Stephen T D v State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 25TH DAY OF NOVEMBER 2016/4TH AGRAHAYANA, 1938** ## **WP(C).No. 26878 of 2016 (H)** **----------------------------** ## **PETITIONER(S): -------------** **STEPHEN T D, S/O.DEVASSY, THAKKATH HOUSE, MALAYATTOOR, ERNAKULAM.** **BY ADVS.SRI.PAUL K.VARGHESE SMT.A.A.GEETHA** ## **RESPONDENT(S):** - **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY (REVENUE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-01.** **2. THE DISTIRCT COLLECTOR, CIVIL STATION, KAKKANAD, COCHIN-682 030.** **3. THE KERALA STATE POLLUTION CONTROL BOARD, CIVIL STATION, KAKKANAD, ERNAKULAM, REPRESENTED BY ITS ENGINEER, PIN-682 030.** **4. THE HEALTH DEPARTMENT, MATTUR, MALAYATTUR, PIN-682 587, ERNAKULAM DISTRICT.** **5. MALAYATTUR NEELESWARAM PANCHAYATH REPRESENTED BY SECRETARY NEELESWARAM,PIN-683 587.** **6. THE SUB INSPECTOR OF POLICE, KALADY, ERNAKULAM, PIN-683 574.** **7. ATC TELECOME TOWR CORPORATION PVT LTD, 1ST FLOOR,M CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, ERNAKULAM, REPRESENTED BY ITS MANAGER-682 017.** **8. THOMAS, AGED 48 YEARS, S/O.IYPE, SANKURICKAL HOUSE, KEELAPPARAM, MALAYATTOOR P.O., PIN-683 587.** **....2/-** **PJ** **..2..** **WP(C).No. 26878 of 2016 (H)** **----------------------------** *** ADDL.R9 IMPLEADED** **9. TELECOM DISTRICT COMMITTEE REPRESENTED BY DISTRICT COLLECTOR, CIVIL STATION, KAKKANAD-682030.** **ADDL.R9 IS IMPLEADED AS PER ORDER DATED 12/8/2016 IN IA.13012/2016** **R1,2,4,6 BY SENIOR GOVERNMENT PLEADER SMT.K.R.DEEPA R3 BY ADV. SRI. T.NAVEEN SC R7 BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.K.R.MONISHA R8 BY ADVS. SRI.P.VISWANATHAN SRI.SHIBU JOSEPH SRI.SUNIL N.SHENOI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/11/2016 THE COURT ON 25-11-2016,THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** **WP(C).No. 26878 of 2016 (H)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **EXHIBIT P1. A TRUE COPY OF VARIOUS STUDIES WHICH ARE DOWNLOADED FROM HTTP//WWW.SAFE SPACE PROTECTION.COM EXHIBIT P2. A TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONER AND OTHERS BEFORE THE DISTRICT COLLECTOR DATED 1/8/2016.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **SHAJI P. CHALY, J.** ----------------------------------------------- ## **W.P.(C). No.26878 of 2016 ----------------------------------------------Dated this the 25[th] day of November, 2016** ## **JUDGMENT** This writ petition is filed by the petitioner seeking direction, to respondents 1 to 6 not to permit the 7[th] and 8[th] respondents to install additional antenas of other mobile companies in the tower situated in the property having an extent of 6 cents in Sy.No.88/14 of Malayattoor Village, Ernakulam District owned by the 8[th] respondent and for other related reliefs. 2. Material facts for the disposal of the writ petition are as follows; petitioner is a resident in Malayattoor along with his family. During the year 2007, ESSAR Telecom Infrastructure Pvt. Ltd. had entered into a licence agreement with the 8[th] respondent for errection of a mobile tower in the property of the 8[th] respondent having an extent of 6 cents situated in Sy.No.88/14 of Malayattoor Village. Based on the agreement, a mobile tower as well as antena of a mobile company was installed. ESSAR Telecom Infrastructures is now changed to ATC Telecom Tower Corporation Private Limited, which is the 7[th] respondent in the writ petition. W.P.(C). No.26878 of 2016 2 Seventh respondent company takes the land for lease for erecting mobile tower of mobile companies by charging rent from them. Accordingly, in the present case, 7[th] respondent installed the mobile tower of a company called Idea Cellular Ltd., in the property of the 8[th] respondent. It is submitted, the present mobile tower is a threat to the people in the locality including the petitioner and the same is erected very close to the Panchayat road. The area in question is thickly populated and very close to the said tower. Apart from the residential houses, hospital, CBSE School, Church etc. etc. are situated. 3. It is also contended that, the radiation emitting from the tower is very hazardous to the people in the locality which will cause diseases like cancer, leukemia, headache, loss of memory etc. etc, evident from Ext.P1 study report. It is stated that, whenever a person walking very close to the tower, he will be suffering health consequences because of the high power radiation emitting from the antena installed in the tower and the people of the locality are experiencing the W.P.(C). No.26878 of 2016 3 same. It is also contended that no precautionary measures have been taken to prevent this kind of pollution and radiation. It is also contended that, the right to life includes right for a decent life, which was held by a Division Bench of this Court in 2008(2) KLT 141 (incorrect citation). 