Madras High Court

Atc Telecom Infrastructure Pvt. ... vs The District Collector on 30 April, 2021

                                                                               W.P.No.10915 of 2021


                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                DATED : 30.04.2021

                                                       CORAM:

                                    THE HON'BLE MR.JUSTICE M.NIRMAL KUMAR

                                               WP.No.10915 of 2021

                     ATC Telecom Infrastructure Pvt. Ltd.
                     Represented by Authorised Signatory
                     N.Senathipathi
                     “Celestial Point”, No.45, Damodharan Street,
                     T.Nagar, Chennai – 600 017                                   ... Petitioner
                                                    Versus
                     1.The District Collector,
                       Collectorate,
                       Government Garden,
                       Tirupathur District – 635601

                     2.The Superintendent of Police,
                       District Police Office,
                       Tirupathur - 635601

                     3.The State,
                       Rep. by Inspector of Police (Law & Order),
                       Town Police Station,
                       Vaniyambadi – 635751
                       Tirupathur.                                             ... Respondents

                     PRAYER: Writ Petition filed under Article 226 of the Constitution of
                     India, praying for the issuance of a Writ, Order or Direction in the nature
                     of Writ of Mandamus, directing the Respondents 2 & 3 to forthwith
                     provide effective police protection to the petitioner's company to fully
                     complete the erection of transmission cell phone tower and to install all
                     the telecommunication electrical and electronic equipments, cables at the
                     open land admeasuring about 900 Sq.ft (30x30) out of total land
                     1/8
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                                                                                 W.P.No.10915 of 2021


                     measuring about more or less 1800 Sq.ft. situated and / or comprised in
                     Town Survey No.11, lying and situated Govindapuram village,
                     Vaniyambadi Municipality, B/1 Division, 2nd Ward, Pudhur, Survey Ward
                     F, Block No.12, Harbath Nagar, Plot Nos.7 & 8, Vaniyambadi SRO,
                     Vellore Registration District, Vaniyambadi Taluk, Vellore District, on the
                     basis of the complaint filed by the petitioner dated 03.03.2021, since, the
                     deemed permission to install the BTS transmission Tower was granted by
                     the 1st respondent as per the G.O.(MS) No.1, Information Technology
                     (B4) Department dated 21.02.2018, by implementing the Indian
                     Telegraph Right of way Rules, 2016, notified by the Government of
                     India, Ministry of Communications, Department of Telecommunication
                     vide No.G.S.R.1070(E) dated 15.11.2016.
                                  For Petitioner      : Mr.J.Ravikumar
                                  For Respondents : Mr.M.Mohamed Riyaz
                                                        Additional Public Prosecutor
                                                        *****
                                                       ORDER

(Through Video Conferencing) This petition has been filed for the issue of a writ of mandamus,

directing the Respondents 2 & 3 to forthwith provide effective police

protection to the petitioner's company to fully complete the erection of

transmission cell phone tower and to install all the telecommunication

electrical and electronic equipments, cables at the open land admeasuring

about 900 Sq.ft (30x30) out of total land measuring about more or less

1800 Sq.ft. situated and / or comprised in Town Survey No.11, lying and

situated Govindapuram village, Vaniyambadi Municipality, B/1 Division,

2nd Ward, Pudhur, Survey Ward F, Block No.12, Harbath Nagar, Plot

Nos.7 & 8, Vaniyambadi SRO, Vellore Registration District,

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Vaniyambadi Taluk, Vellore District, on the basis of the complaint filed

by the petitioner dated 03.03.2021, since, the deemed permission to

install the BTS transmission Tower was granted by the 1st respondent as

per the G.O.(MS) No.1, Information Technology (B4) Department dated

21.02.2018, by implementing the Indian Telegraph Right of way Rules,

2016, notified by the Government of India, Ministry of Communications,

Department of Telecommunication vide No.G.S.R.1070(E) dated

15.11.2016.

2.The case of the petitioner is that the petitioner is engaged in the

business of Operation and Maintenance of Mobile phone towers across

India for all the mobile phone operators/service providers providing

broadband Internet services and other allied services. For the said

purpose, cell phone tower is going to be erected. The petitioner had also

entered into a lease agreement with the owner of the property and had

taken steps to install the cell phone tower. Already, the Government of

Tamil Nadu has granted exemption to all the Telecom companies to

install the cell phone towers by virtue of Government Order passed in

G.O.Ms.No.2, dated 01.04.2002.

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3.When the petitioner attempted to erect the cell phone tower,

some people with vested interest claiming to be neighbours have been

causing hindrance and preventing the workers from carrying out the

construction work. In this regard, the petitioner ave a complaint to the 2nd

and 3rd respondent on 03.03.2021, seeking police protection. However,

the 2nd and 3rd respondent have not acted upon the said complaint and

therefore, the present Petition has been filed.

4.The learned counsel appearing for the petitioner would submit

that the issue involved in this petition is covered by the earlier Judgments

of this Court. The learned counsel brought to the notice of this Court the

order passed by this Court in Crl.O.P.No.16618 of 2018 dt.28.06.2018.

5.It will be appropriate to extract the relevant portions of the order

in Crl.O.P.No.16618 of 2018, which is extracted hereunder:-

“2.The learned counsel for the petitioner would submit that the petitioner's company had the contract agreement for installation of cell phone tower with M/s.Indus Towers Limited, a company registered under the provisions of Indian Companies Act, 1956. It is further submitted by the learned

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counsel for the petitioner that whenever the petitioner's company attempted to erect transmission cell phone tower, publics are causing interference. The learned counsel for the petitioner also submitted that by order dated 05.03.2015, the Honourable First Bench of this Court, in W.P.Nos.24976 of 2008 and etc., batch, held that because of the advancement in the science, no one has prevented to erect cell phone towers. It is also submitted that the petitioner has given a complaint dated 24.02.2016 to the first respondent police seeking police protection, for which C.S.R.No.42 of 2016 and since the same has not been considered so far, he has come up with the present petition for the relief stated supra.

3.Heard the learned Additional Public Prosecutor appearing for the respondent.

4.Considering the facts and circumstances of the case, the petitioner is directed to send a fresh representation to the respondent and on receipt of the same, the respondent is directed to consider the representation to be submitted by the petitioner and pass appropriate orders on merits and in accordance with law, within a period of one week from the date of receipt of copy of this order.

5.With the above directions, this Criminal Original Petition is disposed of.”

6.This Court has consistently taken the view that no one can be

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prevented from erecting the cell phone towers on a mere apprehension

about the effect of radiation from the cell phone tower. The apprehension

does not have a scientific backing. Till a positive finding is given in this

regard, cell phone towers cannot be prevented to be installed on mere

apprehensions.

7.For the reasons stated above, there shall be a direction to the 2 nd

and 3rd respondent police to provide police protection to the petitioner for

erection of the cell phone tower. The 2nd and 3rd respondent police shall

ensure that the entire process goes on in a smooth manner, without giving