Calcutta High Court (Appellete Side)
Tapas Barui & Ors vs The State Of West Bengal & Ors on 22 March, 2023
Author: Shampa Sarkar
Bench: Shampa Sarkar
22.03.2023
Court No. 19
Item No.01
CP
WPA No. 2268 of 2022
Tapas Barui & ors.
Vs.
The State of West Bengal & Ors.
Mr. Kingsuk Mondal
... for the Petitioners.
Mr. Sudipto Panda,
Ms. Munmun Tewary
... for the State.
Mr. V.V.V. Sastry
Mr. Sourav Roy
... for the Respondent No.14.
Mr. Ankit Agarwala Ms. Alotriya Mukherjee Ms. Sonal Agarwal ... for the Respondent Nos.15 & 16.
Mr. Saikat Chatterjee Mr. Tanmoy Khan Mr. Palash Bapari ...for the respondent no. 19.
Mr. Tarunjyoti Tewari ....for the TRAI.
Two causes of actions have been clubbed together in this writ petition. One being that the mobile tower which has been installed by the Reliance JIO Infocomm Ltd. would emit harmful radiation, which would be a health hazard to the people in the locality. Secondly, apart from the exposure of the local people to alleged electro- magnetic radiation, the said tower had been constructed on an unauthorised portion of a building 2 and should be demolished along with the second and third floor of the building.
According to the petitioners, the second and the third floor of the building had not been sanctioned either by the competent gram panchayat or by the Hooghly Zilla Parishad. Hence, the petitioners pray for a direction upon the authorities not to permit erection and operation of the mobile tower, removal of the tower and also demolition of the unauthorised portion of the building.
Mr. Tewari, learned advocate appears on behalf of the Telecom Regulatory Authority of India (in short 'TRAI'). According to him, the Department of Telecommunication would be the appropriate authority to regulate construction and operation of mobile towers. The said authority had already framed the guidelines which were to be followed by the States.
Mr. Chatterjee, learned advocate appearing for the subsequent purchaser of the third floor of the building, submits that his client was not aware of the fact that the construction of the second and the third floors had not been permitted by the local body. The purchaser had applied for regularisation.
Mr. Sastry, learned advocate appearing on behalf of the Reliance JIO, submits that a guideline had been framed by the State of West Bengal based 3 on the regulations of DOT. Hence, the entire issue can be decided by the District Level Committee.
Mr. Panda, learned advocate appearing for the State respondents has submitted a detailed report prepared by the District Panchayat & Rural Development Officer, Hooghly. It appears from the report that a Single Window Clearance System under the Department of Information Technology & Electronics, Government of West Begal is in place. A Common Application Form (CAF) along with required documents in the prescribed format are to filed by the mobile tower companies for obtaining necessary clearance. The portal for such application is called 'Anumati' Portal. 'No objections' have to be submitted from various quarters including the neighbours. Only when all the documents are found to be in order and in the prescribed format, the process of grant of permission is initiated.
The West Bengal Telecom Infrastructure Guidelines of 2020 established a three tier committee for granting 'No Objection Certificates' for installation of mobile tower, namely, a) District Level Committee (DLC), b) State Level Clearance Committee (SLCC) and c) State Level Appellate Authority (SLAA). The said guideline postulates a comprehensive procedure for grant of 'No Objections' for installation and operation of mobile towers. Local bodies, namely the 4 municipalities, panchayats or the zilla parishads and other panchayati raj institutions, form a part of the District Level Committee.
In this case, the mobile tower company submitted the CAF along with required documents in the prescribed formats on August 20, 2022 for installation of mobile tower. The owner of the property on which the tower was proposed to be set up, as per the application, is Smt. Silpi Bose, wife of Sri Debasis Bose. The application of the mobile tower company is pending consideration before the Block Level Committee as further documents were awaited, which included the structural stability certificate, NOC from the neighbours for installation of the mobile tower regarding the radiation, record of rights/parcha of the land owner etc. Such fact was also intimated by the Block Development Officer, Singur by a separate information slip to the land owner and also uploaded in the 'Anumati' Portal.
The Block Development Officer had also been asked to submit a report. Accordingly on February 13, 2023, the Block Development Officer, Singur Development Block submitted a report dated February 13, 2023. It appears from the report that for installation of the mobile tower, the mobile tower company had not contacted either the Singur Development Block or the Singur-I Gram Panchayat. 5 Singur-I Gram Panchayat also intimated the District Panchayat & Rural Development Officer that permission for construction of the second and the third floors of the building, had not been given. The Block Development Officer, Singur Development Block was also intimated by the District Engineer, Hooghly Zilla Parishad that appropriate permission for construction of the second and the third floors had not been vetted by the zilla parishad.