4. It is also contended that the 7[th] respondent is again taking illegal steps to install the mobile tower of other company such as Reliance in the very same property and if such things happens, it will cause irreparable loss and injury to the petitioner as well as other peoples residing in the area. In that view of the matter a mass petition was submitted, evident from Ext.P2. However, the District Collector has not taken any action in the said mass petition. It is in this background seeking appropriate direction this writ petition is filed. 5. Seventh respondent has filed a counter affidavit refuting the allegations and claims and demands made by the petitioner in the writ petition. According to the 7[th] W.P.(C). No.26878 of 2016 4 respondent, the tower was installed in the land in question belonging to the 8[th] respondent as early as in 2007 on the basis of the building permit duly issued by the competent authority. It was on the basis of an agreement executed by and between the parent company of the 7[th] respondent and the 8[th] respondent that the telecommunication tower in 6 cents of property was put up. Seventh respondent is entitled to continue operation for a period of 15 years as per the agreement on the basis of the monthly fee payable by the 7[th] respondent to the 8[th] respondent, owner of the property. The agreement between the parties enables the 7[th] respondent to put up antena, equipments etc. of various mobile service providers in the tower without payment of any additional charges to the land owner. It is submitted, in compliance with the terms and conditions of the agreement with periodical escalation, the lease rent is being paid by the 7[th] respondent to the 8[th] respondent without any default. However, after having agreed upon the terms contained in the agreement, W.P.(C). No.26878 of 2016 5 the 8[th] respondent has been obstructing the functioning of the tower at every stage making illegal demands for payment of additional amounts, which resulted in the 7[th] respondent company instituting O.P.(Arb) No.604/2008 before the District Court, Ernakulam seeking an order of injunction restraining the land owner and his men from obstructing their use, occupation, possession and enjoyment of the petition schedule property and the telecommunication tower and its accessories. The said original petition was allowed as per order dated 9.7.2009 and it was ordered that, the injunction shall be in force till the dispute is settled by arbitration. 6. Even though 7[th] respondent attempted to appoint an arbitrator with the consent of the 8[th] respondent, even before the order dated 9.7.2009, was unsuccessful due to non cooperation from the part of the 8[th] respondent. Accordingly, Arbitration Request No.54/2010 was filed before this court seeking appointment of an arbitrator and the same was allowed on 31.01.2011 and the arbitration proceedings are W.P.(C). No.26878 of 2016 6 pending. Seventh respondent had to file I.A. No.1371/2011 before the District Court in O.P (Arb) No.604/2008 and an Advocate Commissioner was appointed by the court to supervise the maintenance of equipments and accessories and replacement of generators etc. etc. on the specified dates with Police protection and under the supervision of the Advocate Commissioner the works could be done at that time. 7. According to the 7[th] respondent, though tower was constructed in 2007, due to the obstruction caused by the 8[th] respondent even electric supply to tower could not be obtained and the 7[th] respondent had to file W.P.(C) No.14110/2014 seeking the said relief, which was granted and the tower could be energized. It is also stated M/s. Reliance Jio, a telecommunication service provider, installed some of their equipments in the telecommunication tower situated in the property in question. They have to install and change some equipments in the tower so as to upgrade the quality of their service. The 8[th] respondent has been objecting W.P.(C). No.26878 of 2016 7 the said work and causing obstruction to the work from May, 2016 onwards. Hence 7[th] respondent filed I.A. No.3616/2016 in O.P.(Arb) No.604/2008 on 19.7.2016 for appointing an Advocate Commissioner again for the purpose of supervising the installation and replacement of equipments and accessories in the mobile tower in question. The 7[th] respondent approached the concerned authorities including the 6[th] respondent for protection for doing their works. It is at that point of time, the 8[th] respondent caused the petitioner to institute this writ petition and according to the 7[th] respondent, 8[th] respondent was successful in his attempt. It is also contended that the conduct of the petitioner and the 8[th] respondent is clandestine, improper and unjustified. The other contentions raised by the petitioner with respect to health hazards consequent to the installation of tower and causing other health problems to the petitioner and his family and other people residing in the locality are all disputed by the 7[th] respondent. It is also the contention of the 7[th] W.P.