(Smt. D. Nirmala, President (FAC))
1. This is a complaint filed by the complainants under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to remove the cell tower erected and stop functioning on the terrace of the house of the OP-1 bearing No.1-10-52/A/C, Shahshabgutta, Mahabubnagar town immediately, to pay compensation of Rs.50,000/- and Rs.3,00,000/- each complainant Rs.4.50 lakhs in total Rs.5 lakhs with 18% interest for the defective denial of services, to stop and remove the erected cell tower without necessary No Objection Certificate from the neighbours and necessary permission from concerned departments, and caused pain, sufferance and mental agony besides costs of the complaint.
2. The averments of the complaint are briefly that the complainants are the general public and they are residing in Shasabgutta locality and houses are located in vicinity of H.No.1-10-62/A/C, Shahasabgutta of OP.No.1 who is the owner of the said houses. OP.No.2 is Govt. Dept. deals in the Telephone Communications who erected a cell tower on the terrace of the house of OP.No.1 in the busy public residential spot without following the procedures and obtaining necessary certificates from general public and also concerned depts. The OP.No.3 is the Municipality who provides public road, drainage and health to the general public and look after the convenience and safety of the public and owner of their respective houses constructed their houses around the H.No.1-10-52/A/C Shasabgutta, M’Nagar Municipality and regularly paying municipal taxes of their house which includes education, health taxes to the OP-3 regularly for providing necessary facilities to the public. These complainants further submitted that the OP.Nos.1 and 2 colluded together and erected a cell tower pole type on the terrace of the house OP-1 for covering cell signals towards multi direction with three poles antennae of one BTS in the year 2008 without obtaining necessary permission like No Objection Certificate from the neighbours of the cell tower and Municipality without following the procedure and rules. In fact such tower should not erected in the busy locality places as it releases radiances in high frequency which effects on brain, consequently on health of the public, more particularly for children and old aged persons at the time of erecting the said tower the OP.No.1 did not obtained No Objection Certificate from the neighbours of the tower i.e., the complainants, owner of the house around the OP.No.1 where the said cell tower is erected. The complainants made several complaints to the OPs to stop the said cell tower and made their effort to stop the same which affect the brains of the public. These complainants further submitted that from the last three years the OP.No.1 health spoiled and she is bed ridden for so many times and her health is seriously effected. She is undergoing treatment and she also gave a complaint to OP.No.2 to remove the cell tower, but the OP.No.2 did not consider her application though it has not followed the rules regulation of obtaining No Objection from the neighbours of the cell tower, though the OP.No.2 is Central Govt. Dept. rest the responsibility of keeping the good health of the general public and acting irresponsible and continuing the cell tower running on the terrace of the OP.No.1 inspite of repeated requests made by the OP.No.1 for removing the cell tower from the terrace of her house which is located in the busy public locality. Further these complainants submitted that OP.No.3 whose responsibility to look after the convenience roads drainage education and health of general public resides in the limits of the municipality as an audience without taking any necessary steps for removing the said cell tower erected by the OP.No.2 on the terrace of house OP.No.1 though the same erected without obtaining any necessary permission and No Objection Certificate from the neighbours of the tower. As such the OPs.1 to 3 particularly OPs.2 and 3 denied the serves of them looking after the health of the public effecting the health of the complainants which amounts to defective and denial of service. Hence the present complaint is filed for the above said relief.
3. The OP.No.1 though served notice on her, she failed to file the counter.
4. The OP.No.2 filed his counter denying the allegation in the complaint and stated that the complainants are not consumers or customers of this OP and it is not a dispute between the consumer and this OP. As such the present complaint is not maintainable in the Forum. If it is actionable nuisance, it is for the Civil Court to decide but not this Forum. This OP further submits that this OP did not take any amounts from the complainants and did not promise to do any kind of supply or did not promise to provide any useful amenities through the Tower, there is no deficiency of service on part of the this OP. So the present complaint is not maintainable before this Forum. There is no relationship between the complainants and the OP.No.2. This OP.No.2 further submitted that the OP.No.1 is allowed to install the tower and there is written agreement between the OP.No.1 and OP.No.2. If any dispute arose between the OP.Nos.1 and 2 they can proceed for the reliefs if violation of agreement terms but the complainants have no locus standi to file the present complaint. Further OP.No.1 is the owner of the premises in which the disputed tower is installed by entering into an agreement terms for which no permission of the public is required. In this regard the Govt. of A.P. Panchayat Raj Department already issued G.O.Rt. dated 19-8-2006 to the OP.No.1 after completing all the required formalities installed the tower. The present complainants have no power or authority to question the same. The general public should not give any consent for installation of tower. It is no injurious to any others, since it is unsound equipment and it will not give any actionable nuisance to the general public. The complainants have no power to file the present complaint for any relief against the OPs.
5. Though the notice served on OP.No.3, but he was called absent.
6. In support of the case the complainants filed their affidavit evidence and got marked Exs.A-1 to A-6 and on the other hand the OP.No.2 filed affidavit evidence and got Ex.B-1 document marked.
7. The points for determination now are:
- Whether the complaint is maintainable under C.P. Act?
- Whether there is any deficiency on the part of the opposite parties in rendering service to the complainants as alleged?
(iii) Whether the complainants are entitled to the relief sought for by
them?
(iv) To what effect?
