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2012 Supreme(Guj) 130
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
V. M. SAHAI, A.J. DESAI
BHARTI INFRATEL LTD, THROUGH CONSTITUTED ATTORNEY, RAJU
Versus
SURAT MUNICIPAL CORPORATION & ANR
LETTERS PATENT APPEAL No. 1785 of 2011In SPECIAL CIVIL APPLICATION No. 2430 of 2011To LETTERS PATENT APPEAL No. 1872 of 2011In SPECIAL CIVIL APPLICATION No. 2763 of 2011With CIVIL APPLICATION No. 12002 of 2011In LETTERS PATENT APPEAL No. 1785 of 2011
Decided on : 07/03/2012
MR. SHALIN N. MEHTA ASSISTED BY MS. VIDHI J. BHATT for Appellant
MR. PRASHANT G. DESAI, SENIOR COUNSEL ASSISTED BY MR. KAUSHAL D PANDYA for Respondent No. 1
MR. N.J. SHAH AGP for Respondent No. 2
Headnote:
Companies Act, 1956 - Telegraph Act, 1885 - Sections 10, 11, 12, 4 and 19B - Constitution of India, 1950 - Article 226 - No Objection Certificate - Challenged judgment and order passed by Single Judge dismissing its petitions, by which appellant/petitioner had challenged action of Surat Municipal Corporation demanding documents by its letter to obtain No Objection Certificate to construct telecommunication towers at different places - Held, It is also clarified that in the case of No Objection Certificate issued by the respondent No.1-Surat Municipal Corporation to raise telecommunication towers on a building, which was constructed without obtaining necessary permission from the Corporation as required under the provisions of BPMC Act, such builders/occupants of such buildings, shall not claim any right that since No Objection Certificate has been issued to the appellant company to raise the telecommunication tower, it tantamounts to regularising the construction of the building - It is further clarified that if the respondent Corporation finds that a building is constructed in violation of any provisions of the BPMC Act and is having a telecommunication tower with NOC granted under Clause 20.11 of the GDCR, then it is open for the Corporation to take appropriate legal steps in accordance with law and the appellant company shall not raise any objections in that case - Judgment and order passed by the learned Single Judge in Special Civil Application and other cognate matters, liable to quashed and set aside - Appeals allowed
A.J. DESAI
1. The appellant - original petitioner M/s Bharti Infratel Limited which is a public limited company incorporated under the Companies Act, 1956 is established to operate Cellular Telephone Services under the licence which has been granted under the provisions of the Indian Telegraph Act, 1885, has challenged the judgment and order dated 14.10.2011 passed by the learned Single Judge in above referred writ petitions dismissing it’s petitions, by which the appellant/petitioner had challenged the action of Surat Municipal Corporation demanding the documents by its letter dated 23.12.2010 to obtain No Objection Certificate to construct the telecommunication towers at different places.
2. The short facts arising in these appeals are as under:
The appellant – petitioner Bharti Infratel Limited, is a public limited company incorporated under the Companies Act, 1956 on 13.11.2006 and the registered office of the company is in New Delhi. The company commenced its business on 10.4.2007.
In and around 1995, the Government of India, pursuant to the new Telecom policy, decided to allow private operators to provide basic and cellular telecommunication and paging services in India which would put the country on the global telecommunication map. The Government of India issued circulars to various authorities requiring them to extend all possible help to the private telecom service operators.
To operate cellular telecom services, a licence under the provisions of the Indian Telegraph Act, 1885 is necessary. Government of India, Ministry of Communications and IT, Department of Telecommunication, had issued a registration certificate on 25.1.2007 registering the appellant-petitioner as infrastructure provider to establish and maintain assets like Dark Fibres, Right of Way, Duct and Tower to be granted on lease, rent, sale basis to the licensees of telecom services under Section-4 of the Indian Telegraph Act, 1885. For providing cellular telephone service, the equipments comprise of a cell site or a cellular mobile transmission tower contain a pre-fabricated shelter made of insulating PUF material made on fibres; electronic panel; base Transceiver Station (BTS) and other ratio transmission and reception equipment; a diesel generator set; six pieces of 6 to 9 meters length each made of hollow steel galvanized pipes and steel fabricated tower.
By a Notification dated 24.5.1999, the Government of India in exercise of powers vested in it under Section 19-B of the Indian Telegraph Act, 1885, conferred upon all the licensee/ Private basic telephone service operators the powers under Section -4 of the said Act. By another Notification dated 7.2.2002, the term `private basic telephone service operators' was widened to include the `cellular telephone service operators”. In view of the power granted to them by the Central Government, the appellant– petitioner is deemed to be a `telegraph authority' within the meaning of Section-4 of the said Act.
Under Sections 10 and 11 of the Indian Telegraph Act, 1835, a telegraph authority is vested with certain powers including the power to place and maintain the telegraph lines under, over, along or across and posts in or upon any immovable property and to enter on property in order to repaid or remove such telegraph lines, etc. upon payment of compensation to the aggrieved party owners. The Sections 10 and 11 of the Indian Telegraph Act, 1885 reads as under:
“10. Power for telegraph authority to place and maintain telegraph lines and posts. The telegraph authority may, from time to time, place and maintain a telegraph line under, over, along or across and posts in or upon, any immovable property; Provided that (a) the telegraph authority shall not exercise the powers conferred by this section except for the purposes of a telegraph established or maintained by the Central Government, or to be so established or maintained.
(b) the Central Government shall not acquire any right other than that of user only
