Karnataka High Court
Mrs.Shashi B. Shinde vs The Managing Director on 6 July, 2017
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 06th DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
W.P. NOS. 100340-100342/2017 (GM-KEB)
BETWEEN:
1. MRS. SHASHI B. SHINDE,
AGE: 67 YEARS, OCC: PENSIONER,
R/O T.30, SHRADDHA RESIDENCY,
SAMPIGE ROAD, SADASHIV NAGAR,
BELAGAVI.
2. S. SOMANATH S/O VAIJINATHAPPA,
AGE: 72 YEARS, OCC: PENSIONER,
R/O T.30, SHRADDHA RESIDENCY,
SAMPIGE ROAD, SADASHIV NAGAR,
BELAGAVI.
3. RAVINDRANATH S/O RAMACHANDRA KUKREJA,
AGE: 57 YEARS, OCC.: BUSINESS,
R/O T.30, SHRADDHA RESIDENCY,
SAMPIGE ROAD, SADASHIV NAGAR,
BELAGAVI.
- PETITIONERS
(BY SRI. V.M. SHEELAVANT, ADVOCATE)
AND:
1. THE MANAGING DIRECTOR,
HUBLI ELECTRICITY SUPPLY
COMPANY LIMITED, BELAGAVI-590 001.
2. ASSISTANT EXECUTIVE ENGINEER (ELE).,
O & M CITY SUB DIVISION NO. 3,
HESCOM, BELAGAVI-590 001.
3. SURESH CHANNABASAPPA ANGADI,
AGE: 56 YEARS, OCC.: BUSINESS &
2
MEMBER OF PARLIAMENT,
R/O SAMPIGE ROAD,
VISHWESHWARAYYA NAGAR,
BELAGAVI-590 001.
4. MANGALA W/O SURESH ANGADI,
AGE: 50 YEARS, OCC.: BUSINESS,
R/O SAMPIGE ROAD,
VISHWESHWARAYYA NAGAR,
BELAGAVI-590 001.
5. M/S ASCEND TELECOM
INFRASTRUCTURE PRIVATE LIMITED,
HAVING ITS REGISTERED OFFICE AT
NO. 37-2, PLOT NO. 332, MANI MANSION,
DEFENCE COLONY, SAINIKPURI,
SECUNDERABAD, BRANCH OFFICE AT
BAGMANE LAKE VIEW BUILDING,
B-BLOCK, GROUND FLOOR,
BAGAMANE TECH PARK,
C.V. RAMAN NAGAR,
BENGALURU-560 093.
6. THE BELAGAVI CITY CORPORATION,
BELAGAVI BY ITS COMMISSIONER.
- RESPONDENTS
(BY SRI. SREEVATSA S HEGDE, ADVOCATE FOR R5,
NOTICES TO R2 TO R4 ARE SERVED,
NOTICE TO R1 IS HELD SUFFICIENT
SRI BHUSHAN B. KULKARNI, ADVOCATE FOR R6)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ORDER BEARING NO. BGM/CSD-
3/AEE/AE(T)/2014-15/3225-26 DATED 16.09.2016
PRODUCED AT ANNEXURE-J1 PASSED BY RESPONDENT
NO.2 & ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 29.06.2017, COMING ON FOR
'PRONOUNCEMENT OF ORDER', THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
These Writ Petitions are filed seeking the following reliefs.
(a) Issue a writ in the nature of Certiorari or any other appropriate writ, order or direction and quash the order bearing No. BGM/CSD-
3/AEE/AE(T)/2014-15/3225-26 dated 16-9- 2016 produced at Annexure-J1 passed by the respondent No.2, in the interest of justice and equity;
(b) Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondent No.6 to dismantle/ demolish the mobile tower and other accessories on the roof of the "Shradhha Residency", Sampige Road, Sadashiv Nagar, Belagavi, in the interest of justice and equity;
(c) Grant such other reliefs as deemed fit in the circumstances of the case and in the interest of justice and equity.
