IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2017 BEFORE THE HON’BLE MR.JUSTICE RAGHVENDRA S. CHAUHAN Writ Petition No.57701 /2016 (LB-BMP) Between :
ATC Telecom Tower Corporation Pvt. Ltd.
A Company registered under the companies Act Having its registered office at 404, 4th Floor Skyline Icon near Mital Industrial estate, Andheri Kurla Road, Andheri (East), Mumbai-40059, Circle office at:
No.309, Sri Venkatesh Complex, 1st floor, Indiranagar, 100 feet Road, Bengaluru-560038, Represented by its Authorized Signatory, Mr. Anil Prasad. …Petitioner (By Sri Shivakumar N., Advocate) And :
1. The Divisional Commissioner Bruhat Bengaluru Mahanagara Palike, K. R. Puram, Bengaluru.
2. Mr. Jagadeesh S/o. K. N. Murthy, Aged major, No.15, Manjunatha Layout, T. C. Palaya, K. R. Puram.
3. The State of Karnataka Represented by its secretary, Urban Development Department, Vikasa Soudha, Dr. Ambedkar Veedi, Bangalore-560001. …Respondents (By Sri Sreenidhi V., Advocate for R-1;
Sri S. Chandrashekaraiah, HCGP for R-3) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the Annexure-H dated 19.09.2016 and direct the respondent preventing them from interfering with business in sharing the infrastructures with other telecom operators and maintaining and operating the mobile tower in the schedule property and etc.
This Writ Petition coming on for preliminary hearing this day, the Court made the following :
ORDER The petitioner, ATC Telecom Tower Corporation Pvt. Ltd., has challenged the legality of the letter dated 19.9.2016, written by the Assistant Executive Engineer, Bruhat Bangalore Mahanagara Palike (BBMP), K. R. Pura Ward, Bangalore, to Mr. K. N. Murthy, whereby the Assistant Executive Engineer has instructed to stop the work of installation of Mobile Tower with immediate effect.
2. Briefly the facts of the case are that the petitioner is a Company, which has been incorporated under the Companies Act, 1956. It claims that it has licence from Government of India, Ministry of Communications and Department of Telecommunication, for erecting and installing Telecommunication Towers, and for providing/sharing Telecommunication infrastructure for various mobile communication providers/service companies like Spice, Vodafone and BSNL. According to the petitioner, it basically identifies various locations for providing the infrastructure support, which would consist of tower, an Antenna, a shelter for keeping electronic equipment, and a stand for generator. Earlier, the petitioner was known in the name and style of “M/s. Essar Telecom Infrastructure Pvt. Ltd.,”. However, subsequently, it has changed its name and style as “ATC Telecom Tower Corporation Pvt. Ltd.,”.
3. In order to increase the coverage of the telecommunication companies, the petitioner had identified a property in site No.15, Manjunatha Layout, T. C. Palya, K. R. Puram, Bangalore, measuring 650 Sq.ft. belonging to Mr. Jagadeesh, respondent No.2. Since the property in question was technically feasible for installation of the Telecommunication Tower, on 29.08.2016, the petitioner entered into a Lease Deed for fifteen years with Mr. Jagadeesh.
Subsequently, the petitioner started the ground work as per the specification, and in compliance with the guidelines issued by the Government. It has started the work of erection of the tower after intimating the officials of the BBMP. However, the petitioner was shocked to receive a letter 19.9.2016, issued by the Assistant Executive Engineer, BBMP, whereby the Assistant Executive Engineer has instructed the petitioner to stop the erection of tower. Hence, this petition before this Court.
4. Mr. N. Shivakumar, the learned counsel for the petitioner has raised the following contentions before this Court :-
Firstly, the Department of Telecommunications had issued an Advisory Guidelines to the State Governments on 1.8.2013, wherein the State Governments were directed to accept certain documents from those who wish to stall and erect a tower for the purpose of telecommunication.
Secondly, according to the Circular dated 2.3.2005, issued by the Government of Karnataka, the Local Bodies were instructed to grant permission to the Telecommunication companies to erect the tower on ground, terrace of the public/private buildings, or land falling under the residential, commercial, industrial, agricultural zone, subject to certain conditions. Despite the fact that the petitioner has not violated any of the conditions mentioned in the Circular, still the petitioner is being prevented from completing the erection work.
Thirdly, the only reason given by the Assistant Executive Engineer is that there has been a complaint from the residents of SBI Colony, where the proposed tower has to be erected. However, according to the learned counsel, the reason given by the Assistant Executive Engineer is untenable. Moreover, even if there were certain complaints, the petitioner has neither been given a copy of those complaints, nor an opportunity of hearing. Therefore, the impugned endorsement suffers from being unfair, reasonable and unjust exercise of power.
5. On the other hand, Mr. S. Chandrashekaraiah, the learned counsel for the State, submits that certain Rules have been drafted by the State Government, which will regulate the erection of such mobile towers throughout the State of Karnataka. However, the Rules have been published only in the draft form, and the objections from the public have yet to be invited. According to the learned counsel, till the Rules are framed, the respondents are justified in stopping the erection work.
6. Mr. V. Sreenidhi, the learned counsel for respondent No.1, submits that due to the complaint filed by the neighbours, the BBMP thought it proper to stop the installation of the tower. Therefore, the learned counsel for the BBMP has justified the impugned letter addressed to Mr. K. N. Murthy.
7. Heard the learned counsel for the parties, and perused the impugned endorsement.
8. The stand being taken by the learned counsel for the BBMP is clearly untenable. For, even if there were complaints submitted by the residents of the SBI Colony, the BBMP was duty bound to bring the same to the notice of the petitioner, and to given an opportunity of hearing to the petitioner to meet out the said complaints. Admittedly, so far no such opportunity has been given by the BBMP to the petitioner. Therefore, any instructions issued by the Assistant Executive Engineer to Mr. K. N. Murthy, is clearly in violation of principles of natural justice.
9. Even if certain instructions had been issued by the higher officers of BBMP for taking appropriate action, the impugned letter does not reveal the instructions given by the higher officers, and does not reveal as to what is the appropriate action proposed to be taken by the BBMP.
10. So far there are only Circulars issued by the Government, and guidelines issued by the Department of Telecommunication. It is not the case of the respondents that the petitioner has violated any of the conditions mentioned in Circular dated 2.3.2005, or the guidelines issued by the Department of Telecommunication dated 1.8.2013. Therefore, the reasons given by the Assistant Executive Engineer to Mr. K. N. Murthy, for stopping the installation of a tower in the building, is clearly illegal. Hence, unsustainable.
For the reasons stated above, this Writ Petition is, hereby, allowed. The impugned letter dated 19.9.2016, is set aside. No order as to costs.
Sd/- JUDGE *bk/-