Bangalore District Court
Bharath Sanchar Nigam Limited vs ) Vikas Telecom Ltd on 6 February, 2016
IN THE COURT OF IX ADDL.CITY CIVIL AND
SESSIONS JUDGE AT BANGALORE (C.C.H.5)
Dated: This the 6th day of February 2016
Present: Shri Krishnamurthy B.Sangannanavar,
B.Com. LL.B., (Special)
IX Addl. C.C & S.J, Bangalore.
O.S. NO.11238/2006
Plaintiff: Bharath Sanchar Nigam Limited,
Mobile Service Dept. 12th Main, 4th
Block, Koramangala, Bangalore
560 034. Represented by its
General Manager
[By Sri.M.C.Ravi Kumar, advocate]
-Vs-
Defendants: 1) Vikas Telecom Ltd., No.117, 3rd
Main, II Stage, Domlur, Bangalore
560 071. Represented by its
authorized Signatory, Yogesh
Sharma
2) Karnataka Industrial Areas
Development Board, No.14/3, 2nd
Floor, R.P. Building, Nrupathunga
Road, Bangalore 560 001.
Represented by its Secretary
3) B.K.Muni Reddy, No.88,
Bellandur, Varthur Hobli,
Bangalore East Taluk, Bangalore
560 037.
(D1: By Sri.Goutham, advocate
2 O.S.No.11238/2006
D2: By Sri.P.V.Chandrashekar,
advocate
D3: By Sri.G.Papi Reddy, advocate)
Date of institution of the suit 21.12.2006
Nature of the suit Declaration &
Permanent injunction
Date of commencement of
12.9.2012
recording the evidence
Date on which the judgment 06.02.2016
was pronounced
Total duration : Day/s Month/s Year/s
15 01 09
JUDGMENT
This is a suit filed by plaintiff to declare that existence of Mobile Tower situated in the plaint schedule is an essential public utility service not liable to be disturbed or damaged by virtue of any lease-cum-sale agreement between 2nd defendant and the 1st defendant is protected under the Indian Telegraphs Act.
Further, to declare that 1st defendant has no right under Indian Telegraph Act and in the absence of any statutory direction or order by the 2nd defendant to indulge in any act causing damage to the Mobile Tower of the plaintiff and for 3 O.S.No.11238/2006 grant of permanent injunction restraining defendants 1 and 2 from disturbing/damaging or removing the installed Mobile Tower except by due process of law, abiding the statutory protection under the Indian Telegraph Act.
2. On facts, case of the General Manager of the plaintiff Corporation is pleaded below:
The plaintiff installed "GSM Installation" in schedule property after entering into a lease agreement with 3rd defendant on monthly rent of Rs.5,000/-. At no point of time, 2nd defendant objected installation of mobile tower in the schedule property. The plaintiff never made known about legal rights of parties if any under adjudication before any Court of law and in good faith based on the relevant documents submitted by 3rd defendant entered into contract for installation of mobile tower is governed by Indian Telegraph Act. The 2nd defendant said to have allotted land in Survey No.10/3 in favour of 1st defendant on 18.4.2006 and the 1st defendant caused legal notice dated 15.5.2006 addressing to the Deputy General Manager (Mobile service) informing that certain legal proceedings came to be 4 O.S.No.11238/2006 concluded before the High Court and Supreme Court. The 1st defendant put an excuse as if the tower is causing hindrance to their construction work, addressed a follow up letter dated 22.10.2006 informing that 2nd defendant has executed lease-cum-sale agreement in its favour.
The mobile tower is in functional in all respects and the defendants cannot contemplate to dispossess the plaintiff much less damage the property. Therefore, being in possession, plaintiff has sought to declare that the existence of Mobile Tower situate in the plaint schedule property is an essential public utility service not liable to be disturbed or damaged by virtue of lease-cum-sale agreement entered between 2nd defendant and 1st defendant and to declare 1st defendant has no right under Indian Telegraph Act and the 2nd defendant has no right to indulge in any act causing damage to mobile tower of the plaintiff and sought for grant of permanent injunction restraining defendants 1 and 2 from disturbing/damaging or removing GSM mobile tower except by due process of law.
