M/S Ascend Telecom Infrastructure Pvt.Ltd. v. Greater Hyderabad Municipal Corporation,
THE HON'BLE SRI JUSTICE M.SEETHARAMA MURTI WRIT PETITION No.16359 of 2011 ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking the following relief/s:- "....to issue a writ in the nature of a Writ of Mandamus or any other appropriate writ, direction or order declaring the action of the respondents in interfering with the erection of the tower by the petitioner company at H.No.8-1-25C in Plot No.14 (Southern Part) on Survey No.311/1 & 312, situated at Raghavendra Colony, Karmanghat, Hyderabad, by virtue of deemed permission, without issuing any notice whatsoever and without following due process of law as arbitrary, illegal, without jurisdiction and in violation of the well settled principles of natural justice and pass such other order or orders as are deemed fit and proper in the circumstances of the case."
(Reproduced Verbatim) 2.
I have heard the submissions of the learned counsel for the writ petitioner and the learned counsel for the third respondent-impleaded petitioner. I have perused the writ petition and the affidavit of the impleaded third respondent which is filed in support of the vacate petition. I have perused the material record.
3. The case of the writ petitioner, as set out in the writ petition and as per the submissions made at the hearing by the learned counsel for the writ petitioner, in brief, is this:- "The writ petitioner, which is a telecom infrastructure private limited company, is providing passive infrastructure to various cellular operators and for the said business of the petitioner, it proposed to construct a roof top tower at the premises bearing no. H.No.8-1-25C in Plot No.14 (Southern Part) on Survey No.311/1 & 312, situated at Raghavendra Colony, Karmanghat of Hyderabad, which is within the jurisdiction of the first respondent-GHMC. In view of the said proposal, the writ petitioner had submitted an application dated 13.01.2011 to the GHMC for issuance of 'No Objection Certificate' for the proposed construction of the roof top tower at the aforementioned premises. As the GHMC did not respond to the said
application and as the application was neither approved nor rejected, the writ petitioner had issued a notice dated 07.03.2011 to the GHMC inter alia stating that as the application dated 13.01.2011 was neither approved nor rejected within the time allowed under law, the petitioner is considering that their application for construction of roof top tower is approved under the deemed provisions of the statute and that therefore, it is proceeding with the construction of the roof top tower as per the plan already submitted. In the said notice, the writ petitioner had inter alia stated that they are proceeding with the construction from 07.03.2011 and that they are once again submitting a copy of the in warded application along with the relevant documents for the reference of the GHMC. Having served the notice dated 07.03.
2011 on the GHMC, the petitioner had proceeded with the construction of the roof top tower. While so, as there was interference by the GHMC with the erection of the roof top tower by the writ petitioner, the present writ petition is filed assailing the said interference by the GHMC even without issuing a show cause notice as illegal, arbitrary and contrary to the principles of natural justice."
4. The learned counsel for the impleaded third respondent would submit as under: "The third respondent is a society formed for the welfare of the residents of the locality, i.e., Sree Raghavendra Colony. On 10.04.2011, a representation was given by the President of the third respondent society to the Deputy Commissioner of GHMC objecting to the erection of the cellular tower in the residential locality apprehending that there would be harmful radiation from the cellular towers and that the tower proposed, if erected, would endanger the health of the inhabitants of that colony. However, when the said representation was not attended to by the GHMC, another representation dated 29.07.2011 was submitted.
Further, as of now, there are four cellular towers within a radius of 100 metres and fifteen such towers within a radius of 1500 metres of the locality and hence, the third respondent is having objection for the erection of the proposed cellular tower by the writ petitioner. The concept of deemed permission is not applicable to the case of the writ petitioner. The petitioner is required to comply with the terms of the G.O.Ms.No.
Urban Development (M) Department dated 27.02.2008. In case the writ petitioner proceeds with the erection of the roof top tower, the members of the third respondent society and the residents of the locality would be adversely affected."
6. I have given earnest consideration to the submissions of the learned counsel for the parties.
7.
At the time of the admission of the writ petition on16.06.2011, this Court, pending further orders, granted interim direction as prayed for in the miscellaneous petition. Pursuant to the said interim orders, the writ petitioner had constructed the cellular tower as proposed. In the said circumstances, the learned counsel for the writ petitioner would submit that the ends of justice would be met if the respondents 1 and 2 are directed not to interfere with the subject cellular tower, except in strict accordance with the procedure established by law. The learned counsel for the third respondent would submit that if a direction is given to respondents 1 and 2 to dispose of the representations dated 10.04.2011 and 29.07.2011 of the third respondent, the grievance of the third respondent would be redressed. He would also submit that this Court may, in the interest of justice, also observe and direct that an opportunity may be given to the third respondent to submit its objections, if any, while proceeding against the cellular tower erected by the petitioner.
8.
Recording the aforementioned submissions, the writ petition is disposed of directing the respondents 1 and 2 not to interfere with the subject cellular tower erected by the writ petitioner except in strict accordance with the procedure established by law. It is made clear that in case the respondents 1 and 2 intend to proceed against the writ petitioner, they shall give an opportunity to the third respondent to file its objections, if any. It is further made clear that the respondents 1 and 2 shall consider and dispose of the representations dated 10.04.2011 and 29.07.2011 of the third respondent in strict accordance with the procedure established by law, however, after giving an opportunity of hearing to the writ petitioner and the
third respondent. The respondents 1 and 2 shall complete the said exercise as per the above directions within a period of two (02) months from the date of receipt of a copy of this order. No costs. Miscellaneous petitions, if any, pending in this writ petition shall stand closed.
______________________ M.Seetharama Murti, J 04th January, 2016 Bvv