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2020 DIGILAW 111 (AP)

Kodavali Udaya Bhaskara Rao v. Union of India

2020-02-11

KONGARA VIJAYA LAKSHMI

body2020
ORDER : 1. This writ petition is filed “to declare the action of respondents 1 to 8 in not stopping the installation of the Telecommunication Infrastructure Tower by respondents 9 and 10 over the residential house of the 10th respondent bearing D. No.28-9-7, Bodavari Street, Ganesh Chowk, Jampeta, Rajahmundry, without considering the representation dated 02.08.2019, as illegal and arbitrary.” 2. Case of the petitioner is that, he is a resident of building bearing D.No.28-9-7, Bodavari Street, Rajahmundry and the 10th respondent is the owner of the said building, which is located in a narrow street admeasuring less than 15 ft. width and is thickly populated; the 10th respondent leased out the terrace of the building to the 9th respondent for installation of telecommunications infrastructure tower, for which the 4th respondent issued a provisional no objection certificate vide proceedings dated 29.05.2019; basing on said permission, the 9th respondent is trying to erect a tower on the terrace of the 10th respondent, same is 11 KM away from Rajahmundry air port and is not fit for installation of the tower, as it is 20 years old building and does not have capacity to bear the load; the Welfare Officer of the Government Girls Hostel, has also addressed a letter requesting to stop the installation of the tower, as the same is hazardous to health; respondents 9 and 10 without obtaining permission from the 7th and 8th respondents, submitted an application and the 4th respondent issued provisional no objection certificate and hence, the permission granted by the 4th respondent is illegal. 3. On 07.08.2019, when the writ petition came up for admission, this court granted interim direction to the 4th respondent to stop erection of the cell tower by respondents 9 and 10. 4. 3. On 07.08.2019, when the writ petition came up for admission, this court granted interim direction to the 4th respondent to stop erection of the cell tower by respondents 9 and 10. 4. Counter-affidavit has been filed by the 9th respondent along with the vacate stay petition, stating inter-alia that they have applied for permission to the 4th respondent Corporation after complying with all the requirements and after satisfying itself that the petitioner company has completed all the requirements, had accorded provisional NOC vide proceedings dated 29.05.2019 and petitioner company commenced the erection of tower; the allegation that the said area is thickly populated and that the schools, hospitals, vegetable market are there and that the airport is only 11 KM away are all false; further allegations with regard to the age of the building and stability are also false; the 9th respondent has obtained structural stability certificate before applying for permission and the 4th respondent after being satisfied with all the conditions stipulated in G.O.Ms.No.146, had accorded provisional permission for erection of telecommunication infrastructure tower; petitioner has not mentioned, which of the rules or guidelines have been violated; the allegation of ill-effect of emission of radiation are premature and without any basis; radiation related issues have to be dealt with by the Telecom Enforcement Resource and Monitoring (TERM) Cell of the Department of Telecommunication and any person can approach the said authority; petitioner has got an alternative remedy of approaching the TERM Cell with regard to his grievance about the radiation after the tower becomes functional; similar issue had been dealt by the Division Bench of this Court in WP No.3137 of 2017 dated 09.04.2019; petitioner did not challenge the permission, which is granted by the 4th respondent and that the 9th respondent has to complete the tower within the time bound frame i.e., within one month, to enable the service providers to install their equipments to make it functional, failing which 9th respondent has to pay huge amount towards demurrages for delay and prays to vacate the interim order. 5. The main grievance of the writ petitioner is that his representation dated 02.08.2019, which is made to the Sub Collector, is not considered and respondents 1 to 8 are not stopping the installation and erection of telecommunication tower. 5. The main grievance of the writ petitioner is that his representation dated 02.08.2019, which is made to the Sub Collector, is not considered and respondents 1 to 8 are not stopping the installation and erection of telecommunication tower. As seen from the representation dated 02.08.2019 of the petitioner, subject tower is in the middle of the residential houses and school and that the children and aged persons would be affected with radiation. The said representation also states that in WP No.7287 of 2018, a direction was granted to the Municipal Corporation to stop erection of the cell tower, which is there in the residential area. The order in WP No.7287 of 2018 dated 02.07.2019 is only an interim direction and the said writ petition was directed to be listed on 23.07.2019. The affidavit filed by the petitioner in support of the writ petition, does not contain any details whatsoever with regard to the pendency or otherwise of WP No.7287 of 2018. 6. Sri Ganta Rama Rao, learned senior counsel appearing for the 9th respondent submits that the matter is squarely covered by the order of the Division Bench of this Court passed in WP No.3137 and 13896 of 2017 dated 09.04.2019. 7. As seen from the judgment of the Division Bench of this Court in WP No.3137 and 13896 of 2017, it was held that with regard to the issue relating to emissions/radiation from the tower, the issue is no more res integra and the petitioner has to approach the concerned TERM Cell, Department of Telecommunications (DoT), Government of India for his grievance, if any. 8. In view of the same, if the petitioner has any grievance with regard to radiation, he is at liberty to approach the TERM Cell. So far as permission granted to the 9th respondent by the 4th respondent is concerned, if the same is not in accordance with the relevant GOs, which are issued for installation of towers or if the said permission granted by the 4th respondent is in violation of any provision of law, petitioner is at liberty to take recourse to the remedies which are available to him under law. 9. The writ petition is, accordingly, disposed of. No order as to costs. Miscellaneous petitions, if any, pending in the writ petition shall stand closed.