Hon'ble Vivek Kumar Birla,J.
1. We have heard Shri K.K. Arora, learned counsel for the appellant. Shri R.B. Singhal, Asstt. Solicitor General of India assisted by Shri S.K. Rai appears for the respondents.
2. A preliminary objection has been raised by Shri R.B. Singhal, Asstt. Solicitor General of India that this special appeal is not maintainable under Chapter VIII Rule 5 of the Rules of the Court as the Prescribed Authority under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 and the appellate authority namely the Addl. District Judge, Court No.12, Meerut in the Act is under the superintendence of the Court.
3. Shri K.K. Arora appearing for the appellant would submit that the orders under challenge before the learned Single Judge arose out of the proceedings, which were drawn under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (the P.P. Act, 1971), which is an enactment referable to Entry-3 and 32 of the List-1-Union List of Schedule VII of the Constitution of India and thus even if learned Single Judge was hearing the matter arising out of an appeal under PP Act, 1971, a special appeal under Chapter VIII Rule 5 of the Rules of the Court is maintainable.
4. Shri R.B. Singhal has relied on a Full Bench decision of this Court in Sheet Gupta v. State of U.P. & Ors., 2010 (1) ESC 273 (All) (FB). We have gone through this judgment and find that in the said case the appeal was filed under a Control Order made under the Essential Commodities Act, 1955, which is enacted with reference to legislative powers under Entry 33 of the List-III (Concurrent List) of Schedule VII of the Constitution of India.
5. In our view the conclusion in Sheet Gupta's case (Supra) is not applicable to the present case, in as much as the appeal giving rise to the writ petition in this case arose out of the PP Act, 1971, which is enacted by Parliament with reference to entries in List I. Union List in Schedule VII of the Constitution of India.
6. Shri R.B. Singhal has also relied upon the Division Bench judgment of this Court in Special appeal No.1226 of 2013, Anil Mahajan v. Estate Officer, decided on 30.09.2013 in which it was prima facie found that where the proceedings arise under Section 5-A (2) of the PP Act, 1971, against which an appeal was preferred and same was decided by the appellate authority, the special appeal against the order of learned Single Judge hearing a writ petition is not maintainable. The Division Bench relied on the Full Bench judgment of this Court in Sheet Gupta's case.
7. We are of the view that though the Division Bench prima facie held that the special appeal is not maintainable, it did not decide the issue and proceeded to decide the special appeal on merits, and thus its opinion cannot be said to be final in the matter.
8. In this case the special appeal is maintainable in as much as the orders under challenge in the writ petition under Art.226 of the Constitution of India were passed under an Act, which is not referable to either State List or Concurrent List in Schedule VII of the Constitution of India. The objection is thus not sustainable.
9. Brief facts giving rise to this special appeal are that a notice was given to the appellant, the petitioner in the writ petition by the Estate Officer, Cantonment Board, Meerut under Section 5-A (2) of the PP Act, 1971, to remove mobile tower installed by the petitioner on the top floor of the Bungalow No.177/Part, Rangsaaz Mohalla, Chappeal Street, Sadar, Meerut Cantt. The contents of the notice are as follows:-
"The site comprising GLR Survey No.357/1744 classified as B-3 land admeasuring 1.036 Acre Sqft. Described as Bungalow No.177 to 177/A to 177/1 Chappeal Street, Meerut Cantt. The Holder of occupancy rights are in the name of Shri Balwant Rai Shastri adopted son of Shri Jia Lal on old Grant terms. The land is owned by the Govt. of its Chief Executive Officer and defined as Public Premises. The Cantonment Executive Engineer has reported that you have installed MOBILE TOWER unauthorisedly on the top floor of Bungalow No.177/Part, Rangsaaz Mohalla, (Chappel Street)) Sadar, Meerut Cantt. without any prior permission from the competent authority.
