ATC Telecom Infrastructure Private Limited v. KATTAKAMBAL Grama Panchayath and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 05TH DAY OF JULY 2019 / 14TH ASHADHA, 1941** **OP(C).No.1289 of 2019** **AGAINST THE ORDER/JUDGMENT IN CMA 10/2018 of SUB COURT, CHAVAKKAD DATED 28-11-2018** **AGAINST THE ORDER/JUDGMENT IN OS 686/2018 of MUNSIFF COURT, CHAVAKKAD DATED 15-09-2018** ## **- PETITIONERS/APPELLANTS/RESPONDENTS 1 TO 3 DEFENDANTS 1 TO 3:** **1 ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED REPRESENTED BY ITS SENIOR MANAGER(LEGAL) MR. BABU PATTATHANAM, CIRCLE OFFICE, DOOR NO.36/2624, 1ST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, KOCHI-682017.** **2 MR. RAJESH T.A, ASSISTANT MANAGER, ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED, CIRCLE OFFICE, DOOR NO.36/2624, 1ST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, KOCHI-682017.** **3 SHEREEF, S/O. KUNJIMON, VLAIYAVALAPPIL HOUSE, PAZHANJI P.O, AINOOR DESOM-680542.** **BY ADVS. SRI.PHILIP T.VARGHESE SMT.ACHU SUBHA ABRAHAM SRI.THOMAS T.VARGHESE** **- RESPONDENTS/RESPONDENTS/PETITIONERS 1 AND 2 PLAINTIFFS 1 AND 2 - AND RESPONDENTS 4 TO 6 DEFENDANTS 4 TO 6:** **1 SABU C.A. S/O.APPU CHERUVATHOOR HOUSE, KATTAKAMPAL, AYNOOR, KUNNAMKULAM TALUK, THRISSUR-680542.** o.p(c).1289/19 2 - **2 FAISAL T.A, S/O. ABOOBACKER, AYINMEL HOUSE, PAZHANJI P.O, THRISSUR DISTRICT-680542.** - **3 THE SECRETARY, KATTAKAMBAL GRAMA PANCHAYATH, KATTAKAMBAL, KUNNAMKULAM TALUK, THRISSUR DISTRICT-680542.** - **4 KATTAKAMBAL GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KATTAKAMBAL, KUNNAMKULAM TALUK, THRISSUR DISTRICT-680542.** - **5 KATTAKAMBAL GRAMA PANCHAYATH BHARANA SAMITHY, REPRESENTED BY ITS PRESIDENT, KATTAKAMBAL, KUNNAMKULAM TALUK, THRISSUR DISTRICT-680542.** **BY ADVS. SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 24.05.2019, THE COURT ON 05.07.2019 PASSED THE FOLLOWING:** o.p(c).1289/19 3 ## **JUDGMENT** Petitioners are the defendants 1 to 3 in O.S.No.686 of 2018 of the Munsiff's Court, Chavakkad. They are aggrieved by the order in I.A.No.3981 of 2018, by which, an interim injunction was granted by the trial court which was confirmed in C.M.A.No.10 of 2018 of the Sub Court, Chavakkad. According to the plaintiffs, first plaintiff is the Convenor and the second plaintiff is the Secretary of a Janakeeya Samithi. According to them, third defendant is in possession of 22 cents of land in resurvey 1006 of Pazhanji village. He had permitted first and second defendants to construct a mobile tower in the above property. It was claimed that the area was a thickly populated area and survey reports shows that, several instances of cancer were reported from the local people. If the mobile tower was installed, it may cause radiation and is likely to increase the incidents of cancer. Hence it poses threat to civil life of locals, it was alleged. 2. A complaint was given to the panchayath, pursuant to which, a stop memo was issued. Thereafter, Grama Panchayath issued permission dated 04.04.2018. It was alleged that, the permission granted was in breach of the Rules and without conducting local inspection and without verifying the necessary documents. It was also alleged that the land included puramboke land also. o.p(c).1289/19 4 3. The relief sought in the suit was to injunct the defendants from constructing the mobile tower and also to cancel the permit dated 04.04.2018 granted by the panchayath. Along with the suit, I.A.No.3981 of 2018 was filed, seeking an interim injunction restraining the defendants from constructing the tower. An ex parte injunction was granted. 4. The contesting respondents appeared and filed detailed objection. It was contended that, notice under section 249(1) of the Kerala panchayath Raj Act was not issued before launching the proceedings. The statutory remedy for challenging the issue of permit was also not resorted to. It was alleged that, the Janakeeya Samithi was only a paper organization. The allegation that the mobile tower will cause radiation, will pose threat to the civil life of the public and also expose the public to health hazards were baseless. It was also stated that, permit was granted in due course, after conducting the necessary enquiry. The allegation that the land included puramboke land was also denied. 