Madras High Court
General Public Of Nathamadipatti ... vs The District Collector on 14 December, 2021
WP (MD)No.15811/2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 14 .12.2021
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
W.A.(MD)No.15811 of 2021
General Public of Nathamadipatti Village
Keelakurichi Panchayat,
Thiruverumbur Taluk, Tiruchirappalli District,
rep. by .Savarinathan,
S/o.Innasimuthu,
3/144, South Street,
Nathamadipatti Village,
Thiruverumbur Taluk,
Tiruchirappalli-620 011. .. Petitioner
Vs.
1. The District Collector,
Collectorate, Tiruchirappalli.
2. The Superintendent of Police,
Tiruchirappalli District.
3. The Inspector of Police,
Thiruverumbur Police Station,
Tiruchirappalli.
4. M/s.Summit Digital Infrastructure Pvt. Ltd.,
(Formerly Reliance io Infratel Pvt. Ltd.),
having its Circle office at A1 Tower, 8th Floor,
89-90, Dr.Radhakrishnan Salai,
Mylapore, Chennai-600 004
rep. by its Manager .. Respondents
***
Prayer : Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Mandamus directing the first respondent to
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take suitable action to shift the fourth respondent's under construction
Over Grond Telecom Infrastructure (Cell phone Tower) situated in
S.F.No.171/13B of Nathamadipatti Village, Keelakurichi Panchayath,
Tiruverumber Taluk, Tiruchirappallai District, to some other location in
the village (as it is situated within 100 mtss from the Nathamdipatti
Primary School) as per Rule 13 of Indian Telegraph Right to Way Rules,
2016, based on the representation dated 20.07.2021.
***
For Petitioner : Mr.R.S.Sivaram
For Respondents : Mr.M.Ramesh,
Government Advocate for RR 1 and 2
Mr.K.Govindarajan for R4
ORDER
PUSHPA SATHYANARAYANA, J.
This writ petition pro bono publico is filed seeking a direction to the
the first respondent to take suitable action to shift the fourth
respondent's under construction Over Ground Telecom Infrastructure
(Cell phone Tower) situated in S.F.No.171/13B of Nathamadipatti Village,
Keelakurichi Panchayath, Tiruverumber Taluk, Tiruchirappallai District, to
some other location in the village.
2. The petitioner made such claim on the ground that the fourth
respondent commenced the construction of cell phone tower without
obtaining permission from the revenue authorities and the tower under
construction is situated within 100 meters from the Nathamadipatti
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WP (MD)No.15811/2021
Primary School, which has to be removed in terms of Rule 13 of Indian
Telegraph Right to Way Rules, 2016, and seeking such relief, they
submitted a representation dated 20.07.2021 to the first respondent in
vain. Hence, they are before this Court.
3. Learned counsel for the petitioner submitted that it is not the
case of the petitioner that the private respondent should not erect the
cell phone tower at all, but their only grievance is it is located within the
residential area and near a school and as such, the same may be shifted
to some other location, for which, they are ready to offer land on lease.
It is his further submission that without even obtaining permission from
the first respondent, the private respondent commenced the work and
hence, the first respondent is empowered to take appropriate action
under Rule 13 of the Indian Telegraph Right to Way Rules, 2016.
4. The learned counsel for the fourth respondent contended that
the Standing Advisory Committee on Radio Frequency Allocation (SACFA)
has approved the site as early as in the year 2019 which was
communicated to them by the Deputy Wireless Adviser, Government of
India, New Delhi, on 26.11.2019. Subsequently, the fourth respondent
entered into the lease deed with the owners of the premises on
22.03.2021 and submitted the application with the first respondent on
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WP (MD)No.15811/2021
29.03.2021. Since the petitioner and other villagers interrupted the
work, they filed W.P.(MD)No.7056 of 2021 seeking police protection
which was ordered on 29.03.2021. It is also submitted that the first
respondent also accorded permission on 12.10.2021.
5. The first respondent filed a status report dated 24.11.2021 in
compliance with the directions issued by this Court on 06.09.2021,
wherein, inter alia, it is submitted that the fourth respondent submitted
an application dated 29.03.2021 for erecting the transmission cell phone
tower and the first respondent issued the proceedings in
Rc.No.G1/17169/2020, dated 12.10.2021 according permission to the
fourth respondent company for erection of the Cell Phone Tower in the
subject property on the following terms and conditions :
(1) The conditions as stipulated in Indian Telegraphic Act, 1855
has to be followed ;
(2) During the erection of tower, the rules and regulations as
formulated by the Telegraphic Department of India has to be
followed.
(3)Only after the payment of required fees as imposed by the
Local Administration Department, with the concerned Local
Panchayat Authorities, the Cell Phone Tower has to be
erected / operated."
