Gujarat High Court
Bharti Infratel Ltd, Thro.Constituted ... vs State Of Gujarat on 17 April, 2018
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/4251/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4251 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA : Sd/
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1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
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BHARTI INFRATEL LTD,
THRO. CONSTITUTED ATTORNEY RITESH V SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR SHALIN N MEHTA(2010) for the PETITIONER(s) No. 1
MS ASMITA PATEL AGP for the RESPONDENT(s) No. 1, 3
MR DEEPAK P SANCHELA for the RESPONDENT(s) No. 2
MR MD PANDYA for the RESPONDENT(s) No. 4
MR MEHUL S SHAH, Sr. Adv. with MR JENIL SHAH for the
RESPONDENT(s) No. 5,6,7,8
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 17/04/2018
ORAL JUDGMENT
1. The present petition is filed by the petitioner Company under Articles 14, 19, 300A and 226 of the Constitution of India as well as under the Gujarat Municipalities Act, 1963 and also under Page 1 of 21 C/SCA/4251/2009 JUDGMENT the Gujarat Town Planning & Urban Development Act, 1976 read with Regulation 21.11 of the General Development Control Regulations (GDCR) for the prayers as prayed for in the petition inter alia quashing the order passed by the respondent no.3 - Collector, Anand dated 09.01.2009 at AnnexureA and also to restrain the respondent - Municipality from taking any step for demolition of the mobile tower erected by the petitioner on the land in question and also further prayers as stated in detail.
2. The facts of the case briefly summarized are as follows: 2.1 The petitioner - Bharti Infratel Ltd. is a public limited company incorporated under the Companies Act, 1956 having registered office at New Delhi. The petitioner - Company has been granted license under the provision of the Telegraph Act, 1855 to operate cellular telecom services, for which, Notification has also been issued by the Government of India dated 24.05.1999 under the Indian Telegraph Act, 1955. By another Notification dated 07.02.2002, by term "private basic telephone Page 2 of 21 C/SCA/4251/2009 JUDGMENT service operators' was widened to inclue the "cellular telephone service operators'". Therefore by virtue of the licence granted by the Central Government, the petitioner is deemed to be a telegraph authority. 2.2 It is contended that the respondent no.1 is a Nagarpalika constituted under the Gujarat Municipalities Act, 1963. It is the case of the petitioner that for installation of Base Trans Receiver Station (mobile tower), compliance of the Regulation - 21.11 of GDCR framed under the provision of the Gujarat Town Planning & Urban Development Act, 1976 is required. It is also stated that Regulation - 21.11 of GDCR require, "a) Permission from the Standing Advisory Committee on Radio Frequency Allocation (SACFA) issued by the Ministry of Telecommunications;
b) Structural Stability Certificate;
c) Layout plans of Base Trans Receiver Station (Mobile Tower)."
2.3 Therefore as the petitioner wanted to erect the mobile tower on the land in question, it executed leave and license agreement with Shri Vipulkumar Ganpatlal Trivedi and Mrs. Aruksha Vipulkumar Trivedi, the owner of the Page 3 of 21 C/SCA/4251/2009 JUDGMENT said land. Thereafter the mobile tower was erected by the petitioner and the owner of the land also made an application to the respondent no.2 - Umerth Nagarpalika for according "No Objection Certificate" for erection of mobile tower subject to certain conditions, copy of which is also produced at AnnexureH. 2.4 It is the case of the petitioner that mobile tower erected on the said land in compliance with the Regulation - 21.11 of the GDCR and the permission of SACFA issued in respect of the mobile tower is also granted. It is, therefore, contended that when the mobile tower is erected on the open land, structural stability certificate is not required. It is only when the mobile tower is to be erected on building or structure then, structural stability certificate is required. Therefore it is contended that no permission of any other authority is required for installing such Base Trans Receiving Station (Mobile Tower) if Regulation - 21.11 of GIDCR is complied with. It is also contended that the Page 4 of 21 C/SCA/4251/2009 JUDGMENT Revenue Department, State of Gujarat has issued circular dated 05.12.2001 in exercise of power under Section 48(2)(k) read with Section 65(b) of the Bombay Land Revenue Code, copy of which is produced at Annexure K. Thereafter on 09.01.2009, the respondent no.3 - Collector, Anand passed an order suspending the Resolution No.37 passed earlier by the respondent - Municipality and as a result thereof, No Objection Certificate granted by the respondent no.2 - Nagarpalika to the petitioner for erection of the mobile tower was also suspended. Thereafter on 12/13.01.2009, the Chief Officer of the respondent - Nagarpalika communicated the order of the Collector and the petitioner was called upon to pull down the mobile tower and also electric connection was severed by the respondent no.4 - Madhya Gujarat Vij Co. Ltd. at the instance of the respondent no.3 - Collector, Anand.
