Ascend Telecom Infrastructure Pvt. Ltd. v Mullassery Grama Panchayath and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 WP(C) NO. 12466 OF 2023** ## **PETITIONER:** **ASCEND TELECOM INFRASTRUCTURE PVT. LTD 2ND FLOOR, SALAMIYA BUILDINGS NH-47, AYSHA ROAD, VYTTILA.P.O, ERNAKULAM- 682 019, REPRESENTED BY CIRCLE HEAD, P.N.JAYAKUMAR, AGED 49 YEARS, S/O. NANDA KUMAR NAIR, HAVING RESIDENCE AT 52/2425, KAILASAM, VYTILLA , ERNAKULAM, KERALA., PIN – 682019.** **BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR SURAJ KUMAR D.** ## **RESPONDENTS:** - **1 THE DISTRICT TELECOM COMMITTEE THRISSUR DISTRICT REPRESENTED BY ITS CHAIRMAN/DISTRICT COLLECTOR, COLLECTORATE,AYYANTHOLE, THRISSUR., PIN – 680003.** - **2 THE STATION HOUSE OFFICER PAVARATTY POLICE STATION, MULLASSERY P.O. THRISSUR – 680509.** - **3 THE DISTRICT POLICE CHIEF OFFICE OF THE DISTRICT POLICE CHIEF, RAMAVARMAPURAM ROAD MANNUMKAD, THRISSUR., PIN – 680631.** 2 ## **W.P.(C)Nos.12466 & 18497/2023** - **4 MULLASSERY GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, CHAVAKKAD TALUK,KANJANY, PERINGOTTUKARA ROAD, MULLASSERY, KERALA., PIN – 680509.** **5 BIJEESH S/O. VIJAYAN, APPANADATH HOUSE, MULLASSERY P.O. THRISSUR – 680509.** - **6 SUBRAMANYAN S/O. SANKARAN,EDAKANNADATH HOUSE, MULLASSERY P.O. THRISSUR – 680509.** **BY ADVS. RAJIT P.RAMACHANDRAN RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2023, ALONG WITH WP(C).18497/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)Nos.12466 & 18497/2023** 3 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 9[TH] DAY OF JUNE 2023 / 19TH JYAISHTA, 1945 WP(C) NO. 18497 OF 2023** ## **PETITIONER:** **ASCEND TELECOM INFRASTRUCTURE PVT. LTD 2ND FLOOR, SALAMIYA BUILDINGS NH-47, AYSHA ROAD, VYTTILA.P.O, ERNAKULAM - 682 019, REPRESENTED BY CIRCLE HEAD, P.N.JAYAKUMAR, AGED 49 YEARS, S/O. NANDA KUMAR NAIR, HAVING RESIDENCE AT 52/2425, KAILASAM, VYTILLA , ERNAKULAM, KERALA., PIN – 682019.** **BY ADVS. KRISHNA PRASAD. S SINDHU S KAMATH SWAPNA S.K. ROHINI NAIR SURAJ KUMAR D.** ## **RESPONDENTS:** **1 MULLASSERY GRAMA PANCHAYATH REPRESENTED BY THE SECRETARY, CHAVAKKAD TALUK,KANJANY, PERINGOTTUKARA ROAD, MULLASSERY, KERALA., PIN – 680509.** **2 THE SECRETARY MULLASSERY GRAMA PANCHAYATH, CHAVAKKAD TALUK,KANJANY, PERINGOTTUKARA ROAD, MULLASSERY, KERALA., PIN – 680509.** 4 ## **W.P.(C)Nos.12466 & 18497/2023** - **3 SUBRAMANYAN** **S/O. SANKARAN,EDAKANNADATH HOUSE, MULLASSERY P.O. THRISSUR – 680509.** **BY ADVS. RAJIT RAJEEV JYOTHISH GEORGE, GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.06.2023, ALONG WITH WP(C).12466/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C)Nos.12466 & 18497/2023** 5 ## **J U D G M E N T** Dated this the 9[th] day of June, 2023 Both these writ petitions are filed by the petitioner, which is a Company and an infrastructure provider. 2. In W.P.(C) No.12466/2023, the petitioner states that the Government of India has granted licence to the petitioner for construction of a Telecommunication Tower in the Mullassery Grama Panchayat. The petitioner is constructing the Telecommunication Tower after obtaining Building Permit and all other requisite permits and licences. Respondents 4 to 6 are obstructing the construction work illegally, alleging that the construction of Mobile Tower is not as per rules and that adversely affect the health of the local residents. The petitioner seeks police protection to construct the Tower. 3. The petitioner subsequently filed W.P.(C) No.18497/2023, when the Grama Panchayat issued Ext.P3 Stop ## **W.P.(C)Nos.12466 & 18497/2023** 6 Memo. Ext.P3 Stop Memo stated that complaints have been received in respect of the construction of Telecom Tower by the petitioner and therefore, the petitioner should stop the work relating to the construction of Tower until further orders are received. 