3. The 1st defendant and 2nd defendant respectively submitted their written statement and 5 O.S.No.11238/2006 their contentions are almost similar. They would contend that Survey No.10/3P measuring an extent of 31 guntas of land of Devarabeesanahalli village is standing in the name of 3rd defendant herein among others was notified for acquisition u/s.28(1) of KIAD Act, 1966 as per preliminary notification published in the gazette dated 10.12.2001. The lands notified for acquisition was for the benefit of defendants to set up its IT park. Defendant filed W.P.No.26321-22/2003 wherein an interim order of status-quo was issued by High Court on 2.6.2003. Under Section 28(4) of KIAD Act as per gazette notification dated 23.10.2003 acquired for the benefit of defendant. The 3rd defendant and several other land owners filed writ petitions and obtained interim order of stay of dis- possession granted on 21.11.2003. The said writ came to be dismissed on 28.1.2004. In W.P.No. 26386/05 c/w.14491/05 held that any construction made after the preliminary notification, owner cannot take advantage of his own fault and directed the KIADB to hand over possession of lands including Survey No.10/3 wherein the suit schedule property situates. The SLP filed by 3rd defendant and others came to be 6 O.S.No.11238/2006 dismissed on 18.8.2006 by Hon'ble Apex Court. Plaintiff claims to have come into possession on 25.5.2004 at a time when matter was locked up in litigation and such possession is litigious possession is no possession in the eye of law and the action of defendant in removing plaintiff without the aid of Court is well recognized. The plaintiff is not entitled for declaration and consequential relief of injunction against defendants.
Further they would contend that when 3rd defendant himself has no right, title, interest or possession over the suit schedule land, plaintiff cannot derive any right, title, interest or possession over the suit schedule property.
4. The 3rd defendant submitted his own written statement and in fact has supported the case of the plaintiff. He admits instillation of mobile tower in the suit property and submits that same is governed by Indian Telegraphic Act and the plaintiff is entitled to operate the said power in the schedule property which belongs to him. He has leased out open space measuring about 650 square feet in Survey No.10/3 of Devara-
7 O.S.No.11238/2006beesanahalli village for installation of GSM tower. Survey No.10/3 has been converted for non- agricultural purpose apart from mobile tower, a residential building, 4 shops and sheds are existing in Survey No.10/3 measuring 33 guntas belonging to him and he is having exclusive possession of this property and the plaintiff is having exclusive control over mobile tower and plaintiff is entitled to continue to hold and possess the suit property leased by him.
5. In view of the above prime pleadings, this court formulated the following issues for the purpose of trial:
(1) Whether the plaintiff is entitle for declaration to the effect that the existence of mobile tower situated in the suit property is essential public utility and the said tower cannot be disturb by the defendants?
(2) Whether the plaintiff is entitled for the relief of permanent injunction?
(3) To what decree or order?
6. In support of the above issues, plaintiff examined its SDE as P.W.1 and through him, 8 O.S.No.11238/2006 Exs.P-1 to P-3 documents got marked. On the contrary, 2nd defendant examined D.W.1 Assistant Engineer and through him, Exs.D-1 to D-10 got marked.
7. After closure of evidence on either side, having heard the learned counsels on record, this court would prefer to record the following findings on the above issues:
Issue No.1 & 2 : In the Negative
Issue No.3 : As per final order,
for the following:
REASONS
8. Issue Nos.1 & 2: At the very outset, Court would like to make mention of the fact that plaintiff is not an ordinary litigant and it is a company wholly owned by Government of India and the said company is engaged in installation of tele- communication mobile towers to improve telecommunication connectivity in the State of Karnataka as pleaded in the plaint. Similarly, 2nd defendant is a Board created under a statute Karnataka Industrial Areas Development Act, 1966 being one of the State Government Organization. In other words to say in a way this is a dispute 9 O.S.No.11238/2006 between one of the organization of the Government of India and the State Government. According to plaintiff, the schedule property measuring 650 square feet which forms a portion of the LESSOR's property to be utilized for the purpose of installation of GSM Tower and there is no dispute as to description of the schedule property and its situation in Survey No.10/3 consisting of 31 guntas or 33 guntas as the case may be.