2.5 Therefore the petitioner filed Appeal with Secretary, Urban Development & Urban Housing Department challenging the order of the Page 5 of 21 C/SCA/4251/2009 JUDGMENT Collector dated 09.01.2009 and decision is not taken, which has led to filing of the present petition. It is also contended that similar case also arose with regard to other Cellular Operator and Special Civil Application No.3062/2008 was filed by Vodafone Essar Gujarat Ltd. as well as Special Civil Application No.3204/2008 was filed by Bharti Airtel Ltd.. The Division Bench of the High Court of Gujarat has admitted the matter and passed an order, which is reproduced. Therefore, it has been contended that the present petition may be allowed and the impugned order suspending the operation of the petitioner's mobile tower located in the land in question may be quashed and set aside.
2.6 Affidavitinreply is filed by the respondent no.5 contending inter alia that though soil testing report is required, there is nothing on record to show that any such testing has been done. Similarly, it has been contended that the respondent nos.5 to 8 have no objection if the petitioner constructs and Page 6 of 21 C/SCA/4251/2009 JUDGMENT operate the mobile tower over the parcel of land with open surrounding away from thickly residential area. Therefore, it is contended that the order passed in exercise of judicial discretion under the provision of the Gujarat Municipalities Act may not be disturbed. 2.7 The petitioner has also filed rejoinder to this affidavit reiterating the similar contentions.
3. Heard learned Senior Counsel, Shri Shalin Mehta appearing with learned advocate, Ms. Vidhi Bhatt for the petitioner, learned AGP Ms. Asmita Patel for the respondent nos.1 and 3, learned advocate, Shri Deepak Sanchela for the respondent no.2 and learned Senior Counsel, Shri Mehul S. Shah appearing with learned advocate, Shri Jenil Shah for the respondent nos.5 to 8.
4. Learned Senior Counsel, Shri Mehta referred to the papers at length and also Resolution No.37 dated 15.06.2007 passed by the Municipality granting NOC for installation of such mobile tower. He submitted that the Nagarpalika has approved and there is no breach of any conditions. Learned Senior Counsel, Shri Mehta referred to the Page 7 of 21 C/SCA/4251/2009 JUDGMENT impugned order dated 09.01.2009 passed by the respondent no.3Collector and submitted that it also records that the permission was granted subject to the conditions and those conditions are not violated. Learned Senior Counsel, Shri Mehta submitted that though it has been contended that the conditions of the said Resolution granting such permission have not been fulfilled, there is nothing on record to suggest how the conditions have not been fulfilled. He submitted that reference to Section 258 of the Gujarat Municipalities Act, is also misconceived. He referred to Section 258 of the Gujarat Municipalities Act and submitted that the impugned order refers to the fact that in public interest, as the conditions have not been complied with, the Resolution No.37 dated 15.06.2007 granting permission or NOC has been suspended. Learned Senior Counsel, Shri Mehta submitted that it is evident that local residents had not approved of and consent of the people has not been obtained, which led to such an order. Learned Senior Counsel, Shri Mehta submitted that no such procedure is required and consent of the people or Page 8 of 21 C/SCA/4251/2009 JUDGMENT the residents or consultation is not required. He submitted that in any case, the Resolution has been passed by the authority granting NOC, they are estopped from now taking a different stand without any justification. Learned Senior Counsel, Shri Mehta has referred to the order of this Court in Special Civil Application No.16307/2013 dated 15.07.2014 and submitted that the issue with regard to Radio Frequency Radiation from mobile tower and the aspect of effect of radiation have been considered and discussed. Learned Senior Counsel, Shri Mehta submitted that radiation from the mobile tower phone causing adverse effect are not conclusive and precautionary measures have to be taken. He, therefore, submitted that precautionary measures could be taken but installation cannot be stopped or objected and the Ministry has also therefore made necessary SACFA permission. Learned Senior Counsel, Shri Mehta submitted that the Division Bench of the High Court of Gujarat addressed similar issue with reference to Clause - 21.11 of GIDC under the provision of the Gujarat Town Planning & Urban Development