Nothing on earth can be more better than to do something which directly benefits people from rural and backward areas who don't have the privilege of modern day life which people living in urban areas are enjoying relentlessly since decades! In a significant step in this direction, the Himachal Pradesh High Court in a learned, laudable, landmark and latest judgment titled Ms Vandana Misra vs The Chief Engineer, PWD, Director Town and Country Planning and Town and Country Planner (HP) in CWP No. 3123 of 2021 with CWP No. 1398 of 2018 that was delivered finally on December 22, 2021 issued several directions on PIL over boosting internet connectivity in State especially rural and backward areas. This is no less than a boon for the people living in rural and backward areas and for this the Himachal Pradesh High Court has to be given full credit for issuing so many directions to ensure that internet connectivity is boosted in the State especially in rural and backward areas.
To start with, the ball is set rolling first and foremost in para 1 of this cogent, commendable, composed and convincing judgment authored by a Bench comprising of Justice Tarlok Singh Chauhan and Justice Chander Bhusan Barowalia of Himachal Pradesh High Court wherein it is put forth that:
The instant petition has been filed as Pro bono Publico by the petitioner highlighting therein the plight of the residents of the State, more particularly, the residents of the rural and backward areas of the State in the matters regarding internet services.
To recapitulate, the Bench then recalls in para 2 that:
The Government of India had formulated a new telecom policy in the year 1994 aimed at giving highest priority to the development of telecom services in the Country in conformity and in furtherance of Government of India's Economic Policy. Thereafter, various guidelines for streamlining the provisions of right of way to telecom service licensees and also to the infrastructure providers were laid down. These mobile guidelines were formulated, keeping in view the object of creating a robust telecommunication infrastructure with adequate bandwidth at affordable rates and in order to promote Development and Proliferation of Information Technology, Electronic Governance, E-Commerce, convergence of information, Communication and Entertainment sectors so as to improve the state of economy, enhance the quality of life of the citizens and to ensure development of urban and rural areas with equity throughout the country.
Needless to say, the Bench then observes in para 3 that:
This Court took cognizance of the matter and issued various directions and has also called for the suggestions for better internet connectivity within the state of H.P.
It cannot be just glossed over that the Bench then also deems it fit to mention that:
Before we proceed, we may take note of the letter addressed by the Hon'ble Chief Justice of India to Minister of Law, Justice, Communications, Electronics and IT, dated 8.6.2021, which reads as under:
I am writing to bring to your kind attention certain issues that emerged during the course of my recent interaction with the Chief Justices of all the High Courts which need immediate intervention of the Union Government:
- To strengthen the network and connectivity beyond major urban centres, particularly in rural and tribal areas, as the digital divide is adversely impacting the functioning of the Courts in the wake of COVID19 pandemic
- To augment the provisioning of vaccines to immunize all the functionaries associated with the Courts and their families across the country to facilitate full scale functioning;
- To recognize all the functionaries of the Courts, including the advocates, as frontline workers for the purpose of providing pandemic related relief; and
- To provide financial support to advocates, especially the junior advocates, who are struggling to make both ends meet due to loss of work for more than a year since the onset of pandemic.
It would be highly appreciated, if you could take up these issues with the concerned Ministries/Departments at the highest level. Needless to mention that the judicial infrastructure needs to be augmented with latest information and communication technology tools to facilitate access to justice during the post pandemic time. Further, the judicial infrastructure needs to be streamlined and revamped to deal with the challenges of pendency. A blue print of the proposal to set up the National Judicial Infrastructure Corporation (NJIC) is in the final stages of preparation and will be shared with the Union Government shortly.
I am of the firm belief that concerted efforts need to be put into it, in order to materialize this concept, in view of the challenges put forth by the pandemic. During the course of my interaction with the Chief Justices of all the High Courts, I have impressed on the need to expedite the process of sending recommendations through Collegium to fill up the vacancies in the respective High Courts. This was in furtherance to my communication addressed to the Chief Justices of all the High Courts soon after I had assumed the office of the Chief Justice of India. I have been assured of positive and accelerated action by the Chief Justice.
Look forward to your active intervention in addressing the aforementioned concerns.
Adding more to it, the Bench then observed in para 5 that:
We are of the considered view that the concern expressed by the Hon'ble Chief Justice of India should not be confined to the functioning of the Courts alone, but also be read in a wider context, more particularly, to redress the issue concerning the school going children, majority of whom are still having classes online.
Most significantly, the Bench then in short issued several useful directions on PIL over boosting internet connectivity in State especially rural areas holding in para 6 that:
Some of the suggestions which require immediate attention, have been handed over to the Court. We shall proceed to deal with them one by one.
- Replace Building Completion Certificate with Structure Suitability Certificate:
The Bench then observes in para 10 that:
Accordingly we direct the Chief Engineer, HPPWD to convene a meeting of the representatives of the Town and Country Planning, Information Technology, Rural Development, Urban Development and Municipal Corporation, Shimla, to look into the feasibility of replacing the condition of submission of Building Completion Certificate with Structure Suitability Certificate alone or in alternate, making a provision for granting the completion certificates floorwise for ensuring the structure suitability.
As we see, the Bench then also directs in para 11 that:
A three-member committee be appointed to check the structure stability and once the building is found to be fit, then grant No Objection Certificate(s) for installation of the towers.
