display

C/SCA/7287/2014 ORDER DATED: 08/02/2022

structure". Regulation 21.11 governs telecommunication

infrastructure (paging, cellular mobile 'V' Sat, MTNL etc.). As per

this Regulation, the only requirement that need to be fulfilled by

the petitioner for grant of No Objection Certificate for installation

of mobile tower are, (i) SACFA permission issued by Ministry of

Telecommunications, (ii) Structural stability certificate, and (iii)

layout plans. Once these requirements are fulfilled, the competent

authority cannot refuse permission.

4.6 Reliance is placed on a decision in SCA No.14591 of

2008 dated 07.10.2009 to contend if a party fulfills requirement of

Clause-21.11 of GDCR then the authorities are bound to issue NOC.

5. On behalf of the respondent-Corporation, it is

submitted that pursuant to order passed by this Court dated

09.05.2014, the respondent-Corporation has passed order on

01.09.2014 whereby application filed by the petitioner for grant of

NOC for mobile tower on final plot No.3 of TP Scheme No.2, Ranip

is rejected. It is submitted that earlier also, the respondent-

Corporation had initiated proceedings under Section 260 of the Act

and in view of communication dated 21.04.2014, the petitioner was

directed to remove the construction in question as the same was

constructed on Government land. It is submitted that as per

revenue record, land bearing final plot No.3, TP Scheme No.2,

Ranip is of the ownership of Government.

C/SCA/7287/2014 ORDER DATED: 08/02/2022

6. On behalf of the respondent-State, Mamlatdar has filed

affidavit and it is submitted that TP Scheme No.2, Final Plot No.3,

admeasuring 949 sq. mtr. is a Government land. On this land, It is

submitted that the petitioner has installed mobile tower without

prior permission of the respondent authorities. The petitioner

company is a registered company and is engaged under Indian

Telegraph Act, 1985. But, the petitioner company cannot construct

mobile tower anywhere without prior permission of the competent

authority. The petitioner company had constructed the mobile

tower without obtaining NOC from the Corporation. It is submitted

that as soon as the respondent-Corporation came to know about

illegal construction, the respondent-Corporation had issued notice.

After receiving notice from the respondent-Corporation, the

petitioner company made an application for NOC. As a relevant

document, the petitioner company had submitted leave and licence

agreement between the petitioner and Satkarm Charitable Trust

dated 28.09.2007. The said Satkarm Charitable Trust gave terrace

to the petitioner company on rent. The petitioner company did not

give any document relating to the ownership of the disputed

property.

7. Having heard learned Advocates for the parties and

having perused documents on record, it appears that the

respondent-Corporation issued show cause notice to the petitioner

company on 02.11.2012 under Section 260(1) of the Act as the

C/SCA/7287/2014 ORDER DATED: 08/02/2022

mobile tower on the said site was erected without NOC. On

01.12.2012, the petitioner company responded to the notice issued

by the respondent-Corporation. On 18.07.2013, the petitioner

company made an application to the respondent-Corporation for

obtaining NOC for installation of telecom infrastructure at the

premises, i.e. on the roof top of the building of Satkarm Seva Trust,

situated at Achaleshwar Mahadev, Plot No.11, Nr.Ananddham Row

House, Ranip, Ahmedabad. On 21.04.2014, the respondent-

Corporation issued notice to the petitioner informing that the

application of the petitioner company for NOC dated 18.07.2013

has been rejected. The reason stated in both the notices was that

land bearing survey No.213 paiki, Tauhitpark, Nr.Kajalpark,

Sarkhej Road, Gyaspur, Ahmedabad on which the mobile tower is

erected belongs to the Government. Therefore, NOC cannot be

granted.

8. It also appears that the respondent-Corporation after

spot inspection found that the disputed land is a Government land.

The trustee has encroached Government land and has illegally

constructed on Government land without prior permission from the

competent authority. Hence, looking to the above stated facts, the

respondent-Corporation had rejected the application of the

petitioner for NOC and as per GDCR, the petitioner cannot be given

NOC as it is a Government land. The petitioner company had never

approached the respondents regarding his disputed land and had

C/SCA/7287/2014 ORDER DATED: 08/02/2022

constructed the mobile tower. The disputed land is not a private

open land. It is a Government land.

9. It also appears that the petitioner company entered into

an agreement with the trustee of Satkarm Seva Charitable Trust.

The petitioner company without taking prior information about the

title clearance as well as NOC regarding this land, entered into an

agreement with the trustee of the Trust. The petitioner has made

construction of Indus Tower without prior permission of the

respondent-Corporation. Hence, the respondent-Corporation

issued notice on 21.04.2014 which was received by the petitioner

on 05.05.2014. Upon receipt of the notice from the respondent-

Corporation, the petitioner made an application for NOC

permission dated 18.07.2013. The respondent-Corporation

rejected the application of the petitioner as this is a disputed land

and is of the ownership of the Government and the petitioner

company had made construction without prior permission from the

Government. The village form No.7 of this land shows that from

since 1951, this land belongs to Government. The village form

No.7 shows that this is an old tenure land and belongs to

Government.

10. With regard to reliance placed on decision of this Court

in SCA No.14591 of 2008, it would be appropriate to mention that

Civil appeal No.6529 of 2004 was disputed of by the Apex Court by

order dated 29.09.2010 in view of the averments made in

C/SCA/7287/2014 ORDER DATED: 08/02/2022

additional affidavit filed on behalf of the respondent-Corporation.

Reading of the order passed by the Apex Court dated 29.09.2010 as

well as affidavit relied upon by the Apex Court while passing order,

it would become clear that in facts of the present case, the

impugned order of the respondent-Corporation is just and proper

and the petitioner is under obligation to submit an agreement and /

or consent that it is the owner of the land in question for obtaining

order of regularization. As per the prevailing GDCR (sanctioned on

20.12.2014), construction of communication infrastructure would

fall within schedule 18, Clause 2. The aforesaid schedule as well as

definition of the owner /developer makes it clear that no permission

and or regulation can be granted in favour of the petitioner whose

application is under approval and in facts of the present case, it is

evident from the record that the land in question is of the

ownership of the State Government as per the revenue record and

as per the record of the Town Planning authority.

11. A feeble attempt is made on behalf of the petitioner to

save the existing tower erected by relying upon communication

dated 03.08.2015 from the Ministry of Communications and IT,

Government of India to give priority to infrastructure for digital

India and for erecting towers on Government premises. The said

communication at Annexure-X refers to the guidelines as adopted

by certain States like Kerala and recommends other States to

follow. Such guidelines are annexed to such communication, but

C/SCA/7287/2014 ORDER DATED: 08/02/2022

such annexures are not placed along with Annexure-X with this

petition. In absence, it would not be prudent to speculate on the

purport of the aforesaid communications. Moreover, where the

respondent-Corporation has always taken a strict and

uncompromising stand on encroachments on Government land, be

it slums or residential premises of individual, the Court cannot

expect a different stand from the respondent authorities, when it

comes to infrastructure of a mobile tower industry.

12. The Court is therefore of the view that the respondent

authorities are justified in their actions and their actions need no

interference by this Court under Article 226. The petitions deserve

to be and are hereby dismissed. Notice is discharged. Ad interim

relief granted earlier stands vacated. No order as to costs.

(A.Y. KOGJE, J) SHITOLE