Act, 1976 has also considered and Page 9 of 21 C/SCA/4251/2009 JUDGMENT discussed at length and it has been observed that the permission for installation of mobile tower needs to be considered in light of Regulation - 21.11 of the GDCR. He, therefore, submitted that once such application fulfills the requirement, the competent authority cannot refuse the permission. He submitted that earlier the Division Bench of the High Court had also made observation that the requirement of Regulation 21.11 of the GDCR is required to be fulfilled. Learned Senior Counsel, Shri Mehta also referred to the judgment of the Hon'ble Division Bench (Coram : Bhaskar Bhattacharya, CJ & J.B. Pardiwala, J.) in case of Muktipark Co Operative Society Vs. Ahmedabad Municipal Corporation in Special Civil Application No.5548/2014 and allied groups of matters and submitted that as discussed in detail, issue with regard to such hazard or any adverse effect have been discussed and considered. He submitted that even reference is made to the report of WHO or other studies and, therefore, such a decision or the order passed on such ground that the residents were not consulted or they have an objection, cannot be sustained and the respondents are Page 10 of 21 C/SCA/4251/2009 JUDGMENT estopped from taking such stand for suspension of the permission/NOC already granted.
5. Learned Senior Counsel, Shri Shah referred to the papers and provision of Section 258 of the Gujarat Municipalities Act. He also referred to the impugned order and also the order passed in Revision Application by the Deputy Secretary. He emphasized the fact that after considering the views, conclusion has been arrived at, which cannot be said to be erroneous or perverse. Learned Senior Counsel, Shri Shah submitted that conclusion clearly refers to the fact that though NOC was granted, there were objections and even though, notice was issued, the petitioner did not stop the construction and proceeded ahead with the construction and, therefore in exercise of statutory power, the order came to be passed by the Collector, which has been confirmed in Revision Application. He, therefore, submitted that the respondents are not avers the mobile tower or use of the technology. However, learned Senior Counsel, Shri Shah submitted that when the respondents have no personal grudge or bias and when the public interest is required to be Page 11 of 21 C/SCA/4251/2009 JUDGMENT considered with adverse effect on health of the people, the order has been passed. He, therefore, submitted that if the order is passed in exercise of statutory power under Section 258 of the Gujarat Municipalities Act, it cannot be said to be perverse or without jurisdiction, which would call for any judicial review and exercise of discretionary jurisdiction. He submitted that normally the High Court would not interfere with such order in exercise of discretionary jurisdiction under Article 226 of the Constitution of India. He submitted that whether it is causing any adverse effect or likely to cause any adverse effect, is a subjective satisfaction, which is required to be considered. Learned Senior Counsel, Shri Shah submitted that on the basis of the material, if the authority has reached the conclusion justifying the exercise of power under Section 258 of the Gujarat Municipalities Act, it cannot be challenged on the ground that it is without jurisdiction or it is perverse. He, therefore, submitted that even if NOC or permission is granted, it cannot be said that it cannot be recalled.
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6. Learned advocate, Shri Sanchela for the respondent
- Municipality referred to the papers and submitted that it is the duty of the Municipality to consider the public interest and, therefore, while granting NOC, the conditions have been imposed. He emphasized that under Section 87 of the Gujarat Municipalities Act, the report was made to the Collector when the people or the residents had raised objections. He submitted that the Resolution of the Executive Committee was not placed before the General Body and, therefore, any such NOC cannot be said to be valid. Learned advocate, Shri Sanchela, therefore, submitted that when it is brought to the notice of the Collector by the Municipality itself, the Collector in exercise of statutory powers has passed an order. He submitted that the original owner had addressed to the Chief Officer that he would withdraw the objection and, thereafter, permission has been granted. He, therefore, submitted that appropriate order may be passed.
