Remanded

Summit Digital Infrastructure v. The District Collector

Madras HC13 Sept 2021WP/16231/2021

Case brief

AI extract

What is this about?

The Court quashed the District Collector's order rejecting a permit to erect a BTS tower. Relying on precedents, the Court held that apprehended law and order issues alone cannot deny statutory permission. The matter was remanded for fresh consideration with a hearing.

What did the court decide?

Impugned order denied permission to erect BTS tower set aside and remitted to District Collector for fresh consideration on merits after hearing within six weeks.

Summit Digital Infrastructure Vs The District Collector — Property and Title | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED :13.09.2021

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CORAM

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THE HONOURABLE MR. JUSTICE R. MAHADEVAN

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W.P.No.16231 of 2021 and WMP Nos. 17167, 17168 and 17170 of 2021

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Summit Digital Infrastructure Private Limitd (formerly known as Reliance Jio Infratel Ltd.) represented by its Authorised Signatory, No.89, Dr. Radhakrishnan Salai, Mylapore, Chennai 600 004. .. Petitioner

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Versus

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1.The District Collector Udhagamandalam Nilgiris District.

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The Superintendent of Police Uthagamandalam Nilgiris District.

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The Assistant Collector Coonoor, Nilgiris District .. Respondents

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Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of Certiorarified Mandamus calling for the records of the first respondent in order dated 26.4.2021 in reference No.Na.Ka.No.3/13421/2020, quash the same and consequently permit the petitioner to erect the BTS tower in the site comprised in Survey No.925/21 and 925/24, Kairbetta Village, Kotagiri, Nilgiris District.

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For Petitioner : Mr. N.L.Rajah, Senior Counsel for Abishek Jenasenan For Respondents : Mr. Stalin Abhimanyu, Government Counsel

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https://hcservices.ecourts.gov.in/hcservices/

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ORDER

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The petitioner has come up with this writ petition challenging the order dated 26.04.2021 passed by the first respondent, rejecting their application seeking permission to erect Base Transceiver Station Tower and quash the same and consequently permit the petitioner to erect the same in the proposed site.

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The petitioner is a company registered under the provisions of Indian Companies Act, 2013, involved in the business of erecting Base Transceiver Station Towers (BTS towers) used for transmitting signals in mobile phones and other wireless devices. According to the petitioner, as per Rule 62 of the Tamil Nadu Combined Development and Building Rules 2019 (for brevity, 'the Rules, 2019'), 'telecommunication structures are not considered as buildings and only structures for telecommunication', however, the telecom company will have to obtain necessary permission for erecting the towers from the Government. The petitioner, in order to erect BTS tower, identified a suitable site in Survey No.925/21 and 925/24, Kairbetta Village, Kotagiri, Nilgiris District so as to ensure network connectivity to the surrounding public and entered into a Lease Agreement dated 14.11.2018 with the land owner B.Ramesh. After the execution of lease deed, the local residents started protesting against the erection of the proposed BTS tower. Even though peace meetings were conducted, no settlement could be reached. Therefore, the petitioner obtained a direction from this Court granting police protection, if necessary, by order dated 26.07.2018 in Crl.O.P.No.18761 of 2018 for the commencement of work regarding erection of BTS tower in the proposed site. Thereafter, some residents of the village, filed a suit in O.S.No.41 of 2018 before the District Munsif Court, Kothagiri seeking to restrain the petitioner from erecting BTS tower and the same was dismissed on 04.12.2019.

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It is further averred by the petitioner that on 05.03.2019, some of the residents of the village pelted stones on the workers engaged in preparatory work in the site and also burnt the Generator set brought by the petitioner. In this connection, the petitioner lodged a complaint and after investigation, charge sheet was filed and the case is under trial.

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It is now the grievance of the petitioner that in compliance with the new Regulations, they submitted an application on 04.08.2020 to the first respondent seeking permission to erect BTS tower in the proposed site, however, the first respondent, without giving an opportunity of personal

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https://hcservices.ecourts.gov.in/hcservices/

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hearing, rejected the said application, by the impugned order dated 26.04.2021 on the ground that it would create law and problem, which according to the petitioner, is exfacie illegal and arbitrary.

