Disposed

Kedar Nath Pathak and 19 Ors. v. the State of Assam and 15 Ors.

Gauhati HC13 Jun 2022WP(C)/3235/2022

Case brief

AI extract

What is this about?

The Gauhati High Court disposed of a writ petition by residents challenging the installation of a mobile tower in a residential area. The court directed the District Collector (Chairman, District Telecom Committee) to place the petitioners' representations before the Committee, ensuring personal hearing and an expeditious disposal within eight weeks.

What did the court decide?

Direction to the District Collector to place petitioners' representations before the District Telecom Committee for consideration with personal hearing to all stakeholders to be completed within eight

Kedar Nath Pathak and 19 Ors. Vs the… — Constitutional and Fundamental Rights | Gauhati HC (2022)

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GAHC010092362022

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : WP(C)/3235/2022

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KEDAR NATH PATHAK AND 19 ORS.

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S/O- LT. M.C. PATHAK, R/O- ANKUR PATH, PHUKAN NAGAR, PO AND PSSIVASAGAR, WARD NO. 10, DIST.- SIVASAGAR, ASSAM, PIN- 785640.

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2: SATYAJIT BHUYAN S/O- LATE B.N. BHUYAN R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640.

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3: MRS. GARIKA DEVI W/O- PRAKHANTA BHATTACHARYYA R/O- PRAFULLA PHUKAN PATH PHUKAN NAGAR WARD NO.-10 PO AND PS- SIVASAGAR DIST.- SIVASAGAR ASSAM PIN- 785640.

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4: PRADIP KR. SARMAH S/O- LATE GHANA KANTA SARMAH R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640.

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5: GODESWAR MOHAN S/O- LATE SUKHIRAM MOHAN R/O- C.R.B. PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 6: MRIDUPORNA GOSWAMI W/O- PRITOM RANJAN BARUAH R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 7: BIPUL SHARMA S/O- LATE C.D. SHARMA R/O- C.R.B. PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 8: KAMALESHWAR SINGH S/O- LATE RAGHUNATH SINGH R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 9: MRS. ALI SHARMAH W/O- LATE K.K. SHARMAH R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM

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PIN- 785640.

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10: MRS. RUNUMI HAZARIKA D/O- LATE SUCHIL CH. HAZARIKA R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 11: JAYANTA BEZ S/O- LATE MADAN CH. BEZ R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 12: RAJIB GOSWAMI R/O- PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 DIST.- SIVASAGAR ASSAM PIN- 785640. 13: NABA JYOTI SARMAH S/O- LATE MUNIN SARMAH R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640. 14: MRS. SIKHA SARMA W/O- LATE RATAN SARMA R/O- ANKUR PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640.

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15: MRS. PRITY RANI SARMAH W/O-JOGANANDA SARMAH R/O- C.R.B. PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640. 16: MRS. GEETA BORGOHAIN R/O- PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640. 17: RUPA DUTTA R/O- PRAFULLA PHUKAN PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640.

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18: DURGA NATH BORTHAKUR R/O- PRAFULLA PHUKAN PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640.

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19: GANESH CH. DEKA R/O- PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640. 20: TRILOCHAN BORTHAKUR S/O- SRI DURGA NATH BORTHAKUR R/O- PP PATH PHUKAN NAGAR PO AND PS- SIVASAGAR WARD NO. 10 ASSAM PIN- 785640