(C). No.26878 of 2016 8 respondent that, it was on the basis of the agreement executed by and between the 7[th] and 8[th] respondents, the tower is being operated after securing necessary permission from the competent local authority. Therefore, it is the contention of the 7[th] respondent that petitioner has not made out any case warranting interference of this court exercising the power of judicial discretion under Article 226 of the Constitution of India. 8. Eighth respondent has filed a counter affidavit traversing through the contentions raised in the writ petition and also the contentions raised by the 7[th] respondent. The proceedings with respect to the injunction secured by the petitioner under Section 9 of the Arbitration ad Conciliation Act, 1996 and arbitration proceedings pending before the arbitrator are all admitted. However, it is the contention of the 8[th] respondent that, the 7[th] respondent is attempting to erect new additional equipments and antena of M/s.Relaince Jio on the guise of the injunction order to which objection is W.P.(C). No.26878 of 2016 9 raised as the injunction order was only to the extent of preserving the subject matter of arbitration. According to the 8[th] respondent, neighbours have also objected to the erection of the new additional antenas. It is also stated that, I.A. No.3616/2016 for appointing an Advocate Commissioner in O.P.(Arb) No.604/2008 is pending consideration before the District Court, Ernakulam. 9. Heard learned counsel for petitioner, respective counsel appearing for respondents, learned Government Pleader and perused the documents on record and the pleadings put forth by the respective parties. 10. The question to be considered is whether any case is made out by the petitioner warranting interference of this court under Article 226 of the Constitution of India. On a reading of the contention raised in the writ petition, what is discernible is that, the legality of the installation of tower by the 7[th] respondent is not much disputed. The sole contention advanced in the writ petition is that, consequent to the W.P.(C). No.26878 of 2016 10 installation of the tower and the antena, there is every likelihood of health hazards and the petitioner as well as 8[th] respondent residing in the locality is experiencing such health hazards and therefore, the antena and tower should be removed by the District Collector. The two grounds raised by the petitioner in the writ petition are as follows: a. The act of the official respondents is not taking any steps against installation of new antennas of new mobile company in the property of 8[th] respondent is wrong and illegal. b. The petitioner and other local people are very much aggrieved by the present tower as it is threat and life of the people in the locality. In this situation, fixing of additional antennas of new company will be more dangerous. So far statutory bodies didn't give any permission to install additional towards but with their silent support the party respondents are installing new Antennas which is not justifiable and can't be permitted any manner.” 11. However, at the time of arguments learned counsel W.P.(C). No.26878 of 2016 11 for petitioner has contended that as per the Government Order dated 15.3.2014 a permission is to be secured from the State and District Committees for installation of towers as detailed in the guidelines of Department of Telecommunication and has produced that order before me during the course of the argument. Here is a case where the tower was installed after securing the building permit much earlier to the said notification. What is contemplated in the notification dated 15.3.2014 is with respect to securing permission from the additional 9[th] respondent in this writ petition viz., Telecom District Committee represented by the District Collector. There is no prohibition or enabling circumstances in the said notification to secure permission from the Telecom District Committee for installing antena to an already existing tower. According to the learned counsel for 7[th] respondent, no new tower is installed in the property in question. The existing antena and the accessories operated by the company viz., M/s. Reliance Jio wants to enhance their W.P.(C). No.26878 of 2016 12 equipment and for the said purpose certain modifications are to be made to the existing equipments which are installed already in the existing tower. Therefore, according to the counsel, the said notification will not come into play since the same is provided only for the purpose of installation of the tower alone. 