Mr. Agarwala, learned advocate appears on behalf of the land owner and opposes the writ petition on the following grounds:
a) The petitioners did not have any locus to move the writ petition.
b) The land owner had applied to the Singur-I Gram Panchayat for further permission sometime in 2020 for construction of the second and the third floors, but the said application had been kept pending.
c) The land owner was not in the knowledge of the fact that the Hooghly Zilla Parishad would be the appropriate permission granting authority. Neither did the gram panchayat nor the other authorities intimate the land owner that the permission should have been sought from the Hooghly Zilla Parishad. It was the duty of the gram 6 panchayat to forward the application with all the documents to the zilla parishad for vetting, which had not been done. Thus, as per the rules, the benefit of deemed sanction, should be given in respect of the second and the third floors.
d) That the construction of the second and third floors took place sometime in 2020, but the writ petition has been filed after three years when third party rights have been created.
Mr. Agarwala has handed over a letter submitted before the panchayat samiti, inter alia, stating that the said respondent/land owner already had a sanction for construction of a G+1 storeyed building. Such construction had been completed. She wanted to construct the second and third floors and had accordingly prepared a plan. If the samiti intimated the party as to what relevant documents would be necessary for sanction of such plan, she would be grateful. No other document has been produced before the court which would indicate that an application in the prescribed form as per the rules and a building plan of the proposed construction of the second and third floor had been submitted either before the gram panchayat or before the panchayat samiti.
7
Having heard the learned advocates for the respective parties, this court finds from the report of the District Panchayat & Rural Development Officer, Hooghly, that the District Level Committee is the appropriate authority to decide the issue with regard to the installation and operationalization of the concerned mobile tower. The authorities are already considering the issue and have called for separate reports. Thus, the prayer of the petitioners with regard to prevention of installation and construction of the mobile tower shall be decided by the District Level Committee in terms of the West Bengal Telecom Infrastructure Guidelines 2020. All the points which have been mentioned by the District Panchayat & Rural Development Officer shall be considered. The local bodies, i.e. the gram panchayat and the zilla parishad are also a part of the committee, and all the issues with regard to the mobile tower and its installation over an unauthorized building shall be considered and decided by the committee, in accordance with law.
As the petitioner has raised an objection as a neighbour and the guidelines provide that 'no objections' from neighbours were to be filed by the tower company, this court finds that the petitioners have a locus to approach the court under Article 226 of the Constitution of India. The petitioners will also 8 be heard by the District Level Committee when the issues are decided with regard to the grant of No Objection to the mobile tower company.
It is a matter of record that till now no permission has been granted to operationalize the tower.
Under such circumstances, the District Level Committee must take a final decision as to whether the tower should be allowed to continue in its present place in view of the facts which have unfolded gradually before the court and will further emerge when all parties are heard and when all reports are before the committee.
The District Level Committee will pass necessary orders in this regard and also decide whether in the facts and circumstances, the mobile tower should be removed or not.
Such decision will be taken within three months from the date of communication of this order. Needless to mention, all parties will be heard including the purchasers, land owners, telecom company etc. and the petitioners.
In case the mobile tower company files any appeal before the appellate authority, the appellate authority shall decide the matter within two months from filing of the appeal but in the facts and circumstances of the case, hearing should be given to 9 all involved in this litigation, by the appellate authority as well.
Once a decision is taken by the District Level Committee or the appellate authority, the petitioners shall approach the Hooghly Zilla Parishad with their prayers for demolition of the unauthorised construction of the second and third floors of the building.
If such prayer is made, the Hooghly Zilla Parishad shall act and proceed in accordance with law and take necessary steps as per the following procedure:
a) An inspection shall be conducted. Such inspection shall be held in the presence of the petitioners, the respondent nos. 15 to 17 and the subsequent purchaser. An advance notice of the inspection shall be served upon the petitioners, the respondent 15 to 17, the subsequent purchaser and on all other interested parties. If the parties are not available to accept notice, the same shall be affixed at a conspicuous place in the respective premises.
b) A report of such inspection shall be prepared along with the sketch map, indicating the extent and nature of unauthorized construction, if any. 10
c) Such report shall be handed over to all the parties.
d) A hearing shall be given to the petitioners, the respondent 15 to 17, the subsequent purchaser and all other interested parties. The authority shall also consider whether on the documents which are available at present before the panchayat authorities, the panchayat samiti and/or the zilla parishad, the benefit of deemed sanction as per the rules would be available to the said land owner or not. The parties must also be allowed to furnish their written objection/version to the said report and adduce oral and documentary evidence in support of their contentions before the competent authority. All points raised by either party, will be decided.
e) A reasoned order shall be passed and communicated to the parties. On the basis of what transpires at the hearing and during inspection, the proceedings shall be reached to its logical conclusion in terms of the West Bengal Panchayat Act.
The court has not gone into the merits of the claims.
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The entire exercise shall be completed within a period of four months from the date of receipt of the petitioners' complaint.
The disputes with regard to title, possession and boundary etc., shall not be decided by the zilla parishad.
Accordingly, the writ petition is disposed of. However, there will be no order as to costs. All the parties are directed to act on the basis of the server copy of this order.
(Shampa Sarkar, J.)