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VERSUS

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THE STATE OF ASSAM AND 15 ORS. REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT OF ASSAM, DISPUR, GUWAHATI-781006. 2:THE SECRETARY GOVERNMENT OF ASSAM INFORMATION AND TECHNOLOGY DEPARTMENT DISPUR GUWAHATI- 06. 3:THE DIRECTOR ( COMPLIANCE-II) DEPARTMENT OF TELECOMMUNICATION O/O- THE SR. DDG ASSAM LSA 7TH FLOOR BSNL BHAWAN PAN BAZAR GUWAHATI- 781001 ASSAM. 4:THE DEPUTY COMMISSIONER DISTRICT- SIVASAGAR ASSAM PIN- 785640. 5:THE SUPERINTENDENT OF POLICE SIVASAGAR ASSAM PIN- 785640. 6:THE SIVASAGAR DEVELOPMENT AUTHORITY REPRESENTED BY ITS CHAIRMAN SIVASAGAR 785640 ASSAM. 7:THE DEPUTY DIRECTOR URBAN DEVELOPMENT AND TOWN PLANNING SIVASAGAR. 8:THE SIVASAGAR MUNICIPAL BOARD REPRESENTED BY ITS CHAIRMAN SIVASAGAR 785640 ASSAM.

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9:THE NODAL OFFICER(ROW) SIVASAGAR ASSAM.

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10:THE EXECUTIVE ENGINEER PUBLIC WORKS DEPARTMENT SIVASAGAR BUILDING DIVISION SIVASAGAR ASSAM. 11:THE EXECUTIVE ENGINEER POLLUTION BOARD MELACHAKAR SIVASAGAR. 12:THE DEPUTY CONTROLLER DISASTER MANAGEMENT SIVASAGAR. 13:THE MANAGER RELIANCE JIO INFORMATION LTD. 2ND FLOOR BIJAY CRESCENT BUILDING RUKMINIGAON G.S. ROAD GUWAHATI-22.

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14:JIO SERVICE CENTRE MANAGER NEAR SAMPRITEE HOSPITAL SIVASAGAR WARD NO.-13 SIVASAGAR. 15:RANJAN RASHMI BHATTACHARYYA S/O- LATE AMBIKA BHATTACHARYYA R/O- BYE LANE OF CHITTARANJAN PATH PO AND PS- SIVASAGAR WARD NO.-10 DIST.- SIVASAGAR ASSAM PIN- 785640.

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16:DIBYA RASHMI BHATTACHARYYA S/O- LATE AMBIKA BHATTACHARYYA R/O- BYE LANE OF CHITTARANJAN PATH PO AND PS- SIVASAGAR WARD NO.-10

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DIST.- SIVASAGAR ASSAM PIN- 785640

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Advocate for the Petitioner : MR. L N DIHINGIA

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Advocate for the Respondent : GA, ASSAM

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BEFORE HONOURABLE MR. JUSTICE MANISH CHOUDHURY

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ORDER

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Date : 13.06.2022

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Heard Mr. L.N. Dihingia, learned counsel for the petitioners; Ms. S. Sarma, learned Junior Government Advocate, Assam for the respondent nos. 1, 2, 4, 5, 7 and 12; and B. Gogoi, learned Standing Counsel, Public Works Department [PWD] for the respondent no. 10.

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The petitioners, 20 [twenty] in nos., have joined together to institute this writ petition under Article 226 of the Constitution of India, stating that they are the residents of Chittaranjan Path, Ankur Path and Prafulla Phukan Path of Phukan Nagar, located in Sivasagar town. A process of installation of a ground-based mobile tower is being undertaken by the respondent nos. 13 and 14 in the residential campus of the respondent nos. 15 and 16. According to the petitioners, the mobile tower is being installed in a plot of land measuring about ‘15 feet X 25 feet’ approximately. The petitioners have apprehension that if the mobile tower is allowed to function, there will be a number of environmental hazards. The petitioners have further claimed that the site is situated inside a residential premise and the proposed site is in a narrow bye-lane, which is in a purely residential area. Also, the tower site is at a distance of about 500 feet from the main road. In case any fire hazard occurs, it could not be possible for the fire fighting services to reach the site through that narrow bye-lane of 10 feet in width. The petitioners have also expressed apprehensions about other possible hazards likely to emanate from/arise out of the proposed mobile tower. The petitioner no. 1, the petitioner no. 2, the petitioner no. 3 and the petitioner no. 18 have claimed to be the owners of residential premises adjacent to the proposed mobile tower. The petitioners have stated

