WA No.277/2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 21ST DAY OF AUGUST 2020 / 30TH SRAVANA, 1942** ## **WA.No.277 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 35044/2019(E) OF HIGH COURT OF KERALA DATED 9/1/2020** ## **APPELLANTS/6TH AND 7TH RESPONDENTS:** - **1 P.M.ISMAIL AGED 61 YEARS S/O.MUHAMMED, PULICKEEL HOUSE, ERATTUPETTA, NADACKAL VILLAGE, KOTTAYAM, KERALA-686121** - **2 SIYAD.A.P AGED 33 YEARS S/O.PAREEKUTTY, AMBAZHZTHINAL HOUSE, NADACKAL VILLAGE ERATTUETTA, KOTTAYAM, KERALA-686121** ## **BY ADV. SMT.MARIAN G.M.THARAKAN** ## **RESPONDENTS/PETITIONER 7 RESPONDENTS 1 TO 5:** - **1 INDUS TOWERS LTD. 8TH FLOOR, VANKARATH TOWERS, N.H. BYEPASS, PALARIVATTOM, COCHIN, KERALA-682024 REP. BY SRI RAJAKUMAR PAVOTHIL, HEAD - LEGAL, KERALA CIRCLE** - **2 STATE OF KERALA INFORMATION TECHNOLOGY DEPARTMENT, REP. BY SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM, KERALA-695001** - **3 DISTRICT TELECOM COMMITTEE REP. BY CHAIRMAN (DISTRICT COLLECTOR) COLLECTORATE, KOTTAYAM KERALA-686002** WA No.277/2020 -:2:- - **4 THE DISTRICT POLICE CHIEF, OFFICE OF DISTRICT POLICE CHIEF, KOTTAYAM, KERALA-686002** - **5 THE STATION HOSUE OFFICER, ERATTUPETTA POLICE STATION, ERATTUPETTA, KOTTAYAM DISTRICT, KERLA-686121** - **6 ERATTUPETTA MUNICIPALITY REP. BY SECRETARY, ERATTUPETTA, KOTTAYAM DISTRICT, KERALA-686121** - **7 ADDL.R7.SHEEJA.P.A W/O.SIJU SHEIK, PUTHENPARAMBIL HOUSE, NADACKAL, ERATTUPETTA, KOTTAYAM - 686121, RESIDING AT T.C.91/732(2), VENPALAVATTOM, ANAYARA P.O., THIRUVANANTHAPURAM - 695 029. ADDL.R7 IMPLEADED AS PER ORDER DATED 08.03.2020 IN IA.NO.3/20 IN WA.277/20.** - **8 ADDL.R8.FATHIMA EASA W/O. LATE MOHAMMED EASA RAWATHER, PUTHUPARAMBIL, NADACKAL P.O., ERAATTUPETTA, KOTTAYAM NOW RESIDING AT HOUSE NO.3/492, VALAVI VAULT, PARAKKATTU TEMPLE ROAD, BMC P.O., KAKKANAD, ERNAKULAM DISTRICT. (ADDL.R8 IS IMPLEADED AS PER ORDER DATED 04.08.2020 IN I.A.NO.6/2020 IN W.A.NO.277/2020.)** **R1 BY ADV. SRI.SANTHOSH MATHEW R1 BY ADV. SRI.ARUN THOMAS R1 BY ADV. SRI.JENNIS STEPHEN R1 BY ADV. SRI.VIJAY V. PAUL R1 BY ADV. SRI.ANIL SEBASTIAN PULICKEL R1 BY ADV. KARTHIKA MARIA R2-5 BY SRI. T. RAJASEKHARAN NAIR-SR.G.P. R6 BY ADV. SRI.V.K.MOHAMMED YOUSUF R7 BY ADV. V.G.ARUN (K/795/2004) R8 BY ADV. S.VINOD BHAT R8 BY ADV. KUM.ANAGHA LAKSHMY RAMAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 04-082020, THE COURT ON 21-08-2020 DELIVERED THE FOLLOWING:** WA No.277/2020 -:3:- ## **J U D G M E N T** Dated this the 21[st ] day of August, 2020 ## _**Shaffique, J.**_ This writ appeal is filed against the judgment in W.P(C) No.35044/2019 dated 09/01/2020. The appellants are respondents 6 and 7 in the writ petition. The learned Single judge disposed of the writ petition with a direction to give necessary police protection to the petitioner to erect the tower in accordance with the building permit granted by the local authority. 2. The appellants are the owners of the land adjacent to the proposed site for the construction of the mobile tower. The writ petitioner is the first respondent herein. The appellants contend that the proposed site is situated in a thickly populated area and if the tower is allowed to be constructed, it would cause serious health issues to the nearby residents. The appellants claim that the pathway to the tower site does not have the specified width and the building permit has been obtained from the local authority by concealing and suppressing the facts. WA No.277/2020 ## -:4:- 3. The short facts of the case are as under:- The 1[st] respondent had applied for a building permit with the 6[th] respondent, Erattupetta Municipality on 18/06/2018 and the permit was issued on 19/06/2018. The appellants had made representations to the District Collector and Municipal Secretary against the issuance of permit for construction of mobile tower. The Secretary of the Municipality thereafter issued direction to temporarily stop the construction on 25/07/2018. The first respondent approached District Telecom Committee (“DTC” for short) on 5/10/2018 