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Judgment
Aloke Chakrabarti, J.—The order dated 2861999 passed by the appellate authority and the order dated 27101998 passed by the Cantonment Executive Officer for removing the antenna tower set up by the petitioner are challenged here.
Counteraffidavit and supplementary counteraffidavits have been filed and the petitioner filed rejoinderaffidavit.
Heard Mr. Sunil Ambwani, learned Counsel for the petitioner, Mr. Mohammad Isa Khan, learned Counsel appearing for the respondent No. 1 and Mr. Vivek Chaudhary, learned counsel appearing for respondent No. 2.
Learned counsel for the petitioner contends that for setting up the antenna tower the petitioner approached the respondent No. 2 and its authorities and when the communication came about no requirement of permission, antenna tower was set up on the rooftop of the concerned building for providing effective mobile telephone service. Said installation was made in the year 1996. The Cantonment Board on 2491998 resolved taking action under Section 126 of the Cantonment Act and notice dated 27101998 was issued accordingly to remove the antenna lower.
Learned counsel for the petitioner contended that there is no legal requirement of any permission for setting up such antenna tower on a rooftop of a building. The impugned notice has been issued upon a resolution which was taken without giving the petitioner any opportunity or notice. Reference has been made to Section 126 of the Cantonment Act for contending that the preconditions of the said provision are not existing for directing the petitioner to remove the structure and its viability has not at all been considered either with or without any further measures.
Mr. Vivek Chaudhary, learned counsel appearing for the respondent No. 2 contended that petitioner has made out a case of no requirement of permission but the documents disclosed along with the counteraffidavit show that the petitioner obtained the no objection on a request with regard to aluminium structure and with regard to steel structure of the antenna tower request was rejected by the respondents. It has further been contended that Section 126 clearly provides power to the authorities relating to building and such building includes the antenna tower set up on it roof top. It has further been contended that security of the life of the people as also of the structure has been considered by the technical persons as appears from Annexures 3 and 4 to the counteraffidavit and, therefore, this writ petition should be dismissed.
Learned counsel for the respondent No. 1 adopted the contentions of the respondent No. 2.
After considering the respective contentions and materials on record I find that with regard to setting up of the antenna tower, the petitioner has claimed that there was a no objection certificate issued for its setting up. The respondents contended that the letter indicating requirement of no such certificate, was with regard to another structure which was lighter than the one set up actually. Considering the materials available I do not find that the same clearly indicate that requirement of no such certificate was expressed in respect of the present structure.
The next contention of the petitioner is that the impugned notice was issued under Section 126 of the Cantonment Act and the said section provides of a requirement considering also the aspect of repairing or to protect or to enclose the structure in such manner as the Board thinks necessary.
The petitioner contends that the structure is standing there for a long period and while issuing the impugned notice the aforesaid aspect has not been considered. The appellate order also has not taken the aforesaid aspect into consideration.
Looking into the legal provisions it appears that the law required the Board to consider the matter and to take a decision. Various situations have been governed by the said section which may require the removal or for taking steps to repair or to protect the structure depending upon the circumstances. Materials disclosed do not indicate that the said aspects have been considered. At the time of hearing records were directed to be produced. Although records were produced, but nothing was available showing that such various situations have been considered. Even the inspection report does not disclose any basis justifying formation of opinion as regards extent of danger though impugned notice was issued and that too without even considering the probability of improvement by repairing or protecting or enclosing the structure as contemplated in Section 126.
In view of the aforesaid finding. the writ petition succeeds and is allowed. The impugned order dated 27101998 at Annexure3 and the appellate order dated 2861999 at Annexure7 to the writ petition are hereby quashed. The respondents are at liberty to consider the matter and take appropriate steps in accordance with law and in terms of the observations made hereinabove after giving the petitioner an opportunity. Petition allowed.