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The learned counsel for the petitioner submitted that though the petitioner complied with the requirements as provided in Rule 62 of the Rules 2019, the first respondent rejected the application for erection of BTS tower on the sole ground of 'law and order problem', that too, without affording an opportunity of personal hearing to the petitioner. According to the learned counsel, as the grant of permission is solely governed by the applicable Rules and not by any extraneous considerations, the first respondent ought to have considered the petitioner's application and granted permission for erection of tower. Hence, the learned counsel prayed to set aside the order impugned herein and consequently issue appropriate direction to the first respondent.

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Per contra, the learned Government counsel appearing for the respondents drew the attention of this court to the averments made in the counter affidavit and submitted that the petitioner is well aware that for the past more than three years, the villagers of Kairbetta village have been stiffly resisting the location chosen by the petitioner company for erection of BTS tower. There are spontaneous objections raised by the villagers, which ultimately culminated into arson. Even as admitted by the petitioner, the generator equipment belonging to the petitioner company was set ablaze. The villagers apprehend that the proposed erection of tower would be detrimental to their health and potency and therefore, they are objecting to the erection of tower by the petitioner.

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The learned Government Counsel further submitted that maintenance of public order and tranquility is the paramount duty of the Sate and no individual is entitled to claim any right to carry on a business at a location, when it is objected by the general public. The erection of any plant or equipment by the petitioner, according to the general public in the locality, will be detrimental to their interest and therefore, they are raising serious objection for the same. In any event, the District Administration would consider the case of the petitioner company for granting permission to erect BTS tower at any site outside the Kairbetta village, if the petitioner submitted any fresh application for such purpose along with relevant documents. Therefore, the learned Government counsel submitted that the petitioner cannot, as a matter of right, claim that they be permitted to erect the Cell Phone Tower only in the place desired by them and hence, the writ petition is liable to be dismissed.

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https://hcservices.ecourts.gov.in/hcservices/

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In reply, the learned counsel for the petitioner placed reliance on the judgment of the Madurai Bench of this Court in a batch of writ petitions in WP (MD) No.15974 of 2017 etc batch, dated 29.08.2019 (Manivannan Vs. the District Collector, Tuticorin), wherein, the Division Bench has held as follows;

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“12.13. In view of the specific stand taken by the Department of Telecommunication and the reports of WHO, there are no materials on record to confirm the existence of any health hazard from exposure to low level electromagnetic field and as stated by the three earlier orders of the different Division Benches of this Court, this Court cannot dwell into those aspects as an expert. Thus, issue No.1 is answered accordingly.”

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In the light of the above, the learned counsel submitted that the apprehension of the Villagers that erection of cell phone tower would cause health hazard is baseless and the respondents are duty bound to allay their apprehension. In any event, the respondents are not justified in refusing permission only on the ground that certain vested interested persons are opposing the proposal of the petitioner to erect the Cell Phone tower.

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Heard the rival submissions and perused the materials available on record.

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The challenge made in this writ petition is to the order passed by the first respondent, denying permission to the petitioner company for erection of BTS tower in the proposed site. For better appreciation, the reason adduced therein, is extracted below:

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“vdnt. murpd; tpjpKiwfSf;Fl;gl;L bjhiyj;bjhlh;g[ nfhg[uk; mikf;f rpghhpR bra;ag;gLfpwJ vd ePyfphp khtl;l fhty; fz;fhzpg;ghsuhy; ghh;it?2?,y;; fhQqk; fojj;jpy; mwpf;if rkh;g;gpf;fg;gl;Ls;sJ/

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nkYk;. nfhj;jfphp tl;lk;. nfhj;jfphp 3 fpuhkk;. g[y vz;fs; 925-21 kw;Wk; 925-24 Mfpa fhiyfshdJ nfh;bgl;lh vd;w ,lj;jpy; mike;Js;sJ/ ,f;fhiyfis Rw;wp Rkhh; 200 FLk;g';fs; trpj;J tUfpd;wdh;/ nkw;fz;l fhiyfspy; jp-s;/ hpiyad;!; $pnah epWtdj;jpduhy; bjhiyj; bjhlh;g[ nfhg[uk; fle;j ,uz;L Mz;LfSf;F Kd;g[ mikf;fg;gl;L Ch; bghJ kf;fshy; vjph;g;g[ bjhptpf;fg;gl;ljhy; gzpahdJ KGik bgwhky; cs;sJ/ ,J bjhlh;ghf Ch; bghJ kf;fs; rhh;ghf jpU/fpUc;&zd; vd;gtuhy; brd;id cah;ePjpkd;wj;jpy; tHf;F (W.P.No.494 of 2019) bjhlug;gl;L jPh;g;g[iuapy; nfhj;jfphp 3 fpuhkk;. g[y vz;fs; 925-21. 925-822. 925-22?y; jp-s; hpiyad;!; $pnah epWtdj;jpw;F miyngrp nfhg[uk; mikf;f mDkjp VJk; tH';fg;gltpy;iy vd bjhptpf;fg;gl;Ls;sJ/ ,e;epiyapy;. nfhj;jfphp tl;lk;. nfhj;jfphp 3 fpuhkk;. g[y vz;fs; 925-21 kw;Wk; 925-24 Mfpa fhiyfspy; miyngrp