9. It is also not in dispute that this property initially belongs to 3rd defendant. In fact, 3rd defendant has supported plaintiff contending that terms and conditions were also reduced into agreement on 25.5.2004 but fail to disclose about his receiving of monthly rental of Rs.5000/- for having leased out the said property in favour of plaintiff. Whereas plaintiff has pleaded and deposed through P.W.1 that as per the terms and conditions of the said agreement, plaintiff is liable to pay monthly rental of Rs.5000/- and the plaintiff after verification of all documents undertaken civil works of installing the mobile tower and the mobile tower is put up and installed is in service condition and the said tower is 10 O.S.No.11238/2006 governed by the Indian Telegraph Act which cannot be removed.
10. The defendants 1 and 2 have submitted that plaintiffs claim on suit schedule property under an agreement of lease said to have been executed by defendant No.3 is dated 25.5.2004, by then the suit property was vested with 2nd defendant. They submit that W.P.No.26321- 22/2003, W.P.No.26386/2005 and W.P.No. 14491/2005 respectively in respect of the suit survey numbers and several other properties were disposed of by the High Court, when the alleged lease between the plaintiff and 3rd defendant takes place. Further submitted on behalf of the defendants that by then SLP preferred by defendant No.3 and several others also came to be dismissed on 6.4.2004 suffice to say that installation of GSM tower in the suit property is litigious possession could not be recognized in the eye of law. Further contending that act of plaintiff cannot be said was bona fide considering the evidence of P.W.1 elucidated in cross-examination.
11 O.S.No.11238/200611. In view of such contentions it would be proper to examine evidence of P.W.1 who is working as SDE in BSNL has deposed that mobile tower is put up and the installation is done pursuant to the agreement of lease entered between plaintiff and defendant No.3 is in service, is not liable to be removed as it is governed by Telegraph Act and such installation even if any private property, is not liable to be removed. He deposed that mobile tower being essential utility service the statutory body like 2nd defendant is duty bound to ensure that mobile tower is not disturbed and the telegraph lines are liable to be remain intact. In this regard, learned counsel for 1st defendant submits that installation of GSM tower in a private property is different from laying of telegraphic lines has legal force. No doubt, to lay telegraphic lines over property of private citizens it would not be necessary to obtain prior permission of such owners of the property and by laying such lines no fundamental harm would cause to any body, since State has certain obligation to serve the people under directive principles, whereas installation of GSM tower is governed by general law as such, which would affect the rights of the 12 O.S.No.11238/2006 properties. It is therefore even in the present case followed by such principles, plaintiff and defendant No.3 have entered into lease agreement in respect of suit property, of course when property was vested with 2nd defendant and it is an unfortunate that the plaintiff being Government Company even without notice and consent entered lease with 3rd defendant.
12. If we examine evidence it is elicited that Ex.P-1 lease agreement was for an initial period of 5 years and by now the said period expired. It is found in the evidence of P.W.1 that the plaintiff came to know about acquisition of suit property by defendant No.2 only after receipt of notice sent by 1st defendant and after receipt of such notice, plaintiff stopped to pay rents to defendant No.3. No doubt, this act of the plaintiff has to be appreciated by the court but facts remain that the plaintiff failed to attorn lease in favour of defendant No.2 and fail to take steps to keep the GSM Tower intact in the suit property to provide GSM mobile service. In other words to say, if really, GSM tower installed by plaintiff when property vested in the defendant No.1 were made known through such notice could 13 O.S.No.11238/2006 have made request in writing to the 2nd defendant to extend their assistance to continue the said tower for the purpose of mobile service for the general public but the plaintiff has failed in pursuing either under KIDB Act or under general law but still asserting rights under Telegraph Act and under lease agreement said to have been executed by defendant No.3 cannot be appreciated by court of law. Further to opine here that if really, plaintiff after receipt of such notice from defendant No.1 could have attorn the lease either in favour of defendant No.1 or defendant No.2 and applied under the provisions of KIDB Act to provide schedule property for continuation of GSM tower for mobile service to 2nd defendant, then the matter would have been different.