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2. The brief factual matrix that emanate from the records are that, the petitioners claimed that they are the flat owners and residents of Shraddha Apartments (Residency), Sadashiv Nagar, Belagavi, having purchased the flats in the year 2006. Along with them the other owners who have purchased the flats in the said apartment are also the joint owners of the roof of the said apartment. Respondent No.3 4 who is a sitting Member of Parliament (for short 'MP') and respondent No.4, wife of respondent No.3, who are the erstwhile owners of the said Shraddha Apartments (Residency) claiming to be having right, title and interest over the terrace roof of the said apartment, particularly, roof of the lift room, entered into a licence agreement / contract with respondent No.5 and entrusted the work to the respondent No.5 for erecting a mobile tower on the lift room and also to install a generator to run the said mobile tower.
3. Petitioners being aggrieved by the said act, have made representations to Belagavi City Corporation and also to the HESCOM authorities not to give any licence or not to provide electricity supply to the said mobile tower and they also made all their representations to the authorities for dismantle or to demolish the mobile tower in order to stop the said illegal activities of respondents 3 to 5. Inspite of the objections the respondent No.5 utilizing the political power of respondents 3 and 4 have erected the mobile 5 tower on the lift room and respondent No.2, in fact, inspite of the objections sanctioned power to the said tower and respondent No.1 has also provided power supply to the said tower. Therefore, without any other go, the petitioners have approached this Court.
4. The respondents after issuance of notices to them particularly respondents 2 to 4 though served remained absent. Respondent No.5 is represented through its Advocate Sri Sreevatsa S Hegde, who contested the proceedings.
5. Respondent No.5 has also filed a detailed objections denying all the allegations made against him in the writ petition. Further, specifically taken up the contention that the respondent No.5 is a registered telecom operator and has a certificate from the competent authorities authorizing it to operate as telecom operator under Post & Telegraph Act by the Union Government. The respondent No.5 undertakes the work of providing basic and advanced 6 infrastructure facility to cellular phone operators in the Country by erecting mobile transmission tower and other requisite infrastructure. In this background after obtaining legal opinion, the respondents 3 and 4 entrusted the work of installation of mobile transmission tower on Shraddha Apartments (Residency) on the lift room. Accordingly, after following all the procedure under law the respondent No.5 has installed the mobile tower and in accordance with law they have taken the electricity supply for the same. Therefore, the petitioners have no right, title or interest to question the said act of respondent No.5. If for any reason the said mobile tower is ordered to be demolished, it will cause great loss and inconvenience to respondent No.5. Therefore, the respondent No.5 has sought for dismissal of the writ petition.
6. I have heard arguments of the learned counsel for the petitioners Sri V.M. Sheelavant and also Sri.Sreevatsa S Hegde, for respondent No.5. I have 7 also carefully perused the materials placed by both the parties for consideration of this Court.
7. Learned counsel for the petitioners strenuously argued that the petitioners 3 and 4 who are the erstwhile owners, can not have any exclusive right over the roof excluding the other flat owners in the said apartment. Though the sale deed produced at Annexure-A before this Court, which is between the petitioner no.1 and the respondents 2 and 3 and also Radhakrishna Vitobha Shenvi, contain a clause at clause no. 10 that the owners have retained the right, title and interest over the roof of the building to further construct any further floors on the said building, but such clause is contrary to Sec. 3(f) of The Karnataka Apartment Ownership Act, 1972 (for short 'Act'). When the respondents 3 and 4 have no right, title and interest over the said portion of the property excluding the other flat owners, the "licence agreement" entered into between the respondents 3 and 4 with respondent No.5 is also illegal and it is 8 non-est in the eye law. He further contends before this Court that, as per Section 8 of the Act, before entering into any licence or agreement with respondent No.5 or for the purpose of putting up any construction over and above the said roof or over the lift room, the other owners' consent is absolutely necessary. Therefore, as the same has not been taken, no construction can be made on the basis of such licence agreement. He has also relied upon Annexure-L guidelines of the Telegraph Department, which also, according to him indicate that the consent of the flat owners has to be produced before entering into any contract with regard to the roof.