Now therefore, in pursuance of sub-section (2) of Section 5-A of the Act, I hereby call upon you to remove the said building/structure/fixture erected, goods displayed/spread, cattle/animal brought on the public premises mentioned in the scheduled below on or before 16/01/2012 at 4.00 P.M. to show why this should not be removed on or before the above mentioned date. In the event of your refusal or failure to comply with the notice within the period specified above, the said goods/animal/cattle/work etc. shall be removed by the Estate Officer or the Officer authorised by him and the cost of such removal shall be recovered from you as arrears of land."
10. The petitioner filed his reply on 16th January, 2012, stating that the premises are not covered by the definition of 'public premises' to invoke Section 5A of the Act. The fixation of tower is not covered under any of the items contained in Section 5-A (2) of the Act as it is a temporary structure and is removable. He further stated that in the objections that the installation of tower does not require sanction from the competent authority, and that the premises were not given on old grant basis.
11. The Estate Officer by order dated 6th March, 2012 directed the petitioner to remove the structure and also directed payment of Rs.10,000/- as costs. He decided the three issues framed by him as follows:-
"While deciding Issue no.(i), the Estate Officer came to the conclusion that the Government of India was the landlord and the Act was applicable. The Estate Officer while deciding Issue no.(ii) held that no private mobile communication tower could be fixed on any private building without a license or the sanction of the competent authority. The Estate Officer while deciding Issue no.(iii) held that installation of mobile communication tower on the private building was illegal. Accordingly, a direction for removal of the structure from the premises was issued by the Estate Officer."
12. The appeal against the order of Estate Officer was dismissed against which the writ petition was filed.
13. In the writ petition learned Single Judge relied upon the communication dated 12th September, 2008 sent by the Under Secretary to the Government of India regarding installation of shared communication towers and which provided for safety measures for erection of the tower on the defence land, which is considered for allotment on lease hold basis to the licensees from the Department of Telecommunication, to the Independent Infrastructure Providers (IP-1) to built, operate and maintain various services such as unified excess service, basic service and cellular mobile service etc., which may be considered for allotment of defence land on lease hold basis to lay the optical fiber cable and set up/ construct shared communication tower on defence land at Military Stations/ Cantonment.
14. The communication dated 12th September, 2008 lays down several terms and conditions for safety and security of the structures and which read as follows:-
"1. I am directed to say that the issue of provision of Defence land for improving the communication infrastructure in the country has been under consideration of the Government with a view to improve the coverage and quality of the communication services in the Cantonments/Military Stations. It has now been decided that the public sector and Independent Infrastructure Providers (IP-1), who have been granted license by the Department of Telecommunications (DoT) to build, operate & maintain various services, such as Unified Access Services, Basic Services & Cellular Mobile Services, etc. may be considered for allotment of Defence land on leasehold basis, to lay the Optical Fibre Cables and set up/construct shared communications towers on Defence land at Military Stations/Cantonments, on the following terms and conditions:
i) The land may be allotted on lease hold basis to Public Sector and Independent Infrastructure Providers (IP-1), who have been granted license by the DoT to build, operate & maintain various services, such as Unified Access Services, Basic Services & Cellular Mobile Services, etc., to lay Optical Fibre Cables and set up/construct shared communications towers on Defence land at Military Stations/Cantonments at the commercial lease rent i.e. four times the residential rent, based on the current STR/market rate of the area with one time premium at 10 times the annual rent.
ii) The land to be leased for setting up/ construction of Shared Communication Towers in each case should be the minimum required but should not exceed 30 meters x 10 meters i.e. 300 square meters apart from the minimum land required for laying of Optical Fibre Cables, wherever required.
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vi) The authority competent to grant the lease of land to communication operators would be Ministry of Defence or the authority to whom such powers may be delegated by Ministry of Defence from time to time but it should not be below the rank of GOC-in-C of the Command and its equivalent in other Services.
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viii) Ministry of Defence reserves the right to terminate the lease due to operational or security reasons for which no compensations will be due to the operator.