- Construction of Common Duct:
There can be no gainsaying that the Bench then points out in para 16 that, Implementation/inclusion of clause for construction of common ducts in bids/tender documents should be mandatory while construction/widening of roads. The utilization of common ducts will enable faster roll out of telecom infra and at the same time inconvenience to general public towards digging of roads can be avoided.
- Review of RoW Charges
Briefly stated, the Bench then envisaged in para 19 that:
The charges that are being levied by the HPPWD for RoW are probably the highest in the country and therefore , this issue needs to be redressed and rates need to be brought at par with the adjoining state(s) having the same kind of terrain and topography. The major portions of the road in Himachal Pradesh are kutcha and the State Government does not even have to incur any cost on restoration of these roads as trenches dug are again refilled back by TSP/ISP. Therefore, there should be no RoW (Right of Way) charges or the same should be at a far lesser rate than the one being currently charged. The Chief Engineer to the Govt of H.P. assured the Court that the proper exercise regarding the same would be undertaken and the compliance report shall be placed before this Court on the next date of hearing.
- National Building Code for in-building fibre:
Truth be told, the Bench acknowledges in para 20 that:
It cannot be disputed that the ultimate internet experience can only be achieved through Fiber to Home. Fiber has unlimited bandwidth, whereas radio/mobile signals are limited in bandwidth. For ultimate delivery of machine-to-machine communication in future fiber to home is must. At present no code has been incorporated to accommodate fiber in modern housing complexes and societies which results in slowing down rolling of telecom infrastructure.
Be it noted, the Bench then enunciates in para 21 that:
A suggestion has been put across that all the drawings/approvals for such urban development projects should include National Building Code for in-building fiber for faster roll out of telecom infrastructure for faster service delivery.
As a consequence, the Bench then holds in para 22 that:
Since the Court lacks expertise in this field, we direct the state to constitute a state level coordination committee to put forth suggestions in its report and the decision taken by it be placed before this Court on the next date of hearing.
- Penalty clause on fibre cut:
On the face of it, the Bench then concedes in para 24 that:
A suggestion has been put across that the penalty clause on fibre cut need to be included in all tendered documents/bids by various departments of the State to minimize and restore the service swiftly. This indeed is a valuable suggestion and the same needs to be considered by the State level coordination committee. Ordered accordingly.
- Offering State Govt Land and Buildings For Telecom Infra:
Of course, the Bench then hastens to add in para 26 that:
A suggestion has been put forth that offering of government land and building should be at token amount of rent for first 5 – 10 years and other promotions at par with the industry. The targets for offering state government land and buildings needs to be fixed to all districts for faster roll out of services. We again find this suggestion to be meaningful and therefore, we direct the same to be placed in the next meeting of the state level Coordination meeting.
- Dig-once and Call before you Dig Policy:
Needless to say, the Bench then reiterated in para 27 that:
'Dig once' and 'Call before you Dig' policy should be encouraged as part of State's policy to avoid unnecessary breakdown of services. This issue has already been considered by us while dealing with point No. 2. Therefore, we need not reiterate the same.
It is worth noting that the Bench then remarked in para 28 that:
We also notice that the state level coordination committee meeting is held only quarterly, whereas we are of the considered view that this committee ought to meet regularly that too on monthly basis, so that recommendations and observations of the committee can be effectively implemented. Accordingly, the state level coordination committee shall consider desirability of holding monthly meetings.
Quite troublingly, the Bench then laments in para 29 that:
Another disturbing factor, which has come to the notice of the Court is the manner in which some of the electricity connections are being unnecessarily delayed by the HPSEBL. One such glaring instance is at serial No. 60 of Abstract of Electricity Connection to Tower sites of TAIPA, which goes to reveal that even though application for providing electricity connection was submitted on 29.10.2014 and even 100% of the amount of Rs. 5,44,408/ was deposited by the HPCL, however the work till date has not been executed departmentally by the HPSEBL due to RoW issue.
As a corollary, the Bench then holds in para 30 that:
Therefore, we direct the Executive Director, HPSEBL to personally look into the matter and report compliance on the next date of hearing.
What's more, the Bench then discloses in para 31 that:
Apart from above, it is brought to the notice of the Court that the service providers only cover the urban areas without taking any steps to ensure coverage of mobile network in shadow/rural areas. The service providers should shoulder the responsibility for covering the shadow areas.
Quite naturally, the Bench then observes in para 32 that:
The suggestion is meaningful and we accordingly direct all the service providers to response this suggestion with facts and figures and steps taken in this regard.
Finally, the Bench then concludes by holding in para 33 that:
The concerned respondents are directed to comply with the aforesaid directions and report compliance on the next date of hearing. In addition thereto, they shall report compliance with regard to the decision(s) taken by the State Level Coordination Committee in its meeting on 15.11.2021, which despite opportunity granted on 17.11.2021 have not been complied with. The service providers are also at liberty to put forth their grievances and problems so that an endeavour to resolve the same can be made. List on 5.1.2022.
All in all, it certainly merits no reiteration that the Himachal Pradesh High Court has issued several commendable, cogent and convincing directions on PIL over boosting internet connectivity in state especially rural and backward areas as discussed hereinabove. There can be no gainsaying that these commendable directions must be implemented at the earliest. It brooks no more delay now! No denying it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh
