Vincent et al. v. The District Collector Kollam & Others (W.P.(C) No.41233 of 2018)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** ## **THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942** ## **WP(C).No.41233 OF 2018(D)** ## **PETITIONERS:** - **1 VINCENT AGED 53 YEARS S/O. LOOK, RESIDING AT VINCENT COTTAGE, MEEYANNUR P.O, KOLLAM-691 537** - **2 SAJI SREEDHARAN S/O. SREEDHARAN, PUNNAVILA HOUSE, MEEYANNUR P.O-691 537** - **3 SASIDHARAN PILLAI S/O. GOPALA KURUP, S.S. VILLA, MEEYANNUR P.O, KOLLAM691 537** - **4 REV. FR. KOSHY GEORGE MUTHALALY S/O. GEORGE MUTHALALY, MANAGER, VARINJAVILA ST. MARY'S CENTRAL SCHOOL, MEEYANNUR P.O, KOLLAM-691 537** - **BY ADVS. SRI.GEORGE CHERIAN (SR.) SMT.K.S.SANTHI SMT.LATHA SUSAN CHERIAN** ## **RESPONDENTS:** - **1 THE DISTRICT COLLECTOR COLLECTORATE, KOLLAM** - **2 THE DISTRICT TELECOM COMMITTEE COLLECTORATE, KOLLAM.** - **3 SECRETARY NEDUMPANA GRAMA PANCHAYATH, NEDUMPANA P.O, KOLLAM-691 576** - **4 NEDUMPANA GRAMA PANCHAYATH NEDUMPANA P.O, KOLLAM-691 576 REPRESENTED BY ITS SECRETARY.** - **5 INDUS TOWER LIMITED VANKARATH TOWERS, N.H BYE PASS, PALARIVATTOM, KOCHI - 24, REPRESENTED BY ITS MANAGING DIRECTOR** WP(C).No.41233 OF 2018(D) 2 **R3 & R4 BY ADV. SRI.M.R.SASITH R5 BY ADV. P.SATHISAN R5 BY ADV. SMT.ROHINI S KUMAR R5 BY ADV. SRI.ABHAY FERDINAND R1 & R2 BY ADV.SRI.K.J.MANURAJ, GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 0402-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.41233 OF 2018(D) 3 ## **W.P.(C) No.41233 of 2018** ## **------------------------------------------** ## **J U D G M E N T** Petitioners are residents of Ward No.9 of Nedumpana Grama Panchayat in Kollam District. The fifth respondent proposed to establish a mobile tower in the neighborhood of the residences of the petitioners. The petitioners raised objections against the establishment of the mobile tower and lodged complaints before the District Telecom Committee. The District Telecom Committee disposed of the complaints directing that if the fifth respondent secures a building permit, they shall be permitted to establish the mobile tower. The fifth respondent thereupon obtained Ext.P6 building permit for establishing the mobile tower. Complaints have been lodged even thereafter by the people in the locality before the District Collector. In one of those complaints, the District Collector passed Ext.P11 order directing the Panchayat to take appropriate action. The writ petition is filed thereafter seeking orders for implementation of Ext.P11 order. 2. At the time of admission, this court, byway of an interim order, permitted the fifth respondent to erect the mobile tower. They were however restrained from operating the telecommunication WP(C).No.41233 OF 2018(D) 4 tower. 3. Heard the learned Senior Counsel for the petitioners as also the learned counsel for the fifth respondent. 4. The only point canvased by the learned Senior Counsel for the petitioners at the time of hearing, was that permission of the Panchayat under Section 233 of the Kerala Panchayat Raj Act, 1994 (the Act) should have been obtained by the fifth respondent before the erection of the mobile tower as the mobile tower is to be construed as a work place where electric power is employed. Insofar as the permission of the Panchayat has not been obtained by the fifth respondent under Section 233 of the Act, according to the learned Senior Counsel, the erection of the mobile tower is illegal. The learned Senior Counsel has placed reliance on paragraph 41 of the judgment of this court in **Essar Telecom Infrastructure (P) Ltd. v. State of** **Kerala,** 2011 (2) KHC 171. 5. Paragraph 41 of the judgment in **Essar Telecom Infrastructure** reads thus: “41. Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per S.232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can use any area for such purposes as are notified, without licence. This Court has taken the view that the word “offensive or dangerous to human life or health or property” are not to be construed in their ordinary sense and it need be only activities which are so considered by the Authority (See Shaji v. State of Kerala (2004 (1) KLT 118). It is true WP(C).No.41233 OF 2018(D) 5 that a mobile tower is not notified under S.232 as such. But, we should have regard to the words used in S.233 wherein the only indispensable requirements are the construction or establishment of any factory, workshop or workplace in which, no doubt, it must be proposed to employ steam power, water power or other mechanical power or electrical power. Nothing prevented the Legislature also indicating