2. The following security aspects will be strictly adhered to by the Public Sector and Independent Infrastructure Providers (IO-1) Communication Network Operators and an undertaking in this regard will be given by such Communication Network Operators:-
i) Use of defence land by the Service Provider will not, in any manner, impinge upon the security of the Defence Area.
ii) If at any stage, the operational situation so demands, services provided by these operators may be blocked in an emergency on instructions from respective Command Headquarters for which no compensation shall be due to the operator.
iii) Adequate measures will be adopted to ensure security of vital installations in Defence Area by monitoring activities of such Public Sectors and Independent Infrastructure Providers (PI-1) Communications Network Operators personnel from time to time.
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(xi) Service Providers and the employees of thee services providers will be abide by all security instructions of the Defence Stations/Cantonments.
xv) Sketch/Map of the towers indicating locations should be provided to Defence Authority for routine security checks.
3. The following technical aspects will be strictly adhered to by the Public Sector and Independent Infrastructure Providers (IP-1).
i) Services Providers will obtain frequency clearance from standing Advisory Committee for Frequency Allocation (SACFA) and coordinate Frequency in use with local Signal Authority.
ii) Service Providers should obtain SACFA clearance as per the laid down procedure, for a particular latitude and longitude. They will not be permitted to move their antenna towers as per their convenience. In case they need to shift the site of the antenna tower, they will need obtain fresh SACFA clearance for the new location with the exact latitude and longitude.
iii) In case the communication tower/facilities so installed by the Service Provider causes and interference/obstructions to the Army/Air Force/Navy/Coast Guard communications, the Service Provider may be asked to discontinue his services, for which no compensation will be due to the Service Provider.
iv) Service Providers will also obtain "No Objection Certificate" from Civil Aviation and Air Force Authorities regarding the installation of the Cellular Towers in their vicinity and abide by all their stipulations as necessary.
v) Proper earthing of the installation will be ensured by the Service Provider.
vi) Proper lighting protection and fire devices will be installed by the Service Providers.
4. Before commencing the execution of the project, proper Memorandum Understanding (MOU) between local Military Authority/Local Defence Authority and the authorised official of the Service Providing Agency for which the land is given on lease, will be signed and a copy of the same will be forwarded to the respective Service Hqrs and Deputy Inspector General of Police Signals. However, that Communication Network Operator will take similar undertakings from other Network Operators, who will share the infrastructure, on the points contained in the MOU, a copy of which will be forwarded by that Network Operator to the respective Services i.e. Local Military Authority/Local Defence Authority, who in turn will forward copies thereof to respective Service Hqrs and Deputy Inspector General of Police Signals."
15. Learned Single Judge held that the Ministry of Defence or the authority to whom such powers have been delegated by the communication, not below the rank of GOC-in-C of the Central Command is competent authority to grant lease of land to communication operators. He found that in the present case the petitioner without seeking any permission from the competent authority permitted the installation of the mobile tower on the roof of his bungalow situated in the Cantonment area for which he was receiving Rs.40,000/- as rent per month from the service provider.
16. Learned Single Judge held that mobile tower could be installed only in accordance with the terms and conditions set out in the communication dated 12th September, 2008. The writ petition was dismissed with observations that the petitioner is not entitled to permission to seek approval from the competent authority. The request for opportunity to be given to him to seek permission was not accepted.
17. Shri K.K. Arora, learned counsel for the appellant submits that Section 5A of the PP Act of 1971, is not applicable in the case in as much as the petitioner has raised building on the leased land from his own funds. The mobile tower structure has been placed on the top of the house, which has been constructed by him. The tower is not a roofed structure and thus the definition of the building under the Cantonment Act which includes only roof structures is not applicable to the structure. The appellant is thus not required to take any permission for raising structure of mobile tower on his roof top.
18. It is further submitted by Shri K.K. Arora that the structure is temporary in nature, which is flexible and foldable and that since Section 5-A of the PP Act, 1971, is not applicable the notice was given without jurisdiction. He also submits that the communication dated 12th September, 2008 is not applicable to him in as much as the said communication provides for allotment and leasing out the land with certain conditions by the competent authority namely GOC-in-C in whose jurisdiction the Cantonment Area falls. The petitioner has raised a structure on his own building, which cannot be treated as public premises for attracting the provisions of the PP Act, 1971. He relies upon the judgment in Express Newspapers Pvt. Ltd. & Ors. v. Union of India & Ors., AIR 1986 SC 872 in which it was held that the constructions raised on defence land are not public premises.
