K.H. JOSEPH @ SUNNY & M.E. PHILIPPOSE v PANACHIKKAD GRAMA PANCHAYATH & OTHERS (W.A. No. 46 of 2011)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 12TH JANUARY 2011 / 22ND POUSHA 1932 WA.No. 46 of 2011 ------------------AGAINST THE JUDGEMENT IN WPC.36625/2010 Dated 13/12/2010 .................... ## APPELLANTS/PETITIONERS: ------------------------------ 1. K.H. JOSEPH @ SUNNY, S/O. HENRY, AGED 55 YEARS, RESIDING AT KOIPARAMBIL HOUSE, POOVANTHURUTH.P.O, KOTTAYAM DISTRICT. 2. M.E. PHILIPPOSE, SECRETARY, KADUVAKKULAM MOBILE TOWER NIRMANA PRATHIRODHA KARMA SAMITHI, POOVANTHURUTH.P.O, KOTTAYAM, RESIDING AT MUTTATHUTHAR HOUSE, KADUVAKULAM, KOLLAD.P.O, KOTTAYAM. BY ADV. SRI.SIVAN MADATHIL ## RESPONDENTS/RESPONDENTS: ---------------------------------- 1. PANACHIKKAD GRAMA PANCHAYATH, PANACHIKKAD, KUZHIMATTOM.P.O, KOTTAYAM, REP. BY ITS SECRETARY - 686 533. 2. SHAJI MATHEW, PARTNER, PALATHARA CONSTRUCTIONS, THURUTHI.P.O, CHANGANACHERRY- 686 535. 3. INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH - 47, PALARIVATTOM, COCHIN-24, REP. BY ITS HEAD-LEGAL PREMAKRISHNAN NAIR. 4. A.M. RAVEENDRAN, SECRETARY, PANACHIKKAD GRAMA PANCHAYATH, PANACHIKKAD- 686 533. WA.No. 46 of 2011 5. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 6. UNION OF INDIA, REP. BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF COMMUNICATIONS, SANCHAR HAVAN-20, ASHOKA ROAD, NEW DELHI - 110 001. R5 BY SENIOR GOVERNMENT PLEADER, SMT.K. MEERA. R6 BY ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.** - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 46 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of January, 2011 ## **JUDGMENT** ## **Ramachandra Menon, J.** Petitioners in the writ petition are the appellants in this writ appeal. The writ petitioners approached this Court with the following prayers: “a) Call for the records leading to issuance of ExhibitsP1 to P9 and quash Exhibit.P5 order of the Tribunal for Local Self Government Institutions by issuing a writ of certiorari; b) Issue a writ of mandamus or any other writ, order or direction commanding the respondents 5 &6 to take immediate steps to ascertain the exact health hazards of the public by constituting an expert body with competent personalities to ascertain the exact extent of health hazards to the public due to the mobile radiation; c) Direct the respondents 2,3 & 5 not to proceed with the construction of mobile transmission tower under the strength of Exhibit.P5 order, until a report submitted by the respondents 5 & 6 to the effect that mobile radiation will not cause harm and adverse health impacts to the general public as well as to the environment;” ## 2. The sequence of events as narrated in the writ petition as well as in the memorandum of appeal is as follows. WA No. 46 of 2011 -:2:- In connection with the setting up of a Mobile Base Transceiver Station(Mobile Tower), the third respondent sought for a building permit which was issued by the local authority(1[st] respondent) as borne by Ext.P1. Based on Ext.P1, further steps were being taken for the construction of the Tower. At that point of time the petitioners filed a complaint/objection, pursuant to which Ext.P3 'stop memo' was issued by the Panchayat stalling the construction. Aggrieved by this, the concerned respondents(2[nd] and 3[rd] respondents in the writ petition), approached the Tribunal for Local Self Government Institutions, wherein the Tribunal passed Ext.P4 interim order, staying the operation of the 'stop memo' issued by the Panchayat. The petitioners got impleaded themselves in the proceedings before the Tribunal. Despite service of notice, respondents 1 and 4 herein, who were respondents 1 and 2 in the appeal, did not turn up before the Tribunal. After considering the available materials on record, the Tribunal allowed the appeal and the 'stop memo' was set aside, which WA No. 46 of 2011 -:3:- formed the subject matter of challenge in the writ petition filed by the appellants. 3. The learned Single Judge considered the matter both on legal as well as factual aspects and arrived at a finding that the course pursued by the Panchayat by issuing 'stop memo' after the granting of necessary permit is erroneous and that the Tribunal was justified in allowing the appeal filed by the aggrieved parties. The contentions raised by the petitioners were repelled by the learned Single Judge and the writ petition was dismissed 'in limine', which is under challenge in this appeal. 4. The learned counsel for the appellant submits that the vital aspects projected in the writ petition have not been properly considered by the learned Single Judge. Referring to 'Rule 11' of the Kerala Municipality Building Rules, 1999, on the basis of which Ext.P1 permit is stated as issued, the learned counsel submits that the matter ought to have been considered with reference to 'Rule 130' and other rules under WA No. 46 of 2011 -:4:- Chapter XIX of the aforesaid rules which specifically deal with the construction of 'mobile towers'. 5. In fact, the said aspect was also considered by the learned Single Judge and a finding was rendered in this regard in paragraph 5 of the judgment, observing that the failure to refer to Rule 130 of the rules while issuing the permit will not vitiate the permit. 6. With regard to the rights and liberties of the parties, particularly with reference to the contention as to the alleged health hazard, reference has been made to the decision rendered by a Division Bench of this Court reported in **Reliance** **Infocom v. Chemancherry Grama Panchayat** (2006 (4)KLT 695). The Division Bench has arrived at a finding that, as on date, no scientific data or reliable material is available to show that installation of a mobile tower will cause any health hazard. This was approved by a Full Bench of this Court in **Messers Essar Telecom Infrastructure (P) Limited v. C.I.of Police, Angamali Police Station** [2010 (2) KHC 445 (FB)]. Both WA No. 46 of 2011 -:5:- these verdicts were considered by the learned Single Judge while declining interference in the Writ Petition. 7. Another important aspect to be noted is that the challenge raised by the petitioners in the writ petition is to set aside 'Ext.P5' order passed by the Tribunal; while no specific prayer is there to set aside 'Ext.P1' permit in the writ petition. The main relief sought for stands confined to quashing of Ext.P5 alone, which is the order passed by the Tribunal, intercepting Ext.P3 stop memo issued by the Panchayat, for the reasons stated therein. Ext.P1 was never subjected to challenge at the instance of anybody before the Tribunal or such other appropriate Forum. 8. In the above facts and circumstances, we find that the verdict passed by the learned Single Judge is beyond challenge. The appeal is devoid of merit and none of the grounds raised in support of the same does serve the purpose. No interference is warranted and the writ appeal is dismissed accordingly. WA No. 46 of 2011 -:6:- However, we make it clear that we have not expressed anything with regard to the merits of the case, pertaining to the legality or sustainability of Ext.P1 permit. It is open for the parties concerned, to challenge the same in accordance with law, before appropriate forum, if at all aggrieved in any manner. **J.Chelameswar, Chief Justice.** **P.R.Ramachandra Menon, Judge.** ttb