Dismissed

Prabhu Kumari Gadri v. State of Rajasthan

Rajasthan HC4 Jul 2019CW/1475/2019

Case brief

AI extract

What is this about?

This single-judge bench dismissed a writ petition challenging the permission for installing a mobile tower. The court held that the rules required Gram Panchayat comments, not consent, and that the permission order needed no detailed reasons as it was a ministerial act. A procedural deviation in the form was too technical to annul the order.

What did the court decide?

Writ petition and stay petition dismissed with no consequential relief.

Prabhu Kumari Gadri Vs State of Rajasthan — Motor Accident Claims | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

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JODHPUR

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S.B. Civil Writ Petition No. 1475/2019

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Prabhu Kumari Gadri W/o Shri Ramesh Chandra Gadri, aged about 30 years, by Caste- Godari, R/o Gram Panchayat Semaliya, Tehsil and District Chittorgarh, Rajasthan.

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----Petitioner

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Versus

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State of Rajasthan through District Collector, Chittorgarh, Rajasthan.

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Sub Divisional Officer, Chittorgarh, Rajasthan.

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Manager Reliance, Jio Infocom Company Limited, Behind Roadways Bus Stand, Branch Chittorgarh, Rajasthan.

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----Respondents

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For Petitioner(s) : Mr. Harish Jangid For Respondent(s) : Mr. Anurup Singhi Mr. Avinash Acharya Mr. Abhishek Mehta Mr. Hiten Sampat

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JUSTICE DINESH MEHTA Order

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04/07/2019

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By way of the present writ petition, the petitioner has challenged permission for installation of mobile tower, issued by the Sub-Divisional Magistrate, Chittorgarh on 07.01.2019.

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Narrated in a nutshell, the facts appertain to the present writ petition are that the petitioner-Sarpanch of Gram Panchayat, Semaliya has filed the present writ petition claiming to be espousing the cause of her Gram Panchayat. The petitioner’s essential grievance is that the Sub-Divisional Magistrate, Chittorgarh, the competent authority, has issued permission/NOC dated 07.01.2019 in violation of the order dated 06.02.2017, issued by the Department of Urban Development and Housing, Government of Rajasthan.

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(2 of 5) [CW-1475/2019]

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Mr. Harish Jangid, learned counsel for the petitioner contended that prior to issuance of the permission, the competent authority has not obtained consent of the concerned Gram Panchayat. He further argued that the competent authority, the respondent No.2 has neither recorded any reason nor has discussed any of the objections raised by the Gram Panchayat and other persons including the Sub-Divisional Officer, Chitrorgarh. His last contention has been that the consent/NOC issued by the respondent No.2 is not in the prescribed proforma being Form No.6 enclosed with the order dated 06.02.2017.

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Highlighting the grievance of the petitioner, learned counsel contended that as a result establishment of mobile tower, health of the resident of the village will be adversely effected, for which they have raised objections and represented before the State authorities. Their objections are duly reflected in the letter dated 07.08.2018, written by respondent No.2 the Sub-Divisional Officer to the Tehsildar Chittorgarh.

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Mr. Anurup Singhi, learned counsel appearing for the respondent No.3 submitted that the petitioner being the Sarpanch of the Gram Panchayat, Semaliya has filed the present writ petition purportedly espousing the cause of her Gram Panchayat, as such should have filed a PIL inasmuch as none of her individual fundamental rights are infinged. To emphasise that the petition has been filed in representative capacity, he invited attention towards para 7 of the writ petition.

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Mr. Singhi pointed out that the only ground raised by the petitioner (Ground ‘H’) is that the installation of mobile tower and

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(3 of 5)

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[CW-1475/2019]

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telegraph structure is hazardous to health of villagers but there is neither any evidence nor material to support such contention.

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In a bid of satisfy the Court about the allegation of adverse impact on public health, he zealously stated that notwithstanding the fact that the respondent Company is sensitive towards public health and injury, there is no adverse effect, much less health hazards. That apart respondent Company is bound by various laws framed by the Central Government and the State Government, which have provided enough safeguards to regulate radiations.

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He submitted that there are plethora of decisions of various High Courts and this Court, by which similar nature writ petitions have been rejected, interalia, holding that the residents of a particular area cannot object to installation of mobile tower except when there is violation of statutory regulations or rules. Learned counsel asserted that prior to grant of NOC, requisite formalities have been observed and the respondent Company has also ensured that the tower is not installed at any prohibited place such as a school or hospital.

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In this regard, he invited attention of this Court towards the Division Bench judgment dated 27.11.2012 in the matter of

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Justice I.S. Israni (Retd.) & 3 Anr. Vs. Union of India & Ors.; 2013(2) WLC (Raj.) 602 and submitted that after a detailed deliberation on all aspects, this Court has laid down various guidelines and none of them have been violated.

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I have heard learned counsel for the parties and perused the material available on record.

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(4 of 5)

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[CW-1475/2019]

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Without dialating upon the question of locus of the petitioner to file the present writ petition or it should have been filed before the Division Bench as a public interest litigation, this Court rather proceeds to decide the case in light of the grounds raised and canvassed.

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Sheet anchor of the arguments advanced by learned counsel for the petitioner has been that consent of the Gram Panchayat is sine qua non, flows from Clause-6(2) of the order dated 06.02.2017 issued by the Department of Urban Development and Housing, Govt. of Rajasthan, It will not be out of context to reproduce the same.

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"6(2) In case the permission is sought in rural area, the Nodal Officer, shall within three days of the receipt of the application sent it to the Tehsildar and Assistant Engineer, PWD having jurisdiction of the area for examination and to the Gram Panchayat for its comments, who considering parameters as detailed in para 7 below, shall submit their report within seven days of the receipt of the copy of the application to the Nodal Officer.”

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This argument of learned counsel for the petitioner is fallacious, inasmuch as Clause-6(2) of the order dated 06.02.2017, nowhere requires ‘consent’ of the Gram Panchayat. The relevant provision postulates the requirement of seeking comments of the Gram Panchayat only and not the consent. Needless to observe that there is significant difference between expression ‘comment’ and ‘consent’; they cannot be used interchangeably.

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The second limb of argument advanced by learned counsel for the petitioner that the order dated 07.01.2019 is non-speaking also has no substance. In considered opinion of this Court,

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(5 of 5)

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[CW-1475/2019]

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granting permission or issuance of NOC is an administrative or ministerial act. The Nodal Officer is not required to record reasons in the order granting permission, as is required in a judicial or quasi-judicial order. The law enjoins upon him to decide the application after following due procedure and safety, as provided in the order dated 06.02.2017 and ensuring security and public safety and other directions and laws, including judgment of this Court in case of Justice Israni (supra).

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Adverting to the last argument advanced by Mr. Jangid that the order dated 07.01.2019 is not in prescribed proforma viz Form No.6, I am of the view that technically, the petitioner’s argument may be correct but such deviation in form is not glaring, for which the order itself can be annulled. As far as substance of the order is concerned, there is nothing on record to show that the provisions of the order dated 06.02.2017 or any other law have been flouted. The mere fact that the order dated 07.01.2019 is not in prescribed proforma, is not fatal.

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No other argument was advanced. Resultantly, I do not find any substance and force in the present writ petition, for which it is dismissed.

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The Stay Petition No.1426/2019 also stands dismissed.

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(DINESH MEHTA),J

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251-Ramesh/-

Prabhu Kumari Gadri v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Prabhu Kumari Gadri v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

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