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https://hcservices.ecourts.gov.in/hcservices/

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nfhg[uk; mikf;f jpU/unkc&;. j-bg/ nf/vk;/ngh$d; vd;gtUf;F mDkjp tH';Fk;gl;rj;jpy; rl;lk; kw;Wk; xG';F gpur;rid Vw;gLk; vd nfhj;jfphp tl;lhl;rpah; bjhptpj;Js;sjhy;. jp-s;/ hpiyad;!; $pnah , d;g;uhbly; gp/ypl;. brd;id vd;w epWtdk; miyngrp bjhiyj;bjhlh;g [ nfhg[uk; mikf;f mDkjp tH';f ,ayhJ vd ghh;it?3y; fhQqk; fojj;jpy; Fd;Dhh; rhh; Ml;rpauhy; mwpf;if rkh;g;gpf;fg;gl;Ls;sJ/ vdnt. nkw;fz;l bghUs; bjhlh;ghf Fd;Dhh; rhh; Ml;rpah; kw;Wk; ePyfphp khtl;l fhty; fz;fhzpg;ghsh; mwpf;ifapd; mog;gilapy; rl;lk; kw;Wk; xG';F gpur;rid Vw;gLk; vd;gjhy; nkwfz;l ,lj;jpy; miyngrp bjhiyj;bjhlh;g[ nfhg[uk; mikf;f mDkjp tH';f ,ayhJ vd;W ,jd; K:yk; cj;jutplg;gLfpwJ/@

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It is seen from the aforesaid extract that based on the report submitted by the Sub Collector, Coonoor, as well as the Superintendent of Police, Nilgiris, to the effect that local people raised objection for erection of tower and in the event of granting permission to the petitioner, the same would create law and order problem in the locality, the first respondent refused to grant permission to the petitioner. Except the same, no other reason was stated in the order impugned herein. Whereas, the Division Bench of this Court, in the order dated 29.08.2019 in WP(MD)No.15974 of 2017 etc batch, referred to on the side of the petitioner, gave a verdict regarding the subject matter in issue. Applying the same to the facts of the present case, this court is of the view that the reasons assigned by the first respondent, cannot be countenanced.

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In such view of the matter, the impugned order is set aside and the matter is remitted back to the first respondent for fresh consideration, who shall pass orders on merits, in the light of the order passed by the Division Bench of this court in WP (MD) Nos.15974 of 2017 etc. batch (cited supra), and also taking into consideration Rule 62 of the Tamil Nadu Combined Development and Building Rules, 2019, after providing reasonable opportunity of hearing to the petitioner as well as any other interested parties. Such an exercise shall be completed within a period of six weeks from the date of receipt of a copy of this order.

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The Writ Petition is disposed of accordingly. No costs. Consequently, the connected miscellaneous petitions are closed.

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Sd/Assistant Registrar(CS-II)

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//True Copy//

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Sub Assistant Registrar

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https://hcservices.ecourts.gov.in/hcservices/

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msr/rsh

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1.The District Collector, Udhagamandalam, Nilgiris District.

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The Superintendent of Police, Uthagamandalam, Nilgiris District.

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The Assistant Collector, Coonoor, Nilgiris District.

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+2cc to Mr.Abishek Jenasenan, Advocate, S.R.No.46090 +1cc to the Government Pleader, S.R.No.46528

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WP No. 16231 of 2021

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PMK(CO) CB(22/10/2021)

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https://hcservices.ecourts.gov.in/hcservices/

Summit Digital Infrastructure v. The District Collector

Case brief

What is this about?

What did the court decide?

Summit Digital Infrastructure v. The District Collector

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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