13. It is to be noted here that D.W.1, Asst. Engineer of defendant No.2 in his evidence reiterated contents of written statement and deposed that the possession and any improvements thereon made by either 3rd defendant or by the plaintiff is litigious possession. The Special LAO attached to the Board has taken possession of the suit schedule land on 12.5.2004 14 O.S.No.11238/2006 and has transferred such properties on 12.5.2004 u/s.28(8) of the KIAD Act. The installation of tower by the plaintiff in the premises described in the plaint schedule are of no consequence as the same were done during pendency of the writ petition, writ appeal and SLP stated above. It is therefore, learned counsel for 2nd defendant submits that plaintiff being Government organization, having men and machinery assisted by panel of legal advisors failed to make proper enquiry as to the title is nothing short of their malafide intentions and they deliberately entered into agreement has also some force. It is found in evidence that plaintiff has failed to make requisition under provisions of KIAD Act to 2nd defendant to provide the very property to render GSM mobile services to general public and failed to deposit lease amount agreed to be payable to 3rd defendant either to the credit of defendant No.2 or defendant No.1 or at least in the Court to show their bonafides. The fact that D.W.1 in cross-examination has admitted that plaintiff installed GSM tower in the suit property being in service condition and the fact that Board was not a party either in the writ or writ appeal filed by 3rd defendant and several others does not 15 O.S.No.11238/2006 come to the assistance of plaintiff to avoid rights of defendants 1 and 2.
14. The plaintiff through P.W.1 has produced Ex.P-1 lease agreement dated 25.5.2004 wherein 3rd condition would be the LESSEE shall subject to the terms thereof, pay rent for the said demised premises at the rate of Rs.5,000/- p.m. for the lease an open space measuring about 650 square feet which forms a portion of the LESSOR's property, to be utilized for the following purposes :
i) For mounting of Prefabricated Shelter for housing of Mobile Telephone Equipment.
ii) For the installation of Ground Based Mobile Equipment Tower of Height 40 mtr for the purpose of mounting the GSM antenna.
iii) For the installation of Generator Cabin for housing the 15 KVA DG Set
iv) For making 7 nos. of earth pits payable monthly in arrears, inclusive of maintenance. In the event of the terms hereby created, being terminated or commenced as provided by these presents, the LESSEE shall pay only a 16 O.S.No.11238/2006 proportionate part of the rent for the fabrication of the current month up to or from the date of such determination or commencement. The rent shall be paid to the LESSOR after TDS as per the income tax rules.
15. Thus, nowhere it is stated that this lease agreement entered in between plaintiff and 3rd defendant is for the purpose of drawing telegraphic line, but erection of towers therefore, contention of plaintiff that drawing of telegraphic lines has no relevance to the facts of this case in respect of suit schedule property when plaintiff and 3rd defendant agreed as per Ex.P-1 is governed by general law of the land.
Ex.P-2 and P-3 are letters addressed by defendant No.1 to the Deputy General Manager, Mobile Services and M.S-PLG on 15.5.2006 and 26.10.2006 respectively informing the SLP No. 19937/04 as quoted by Mr.S.Channaraya Reddy, Advocate is not correct and informed that the KIADB has already allotted land in the Survey No.10/3 in favour of their company on 18.4.2006. Further informing as to allotting of 0-31 guntas in 17 O.S.No.11238/2006 Survey No.10/3 in favour of defendant No.1 by defendant No.2 and all the 'lis' pending before the Hon'ble High Court and Hon'ble Apex Court were being disposed of and thereby requested the plaintiff to take immediate action to remove the tower at the earliest possible as their civil work is in progress.