5. On the basis of the documents produced by both sides and after hearing both sides, interim ex parte injunction granted by the court below was made absolute by the impugned order. The reason stated by the trial court was that, installation of mobile tower would cause severe health hazards. No study was conducted to find out whether electro magnetic radiation from the tower was safe for human beings. The invocation of permit was in violation of the Rules under the Panchayath o.p(c).1289/19 5 Raj Building Rules. Rule 11(1) obliged the Secretary to conduct the local inspection before issuing permit and to satisfy himself about the site plan and documents. There was nothing to show that, these procedures were complied with. 6. The order of the Munsiff Court was challenged in C.M.A.No.10 of 2018. After hearing both sides, the appeal was dismissed. However, lower appellate court held that the electro magnetic fitness certificate was granted by the competent authority. It was noticed by the learned appellate judge that in **Reliance Infocom Ltd. v. Chemanchery Grama Panchayath (2006(4) KLT 695)** and **Indus Towers Ltd. Palarivattorm and Ors. v. Sub Inspector of Police, Thodupuzha and Ors. (2014(4) KHC 81(DB))** it was held that the RF exposures from the mobile base stations were much less than from radio FM and television transmissions. Hence, court below concluded that the finding of the trial court that the installation of mobile tower would cause health hazards was not sustainable. 7. There is no dispute that the District Telecom Committee by Ext.P2 had directed the 4[th] respondent to grant building permit and the order was directed to be implemented by providing sufficient protection. After evaluating the available materials, I also concur with the above finding, since, except a bare allegation that, it may cause radiation and pose health hazards to the public, it was not supported by any materials. o.p(c).1289/19 6 On the other hand, trial court proceeded to hold that, in the absence of any study to show that the electro magnetic radiation from towers was safe for human being, permission was granted. Essentially, the Court proceeded on an initial premise that, electro magnetic radiation emitted from the mobile tower was likely to cause health hazards to the public. A Single Bench of this Court in **Petroleum Traders Welfare and Legal Service Society v. Union of India (2019(3) KLT SN 3 (C.No.4))** had, in a slightly different context dealt with identical issue. Regarding the establishment of petroleum outlets, it was held that, mere apprehension that there was every likelihood of causing environmental problems by setting up retail outlets cannot be a reason or ground to hold that the retail outlets cannot be advertised and allotted by the OMCs, since there are various modern technologies to eliminate the environmental issues and to protect the environment and the mother earth from such degradation. Hence, the conclusion arrived at by the lower appellate court on the above issue is only to be sustained. 8. However, the lower appellate court proceeded to hold that, there was non compliance of Panchayath Rules. Ext.P1 is the Radiation Compliance Certificate. Ext.P2 is the copy of minutes of District Telecom Committee, which overruled all objections and granted permission. In fact, before the District Telecom Committee, the objectors, in spite of service of notice, did not appear and oppose. In fact, persons other than o.p(c).1289/19 7 the plaintiffs were the objectors before DTC. Ext.A4 was the building permit granted to the defendants. 9. The further allegation of the plaintiffs was that, Ext.A4 was issued without proper enquiry. There is a further contention that, land included puramboke land also. This was accepted by the lower appellate court. It is pertinent to note that, apart from a mere wild allegation that panchayath committee issued permit without complying the statutory formalities and that, land included puramboke land, there was absolutely nothing to establish that, or much less, even to cast any doubt that, permit was issued without conducting any enquiry. Evidently, when a statutory authority issues the certificate, in the absence of prima facie material to doubt its veracity, it must be deemed that, it has been issued after due compliance of all statutory formalities. 