Gujarat High Court
Indus Towers Ltd vs Ahmedabad Municipal Corporation on 8 February, 2022
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/7287/2014 ORDER DATED: 08/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7287 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 7288 of 2014
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INDUS TOWERS LTD
Versus
AHMEDABAD MUNICIPAL CORPORATION & 2 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE assisted by MS ADITI S RAOL
(8128) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 1
MS JYOTI BHATT, AGP for the Respondent(s) No. 2,3
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CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE
Date : 08/02/2022
ORAL ORDER
1. These two petitions are having identical facts and raise similar issue. At the request of learned Advocates for the parties, both these petitions are heard jointly. The facts are taken from Special Civil Application No.7287 of 2014.
2. The petition is filed originally for reliefs as under:-
"A) Your Lordships may be pleased to issue a writ of certiorari or any other writ, order or direction, to quash and set aside the impugned notice dated 21.04.2014, issued by the respondent Corporation being in contrary to the principles of natural justice, arbitrary, beyond the authority and power Page 1 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 of respondent Corporation and thus ultra vires the Gujarat Provisional (sic-Provincial) Municipal Corporations Act, 1949 and General Development Control Regulations (GDCR) and violative of Articles 14, 19(1)(g) and 300A of the Constitution;
B) Your Lordship may be pleased to issue a writ of
mandamus commanding the respondent
Corporation to issue No Objection Certificate (NOC) to the petitioner for installing, operating and maintaining mobile tower on the roof top of terrace of building situated at Achaleshwar Mahadev, Plot no.11, C/o Satkarm Seva Trust, near Ananddham Row House, Opposite Ambika toll naka Ranip, Taluka city and District Ahmedabad;
C) Your Lordships may be pleased to pass cease and
desist order restraining the respondent
Corporation from demolishing the installation and thereafter functioning and operation of the mobile tower of the petitioner in any manner;"
2.1 Pending the petition, amendment was moved, which was granted and amended prayer clauses-CC) and CD) were added, which read as under:-
"CC) Your Lordships may be pleased to issue a writ of certiorari or any other writ, order or direction to quash and set aside the impugned order dated 1.9.2014 issued by the respondent Corporation as being arbitrary, beyond the authority and power of respondent Corporation and thus, ultra vires Page 2 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 the Gujarat Provincial Municipal Corporations Act, 1949 and General Development Control Regulations and Violative of Articles 14, 19(1)(g) and 300A of the Constitution of India.
CD) Your Lordships may be pleased to declare the
order dated 1.9.2014 passed by respondent
Corporation rejecting the petitioner's application dated 18.7.2013 for grant of No Objection Certificate for installation of mobile tower on the said site as arbitrary, capricious, bad in law, illegal and in violation of General Development Control Regulations and the Judgment of this Honourable court in Indus Towers Limited Vs. Surat Municipal Corporation, reported in 2012 (1) GLR 909 and thus violative of Articles 14, 19(1)
(g) and 300A of the Constitution of India.
3. The petition pertains to installation of a mobile tower on terrace of building situated at Achaleshwar Mahadev, Plot no.11, C/o Satkarm Seva Trust, near Ananddham Row House, Opposite Ambila toll naka Ranip, Taluka city and District Ahmedabad, which, according to the petitioner, is in possession of one Satkarm Seva Trust and with whom, the petitioner has entered into an agreement.
4. Learned Senior Advocate for the petitioner submitted that the petitioner made an application to the respondent Corporation for installing, operating and maintaining the mobile tower on terrace of building situated at Achaleshwar Mahadev, Plot Page 3 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 No.11, C/o Satkarm Seva Trust, near Ananddham Row House, Ranip, Taluka city and District Ahmedabad admeasuring about 750 sq. feet. Along with the application, the petitioner supplied all the documents required under Regulation 21.11 of the General Development Control Regulations (GDCR). This application was received by the respondent Corporation on 18.07.2013. 4.1 It is submitted that on 05.05.2014, the petitioner received notice dated 21.04.2014 from the respondent Corporation informing the petitioner that its application for NOC permission dated 18.07.2013 has been rejected. The reason stated in the said notice for rejecting the NOC application was that the land on which the mobile tower is erected belongs to the Government. Therefore, the petitioner was asked to remove or pull down the mobile tower from the said site or the respondent Corporation will be forced to take appropriate actions. The said notice dated 21.04.2014 is intact an Order in itself and has been issued without affording any hearing to the petitioner.