16. Further to be noted here that Ex.D-1 is produced through D.W.1 is gazette notification dated 10th December 2001 u/s.3(1) of KIADB Act, 1966 notifying suit survey number and several other survey numbers of which, 3rd defendant is also one of anubhavdar of the said survey number. Ex.D-2 is dated 23.10.2003. It was notified u/s.28(4), wherein found name of defendant and others in respect of suit Survey No.10/3 measuring 0-31 guntas with specific boundaries. Further, as per Ex.D-3 on 5.5.2004, possession of Survey No.10/3P measuring 0-31 guntas along with several survey numbers notified finally under Ex.D-2 were taken possession u/s.28(7) by defendant No.2 and Ex.D-4 is a report thereon about taking of possession. Thus, not only the suit property but several other properties having been 18 O.S.No.11238/2006 taken possession by defendant No.2 vest with KIAD Board. Ex.D-5 is a letter of Special LAO, KIADB dated 12.5.2004 addressing to Deputy Development Officer, KIADB, Bangalore enclosing list of survey numbers taken possession by defendant No.2 as per Ex.D-6. Further, Ex.D-7 is a letter addressed to 1st defendant dated 18.4.2006 for having allotted 2 acres of land in Survey No.10/3P, 10/7, 10/12P and 10/13 of Devarabisanahalli village with extent. It is not necessary to mention as to the extent of other survey numbers since Survey No.10/3P is measuring 31 gunta is found along with other three survey numbers allotted to 1st defendant. Ex.D-8 is possession certificate dated 18.7.2006 for having taken possession by 1st defendant from defendant No.2, Ex.D-9 is lease cum sale agreement dated 21st July 2006 and Ex.D-10 is project sketch of 1st defendant.
17. Thus, the documents stated above coupled with their dates, would play vital importance that the plaintiff and defendant No.3 during pendency of writ petitions entered into Ex.P-1 without noticing either 1st defendant or at 19 O.S.No.11238/2006 least 2nd defendant on 25th May 2004, as such, installation of GSM tower in the suit schedule property as rightly submitted by learned counsel for defendant No.1 is litigious possession which shall not be recognized in the eye of law.
18. In order to substantiate such contentions placed few reliances, this would be referred here under:
They are reported in (2012) 5 SCC 370 in Maria Margarida Sequeira Fernandes and others vs. Erasmo Jack De Sequeira (dead) through LRs wherein in para-79 on page-392 explained what is due process of law:
Due process of law:-
Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the 20 O.S.No.11238/2006 parties are adjudicated upon by a competent Court.
19. In AIR 2006 SC 3001 in P.Narayanappa & another vs. State of Karnataka & others is in respect of challenge of Ex.D-1 Notification dated 10.12.2001 and in para-14, "That apart, the appellants herein are interested in saving their own land from acquisition and have no concern with the land belonging to promoters of Vikas Telecom (P) Ltd. They have not laid any foundation in the writ petition to show that the action of the State Government in acquiring their land was a mala fide one. Even assuming that the promoters of Vikas Telecom (P) Ltd. somehow succeeded in getting their own land acquired in order to save it from being forfeited by the State Government in view of the provisions of Karnataka Land Reforms Act, that by itself cannot be a ground to strike down the impugned notifications in so far as the land of the appellants is concerned."
21 O.S.No.11238/200620. In 2001 (1) Kar.L.J. 364 (DB) in John B.James and others v. Bangalore Development Authority and another wherein in para-79.1 on page-107 "On the other hand, if the unauthorized occupant, approaches the Court immediately after putting up a structure, and obtains an order of interim stay or injunction, restraining BDA from interfering with his possession (or first obtains an ex parte order of stay/injunction by mi-representing or suppressing fact and then under the cover of such interim order, put up some structure, as has happened in several cases), then it cannot be said that there was acquiescence on the part of BDA to the acts of possession by the trespasser or unauthorized occupant. In such cases, though possession may continue for a long time by virtue of the interim orders, such possession will merely be litigious possession and not settled possession and immediately after the interim injunction or stay is vacated or modified, BDA will be entitled to protect its possession by demolishing the structure and 22 O.S.No.11238/2006 dispossessing the trespasser/unauthorized occupant."