8. He also contends before this Court that the installation of a mobile tower causes health hazards to the flat owners and the surrounding people and inspite of bringing it to the notice of the respondents, they have not desisted from their acts. Further added to that, the structural stability of the building cannot be obtained without the owner's consent. 9 Therefore, all the norms are violated. Hence, the said act of the respondents 3 to 5 has to be curbed and the petitioners are entitled for the relief as prayed for.
9. Countering the above said argument of the learned counsel for the petitioners, the learned counsel for respondent No.5 vehemently contends before the Court that the Writ Petition itself is not maintainable as the disputed fact with regard to the title of the property and the existence of any health hazards and for mandatory direction for the removal of already installed mobile tower cannot be enquired into by this Court under the writ jurisdiction. It requires lot of evidence to be adduced by the respective parties. He also further contends that the Act is not applicable so far as the petitioners are concerned as there is no declaration by them as contemplated u/S 2 of the Act. If such a declaration is not made, no property shall be submitted to the provisions of this Act. Therefore, the provisions under the Act invoked by the learned counsel and the 10 contents thereon cannot be pressed into service in favour or against to either of the parties. He also contends that there are various articles which also say that installing of the mobile tower does not create any health hazards, it only emanate very low profile radiation. Even otherwise, in the absence of any scientific report or opinion specifically with regard to the property involved in this case, the Court cannot itself pass any such orders, that also requires evidence. Hence, this petition is liable to be dismissed.
10. Having heard the arguments of the learned counsels it is just and necessary to examine the above said aspects. Of course the learned counsel for the petitioner relied upon various provisions under the Act. He mainly relied upon the provisions u/S 3(f) and 8 of the Act.
11. Sec. 3(f) says that unless the context otherwise requires in this Act or unless otherwise provided in 11 the declaration or lawful amendments thereto "common area and facilities means".-
(1) the land on which the building is located; (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire-escapes, entrances and exists of the building.
(rest of the provision is not applicable).
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Of course if this provision is read, the roofs are also covered as common areas and common facilities to all the inhabitants of the apartments.
12. Sec. 8 of the Act prohibits certain works. The said provision reads as under:
"8. Certain work prohibited - No apartment owner shall do any work which would jeopardize the soundness or safety of the property, reduce the value thereof or impair any easement or hereditament nor may any apartment owner add any material structure or excavate any additional basement or cellar without in every such case the unanimous consent of all the other apartment owners being first obtained."
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13. In this particular provision, of course, there is a prohibition specifically, to add any material structure or do 12 any act which can impair the rights of other flat owners. In such an eventuality an unanimous consent of the apartment owners has to be obtained.
14. In various documents relied upon by the learned counsel which are marked at Annexures A to M, of course the flat owners have objected for initialization of the mobile tower. As per Annexures D, E and F wherein they have made representations to various authorities like Commissioner, City Municipal Corporation, Belagavi, Superintending Engineer, HESCOM, Belagavi Circle and to the Chief Secretary to the Government, stating that the installation has been made by respondent No.5 in collusion with respondents 3 and 4 without obtaining the proper consent by the other flat owners. Therefore, it is clear violation of the above said provision. But, inspite of their requests nobody has taken any action in this regard. Of course the provision u/S 3(f) and 8 of the Act are read together the roof of the apartment belongs to the flat owners including the erstwhile owner if he retained any 13 right over the roof. But the Court has to see whether the petitioners can take any shelter under the said Act or not.
15. As contended by the learned counsel Sec. 2 of the Act prohibits them from taking any shelter under the Act. The said provision reads as under:
"2. Application of the Act- This Act applies only to property the sole owner or all the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration as hereinafter provided:
Provided that, no property shall be submitted to the provisions of this Act, unless it is mainly used, or proposed to be used for residential purposes."