seeking police protection for construction of the telecommunications tower and the Committee in its meeting held on 26/03/2019 denied permission for construction and police protection with observations: a) the nearby houses are at a distance of 12 and 15 metres from the proposed tower site, b) the report of District Medical Officer that the tower can cause hazardous health effects to nearby residents and c) the report of District Superintendent of Police that there can be law and order problem if the tower is allowed to be constructed. WA No.277/2020 -:5:- 4. The writ petition was filed against the denial of permission and police protection by DTC for proceeding with the tower construction. The petitioner produced Ext.P3, the building permit issued by the 6[th] respondent, Ext.P4, the request before DTC, Ext.P5, the proceedings of the meeting convened by DTC dated 26/03/2019 rejecting the permission for construction and police protection, Ext.P6, the EMF Certification for radiation compliance issued by TERM (Telecom Enforcement and Resource Monitoring) Cell, which shows that the radiation is within the prescribed limits and Ext.P7, Advisory Guidelines issued by Information Technology, Department of State Government regarding the Issue of Clearance for Installation of Mobile Towers. The learned Single Judge after considering that the radiation value of the proposed tower was within the permitted limit, set aside the order of DTC and ordered for police protection to the petitioner to erect the tower in accordance with building permit issued by the local authority. 5. The contention urged by the appellants is that the nearby residents were not made parties and they were not heard or given an opportunity to adduce evidence to prove their WA No.277/2020 ## -:6:- contention. The building permit issued by the local authority and the erection of the mobile tower are in violation of the provisions of Kerala Municipality Building Rules, 1999 (hereainafter referred to as 'KMBR' for short). The appellants contend that the learned Single judge passed orders by relying upon the EMF Certification for radiation compliance issued by TERM Cell, which requires reconsideration. 6. The violations of the building rules under KMBR alleged by the appellants are as follows: i) That the plan has been submitted by distorting the facts. The width of the pathway is shown as 3 metres but the passage to the proposed site does not have the required width. The boundaries of the plot have not been demarcated properly even after construction of the tower. ii) The appellants referring to the decision in _**Essar Telecom Infrastructure (P) Ltd. v. State of Kerala**_ [2011 (2) KHC 171], in which the provisions applicable to construction of mobile towers have been discussed, claim that the building permit has been issued without noticing that there is no proper pathway of specified width and the houses in the vicinity are not WA No.277/2020 ## -:7:- at the distances away from the tower site and the Secretary has sanctioned the permit without conducting site inspection. iii) That the building permit obtained was valid only for one year and the construction was completed after the expiry of the sanctioned permit. iv) The second proviso to Rule 131(3) requires the consent of the land owner if the tower or the building on which the tower is constructed abuts any plot boundary. The appellants claim that the base of the structure abuts the boundary of the nearby residents and consent of the land owners has not been obtained and produced with the application for permit. v) That no protective wall is erected for the tower site and plot in which the tower is situated. vi) The plan was submitted by misrepresenting the facts. There was no proper pathway, there was no required distance from the nearby houses to the tower site, the consent of the land owners whose boundary will be abutted was not obtained, the tower site was not protected with fencing etc. The 1[st] respondent completed the construction of the mobile tower without applying for renewal of permit issued on 19/06/2018 after the expiry of WA No.277/2020 -:8:- one year. 7. The counsel for the 7[th] respondent raises a contention that she was not made a party in the writ petition and the telecommunication tower was erected abutting the boundary of her residential property. The counsel further submits that the tower was constructed without a valid permit as the initial permit would have expired after one year as the permit was not extended. 