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Judgment
This petition under Article 226 of the Constitution of India has been filed seeking the following relief:-
"Hence it is humble prayed that the petition may kindly be allowed and that order Annexure P-1 may kindly be quashed. Any other relief which this Hon'ble Court deem fit may also be granted in the facts and circumstances of the case."
It is the case of the petitioner that the petitioner is a company registered under the Companies Act having its registered office in Mohali (Punjab). It is submitted that as per Rule 4 of M.P. Nagar Palika (Installation of Temporary Tower/Structure for Cellular Mobile Phone Service) Rules, 2012, the Chief Municipal Officer Municipal Council is the competent authority to grant permission for installation of Mobile Towers. Accordingly, the petitioner applied for permission to establish tower on the leased property with the consent of the owner, which was allowed by the competent authority and the Chief Municipal Officer granted permission dated 23/05/2020 (Annexure P/8) for establishing the tower.
It is further submitted that the work for installation of the tower had commenced and it is on the verge of completion.
Thereafter, it appears that on 29/07/2020 the president of Child Protection Commission requested the SDM to cancel the permission and accordingly, a note-sheet dated 29/07/2020 in this regard was recorded and under the pressure of Superior Authorities, the permission has been canceled by order dated 29/05/2020 (Annexure P/1). It is submitted that it is clear from the permission dated 23/05/2020 that the permission to install the Mobile Tower was issued under Rule 17(6)(D) and 62 of M.P. Bhumi Vikas Niyam, 1984 and there is no provision in the said Rule for the cancellation of the permission. It is further that even if it is presumed that the permission has been granted under the provisions of Section 187 of M.P. Municipalities Act, then in view of Section 187(4) of the M.P. Municipalities Act, the permission cannot be cancelled after the commencement of the construction. It is further submitted that it is incorrect to say that the Mobile Tower would cause any radiation. Further the impugned order has not been passed by the competent authority after due application of mind but it has been passed under the pressure of Senior Officers and, therefore, the impugned order dated 29/07/2020 is bad in law.
To buttress his contentions, the counsel for the petitioner has relied upon the judgment passed by the Co-ordinate Bench of this Court in the case of Makhano Kori Vs. State of M.P. & Ors. reported in 2011 (1) MPLJ 663. It is further submitted that the Co-ordinate Bench of this Court in the case of Adarsh Thok Fal Sabji Vikreta Vyapari Sangh & Anr. Vs. State of M.P. & Ors. reported in (2010) 1 MPLJ 388 has held that once the work of construction has commenced, then it cannot be cancelled under Section 299 of M.P. Municipal Corporation Act. It is submitted that the provisions of Section 299 and 299-A of M.P. Municipal Corporation Act are in para-materia with the Section 187 of M.P. Municipalities Act. It is further submitted that so far as the question of radiation from the Mobile Towers is concerned, the High Court of Kerala had an occasion to consider as to whether the Mobile Tower causes any radiation resulting in health hazards to people nearby or not ? The Division Bench of Kerala High Court by judgment passed in the case of Reliance Infocom Ltd. vs Chemanchery Grama Panchayat & Ors. reported in AIR (2007) Kerala 33 has held that it is clear from the report submitted before the Bombay High Court with regard to the radiation and found that use of mobile phone, AM Radio, FM Radio etc. is more harmful to the human beings compared to the power emission from the base Transcieving Stations and that of Mobile Towers. Therefore, it is submitted that it is incorrect to say that the Mobile Tower, which has not become operational so far, would cause any radiation, which can be said to be dangerous for the human beings.
It is further submitted that this Court by order dated 20/06/2017 passed in the case of Sitaram Vs. State of M.P. in W.P.No.8681/2012 Gwalior Bench has also held that after the commencement of the work, the permission cannot be withdrawn.
Heard the learned counsel for the petitioner.
So far as the provision of Section 187 of Municipalities Act is concerned, the same is not applicable because the petitioner is not constructing any new Building but is merely installing a Mobile Tower even otherwise as per Section 221 of M.P. Municipalities Act, anything affixed on any building which is found to be dangerous can be directed to be removed.
Further, Clause 12 of the permission dated 23/05/2020 provides that in case of any dispute, the permission shall automatically stand cancelled. In the present case, the petitioner has filed the copy of note-sheet to indicate that the President of Child Welfare Commission (most probably it might be CWC) had raised a dispute with regard to the safety of the children.
Under these circumstances, the CMO was well within his right to pass an order cancelling the permission in the light of Clause 12 of the permission dated 23/05/2020. The children are the future of the country and if their childhood is at stake because of radiation from the Mobile Towers, then the respondent is well within its rights to cancel the permission. Further, the petitioner can always install a Mobile Tower at a secured place.
Accordingly, it is directed that in case, if the petitioner after removing the construction, which has already been carried out by him files a fresh application for grant of permission to install a tower away from the residential area at a secured piece of land, then the same shall be considered by the competent authority.
With the aforesaid observation, the petition fails and is hereby dismissed.
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