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16. It is clear from the above said provision that the Act applies only to the property to sole owner or all the owners if they subject the property to the provisions of the Act by duly executing and registering a declaration as provided under the Act. Therefore, no property shall be submitted to the provisions of the Act unless it is mainly used or proposed to be used for residential purposes. Therefore, no such declaration shown to have been filed by the petitioners and the erstwhile owner, (i.e., respondents 3 and 4) in this regard. Therefore, a serious doubt arises 14 before this Court whether the provision as relied upon by the learned counsel for the petitioner, i.e., u/S 3(f) and 8 can be pressed into service for the purpose of granting any remedy to the petitioner.
17. It is the case of the petitioners themselves that the respondents 3 and 4 have retained the roof portion of the disputed property, i.e., Shraddha Residency, as per the sale deeds executed by them in favour of the flat owners. Clause 10 of the sale deed Annexure 'A' reads as follows:
"10. The vendors shall be the absolute owner of the terrace of the building and they shall have right of using the said terrace in any manner they like, including by constructing additional floors, i.e., more than the existing floors over the said property by complying with all legal formalities, but without damaging the existing structure and /or without making any inconvenience to the free movement of the purchaser and/ or owners/ occupants of the said building. The purchaser under any circumstances, shall have no right of obstructing and/or creating any inconvenience to the said construction whenever undertaken."
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15There is also no dispute that the respondents 3 and 4 are the absolute owners of the plot no. 1 and 4 having purchased by the respondents 3 and 4 through two registered sale deeds dated 13.05.1992 and 27.06.2002 from their earlier owner, and thereafter subsequent to purchase of the plots they have constructed the flats and sold to various persons. In all the sale deeds at clause 10 as noted above they have retained the right, title and interest over the roof of the building. When Section 2 of the Act is not complied, whether still it is an obligation on the part of the respondents 3 and 4 who have retained the right to the use of the said building to take consent for the construction or using of the said portion according to their liking.
18. It is worth to note here that the petitioners herein claim co-ownership over the said terrace portion including the lift room under the Act. On the other hand, respondents 3 and 4 claim ownership title, interest and possession over the roof as retained by them under the registered sale deeds as per Annexure-A. This becomes a 16 disputed fact regarding title between the parties, if the Act is not applicable, then it has to be tested whether the sale deed contents are valid and whether the respondents 3 and 4 have acquired any right, title and interest over the roof or whether the petitioners have got equal right over the roof as claimed by them under other relevant laws. Therefore, in my opinion, when this particular aspect becomes a disputed fact, without granting opportunity to the parties to lead evidence, this particular aspect cannot be decided without a full fledged trial. When two persons are quarrelling with regard to the title of a portion of a property they have to approach the Civil Court for proper declaration of their title to a property or any portion of the property and for consequential reliefs, so that, in full fledged manner the parties right can be adjudicated by the Civil Court.
19. The next point raised by the learned counsel is also equally an important aspect. It is the case of the petitioners that the said installation of the tower is against to the Telegraph Regulations issued by way of 17 recommendations on Telecommunications Infrastructure Policy dated 12.04.2011 wherein the Telecommunication Department after some survey has observed that:
Hazards associated with mobile towers. Experts say that continuous exposure to a cell tower located within 50 m of your home or office is like being in a microwave oven for the entire day. It carries the same cancer risk as in the cases of living in localities surrounded by DDT, chloroform, lead, and petrol exhaust. Many international studies have shown that people living within 1,300 feet of mobile towers had three times the normal cancer tisk.
Another study revealed that while cancer is the extreme case, people living near the mobile towers face other disorders like extreme fatigue, headaches, sleep disorders, memory loss, depression, hearing loss, joint pains, skin problems, cardiovascular problems, among others. The World Health Organisation's International Agency for Research on Cancer (IARC) also reported that cellphone handsets' and towers' radiations are possibly carcinogenic to humans and may cause a type of brain cancer or glioma. Cell towers are more dangerous than the mobile handsets because they generate greater intensity radiation 24 hours."
