# Amarjit Samuel Datt v. U.O.I. & Ors

- **Citation:** (2021) 2 ILRA 122
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-06
- **Case number:** P.I.L. Civil No. 24271 of 2020
- **Bench:** Ritu Raj Awasthi, Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amarjit-samuel-datt-v-u-o-i-ors-46723
- **Pages:** 10

## Headnote

A. Constitution of India,1950-Article 226application-installation of mobile tower
2 All. Amarjit Samuel Datt Vs. U.O.I. & Ors.
123
and 4G Base Transmitting Station at the
adjacent plot of the residence of the
petitioner-the issues raised in the writ
petition are by and large the same as have
been framed by the court while deciding
the case of Smt. Asha Mishra-the petition
is dismissed in terms of the judgment of
Smt. Asha Mishra.(Para 3 to 11)

B. Studies undertaken both in India as
well as by other international organization
have
unanimously
opined
that
the
emissions from these equipments are
minuscule and do not warrant the anxiety
or fear which is sought to be generated by
this petition.(Para 8, 9)

The petition is dismissed. (E-5)

List of Case cited:-

Smt. Asha Mishra Vs St. of U.P. & ors. (2017) 1
UPLBEC 261.

## Text

122 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned does not know that he is under
surveillance. It is an important power of
police with a view to keep both criminals
and crimes at bay. Once the identity of a
person under surveillance is made known
to public not only the purpose of
surveillance stands frustrated, but the State
and its officers also become vicariously
liable for infringing the dignity of an
individual. U.P. Police Regulations may not
be having statutory support as they are only
guidelines for efficient working of the
police, but when Rule 250 provides that
history-sheets are confidential records and
the
Station
Officer
must
see
that
unauthorized persons do not have access to
them then how can the police be permitted
to violate its own rules under the garb of
controlling crime by naming and shaming
persons?

17. Prof. James Witman of Yale Law
School has described shaming as a practice
as "intuitively barbaric" when society
shows its contempt or disgust towards
individual wrongdoing by subjecting the
perpetrator
to
a
form
of
peculiar
vulnerability, which can deprive him or her
of dignity or personhood."15

Similarly, Prof. James Carey has
warned against the use of rituals of shame
for they are "dangerous moments in the life
of democracies, when the power of the
State, public opinion or both is inscribed on
the body of the targetted individuals.16

18. Human dignity has become an
inseparable part of constitutionalism and
human rights. The beauty of Article-21 is
that its protection is available to all
persons. What could be more horrifying for
our generation than to witness a psychopath
terrorist, on a shooting spree in the lanes of
Mumbai, ultimately nabbed by the police,
put on trial, provided a counsel at State
expense,
resulting
in
conviction
and
sentenced to death but still buried with
dignity. This is how our Constitutional
Courts and Constitutional morality have
extended dignity even to a dead person
irrespective of his class/ caste/ religion
without being swayed by the gravity of
offence. The Constitutional Courts are
obliged under all circumstances to uphold
the dignity of an individual.

19. I, in the ultimate analysis, am of
the view that the circular of DG (Police)
dated 6.7.2020 cannot be faulted, but the
action of its officers in disclosing the
identity of petitioners in police stations in
public gaze is absolutely unwarranted and
uncalled for as being violative of Article 21
of the Constitution.

The writ petitions are allowed.
----------
(2021)02ILR A122
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2021

BEFORE

THE HON'BLE RITU RAJ AWASTHI, J.
THE HON'BLE MANISH MATHUR, J.

P.I.L. Civil No. 24271 of 2020

Amarjit Samuel Datt ...Petitioner
Versus
U.O.I. & Ors. ...Respondents

Counsel for the Petitioner:
Abhishek Singh, Prashant Kumar

Counsel for the Respondents:
C.S.C., A.S.G.

A. Constitution of India,1950-Article 226application-installation of mobile tower
2 All. Amarjit Samuel Datt Vs. U.O.I. & Ors.
123
and 4G Base Transmitting Station at the
adjacent plot of the residence of the
petitioner-the issues raised in the writ
petition are by and large the same as have
been framed by the court while deciding
the case of Smt. Asha Mishra-the petition
is dismissed in terms of the judgment of
Smt. Asha Mishra.(Para 3 to 11)

B. Studies undertaken both in India as
well as by other international organization
have
unanimously
opined
that
the
emissions from these equipments are
minuscule and do not warrant the anxiety
or fear which is sought to be generated by
this petition.(Para 8, 9)

The petition is dismissed. (E-5)

List of Case cited:-

Smt. Asha Mishra Vs St. of U.P. & ors. (2017) 1
UPLBEC 261.

