Calcutta High Court (Appellete Side)
(Indus Towers Limited & Anr vs State & Ors.) on 3 April, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1
1 3.4.2018
jb.
W.P. 31397(W) of 2014
(Indus Towers Limited & Anr. Vs. State & Ors.)
I have seen the note put up by the learned Registrar
(Administration). It appears that my earlier order dated April 2,
2018 was duly communicated to the learned advocate on record of
the writ petitioners. I am satisfied that my order on the Registrar
(Administration) has been duly complied with and I record my
appreciation for the Registry.
Pursuant to the aforesaid, the matter was listed as 'For Orders'
today. When the matter is called on Mr. Lal Babu Tiwary (writ
petitioner no. 2) the legal officer of Indus Towers Limited/ writ
petitioner no. 1 appears and submits that due to efflux of time
from 2014 the writ petition has become infructuous.
While it would have been perfectly possible for me to have
dismissed the matter as infructuous, the issues involved in the
writ petition require some further observations.
The writ petition was taken out by Indus Towers Limited
complaining of an action of the fourth respondent the Chairman,
Contai Municipality interdicting the setting up of a mobile tower. 2 This order is at pages '50' and '51' of the writ petition, page '50' being a letter forwarding an extract copy of the resolution passed by the Contai Municipality while page '51' is the resolution itself which reads as follows:
"In pursuance to the order passed by Hon'ble Justice Dipankar Datta, Calcutta High Court on 3.04.2014 a hearing was held on 08.08.2014 in the Municipal Office.
Both petitioners and respondents were present.
Heard the Parties. The representatives of Indus Tower Ltd & Anrs. were asked to produce relevant papers regarding permission of Pollution Control Board.
On the other hand villagers express their views that if any permission be given to the Indus Tower Ltd. for constructing Mobile Tower, they will be facing serious problems. They apprehend that if permission be given to Indus Tower Ltd. for constructing Mobile Tower, the entire locality will be polluted.
Hence the Indus Tower Ltd. failed to produce any permission from pollution Control Board. The Indus Tower Ltd. submitted only NO OBJECTÎON certificate of pollution Control Board regarding setting up of Diesel Generator set.
However, considering the above it is decided that the proposed setting up of Mobile Tower be stopped until further order."
Therefore, it is clear that the hearing was given pursuant to an order dated April 3, 2014 passed in W.P. 2660(W) of 2014. It is 3 also clear that the only reason why the order was passed is because the Contai Municipality held that no objection certificate issued by the Pollution Control Board was in respect of setting up of diesel generator set instead of setting up the mobile tower itself. However, from the documents annexed to the writ petition including the circulars and the order dated April 24, 2008 appearing at annexure P-12 of the writ petition which allow installation of such mobile towers subject to compliance with the directions contained therein and most particularly the document dated July 10, 2008 appearing at page '80' of the writ petition where the Department of Environment of the Government of West Bengal pursuant to the aforesaid directions has categorically held "AND WHEREAS after careful consideration once again it is reiterated that environment clearance from the West Bengal Pollution Control Board for the installation of the mobile tower is not require as the local authority and the panchayates are already empowered and entrusted under the law to give permission for installation of mobile tower subject to maintaining the guidelines issued by the Department of Environment." it is clear that the Contai Municipality failed to apply its mind to the matter of records and demanded that which it had no jurisdiction to demand.
4In view of the aforesaid circulars having the force of law in West Bengal, I make it clear even while dismissing the writ petition as infructuous that no panchayat or municipality is entitled to demand that no objection certificate/clearance certificate from the West Bengal Pollution Control Board be produced for installation of mobile tower provided that the conditions imposed by the Circular dated April 24, 2008, July 10, 2008 and September 6, 2010 issued by the West Bengal Pollution Control Board are fully complied with before installing such mobile tower. The texts of the said circulars and/or directions which are required to be complied with are also available at page '61' of the writ petition which is an earlier order dated September 21, 2012 passed by this Court in a batch of writ petitions, the first of which was W.P. 19340(W) of 2008 (Sufia Khatun vs. State of West Bengal & Ors.). It is recorded that mobile tower has already been installed and, therefore, the writ petition is dismissed as infructuous with however, the above observation being made so as to ensure that in future the municipalities and panchayats are aware of the extent of their powers and further litigation is not required.
Let a plain copy of this order duly countersigned by the Assistant Registrar (Court) be made available to the party appearing in person on the usual undertakings. It is expected that the writ petitioner shall cause communication of this order to the 5 respondents by registered post with acknowledgement due. The writ petitioner is given liberty to obtain website copy of this order and to further give adequate publicity of the above directions so that in future local bodies under Part IX and IXA of the Constitution know the limits of their powers.
There shall be no order as to costs.
(Protik Prakash Banerjee, J.)