4.2 It is submitted that the respondent Corporation is required to grant NOC to the petitioner as the petitioner fulfills all the requirements mentioned in Regulation 21.11 of the GDCR. The respondent Corporation is not required to look into anything except the requirements mentioned in the Regulation 21.11 of the GDCR. Even if the land belongs to the Government then the appropriate authority for removing unauthorized occupants would be the Page 4 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 Collector, District Ahmedabad. The respondent Corporation has no power to evict the occupants if they are unauthorized occupants or encroachers. Moreover, the trust which is also occupying the said site but no steps have been taken to remove them or demolish the property of the Trust by the respondent Corporation. The respondent Corporation has simply stated that the land situated at Achaleshwar Mahadev, Plot no. 11, C/o Satkarm Seva Trust, near Ananddham Row House, opposite Ambika toll naka, Ranip, Taluka City and District Ahmedabad belongs to the Government . 4.3 It is submitted that under the Gujarat Provisional Municipal Corporation Act, 1949 ("Act"), the respondent Corporation has power to demolish any structure or building (i) if the building or work commenced by the concerned person is contrary to rules or bye-laws (Section 260 of the Act); (ii) demolition or alter lawfully constructed huts or sheds infringing rules or bye-laws (Section 263A of the Act); (iii) removal of structures which are in ruins or likely to fall (Section 264 of the Act); (iv) any building that cannot be used human habitation (Section 300 read with section 301 of the Act); and (v) any obstructive building (Section 303 read with section 304 of the Act). In all these section where the respondent Corporation has power to demolish the building or structure, is first required to issue a show cause notice and then give personal hearing to the affected person.
4.4 It is submitted that being aggrieved by the impugned Page 5 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 notice dated 21.4.2014, preferred the present petition. On
9.5.2014, this court passed an oral order issuing notice to the respondents and granting ad-interim relief in terms of paragraph 20(D) and (F). Further, the Court directed the respondent corporation to consider the case of the petitioner for issuing No Objection Certificate pursuant to the application made by it on 18.7.2013. It is submitted that in compliance of the aforesaid oral order dated 9.5.2014 rejected the application dated 1.9.2014 rejected the application dated 18.7.2013 submitted by the petitioner for granting No Objection Certificate. The main reason given by the Corporation for rejecting petitioner's application dated 18.7.2013 was that the land situated at Achaleshwar Mahadev, Plot No.11 C/o Satkarm, Seva Trust, Near Ananddham Row House, Ranip Taluka city and District Ahmedabad belongs to Government. 4.5 It is further submitted that the respondent Corporation has relied on Regulation No.3.3(i)(a) of GDCR for asserting that the petitioner, who seeks No Objection Certificate for installation of mobile tower, is under an obligation to provide certain documents of title. The petitioner states that Regulation No.3.3(i)(a) appears in Chapter 3 - "Procedure for securing Development Permission". Thus, provisions of Regulation No.3.3(i)(a) do not apply to installation of mobile towers. The installation of mobile towers is governed and regulated by Chapter 21 "Control structure and Paging Tower and Telephone Tower and outdoor Display Page 6 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 structure". Regulation 21.11 governs telecommunication infrastructure (paging, cellular mobile 'V' Sat, MTNL etc.). As per this Regulation, the only requirement that need to be fulfilled by the petitioner for grant of No Objection Certificate for installation of mobile tower are, (i) SACFA permission issued by Ministry of Telecommunications, (ii) Structural stability certificate, and (iii) layout plans. Once these requirements are fulfilled, the competent authority cannot refuse permission.
4.6 Reliance is placed on a decision in SCA No.14591 of 2008 dated 07.10.2009 to contend if a party fulfills requirement of Clause-21.11 of GDCR then the authorities are bound to issue NOC.
5. On behalf of the respondent-Corporation, it is submitted that pursuant to order passed by this Court dated 09.05.2014, the respondent-Corporation has passed order on 01.09.2014 whereby application filed by the petitioner for grant of NOC for mobile tower on final plot No.3 of TP Scheme No.2, Ranip is rejected. It is submitted that earlier also, the respondent- Corporation had initiated proceedings under Section 260 of the Act and in view of communication dated 21.04.2014, the petitioner was directed to remove the construction in question as the same was constructed on Government land. It is submitted that as per revenue record, land bearing final plot No.3, TP Scheme No.2, Ranip is of the ownership of Government.
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C/SCA/7287/2014 ORDER DATED: 08/02/2022
6. On behalf of the respondent-State, Mamlatdar has filed affidavit and it is submitted that TP Scheme No.2, Final Plot No.3, admeasuring 949 sq. mtr. is a Government land. On this land, It is submitted that the petitioner has installed mobile tower without prior permission of the respondent authorities. The petitioner company is a registered company and is engaged under Indian Telegraph Act, 1985. But, the petitioner company cannot construct mobile tower anywhere without prior permission of the competent authority. The petitioner company had constructed the mobile tower without obtaining NOC from the Corporation. It is submitted that as soon as the respondent-Corporation came to know about illegal construction, the respondent-Corporation had issued notice. After receiving notice from the respondent-Corporation, the petitioner company made an application for NOC. As a relevant document, the petitioner company had submitted leave and licence agreement between the petitioner and Satkarm Charitable Trust dated 28.09.2007. The said Satkarm Charitable Trust gave terrace to the petitioner company on rent. The petitioner company did not give any document relating to the ownership of the disputed property.