4. The petitioner states that the petitioner proposed to construct a Telecom Tower and the Mullassery Grama Panchayat has issued Ext.P2 Site Approval and Building Permit on 27.01.2023. The District Telecom Committee considered complaints on the construction. The District Telecom Committee noted that the TERM Cell has informed that the intensity of radiation from the Tower will be within the permissible limits. The District Telecom Committee noted that there is no chance for any health hazard or concern in respect of the Tower. Therefore, the District Telecom Committee permitted the petitioner to proceed with and complete the construction on the basis of the permissions already granted. While the construction was in progress, 7 ## **W.P.(C)Nos.12466 & 18497/2023** respondents 5 and 6 and persons under them caused obstruction to the construction work. 5. Thereafter, the Grama Panchayt issued Ext.P3 Stop Memo. In Ext.P3 Stop Memo, no legal and tangible reason is advanced for stopping the work. The only reason advanced in Ext.P3 is that there are complaints against construction of Telecom Tower, from the local residents. 6. The counsel for the petitioner urged that the petitioner is constructing the Mobile Tower after obtaining Building Permit, Site Approval, etc. from the Panchayat authorities and the construction is approved by the competent authority, namely the District Telecom Committee. Therefore, the party respondents cannot obstruct the work. The Panchayat also committed a grave error in issuing Stop Memo in respect of the work, which is being proceeded with after complying with all the provisions of law. The police authorities are liable to extend police protection and the Stop Memo issued by the Panchayat is liable to be set aside, ## **W.P.(C)Nos.12466 & 18497/2023** 8 contended the counsel for the petitioner. 7. The 4[th] respondent-Panchayat filed a statement in W.P.(C) No.12466/2023. The 4[th] respondent-Panchayat submitted that so long as Stop Memo is issued by the Panchayat, no police protection can be granted to the petitioner. In the Statement dated 07.06.2023 filed by the Panchayat in WP(C) No.18497/2023, the Panchayat authorities have stated that they have received various complaints from the residents of the locality, which were forwarded to the District Collector for further action. 8. As per the request of the residents of the area, the Panchayat Committee convened a special Grama Sabha on 10.03.2023 to discuss the matter. Due to lack of quorum, the meeting could not be held on that day. The special Grama Sabha meeting was again convened on 19.03.2023. The President of the Panchayat directed the decision of the Grama Sabha to be placed before the District Collector. Nearby 269 residents have made complaints against the construction. The allegation is that the ## **W.P.(C)Nos.12466 & 18497/2023** 9 construction is being carried out ignoring statutory requirements and without obtaining consent of the residents residing within 100 metres. 9. The statement further proceeds to divulge that the District Collector had convened a meeting on 23.03.2023 with notice to all parties and had authroised Mr.James, the District Telecom Committee Member to visit the site on 25.03.2023 and submit a report. The Panchayat is awaiting the report and the decision of the District Collector. 10. Respondents 5 and 6 in W.P.(C) No.12466/2023 vehemently opposed the writ petition. On behalf of respondents 5 and 6, it is pointed out that the Panchayat, in larger public interest, has already issued Stop Memo. Therefore, the writ petition for police protection is not maintainable. 11. Respondents 5 and 6 further submitted that the Department of Telecommunication has issued advisory guidelines for State Government on the issue of grievances in installation of ## **W.P.