RIGHT OF WAY FOR LAYING CABLES AND ERECTION OF POSTS
194. A view was expressed that this clause in particular should be made subject to any policy/guidelines of respective State Government/Public authorities.
195. The DoT held the view that this may create difficulties for service providers to establish their network.
196. The Committee feels that this clause would give exclusive right to the service providers over public property. Further,in the long run, the right to way in laying Cables and erecting posts under, over, along, across, in or upon any immovable property can cause a problem which may have serious repercussions because "immovable property" also, includes 'buildings' and the vesting of such absolute right in the Service providers even over public buildings is fraught with serious doubts. Hence, the Committee recommends that in clause 59(l) after the words "immovable property" the words "other than buildings" be inserted.
197. Clause 59(4) reads "the facility of right of way under this section for laying underground cables, and erecting posts, shall be available to all facility providers without discrimination and subject to the obligation of reinstatement or restoration of the property or payment of reinstatement or restoration charges in respect thereof at the option of the public authority".
198. In this context, divergent views have been expressed. State Government of Maharashtra stated that "the State Government has to have rnore powers than what has been presently specified in 59 (4) in giving the right of way for laying under ground Cables and erecting posts". On the other. hand, Govt. of Haryana submitted that "Clause 59 in particular should be made subject to any policy/guidelines of respective State Government/Public Authorities". Some other witnesses have held the view.that there should be a clause imposing penalty if the service providers availing right of way fail to restore the property to its original condition.
199. Asked for their comments on this issue, the Dot in a note has stated that the existing provision of sub-clause (4) gives sufficient flexibility to the public authority for laying down terms of reinstatement or restoration of property or payment in lieu thereof while granting permission to the facility provider.
200. The Committee feels that it is the duty of the service provider to restore the public property to its original condition. Therefore, the Committee finds it appropriate to clarify the position further with regard to the obligation of reinstatement or restoration of the property by the service provider and accordingly recommends that the following sub-clause be added after clause 59(4).
"59(4)A" If a service provider availing the right of way under this section fails to restore the property to its original condition, he shall be liable to pay such additional charges as the public authority may levy in accordance with its rules and regulations and any person may file a complaint in this regard."
201. The Committee also considers it appropriate to provide that the State Governments or public authority may lay common ducts in urban areas and offer the joint use thereof to service providers on payment of a fee.
202. In response, the Dot stated that the State Government and Public Authority have this inherent power with them. Hence, amendments proposed may not be required.
203. The Committee feels that it would be more appropriate if the clause is made self explanatory though the State Government and Public Authority have such inherent power with them. The Committee is also of the view that the provision regarding 'facility of right of way' in the said clause is a significant one and needs transparency. So, it recommends that the following to be added after sub-clause 59(4)(A) as 59(4)(B).
"59(4)(B). Notwithstanding anything contained herein above, any State Government or public authority may lay common ducts in urban areas and offer the joint use thereof to service providers on payment of a fee."
204. Clauses 63 and 64 deal with the use of private land by facility provider which reads as under :-
63(l) A facility provider may make use of private land or premises for constructing or laying of cables or erecting posts only with the consent in writing of the owner of the land or premises, as the case may be:
Provided that where in the opinion of a facility provider such consent to the reasonable use of any land or premises is not forthcoming, such facility provider may, on an application to and with the approval of the Commission, take steps authorised by the Commission for use of the land or premises for constructing or laying cables or erecting posts on such terms as the Commission may deem fit.
63(2) Where,
immediately before the commencement of this Act, a facility provider has made
use of private land or premises for constructing or laying of cables or erecting
posts without consent of the owner of the land or the premises and despite owner's
objection, the facility provider shall, within a period of six months from the
date of
commencement of this Act, obtain a written consent
of the owner, and the proviso to sub-section (1) shall apply mutatis mutandis
to this situation.
64(l) The Commission may by order, require any network infrastructure facility to be provided, constructed, installed, altered, moved, operated, used, repaired or maintained on any private land or premises or any system or method to be adopted by any person interested in, or affected by, the order, and at or within such time subject to such conditions as to compensation or otherwise and under such supervision as the Commission may determine to be just.
64(2) The Commission may, by order, specify by whom., in what proportion and at or within what time the cost of doing anything required to be done under subsection (1) shall be paid.
205. In this context, the Government of Maharashtra submitted that "in case of dispute arising between the license holder and a landholder, the application for adjudication must either be made to the district court, or could lie with the State Government whereas appeal against the State Govemment could lie with the Commission". On the other hand, the Government of Madhya Pradesh stated that "State Govemment and Local/District Administrators should also be made facilitators in this regard". Some other non-official witnesses stated that there should be a penal provision against the Cable operators in case they don't seek the consent of the owner.
206. The Department of Telecommunications has concurred with the proposal to amend clauses 63 and 64.
207. The Committee feels that for erection of high towers even on private rooftops, prior intimation should be given to the local Municipality etc. and if the latter objects to such erection on grounds of public safety etc. an agreed way out should be found. Accordingly, the Committee recommends that another proviso be added to clause 63(l) in the following terms:
"Provided further that before erecting a high tower on any building the service provider shall inform the concerned local authority about the same and if the latter objects thereto within a period of two weeks from the date of receipt of such intimation, a tower shall be erected only on clearance of the proposal by that authority."
208. The Committee also is of the view that it will not be practically possible for the Commission to deal with disputes arising between licence holders and property owners as it will be required to perform various other functions. It will thus be appropriate that these functions be carried out by the respective district courts within whose local limits of jurisdiction, the property concerned is situated. Hence, the Committee recommends that the following amendments be made in clause 63 & clause 64:
(iii) In clause 64 substitute the word "Commission" by the word "Court" .