Hon'ble Attau Rahman Masoodi,J.
The petitioner in the first writ petition is the respondent no.8 in the second writ petition on whose behalf learned counsel Smt Nikita Misra has filed her power.
The writ petition no. 11796 (M/B) of 2015 was filed complaining of setting up of a Mobile Tower in the premises provided by the respondent no.9 by respondent no.8. We had passed the order dated 11.01.2016 calling upon the learned counsel for the Union of India as well as the other learned counsel to inform us about the correct position of law.
After having heard the second writ petition, which has been filed by Sri Abhishek Singh and Sri Hansraj Singh, contending that the Lucknow Development Authority has illegally proceeded to seal the premises on issuance of a notice under Section 28-A of the Uttar Pradesh Urban Planning and Development Act, 1973. We had also called upon the learned counsel to bring on record any other material which may be necessary for the purpose of proceeding with both these cases relating to the installation of Mobile Tower.
Learned counsel for the Union of India has invited the attention of the Court to the two notifications by the Ministry of Communication (Department of Telecommunication and IT) dated 04.11.2004 and 14.03.2007 to urge that in order to execute Vigilance Information and Monitoring Functions of Installation and Functioning of Mobile Towers, a Vigilance Telecommunication Monitory Cell has been established by the Department at various places throughout the country and for Western U.P., such a Monitoring Cell has been established at Merrut and for U.P. East at Lucknow. The said cells have been set up for carrying out various functions including the monitoring of installation and functioning of such towers and its co-ordination which also includes grievances of subscribers and performance of such other functions as may be entrusted to the said Cell from time to time.
The same also includes co-ordination about the conditions to be followed by the companies and the service providers in terms of the licence.
In the present matter, the petitioner Smt. Vibha Pandey has come up before this Court complaining that the installation of the tower is in violation of norms and is also hazardous on being installed in a residential area.
The petitioner has brought on record the Installation Control and Regulation of Tower Bye-laws said to have been framed by the Lucknow Nagar Nigam which require that no such Tower can be installed without prior permission of the Municipal Commissioner. The said bye-laws have been filed as Annexure No.3 to the Writ Petition No.11796(M/B) of 2015.
Apart from this, the said petitioner has also brought on record, the Development Authority Building Construction and Development Bye-laws 2008 where a permission is also required from the Local Development Authority in this regard.
The service provider has also brought on record the Government Order dated 10.12.1999 to contend that as per the terms of the said Government Order a sum of Rs.5000/- as fee to the Development Authority has been deposited. According to the said deposit, the petitioner claims that the terms and conditions relating to the rules framed by the Development Authority have been complied with.
There is however nothing on record to indicate that any prior permission was obtained from the Nagar Nigam as per the bye-laws referred to hereinabove.
The issue is as to the level of control to be exercised by the different authorities, keeping in view the fact that a Mobile Tower is being installed under a licence from the department of Tele Communications, Government of India which is exclusively a subject under the Union List. Consequently the terms and conditions of installation of Mobile Towers have to be primarily governed under the provisions of law made by the Central Government