(C)Nos.12466 & 18497/2023** **==> picture [13 x 9] intentionally omitted <==** Mobile Towers, as per Ext.R5(b). Ext.R5(b) guidelines would indicate that the antenna of the Mobile Tower should be at least 5 metres above the ground level. The height of the Tower proposed by the petitioner is only 12 Metres. In such a situation, the antenna will be installed at a lesser height. There are several houses of the neighboring residents within the prohibited distance mentioned in Ext.R5(b) guidelines. 12. It is further stated that about 15 Metres towards South from the site where the Mobile Tower is to be constructed, one Ariyakkara Sivaraman has a residential house which has a height of 10.5 Metres. Similarly, the house of Naduvilpurakkal Saseeendran is having a height of about 12 Metres and is hardly about 18 Metres away form the site. The residence of Cheeroth Sureshkumar is having a height of about 4.5 Metres and is situated only 4 Metres away from the site. The other residents of the locality also are in close proximity of the proposed Telecom Tower. If more antennae are used by the petitioner, safe distance ## **W.P.(C)Nos.12466 & 18497/2023** **==> picture [12 x 9] intentionally omitted <==** as stipulated in Ext.R5(b) guidelines will be violated and there will be more buildings within the prohibited distance. 13. Respondents 5 and 6 further submitted that the safe distance will have to be calculated so that it should be within the property of the owner in whose property the Telecom Tower is erected. Otherwise, it will adversely affect the neighboring residents. 14. Respondents 5 and 6 attended the District Telecom Committee Meeting held on 23.03.2023, but the concerns raised by the respondents were not addressed. The District Collector was not present in the meeting. The meeting was presided over by the Deputy Tahsildar. Ext.P5 order was passed by the 1[st] respondent as the petitioner suppressed material facts during the hearing. Respondents 5 and 6 were not given copy of the decision to the District Telecom Committee. As the proposed Telecom Tower is causing severe health hazard to the nearby residents, the writ petitions filed by the petitioner are liable to be dismissed. ## **W.P.(C)Nos.12466 & 18497/2023** 12 15. I have heard the learned Counsel for the petitioner, the learned Government Pleader representing the State and the police authorities, the learned Standing Counsel for the Mullassery Grama Panchayat and the learned Counsel representing respondents 5 and 6 in W.P.(C) No.12466/2023. 16. From the pleadings and arguments raised at the Bar, it is evident that the petitioner has obtained Ext.P4 Site Approval and Building Permit from the Grama Panchayat for erection of a Telecom Tower in building No.10/376 in Mullassery Village of Chavakkad Taluk. The plot area described in Ext.P2 is 809 Square Metres. 17. Ext.P5 proceedings of the District Telecom Committee would indicate that the District Telecom Committee has considered the concerns of the local residents. The District Telecom Committee took into consideration the report of the TERM Cell. The TERM Cell under the Department of Telecom concluded that in view of the nature of the Telecom Tower being erected, there is ## **W.P.(C)Nos.12466 & 18497/2023** **==> picture [13 x 9] intentionally omitted <==** no health hazards to the nearby residents. Based on the said stand of the TERM Cell, the District Telecom Committee gave its seal of approval for construction of the Telecom Tower. 18. When the petitioner is constructing the Mobile Tower after obtaining Building Permit and Site Approval from the Panchayat and approval from the District Telecom Committee, who is the competent authority in the matter of assessment of health hazards and other grievances relating to Telecom Towers, it will not be permissible for respondents 5 and 6 in W.P.(C) No.12466/2023 to cause physical obstructions to the construction of Tower by the petitioner. 