8. Point No.1:- It is the case of the complainants that they are general public resides in Shashasabgutta locality resides in the vicinity of H.No.1-10-52/A/C, Shahsabgutta, Mahabubnagar, which is belongs to OP.No.1 and it is busy public residential place. On the top of the said house, the OP.Nos.1 and 2 colluded together more particularly OP.No.1 did not obtain the No Objection Certificate from the neighbours of the tower i.e., complainants and the OP.No.2 erected a cell tower without following any procedure. The cell towers should not be erected in the busy locality places as it releases radiances in high frequency which effects on brain consequently on health. The OP.No.3 Municipality, who collects the house, education and health taxes from the complainants for providing necessary convenience, roads drainage and health protection. It is the responsibility of OP.No.3 to look after the health of the general public, who resides in the limits of the municipality, stood as an audience without taking any steps for removing the said cell tower erected by the OP.No.2 on the terrace of the OP.No.1. These complainants further pleaded that more particularly OP.No.1 did not obtain the No Objection Certificate from the neighbours of the tower i.e., complainants. They further pleaded that the cell towers should not be erected in the busy locality places as it releases radiances in high frequency which effects on brain consequently on health of the public. These complainants several times made complaints to the OPs to remove the cell tower but they did not take any action, so these complainants constrained to approach the Hon’ble Forum for denial of the service of OP.Nos.1 to 3. On the other the counsel for the OP.No.2 contended that the present complainants are not the consumers to this OP as he did not take any amount from the complainants and did not promise to do any kind of service or did not promise to provide any useful amenities through the tower. As such there is no deficiency of service on part of this OP and the Hon’ble Forum has no jurisdiction to entertain the present case.
9. The counsel for the complainants contended that the OP.Nos.1 and 2 colluded together and erected the cell tower, more particularly OP.No.1 who did not take No Objection Certificate from the neighbours, tower complainants are paying the municipal tax to the OP.No.3 under health, education and house tax. The OP.No.3’s duty to take welfare steps of the public. When the general public suffering from ill health the OP.No.3 stood as a spectator, he did not take any steps to prevent the activities of the OP.No.2 by removing the cell tower on the terrace of the OP.No.1. These complainants made several complaints to the OPs for removing the cell tower. So there is a deficiency of service on part of the OPs since they are consumers paying house tax to the Municipality.
10. Basing on the pleadings pleaded in the complaint and counter and perused the material placed on record and the definition of consumer as per Sec.2 (1) (d) (i) of C.P. Act, 1986 “that a person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other that the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose);
11. The complainants have been challenging the erection of BSNL Tower on terrace of OP-1 on a ground that they are suffering from health problem due to outcome of radiation from cell tower. Ex.A-4 is showing lease agreement between OPs.1 and 2 and the cell tower lease is subsisting till 14-9-2019. The cell tower house owner was made as OP-1 to the proceedings of the case but she kept quiet without filing counter. The Exs.A-1, A-2 and A-3 correspondence are showing only after execution of lease agreement in Ex.A-4 dated 11-8-2008. Ex.B-1 is issued by Panchayat Raj Department in G.O.Rt.No.1147, dt.19-8-2006, authorizing the BSNL General Manager for erecting ground/roof/pole cell towers under exemption category. The counsel for complainants vehemently argued that the OP-2 did not get No Objections from neighbours for which they issued Ex.A-1 letter to OP-1. But the OP-1 has totally kept quiet in the proceedings. However the Ex.A-4 lease agreement already came into existence by 15-9-2008 and its term would be subsisted upto 14-9-2019.
12. It is the case of the complainants that they are the health sufferers from radiation due to erection of cell tower and they being tax payers to OP-3 and can challenge the erection of cell tower and they can seek relief for removal of said cell tower. The present complaint is not with regard to the Municipal services under collection of tax. The total facts of the case is different. Hence we are unable to agree with the contention of complainants that they being house tax payers to OP-3 can question the acts of OP-2 in erection of cell tower. Therefore we are of firm opinion that the complainants are not consumers as defined under Sec.2(1)(d) (i)(ii) of C.P. Act, 1986. No doubt they can challenge the procedure adopted by the OP-2 in erecting the cell tower and seek relief for removal of said cell tower, but they should be consumers as defined U/s 2(1)(d) (i)(ii) of C.P. Act, 1986 and their subject matter should have Jurisdiction to entertain the same under C.P. Act, 1986. The entire case is rests upon legal position. The grievance of the complainants is nothing but challenging the G.O.Rt.No.1147, dt.19-8-2006, in Ex.B-1 and the Ex.A-4 lease agreement and their adopting procedure. The Bharat Sanchar Nigam Limited is a limited company formed by Central Government by an Act. The OP-2 have vested powers under the said Act in adopting the procedure under Ex.A-4 and Ex.B-1 which are purely statutory functions and which are beyond the scope and purview of C.P. Act as per the Judgment of the Hon’ble State Commission of Uttar Pradesh in between UPSEB Vs. Prem Prakash Upadhyay reported in CPJ 2014 January part Page No.64. We are of considered view that the present complaint is beyond the scope and purview of Jurisdiction under C.P. Act, 1986. Therefore the complainants are neither consumers nor their subject matter having Jurisdiction under C.P. Act, 1986 and the complaint is liable to be dismissed as not maintainable.
13. Viewing the above it is open to the complainants to put forth their grievance before proper and competent authority where having Jurisdiction.
14. Basing on point No.1 the point Nos.2 and 3 need not be discussed.
15. IN THE RESULT:- The complaint is dismissed as not maintainable without costs.