19. Shri R.B. Singhal on the other hand states that Section 5-A of the PP Act, 1971 is applicable to the present case. He submits that structure has been raised in contravention to Section 244 of the Cantonment Act, 2006, which provides as follows:-
"244. Restrictions on use of buildings.-
(1) No person shall, without the written permission of the Board or otherwise than in conformity with the conditions, if any, of such permission,-
(a) use or permit to be used for human habitation any part of a building not originally erected or authorised to be used for that purpose or not used for that purpose before any alteration has been made therein by any work executed in accordance with the provisions of this Act and the bye- laws made thereunder;
(b) change or allow the change of the use of any land or building;
(c) convert or allow the conversion of one kind of tenement into another kind.
(2) Any person who contravenes the provisions of sub- section (1) shall on conviction be punishable with a fine which may extend to one lakh rupees and in the case of continuing contravention with an additional fine of rupees ten thousand for every day during which the contravention continues after the date it comes to the notice."
20. Shri R.B. Singhal submits that the raising of the mobile tower on the roof of building, which has been constructed on the defence land, and which has been let out by the owner of the land to the service provider is also in violation of Section 5-A of the PP Act, 1971. It was open to the Estate Officer to take steps either for violation of Section 244 by initiating prosecution, or to proceed under Section 5-A of the Act to remove the structure. Once the Estate Officer has exercised the option, no objection can be taken as to whether he can proceed under Section 244 of the Cantonment Act, 2006 or Section 5-A of the PP Act, 1971.
21. Section 5-A of the PP Act, 1971 reads as follows:-
"5A. Power to remove unauthorised constructions, etc. (1) No person shall--
(a) erect or place or raise any building or 2[ any movable or immovable structure or fixture]
(b) display or spread any goods,
(c) bring or keep any cattle or other animal, on, or against, or in front of, any public premises except in accordance with the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy such premises.
(2) Where any building or other immovable structure or fixture has been erected, placed or raised on any public premises in contravention of the provisions of sub- section (1), the estate officer may serve upon the person erecting such building or other structure or fixture, a notice requiring him either to remove, or to show cause why he shall not remove such building or other structure or fixture from the public premises within such period, not being less than seven days, as he may specify in the notice; and on the omission or refusal of such person either to show cause, or to remove such building or other structure or fixture from the public premises, or where the cause shown is not, in the opinion of the estate officer, sufficient, the estate officer may, by order, remove or cause to be removed the building or other structure or fixture from the public premises and recover the cost of such removal from the person aforesaid as an arrear of land revenue.
(3) Where any movable structure or fixture has been erected, placed or raised, or any goods have been displayed or spread, or any cattle or other animal has been brought or kept, on any public premises, in contravention of the provisions of sub- section (1) by any person, the estate officer may, by order, remove or cause to be removed without notice, such structure, fixture, goods, cattle or other animal, as the case may be, from the public premises and recover the cost of such removal from such person as an arrear of land revenue.]"
22. We have gone through the provisions of Section 5-A of the PP Act of 1971, and find that structure of mobile tower erected on the roof top of the building, even if the building has been constructed by a lessee of the defence land would clearly violate the provisions of Section 5-A as there is clear prohibition for any person to erect or place or raise any building or any movable or immovable structure or fixtures on such building. The words 'any movable or immovable structure or fixtures' were substituted by the Act No.35 of 1984 w.e.f. 13.11.1984.
