ATC Telecom Tower Corporation Pvt. Ltd. v. District Telecom Committee, Kollam
2017-11-30
P.R.RAMACHANDRA MENON, SHIRCY V.
body2017
DigiLaw.ai
JUDGMENT : P.R. Ramachandra Menon, J. 1. The petitioner Company, who is engaged in providing necessary infrastructure for rendering service in the field of Mobile Phones, is before this Court seeking for immediate intervention with regard to the law being taken into the hands by the party respondents herein, despite the fact that the construction of the Mobile tower is sought to be effected on the basis of the requisite licence and clearance issued by the statutory authorities. Heard the learned counsel for the petitioner, the learned counsel for the respondents 5 and 6 and the learned Govt. Pleader on behalf of the State/Department. 2. The petitioner in furtherance to their intention and design to set up a Mobile Tower in the location concerned, approached the Local Authority for obtaining the Building Permit. On producing the requisite materials to the satisfaction of the Local Authority, Ext. P1 Building Permit was issued, which was valid for a period of one year w.e.f. 01/02/2016. The same was subsequently got renewed as evident from Ext. P1(a), which was valid till 31/01/2018. 3. When the petitioner took steps to erect the tower, the same was sought to be intercepted by the 7th respondent Panchayat by issuing Ext. P2 Stop Memo dated 18/04/2016. The reason for interdiction, as stated therein, is that there was objection from the local inhabitants apprehending threat to their lives. The said Stop Memo was sought to be challenged by the petitioner, by filing necessary proceedings before the Tribunal for Local Self Government Institutions, wherein an interim order of stay was obtained. Thereafter, the matter was finally adjudicated as borne by Ext. P3 dated 31/12/2016, whereby the appeal was allowed and Ext. P2 stop memo was set aside. 4. The petitioner approached the District Telecom Committee constituted under the relevant provisions of law, for granting Police Protection for erecting the tower, based on the licence/permit issued. The matter was considered and the DTC passed Ext. P5 order on 30/11/2016 ordering police protection. A copy of the order was placed for consideration, by filing Ext. P6 representation before the Superintendent of Police (Rural), Kollam. As there is no response, the petitioner is constrained to approach this Court by filing this writ petition. 5.
The matter was considered and the DTC passed Ext. P5 order on 30/11/2016 ordering police protection. A copy of the order was placed for consideration, by filing Ext. P6 representation before the Superintendent of Police (Rural), Kollam. As there is no response, the petitioner is constrained to approach this Court by filing this writ petition. 5. On 24/07/2017, this Court had passed the following interim order: "Heard the counsel for the petitioner, learned Government Pleader appearing for respondents 1 to 4 and the learned Standing Counsel appearing for the 7th respondent. There will be an interim order as prayed for. Post along with W.P(C) Nos. 23437 of 2017 and 22842 of 2017 after three weeks." The said order still continues. However, the party respondents 5 and 6 have filed a counter affidavit and pressed for hearing of the matter. Accordingly, the matter is listed and heard today. 6. The learned counsel appearing for the respondents 5 and 6 submits with reference to the contents of the counter affidavit that the Telecome Tower is sought to be set up by the petitioner, without any regard to the rule of law, insofar as there is clear violation of the guidelines issued by the Central Government as per Ext. R5(a). It is also pointed out that the party respondents have already moved the Local Authority/Grama Panchayat as to the merit of the matter, with reference to Rule 18 of the Kerala Panchayat Building Rules, 2011, by virtue of which, it is stated that, the petitioner is not entitled to have a valid permit to erect Tower in the location. The receipt of the said representation is acknowledged by the Grama Panchayat as borne by Ext. R5(c). Reliance is also sought to be placed on Ext. R5(d), which is a copy of the interim order passed by the Supreme Court in SLP. No. 2612 of 2016 (order dated 30/03/2017), whereby it was directed to deactivate the mobile tower operated by the BSNL in the area mentioned therein. 7. After hearing both the sides, this Court finds that the petitioner has obtained a valid permit as borne by Ext. P1, which was renewed as per Ext. P1 (a) and the same is still valid. If the party respondents have moved the Panchayat, with reference to Rule 18 of the Kerala Panchayat Building Rules and if there is any objection in having issued Exts.