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20. It is also relied upon in the same document that the Delhi High Court in 2013 issued notice to the Central and city bodies to remove the cell towers presently operating near residential areas, schools and hospitals in Delhi but the full text of the decision not made available. In the same document at item No. 3, guidelines have also been issued to the effect that towers shall be erected preferably in forest areas, municipal buildings except educational and health institution buildings and other Government buildings and non residential buildings. If at all on residential buildings it has to be erected it should be on the basis of a detailed plan and receiving proper set back, etc. Of course, the above said document throws some light that by erection of the mobile towers may cause health hazards and it carries some cancer risk, etc., as per some expert's view.
21. Learned counsel for respondent No.5 also relied upon a subsequent issuance of the guidelines by the Department of Telecommunications dated 01.08.2013 as per Annexure R3 wherein it is stated that on roof towers of even 19 residential buildings, such erection of mobile towers are permissible. Further, the Government has issued another notification as per Annexure-R6 dated 02.03.2005 in No. NaCe GEL 2005. By means of that, the Government has permitted to put up the towers even on residential buildings subject to certain conditions, i.e., they must take care of the capacity of the building and proper care has to be taken and they have to pay necessary taxes and also follow all the rules and regulations of the Government. If those contentions are fulfilled, such mobile towers can also be erected. So far as health hazards are concerned, he has produced World Health Organization's report, which is also relied upon by the High Court of Delhi in W(C) 6525/2012 between Vikas Luthra V. M.C.D. And Ors. Decided on 05.05.2016.
22. On perusal of the said WHO report it is clear that WHO has referred to approximately to 25000 studies conducted around the world for the past 30 years. Based on an in-depth review of scientific literature, has concluded: "current evidence does not confirm the 20 existence of any health consequences from exposure to low level electromagnetic fields". It is also clear from the studies that, with reference to electromagnetic radiation emanating from the cellular mobile towers is very low and considering the very low exposure levels and research results collected, it is stated that there is no convincing scientific evidence with the weak RF signals from base stations and wireless networks caused adverse health effects. It is also observed that, using of mobile phones, in fact, emanate more radiation than the mobile towers.
23. It is worth to note here that the communication field is day by day developing. We have reached to the stage that we can not communicate effectively without using the mobile or cellular phone. The mobile phones have now become an integral part of modern telecommunication. In some parts of the world they are the most reliable or only phones available. In other parts of the world mobile phones are very popular because they allow people to maintain continuous communication without hampering freedom of movement. As the society day by day develops 21 the mode of living, mode of communication also day by day developing. It is to be noted we have to undergo some inconvenience and adjust to the minimum health hazards, due to the development in the said field. But, it does not mean to say that at the cost of our valuable health but to what extent we have to forego health hazards is also an important factor that should be taken into consideration, in each and every case.
24. Looking to the above said two analysis furnished by the petitioners' counsel and the respondent No.5's counsel, there is totally divergent scientific opinions expressed. But, in this case particularly there is no scientific experts opinion is produced nor sought, particularly after inspection of the building and the mobile tower installed to come to a conclusion that installation of the mobile tower has been causing any intolerable health hazards. Therefore, I am of the opinion, in these writ proceedings, the said aspect cannot be conclusively decided or analyzed. As there is no material available at least as on date which can finally and conclusively suggest any health hazards of 22 such a magnitude, which is intolerable, from the disputed tower and the solution for that thereof. This Court would not venture into uncharted territory of technical expertise to determine the area whether tower should not have been installed. Therefore, I am of the opinion, this also requires a detailed enquiry on evidence by the competent authority, i.e., that can only be done by way of full fledged suit. Hence, on this ground also, in my opinion, the Writ Petition is not maintainable on the points unless, the title issue and health issues are conclusively resolved, no mandatory nature of order can be granted as sought for.
