The High Court allowed a writ petition against a direction to remove a cell tower erected on the petitioner's private property. Relying on precedent, the court held that Section 99 does not apply and designated notices without show-cause proceedings are invalid.
The impugned notice dated 14.05.2010 was set aside, and the writ petition was allowed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
THE HON’BLE SRI JUSTICE C.V.RAMULU
WRIT PETITION No.14302 of 2010
ORDER:
It appears, the petitioner is the absolute owner and possessor of the house bearing No.2-12, Bogaram village, Keesara Mandal, Ranga Reddy District, and the 6th respondent erected a cell tower on the petitioner’s house. While that being so, on the basis of a complaint given by the neighbours of the petitioner that erection of cell tower on the petitioner’s house causes health hazards to them and also that there is threat to their life and property in case of cyclone, the 1st respondent issued the impugned notice dated 14.05.2010, asking the petitioner to remove the cell tower installed on her building. The petitioner complains that the impugned notice cannot be construed as a notice since there is no scope of submitting explanation thereto, and it is, in fact, an order not preceded by any notice either to her or the 6th respondent, seeking their explanation. The main grievance of the petitioner is that the 1st respondent has no power or authority to issue the impugned notice. Hence, this writ petition.
The principles of law on the point are no more res integra. This Court in M.Balaram v. Bharat Sanchar Nigam Ltd .[1] held as under:
“ I have carefully examined the provisions of Section 99 and I am of the view that the said provision is attracted only where the owner or occupier of any building proposes to put up verandahs, balconies, sunshades, weather frames and the like to project over a public road vested in such Gram Panchayat. The learned Counsel also relied on Section 121 of the Act in this regard. The said provision is not attracted either, because it pertains to the requirement of permission to be obtained from the Gram Panchayat for construction of a building. Section 2(3) of the Act defined ‘building’ as including a house,
outhouse, shop, stable, latrine, shed (other than a cattle shed in an agricultural land), hut, wall and any other such structure whether of masonry, bricks, wood, mud, metal or other material whatsoever.
In my opinion, a metallic structure, which does not have any characteristic of house, out-house, shop, stable etc., does not fall within the definition of building. The words “whether of masonry, bricks, wood, mud, metal or other material” used in the said definition were preceded by the words “such structure” which necessarily means the structures such as house, out-house, shop, stable, latrine, shed etc., as mentioned in the earlier part of the definition. Therefore, this contention of the learned Counsel is rejected.
As regards the submission of the learned Counsel that erection of a cell tower causes health hazards, the learned Counsel has not filed any material which authoritatively established that operation of cell towers causes such health hazards. The plea of the petitioner in this regard is merely based on his apprehension rather than on established fact. Therefore, this Court cannot accept such a plea in the absence of any proof in support thereof.”
In the light of the aforesaid decision of this Court, the impugned notice cannot be sustained. Therefore, the impugned notice is liable to be set aside and is, accordingly, set aside.
Hence, the writ petition is allowed. No order as to costs.
_____________ C.V.RAMULU,J
24.12.2010 v v
[1] 2010 (6) ALD 34
2 issues framed by the court
Whether the respondent had the power or authority to issue a notice directing the removal of a cell tower erected on the petitioner's house.
Whether the contents of the notice constitute a valid notice under Section 99 of the Act attracting judicial review remedies.
Colour shows how this judgement treated each authority
M. Balaram v. Bharat Sanchar Nigam LtdFollowed¶5
[1] 2010 (6) ALD 34
3 provisions across 1 enactments
Petitioner
1st Respondent
6th Respondent
C.V. Ramulu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