21. In ILR 1998 KAR 1441 in Poornaprajna House Building Co-operative Society vs. Bailamma @ Dodda Bailamma & others, it was held in paragraph-28 on page-1458, "Writ appeals 2090-94/93 arising out of writ petition Nos.480 to 484/93 have been filed by the purchasers of the lands after the issuance of notification under Section 4(1) of the Act. Now it is a well settled proposition of law that a person who purchases the land subsequent to the issuance of the notification u/s.4(1) of the Act, cannot be said to be the owner. Such a purchaser has no right to challenge the acquisition itself, although he is entitled to claim compensation by virtue of sale made in his favour i.e. of right, title and interest of his predecessor. Reference may be made the judgment of the Supreme Court UNION OF INDIA vs. SRI SHIVKUMAR BHARGAVA & OTHERS. It was held that:
"The policy of the Government indicates that the person whose land was acquired 23 O.S.No.11238/2006 means the owner as on the date, notification was notified for acquisition, and he alone will be entitled to allotment of alternative site. A person who purchases land subsequent to the notification may be entitled to claim compensation by virtue of sale made in his favour, namely, the right title and interest the predecessor had but, he cannot be said to be the owner for allotment since the right of ownership would be determined with reference to the date on which Notification u/s.4(1) was published. This was the view of this Court in another case while considering the Full Bench Judgment of the Delhi High Court. Under these circumstances, the appeal is allowed. The respondent cannot be considered to be the owner as on the date of Notification u/s.4(1) published in the Gazette. The direction given by the learned Single Judge is accordingly quashed. The Writ Petition stands dismissed."24 O.S.No.11238/2006
And in a decision reported in ILR 1998 KAR 215 in Raghavendra Rao vs. Dodda Ramalingappa, it was held that "A trespasser is not entitled to an order of temporary injunction as against a true owner."
22. Thus, keeping in mind the principles enunciated in the decisions cited supra when plaintiff, so far has not approached defendant No.2 to provide the very property on lease or at least not approached defendant No.1 in writing to consider the larger interest of the public, since GSM Tower is already installed, pleading bonafides that such tower situate in the plaint schedule is an essential public utility services, this Court cannot consider even the relief of injunction to be issued against defendants 1 and 2 since 1st defendant has already notified about result of litigations up to the Higher Court of India through Ex.P-3. Further, as already stated above, case of plaintiff is not for laying of telegraphic lines, but for erection of GSM tower under Ex.P-1 entered between plaintiff and defendant No.3 without prior notice and consent of defendants 1 or 2. Further plaintiff went on paying 25 O.S.No.11238/2006 lease price to defendant No.3 that too, when the said property vest with defendant No.2. Further, as already stated above, the plaintiff has stopped to pay monthly lease price even to defendant No.3 and the plaintiff has not made any effort in writing either to 1st defendant or defendant No.2 as stated above to provide the very space considering larger interest of public. In other words to say that plaintiff could have entered lease agreement afresh between parties concerned.
23. In the above such circumstances, contentions of learned counsel for plaintiff that plaintiff is entitled for relief of declaration and injunction in the guise of due process of law when the possession itself proved litigious possession could not be acceptable at all. Thus, reaching to such conclusion, finding on issues 1 and 2 would be record without saying in the Negative.
24. Issue No.3: In view of the above findings and in the result, this court passes the following:
O R D E R
(a) The suit of the plaintiff is hereby dismissed with no order as to cost.26 O.S.No.11238/2006
(b) Draw a decree accordingly.
(Dictated to the J.W., transcribed by her, corrected and then pronounced by me in the open court, on this the 6th day of February 2016).
(Krishnamurthy B.Sangannanavar) IX Addl. City Civil & Sessions Judge, Bangalore.
A N N E X U R E List of witnesses examined for plaintiff:
P.W.1 N.D.S.Kumar List of witnesses examined for defendants:
D.W.1 B.V.Shankare Gowda List of documents exhibited for plaintiff:
Ex.P-1 Lease agreement Ex.P-2 & 3 Two letters
List of documents exhibited for defendants:
Ex.D-1 Gazette Notification dt.10.12.2001 Ex.D-2 Notification dt.23.10.2003 27 O.S.No.11238/2006 Ex.D-3 Mahazar Ex.D-4 Report Ex.D-5 Letter of Special LAO dated 12.5.2004 Ex.D-6 Document pertaining to taking Possession by defendant No.2 Ex.D-7 Letter dt.18.4.2006 Ex.D-8 Possession certificate dt.18.7.2006 Ex.D-9 Lease-cum-sale agreement Ex.D-10 sketch IX Addl. City Civil & Sessions Judge, Bangalore.