23. We do not find any substance in the argument of Shri K.K. Arora that the building constructed on the defence land would not fall within the definition of 'public premises', and that thus no order can be passed to remove such structure or fixture. The public premises is defined under Section 2 (e), which was substituted by Act No.61 of 1980 w.e.f. 20.12.1980, much after the date, when the notice was given in Express Newspaper Pvt. Limited case. The definition of 'public premises' after the amendment by the Act No.61 of 1980 reads as follows:-
"2 (e) " public premises" means--
(1) any premises belonging to, or taken on lease or requisitioned by, or on behalf of, the Central Government, and includes any such premises which have been placed by that Government, whether before or after the commencement of the Public Premises (Eviction of Unauthorised Occupants) Amendment Act, 1980 (61 of 1981 ), under the control of the Secretariat of either House of Parliament for providing residential accommodation to any member of the staff of that Secretariat;
(2) any premises belonging to, or taken on lease by, or on behalf of.--
(i) any company as defined in section 3 of the Companies Act. 1956 (1 of 1956 ), in which not less than fifty- one per cent. of the paid- up share capital is held by the Central Government or any company which is a subsidiary (within the meaning of that Act) of the first- mentioned company,
(ii) any corporation (not being a company as defined in section 3 of the Companies Act, 1956 (1 of 1956 ), or a local authority) established by or under a Central Act and owned or controlled by the Central Government,
(iii) any University established or incorporated by any Central Act,
(iv) any Institute incorporated by the Institutes of Technology Act, 1961 (59 of 1961 ),
(v) any Board of Trustees constituted under the Major Port Trusts Act, 1963 (38 of 1963 ),
(vi) the Bhakra Management Board constituted under section 79 of the Punjab Reorganisation Act, 1966 (31 of 1966 ), and that Board as and when re- named as the Bhakra- Beas Management Board under sub- section (6) of section 80 of that Act;
(vii) [ any State Government or the Government of any Union territory situated in the National Capital Territory of Delhi or in any other Union territory,
(viii) any Cantonment Board constituted under the Cantonments Act, 1924 (2 of 1924 ) and;] (3) in relation to the [ National Capital Territory of Delhi],--
(i) any premises belonging to the Municipal Corporation of Delhi, or any municipal committee or notified area committee,
(ii) any premises belonging to the Delhi Development Authority, whether such premises are in the possession of, or leased out by, the said Authority;][ and]
(iii) any premises belonging to, or taken on lease or requisitioned by, or on behalf of any State Government or the Government of any Union territory.]"
24. It is not denied that the land classified as B-3 land in GLR Survey No.357/1744 in the present case has been leased out to the petitioner by the Central Government on which he has constructed the building and that the petitioner was not authorised to make any alterations or constructions on the building unless he had taken permission under the Cantonment Act, 2006.
25. We are not concerned with the permission taken for erecting the building, as the notice did not require the petitioner to remove the building. The petitioner was required to remove the unauthorised movable structure and fixture of Mobile Tower, which has been erected on the building of which the land and building is included within the definition of 'public premises' under Section 2 (e) (viii) of the PP Act, 1971, and which clearly comes within the exercise of powers of the Estate Officer under Section 5-A of the P.P. Act, 1971.
26. It was not necessary that the entire premises including the land and building should be public premises to attract the provisions of Section 5-A of the Act. Even if any structure has been raised, which is either movable or immovable, on any building constructed on the land given on lease by the Central Government, without the permission of the Competent Authority, the provisions of Section 5-A of the PP Act, 1971 are attracted. We are further of the view that whenever any permission is sought for raising any communication infrastructure over the land let out to a person in the Cantonment Area by the competent authority of the Central Government or where he proposes to construct a tower on the building constructed by it on such land the terms and conditions laid down in the communication dated 12th September, 2008 would be applicable.
27. We have closely examined the terms and conditions in the communication dated 12th September, 2008 and find that all the terms and conditions are for the purposes of safety and security of the property and the persons living in the building and the life and property of the neighbours and those who dwell or move in the vicinity.
28. It is not denied that the petitioner has raised a structure of mobile tower on the roof top, for which he has not taken any permission. These structures on the roof top of the building by the nature of the constructions are potentially dangerous and requires precautions to be taken for the safety of the building or the life and property of the persons living in the vicinity or the persons passing by the side of the property. The petitioner has not obtained permission for raising such constructions from the competent authority under the Cantonment Act, 2006.
29. For the aforesaid reasons, we do not find any good reason to interfere in the order passed by learned Single Judge, though we have given separate reasons for arriving at same conclusion.
30. The special appeal is dismissed.
Order Date :- 23.4.2014 SP/