AIRCEL DIGILINK INDIA LTD Vs. NAGAR NIGAM ALLAHABAD

JUDGEMENT

(1.) The petitioner is a company registered under Companies Act, 1956 having its branch office at shop Nos. 2 and 3, Meena Bazar, 10 Sardar Patel Marg, Civil Lines, Allahabad. The Government of India has granted a licence on 28.12.1995 under the provisions of Section 4 of the Indian Telegraph Act. 1885 and the Wireless Telegraphy Act, 1933. Under the terms and conditions of the licence, the petitioner, inter alia, erected towers/posts at different sites, one such tower was erected on the roof of the building of Sri Sushil Purwar situated in Mohalla, Rani Mandi, Allahabad. The Mukhya Nagar Adhikari (M.N.A.) exercising powers under Section 331 of Uttar Pradesh Municipal Corporation Adhiniyam, 1959 (hereinafter referred to as the "Adhiniyam. 1959') served a notice dated 3.7.1999 that on the inspection by the Officers of the department, it was found that the building is about 60-70 years old, on the roof of this building a 60 feet high S. R. Mobile Phone tower has been erected, the building situated in the mid of densely inhabited area is in a ruinous condition, and the tower may fall and may cause loss of life and property of the people of the locality. Besides that, a school building is also situated near the tower. Therefore, he required him to remove the tower from the roof of his building lest legal action shall be taken against him. The copies of this notice were also sent to the Additional Commissioner (Administration). Allahabad in reference to his letter dated 20.5.1999. the District Magistrate, S. P. City and S.H.O. P. S. Atarsuiya.

(2.) In continuation of the above notice, the A.D.M. City wrote a letter to Sri Mohit Verma, Branch Manager of the petitioner impressing upon him to ensure compliance of the notice otherwise legal steps would be taken for removal of the tower from the building. Neither the petitioner nor the owner of the building submitted reply to the notice Issued by M.N.A. However, the petitioner has submitted a reply (contained in Annexure-3 to the petition) to the notice served by the A.D.M. City demonstrating that the Resign of the construction of the structure was carried out by a team of skilled Civil Engineers of the company who hold more than 10 years' experience in this field and have built more than 200 such structures varying from 5 mtrs. to 80 mtrs. height in the State of U. P.. Delhi, Rajasthan, Haryana and Punjab. He asserted that utmost care was taken into consideration while constructing the said structure and is fully safe for the said building and surrounding areas. The authorities since have not withdrawn the notice, hence by means of this petition, the petitioner seeks : (a) a writ, order or direction in the nature of prohibition prohibiting the respondents to continue with the proceedings under Section 331 of the Adhlniyam. (b) a writ, order or direction in the nature of certiorari quashing the order dated 3.7.1999 (contained in Annexure-2 to the petition) and the order dated 7.7.1999 (contained in Annexure-3 to the petition).

(3.) We have heard Sri Rishi Chadha, learned counsel appearing for the petitioner, learned counsel of Nagar Nigam, Allahabad and learned Standing Counsel of the State of U. P. at considerable length.