Case Background
The case arose from a mobile communication tower installed by a telecom infrastructure company at the premises of one Smt. Shakuntala Devi at Sadhu Ji Ka Khatal, Gajadhar Chauk, Danapur, Patna.
The tower was first installed in 2004 under an agreement between the company and Smt. Shakuntala Devi. This agreement was later extended by another agreement dated 21.11.2014 for a further period of 15 years.
Meanwhile, the State of Bihar framed special rules to regulate telecom towers. On 08.10.2012, the State notified the Bihar Communication Towers & Related Structure Rules, 2012. Later, on 19.08.2020, these rules were repealed and replaced by the Bihar Mobile Tower, Optical Fibre Cables (OFC) & Related Telecom Infrastructure Rules, 2020.
Under the 2012 Rules, the authorities raised demands on the company for registration fees and renewal charges. The company challenged those demands before the Patna High Court by filing CWJC No. 3300 of 2013 and CWJC No. 3159 of 2013.
While those earlier writ petitions were pending, the 2020 Rules came into force. By order dated 29.09.2020, the Patna High Court allowed those petitions and directed that no coercive action be taken against the petitioner company until the process under the 2020 Rules was finalised.
Despite this background, the Municipal Executive Officer, Danapur Nagar Parishad (respondent no. 6) issued notices dated 01.02.2021 and 24.02.2021 proposing to seal the tower. This led to the present writ petition (CWJC No. 13275 of 2021) challenging those notices and seeking a direction to unseal the tower.
What the Court Examined and Decided
The Patna High Court examined two broad aspects: first, whether Danapur Nagar Parishad followed the 2020 Rules before sealing the tower, and second, how far it could rely on a separate family land dispute to justify its action.
The Parishad’s notices alleged that the tower was installed without any permission in a residential area and that a complaint had been received regarding electromagnetic field (EMF) radiation. The company replied on 25.02.2021, but the sealing still took place.
The company explained in its reply that it only provides passive infrastructure (the tower structure) and that EMF radiations come from active infrastructure used by telecom service providers, and that these emissions were within permissible limits.
The company also pointed out that:
- the action of sealing was contrary to both the 2012 Rules and the 2020 Rules,
- under the Rules, the Urban Development and Housing Department’s consent was compulsory before any sealing, and
- no such consent had been obtained and no proper hearing was given.
On the regulatory side, the company drew the Court’s attention to Rule 7.1.2 of the 2020 Rules. This rule clearly states that mobile communication towers are essential and critical public utility infrastructure. They can be installed at all locations, regardless of specified land use, including all types of residential, industrial, commercial and institutional buildings, vacant lands, and land under government departments and State PSUs, unless restricted by an authority or court order.
This directly answered the Parishad’s objection that the tower was in a residential area. The Rules themselves permit towers in residential and many other areas.
More importantly, the Court focused on Rule 9.4 and Rule 9.10 of the 2020 Rules, which lay down protections against arbitrary action:
- Rule 9.4 (“No Coercive Actions”) prohibits sealing of mobile towers or disconnection of electricity, in case of any complaint or issue related to EMF emissions, without the consent of the Urban Development and Housing Department, Government of Bihar. It also requires a mandatory advance notice of 90 days to the applicant, clearly mentioning the action proposed to be taken.
- Rule 9.10 (“Regularization/Compounding”) states that operators of existing unauthorized mobile towers must apply for clearance within six months of the Rules coming into force. Once an application is filed within time, operation of the tower “shall not be discontinued” until the application is decided by the local authority. If clearance is declined and an appeal is filed, operation must continue while the appeal is pending.
The State Government had initially given six months for regularisation under Rule 9.10. Due to delay, a notification dated 19.03.2021 extended this period by another six months, up to 29.08.2021.
Within this extended time, the company applied online for NOC on 14.07.2021 and deposited the required fee on 16.07.2021.
The Nagar Parishad, however, argued on different lines. It claimed that the tower had been installed without its approval, and that the underlying land itself was disputed family property.
According to the Parishad, the land originally belonged to one Budhia Devi, who left behind three daughters: Chinta Devi, Shakuntala Devi and Sona Devi. A Title Partition Suit No. 73 of 1974 was filed by Shakuntala Devi, with Chinta Devi and Sona Devi as defendants. In that suit:
- an injunction order dated 17.01.2002 was passed by the Sub-Judge-VI, Patna, restraining parties from alienating or encumbering the property till final disposal, and
- a final decree dated 05.07.2014 by the Sub-Judge-II, Patna apportioned the land among the three sisters and mutation was done accordingly.
The Nagar Parishad alleged that:
- the tower was installed in violation of the injunction order of 17.01.2002,
- the tower actually stood on the portion which finally fell in the share of Chinta Devi and Sona Devi, and
- the 21.11.2014 agreement between the company and Shakuntala Devi was void because, by then, the land had already been mutated in the name of Sona Devi on 08.10.2014.
On 11.01.2021, Sona Devi and Chinta Devi complained to the Sub-Divisional Public Grievance Officer, Danapur, alleging that the tower was illegally installed on their land and that the company was not removing it. The matter was then forwarded to the Nagar Parishad, which issued the two notices in February 2021 and subsequently sealed the tower.
The newly added private respondents supported the Parishad’s stand.
In response, the company submitted that it had never been a party to the partition suit and had never been served with any injunction order. Even if there was any violation of the civil court’s injunction, it argued, the remedy lay in approaching that civil court for execution and not by using municipal powers to seal the tower.
