IN THE HIGH COURT OF KERALA AT ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 15TH DAY OF JANUARY 2021 / 25TH POUSHA, 1942** ## **WP(C).No.22770 OF 2020(U)** ## **PETITIONERS:** - **1 MUHAMMED BASHEER AGED 49 YEARS S/O.ADAM, MANTHIYIL HOUSE, VETTIKATHIRI (P.O.), NEDUMPURA, THRISSUR-679 531** - **2 MUHAMMED SUBAIR AGED 49 YEARS S/O.MUHAMMED, KALLAZHIKUNDIL HOUSE, VETTIKATHIRI (P.O.), NEDUMPURA, THRISSUR-679 531** - **3 SHAMSUDHEEN P.M. AGED 52 YEARS S/O.T.K.MUHAMMED, THONIKADAVIL HOUSE, VETTIKATHIRI (P.O.), NEDUMPURA, THRISSUR-679 531** - **BY ADV. SRI.K.PRAVEEN KUMAR** ## **RESPONDENTS:** - **1 DISTRICT TELECOM COMMITTEE, THRISSUR, REPRESENTED BY ITS CHAIRMAN (DISTRICT COLLECTOR), COLLECTORATE, THRISSUR-680003** - **2 THE VALLATHOL NAGAR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, VALLATHOL NAGAR, THRISSUR-679 531** |**3**|**THE STATION HOUSE OFFICER**| |---|---| ||**VALLATHOL NAGAR POLICE STATION,**| ||**THRISSUR-679 531**| |**4**|**RELIANCE JIO INFOCOM LTD.**| ||**REP. BY CHIEF OPERATING OFFICER,**| ||**32/2552-C, FIRST FLOOR, P.K. TOWER,**| ||**NEAR YATHRI NIVAS, PALARIVATTOM, KOCHI-682025**| **WP(C).No.22770 OF 2020(U) 2** **5 SAIDALI K. S/O.KUNHIBAVA, NO.443, SAFNA MANZIL, VETTIKATHIRI P.O., NEDUMPURA, THRISSUR-679 531.** - **6 THE STATE OF KERALA REP.BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001** **R2 BY ADV. SRI.P.C.SASIDHARAN R4 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.22770 OF 2020(U) 3** ## **J U D G M E N T** The petitioners herein are residents of Nedumpura Village, within the limits of Thalappilly Taluk in Thrissur District. They are aggrieved by the erection of a mobile communication tower by the 4th respondent, a telecom services provider, in the property owned by the 5th respondent comprised in Sy. No.14/1 of Nedumpara Village. 2. According to the petitioners, when they received information about the erection of a tower in the property which lies adjacent to their residential homes, they raised objections. The 1st respondent in his capacity as the Chairman of the District Telecom Committee convened a meeting. No proper notice was served on the petitioners as the meeting was convened to consider the denial of permit by the Panchayat. The DTC, without hearing the objectors, closed the complaint directing the Panchayat to consider the application for permit notwithstanding the objections raised by the nearby residents. It was further directed that if objections are caused after the grant of permit, the DTC can be approached. According to the petitioners, on the basis of the above direction, the Panchayat proceeded to grant permit to the **WP(C).No.22770 OF 2020(U) 4** 4th respondent. Being aggrieved, they filed Ext.P3 representation before the 1st respondent. Nothing happened later due to the imposition of the lockdown. After a few months, on 15.7.2020, the petitioners were invited for a virtual meeting. The 1st respondent, without considering the legitimate grievances of the petitioners, rejected the objections raised by them holding that the objections were considered in the earlier meeting of the Telecom Committee. According to the petitioners, Ext.P1 minutes of the meeting dated 3.10.2019 of the DTC would reveal that the Committee had left open the consideration of objection after the grant of permit by the Panchayat. The petitioners assert that the decision taken by the 1st respondent is unsustainable. They contend that an Anganwadi is functioning very near to the tower and the area is very densely populated. They would contend that the radiation which would emanate from the tower would cause health hazards particularly to the senior citizens and minor children who are residing nearby. It is contended that Ext.P1 order passed by the 1st respondent is vitiated for total non-application of mind and arbitrariness. It is in the afore circumstances that the petitioners are before this Court seeking a direction to the respondents 1 to 4 to refrain from erecting a telecom tower on the strength of Ext.P2 permit and for a further direction to the 1st respondent to grant **WP(C).No.22770 OF 2020(U) 5** an opportunity of being heard the petitioners in the matter of erection of tower. 