K.H. Joseph @ Sunny v Panachikkad Grama Panchayath & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 WP(C).No. 36625 of 2010(C) -------------------------- 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, KADUVAKKULAM, KOLLAD P.O., KOTTAYAM. BY ADV. SRI.SIVAN MADATHIL RESPONDENTS: - --------------- 1. PANACHIKKAD GRAMA PANCHAYATH, PANACHIKKAD, KUZHIMATTOM P.O., KOTTAYAM REP. BY ITS SECRETARY. 2. SHAJI MATHEW, PARTNER, PALATHARA CONSTRUCTIONS, THURUTHI P.O., CHANGANACHERRY. 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. 5. STATE OF KERALA, REP. BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. WP(C).No. 36625 of 2010(C) - 2 - 6. UNION OF INDIA, - REP. BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT DEPARTMENT OF COMMUNICATIONS, SANCHAR BHAVAN-20, ASHOKA ROAD, NEW DELHI-110 001. ## GOVERNMENT PLEADER SRI. V.MANU ADV. SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDIA FOR R6 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.N.RAVINDRAN** , **J.** **--------------------------W.P.(C) No. 36625 OF 2010 -------------------------Dated this the 13[th ] day of December, 2010** ## **J U D G M E N T** The petitioners are residents of Panachikkad Grama Panchayat. The second petitioner claims to be the Secretary of Kaduvakkulam Mobile Tower Nirmana Prathirodha Karma Samithi, an organization formed by the residents of the Panchayat to take measures against the construction of Mobile Base Transceiver Stations. In this writ petition, the petitioners challenge Ext.P5 order passed by the Tribunal for Local Self Government Institutions allowing the appeal filed by respondents 2 and 3. The brief facts of the case are as follows. 2. On an application submitted by the third respondent, the Secretary of Panachikkad Grama Panchayat issued Ext.P1 building permit dated 7.8.2010, for the construction of a Mobile Base Transceiver Station, commonly known as mobile tower. When the construction commenced, about 26 persons including the first petitioner submitted Ext.P2 petition before the President of Panachikkad Grama Panchayat wherein they requested that steps may be taken to stop the construction of the mobile tower. In WPC No.36625/2010 2 Ext.P2, the signatory thereto voiced the apprehension that the radiation from the proposed mobile tower is likely to cause Cancer and other diseases. Upon receipt of Ext.P2 complaint, the Secretary of the local authority issued Ext.P3 letter dated 31.8.2010 to the third respondent informing them that till a decision is taken on the said complaint, the third respondent should stop further construction. The third respondent and the second respondent to whom the work of constructing mobile tower was entrusted thereupon filed Appeal No. 773 of 2010 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. The Panachikkad Grama Panchayat and its Secretary, who were respondents 1 and 2 in the appeal, did not enter appearance and were set ex-parte. The first petitioner got himself impleaded as additional third respondent in that appeal. By Ext.P5 order passed on 1.10.2010, the Tribunal allowed the appeal and set aside Ext.P3. The Tribunal held that mere receipt of Ext.P2 complaint is not a reason to suspend or revoke the building permit. Ext.P5 is under challenge in this writ petition. 3. The petitioners contend that the Division Bench decision of this Court in **Reliance Infocom v. Chemancherry Grama Panchayat** (2006 (4) KLT 695) and the Full Bench decision of this WPC No.36625/2010 3 Court in **Messers Essar Telecom Infrastructure (P) Limited v. C.I. of Police, Angamali Police Station** (2010 (2) KHC 445 (FB) do not lay down the law correctly and require reconsideration. Though no material is produced, the petitioners claim that radiation from the mobile tower can lead to various diseases like Cancer and also genetic disorder. It is on this ground that they seek reconsideration of the decisions of this Court referred to above. The petitioners also contend that the Tribunal erred in allowing the appeal as the second petitioner had raised a contention that there is collusion between the appellant and the Secretary and members of the Panchayat and that the building permit issued by the Secretary of the local authority is not in accordance with the relevant rules. It is contended that the Secretary of the local authority has issued Ext.P1 building permit applying Rule 11(1) of the Kerala Municipality Building Rules (hereinafter referred to as 'the rules' for short), when the rule which governs the grant of building permit to build mobile tower is Rule 130 of the Kerala Municipality Building Rules, 1999. 4. I heard Sri. Sivan Madathil, the learned counsel appearing for the petitioners. I have also gone thorough the pleadings and materials on record. A Full Bench of this Court has in **Messers** WPC No.36625/2010 4 **Essar Telecom Infrastructure (P) Limited v. C.I. of Police, Angamali Police Station** (2010 (2) KHC 445 (FB) held after an analysis of the case law on point that there is no threat to the environment when a mobile tower is established. The Full Bench also approved the decision of the Division Bench of this Court in **Infocom v. Chemancherry Grama Panchayat** (2006 (4) KLT 695) wherein the Division Bench held that as on today no scientific data or material is available to show that installation of a mobile tower would cause any health hazard. Apart from the ipse dixit of the petitioners, no material has been placed on record to show that the installation of a mobile tower will result in health hazards on account of radiation. In such circumstances, in the absence of any material to substantiate the petitioners' contentions, I find no reason to entertain this writ petition and to refer the writ petition to a Division Bench of this Court. 