The company also informed the Court that Shakuntala Devi had filed Title Appeal No. 2 of 2015 against the final judgment and decree in the partition suit, and that the private respondents had filed execution cases. These were still pending. Therefore, the rights of the parties over the land were yet to be finally settled, and the Nagar Parishad could not bypass this process.
After hearing all sides, the Patna High Court carefully examined the record.
The Court found that Danapur Nagar Parishad had indeed issued two notices dated 01.02.2021 and 24.02.2021, warning of possible sealing under the 2012 Rules if no reply was received. The company did submit a reply on 25.02.2021.
However, the Court noted that:
- there was no final speaking order or decision on record by the Parishad dealing with that reply and formally ordering sealing; and
- no material was shown to prove that the required consent from the Urban Development and Housing Department under Rule 9.4 of the 2020 Rules had been obtained before sealing the tower.
The Court held that the action of respondent no. 6 in sealing the tower without such consent was “patently illegal and contrary to the Rules, 2020”.
The Court also recorded that the company had filed its application for regularisation within the prescribed time under Rule 9.10 and that the application was still pending. Therefore, in terms of Rule 9.10, no coercive action, including sealing of the tower, could be taken while the application was undecided.
On this basis, the Court held that the Parishad’s action in sealing the tower at Shakuntala Devi’s premises was “illegal and de horse the Rules, 2020”. It set aside the notices dated 01.02.2021 and 24.02.2021 and directed the Municipal Executive Officer, Danapur Nagar Parishad, to unseal the tower within one week from the date of judgment.
The Court then dealt with the argument regarding the injunction and partition decree. It clarified that, in this writ petition, it was concerned only with examining the legality of the Nagar Parishad’s action of sealing the tower.
The Patna High Court stated that it could not function as an executing court to enforce the final decree dated 05.07.2014 in Title Partition Suit No. 73 of 1974. If the private respondents felt that their civil court decree or injunction had been violated, their remedy lay in approaching a competent civil court through appropriate proceedings.
The Court further observed that, as a matter of settled law, even if a person is a trespasser, he or she cannot be dispossessed without due process of law. Therefore, Danapur Nagar Parishad could not directly take action against the company by sealing the tower without following the legal process.
For this proposition, the Court relied on three Supreme Court decisions:
- AIR 1968 SC 620 (Lallu Yeshwant Singh vs. Rao Jagdish Singh),
- (1986) 1 SCC 133 (Express Newspapers (P) Ltd. vs. Union of India), and
- (2004) 1 SCC 769 (Rame Gowda vs. M. Varadappa Naidu).
With these findings, the writ petition was allowed.
Why This Judgment Matters
This decision has practical importance for telecom companies, municipal bodies and landowners in Bihar.
First, it makes clear that mobile towers are treated as essential services under the 2020 Rules. Municipal bodies cannot abruptly seal towers or cut electricity without strictly following the procedure, including taking prior consent from the Urban Development and Housing Department and giving 90 days’ advance notice.
Second, if a tower operator has applied for regularisation within time, its operations must continue until the application and any appeal are finally decided. This protects mobile users from sudden disruption and protects companies from arbitrary local actions.
Third, the judgment reminds parties involved in land disputes that civil court decrees and injunctions must be enforced through proper execution proceedings, not by pressuring local bodies to take shortcuts like sealing a tower.
Finally, the Court reinforces a basic rule: even an alleged trespasser cannot be thrown out without due process of law. Government bodies and local authorities must act within the legal framework, not beyond it.
Legal Issues and Answers
-
Issue: Could Danapur Nagar Parishad seal the telecom tower without consent from the Urban Development and Housing Department and without 90 days’ notice, especially when a regularisation application was pending under the 2020 Rules?
Answer: No. The Patna High Court held that sealing the tower without such consent and despite a pending regularisation application was patently illegal and contrary to Rule 9.4 and Rule 9.10 of the 2020 Rules. The notices were set aside and the tower ordered to be unsealed. -
Issue: Could disputes about ownership of the land and alleged violation of a civil court injunction be resolved through this writ petition by supporting the Parishad’s sealing action?
Answer: No. The Court held that it could not act as an executing court for the partition decree. Any grievance about violation of injunction or partition decree must be raised before a competent civil court through proper proceedings. -
Issue: Can a person or entity be dispossessed or have its structure removed merely on the allegation of trespass, without following due process?
Answer: No. Relying on Supreme Court precedents, the Court reiterated that even a trespasser cannot be dispossessed without due process of law, and local bodies cannot bypass this requirement.
Cases Cited by the Court
- AIR 1968 SC 620 — Lallu Yeshwant Singh vs. Rao Jagdish Singh.
- (1986) 1 SCC 133 — Express Newspapers (P) Ltd. vs. Union of India.
- (2004) 1 SCC 769 — Rame Gowda vs. M. Varadappa Naidu.
Case Details
Case Number: Civil Writ Jurisdiction Case No. 13275 of 2021
Case Title: ATC Telecom Infrastructure Private Limited (formerly known as Viom Networks Ltd.) vs. The State of Bihar & Ors.
Coram: Hon’ble Mr. Justice Mohit Kumar Shah
Date of Judgment: 08.10.2021
Citation: 2022(2) PLJR 303
Advocates:
- For the Petitioner: Mr. Nikhil Kr. Agrawal, Advocate
- For the State of Bihar: Mr. Abbas Haider (SC-6)
- For Danapur Nagar Parishad: Mr. Sunil Kumar, Advocate
- For the Intervenor/Private Respondents: Mr. Amarnath Singh, Advocate
Nature of the Case: Writ petition (civil) challenging municipal notices and action of sealing a telecom tower under State telecom infrastructure rules.
Link to the Judgment: Click here to view the full judgment on the Patna High Court website
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