8. The 8[th] respondent has raised a contention that the telecommunication tower has been constructed abutting her property and the application for building permit was submitted without obtaining her consent as per the second proviso to Rule 131(3) of KMBR. The 8[th] respondent had approached the Tribunal for Local Self Government Institutions and obtained an order of stay dated 27/07/2020 against the operation of building permit and the approved plan. 9. The 6[th] respondent, Secretary, Erattupetta Municipality conducted an inspection in the property and found that the position of the pathway to the plot has been shown wrongly in the site plan. The construction of the tower, shelter and WA No.277/2020 -:9:- installation of diesel generator has been completed. The position of shelter and diesel generator deviates from the plan as the construction was shifted to eastern side of the plot against which the permit has been given. There are enough setbacks for tower, shelter and diesel generator from the boundaries of the plot. These variations comes within the ambit of Rule 10 of KMBR, 1999 and the construction is not conducted in violation of the rules. 10. In the affidavit filed by the 6[th] respondent, it is stated that on inspection of the site it is seen that in other places rather than the plot in which the consent has been given by the property owner, there is one residential building and one commercial building. In the location sketch, the 3 metre road is shown through middle of the plot but the actual position of the pathway is on the left side of the plot which leads to the courtyard of the property owner through the south east corner of the plot and thereafter through the side of his house which leads to the plot in which the tower situates. In the consent of the building owner produced by the company, the position of the road has not been correctly described. The construction of tower, WA No.277/2020 ## -:10:- shelter and diesel generator has been completed in the plot at present. The position of diesel generator and shelter has been changed mutually by deviating from the plan. There is slight difference in the measurement of setback which has happened due to the reason that construction has been shifted to the eastern side of the location against which the permit has been given. There is a distance of 5.1 metre to the tower, 1.8 metre to the shelter and 2.3 metre to the diesel generator from the boundary of the plot even though the position has been changed from the plan. 11. This Court had directed District Town Planner, Kottayam to conduct inspection and his report states that: “a) the boundaries of the plot are not demarcated. b) the positions of shelter and diesel generator are changed mutually and though sufficient setbacks are provided, they differ from the measurement shown in the site plan. c) there are 12 houses in the vicinity but KMBR 1999 does not specify any minimum distance between the tower and the nearby residential buildings. WA No.277/2020 -:11:- d) though the position of construction has deviated from that of permit plan, the minimum setback prescribed by KMBR 1999, Rule 131(3) and KMBR 2019 - Rule 84 is maintained. These variations come within the permitted alterations as per Rule 17(2) of KMBR 1999 which does not violate any of the provisions. Therefore there is no violation of the provisions of KMBR, 1999 in the construction of the mobile tower”. 12. We have heard the learned counsel appearing on either side and have perused the records. 