RIGHT OF WAY FOR TELECOMMUNICATION NETWORK

[Mr. M. GOVINDARAJAN]

Right of way

The expression ‘right of way’ has not been defined in Telecommunications Act, 2023 (‘Act’ for short).  In common parlance the right of way is a right under which a telecom infrastructure provider will be facilitated the use of public property upon application.  The Act discussed in detail in Chapter III of the Act.

Facility provider

Section 10(a) of the Act defines the expression ‘facility provider’ as the Central Government or any authorized entity, including any contractor or sub-contractor or agent working for the Central Government or authorized entity, and shall include their successor or assignee.

Public entity

Section 10(b) of the Act defines the expression ‘public entity’ as-

• the Central Government;
• the State Government;
• local authority;
• any authority, body, company or institution incorporated or established by the Central Government or the State Government or under any statute; or
• any non government entity vested with the ownership, control or management of any public facility or class of public facilities as may be notified by the Central Government.

Public property

Section 10 (c) of the Act defines the expression ‘public property’ as any property, whether moveable or immovable including any machinery, which is owned by, or in the possession of, or under the control or management of any public entity.

Permission

Any facility provider may apply to the public entity seeking permission for right of way for telecommunication network under, over, across, in or upon such public property.  On receipt of the application from the facility provider the public entity shall grant permission for any of the following acts-

• survey such property for assessing the feasibility for establishing the telecom network; or
• enter the property from time to time to establish, operate, maintain, repair, replace, augment, remove or relocate any telecommunication network.

The public entity shall grant permission to the facility provider in an expeditious manner and within the timelines as may be prescribed.  The facility provider shall pay the administrative expenses and compensation for right of way.

The application for permission may be rejected by the public entity on recording the reasons for such rejection.

Obligations of facility provider

While undergoing any of the work for which permission has been granted, the facility provider shall do as little damage to the public property.  He is also to ensure that the continuity of operations over such property is not adversely affected.

If any damage is caused to the public property the facility provider at the option of the public entity shall either restore such property to its state existed prior to the undertaking of such activities or pay compensation for the damages caused to the property as may be mutually agreed.

Private property

In respect of private property for right of way the facility provider may apply to the person who owns such property seeking right of way for telecommunication  network.  The owner of the property and the facility provider may enter into an agreement, specifying consideration as mutually agreed for undertaking survey for assessing the feasibility  for establishing telecommunication network or establishing, operating, maintaining, repairing, replacing, augmenting, removing or relocating any telecommunication network by the facility provider.

The obligations of the facility provider are that of the same applicable to the properties owned by the public entity.

If the person fails to provide the right of way as requested by the facility provider the Government, if considered it that it is necessary so to do in the public interest, shall determine that such facility provider shall be permitted the right of way to establish, operate, maintain such telecommunication network, subject to such terms and conditions, including charges for the right of way, and compensation for damage to the property, if any, to be payable to such person as may be prescribed.

Non discrimination

Any person providing right of way either by public entity or by a private person, shall ensure grant of right of way to the facility providers in a non-discriminatory manner and, as far as practicable, on a non-exclusive basis.

Rule

The Central Government already made rule called ‘Indian Telegraph Right of Way Rules, 2016 which amended from time to time.  The said Rule has been framed under the powers given to the Central Government under the provisions of the Indian Telegraph Act, 1885.  The said rule has been amended during August 2023.

Section 12(5) of the Act provides that the  Central Government may by rules provide for the procedure to be followed by a facility provider to enter, survey, establish, operate, maintain, repair, replace or relocate the telecommunication network, including the notice period, the manner of issuance of notice, the framework governing objections by owner or occupier of the property, the manner in which such objections would be resolved, and matters relating to the compensation payable for any damage.

Status of the property

A facility provider shall not have any right, title or interest in the property on which telecommunication network is established, except the right to use the property.  The telecommunication network installed on any property, shall not be subject to any claims, encumbrances, liquidation or the like, relating to such property.  It shall not be considered as part of such property, including for the purposes of any transaction related to that property, or any property tax, levy, cess, fees or duties as may be applicable on that property.

Coercive action

The Central Government shall have the authority to take any coercive action, such as sealing, preventing access, or forcible shutdown of the telecommunication network established by an authorized entity, except where such actions may be necessary to deal with any natural disaster or public emergency.

Common ducts

The Central Government may notify infrastructure projects or class of infrastructure projects, whether being developed by a public entity by itself, through a public private partnership or by any other person that may require establishment of common ducts or conduits or cable corridors, for installation of telecommunication network.  The same shall be made available on open access basis to facility providers, subject to such terms and conditions, including fees and charges, as may be prescribed.

Removal of network

Any person entitled to do so desires to deal with that property in such a manner so as to render it necessary or convenient that the telecommunication network should be removed or relocated to another part thereof or to a higher or lower level or altered in form, he may require the facility provider to remove, relocate or alter the telecommunication network accordingly.  Such person shall, when making the requisition tender to the facility provider the amount requisite to defray the expense of the removal, relocation or alteration on such terms as may be mutually agreed.

If the facility provider fails to comply with the requisition, the person making such requisition, may apply to the District Magistrate within whose jurisdiction the property is situated, to order the relocation or alteration.  The District Magistrate n may, at its discretion and for reasons to be recorded in writing, approve or reject such relocation or alteration, subject to such conditions as it determines fit, including the relocation of the telecommunication network to any other part of the property or to a higher or lower level or for the alteration of its form, and the order so made shall be final.  The District Magistrate may order such person to abstain from dealing with such property in such manner for a period not exceeding one month from the date of his order and forthwith to take such action with regard to such property as may be in the opinion of the District Magistrate necessary to remedy or prevent such damage, interruption or interference during such period.