P1, which was renewed as per Ext. P1 (a) and the same is still valid. If the party respondents have moved the Panchayat, with reference to Rule 18 of the Kerala Panchayat Building Rules and if there is any objection in having issued Exts. P1/P1(a) permit by the Local Authority and if no action is taken by the Panchayat, it is always open for the party respondents to move the appropriate Forum/Court for redressal of their grievance, if any. There is no case that Exts. P1/P1(a) permits have been stayed or set aside by any authority or Court, as on date. 8. Coming to Ext. R5(a)Guidelines issued by the Central Government and as to the alleged violation at the hands of the petitioner, this Court does not find it as a matter to be dealt with in this writ petition. It is to be noted, that it was based on the said guidelines, that various District Telecom Committees are made to deal with the matter, in accordance with law, to give clearance for setting up of the towers, even by ordering police protection. It is also seen from the materials on record that the petitioner herein had moved the District Telecom Committee by filing Ext. P4. As borne by Ext. P5 proceedings of the DTC, notice was issued to all concerned and it was accordingly, that the matter was finalised by passing Ext. P5, permitting the tower to be erected with the aid of Police. 9. It is seen from Ext. P5 proceedings that the respondents 5 and 6 were heard by the DTC and the complaint preferred by them was adverted to by the DTC. If there is any further case for the respondents 5 and 6 that Ext. R5(a) guidelines are violated in any manner, it is still open for the respondents to have the proceedings challenged by way of appropriate proceedings before the appropriate Forum, in accordance with law. The said aspect is not liable to be looked into in this matter. 10. With regard to Ext. R5(d) order passed by the Apex Court, it is evidently in respect of Mobile Towers set up by the BSNL and there is no total prohibition or stay with regard to setting up of Mobile Towers by anybody else. Obviously, specific reference is made by the Apex Court to the Mobile Tower set up by the BSNL in SLP.
R5(d) order passed by the Apex Court, it is evidently in respect of Mobile Towers set up by the BSNL and there is no total prohibition or stay with regard to setting up of Mobile Towers by anybody else. Obviously, specific reference is made by the Apex Court to the Mobile Tower set up by the BSNL in SLP. No. 2612 of 2016. 11. It is pointed out by the learned counsel for the petitioner that in the case of BSNL, no permission of the Local Authority is insisted or warranted and it was accordingly that they were putting up the Mobile Towers without obtaining clearance from the Local Authority. Unlike this, in the case of the petitioner, necessary applications were filed before the Local Authority, relevant documents were produced and it was after considering the facts and figures, that Ext. P1/P1 (a) permits were issued by the Local Authority. As such, Ext. R5(a) is not applicable to the case in hand, to sustain the contention raised by the party respondents. 12. In the above circumstance, insofar as there is a valid permit in favour of the petitioner, as evident from Exts. P1/P1(a) and necessary clearance has been given by the DTC, also ordering police protection to erect the Mobile Tower as borne by Ext. P5, the party respondents or anybody under them cannot take the law into their hands, to cause any forceful obstruction in setting up the tower. As it stands so, the interim order dated 24/07/2017 is made absolute and the writ petition is disposed of accordingly. However, it is made clear that, this will not bar the way of the party respondents in challenging Ext. P1/P1(a) permits issued by the Local Authority/Panchayat or Ext. P5 clearance issued by the DTC, by way of appropriate proceedings, in accordance with law. This Court does not intend to go into the factual controversies with regard to the actual date of production of copy of the interim order as mentioned in our interim order dated 17/11/2017, based on the submission made by the learned Government Pleader and also the contents of the affidavit dated 23/11/2017 filed by the petitioner, as we have already decided the 'lis' in final.