10. Further contention that the land included puramboke land is also without any prima facie materials to substantiate it. In fact, in paragraph 1 of the plaint, plaintiff had stated that, plaint schedule property consisted of 22 cents, in possession of the plaintiffs. A bare allegation that, it included puramboke land, does not cast any obligation on the defendants to establish that the property does not include puramboke land. Essentially, defendants are not called upon to answer each and every wild and bare allegations raised against them. 11. Another circumstance pointed out by the learned Appellate Court was that, even though Ext.A4 copy of building permit shows that, as o.p(c).1289/19 8 per Rule 130(6) the work permit shall be for construction or erection of telecommunication tower shall be completed within one year from the date of issuance of permit. Lower appellate court noted that, Ext.A4 expressly provided that the permit was expressly valid for three years from 04.04.2018. Hence, Court noted that, Ext.A4 is valid for three years exceeding the statutory period given and hence, it leads to a conclusion that, there are apparent violation of the Rules. According to the learned counsel for the defendants, it is a error committed by the authority. According to the counsel, in fact, it was issued in accordance with statutory provision. 12. In the above circumstance, I am not inclined to concur with the above findings arrived at by both courts that, permit was granted without any compliance of statutory formality. Having considered the above facts, impugned orders, which are confirmed by the lower appellate court, cannot be sustained. Both the Courts have committed fundamental error in analyzing the facts and law and by relying on irrelevant materials. However, it is pertinent to note that, court below though relied on these two essential points concluded that, injunction is liable to be granted, took note of the fact that, stay was granted by the panchayath evidenced by Ext.A7 based on a mass petition given. There is no material available now to show whether such an interdiction was granted. Further, the court below also did not consider specifically the nature of construction, stage of construction and how far o.p(c).1289/19 9 the balance of convenience favoured both sides. Having considered this, I am inclined to set aside both the impugned order and the judgment of lower appellate court. O.P(C) is allowed and Ext.P6 and Ext.P13 judgments are set aside. **Sd/-** Sbna **SUNIL THOMAS JUDGE** o.p(c).1289/19 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF EMF CERTIFICATE FOR RADIATION COMPLIANCE ISSUED BY TERM CELL DATED 24.08.2017.** - **EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE DISTRICT TELECOM COMMITTEE, THRISSUR HELD ON 22.02.2018.** - **EXHIBIT P3 TRUE COPY OF THE BUILDING PERMIT NO.1/2018-19 ISSUED BY THE SECRETARY, KATTAKAMPAL GRAMA PANCHAYATH DATED 04.04.2018.** - **EXHIBIT P4 TRUE COPY OF PLAINT IN OS NO.686/2018 OF THE MUNSIFFS COURT, CHAVAKKAD DATED 04.06.2018.** - **EXHIBIT P5 TRUE COPY OF IA NO.3981/2018 IN OS NO.686/2018 OF THE MUNSIFFS COURT, CHAVAKKAD DATED 04.06.2018.** - **EXHIBIT P6 TRUE COPY OF THE ORDER OF INJUNCTION ISSUED BY THE MUNSIFF COURT, CHAVAKKAD IN IA NO.3981/2018 IN OS NO.686/2018 DATED 08.06.2018.** - **EXHIBIT P7 TRUE COPY OF WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN OS NO.686/2018 OF THE MUNSIFFS COURT, CHAVAKKAD DATED 25.06.2018.** - **EXHIBIT P8 TRUE COPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENTS 1 TO 3 IN IA NO.3981/2018 IN OS NO.686/2018 OF THE MUNSIFFS COURT, CHAVAKKAD DATED 25.06.2018.** - **EXHIBIT P9 TRUE COPY OF IA NO.4823/2018 IN OS NO.686/2018 OF THE MUNSIFFS COURT, CHAVAKKAD DATED 30.06.2018.** - **EXHIBIT P10TRUE COPY OF JUDGMENT OF THE HON'BLE HIGH COURT OF KERALA IN OPC NO.1826/2018 DATED 24.07.2018.** **EXHIBIT P11TRUE COPY OF THE ORDER MUNSIFFS COURT, CHAVAKKAD IN IA NO.3981/2018 IN OS NO.686/2018 DATED 15.10.2018.** - **EXHIBIT P12TRUE COPY OF THE MEMORANDUM OF APPEAL FILED AS CMA NO.10/2018 DATED 15.10.2018 BEFORE THE SUB COURT, CHAVAKKAD SUBMITTED BY THE PETITIONERS.** **EXHIBIT P13TRUE COPY OF THE ORDER OF THE SUB COURT, CHAVAKKAD, IN CMA NO.10/2018 DATED 28.11.2018.**