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that they have submitted a number of representations, dated 12.07.2021, 28.03.2022, 20.04.2022 and 25.04.2022, before the respondent authorities, more particularly, to the respondent no. 4 i.e. the Deputy Commissioner, Sivasagar, who is also the Chairman of the District Telecom Committee [DTC], Sivasagar constituted in terms of the Guidelines framed by the Information Technology Department, Government of Assam [the respondent no. 2] for hearing public grievance regarding installation, etc. of mobile towers. When no discernible action is found to have been taken by the respondent no. 4 for a sufficient period of time, the petitioners have stated that they have approached this Court by this writ petition seeking inter-alia a direction to cause an enquiry and to take measures for maintaining safety and security of the local inhabitants, in connection with the proposed mobile tower which is being installed in the residential campus of the respondent nos. 15 and 16.

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The learned counsel for the respondent no. 4 has submitted that a procedure has been prescribed under Clause 17 of the Guidlines framed by the Information Technology Department, Government of Assam. It is also submitted that the matter is already under consideration of the District Telecom Committee [DTC], Sivasagar and the representations received by the District Telecom Committee [DTC] in respect of the proposed mobile tower which is being installed in the residential campus of the respondent nos. 15 and 16, are under active consideration of the District Telecom Committee [DTC]. As an interim measure, the installation work of the proposed mobile tower has been stopped by the competent authority, until the matter is resolved.

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The Information Technology Department, Government of Assam by an order dated 11.08.2015 has formulated ‘the Guidelines for Issue of Clearance and Permit for Installation of Mobile Towers and Disposal of Public Grievance in this regard’ [‘the Guidelines’, for short]. The object of the Guidelines is to provide for framework for installation and operation of mobile towers on roof top, ground level or various premises.

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Clause 17 of the said Guidelines has provided for the procedure of disposal of public grievances and it has been mentioned that if there is any individual or public grievance relating to establishment or operation of a mobile tower or if the Telecom Service Provider

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[TSP]/Infrastructure Provider [IP] has some grievance the same shall be placed before the District Telecom Committee, [DTC] for disposal as per Guidelines laid down provided that the aggrieved party may prefer an appeal to the State Telecom Committee [STC] within 45 days of disposal by the DTC if it is not satisfied with the decision of the DTC. Clause 2 of the said Guidelines has provided for the composition of the District Telecom Committee [DTC]. The DTC is headed by the Deputy Commissioner of the concerned District as its Chairman. The DTC deals with the matters related to public grievance for installation of mobile towers and other issues related to telecom infrastructure in the concerned district.

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It has been submitted by the learned counsel for the parties that since the petitioners have already submitted representations ventilating their grievances about the installation of the ground based mobile tower in the vicinity of their areas of residence before the respondent no. 4, the respondent no. 4 as the Chairman of District Telecom Committee [DTC], Sivasagar can place the same before the DTC, Sivasagar and the DTC shall consider all the representations submitted by the petitioners on their own merits.

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Taking note of the provisions contained in the aforesaid Guidelines, this Court is of the considered view that the writ petition can be disposed of at this stage with a direction to the respondent no. 4 to place the representations submitted by the petitioners in respect of the proposed mobile tower before the DTC, Sivasagar for consideration and the DTC, Sivasagar shall, in turn, take the same on board for consideration. After due consideration, the DTC shall dispose of the same by passing a speaking order. It is accordingly directed. It is necessary to mention that at the time of consideration of the said representation, all the stakeholders or their authorized representatives shall be put on notice and an opportunity of personal hearing be accorded to such interested stakeholders, if any such request is made. The entire exercise shall be completed as expeditiously as possible, preferably within a period of 8 [eight] weeks from the date of receipt of a certified copy of this order by the respondent no. 4 from the petitioners.

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The writ petition stands disposed of in the aforesaid terms. No cost.

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JUDGE

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Comparing Assistant

Kedar Nath Pathak and 19 Ors. v. the State of Assam and 15 Ors.

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Kedar Nath Pathak and 19 Ors. v. the State of Assam and 15 Ors.

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