(Delivered by Hon'ble Ritu Raj Awasthi, J.
&
Hon'ble Manish Mathur, J.)

1. Heard learned counsel for the
petitioner as well as Mr. J.N. Mathur,
learned Senior Advocate assisted by Mr.
Aakash Prasad, learned counsel for the
opposite party no.7 and Mr. S.B. Pandey,
learned Assistant Solicitor General of India
assisted by Mr. Ambrish Rai, learned
Central Government Counsel for opposite
party nos. 1 to 4 and the learned Standing
Counsel for the opposite party nos. 5 and 6.

2. The writ petition has been filed
seeking the following reliefs:-

i) Issue a writ of mandamus or a
writ, order or direction in the nature of
mandamus
commanding
the
opposite
parties to remove the installation and
operation of Mobile Tower and 4G Base
Transmitting Station (BTS) by the opposite
party no.7 at the plot of the opposite party
no.8.

ii) Issue a writ of mandamus or a
writ, order or direction in the nature of
mandamus
commanding
the
opposite
parties to publish the result or conclusion
of the study on the possible impact of EMF
radiation exposure from mobile tower and
hand set on life and related initiative
conducted by opposite party no.1.

iii) Issue a writ of mandamus or a
writ, order or direction in the nature of
mandamus
commanding
the
opposite
parties
to
include
the
"Non-Ionizing
Electromagnetic Radiation" as pollutant
under Environment (Protection) Act, 1986
and insert a schedule therein detailing the
safety norms/guidelines.

iv) Any other appropriate writ
order or direction this Hon'ble Court may
deem just and necessary in the facts and
circumstances of the case may also be
passed; and

v) to allow this writ petition with
costs."

3. Learned counsel for petitioner
submits that opposite party no.7 has erected
mobile tower and 4G Base Transmitting
Station at the adjacent plot of the residence
of the petitioner. It is located in the densely
populated area and the emission of
radiation from the tower has adverse effect
on the health of the petitioner and his
family members and the people living
nearby.

4. It is also submitted that no
uniformed policy is being followed for
installation of the mobile towers and the
advisory
on
use
of
mobile
towers
considering
the
impact
on
wildlife
including birds and bees, has not been
considered as well as the questions raised
in this regard before the Parliament and the
124 INDIAN LAW REPORTS ALLAHABAD SERIES
answers
given
by
the
Ministry
of
Telecommunication has also not been
considered. It is submitted that the
petitioner had filed the instant writ petition
in the nature of Public Interest Litigation,
however subsequently the writ petition has
been treated in the Miscellaneous Bench
jurisdiction as the petitioner has come
forward showing that the petitioner himself
is aggrieved with the action of the opposite
parties
in
installation
of
4G
Base
Transmitting Station and mobile tower on
the plot adjacent to the house of the
petitioner.

5. Mr. J.N. Mathur, learned Senior
Advocate appearing for the opposite party
no.7, on the other hand, submits that the
controversy raised in the writ petition has
been considered and decided by a judgment
of Division Bench of this Court in the case
of Smt. Asha Mishra Vs. State of U.P. and
others;2017 (1) UPLBEC 261, which has
been consistently followed in subsequent
judgments and orders of this Court. He has
placed a compilation of the judgments
passed in this regard by this Court. The
compilation placed before the Court is
taken on record.

6. Learned counsel for petitioner tried
to submit that the judgment passed by this
Court in the case of Smt. Asha Mishra
(Supra) is distinguishable from the case of
the petitioner on the ground that in that
case under challenge was the installation of
mobile towers and 4G Base Transmitting
Towers being established in the entire State
of U.P. whereas in the present case the
petitioner has specifically pleaded that the
opposite party no.7 has installed mobile
tower and 4G Base Transmitting Station
adjacent to the residence and area of the
petitioner which is densely populated. It is
also submitted that the Court has not
considered the earlier orders passed by the
Division Bench of this Court on 29.1.2015
in Writ-C No. 1626 of 2015; Chhedilal Vs.
Union of India and others wherein the writ
petition was disposed of with direction that
the mobile towers shall not be established
on the land in dispute in contravention of
the guidelines issued by the Government
from time to time.

