JUDGMENT Bhagwan Din, J.
1. The petitioner is a company registered under Companies Act, 1956 having its branch office at shop Nos. 2 and 3, Meena Bazar, 10 Sardar Patel Marg, Civil Lines, Allahabad. The Government of India has granted a licence on 28.12.1995 under the provisions of Section 4 of the Indian Telegraph Act. 1885 and the Wireless Telegraphy Act, 1933. Under the terms and conditions of the licence, the petitioner, inter alia, erected towers/posts at different sites, one such tower was erected on the roof of the building of Sri Sushil Purwar situated in Mohalla, Rani Mandi, Allahabad. The Mukhya Nagar Adhikari (M.N.A.) exercising powers under Section 331 of Uttar Pradesh Municipal Corporation Adhiniyam, 1959 (hereinafter referred to as the "Adhiniyam. 1959') served a notice dated 3.7.1999 that on the inspection by the Officers of the department, it was found that the building is about 60-70 years old, on the roof of this building a 60 feet high S. R. Mobile Phone tower has been erected, the building situated in the mid of densely inhabited area is in a ruinous condition, and the tower may fall and may cause loss of life and property of the people of the locality. Besides that, a school building is also situated near the tower. Therefore, he required him to remove the tower from the roof of his building lest legal action shall be taken against him. The copies of this notice were also sent to the Additional Commissioner (Administration). Allahabad in reference to his letter dated 20.5.1999. the District Magistrate, S. P. City and S.H.O. P. S. Atarsuiya.
2. In continuation of the above notice, the A.D.M. City wrote a letter to Sri Mohit Verma, Branch Manager of the petitioner impressing upon him to ensure compliance of the notice otherwise legal steps would be taken for removal of the tower from the building. Neither the petitioner nor the owner of the building submitted reply to the notice Issued by M.N.A. However, the petitioner has submitted a reply (contained in Annexure-3 to the petition) to the notice served by the A.D.M. City demonstrating that the Resign of the construction of the structure was carried out by a team of skilled Civil Engineers of the company who hold more than 10 years' experience in this field and have built more than 200 such structures varying from 5 mtrs. to 80 mtrs. height in the State of U. P.. Delhi, Rajasthan, Haryana and Punjab. He asserted that utmost care was taken into consideration while constructing the said structure and is fully safe for the said building and surrounding areas. The authorities since have not withdrawn the notice, hence by means of this petition, the petitioner seeks :
(a) a writ, order or direction in the nature of prohibition prohibiting the respondents to continue with the proceedings under Section 331 of the Adhlniyam.
(b) a writ, order or direction in the nature of certiorari quashing the order dated 3.7.1999 (contained in Annexure-2 to the petition) and the order dated 7.7.1999 (contained in Annexure-3 to the petition).
3. We have heard Sri Rishi Chadha, learned counsel appearing for the petitioner, learned counsel of Nagar Nigam, Allahabad and learned Standing Counsel of the State of U. P. at considerable length.
4. It is contended by the learned counsel for the petitioner that the petitioner has erected the tower on the building under the terms of the licence granted by the Central Government under Section 4(1) of the Indian Telegraph Act, 1885. The respondents, therefore, have no authority to question the exclusive privilege of the petitioner conferred by the Central Government. It is further contended that the petitioner had procured the services of professional agency in examining the building on which the tower is erected. The Engineers were satisfied that the building was structurally sound and there is no possibility of any likelihood of the fall of the tower and abundant care has been taken by the petitioner in installation of the tower.
5. The Central Government has granted a licence to the petitioner for providing mobile telephone services. The petitioner has not demonstrated in this petition that the officers of the Central Government had inspected the building and found it structurally sound for erection of tower of 60 feet height and then granted the licence to erect the tower on the building in question. So also there is nothing on record to indicate that the petitioner has informed the Mukhya Nagar Adhikari, Allahabad or any other authority about his inclination to erect the tower on this very building so that the concerned authorities might have inspected the building and certified its soundness to bear the weight of the tower. It is not that merely because the petitioner has been granted a licence for providing mobile telephone services, a right to construct lofty tower on an old ruinous building, has accrued and the authority concerned will have no power to serve a notice under Section 331 of the Adhiniyam, 1959.
6. Section 331 of the Adhiniyam. 1959 provides that-
"If it shall at any time appear to the Mukhya Nagar Adhikari that any structure (including under this expression any building, wall, parapet, pavement, floor, steps, railing, door or window framed or shutters or roof, or other structure and anything affixed to or projecting from or resting on, any building, wall, parapet or other structure) is in a ruinous condition or likely to fall, or In any way dangerous to any person occupying, resorting to or passing by such structure or any other structure or place in the neighbourhood thereof, the Mukhya Nagar Adhikari may, by written notice, require the owner or occupier of such structure to pull down, secure, remove or repair, such structure or thing or do one or more of such things and to prevent all cause of danger therefrom."
7. In view of the provisions of the section quoted above, we are of the opinion that the contention of the learned counsel on this score is without substance.
8. In respect with the next contention, the petitioner has not filed any paper indicating the fact that the building was ever inspected by the petitioner's Engineers or by any other Government Agency before the tower was laid on the roof of the building. On the other hand, it is mentioned in the notice (contained in Annexure-2 to the petition) that the building was inspected by the departmental officers and they found that it is old and in ruinous condition, The petitioner has filed a letter written by one Anil Kumar Kushwaha addressed to it that on physical Inspection, it can be stated that the structural arrangement of the tower foundation which is on the existing building is structurally sound" and safe and the bearing stresses are well within the permissible limit. It is not stated in the petition that the petitioner ever requested Sri Anil Kumar Kushwaha to visit the site and give the above certification. The letter of Sri Anil Kumar Kushwaha is an after-thought and created with a view to support its contention. Besides that. It does not certify that the structure of the building is strong enough to sustain the weight of the tower. What is certified by this letter is that structural arrangement of the foundation of the tower is sound. It is indubitable that building is 60-70 years old. As far relates to Its poor condition, the M.N.A. has clearly mentioned in his notice. We are, therefore, of the opinion that this contention also is without merit.
9. In view of the above facts and circumstances, we are of the view that the petitioner has utterly failed to establish that the building is in such a condition and so strong that a 60 feet high tower standing on the roof of it will not fall and prove dangerous to the people residing and passing by in the locality. Therefore, we are of the opinion that the notice issued by the M.N.A. is neither arbitrary nor mala fide nor it was Issued in colourable exercise of power. No ground has, therefore, been made out for quashing the notice.
10. The petitioner is without merit and liable to be dismissed. It is accordingly dismissed.