25. Last but not least, it is urged before this Court that the respondent No.5 and the respondents 3 and 4 have no right, title and interest over the property. Inspite of that, they have entered into a licence agreement as per Annexure-B. This document clearly discloses that on 16.05.2016 the respondents 3 and 4 entered into a lease licence agreement authorizing respondent No.5 to install mobile tower on Shraddha residency on the roof, as noted above.
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26. Respondents 3 and 4 have executed the said document on the basis of the right retained by them under the sale deeds entered into between them with the other flat owners. Thus, on perusal of the contents of the licence agreement the question arises whether the respondents 3 and 4 could have executed such an agreement is also a disputed fact in view of the dispute of title with regard to the said area. Admittedly, the respondent No.5 has acquired the licence from this document, unless the said agreement is held to be void no relief can be granted to the petitioners as against the respondent No.5. Therefore, this agreement which is also a disputed document, has to be thrashed out during the full fledged civil proceedings. On this ground also, in my opinion, the petitions are not maintainable.
27. Lastly, it is the contention of the learned counsel for the petitioners that respondents 3 to 5 have not taken any permission licence from the Corporation for installing the said mobile tower. In fact, they have not produced any material before the Court or shown any provision of law 24 that whether such a licence is actually required or not, if required, whether the respondent No.5 has taken such licence or not, is to be considered. Of course the petitioners have submitted their objections to the Corporation to demolish the said mobile tower as the same has been erected without any licence being granted by the Corporation, but the Corporation, according to the petitioners have not taken any action on their representations which are marked at Annexures D and G.
28. Of course when once an application or representation is made it becomes the duty of the Corporation which is a statutory authority to pass appropriate orders in this regard, it is the domain of the respondent No.6 to consider the representations in accordance with law, in this regard. As no material is placed, under which provision of law the respondent No.5 ought to have taken the licence, whether licence is actually required for such purpose, has not been shown to this Court by the petitioners' counsel. Therefore, the respondent No.6, is an independent authority has to consider the representations given by the petitioners. 25
29. Under the above said facts and circumstances, it is just and necessary at the cost of repetition to note here, when the disputed facts are there before the Court, whether under the Writ Jurisdiction remedy can be granted. It is in this regard it is worth to note here a decision of the apex Court in the case of Union of India Vs. Gouse Mohammad reported in AIR 1961 SC 1526, wherein the apex Court has observed:
"Where there is a great deal of dispute on the question which would require a detail examination by way of evidence, a proceeding under Articles 226 of the Constitution of India would not be appropriate for a decision of the question. The question is best to be decided by a suit."
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30. In my opinion, granting of remedy under Articles 226 and 227 of the Constitution either a writ or certiorari or a writ of mandamus, is purely a discretionary remedy and is not a matter of right. It will only be granted or denied based on facts and circumstances of each and every particular case, as the ends of justice may demand and in accordance with sound public policy. One of the factors that the Court may have to consider and which may affect 26 grant of remedy is the availability to the applicant another remedy which is more convenient beneficial and effective.
31. In this case, in fact, the question whether the sale deed created any right in favour of the respondents 3 and 4 and whether the licence agreement is valid or not cannot be allowed to be agitated in the proceedings under Articles 226 and 227 of the Constitution. The judicial review under article 226 and 227 is only confined to the examination of the decision making process. But where the stakes are heavy between the parties and if any of the parties have made large investments and where a number of grounds are raised in the writ petition, which require determination on factual matrix of some complicity, then the Writ Court should not normally entertain such writ petitions. Under the above said facts and circumstances, the following order is passed.
ORDER Writ petitions are partly allowed directing the 6th respondent to consider the representation of the petitioners only with reference to requirement or non-requirement of 27 licence for installation of mobile tower by 5th respondent and to pass appropriate orders within 3 months from the date of receipt of a copy of this order.
Writ petitions are dismissed so far as the rest of the reliefs prayed by the petitioners.
Sd/-
JUDGE bvv