7. It is to be noted that the Division
Bench of this Court headed by the then
Hon'ble Chief Justice while deciding the
case of Smt. Asha Mishra (Supra) has
framed the issues which have fallen for
consideration. The said issues have been
noted in Paragraphs 5 of the judgment. For
convenience Paragraph 5 of the judgment is
reproduced below:-

"5. Upon a review of the material
placed before us and the submissions
advanced we find that the following broad
issues fall for our consideration:

"I. Whether the contention of the
petitioners including those related to the
deleterious effect of EMF radiation upon
human health and safety is liable to be
sustained;

II.
Whether
the
seventh
respondent is in compliance with the
statutory
and
regulatory
framework
presently in vogue;

III. Whether the Court in exercise
of its jurisdiction under Article 226 would
be justified in granting the reliefs as
sought; and

IV. Further directions if any."

8. The answer to these issues start
from Paragraphs 19 onwards. The Court
has answered each and every issue in the
judgment. Paragraphs 19, 20, 21, 22, 23,
24, 25, 26, 27, 28, 29, 30, 31 and 32 of the
said judgment are reproduced below:-
2 All. Amarjit Samuel Datt Vs. U.O.I. & Ors.
125

"19.
Having
traversed
and
noticed the vast field of scientific material
gathered by different committees and
organisations, the precedents rendered on
the subject we now proceed to deal with the
issues raised before us on merits.

F. ON MERITS

I. Whether the contention of the
petitioners including those related to the
deleterious effect of EMF radiation upon
human health and safety is liable to be
sustained?

20. The primary contention of the
petitioners as noted above is based upon a
perceived present and imminent danger to
human health and safety caused by EMF
radiation. The report of Prof. Girish Kumar
forms the fundamental bedrock upon which
these submissions are based. We however find
that this is not the first time that this report has
been utilized or pressed into service for laying
a challenge to the roll out and establishment of
mobile towers. In fact this very report was
noted by the Division Bench of the Court at
Lucknow in Shriram Singh Jauharia when
taking note of the said report the Bench
constituted a committee to examine the
conclusions and undertake a comprehensive
review on the subject of EMF radiation and
the ill effects of mobile telephony on human
health. As the record would reveal and as
would be evident from the findings of the
committee that we have extracted above, the
conclusion arrived at was that there was no
material which justified the conclusions
arrived at by Prof. Kumar. The Committee, in
fact went to the extent of characterizing the
perceived threats as voiced by Prof. Kumar as
being a misrepresentation. Once that be the
state of the record we find that the report of
Prof. Kumar does not advance the case of the
petitioners any further.

21. However since the issue raised
in the petitions related to public health and
safety and bearing in mind the command of
Article 21 we delved even further to consider
whether there was any material, which
justified the invocation of our constitutional
powers to injunct the seventh respondent from
establishing the mobile towers or BTS's.

22. We felt constrained to burden
this judgment with various extracts of the
findings and recommendations of DOT, the
Parliamentary Standing Committee as well as
the WHO in order to establish that a plethora
of material gathered by experts clearly
negatives the perceived and alleged imminent
threat and danger to health as was sought to
be canvassed before us. All the experts have
unanimously voiced their opinion that the
present body of scientific research does not
justify the threat to health and life as is sought
to be portrayed by some quarters including the
petitioners before us.

23. On the above state of the
record we find no merit in the challenge
raised by the petitioners on this score.
Bearing in mind the present conclusions
and findings on the subject as expressed by
experts across the board we find that there
exists no justification for the submission of
a present and imminent danger or threat to
human health from the radiation emitted by
mobile towers and BTS's. We further note
that the studies undertaken both in India as
well as by other international organizations
have
unanimously
opined
that
the
emissions from these equipments are
minuscule and do not warrant the anxiety
or fear which is sought to be generated in
this batch of petitions. Our conclusion so
recorded is of course not intended to relieve
DOT or the Union Government from its
obligation of continuing a scientific review
of the subject. However in light of what we
have found above, we rule against the
petitioners insofar as Issue No. I is
concerned.

Issue No. 2 Whether the seventh
respondent is in compliance with the
126 INDIAN LAW REPORTS ALLAHABAD SERIES
statutory
and
regulatory
framework
presently in vogue?

