1

Reserved
Case :- MISC. BENCH No. - 5481 of 2013
Petitioner :- Arun Kumar Tiwari [P.I.L.]
Respondent :- State Of U.P.Through Its Chief Secretary,Lucknow
& Others
Counsel for Petitioner :- Brijesh Kumar Singh
Counsel for Respondent :- C.S.C.,Aakash Prasad,Namit
Sharma,Shashi Prakash Singh
Hon'ble Imtiyaz Murtaza,J.
Hon'ble Devendra Kumar Upadhyaya,J.
This writ petition, filed in public interest, challenges the
government order dated 15.10.2012 whereby certain directions
have been issued by the State Government to facilitate the service
providers for establishing 4th Generation Broadband Wire
Line/Wireless Access Services (4G-GBM).
The petitioner has also challenged the permission granted
by Lucknow Nagar Nigam to the respondent no.4-M/s Reliance Jio
Infocom Limited, a firm which holds All India Internet Service
Provider (ISP) Category 'A' license issued by the Government of
India,

Department

of

Telecommunication,

Ministry

of

Communication and IT, for road cutting which may be required in

the process of laying down underground Optical Fibre Cable and
for installing Ground Based Masts.
It has also been prayed by the petitioner that the
respondent nos. 1 to 3 i.e. State Government, Commissioner,
Lucknow Division, Lucknow and Lucknow Nagar Nigam be
mandated to recover the road cutting charges from the respondent
no.4 as per prevalent rates and also to require the respondent
no.4 to repair the roads. The prayers made in the writ petition read
as follows:I. Issue a writ, order or direction in the nature
of mandamus commanding the respondent no.1 to
3 to recover road cutting charges from respondent
no.4 as per prevalent rates and repair the roads of
concerned cities forthwith.

II. Issue a writ, order or direction in the nature

of certiorari quashing the order dated 03.06.2013
passed by respondent no.3 contained as Annexure
No.1 to this writ petition.
III. Issue a writ, order or direction in the
nature of certiorari quashing the Government Order
dated 15.10.2012 contained as Annexure No.2 to
this writ petition.
IV. Such any other order or direction under
the circumstances of the case also be passed in
favour of the petitioner.
Heard Sri B.K.Singh, learned counsel for the petitioner,
learned Standing Counsel for the State, learned Standing Counsel
appearing for the Lucknow Nagar Nigam and Sri J.N.Mathur,
learned Senior Advocate assisted by Sri Akash Prasad, learned
counsel for respondent no.4 and perused the material available
on record.
Admittedly, the respondent no.4 has been awarded All India
Internet Service Provider (ISB) Category 'A' license by the
Government of India entitling it to provide ISP services throughout
the country. The term of license entitles the respondent no.4 to
provide Internet Services, Internet Telephony, IPTV etc. The
respondent no.4 has been awarded Broadband Wireless Access
(BWA) in all telecom service areas through spectrum

auction

conducted by the Department of Telecommunication in the year

2010.
In the recent past, the country has seen significant growth
in the telecommunication services. The 4th Generation Services
are supposed to be the most advanced level of data and
telecommunication services available at present. It goes without
saying that the facility of these services would add further to the
revolution in information technology which the country has
witnessed in the recent past.
Coming to the grounds of challenge to Government Order
dated 15.10.2012 and the permission granted by the Lucknow

Nagar Nigam, we may notice that learned counsel for the

petitioner has stated that in terms of the provision of Sections 293,
295 and 300 of the Uttar Pradesh Municipal Corporations Act,
1959, no person or authority has right to cut or damage the roads
without prior permission of Municipal Commissioner. He further
stated that it is the Municipal Commissioner who permits the road
cutting after deposition of certain charges with a specific condition
that the person or authority responsible for cutting roads shall
restore the same. It has also been argued by learned counsel for
the petitioner that on one hand, the State Government has not
been providing any funds to the local bodies for construction and
maintenance of the roads and on the other hand, without getting
any deposit or charges for restoration of roads from respondent
no.4, it has permitted the Company to lay down the Optical Fibre
Cable in Lucknow, Greater Noida, Noida, Ghaziabad, Loni,
Meerut, Rampur, Agra, Kanpur, Varanasi and Allahabad.
Further submission made by learned counsel for the
petitioner is based on the road cutting charges declared by the
Public Works Department and in the said background he stated
that the Lucknow Nagar Nigam be directed to recover the road
cutting charges from respondent no.4 in terms of rates determined
by the Public Works Department. It has also been submitted on
behalf of the petitioner that contractors engaged in Optical Fibre
Cable laying process, though are cutting and damaging the roads,
however, despite Nagar Nigam authorities issuing directions to the
contractors for repairing roads, no heed is being paid by the
contractors employed by the respondent no.4 to repair the roads
which are damaged in the process of cable-laying. It has further
been stated by learned counsel for the petitioner, as mentioned in
para 24 of the writ petition, that there is a scam of thousands of
crores of rupees which respondent no.4 is legally bound to pay,
however,

