Rajasthan High Court
Ganpati Devi W/O Late Shri Kedar ... vs Reliance Jio Infocom Limited on 11 November, 2021
Bench: Inderjeet Singh
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 10830/2021
1. Ganpati Devi W/o Late Shri Kedar Sharma, R/o 108, 108-
A, Kalyan Kunj, Kalwar Road, Jhotwara, Jaipur
2. Ramesh Chand Sharma, S/o Late Shri Hanuman Sharma,
Aged About 61 Years, R/o 100, Kalyan Kunj, Kalwar Road,
Jhotwara, Jaipur
----Petitioners
Versus
1. Reliance Jio Infocom Limited, 1St Floor, Anand Bhawan,
Opp. Homeguard Office, Sansarchand Road, Jaipur
Through Authorized Officer Mr. Umesh Bhandari.
2. Reliance Jio Infocom Limited, M/s Infotel Broadband
Services Ltd. 3Rd Floor, Maker Chamber Iv, 222 Nariman
Point, Mumbai, Maharashtra Through Its Authorized
Signatory.
3. Nagar Nigam Jaipur, Through Chief Executive Officer,
Jaipur Nagar Nigam Office, Pandit Deendayal Upadhyay
Bhawan, Lalkothi, Tonk Road, Jaipur.
----Respondents
For Petitioner(s) : Mr. Ankit Sethi
For Respondent(s) : Mr. Anuroop Singhi
Mr. Devnash Sharma
Mr. Bhaskar Agarwal
HON'BLE MR. JUSTICE INDERJEET SINGH
Order
11/11/2021
Instant writ petition has been filed by the petitioners with the
following prayers:-
"(a) To quash and set aside the order
dated 09.09.2021 passed by the learned
Additional District & Session Judge
No.06, Jaipur Metro II, Jaipur in the Civil
Appeal No.12/2021 (CIS No.44/2021)
titled as 'Smt. Ganpati Devi & Anr. Vs.
Reliance Jio Infocom Ltd. & Ors. and
(2 of 5) [CW-10830/2021]
(b) To quash and set aside the order
dated 20.02.2021 passed by, RJS, ACJ &
MM No.1, Jaipur Metro-II in Civil Misc.
Suit No.105/2020 titled as 'Smt. Ganpati
Devi & Anr. vs. reliance jio infocom ltd.
& Ors.
(c) Direct the respondent No.3 to
withdraw the NOC given to respondent
No.1 & 2 for installing mobile tower;
AND
(d) Pass any other order(s) which this
Hon'ble Court may deem fit and proper
in the facts and circumstances of the
present case."
Brief facts of the case are that the petitioners filed a suit for
permanent injunction and declaration before the learned Trial
Court. Alongwith the said suit, the petitioners have also filed an
application for temporary injunction before the learned Trial Court
which was dismsised by the learned Trial Court vide order dated
20.02.2021. Thereafter, the petitioners filed a regular appeal
which was also dismissed by the learned Appellate Court vide
order dated 09.09.2021. Hence, the present writ petition has
been filed by the petitioners challenging the orders dated
20.02.2021 and 09.09.2021.
Counsel for the petitioners submitted that the respondents
are installing the mobile tower on 30 fit road just outside a park
and NOC granted to the respondents is against the public
interest.
Counsel appearing on behalf of the respondents No.3
submitted that NOC has been granted in favour of the
respondents No.1 & 2 for installation of mobile tower in
confirmity with the guidelines issued by the Hon'ble Division
Bench of this Court in the matter of Justice I.S. Israni (Retd.)
(3 of 5) [CW-10830/2021]
& 3 Anr. Vs. Union of India & Others, reported 2013 (WLC)
(Raj.)602.
Counsel appearing on behalf of the respondents No.1 & 2
submitted that the Hon'ble Division Bench of this Court in the
matter of Prem Singh & Ors. Vs. State of Rajasthan & Ors.