24. We find that the petitioners
have clearly failed to establish on the basis
of any material on record that the seventh
respondent was in breach of the statutory
requirements placed and enforced by DOT.
In order to be assured independently, we as
a matter of abundant caution called upon
the TERM Cell to carry out a technical
audit of all the proposed sites. The report of
the TERM Cell placed before us upon
affidavit did not find any of the sites to be
in violation of the statutory and regulatory
norms governing the field. We further note
that as per the regulatory provisions
prevalent, none of the mobile towers or
BTS's of the seventh respondent would be
entitled to be energized for commercial
operations unless and until the self
certification process is complied with and
requisite papers filed before the TERM
Cell. We therefore and in light of the above,
find no ground which may warrant a
restraint upon the establishment of the
mobile towers and BTS's being established
by the seventh respondent.

Issue No. III. Whether the Court
in exercise of its jurisdiction under Article
226 would be justified in granting the
reliefs as sought?

25. The submissions of learned
counsel for the petitioners advanced on
these petitions on more than one aspect
would require us to travel into the realm of
testing
policy
measures
as
well
as
evaluation of scientific material gathered
by experts. The Court in exercise of its
powers of judicial review undertakes an
exercise of testing actions of the State on
the touchstone of our Constitution and the
laws of the land. Articles 21 and 38 clearly
mandate the State to take measures to
ensure the safety, health and well being of
all citizens. Its measures and actions must
be
aimed
at
alleviating
the
living
conditions
of
all
citizens
and
the
environment of the nation as a whole. The
Court in exercise of its constitutional
mandate is therefore obliged to enquire into
and test all actions of the State bearing in
mind the breath and content of Articles 21
and 38. However at the same time, it
cannot loose sight of certain inherent
limitations placed upon the exercise of this
power. The Court is not an arena for
scientific debate nor is it a forum for the
testing of conflicting scientific studies and
findings of experts. That is surely not its
province. The Courts exercise their power
of judicial review to test a lis or a cause
necessarily against legal norms or legal
parameters.
Legal
norms
and
legal
parameters do not, nay, cannot be left to
rest upon competing or nebulous scientific
research or opinion.

26. We may in this connection
usefully refer to two causes, which travelled
to the Supreme Court for an amplification
of what we have held. The first was a
challenge to the construction of the Tehri
Dam. The second more recent and of far
greater import than the subject which falls
for our determination - the use of nuclear
energy. N.D. Jayal Vs. Union of India10
dealt with a challenge to the establishment
of the Tehri Dam. The Supreme Court
dealing with the challenge held: -

"20. This Court cannot sit in
judgment over the cutting edge of scientific
analysis relating to the safety of any
project. Experts in science may themselves
differ in their opinions while taking
decisions on matters related to safety and
allied aspects. The opposing view points of
the experts will also have to be given due
consideration after full application of mind.
When the Government or the authorities
concerned after due consideration of all
viewpoints and full application of mind
2 All. Amarjit Samuel Datt Vs. U.O.I. & Ors.
127
took a decision, then it is not appropriate
for the court to interfere. Such matters must
be left to the mature wisdom of the
Government or the implementing agency. It
is their forte. In such cases, if the situation
demands, the courts should take only a
detached decision based on the pattern of
the well settled principles of administrative
law. If any such decision is based on
irrelevant
consideration
or
nonconsideration of material or is thoroughly
arbitrary, then the court will get in the way.
Here the only point to consider is whether
the decision-making agency took a well
informed decision or not. If the answer is
"yes", then there is no need to interfere. The
consideration in such cases is in the
process of decision and not in its merits."

27. Dealing with the challenge to
the establishment of a nuclear power plant
in G. Sundarrajan Vs. Union of India11 the
Supreme Court ruled: -

"15. India's national policy has
been clearly and unequivocally expressed by
the legislature in the Atomic Energy Act.
National and international policy of the
country is to develop control and use of
atomic energy for the welfare of the people
and for other peaceful purposes. NPP has
been set up at Kundankulam as part of the
national policy which is discernible from the
Preamble of the Act and the provisions
contained therein. It is not for courts to
determine whether a particular policy or a
particular decision taken in fulfillment of a
policy, is fair. The reason is obvious, it is not
the province of a court to scan the wisdom or
reasonableness of the policy behind the
statute.