3. The 2nd respondent has filed a counter. It is stated that though the building permit sought for was originally rejected, pursuant to Ext.P1 proceedings of the District Telecom Committee, permit was reissued. It is further stated that there is no error or irregularity in granting the permit. 4. The 4th respondent has filed a counter contending that when the application for permit submitted by them was not considered by the Panchayat, they had to approach the DTC. The DTC, by Ext.P1 order, came to the conclusion that the Panchayat has no authority to refuse building permit on the ground that there is a public outcry against grant of permit for construction of a telecom tower. It is submitted that notice to the objectors were issued by the 1st respondent but as is evident from Ext.P1, the petitioners or any other objectors did not appear. It is further stated that after grant of building permit, the petitioners raised objections and the DTC convened a virtual meeting. Finding that the 4[th] respondent had complied with all the requirements, the DTC refused to interfere. According to the respondents, the only grievance portrayed by the petitioners is about the health hazards from possible radiation. They would contend that these aspects were **WP(C).No.22770 OF 2020(U) 6** considered by this Court in a catena of decisions and it was found that there are no materials either in the scientific sphere or in the medical sphere to conclude that there would be health hazards from telecom towers. According to the respondents, the radiation norms prescribed by the Department of Telecom are very stringent and it requires that the radiation should be 1/10th of the permissible radiation prescribed by the International Commission on Non-Ionizing Radiation Protection (ICNIRP), a body of independent scientific experts. The 4th respondent would also refer to the fact sheet on the EMF Radiations from Mobile Towers and it is stated that weak electromagnetic waves which emanate from telecom towers do not cause any disruption to any form of life. According to the respondents, due to the restrictions imposed due to the pandemic most of the people are working from home and it is the duty of the internet service providers to provide fast and uninterrupted data. They would refer to Exts.R4(b) to (c) to bring home the fact that specific directions have been issued to the service providers to ensure operational continuity by erecting sufficient mobile towers in the rural and remote areas. It is contended that none of the contentions raised by the petitioners are sustainable. 5. I have heard Sri. Praveen Kumar, the learned counsel appearing for the petitioners, Sri. P.C.Sasidharan, the learned counsel **WP(C).No.22770 OF 2020(U) 7** appearing for the 2nd respondent and Sri. Harikumar G Nair, the learned counsel appearing for the 4th respondent. 6. From the records it appears that by an interim order dated 27.10.2020, this Court had ordered that the commissioning of the mobile communication tower shall only be with the leave of the court. Later, by order dated 21.12.2020, this Court had ordered that if the erection of the mobile tower is over, it can be commissioned, but the same shall be subject to the outcome of this writ petition. It appears that the 4th respondent has proceeded with the construction on the strength of the order. 7. Coming back to the case on hand, the contentions advanced by the petitioners are two-fold. The first contention is that the DTC has failed to grant the petitioners an opportunity of being heard while passing Ext.P1 and P4 orders. Their second contention is that the 4th respondent was permitted to proceed with the construction disregarding the fact that the tower was being erected in a thickly populated area without taking note of the health hazards which is likely to be caused to the children as well as the senior citizens of the area. 8. Insofar as the second contention is concerned, the matter is no longer integra. A Division Bench of this Court in **Indus Towers** **WP(C).No.22770 OF 2020(U) 8** ## **Ltd. , Palarivattom v. Sub Inspector of Police, Thodupuzha and** **Ors.** [2014 (4) KLT 306] had occasion to consider the aspect of health hazards and had held thus: “18. The next question is whether the EMR causes any health hazard. This matter is no longer res integra on account of the judgment of the Full Bench in Essar Telecoms Infrastructure v. C.I. of Police, Angamaly, 2010 (2) KHC 445 : 2010 (2) KLT 762 : ILR 2010 (2) Ker. 592 and the judgment of the Division Bench in Essar's case (supra). 