for

some

extraneous

consideration,

the

State

Government is directly granting permission for laying of Optical

Fibre Cables to the respondent no.4.
It is noticeable at this juncture that the aforesaid assertion
regarding alleged scam of thousands of crores of rupees has not
been explained by the petitioner, neither any material has been
placed on record to infer that the State Government has granted
permission to respondent no.4 for laying down the Optical Fibre
Cable for some extraneous reasons.
The writ petition has vehemently been opposed by the
State Government and Lucknow Nagar Nigam.

The very

maintainability of writ petition has been challenged by the

respondents on the ground that the writ petition cannot be said to
have been filed in public interest for the reason that the petitioner
himself is an Ex-corporater of Nagar Nigam, Lucknow and his wife
is presently a sitting Corporator of Nagar Nigam, Lucknow. It has
been averred that this material fact has been concealed by the
petitioner and further that petition has been filed with some vested
interest and to gain cheap popularity.
The State Government in its counter affidavit has stated
that there is no illegality in the Government Order dated
15.10.2012 and that the provisions of Municipal Corporations Act,
Municipality Act, 1960 and the Uttar Pradesh Public Land
(Permission for Placing and Maintaining Optical Fibre Cable) Act,
2001 (hereinafter referred to as Optical Fibre Cable Act, 2001)
does not put any embargo on the authority of the State to issue an
order containing contents as are available in the Government
Order dated 15.10.2012. It has also been averred that in terms of
the very provisions of Government Order 15.10.2012, the
respondent no.4 is responsible to repair the roads after the work
is finished and also that if the company fails to do so, the Nagar
Nigam will have every authority to recover the amount which may
be incurred for repairing. The counter affidavit filed by the State

emphasizes the significance of laying down Optical Fibre Cable in

order to provide 4th Generation Broadband Wire Line/Wireless
Access Services to the masses.
Regarding locus of the petitioner to maintain the instant
public interest litigation petition, we do not wish to make any
observation, however, we proceed to decide the writ petition on
merit.
Section 295 of the U.P. Municipal Corporations Act, 1959
imposes certain prohibitions relating to streets, according

to

which, save with the permission of the Municipal Commissioner,

no person is entitled to erect or set up any wall, fence, rail, posts,
steps, booths or other structures, whether fixed or movable, and
whether of a permanent or a temporary nature.
Under section 296 of the Municipal Corporations Act, the
Municipal Commissioner has been vested with the authority to get
any wall, fence, rail, post etc. removed even without any notice, if
the same has been erected in contravention of Act.
Section 300 of the Municipal Corporations Act further
empowers the Municipal Commissioner to grant permission with
the concurrence of District Magistrate or such other officers
nominated by the District Magistrate, for temporary erection of
booths or any such structure on any street on the occasions of
ceremonies and festivals.
Thus, in terms of the provisions of Municipal Corporations
Act, no person is entitled to erect a post or mast or any other
structure on streets within the municipal area.
The Government Order dated 15.10.2012 which has been
impugned in this writ petition refers to the provision of Section 128
of Municipal Corporations Act which empowers the Municipal
Corporation to sell, let on hire, lease, exchange, mortgage, grant
or otherwise dispose of any property or any interest therein
acquired by or vested in the Corporation. However, the proviso

