High Court of KeralaSingle Judge2019-07-19Dismissed

Jaleel v. District Telecom Committee, Pandalam Municipality and ATC Telecom Tower Corporation Pvt. Ltd.

Case / Petition Number:WP(C).No.2697 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2019-07-19
Court Decision / Holding: Writ petition dismissed. The court held that issues related to erection of telecom towers are to be addressed before the District Telecom Committee (1st respondent) and granted liberty to the petitioner to approach the 1st respondent if the grievance still subsists.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

Jaleel

Respondents

District Telecom Committee represented by the Chairman/District Collector, Pathanamthitta
Pandalam Municipality
ATC Telecom Tower Corporation Pvt. Ltd. (formerly Essar Telecom Infrastructure (P) Ltd.)

Legal Representation & Advocates

Counsels for Petitioners

• Sri T. Krishnanunni (Sr.)
• Sri C. B. Sreekumar

Counsels for Respondents

• Sri Arun Thomas
• Sri K. R. Radhakrishnan Nair
• Sri Alphin Antony
• Sri Jennis Stephen
• Sri Santosh Mathew
• Sri Vijay V. Paul
• Sri Renil Anto Kandamkulathy

Case Synopsis & Summary

This writ petition (WP(C).No.2697 of 2016) filed by Jaleel, a resident of Pandalam Municipality, challenges the proposed erection of a mobile telecom tower by the third respondent in Pandalam Village. The petitioner asserts that the site (Survey No. 58/11, Pandalam Revenue Village) is densely populated, with nearby residences, schools and hospitals, and that the construction commenced without proper permits, exposing residents to health hazards from electromagnetic radiation. He contends that health and safety considerations were given insufficient weight by the authorities and that the project violates fundamental rights. The case traces a sequence of regulatory actions: the Municipality initially stopped the construction; the Tribunal for Local Self Government Institutions (LSGI) allowed regularisation but directed the Municipality to consider it; the petitioner earlier challenged related orders in W.P.(C) No.1846/2015, which was dismissed. The third respondent submitted that it complied with law, pointing to Ext.R3(1) (application), Ext.R3(2) (building permit), Ext.R3(3) (approved plan), and Ext.R3(6) (permit issued). The petitioner invoked public health concerns and reliance on prior decisions; the respondents cite statutory processes and the need to address health concerns before a writ court. The court ultimately held that issues relating to telecom towers should be addressed by the District Telecom Committee and dismissed the petition, granting liberty to approach the first respondent if grievances persist.

Provisions of Law Cited

Constitution of India, Article 226

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the construction of the proposed mobile telecommunications tower in Pandalam village poses serious health hazards due to electromagnetic field radiation. He argues that the authorities did not adequately assess health risks, that proper building permits and a comprehensive health impact assessment were not duly considered, and that the project may infringe constitutional rights to health and safety. He seeks preventive relief to stop the erection and an order directing a full health risk evaluation before any regularisation, asserting that this is a matter of public health and safety that warrants judicial scrutiny.