(D.B. (Public Interest Litigation) Petition No.22718/2018)
has considered the similar issue and observed as under:-
This public interest litigation petition
has been filed by three petitioners,
Prem Singh; Ramveer Singh and
Suresh Chand inter alia with the
prayer that Respondent No. 4,
Commissioner, Nagar Nigam,
Bharatpur be directed to withdraw
the order/NOC dated 02.05.2018 qua
site BRPR-0080 (RTM), in the interest
of justice and in case, he does not do
so, the same be quashed and set
aside.
Contention of learned counsel for the
petitioners is that the respondents
are seeking to install mobile tower,
which is located at a distance of 40-
50 metres from Primary School
(Upper Secondary Adarsh Vidhya
Mandir, Kesav Nagar); at a distance
of 75-80 metres from State Level
Stadium (Lohagarh Stadium) as also
at a distance of 80-85 metres from
Government Hospital (Kusth Rog).
Learned counsel has relied upon the
judgment of Division Bench of this
Court in Justice I.S. Israni (Retd.) & 3
Anr. Vs. Union of India & Others,
2013 (2) WLC (Raj.) 602.
Learned counsel for Respondent No.
5 has disputed the aforesaid
assertion of learned counsel for the
petitioners and contended that
according to him, actual distance
between the proposed mobile tower
and the stadium is 190 metres; the
same from the Leprosy Centre is 280
metres and from the school, it is 90
metres. Learned counsel submitted
that the Division Bench of this Court
in Justice I.S. Israni (Retd.) & 3
Others (supra) has merely directed
(4 of 5) [CW-10830/2021]
that mobile towers should not be
allowed to be erected in the premises
of the hospitals and the colleges and
within the vicinity of 500 metres from
the jail premises. Apart from that,
certain other objections were also
raised but the policy/bye laws
proposed by the State were upheld.
He has also submitted that so as to
bring the bye laws/policy of the State
Government in conformity with the
judgment of this Court, Clause (iii)
was inserted in Point No. 3 of order
dated 06.02.2017 issued by the
Department of Urban Development
and Housing, Rajasthan.
The aforesaid Clause (iii) of Point No.
3 of Order dated 06.02.2017, upon
which reliance has been placed, was
substituted vide Order dated
16.08.2017 issued by the Joint
Secretary-I, Department of Urban
Development, Rajasthan, which reads
as under:
"(iii) The licensee shall be
permitted to erect/install
telegraph infrastructure
on open land including
private/khatedari lands,
lands and buildings of
Government or
Government
owned/controlled
Statutory or Non-
statutory
institutions/bodies or at
other public/private
locations.
Provided that in view of
decision of the Hon'ble
High Court in D.B. PIL
Petition No. 2774/2012
decided on 27.11.2012
(which is subject to
outcome of appeals
pending before the
Hon'ble Supreme Court)
mobile towers will not be
installed within the
premises of
schools/colleges,
hospitals, sports/play
grounds, within 500
meters radius of jail
campus and within
(5 of 5) [CW-10830/2021]
distance of 100 meters
from notified
archeological and
heritage properties/sites."
In view of above, it cannot be said
that NOC granted to Respondent No.
5 for installation of mobile tower was
in breach of aforesaid policy.
Moreover, the petitioners have
themselves not given any declaration
that they are not using mobile
phones/ cell phones, which in their
perception are hazardous to the
health of the human beings, although
that is still debatable and has yet not
been proven conclusively. When the
people at large are so accustomed to
use of the mobile phones/ cell
phones, not having the mobile towers
installed at the same time in the
name of public interest would be
contradiction in terms. We see no
merit in this writ petition and the
same is accordingly dismissed.
Heard counsel for the parties and perused the record.
This writ petition filed by the petitioner deserves to be
dismissed; for the reasons, firstly, in my considered view both the
learned Courts below have not committed any illegality in
dismissing the temporary injunction filed on behalf of the
petitioner and the view taken by the learned Courts below is a
possible view with which I am not inclined to interfere under
Article 227 of the Constitution of India in view of the judgment
passed by the Hon'ble Division Bench of this Court in the matter
of Prem Singh (supra).
Hence, the present writ petition stands dismissed.
(INDERJEET SINGH),J
Upendra Pratap Singh /32
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