13. Going by the report of the District Town Planner, it is seen that there had been some deviations from that of the permit plan. But no violation of the KMBR is found out. 14. The District Telecom Committee had denied police protection to M/s Indus Towers Ltd., the writ petitioner, mainly on the ground that there are nearby houses in the locality which is at a distance of 12 and 15 metres and the Medical Officer had reported about the seriousness of the issue. Learned Single Judge however placing reliance on Ext.P6 which is the EMF certification for radiation compliance observed that the radiation level is less WA No.277/2020 ## -:12:- than permissible technical limit and therefore it was held that when an expert body had issued a certification, in the absence of any finding contrary to the same, District Telecom Committee cannot ignore certification issued by TERM Cell. In Ext.P5 order passed by District Telecom Committee, the translation of which is produced, the complaint of the complainants have been recorded as under:- _“Though the nearest house is within 15 Meters from tower due to the possibility of noise pollution, and radiation there is complaint submitted. Further to the complaint received, based on the decision of the council a Stop Memo has been issued in connection with the Building Permit issued. The Indus Tower representative has submitted that the Municipal Council has no authority to cancel the Building Permit, and the Secretary is the authorized person who has such authority. The District Medical Officer has conveyed that the nearest residence is situated at a distance of 12 metres, and the area of the proposed tower in the north West direction is an elevated area and is densely populated with residences._ The finding of the Committee is as under:- _“The District Medical officer has reported that since there is only distance of 12 meters to 15 meters from the nearby residence, there is danger to the health of the people. The District Police authority has also reported that there is a possibility of a law and order situation arising, hence it is decided not accord sanction.”_ WA No.277/2020 -:13:- 15. Apparently, the District Telecom Committee had not placed any reference on the certification issued by the TERM cell. If the District Telecom Committee had not verified such additional materials, the matter ought to have been remitted back for fresh consideration. Learned Single Judge had however placing reliance on the TERM Cell certificate arrived at a conclusion that there may not be any problem as suggested by the District Telecom Committee. In fact, when a jurisdiction is conferred on a Committee to decide whether police protection ought to be granted or not for completing a telecommunication tower, the Court should direct the said authority to decide the matter rather than arriving at its own conclusions based on additional materials. In the case on hand, it was for the writ petitioner to produce the TERM Cell certificate before the Committee and if they have not adverted to the same, this Court should have directed the Committee to consider the same as well before taking a final decision. 16. After the judgment, it appears that the writ petitioner has completed construction of the tower. By interim order dated 14/2/2020, this court had directed that the tower shall not be WA No.277/2020 -:14:- activated for a period of two weeks, which was later extended from time to time. 17. Further, what we find from the records is that there are certain deviations from the building plan submitted along with the permit and in fact one of the neighbouring land owners, the additional 8[th] respondent, has even approached the Tribunal for Local Self Government Institutions challenging the building permit. There is also dispute between the parties relating to the period during which the permit was granted. As per Rules, the permit could be valid only for a period of one year, whereas from the permit produced along with the writ petition, it