200. Much hue and cry has been
raised by some sections of the people about
the possible impact of radiation from KKNP
Units 1 and 2, a point which has been
addressed by AERB, NPCIL, MoEF and all
the Expert Committees constituted to go into
the impact and effect of radiation from the
units not only on humans but also on ecology.
The
Experts
Committees
are
of
the
unanimous opinion that there will not be any
deleterious effects due to radiation from the
operation of KKNP, and that adequate safety
measures have already been taken. We cannot
forget that there are many potential areas of
radiation
reflected
in
many
uses
of
radioactive materials. Radioactive materials
are used in hospitals, surgeries and so on.
Mobile phone use, though minor, also causes
radiation. In a report of the Department of
Telecommunication "Mobile Communication
-- Radio Wave and Safety" released in
October 2012, it has been stated that a
human
body
is
exposed
to
more
electromagnetic field radiation in case of a
call from mobile phone in comparison to the
radiation from a mobile tower.

201. We have, therefore, to
balance "economic scientific benefits" with
that of "minor radiological detriments" on
the touchstone of our national nuclear
policy. Economic benefit, we have already
indicated has to be viewed on a larger
canvas which not only augment our
economic growth but alleviate poverty and
generate more employment. NPCIL, while
setting up the NPP at Kundankulam, have
satisfied the environmental principles like
sustainable development, corporate social
responsibility,
precautionary
principle,
inter-/intra-generational equity and so on
to implement our National Policy to
develop, control and use of atomic energy
for the welfare of the people and for
economic growth of the country. Larger
public interest of the community should
give way to individual apprehension of
violation of human rights and right to life
guaranteed under Article 21.

205. This Court in Chameli Singh
v. State of U.P. [(1996) 2 SCC 549] held
that in an organized society, the right to
128 INDIAN LAW REPORTS ALLAHABAD SERIES
live as a human being is not ensured by
meeting only the animal needs of man, but
secured only when he is assured of all
facilities to develop himself and is freed
from restrictions which inhibit his growth.
Right to shelter includes adequate living
space, safe and decent structure, clean and
decent surroundings, sufficient light, pure
air and water, electricity, sanitation and
civil amenities like road, etc. so as to have
easy access to his daily avocation.

206. Nuclear power plant is being
established not to negate right to life but to
protect the right to life guaranteed under
Article 21 of the Constitution. The
petitioner's
contention
that
the
establishment of nuclear power plant at
Kundankulam will make an inroad into the
right to live guaranteed under Article 21 of
the Constitution, therefore has no basis. On
the other hand, it will only protect the right
to life guaranteed under Article 21 of the
Constitution for achieving a larger public
interest and will also achieve the object and
purpose of the Atomic Energy Act. "

28.
Bearing
in
mind
the
principles which must guide the exercise of
the power of judicial review as enunciated
by the Supreme Court we are of the opinion
that this Court while exercising its
jurisdiction under Article 226 would
clearly not be justified in proceeding on the
basis of the conclusions of an author of a
scientific study which itself has not found
acceptance amongst its peers.

29. Our reluctance to accede to
the submissions advanced by the learned
counsel for the petitioners also stemmed
from the factual backdrop of the present
proceedings. There was no conclusive
material which was brought to our
attention which may have even remotely be
read
as
evidencing,
underlining
or
supporting the perceived threat to human
health voiced by the petitioners. Further we
note that the seventh respondent is in the
process of rolling out and establishing its
4G network on the basis of licenses and
permissions
granted
by
the
Union
Government which are not under challenge
before us. It is also not established from the
record that the seventh respondent is in
breach of the conditions of its license or
that its installations violate the regulatory
framework put in place by the Union and
State governments.

30. The present policy regime as
approved by the Union Government grants
authority to the seventh respondent to
establish a 4G mobile telephony and data
network in accordance with the license
issued to it. Mobile telephony is an
enterprise which is duly permitted and has
the sanction of the State. The subject of the
so called and alleged effects of its usage on
public health is a debate which continues
both at the national as well as the
international level. The fact however
remains that as on date there is no
conclusive material or scientific study
which may justify or be read as conclusive
proof of the canvassed ill effects of EMF
radiation on human health. We are also
mindful of the fact that DOT has adopted
and put in place national standards which
peg the maximum emission levels at 1/10th
of the international norm prescribed by
ICNIRP. This in our opinion should have
been sufficient to allay the fears and
anxieties of the petitioners. Moreover the
scientific experts in the field have found no
justification in the findings recorded by
Prof. Girish Kumar. The report of the
Committee comprised of eminent persons
who are experts in their field is liable to be
accorded
judicial
deference.
We
accordingly find no ground which would
warrant the issuance of the writs as prayed
for.