in S.233 that it must be a factory, workshop or workplace to which S.232 is applicable. The conspicuous omission to refer to the same and the width of the language employed in S.233 leads us to hold that any factory, workshop or workplace, be it included in S.232 or not, in which it is proposed to employ the steam power, water power, mechanical power or electrical power will attract S.233 and permission must be sought and granted before construction or establishment.” It is seen that after having held that any factory, workshop or workplace, be it included in Section 232 or not, where steam power, water power, mechanical power or electrical power is proposed to be employed, will attract Section 233, the court proceeded to consider whether a mobile tower could be regarded as a work place and held that a mobile tower cannot be regarded as a work place. Paragraphs 67 and 68 of the said judgment read thus: “67. Going by the concept of worker, either he must be employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or any work which is incidental or connected with the manufacturing process. Having regard to the definition of the word 'manufacturing process', we are of the view that the activity which is carried out in a mobile tower cannot be treated as a manufacturing process. At any rate, we would think that drawing light from the definition of the word 'workplace' in the Travancore - Cochin Public Health Act, that the activity which is carried on in a mobile tower cannot be treated as an industrial, manufacturing or a trade process. The fact that the mobile tower operates or works without any employee or workmen having to attend to it with any measure of regularity fortifies our view that it cannot WP(C).No.41233 OF 2018(D) 6 be treated as a workplace, as intended by the Legislature. We would think that not only must systematic work be done with the aid of power as stated therein, but there must be at least a few employees who attend to the work with some measure of regularity. This feature is certainly not present in the case of a mobile tower and the presence of an occasional worker, essentially for doing maintenance once in a while, cannot render the place a workplace. 68. We do not think that it would be reasonable in the circumstances to consider it as a workplace on the principle that the Court must do so on the basis that the enactment is an ongoing statute. In this regard, the said principle must be applied with great care, as any interpretation in this direction must also be adopted with due regard to the consequences which flow from such interpretation being placed.” In the light of the decision aforesaid, the contention raised by the learned Senior Counsel for the petitioners is unsustainable and the writ petition is, accordingly, dismissed. ## **Sd/-** **P.B.SURESH KUMAR** Mn **JUDGE** WP(C).No.41233 OF 2018(D) 7 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE MEETING OF SECOND RESPONDENT DATED 8.2.18** - **EXHIBIT P2 TRUE COPY OF THE DECISION DATED 5.3.18 OF PANCHAYATH COMMITTEE.** - **EXHIBIT P3 TRUE COPY OF THE LETTER DATED 8.3.18 BY 3RD RESPONDENT.** **EXHIBIT P4 TRUE COPY OF THE APPLICATION FOR PERMIT DATED 7.11.17** - **EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO. 9585/18 DATED 9.4.18** - **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE SECRETARY.** - **EXHIBIT P7 TRUE COPY OF THE LETTER DATED 28.11.18 ISSUED BY 3RD RESPONDENT TO THE VICE PRESIDENT OF THE PANCHAYATH.** - **EXHIBIT P8 TRUE COPY OF THE REPRESENTATION DATED 10.8.18** - **EXHIBIT P9 TRUE COPY OF THE COMPLAINT DATED 21.11.18 BEFORE THE PANCHAYATH SECRETARY** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 23.11.18 EXHIBIT P11 TRUE COPY OF THE REPRESENTATION UNDER THE LEADER OF MEMBER OF PANCHAYATH TO DISTRICT COLLECTOR, KOLLAM DATED 4.12.18** - **EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 18.12.18 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT** - **EXHIBIT P13 TRUE COPY OF THE PETITION FILED BY THE PETITIONER TO THE PANCHAYATH DATED 20.12.18** - **EXHIBIT P14 TRUE COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE 5TH RESPONDENT** **RESPONDENTS' EXHIBITS:** WP(C).No.41233 OF 2018(D) 8 **EXHIBIT R5 A TRUE COPY OF THE MINUTES OF MEETING CHAIRED BY 2ND RESPONDENT DATED 24.10.2018 (M-1551062/14) EXHIBIT R5 B TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT DATED 19.12.2018 EXHIBIT R5 C TRUE COPY OF THE LETTER NUMBERED A2.4621/2018 DATED 21.12.2018 ISSUED BY THE 3RD RESPONDENT EXHIBIT R5 D TRUE COPY OF THE INTERIM ORDER IN WP(C) NO41233/2018 DATED 18.12.2018** //TRUE COPY// PA TO JUDGE