is seen that it is valid for a period of 3 years. We are not expressing any opinion in this regard and it is for the Municipality to place all records before the competent authority. Having regard to the aforesaid factual situation, this writ appeal is disposed of as under:- (i) We set aside the judgment of the learned Single Judge. (ii) The matter is remitted back to the District Telecom Committee, who shall consider the matter afresh untramelled by any of the findings of the learned Single Judge or this Court and WA No.277/2020 -:15:- shall consider whether this is a fit case for which police protection should be granted. The Committee shall also verify whether the tower has been constructed with a valid permit. (iii) Energisation of the tower shall be done only after the matter is disposed of by the District Telecom Committee. (iv) Validity of the permit granted to the 1[st] respondent/petitioner shall be subject to further orders to be issued by the Tribunal for Local Self Government Institutions. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** Rp **GOPINATH P. JUDGE** WA No.277/2020 ## -:16:- ## **APPENDIX** **APPELLANTS' EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF JUDGMENT DATED 09.01.2020 PASSED BY THE HIGH COURT OF KERALA IN THE WP(C)35044/2019** **ANNEXURE A2 TRUE COPY OF THE COMMUNICATION DATED 03.09.2018 FROM THE SECRETARY/PUBLIC INFORMATION OFFICER OF ERATTUPETTA MUNICIPALITY IN RESPONSE TO THE RTI APPLICATION OF THE ACTION COUNCIL WITH ENGLISH TRANSLATION** **ANNEXURE A3 TRUE COPY OF THE SKETCH FURNISHED BY THE VILLAGE OFFICE,R ERATTUPETTA** **ANNEXURE A4 TRUE COPY OF THE SITE PLAN FOR THE PROPOSED TOWER SUBMITTED BY THE 1ST RESPONDENT BEFORE THE LOCAL BODY OFFICIALS ISSUED IN REPLY TO AN RTI PREFERRED BY ACTION COUNCIL** - **ANNEXURE A5 TRUE COPY OF THE SITE PLAN MADE BY SRI FAZIL F ENGINEERING CONSULTANT (CIVIL) E-10336/19/SS-202/KLM, ERATTUPETTA** - **ANNEXURE A6 TRUE COPY OF THE PHOTOGRAPHS TAKEN OF THE ACTUAL AREA AND PATHWAY LEADING UPTO THE PROPOSAL TOWER AND THE STRUCTURE SITUATED DIRECTLY IN FRONT OF THE PROPOSED MOBILE TOWER** **ANNEXURE A7 TRUE COPY OF COMPLAINT DATED JULY 11, 2018, MADE TO THE DISTRICT COLLECTOR AND THE MUNICIPAL COUNCILOR OF WARD NO.11, ERATTUPETTA MUNICIPALITY WITH ENGLISH TRANSLATION** WA No.277/2020 -:17:- **ANNEXURE A8 TRUE COPY OF THE RECEIPT DATED 12.07.2018 ISSUED BY THE THE ERATTUPETTA MUNICIPALITY TO KATTAMALA PEOPLE** **ANNEXURE A9 TRUE COPY OF THE RECEIPT DATED 13/07/2018 ISSUED BY THE OFFICE OF THE DISTRICT COLLECTOR, KOTTAYAM WITH ENGLISH TRANSLATION** - **ANNEXURE A10 TRUE COPY OF THE RECEIPT NUMBERED AS INWARD NO.3126 ISSUED BY THE ERATTUPETTA MUNICIPALITY TO YASIR** - **ANNEXURE A11 TRUE COPY OF THE COMPLAINT MADE BY THE ACTION COUNCIL CHAIRMAN DATED SEPTEMBER 13, 2018 WITH ENGLISH TRANSLATION** - **ANNEXURE A12 TRUE COPY OF THE REPORT OF DISCUSSION S DATED 12.07.2018 AND 20.07.2018 AND THE CONSEQUENT COMMUNICATION ISSUED BY THE ERATTUPETTA MUNICIPALITY NO.E1/4699/2018 DATED 25.07.2018 WITH ENGLISH TRANSLATION** - **ANNEXURE A13 PHOTOGRAPH OF THE ONLY ACCESS THROUGH THE 3 M. WIDE PATHWAY LEADING FROM THE ROAD TO THE IST RESPONDENT'S TELECOM TOWER BEHIND SHRI HASEEB'S CAR PORCH.** ## **RESPONDENT'S EXHIBITS:** **ANNEXURE R7(A) THE TRUE COPY OF THE SALE DEED NO.923 OF 2007, IN MY FAVOUR.** - **ANNEXURE R7(B) THE TRUE COPY OF THE BASIC LAND TAX RECEIPT BEARING NO.38053 DATED 20.2.2017 ISSUED BY VILLAGE OFFICER, ERATTUPETTA.** **ANNEXURE R7(C) THE TRUE PHOTOGRAPH SHOWING THE ERECTION OF THE CONTROVERSIAL TELECOMMUNICATION TOWER.** WA No.277/2020 ## -:18:- **ANNEXURE R7(D) ANNEXURE R7(E)** **ANNEXURE R8(A)** **ANNEXURE R8(B)** ## **TRUE PHOTOGRAPHS OF THE PATHWAY.** **THE TRUE COPY OF THE COMMUNICATION DATED 26.3.2019.** **THE TRUE COPY OF APPEAL MEMORANDUM BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM.** **THE TRUE COPY OF STAY ORDER IN I.A.NO.552 OF 2020 IN APPEAL NO.299 OF 2020 DATED 27.7.2020 BEFORE THE HON'BLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM.**