Issue No IV Further directions
2 All. Amarjit Samuel Datt Vs. U.O.I. & Ors.
129

31. Though having found no
justification for the imposition of a
prohibition
or
restraint
upon
the
installation of mobile towers and BTS's
there remain certain issues which in our
opinion do require notice. As per the
admitted stand of the Union, the TERM
Cells carry out a random inspection of 10%
of the mobile tower sites falling within their
respective jurisdictions. No periodicity of
inspections appears to be fixed. There also
does not appear to be in place a system for
verification of the self-certification which is
filed by the prospective service provider.
The other area of concern appears to be, as
was evident from the common refrain of all
the petitioners, the lack of a complaint
redressal mechanism or at least the
absence of an effective, robust and
transparent grievance redressal machinery.

32. The absence of determinative
scientific data does not lead us to hold that
the technology and its perceived effect on
health and well being does not require a
continuous
monitoring
or
sustained
scientific study or research. It is evident
from the body of material placed before us
that internationally a close watch is being
maintained on the effects of EMF radiation.
All studies indicate that presently there
appears to be no definitive scientific
material or data which may warrant EMF
radiation being classified as endangering
health. However the state of the research
can at present, as we have noted above, be
best described as being still nebulous and
tenuous. This is perhaps the reason for
research in the field being continued and
ongoing. The standards adopted in our
country are stated to be more stringent than
those suggested by the WHO. However the
fixation of a standard is but one aspect of
the oversight mechanism which must
necessarily be put in place. The more
important and fundamental issue appears
to be the requirement of a system which
ensures the adherence to the standards
fixed. This aspect, in our opinion, cannot
be left to depend solely upon a 10%
random annual check carried out by TERM
Cells. "

9. After answering the issues the
Court has also considered the question of
Grievance Redressal Mechanism while
delivering the aforesaid judgment and in
this regard has issued certain directions
which are given in Paragraph 33. Paragraph
33 of the judgment is reproduced below:-

"33. The other aspect as noted
above relates to the grievance redressal
mechanism.
From
the
submissions
advanced and the material placed before us
we find that there does exist the need for
the establishment of a grievance redressal
and information dissemination mechanism
which may take note of complaints and
allay the various doubts which stand raised
in respect of the subject in question. The
absence of an effective machinery was also
noted by the Parliamentary Standing
Committee which found the reply of DOT to
be
unsatisfactory
and
reiterated
its
recommendations for the system being
made more robust and responsive. Bearing
in mind the serious concerns raised in
respect of the above two issues, we proceed
to issue the following directions: -

1) DOT will expeditiously and not
later than within 2 months from the date of
this judgment frame guidelines for the
TERM Cells carrying out periodical
inspection of mobile towers and BTS
stations falling within their respective
jurisdictions;

2)
DOT
while
framing
the
guidelines shall also consider and if
thought feasible incorporate appropriate
provisions for inspection of all or such
130 INDIAN LAW REPORTS ALLAHABAD SERIES
percentage of cell towers as may be deemed
appropriately by the TERM Cells;

3) DOT shall also consider and
implement a mechanism where the testing
of cell sites is not left to depend upon the
self certification procedure of the service
provider solely;

4) The directions issued shall
mandate the TERM Cells to disclose their
findings of compliant and non-compliant
mobile
towers
and
BTS's
for
the
information of the general public;

5) The TERM Cells shall also
make known to the general public the
action taken against erring and noncompliant
mobile
towers
and
BTS
establishments;
6) DOT shall ensure that the particulars of
TERM Cells including the particulars of its
Nodal Officer for different regions are
made known to the members of the general
public;

7)
DOT
shall
establish
a
complaint cell in the various regions details
of which are given wide publicity in the
area concerned, to receive and address
public complaints relating to mobile towers
and BTS;

8) DOT shall also issue necessary
directions to ensure that the complaint cell
duly looks into, enquires and disposes of
such complaints within a reasonable period
of time."

10. It is to be noted that this judgment
has been followed by this Court in deciding
the controversy involved with respect to the
installation and operation of mobile towers
and 4G Base Transmitting Stations in the
subsequent writ petitions and all those writ
petitions have been dismissed in terms of
the judgment passed in the case of Smt.
Asha Mishra (Supra).