7. Learned AGP Ms. Patel referred to the papers and submitted that the impugned order passed is a speaking order and it reflects about the Page 13 of 21 C/SCA/4251/2009 JUDGMENT conclusion arrived at on the grounds mentioned therein. She emphasized that the order is passed in exercise of statutory power under Section 258 of the Gujarat Municipalities Act. Learned AGP Ms. Patel, therefore, submitted that when the statutory powers are exercised by the respondent no.3 - Collector in the interest of public, normally the Court would decline to exercise the discretionary jurisdiction. Learned AGP Ms. Patel submitted that even if the NOC is granted, it is subject to condition and when it has been found that it has not been granted or approved with the general body, the Collector has reviewed the same, which cannot be said to be erroneous. She, therefore, submitted that the present petition may not be entertained.
8. In view of these rival submissions, it is required to be considered whether the present petition deserves consideration.
9. As could be seen from the background of the facts, the petitionerCompany has been granted NOC or permission for installation of Base Trans Receiver Station (Mobile Tower). It is evident from the NOC granted by the respondent no.2 - Nagarpalika that Page 14 of 21 C/SCA/4251/2009 JUDGMENT the NOC is granted subject to the conditions, which referred to the payment of tax and also charges, which has also reference to the compliance with the Regulation 21.11 of GDCR. The circular of the Government of Gujarat refers to the Telecom Industries as service industries permitting the use of the land and the provision of deemed NA for the purpose of erection of such tower. Therefore referring to the order of the Division Bench, the order has been quoted referring to SACFA i.e. Standing Advisory Committee on Radio Frequency Allocation issued by the Ministry of Telecommunications that such Company has to comply with the requirement of the Circular and the Base Trans Receiver Station. It is in this background, the Hon'ble Division Bench (Coram : Bhaskar Bhattacharya, CJ & J.B. Pardiwala, J.) in the order dated 05.09.2014 has also considered the effect of radio frequency and the guidelines. It has been quoted, "14. In April, 1998, the International Commission on Nonionizing Radiation Protection (ICNIRP), after conducting the necessary studies, has prescribed the safe levels of EMF radiation from the base stations. This is evident from the ICNIRP guidelines produced on record by the respondent No.2 with it's affidavitin Page 15 of 21 C/SCA/4251/2009 JUDGMENT reply. The Table 5 thereof prescribes the basic restrictions for power density for frequencies between 10 and 300 GHz and the same are 50 W/m2 for occupational exposure and 10 W/m2 for the general public. The Table 7 thereof contains the reference levels for general public exposure to time varying electric and magnetic fields (unperturbed rms values). As per this table, if the frequency range is 2 to 300 GHz, the equivalent place wave power density should be 10 W/m2."
10. The reference is made to WHO and discussion has been made with regard to the aspect of the guideline for the purpose of radiation and compliance of the licensee with regard to the limits of the level of such frequency. Therefore, it cannot be said that there is any conclusive evidence with regard to the adverse effect though the status may have suggested about some adverse effect but conclusively it has not been established regarding the effects. Therefore any such permission, which has been granted by the concerned authority for the mobile base station, would not have any health hazard nor it may affect the fundamental rights of the citizen under Article 21 of the Constitution of India. It may not be out of place to mention that balance has to be stuck between the right of individual and the collective right of the society for the use of Page 16 of 21 C/SCA/4251/2009 JUDGMENT modern technology. It may have its own effects on human being but it cannot be prohibited or stalled. It is in this circumstances, normally the approach would be to minimize the evil by regulatory measures prescribing some safety standard for the compliance, which take care of such apprehension. It is in this circumstance, Rule 21.11 of GDCR is required to be fulfilled for the purpose of such Base Trans Receiver Station (Mobile Tower). It is not in dispute that there is some compliance with such requirement and different High Courts have left it to the concerned State Government or the local authorities to take decision regarding the installation of such towers in a populated area subject to condition and compliance with the norms, which could take care of the apprehension voiced by the people.