7. Having heard learned Advocates for the parties and having perused documents on record, it appears that the respondent-Corporation issued show cause notice to the petitioner company on 02.11.2012 under Section 260(1) of the Act as the Page 8 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 mobile tower on the said site was erected without NOC. On 01.12.2012, the petitioner company responded to the notice issued by the respondent-Corporation. On 18.07.2013, the petitioner company made an application to the respondent-Corporation for obtaining NOC for installation of telecom infrastructure at the premises, i.e. on the roof top of the building of Satkarm Seva Trust, situated at Achaleshwar Mahadev, Plot No.11, Nr.Ananddham Row House, Ranip, Ahmedabad. On 21.04.2014, the respondent- Corporation issued notice to the petitioner informing that the application of the petitioner company for NOC dated 18.07.2013 has been rejected. The reason stated in both the notices was that land bearing survey No.213 paiki, Tauhitpark, Nr.Kajalpark, Sarkhej Road, Gyaspur, Ahmedabad on which the mobile tower is erected belongs to the Government. Therefore, NOC cannot be granted.
8. It also appears that the respondent-Corporation after spot inspection found that the disputed land is a Government land. The trustee has encroached Government land and has illegally constructed on Government land without prior permission from the competent authority. Hence, looking to the above stated facts, the respondent-Corporation had rejected the application of the petitioner for NOC and as per GDCR, the petitioner cannot be given NOC as it is a Government land. The petitioner company had never approached the respondents regarding his disputed land and had Page 9 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 constructed the mobile tower. The disputed land is not a private open land. It is a Government land.
9. It also appears that the petitioner company entered into an agreement with the trustee of Satkarm Seva Charitable Trust. The petitioner company without taking prior information about the title clearance as well as NOC regarding this land, entered into an agreement with the trustee of the Trust. The petitioner has made construction of Indus Tower without prior permission of the respondent-Corporation. Hence, the respondent-Corporation issued notice on 21.04.2014 which was received by the petitioner on 05.05.2014. Upon receipt of the notice from the respondent- Corporation, the petitioner made an application for NOC permission dated 18.07.2013. The respondent-Corporation rejected the application of the petitioner as this is a disputed land and is of the ownership of the Government and the petitioner company had made construction without prior permission from the Government. The village form No.7 of this land shows that from since 1951, this land belongs to Government. The village form No.7 shows that this is an old tenure land and belongs to Government.
10. With regard to reliance placed on decision of this Court in SCA No.14591 of 2008, it would be appropriate to mention that Civil appeal No.6529 of 2004 was disputed of by the Apex Court by order dated 29.09.2010 in view of the averments made in Page 10 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 additional affidavit filed on behalf of the respondent-Corporation. Reading of the order passed by the Apex Court dated 29.09.2010 as well as affidavit relied upon by the Apex Court while passing order, it would become clear that in facts of the present case, the impugned order of the respondent-Corporation is just and proper and the petitioner is under obligation to submit an agreement and / or consent that it is the owner of the land in question for obtaining order of regularization. As per the prevailing GDCR (sanctioned on 20.12.2014), construction of communication infrastructure would fall within schedule 18, Clause 2. The aforesaid schedule as well as definition of the owner /developer makes it clear that no permission and or regulation can be granted in favour of the petitioner whose application is under approval and in facts of the present case, it is evident from the record that the land in question is of the ownership of the State Government as per the revenue record and as per the record of the Town Planning authority.
11. A feeble attempt is made on behalf of the petitioner to save the existing tower erected by relying upon communication dated 03.08.2015 from the Ministry of Communications and IT, Government of India to give priority to infrastructure for digital India and for erecting towers on Government premises. The said communication at Annexure-X refers to the guidelines as adopted by certain States like Kerala and recommends other States to follow. Such guidelines are annexed to such communication, but Page 11 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022 C/SCA/7287/2014 ORDER DATED: 08/02/2022 such annexures are not placed along with Annexure-X with this petition. In absence, it would not be prudent to speculate on the purport of the aforesaid communications. Moreover, where the respondent-Corporation has always taken a strict and uncompromising stand on encroachments on Government land, be it slums or residential premises of individual, the Court cannot expect a different stand from the respondent authorities, when it comes to infrastructure of a mobile tower industry.
12. The Court is therefore of the view that the respondent authorities are justified in their actions and their actions need no interference by this Court under Article 226. The petitions deserve to be and are hereby dismissed. Notice is discharged. Ad interim relief granted earlier stands vacated. No order as to costs.
(A.Y. KOGJE, J) SHITOLE Page 12 of 12 Downloaded on : Sun Apr 24 12:14:23 IST 2022