appended to Section 128 puts a caveat that no property which

has been transferred to the Corporation by the State Government
shall be alienated in any of the aforesaid forms except with the
prior sanction of the State Government. The Government Order
also refers to the provision of Section 129 of the Municipal
Corporations Act which contains the provision for disposal of
property belonging to Corporation.
Thus, so far as letting out or leasing the property vested in
the Corporation is concerned, Sections 128 and 129 contained a
complete scheme empowering the Municipal Corporation to
convey the property of the Corporation in the manner prescribed
therein.
The Government Order dated 15.10.2012 mentions that for
the purpose of laying down the underground Optical Fibre Cable,
the respondent no.4 shall use Horizontal Directional Drilling
(HDD) technique which will create minimum hindrance on the
surface and further that after completion of work with Horizontal
Directional Drilling technique, the space used by the respondent
no.4 shall be restored to its original shape within 72 hours.
Referring

to

the

various

provisions

of

Municipal

Corporations Act and also to the provisions of Optical Fibre Cable

Act, 2001, the State Government by means of impugned
Government Order dated 15.10.2012 has issued directions to the
authorities concerned to grant permission to respondent no.4 for
erecting the Ground Based Masts and for laying Optical Fibre
Cable through Horizontal Directional Drilling technique and also
for erecting poles for providing over head wires. The Government
Order directs the authority concerned to give aforesaid permission
with certain conditions which are thirty in number. The conditions
which are detailed in the impugned Government Order and form
part of the permission inter alia provide that the permission to
erect the masts or poles shall not be given at places where they

may create hindrance in the traffic.

The said conditions also

provide that the lease rent or penal rent and other dues will be
determined by the concerned local body as per prevalent rates.
It is noticeable that the Government Order specifically
provides that the service provider concerned after cutting the
space shall restore the same within 72 hours to the satisfaction of
the local body concerned. It also provides that in case restoration
is not done within the prescribed period, then the local body
concerned shall not only realize restoration charges with penalty
but shall also require the restoration work to be completed. Thus,
in our considered opinion, so far as the damage which may be
caused by the road cutting is concerned, the impugned
Government Order contains appropriate precaution.
It is also worthwhile to observe that Optical Fibre Cable
Act, 2001 has been enacted by the State Government with an
object, primarily of providing for permission to place and maintain
Optical

Fibre

Section

Cable
of

the

on
Optical

public
Fibre

land.

Cable Act,

2001

unambiguously provides that provisions of this Act shall have

effect notwithstanding anything to the contrary existing in any law
for the time being in force. Section 3 of the Optical Fibre Cable
Act, 2001 runs as under:3. The provisions of this Act shall have effect
notwithstanding anything to the contrary contained in
any law for the time being in force.
Section 4 of the said Act empowers the State Government
to give permission to a licensee to place and maintain optical fibre
cable under, over, along, across in, or upon, any public land. The
licensee has been defined in Section 2 (d) of the said Act which
means a person licensed under section 4 of the Indian Telegraph
Act, 1885.
Section 5 of Optical Fibre Cable Act, 2001 makes a
provision wherein the licensee may make an application for

permission to place and maintain optical fibre cable under and

over any public land. The said application is to be made to the
State Government which after inquiry is empowered to give
permission applied for with such terms and conditions as may be
deemed fit. Sub-section (3) of Section 5 entitles a licensee to
whom permission has been granted with the State Government to
enter on the public land under and over which such cable is
proposed to be, or has been, placed. The said provision also
entitles the licensee to do all acts necessary for the said purpose.
It is not in dispute that respondent no.4 is a licensee within
the meaning of Section 2 (d) of Optical Fibre Cable Act, 2001. A
bare reading of Section 3 of this Act, makes it clear that provisions
of Optical Fibre Cable Act, 2001 will have overriding effect to any
other provision including the provisions contained in U.P.
Municipal Corporations Act or Municipality Act.
In our considered opinion, the State Government has
issued impugned government order dated 15.10.2012 in exercise
of its statutory powers conferred on it by Sections 4 and 5 of the
Optical Fibre Cable Act, 2001. Sections 4 and 5 of the said Act
read as under:4. The State Government shall have power to
give permission to a licensee to place and maintain
optical fibre cable under, over, along, across in, or
upon, any public land.
5. (1) Any licensee may make application for
permission to place and maintain optical fibre cable
under, over along, across in, or upon, any public
land, to the State Government in the prescribed
manner.
(2) The State Government may, after such
inquiry as it considers necessary, give the permission
applied for on such terms and conditions as may be
prescribed.
(3) A licensee to whom a permission under
sub-section (2) has been given, may, for the
purposes of placing, maintaining, examining,
repairing, altering or removing any optical fibre cable