Contentions of Respondents

The respondents contend that the tower was erected in accordance with law, supported by a building permit (Ext.R3(2)) and an approved plan (Ext.R3(3)); they point to the Tribunal’s direction to consider regularisation (Ext.R3(4)) and subsequent permit issuance (Ext.R3(6)). They argue that technical health-hazard assessment is not within the writ court’s purview and that such concerns should be addressed before the District Telecom Committee; reliance is placed on established jurisprudence, including Essar Telecom Infrastructure and Indus Towers, to justify legality and regulatory remedies.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Essar Telecom Infrastructure (P) Ltd. v. C.I. of Police, Angamali	2010 (2) KLT 762	Positive	Full Bench held that objections on health hazards need not be relegated to a civil court; writ courts may grant police protection for lawfully carried out telecom tower erections.
Indus Towers Ltd., Palarivattom v. Sub Inspector of Police, Thodupuzha	2014 (4) KLT 306	Positive	Held that issues relating to erection of telecom towers must be raised before the District Telecom Committee; writ courts should not adjudicate technical health-hazard aspects.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **FRIDAY, THE 19TH DAY OF JULY 2019 / 28TH ASHADHA, 1941** ## **WP(C).No.2697 of 2016** ## **PETITIONER:** **JALEEL AGED 60 YEARS S/O.MOHAMMED KANI, KOCHUPUTHENVILAYIL HOUSE, MANGARAM KARA, PANDALAM.P.O, PATHANAMTHITTA DISTRICT** **BY ADVS. SRI.T.KRISHNANUNNI (SR.) SRI.C.B.SREEKUMAR** ## **RESPONDENTS:** **1 THE DISTRICT TELECOM COMMITTEE REPRESENTED BY THE CHAIRMAN/DISTRICT COLLECTOR, CIVIL STATION, PATHANAMTHITTA.** **2 PANDALAM MUNICIPALITY MUNICIPAL OFFICE, PANDALAM, PATHANAMTHITTA DISTRICT, REPRESENTED BY ITS SECRETARY.** **3 ATC TELECOM TOWER CORPORATION PVT. LTD. (FORMERLY KNOWN AS M/S.ESSAR TELECOM INFRASTRUCTURE (P) LTD. NO.36/2624), 1ST FLOOR, CHERAMANGALAM (H), SHENOY ROAD, COCHIN - 682 017.** **BY ADVS. SRI.ARUN THOMAS SRI.K.R.RADHAKRISHNAN NAIR SRI.ALPHIN ANTONY SRI.JENNIS STEPHEN SRI.SANTHOSH MATHEW SRI.VIJAY V. PAUL GOVT. PLEADER SRI. RENIL ANTO KANDAMKULATHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) No.2697 of 2016** **2** ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner, who is a resident of Pandalam Municipality, seeks to declare that the erection of the proposed mobile telecommunication tower of the 3[rd] respondent in Pandalam Village is illegal and against the guidelines. The petitioner further seeks to direct respondents 1 and 2 to ensure that the telecommunication tower is not erected at the proposed site. 2. The petitioner submits that the 3[rd] respondent has started construction of telecommunication tower in property comprised in Survey No.58/11 of Pandalam Revenue Village, Adoor Taluk, which is a densely populated area. Around the proposed construction, there are various residences and even schools and hospitals. The construction has been carried out by the 3[rd] respondent without obtaining proper building permit. **WP(C) No.2697 of 2016** **3** 3. The construction was initially stopped by a notice from the 2[nd] respondent - Municipality, contends the petitioner. The Tribunal for Local Self Government Institutions rejected the appeal filed by the 3[rd] respondent against the notice. However, a direction was given to the 2[nd] respondent - Municipality to consider the application for regularisation to be filed by the 3[rd] respondent. 4. Aggrieved by the order of the Tribunal for Local Self Government Institutions which directed the 2[nd] respondent to consider regularisation application made by the 3[rd] respondent, the petitioner approached this Court filing W.P.(C) No.1846/2015. This Court dismissed the writ petition as per Ext.P1 judgment. The petitioner contends that this Court has considered only the sustainability of the order passed by the Tribunal and hence, this Court had no occasion to consider the serious health hazards due to the large scale electro magnetic radiation emanating from telecommunication towers. It is under these circumstances that the petitioner has approached this Court. **WP(C) No.2697 of 2016** **4** 5. It is the contention of the petitioner that due consideration was not given by the authorities to health hazards likely to be caused by the proposed telecommunication tower. This infringes the fundamental right of the petitioner. All developments and technological improvements must ensure that the human life is not affected. It is the statutory duty of the authorities to consider this aspect. It is a globally accepted fact that the electro magnetic field radiation emanating from the telecommunication towers causes severe health hazards. Therefore, construction of the proposed tower should not be permitted. 