11. Therefore in the facts of the case, the moot question is that when such permission has been granted by the competent authority, could it be justified to review and totally change the stand because of some reservation or the objection by the residents. The resolution has been passed and Page 17 of 21 C/SCA/4251/2009 JUDGMENT the original owner had also withdrawn the objection and, thereafter, pursuant to the agreement between the Company and the original owner, the installation has taken place and, therefore, the respondents are estopped from now joining an issue on the ground that there was no consultation or consent of the people. It may not be out of place to mention that the requirement of Regulation 21.11 of the GDCR also referred to the permission from the Standing Advisory Committee on Radiation issued by the Ministry of Telecommunications. Therefore, it is required to be considered as to whether the exercise of power by the Collector under Section 258 of the Municipalities could be justified. The provision of Section 258 has referred to "Powers of the Collector to suspend execution of orders". In the facts of the case, the Collector has been given power to revise the decision taken by the Municipality. However the proviso to subsection (3) of Section 258 provides, "the order shall not be revised, modified or confirmed by the State Government without giving the municipality reasonable opportunity of showing cause against the order."
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12. In other words, even after the powers of the Collector to suspend the execution of any order or work, same has to be in compliance with the Rules of natural justice. In the facts of the case, as submitted by learned Senior Counsel, Shri Mehta that the opportunity has not been given to the petitioner. A close look at the impugned order passed in Revision Application No.1/2009, the conclusion refers to the ground like it is in the residential area, there is no consultation or consent of the residents and it also records that on the basis of the objection of the local residents apprehending about the adverse effect, the power under Section 258 have been exercised. However the grounds mentioned are not the valid grounds for reviewing the order and it is at the instance of Chief Officer, the order came to be passed. It is required to be stated that some of the people had put their signatures and the Nagarpalika had granted NOC, which is now sought to be projected as irregularity. In fact, the original owner has given an application and, therefore, the order cannot be sustained. As recorded in the order passed in Special Civil Page 19 of 21 C/SCA/4251/2009 JUDGMENT Application No.16307/2013 in similar case regarding installation and maintenance of the tower, reference is made to Ministry of Telecommunications and Government of India for the purpose of mobile communication radio waive and safety standards. It is not in dispute that such radio frequency radiation may have effect on the human body and guidelines or the Indian policy (Electromagnetic field Radiation from mobile tower and handset) does not require total prohibition and installation of such tower. Therefore in view of the policy as referring to hereinabove regarding Electromagnetic field Radiation from mobile tower and handset, the mobile towers are permitted with precautions as suggested. In other words, it may be allowed as a necessary evil and cannot be totally prohibited. It is in this circumstances, when the NOC has been granted, merely at the instance of some objection by some people, it cannot be reviewed and the respondent authorities are estopped from changing decision when the petitioner may have altered position. Therefore on principle of promissory estoppel, the respondents could not have passed the Resolution, Page 20 of 21 C/SCA/4251/2009 JUDGMENT which is sought to be relied upon and any such communication or the order including the order in Appeal and Revision, cannot be sustained. Therefore the order of suspension of NOC and/or demolition of such tower cannot be sustained. Therefore, the present petition deserves to be allowed.
13. Therefore, the present petition stands allowed.
The order passed by the respondent no.3 - Collector, Anand dated 09.01.2009 at AnnexureA is hereby quashed and set aside. The respondents are restrained from taking any action for demolition of Base Trans Receiver Station (Mobile Tower) on the land in question belonging to the private respondents. The respondent no.4 - Madhya Gujarat Vij Company Ltd. is also directed to restore the electric connection of the mobile tower erected by the petitioner on the land in question i.e. land bearing Revenue Survey No.4160 of moje Umreth, Taluka : Umreth, District : Anand. Rule is made absolute to the aforesaid extent. No order as to cost.
Sd/ (RAJESH H.SHUKLA, J.) Gautam Page 21 of 21