enter on the public land under, over along, across in,

or upon which such cable is proposed to be, or has
been, placed and shall also be entitled to do all acts
necessary for the said purpose.
Thus, so far as the permission to a licensee to place and
maintain optical fibre cable under, over, along, across in, or upon,
any public land is concerned, the State Government has been
fully empowered by the aforesaid provisions. The Government
Order, thus, cannot be said to have been issued without any
jurisdiction for the reason that State Government is fully statutorily
empowered under Sections 4 and 5 of the Optical Fibre Cable Act,
2001 to grant permission to a licensee.
As far as the apprehension of the learned counsel for the
petitioner regarding the road cutting, non restoration of roads and
other spaces etc. are concerned, we may again refer to the
Government Order dated 15.10.2012 itself which clearly stipulates
various provisions to ensure that respondent no.4 is compelled to
restore the land/streets, in case the same is damaged, within 72
hours. Clause 12 of paragraph 8 of the Government Order dated
15.10.2012 reads as under:(12) dEiuh }kjk dh xbZ dfVax dh xq.koRrkijd iquLFkkZiuk
dfVax dk;Z iw.kZ gksus ds i'pkr vf/kdre 72 ?k.Vs esa fudk; dh lUrqf"V
vkSj fof'k"Vrkvksa ds vuqlkj lqfuf'pr dh tk;sxhA fu;r vof/k esa
vuqikyu u gksus dh fLFkfr esa lEcfU/kr fudk; iquLFkkZiu O;; n.M
lfgr olwy djsxk vkSj iquLFkkZiuk dk;Z djk;sxkA
Thus, the service provider or a licensee has not only been
mandated to restore the space used by it by cutting within 72
hours but it has been mandated that such restoration shall be
done to the satisfaction of the local body concerned and as per
the specifications to be determined by the local body. In case of
failure the Government Order provides for the recovery of
restoration charges along with penalty.
We may also notice that Rule 5 of U.P. Public Land
(Permission for Placing and Maintaining Optical Fibre Cable),

10

Rules 2001, framed under Section 6 of Optical Fibre Cable Act,

2001 casts certain duties on the licensee in case permission to
place optical fibre is given.

Rule 5 of the aforesaid Rules is

quoted below:5.Duty of licensee- (1) the licensee shall restore

land to its original form after laying the cable.
(2) A certificate for restoring the land in the
original form must be issued by the licensee in favour to
the Secretary, Government of Uttar Pradesh, Information
Technology and Electronics. A copy of this must also be
given to the concerning District Magistrate and local
authority.
(3) The licensee shall have to execute an
agreement, in form of Annexure I, with the Principal
Information Technology and Electronics.
(4) The licensee shall have to produce a Bank
guarantee for an amount circulated at a rate of Rs.25 per
running meter for a period of one year.
(5) The Licensee shall not be entitled to lease or
otherwise use the land.
(6) The licence for laying of optical on public land
shall be only for maximum period of 15 year.
(7) In lieu of this permission, the licensee shall
provide effective 2 Mbps bandwidth to the offices of the
State Government and Local authority/authorities
separately and free of charge during the period of
licence.

Thus, in terms of the Rule 5 (1), the licensee is under

obligation to restore the land to its original form after laying cable.
So far as the restoration of land is concerned, the same is
to be restored to its original form by the licensee.
For the aforesaid purpose, licensee is required to execute
an

agreement,

any

breach

thereof,

will

have

its

own

consequences on the licensee.

For the discussions made and reasons given above, we do
not find any illegality in the impugned Government Order dated
15.10.2012.
We, however, direct the State Authorities and the authorities
of Lucknow Nagar Nigam, Lucknow and other local bodies
concerned to enforce the provisions of the Rules and the terms

11

and conditions of the Government Order dated 15.10.2012 in their

entirety strictly so that the damage caused to the public streets
and other places in the process of laying Optical Fibre Cable and
erecting the masts and poles is immediately restored, failing
which, local bodies shall take appropriate action.
With the aforesaid observations, the writ petition is
disposed of finally.
Order Date :- May 28 ,2014
Renu/-