Andhra Pradesh High Court - Amravati
Chamana Seshu, vs The State Of Andhra Pradesh on 9 September, 2022
THE HON'BLE SRI JUSTICE VENKATESWARULU NIMMAGADDA
WRIT PETITION NO.18890 OF 2022
ORDER:
This writ petition is filed under Article 226 of the Constitution of India, to declare the action of the fourth respondent in granting permission to the fifth respondent for construction and operation of cell tower vide permission date 28.08.2022 as illegal, arbitrary and violative of provisions of the Andhra Pradesh Panchayat Raj Act, 1994 and also in violation of Articles 14, 21 and 300-A of the Constitution of India.
The facts of the case in brief are that, the petitioners are the residents of Pentapadu Village. Respondent No.6 is having vacant land in Sy.No.80, which is adjacent to the petitioners land. Respondent No.6 leased out the said land to Respondent No.5 for erection and establishment of cell tower. After obtaining lease hold rights in respect of the vacant land from Respondent No.6; Respondent No.5 requested for NOC/permission from the Gram Panchayat for erection and establishment of cell tower. Accordingly, Respondent No.4 - Gram Panchayat granted permission/NOC.
NV,J W.P.No.18890 of 2020 2 Learned counsel for the petitioner submits that the said permission was accorded contrary to the Andhra Pradesh Gram Panchayat (Erection of Telecommunication Towers) Rules' 2012 (for short 'Rules') incorporated in G.O.Ms.No.334 Panchayat Raj and Rural Development (Pts.IV) Department dated 09.10.2012 and such permission which was granted by the fourth respondent is liable to be set-aside/rejected.
On the other hand, learned Standing Counsel for Gram Panchayat filed counter affidavit, wherein, it is stated that, Respondent No.5 made an application on 27.08.2020 seeking permission for erection of cell tower. Since the application is in accordance with law, Respondent No.4 granted permission vide proceedings dated 28.08.2020. Learned counsel would further submit that, the Rules incorporated in G.O.Ms.No.334 dated 09.10.2012 are no longer valid, since the G.O was amended from time to time and recently, the Rules were amended vide G.O.Ms.No.75 Panchayat Raj and Rural Development (Pts.III) Department dated 29.07.2015 where the earlier restrictions were relaxed for erection of cell towers, as such, permission was accorded by the Gram Panchayat.
NV,J W.P.No.18890 of 2020 3 It is further contended that, the allegation that a hospital is situated 100 mts away from the proposed cell tower is not correct, but the hospital is 200 mts away from the proposed cell tower. Therefore, the Rules incorporated in G.O.Ms.No.334 dated 09.10.2012 would not come in the way.
Learned Standing Counsel would also submit that, since the cell tower is located within the habitation area and if any grievance about emission of radiation is observed, an alternative mechanism is provided in the G.O. issued thereafter in the year 2014 and the petitioner has to approach the Telecom Regulatory authorities to redress his grievance about emission of radiation and sought for dismissal of the writ petition.
Heard learned counsel for the petitioners and learned Standing Counsel for Respondent No.4 - Pentapadu Gram Panchayat.
No doubt, radiation from the mobile tower causes adverse effects. When restriction is reasonable and not interfering with the right to carry business, positive approach is required of removal of towers from such places; otherwise objective sought to be achieved in NV,J W.P.No.18890 of 2020 4 the policy decision of State Government would remain a paper mockery.
Hence, the writ petition is disposed of, granting liberty to the petitioner to avail alternative remedy to putforth his grievance before the Telecom Regulatory Authority, in case of noticing health hazards and ill-effects among the habitants due to emission of radiation from the cell towers.
Consequently, miscellaneous applications pending if any, shall also stand closed.
_________________________________________________ JUSTICE VENKATESWARULU NIMMAGADDA Date:09.09.2022 SP