Further, before issuing the said proceedings, the first respondent
obtained reports from the Tahsildar, Thiruverambur Taluk, the Revenue
Divisional Officer, Trichirappalli, and the Inspector of District Panchayat,
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dated 14.09.2021, 21.09.2021 and 07.10.2021 respectively, which were
submitted by the officials after making field inspection along with the
concerned officials, including the survey department staff, and after
perusing the same, the above proceedings was issued. It is also
submitted that in the meanwhile, the fourth respondent also filed
WP(MD)No.7056 of 2021 seeking police protection for carrying the said
work and the same was ordered by this Court on 29.03.2021 on certain
terms.
6. It is to be stated that the learned counsel for the petitioner
relied on a judgment of a coordinate Bench in Manivannan V. The
District Collector and Others reported in 2019 SCC OnLine Mad
4348, wherein, a similar relief was sought for and after discussing the
points in extenso and relying upon the Government Order in vogue and
the rules and regulations, the following two issues were framed for
consideration by this Court :
11. The common issues that are arising out for consideration in
these writ petitions are:
1. Whether the BTS Towers can be permitted in the residential
area, nearby residential buildings and schools? and whether it would
cause any health hazards to the nearby residents?
2. Whether any permission or no objection certificate is
required for installation of BTS Towers from the
Localbodies/Panchayats or any other authorities?"
The said issues were answered in the following manner :
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"24. In view of the specific stand taken by the Department of
Telecommunication and the reports of WHO, there are no materials
on record to confirm the existence of any health hazard from
exposure to low level electromagnetic field and as stated by the three
earlier orders of the different Division Benches of this Court, this
Court cannot dwell into those aspects as an expert. Thus, issue No. 1
is answered accordingly.
....
43. In view of the above Government Order and the above
cited decisions rendered by this Court, the private
respondents/service providers have to obtain permission from the
District Collectors concerned as per G.O.Ms. No. 2 Information
Technology Department, dated 01.04.2002. Issue No. 2 is answered
accordingly."
7. In the light of the above decision, the contention of the
petitioner that the proposed cell phone tower is hazardous cannot be
accepted. Further, the reports of the revenue and panchayat officials also
unequivocally stated that the schools are located beyond 100 meters and
not as claimed by the petitioner. Thus, the only point that requires
determination is whether the service provider obtained permission from
the District Collector in terms of G.O.Ms.No.2, Information Technology
Department, dated 01.04.2002. As indicated above, the first respondent
District Collector issued the proceedings dated 12.10.2021 granting
permission with certain conditions and the same mandates the service
provider, i.e., the fourth respondent, to adhere to the conditions
stipulated in the Indian Telegraphic Act, 1855, the rules and regulations
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as formulated by the Telegraphic Department of India for the erection of
tower, etc.,. In such backdrop, the provision relied on by the petitioner,
i.e., Rule 13 of Indian Telegraph Right to Way Rules, 2016, has no
application for the present and the petitioner cannot seek the relief. If
there is any violation of those provision by the fourth respondent, then
the petitioner could initiate appropriate proceedings and the instant writ
petition is premature one.
8. However, what causes great concern is that the fourth
respondent in W.P.(MD)No.7056 of 2021, while seeking police protection,
submitted before this Court that they got necessary permission from the
concerned authorities to erect a mobile tower in the premises. This Court
is of the view that when there was no valid permission accorded by the
District Collector, which was given only on 12.10.2021 and the fourth
respondent obtained only clearance from SACFA and entered into a lease
agreement with the land owners on 22.03.2021 and submitted the
application on 29.03.2021, they were not entitled to make such a
submission before this Court that they obtained necessary permission
from the concerned authorities. In such view of the matter, the fourth
respondent is directed to pay a sum of Rs.2,000/-(Rupees Two Thousand
Only) as costs to the Chief Justice Relief Fund, within a period of four
weeks from the date of receipt of a copy of this order.
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9. Excepting the above direction, we do not find any merit in the
claim of the petitioner and accordingly, the writ petition fails and the
same is dismissed as devoid of merits. There shall be no order as to
costs on the writ petitioner. Consequently, connected miscellaneous
petitions are closed.
(P.S.N., J.) (P.V., J.)
14.12.2021
Index : Yes / No
Internet: Yes
gg
To
1. The District Collector,
Collectorate, Tiruchirappalli.
2. The Superintendent of Police,
Tiruchirappalli District.
3. The Inspector of Police,
Thiruverumbur Police Station,
Tiruchirappalli.
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WP (MD)No.15811/2021
PUSHPA SATHYANARAYANA, J.
AND
P.VELMURUGAN, J.
gg
W.P.(MD)No.15811 of 2021
14.12.2021
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