19. Similarly, the Grama Panchayat will not be justified in issuing Stop Memo to the petitioner once the Secretary to the Grama Panchayat has issued Building Permit and Site Approval after ascertaining compliance of Building Rules. This Court has considered the powers and functions of Grama Sabhas functioning in Panchayats, in the judgment in **Abdulla v.** **W.P.(C)Nos.12466 & 18497/2023** **==> picture [13 x 9] intentionally omitted <==** **Trippangottur Grama Panchayat** (2021 (5) KLT 200). When the competent statutory licencing authority has considered the Building Permit application and has granted permission for the construction of the Telecom Tower, the Panchayat will not be justified in issuing Stop Memo for the sole reason that there are complaints from the local residents and Grama Sabha meeting has taken a decision against the Telecom Tower. 20. Respondents 5 and 6 would submit that their concerns were not property addressed by the District Telecom Committee and the decision of the District Telecom Committee was not communicated to respondents 5 and 6. If that be so, it is for respondents 5 and 6 to take up the matter and challenge the decisions of the District Telecom Committee by resorting to appropriate legal proceedings. That by itself would not give a right to respondents 5 to 6 to take law into their hands. In the facts and circumstances of the case, W.P.(C) No.12466/2023 is disposed of directing the 2[nd] respondent-Station ## **W.P.(C)Nos.12466 & 18497/2023** **==> picture [13 x 9] intentionally omitted <==** House Officer to give adequate protection to the petitioner for construction of the Telecom Tower from any obstructions from respondents 5 and 6 and anyone claiming under them. Ext.P3 Stop Memo in W.P.(C) No.18497/2023 is set aside. It is made clear that the construction of the Telecom Tower by the petitioner should be strictly in terms of the guidelines issued by the Department of Telecommunications and the competent authorities should ensure that the guidelines are properly complied with. If respondents 5 and 6 in WP(C) No.12466/2023 have any grievance regarding the distance of antenna once the Telecom Tower is installed, respondents 5 and 6 will be at liberty to approach the District Telecom Committee against any violation of guidelines or statutory provisions. The writ petitions are disposed of as above. Sd/- **N. NAGARESH JUDGE** ams **W.P.(C)Nos.12466 & 18497/2023** 16 ## **APPENDIX OF WP(C) 12466/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE G.O. DOT/KRL/6-14/DMCORR/2019-20 DATED 24-03-2020.** **Exhibit P2 A TRUE COPY OF THE BUILDING PERMIT NO: A 3-BA(33254)/2023 DATED 27-01-23 ISSUED TO THE PETITIONER BY THE MULLASSERY GRAMA PANCHAYAT.** **Exhibit P3 A TRUE COPY OF THE STOP MEMO WRONGLY DATED 13-02-22 ISSUED TO THE PETITIONER BY THE 4TH RESPONDENT.** **Exhibit P4 A TRUE COPY OF THE COMPLAINT PREFERRED BEFORE THE 1ST RESPONDENT BY THE PETITIONER DATED 15-02-2023.** **Exhibit P5 A TRUE COPY OF THE MINUTES OF THE MEETING HELD ON 23-03-2023 DATED 31-03-2023.** **RESPONDENT EXHIBITS** **Exhibit-R5(a) TRUE COPY OF THE PETITION DATED 05.04.2023 BY THE 6TH RESPONDENT AND CHEEROTH SURESHKUMAR BEFORE THE 1ST RESPONDENT** **Exhibit-R5(b) TRUE COPY OF THE ADVISORY GUIDELINES FOR STATE GOVERNMENT AND ADDITIONAL GUIDELINES TO TERM CELL BY THE DEPARTMENT OF TELECOMMUNICATIONS** 17 ## **W.P.(C)Nos.12466 & 18497/2023** ## **APPENDIX OF WP(C) 18497/2023** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE G.O. DOT/KRL/6-14/DMCORR/2019-20 DATED 24-03-2020** **Exhibit P2 A TRUE COPY OF THE BUILDING PERMIT NO: A 3-BA(33254)/2023 DATED 27-01-23 ISSUED TO THE PETITIONER BY THE MULLASSERY GRAMA PANCHAYAT** **Exhibit P3 A TRUE COPY OF THE STOP MEMO WRONGLY DATED 13-02-22 ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT** **Exhibit P4 A TRUE COPY OF THE MINUTES OF THE MEETING DATED 31-03-2023 SIGNED ON 01-04-2023 Exhibit P5 A TRUE COPY OF THE MINUTES OF THE MEETING DATED 17-05-2023 SIGNED ON 18-05-2023**