11. So far as the contention of learned
counsel for the petitioner that the case of
the petitioner is different from the case of
Smt. Asha Mishra (Supra) and as such that
judgment is not to be considered while
deciding the present controversy involved
in this writ petition is concerned, we are of
the considered view that pith and substance
of the issues raised in the writ petition are
by and large the same as have been framed
by the Court while deciding the case of
Smt. Asha Mishra (Supra) and as such the
judgment of Smt. Asha Mishra (Supra)
covers the controversy involved in the
instant writ petition.

12. It is also to be noted that so far as
the contention of counsel for the petitioner
that the advisory on the use of mobile
towers considering the impact on wildlife
including birds and bees are not followed is
concerned, it is to be observed that they are
only advisory and not mandatory in nature.

13. So far as the contention of learned
counsel for the petitioner that the question
raised in the Parliament and the answers to
those questions given by the Ministry of
Telecommunication
have
not
been
considered are concerned, we are of the
considered view that the discussion made
in the Parliament are not to be considered
while deciding the case in a judicial Court.

14. So far as the contention of learned
counsel for the petitioner that the judgment
of this Court in the case of Chhedilal
(Supra) is concerned, we are constrained to
observe that the said judgment does not lay
any ratio decidendi. It only says that the
erection of mobile towers shall be made as
per
the
guidelines
issued
by
the
Government from time to time.
2 All. Sanjeev Kumar Sibbal Vs. Pramod Kumar Tiwari
131

15. Learned counsel for the petitioner
has not been able to show that the erection
and operation of the impugned mobile
tower and 4G Base Transmitting Station by
the opposite party no.7 is in contravention
of any order or direction of the State
Government or any other authority.

16. In this view of the matter, the writ
petition lacks merit and is dismissed.
----------
(2021)02ILR A131
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2021

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

S.C.C. Revision No. 5 of 2020

Sanjeev Kumar Sibbal ...Revisionist
Versus
Pramod Kumar Tiwari ...Opposite Parties

Counsel for the Revisionist:
Vivek Kumar Rai, Ajai Kumar, Vinod Kumar
Pandey

Counsel for the Opposite Parties:
A.M. Tripathi, Rakesh Pandey

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 401/397 -
Provincial Small Causes Court Act,
1887-Section 25-application-arrears of
rent
and
ejectment-revisionist
had
entered into agreement for tenancy of
a shop-notice were issued for written
statement
and
disposal-
revisionist
filed an application for permission to
deposit the due rent-but the trial court
not permitted and application under
Order 15, Rule 5 CPC. Rejected on the
ground that the revisionist had not
deposited the interest of 9% while
depositing the rent-defendant failed to
present a written statement of defence
within
30
days,
application
under
Order 8 Rule 1 CPC also allowed-it was
filed beyond 90 days, the maximum
period
provided
for
filing
written
statement-provision made in Order 8
Rule 1 are directory in nature and
period may be extended by the court in
case sufficient reason is shown in
writing-impugned
order
set
aside
giving an opportunity to the revisionist
to submit explanation for delay in
support of application for condonation
of delay.(Para 2 to 27)

B. Civil Law - Code of Civil Procedure,
1908 - Order 15 Rule 5, Sub-rule(1) -
obliges the defendant to deposit, at or
before the first hearing of the suit, the
entire amount admitted by him to be
due together with interest thereon at
the rate of 9 percent per annum and
further, whether or not he admits any
amount to be due, to deposit regularly
throughout the continuation of the suit
the monthly amount due within a week
from the date of its accrual. In the
event of any default in making any
deposit, " the court may subject to the
provision of sub-rule(2) strike off his
defence." The word "may" in sub rule
(1) merely vests power in the court to
strike off the defence, it does not
oblige it to do so in every case of
default. Before making an order for
striking
off
the
defence,
it
must
consider any representation made by
the defendant in that behalf and in the
absence of representation, the court
considers whether defence should be
struck off or not on the basis of
material on record.(Para 15 to 25)

The revision is Partly allowed. ( E-5)

List of Cases cited:-

1. M/S Mangat Singh Trilochan Singh Thru.
Mangat Singh(Dead) by L.Rs. & ors. Vs
Satpal,(2003) AIR SC 4300

2. Bimal Chand Jain Vs Gopal Agarwal,(1981) SC
1657