6. The 3[rd] respondent filed a counter affidavit and opposed the writ petition. The 3[rd] respondent submitted that it has filed an application for erection of telecommunication tower as per Ext.R3(1). Ext.R3(2) is the building permit issued to the 3[rd] respondent and Ext.R3(3) is the approved plan. A stop memo was issued on 26.09.2013 by the 2[nd] respondent. The 3[rd] respondent approached the Tribunal for **WP(C) No.2697 of 2016** **5** LSGI. Though the Tribunal rejected the appeal filed by the 3[rd] respondent, a direction was given to consider the application for regularisation of the construction, as per Ext.R3(4) order. Based on the order of the Tribunal, the application of the 3[rd] respondent dated 26.09.2014 was considered. After receiving the prescribed fee, after conducting site inspection and after having convinced that permit is to be granted, the 2[nd] respondent issued Ext.R3(6) permit on 06.12.2014. Though the petitioner challenged the order of the Tribunal filing W.P.(C) No.19846/2015 before this Court, the writ petition was dismissed. 7. The counsel for the 3[rd] respondent further submitted that a Full Bench of this Court had occasion to consider the issue involved in _**Essar Telecom Infrastructure (P) Ltd. v. C.I. of Police, Angamali** [2010 (2) KLT 762]_ and this Court held that objection on the ground of health hazard need not be relegated to a civil court, merely for the reason that a section of the public apprehends that it may cause health hazards. This Court held that **WP(C) No.2697 of 2016** **6** nobody can resort to any physical obstruction against erection of mobile towers, if such activity is carried out as per law. This Court further held that the writ court can grant the relief of police protection for erection of telecommunication tower if it is done in accordance with law. 8. The Standing Counsel for the 2[nd] respondent - Municipality submitted that the legal issue involved in this case has already been considered by this Court and adjudicated against the petitioner. Therefore, the cause of action, in fact, does not survive. 9. I have heard the arguments raised by the counsel. This Court has in _**Indus Towers Ltd., Palarivattom v. Sub Inspector of Police, Thodupuzha** [2014 (4) KLT 306]_ held that issues relating to erection of telecommunication towers have to be raised before the District Telecom Committee for redressal of grievances. While exercising the power under Article 226 of the Constitution of India, this Court is not equipped to go into the technical aspects of health hazard alleged by the petitioner. **WP(C) No.2697 of 2016** **7** Therefore, in view of the Division Bench judgment of this Court, the remedy of the petitioner, if any, is before the 1[st] respondent - District Telecom Committee. Granting liberty to the petitioner to approach the 1[st] respondent if his grievance still subsists, this writ petition is dismissed. Sd/- **N. NAGARESH, JUDGE** aks/19.07.2019 **WP(C) No.2697 of 2016** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: TRUE COPY OF THE JUDGMENT IN W.P.(C).NO.1846 OF 2015 OF THE HON'BLE HIGH COURT OF KERALA DATED 04.01.2015.** **EXT.P2: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER'S AND OTHER LOCAL RESIDENTS TO 2ND RESPONDENT.** **EXT.P3: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER'S AND OTHER AGGRIEVED LOCAL RESIDENTS DT. 12.10.2015.** **EXT.P4 : TRUE COPY OF THE NOTICE DATED 25.02.2016 SERVED ON THE AFFECTED PERSONS IN THE LOCALITY BY THE OFFICE OF 2ND RESPONDENT.** **EXT.P5 : TRUE COPY OF THE PROCEEDINGS NO.B2/38727/12 DATED 16.4.2016 OF THE SECOND RESPONDENT.** **EXT.P6 TRUE COPY OF THE DETAILED GRIEVANCES/APPREHENSION WITH RESPECT TO HEALTH HAZARDS SUBMITTED BY THE PETITIONER AND OTHER AFFECTED PERSONS IN THE LOCALITY BEFORE RESPONDENTS 1 AND 2.** **EXT.P7 : TRUE COPY OF THE PROCEEDINGS NO.B2-38727/12 DATED 23.04.2016 OF THE 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS :** **R3(1) : TRUE COPY OF THE APPLICATION SUBMITTED BY THE THIRD RESPONDENT TO THE SECOND RESPONDENT.** **R3(2) : TRUE COPY OF THE BUILDING PERMIT ISSUED TO THIS RESPONDENT.** **WP(C) No.2697 of 2016** **9** **R3(3) : TRUE COPY OF THE APPROVED PLAN ISSUED BY THE 2ND RESPONDENT TO THIS RESPONDENT ON 13.8.2013.** **R3(4) : TRUE COPY OF THE ORDER PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.1039/2013.** **R3(5) : TRUE COPY OF THE APPLICATION SUBMITTED BY THE RESPONDENT HEREIN BEFORE THE PANDALAM GRAMA PANCHAYAT.** **R3(6) : TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER.** **R3(7) : TRUE COPY OF THE GOVERNMENT ORDER NO.31/2014/ITD DATED 5.11.2014.**