12. Learned counsel for the 7[th] respondent has invited my attention to a Division Bench judgment of this court in **Reliance Infocom Ltd. v. Chemanchery Grama Panchayat** [2006(4) KLT 695] wherein it was held that permission granted for installation of mobile base station would not cause as such any health hazards nor will it affect fundamental rights guaranteed to citizens under Article 21 of the Constitution of India. So also learned counsel has invited my attention to the Full Bench judgment of this court in **ESSAR Telecom Infrastructure (P) Ltd. v. Circle Inspector of Police** [2010(2) KLT 762]. The said writ petition was filed seeking police protection for construction of W.P.(C). No.26878 of 2016 13 mobile tower after securing valid licence from the local authority, wherein it was held that, when the infrastructure company has established their right to construct and operate mobile towers, it is for objectors to prove infraction of their right and show disentitlement of licencees by resorting to remedy of approaching licensing authorities or to approach civil court or by establishing their right in police protection petition. This court had occasion to consider after surveying the judgment renderred in this regard with respect to the health hazards pointed out by the parties thereunder in detail and has arrived at a conclusion that there are no circumstances established by the objectors which are scientifically proved. Therefore, it was held that relegation of the parties to the civil court in the event of forcible objection to the construction for energy is not an effective alternative remedy and interference by this court by granting police protection under Article 226 of the Constitution of India is warranted to advance the course of justice. W.P.(C). No.26878 of 2016 14 13. Learned counsel has also invited my attention to the judgment of a Division Bench of this court in **ESSAR Telecom Infrastructure (P) Ltd. v. State of Kerala** [2011(2) KLT 516] where, also the construction of mobile tower was considered visa-vis, the provisions of the Panchayat Raj, and the Municipality Act, and arrived at a conclusion that the activity carried out in a mobile tower cannot be treated as manufacturing process. 14. However, learned counsel for petitioner has invited my attention to the judgment of this in **Indus Towers Ltd., Palarivattom and others v. Sub Inspector of Police, Thodupuzha and others** [2014 (4) KHC 81] wherein the issue with respect to constitution of the District Telecom Committee was considered by this court and according to the learned counsel all questions with respect to the grievance put forth by any objectors is to be considered by the additional 9[th] respondent. Therefore, according to the learned counsel for the petitioner, 7[th] respondent has not secured any permit from the District Telecom Committee for carrying on or modification of the activity undertaken in the property in question. Learned W.P.(C). No.26878 of 2016 15 counsel has also invited my attention to the provisions of Kerala Panchayat Raj ( Licensing of Dangerous and Offensive Trade and Factories) Rules, 1996 as also Section 233 of the Panchayat Raj Act to canvass the proposition that, 7[th] respondent has not cared to secure any permission under the said Act. The said question was considered by the Division Bench of this court in **ESSAR Telecom Infrastructure (P) Ltd.** (supra) reported in [2011(2) KLT 516] and held that installation of mobile tower does not involve any manufacturing process. What is contemplated under Section 233 and rule 12 of the Rules, 1996 is in respect of machinery or a manufacturing plant operated by steam power, water power etc. etc. 15. Therefore, in my considered opinion, the licences under the said provisions of the Act as such is not required since there is no manufacturing process undertaken by the 7[th] respondent. Moreover, rule 118 of the Kerala Panchayat Building Rules, 2011 takes care of the telecommunication tower, which states that no person shall erect or re-erect any non-governmental telecommunication tower or telecommunication pole structures W.P.(C). No.26878 of 2016 16 or accessory rooms or make alteration or cause the same to be done without first obtaining a separate permit for each such tower or telecommunication pole structure from the Secretary. Therefore, it is very clear as day light, what is contemplated under the Rules, also is installation of a tower. Nobody has a case, 7[th] respondent has not secured permission from the Panchayat for the said purpose. 17. Taking note of the respective submissions made above, and reckoning the legal and factual circumstances, I am of the considered opinion, petitioner failed to make out any case warranting interference of this court exercising the power of discretion under Article 226 of the Constitution of India. Writ petition fails and accordingly it is dismissed. Sd/- **SHAJI P. CHALY JUDGE** smv 21.11.2016