19. The learned counsel for the party respondents had relied upon a report of IIT Mumbai to substantiate the fact of health hazard on account of EMR. In the judgment reported in 2011(2) KLT 516, [2011 (2) KHC 171 : 2011 (2) KLJ 335], this Court has elaborately considered the entire material relating to health hazard including the report of IIT Mumbai, which is referred by learned counsel for party respondents and has come to the conclusion at paragraphs 38 and 39 as under: 38. Mobile phone works on Electromagnetic radiation. In the state of materials on record the radiation involved can safely be treated as non - ionizing. It does cause thermal effect. But the thermal effect produced is far too insignificant to constitute a perceptible health hazard provided the radiation is confined to internationally prescribed standards. Apparently, it is non - thermal effect which is engaging the attention of researchers all over the world. We have already noticed the concept of Electromagnetic Hypersensitivity. **WP(C).No.22770 OF 2020(U) 9** 39. There is an international body concerned with the effects of such radiation. The standards prescribed by the said body is sought be enforced by Government of India also. It is the view taken by the large number of scientific experts that radiation in conformity with the said standards have not been established to produce any health hazards as such. At any rate, we do not think that it is appropriate for this Court with the material as such on record alone to hold that the respondents have established that siting of the tower would pose a health hazard sufficient enough to warrant this Court to decline jurisdiction to grant police protection if the petitioners are otherwise entitled to the same. We must notice that we are not called upon to decide upon the question of health hazards emanating from the use of mobile phones and a distinction must be maintained between the use of mobile phones and the alleged dangers emanating from the operation of a mobile tower. Going by the materials, it does appear that there are international standards. Radiation in deviation from the said standards is, in law, liable to be visited with serious consequences including stoppage of the operations. It is not established before us that these standards are being violated. We have to remind ourselves that the use of mobile phone is a modern day wonder and the contribution of technological advancement which has marked the twentieth century, in particular. Undoubtedly, its use is invaluable, not only to the individual as such, but to the Nation **WP(C).No.22770 OF 2020(U) 10** itself, as it would be instrumental in bridging the communication gaps that isolate, otherwise inaccessible areas of the country. Its uses in a vast array of areas is so formidable that it can in one sense be treated as a priceless boon of science. It cannot be gainsaid that nothing comes without a price - tag and the resolution of every problem of this nature must be in the adoption of a balanced view. Needless to say, we do not mean that we have precluded the rights of the respondents to approach the Civil Court and seek relief against the petitioners by letting and producing materials as they are advised in which case necessarily the Civil Court shall decide the matter untrammelled by anything contained in this judgment." 20. The Full Bench of this Court in the first Essar's case observed that "In the instant cases, there is absolutely no question of any pollution and there is no pleading or proof as to any such instance and the only apprehension is with regard to the 'health hazards' likely to be created by the 'EMR'. As mentioned already, the Radio frequency waves are non - ionizing radiation, which cannot emit any electrons, unlike 'X rays' and that apart, no Scientific Committee Report has been procured or produced to controvert the findings rendered by the Division Bench in Reliance case, 2006 KHC 1492 : 2006 (4) KLT 695 : ILR 2006 (4) Ker. 357 : AIR 2007 Ker. 33." 