THE HON'BLE SRI JUSTICE A.V. SESHA SAI WRIT PETITION No.7081 of 2010 Between:
Kukkala Pushpavathi PETITIONER AND
1. The Gram Panchayat, Mulaupparagudem, rep. by its Secretary, Kalidindi Mandal, Krishna District, and another.
RESPONDENTS ORDER:
This writ petition is filed under Article 226 of the Constitution of India, seeking the following relief.
“….issue a Writ, Order or Direction more particularly one in the nature of Writ of Mandamus declaring the inaction on the part of the respondents 1 and 2 in permitting the 3rd respondent for installation of cell tower in the land in R.S.No.1425/2 in a residential area situated Mulaupparabgudem Gram Panchayat of Kalidindi mandal, Krishna District as being illegal, arbitrary and contrary to the Government orders issued n G.O.Ms.No.183, dt.27-2-2008 issued by the 1st respondent and consequently direct the respondents 1 and 3 to take action against the 3rd respondent restraining him from installation of cell tower….”
2. Heard Sri P. Sri Raghuram, learned counsel for the petitioner, Sri G. Elisha learned Standing Counsel for the 1st respondent- Gram Panchayat and Sri Ghanta Rama Rao, learned counsel for the 2nd respondent, apart from perusing the material available on record.
3. The sum and substance of the case of the petitioner in the affidavit filed in support of the writ petition is that in the event of allowing the construction of cell tower by the 2nd respondent it would cause more potential harm to the human beings apart from the violation of easementary rights particularly the right of the petitioner, who is a neighbour. It is pleaded that he instituted O.S.No.52 of 2009 on the file of the Court of the Junior Civil Judge, Kaikaluru against the owner of the land, viz., Sri T. Ganapathi Prasad and that in I.A.No.169 of 2009 the said Court granted status quo order. It is also pleaded that the said Ganapathi Prasad let out the land in favour of the 2nd respondent, who undertook to construct a cell tower in the said land. Against the said action, the petitioner filed a complaint before the 1st respondent-Gram Panchayat also. The grievance of the petitioner is that the 1st respondent-Gram Panchayat did not take any action so far. Hence the present writ petition came to be filed.
4. This Court issued Rule Nisi on 28.04.2010. Responding to the Rule Nisi issued by this Court, a counter affidavit is filed by the 2nd respondent-Company stating that the 2nd respondent-company is regulated by the Indian Telegraph Act, 1885 and that it entered into an agreement with the owner of the land and filed an application dated 27.10.2008 for grant of permission. It is further stated that in fact there is no necessity to obtain any permission from the Gram Panchayat as erection of tower does not amount to construction of any building. It is further pleaded that construction of cell tower is completed long back and the allegation that if the construction is allowed to complete, it will cause more potential harm to the human beings, is not tenable. It is further stated that G.O.Ms.No.183, dated 27.02.2008 has no application to the present case as the said G.O is applicable only to Municipal Corporations and Municipalities but not to the Gram Panchayats.
5. In identical circumstances, this Court in M. Balaram v. Bharat Sanchar Nigam Limited, rep. by Chief General Manager, A.P.
[1]
Telecom Circle, Hyderabad & anr. ) while dismissing the writ petition, at paragraph Nos. 4 to 8 held as under:
“At the hearing, the learned counsel for the petitioner submitted that under Section 99 of the Andhra Pradesh Panchayat Raj Act, 1994 (for short, “the Act”) it is incumbent upon respondent Nos.1 and 2 to obtain permission from respondent No.3 Gram Panchayat for erection of cell tower and that as no such permission has been obtained, they are not entitled to erect the same.
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 panchahat. 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, out-house, shop, stable, latrine, shed (other then 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 rejection.
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.
For the abovementioned reasons, I do not find any ground to interfere in the writ petition and the same is accordingly dismissed.”
6. A perusal of the above said judgment manifestly shows that similar contentions were rejected by this Court.
7. In view of the aforesaid judgment, this Court is of the opinion that the present writ petition does not merit consideration. Accordingly the writ petition is dismissed. However, it is made clear that the 2nd respondent shall adhere to the instructions, if any, issued in this regard by the Government. No order as to costs. As a sequel, the miscellaneous petitions, if any, shall stand closed.
JUSTICE A.V. SESHA SAI.
14th November, 2014 Js.
[1] 2010 (6) ALT 648