Andhra Pradesh High Court - Amravati
Sri Y.Venkata Appa Rao vs The State Of Andhra Pradesh on 8 September, 2020
Author: M. Ganga Rao
Bench: M.Ganga Rao
HONOUERABLE SRI JUSTICE M. GANGA RAO
Writ Petition No.5934 of 2018
ORDER:
This writ petition, under Article 226 of the Constitution of India, is filed seeking a mandamus to declare the inaction of the respondents 2 to 7 in considering the representation dated 19.02.2018 of the petitioner and taking action against illegal construction of building by the 8th respondent and erecting Cell Tower on the illegal construction by the respondents 8 and 9 at Door No.37-12-12/1, NGGO's colony, Kapparada, Visakhapatnam as illegal and arbitrary.
The case of the petitioner is that he is a resident of NGGO's colony, Kapparada, Visakhapatnam and adjacent to his house, the 8th respondent constructed a building consisting of ground plus two floors in an extent of 180 square yards by flouting all the rules and regulations of Municipal Corporation, Visakhapatnam and the Visakhapatnam Urban Development Authority. The 8th respondent also constructed another floor unauthorisedly on the said building contrary to the sanctioned plan. However, the 8th respondent recently started a General Stores in the ground floor and a function hall viz., Sri Kallepalli Function Hall, which is very small and crumpled without any parking space and other amenities and causing much inconvenience and annoyance to the neighbourhood. The 8th respondent started erecting Cell Tower on the said building, for which the residents of the locality objected the same. Complaining the same, the petitioner made a representation to the 2nd respondent Municipal Corporation about illegal erection of cell 2 MGRJ W.P.No.5934 of 2018 tower on the unauthorized building of the 8th respondent, but the respondent Corporation had not taken any action so far. Assailing the inaction of the respondents 2 to 7, the present writ petition came to be filed.
The 6th respondent filed its counter denying the averments of the petitioner and stated that a Service Connection bearing S.C.No.356297/3821, Muralinagar Section was released on 29-09- 2017 in favour of K. Suryanarayana for non-domestic purpose i.e. for Kalyana Mandapa and subsequently the supply from the service is now being utilized for a cell tower belongs to M/s. Indus Towers Ltd., on terrace floor at D.No.37-12-12/1, NGGOs Colony, Kapparada, Visakhapatnam on the application submitted by him. Service connection is released even in cases where documentary evidence of lawful occupation of the premises is not produced.
The 9th respondent also filed its counter denying the allegations of the petitioner and stated that the 9th respondent being a Telecom Infrastructure and engaged in the business of providing passive infrastructure to its service providers and in the said process, it identified the terrace of the building bearing House No.37-12/1, Plot No.33/Part T.S.No.14/2, Kapparada Layout, NGO's colony, Ward No.37, Visakhapatnam, which is technically feasible for maintaining continuous network of service providers. After entering into lease agreement with the owner of the property, the 9th respondent submitted an application on 30-08-2017 to the Greater Visakhapatnam Municipal Corporation and the Corporation granted permission vide proceedings in Rc.No.2300/2017/ACP-IV, dated 3 MGRJ W.P.No.5934 of 2018 16.12.2017 for erection of roof top tower and accordingly it is erected in the premises. If the petitioner has any grievance with regard to radiation emanates from the tower, he has to approach the appropriate authority i.e. Telecom Enforcement Resources and Monitory Cell (TERM Cell) to workout his remedies.
Heard the learned counsel for the petitioner and Sri Ghanta Rama Rao, learned senior counsel appearing for Sri S. Chakrapani, advocate on record for the 9th respondent and Sri Metta Chandra Sekhar Rao, learned standing counsel for the 6th respondent authority.
Learned counsel for the petitioner submits that the action of the 9th respondent in erection of cell tower on the terrace of illegal construction is causing heavy radiation and health hazardous to the residents of the area and the same is erected without any permission or authority, which endangers the life of residents of the colony, which is illegal and arbitrary. Even the respondent authorities have not taken any action against the erection of cell tower on the complaint given by the petitioner.
On the other hand, the learned senior counsel appearing for the 9th respondent submits that the 9th respondent, after obtaining permission from the concerned authorities, erected the cell tower for the purpose of maintaining continuous network of service providers. He further submits that the radiation which would emanate from the tower will be within the limits prescribed by the Department of Telecommunication and that if the petitioner has any grievance with regard to erection of cell tower, the remedy of the petitioner is to 4 MGRJ W.P.No.5934 of 2018 approach the appropriate authority i.e. Telecom Enforcement Resources and Monitory Cell (TERM Cell), which would decide the issue.
In the facts and circumstances of the case, considering the submissions of the learned counsel and on perusal of the record, this court, in the interest of justice, felt it appropriate to dispose of the writ petition giving liberty to the petitioner to submit a comprehensive representation to the 2nd respondent Municipal Corporation with regard to construction made by the 8th respondent in deviation of sanctioned plan, within a period of ten days from the date of receipt of a copy of the order and on such representation being made, the 2nd respondent Municipal Corporation is directed to consider the same as per law as expeditiously as possible not later than eight (8) weeks and pass appropriate orders and communicate the same to the petitioner. However, if the petitioner has any grievance against the installation of cell tower and the radiation emanating from the tower, there is an alternative remedy available to the petitioner to make a representation to the Telecom Enforcement Resources and Monitory Cell (TERM Cell) and directed him to avail the same.
Accordingly, the writ petition is disposed of. There shall be no order as to costs.
As a sequel thereto, miscellaneous petitions, if any, shall stand closed.
________________ M. GANGA RAO, J Date: 08-09-2020 Ksn