21. Having regard to the aforesaid findings of the Full Bench as well as Division Bench, we do not think that with the available materials, it may not be possible for this **WP(C).No.22770 OF 2020(U) 11** Court to appreciate the argument of counsel for the respondents that EMR from MT Towers used for mobile services would cause any health hazard. 9. In view of the observations above, the contention of the petitioners that radiation from electric towers would cause health hazards cannot be accepted. 10. The first contention is that in spite of directions issued by this Court in **Indus Towers Ltd. , Palarivattom** (supra), the petitioners were not heard by the DTC. Ext.P1 is the minutes of the meeting held by the DTC on 3.10.2019. The minutes show that it was the 4th respondent who had approached the DTC complaining that the Panchayat was not issuing the building permit due to opposition from the local people. The DTC served notice to the objectors but none appeared. The DTC proceeded to hold that the Panchayat could not have refused to grant the permit on the ground that there was opposition from the residents of the area. The Secretary was ordered to consider their application in tune with the provisions of the Kerala Panchayat Building Rules and pass appropriate orders. However, it was also mentioned that if any obstruction is caused after grant of permit and during the construction stage, the aggrieved party can approach the DTC. It is the case of the petitioners that it is on the strength of **WP(C).No.22770 OF 2020(U) 12** the liberty so granted that they had approached the DTC raising various contentions including the radiation aspect. The matter was taken up by the DTC on 15.7.2020 in the virtual meeting. Ext.P4 minutes of the meeting reveals that the DTC refused to consider the objections on the ground that those aspects were considered in the earlier meeting held on 3.10.2019. The DTC proceeded to permit the 4th respondent to proceed with the construction and approach the police in the event of any obstruction by the petitioners or the nearby residents. 11. There is considerable merit in the submission of the learned counsel appearing for the petitioners that an opportunity was denied to them by the DTC. Maybe the aspects of radiation from Mobile Telecommunication Towers have been held to be non-hazardous by this Court. But that does not mean that the petitioners can be denied an opportunity to raise their other contentions before the DTC. That opportunity has been denied to the petitioners. Of course, the construction has proceeded to the final stages. It is not known whether the tower has been energized and is functioning. Having considered all the aspects, I am of the view that the DTC will have to hear the petitioners yet again and pass appropriate orders. As the **WP(C).No.22770 OF 2020(U) 13** construction of the tower has been permitted by this Court, I am not inclined to interfere with the same at this stage. 12. In that view of the matter, I direct the DTC, Thrissur, the 1st respondent herein to reconsider Ext.P3 complaint lodged before the committee and take a decision with notice to the petitioners as well as the respondents 4 and 5, expeditiously, at any rate, within a period of 45 days from the date of production of a copy of this judgment. This writ petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** **ps/18/1/2021** **WP(C).No.22770 OF 2020(U) 14** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1** **TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 3/10/2019 BY THE 1ST RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE BUILDING PERMIT DATED 18/12/2019** **EXHIBIT P3** - **TRUE COPY OF THE REPRESENTATION DATED 30/12/2019 SUBMITTED BY THE PETITIONERS BEFORE THE DISTRICT COLLECTOR** - **EXHIBIT P4 TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE MEETING HELD ON 15.7.2020** **RESPONDENT'S/S EXHIBITS:** - **EXHIBIT R4 (a) TRUE COPY OF BUILDING PERMIT NO. A2BA(352472/2019 DATED 18.12.2019** - **EXHIBIT R4 (b) TRUE COPY OF CIRCULAR NO.DOT/KRL/614/DM-CORR/2019-20 DATED 24.03.2020** - **EXHIBIT R4 (c) TRUE COPY OF CIRCULAR NO. AS-25/01/2019 OFFICE OF DIR (AS-V) DATED 21.03.2020** - **EXHIBIT R4 (d) TRUE COPY OF LETTER DATED 16.11.2020 ISSUED BY THE GOVERNMENT OF KERALA** - **EXHIBIT R4 (e) TRUE COPY OF JUDGMENT DATED 16.03.2020 IN WPC 33759 OF 2019 AND WPC 50 OF 2020 BY THIS HONOURABLE COURT.** **//TRUE COPY//** **P.A TO JUDGE**