Andhra Pradesh High Court - Amravati
Indus Towers Limited, vs Mangalagiri Municipality on 8 February, 2021
HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.13764 of 2019
ORDER :
This writ petition has been filed declaring the action of the respondents in interfering with the erection of a roof top tower on the terrace of a building as arbitrary, illegal and violation of law on the subject.
Sri Ganta Rama Rao, learned senior counsel appeared for the petitioner. The petitioner is a company engaged in the business of providing cell site towers. The petitioner has applied for permission to the respondent-Municipality to allow them to erect a cell phone tower above a particular building bearing Door No.7-516, Tipparla Bazar, Mangalagiri. Relying upon the deeming provision, which states that the plan should be approved within a particular period, it is argued, as there is no express rejection, the plan is deemed to be approved. Apart from that, the learned senior counsel questions the manner in which the impugned notification dated 20.08.2019 is issued. Learned senior counsel points out that all the three grounds raised in the said notice are untenable. He submits that ground No.1 is that the cell tower is situated on the stop of an unauthorized building. Drawing the attention of this Court to G.O.Ms.No.203 dated 01.10.2014, learned senior counsel argues that a sanction plan and occupancy certificate, which were necessary earlier, have been made 'optional' by the amendment in this G.O. He draws the attention of the Court to Rule C(vi) of 2 the G.O., which states that the sanction plan and occupancy certificate are optional. Learned senior counsel argues that as per G.O.Ms.No.380 dated 01.08.2013 this was mandatory but now the same was amended to make it optional.
Coming to the second ground that the public are protesting, learned senior counsel submits that the public have no right to protest and the issues about the radiation etc., are ill-founded. Learned senior counsel submits that the law is well settled that if there is any fear about the radiation, the parties have to approach the TERM. Lastly, he submits that simply stating that the application and plans are not in accordance with law, G.O.Ms.No.146 dated 19.06.2015 is not correct and that the respondent should specify why/how the plan is not correctly filed. Therefore, he submits that the endorsement should be set aside and the petitioner should be allowed to carry on their business.
In reply to this, learned standing counsel for the Mangalagiri Municipality essentially argues that the building on which the tower is proposed to be located is an unauthorized construction. Notice was already been issued by the Municipality to the owner that the unauthorized construction should be removed. He also argues that the necessity of having an approved plan for the building has not been taken away and that the Court cannot pass an order to make further erections on an unauthorized construction. Learned standing counsel also argues that the basic requirements as provided under 3 Clause F(ix) of G.O.Ms.No.380 dated 01.08.2013 has not been changed and that valid permission is still required. He argues that G.O.Ms.No.203 dated 01.10.2014 did not amend the entire G.O.Ms.No.380 and only modified a part of it. His contention is that Clause F(ix) of G.O.Ms.No.380 has not been changed. Even as far as G.O.Ms.No.146 is concerned, learned counsel submits that it is not specified that G.O.Ms.No.380 is expressly over ruled or that its conditions will not apply. He argues that harmonious construction should be made and that there are only partial modifications and that the entire G.O. is not changed. Lastly, relying upon G.O.Ms.No.146 and clause 14 (c), learned standing counsel argues that nothing can be constructed on an unauthorized construction.
After hearing the learned counsel, this Court notices that the gist of the dispute is now centered around the proposed cell tower being constructed on top of an unauthorized construction. The first G.O. on the subject which has been filed is G.O.Ms.No.380. Under the head 'C' dealing with the application which has to be submitted in clause C(vi)- a sanction plan of the building and the occupancy certificate should be submitted. This is reiterated in clause F (ix) which states that the building is to be authorized. The subsequent G.O.146 does not refer to this copy of sanction plan or to valid permission. Although at first blush the argument of the learned senior counsel appears to be appealing, still there is some force in what is stated by the learned standing counsel. G.O.Ms.No.146 does not say that the entire G.O.Ms.No.380 is over ruled or that the conditions therein 4 will not apply. The Government order cannot be said to overrule or water down a statutory provision which mandates that all constructions must be with prior approval. Apart from all of the above, this Court notices that there is no dispute about the fact that the building on which the cell tower is proposed to be erected is unauthorized. Nothing to the contrary has been pointed out by the petitioners. If the building is unauthorized, the Municipal Authorities have a duty to ensure that the same is either removed or regularized, if the regularization scheme applies. If the scheme does not apply, the only option left to the respondent-Municipal Authorities is to remove the structures which for want of a better word are being called as illegal structures.
This Court and the highest Courts of the land have time and again held that unauthorized constructions cannot be allowed to stand. If the Courts remain a mute spectator to unauthorized constructions, without taking any action, it was held clearly that a very wrong message is conveyed to the general public. The law is too well settled to be repeated here. The Hon'ble Supreme Court of India has held that these should be dealt with firmly. The sum and substance of the prayer of the petitioner is that even if the building is unauthorized, the permission should be granted for the erection of the tower, more so basing on the "deeming provision". This Court is of the opinion that it cannot be a party to this and cannot assist the petitioners on the construction of a cell tower on the top of an unauthorized structure. This Court has a duty to enforce the 5 law and it indirectly cannot do what cannot be done directly. The provisions of the Municipal Corporation Act which mandates that all buildings should have a sanctioned plan cannot also be watered down/diluted by Government instructions. This still is a mandate.
Therefore, as the structure on which the cell tower is sought to be erected is an unauthorized structure, the endorsement dated 20.08.2019 which is issued by the respondents cannot be set aside.
The writ petition is therefore dismissed. No order as to costs. As a sequel, the miscellaneous petitions if any shall stand dismissed.
________________________ D.V.S.S.SOMAYAJULU,J Date : 08.02.2021 KLP