5. The petitioners challenge Ext.P5 order also on the ground that the Tribunal lost sight of the fact that Ext.P1 building permit was issued under rule 11(1) of the Kerala Municipality Building Rules, 1999 when the grant should have been under rule 130. I am afraid there is no merit in the said contention. Rule 11(1) of the rules states that the Secretary shall, after inspection of the site and verification of WPC No.36625/2010 5 the site plan and documents, if convinced of the bonafides of the ownership of the site, and that the site plan, drawings and specifications conforms to the site and the provisions of these rules or bye laws made under the Act and any other law, approve the site an site plan. Sub rule (3) of rule 11 states that after the site and the plan are approved, the said decision shall be communicated to the applicant in writing and the permit as in Appendix C shall be issued on remittance of the permit fee at the rates specified in Schedule II. Ext.P1 building permit is one issued in the form prescribed in Appendix C. Rule 130 relied on by the petitioners occurs in Chapter XIX of the rules which contains stipulations regarding the FAR and height and other clearances which are required to be maintained while putting up a mobile tower. All that rule 130 of the rules states is that no person shall erect or re-erect any non-Governmental telecommunication tower (or telecommunication pole structures or accessory rooms) or make alteration or cause the same to be done without first obtaining a separate permit far each such tower (or telecommunication pole structures) from the Secretary. The subsequent provisions prescribe the distance to be maintained from the road boundary, the specifications regarding accessory rooms, the WPC No.36625/2010 6 Far and the height of the tower, clearance from electrical line, protection from lightening and other stipulations. Rule 141 of the said rules deals with the submission of application for building permit to put up mobile tower and its disposal. Sub rule (8) thereof stipulates that the Secretary shall if convinced of the boundaries and ownership of the plot, issue permit not later than 30 days from the date of receipt of the application. Chapter XIX of the rules does not stipulate that a building permit to put up a mobile tower should be in a prescribed form other than the form prescribed in Appendix C. In such circumstances, I find no merit in the contention raised by the petitioners that the Secretary has not gone by the statutory provisions while issuing the permit. Rule 11 in my opinion applies to permits for the construction of mobile tower also. I accordingly overrule the contention of the petitioner that failure to refer to rule 130 of the rules while issuing the building permit vitiates the permit. 6. Yet another contention raised by the learned counsel for the petitioners is that the Tribunal ought to have directed the Secretary of the local authority to produce the files and examine the files after taking into consideration the contention raised by the petitioners that the Panchayat and its Secretary have failed to appear before the WPC No.36625/2010 7 Tribunal as a result of collusion with the third respondent. Reliance is placed on rule 17(2) of the Tribunal For the Kerala Local Self Government Institutions Rules, 1999 to contend that upon receipt of notice from the Tribunal the Secretary of the local authority should have produced the connected files and documents along with the statement submitted before the Tribunal. 7. Under Rule 17(1) of the Tribunal For the Kerala Local Self Government Institutions Rules, 1999, the Tribunal may suo moto summon any person as witness and may direct any person including the petitioner or the counter-petitioner to produce or cause to be produced any document or record before the Tribunal. In my opinion, the interpretation placed by the learned counsel for the petitioners on Rule 17(2) is misconceived and without any merit. Rule 17(2) does not cast an obligation on the local authority or its Secretary to produce the connected files and other documents of the Village Panchayat or Municipality as the case may be, along with the statement submitted before the Tribunal, in the absence of any such order in that regard from the Tribunal. Rule 17(1) empowers the Tribunal to direct the local authority or any person including parties to the appeal or revision petition to produce or cause to be produced WPC No.36625/2010 8 any document or record before it. All that sub rule (2) states is that in such circumstances the local authority or its Secretary who has been made the counter petitioner in the petition, shall produce the connected files and documents along with the statement before the Tribunal. The proviso to sub rule (2) states where a record cannot be produced for sufficient reasons, an attested copy shall be produced along with the statement. Rule 17(2) does not mean that even without the Tribunal passing an order to produce documents the local authority or its Secretary should produce the files. I therefore find no merit in the said contention also. 8. The petitioners also rely on Ext.P9 Government circular dated 10.8.2009 to contend that where people have any objection regarding the site of the mobile tower, the administrative committee of the Grama Panchayat should convene a meeting of the local people and the representatives of the company, hold discussions and find out an unobjectionable site for the mobile tower. The learned counsel for the petitioners contended that in view of Ext.P9 circular, the local authority had a duty to convene a meeting of the local people and the representatives of the third respondent and hold discussions to find out an unobjectionable site for the mobile tower. WPC No.36625/2010 9 In my opinion, the direction issued by the Government in Ext.P9 cannot be a reason to issue a stop memo (Ext.P3) which was set aside on an appeal by the Tribunal. Even in Ext.P9, the Government have stated that the course being adopted by the local self government institutions to issue stop memos should not be followed. All that the Tribunal had done in the instant case is to hold that the respondents cannot issue stop memo merely for the reason that an individual or group of individuals have objected to the grant of a building permit. If that is a valid reason for a stop memo, the construction of every building will have to be held up because there will always be someone or other to object to any construction. I therefore find no merit in the said contention also. For the reasons stated above, I hold that no grounds have been made out warranting interference with Ext.P5. The writ petition fails and is accordingly dismissed in limine. ## **P.N.RAVINDRAN, (JUDGE)** vps WPC No.36625/2010 10 WPC No.36625/2010 11