IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 14TH JUNE 2010 / 24TH JYAISTHA 1932 WP(C).No. 14563 of 2010(U) ---------------------------------------- PETITIONER(S): ------------------------ 1. SURESH. T, S/O.THANKAPPAN, SURESH BHAVAN, PIDAVOOR.P.O, PATHANAPURAM, KOLLAM DISTRICT. 2. KAMALANANDAN. K, S/O.KARUNAKARAN, GEETHA SADANAM, PIDAVOOR.P.O, PATHANAPURAM, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL RESPONDENT(S): ------------------------- 1. THE THALAVOOR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, THALAVOOR.P.O, KOLLAM DISTRICT-691 514. 2. THE THALAVOOR GRAMA PANCHAYATH COMMITTEE REPRESENTED BY ITS PRESIDENT, THALAVOOR.P.O, KOLLAM DISTRICT-691 514. 3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY. 4. M/S.G.T.L. INFRASTRUCTURE LIMITED (GIL), PRABHU TOWER, DOOR NO.409643, IST FLOOR, OPPOSITE CHENNAI SILKS, M.G.ROAD, ERNAKULAM, KOCHI-682 035, REPRESENTED BY POWER OF ATTORNEY HOLDER BABU B.NAIR, DEPUTY CIRCLE HEAD (KERALA CIRCLE). R3 BY GOVT. PLEADER SMT.N. SUDHA DEVI. R4 BY ADV. SRI.SATHISH NINAN, SRI.SANTHOSH MATHEW, SRI.ARUN THOMAS. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14563/2010-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE ORDER NO.PW-149/09-10 DATED 01/12/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE REPORT SUBMITTED BY THE SCIENTIST UPON THE DIRECTIONS OF THE ENVIORNMENTAL DEPARTMENT AND TELECOMMUNICATION DEPARTMENT ABOUT THE DISADVANTAGES OF THE MOBILE TOWER. EXT.P3: COPY OF THE MASS PETITION DATED 04/12/2009 FILED BY PEOPLE IN THE LOCALITY BEFORE THE DISTRICT COLLECTOR, KOLLAM. EXT.P4: COPY OF THE COMMUNICATION NO.PGRC-69956/2009 DATED 24/12/2009 ISSUED BY THE DISTRICT COLLECTOR, KOLLAM. EXT.P5: COPY OF THE ORDER NO.A2-47/2009 DATED 15/12/2009 ISSUED BY THE 1ST RESPONDENT. EXT.P6: COPY OF THE ORDER DATED 06/03/2010 IN APPEAL NO.27/2010 ISSUED BY THE 3RD RESPONDENT. EXT.P7: COPY OF THE CIRCULAR NO.2750/2/RD2/09/LSGD DATED 10/08/2009. EXT.P8: COPY OF THE ENGLISH TRANSLATION OF THE RESEARCH REPORT OF R.SANTHINI AND OTHERS. EXT.P9: COPY OF THE PAPER PRESENTED AT THE WORKSHOP ON POSSIBLE BIOLOGICAL AND HEALTH EFFECT OF R.F. ELECTRO MAGNETIC FIELDS MOBILE PHONE AND HEALTH SYMPOSIUM IN UNIVERSITY OF VIANNA, AUSTRALIA. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE INTERIM ORDER GRANTED BY THIS COURT IN WP(C) NO. 36037/2009. EXT.R4(b): COPY OF THE FINAL JUDGMENT OF THIS COURT IN WP(C) NO. 36037/2009. //TRUE COPY// P.S. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14563/2010-U ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 14th day of June, 2010 J U D G M E N T The petitioners herein are aggrieved by the construction of a mobile tower in a place called Pidavoor in the property comprised in Survey No.773/A-2. They are the Convenors of an Action Council formed to agitate against the installation of the mobile tower in that area. The first respondent is the Panchayat and the second respondent is the local Grama Panchayat Committee. 2. The first respondent-Panchayat issued a building permit to the fourth respondent for construction of a Tele Communication Tower as per Ext.P1. It appears that a mass petition, Ext.P3, was submitted to the District Collector by the local people against the erection of the tower. The same was forwarded by the District Collector to the first respondent as per Ext.P4, based on which the first respondent issued a stop memo as per Ext.P5. The fourth respondent challenged the same before the Tribunal for the Local Self Government Institutions wherein Ext.P5 stop memo was set aside as per Ext.P6 order. Apart from that the fourth respondent had obtained an interim order for police protection from this Court in W.P.(C).No.36037/2009. W.P.(C). No.14563/2010 -:2:- 3. The learned counsel for the petitioners submitted that the Tribunal has exceeded its limits in passing Ext.P6 order, that too without making the petitioners parties before the Tribunal. It is submitted that if at all the Tribunal found any impropriety in the proceedings of the Panchayat, the matter should have been remitted to the Panchayat for their consideration so that the petitioners would have got a fresh opportunity in the matter. 4. The fourth respondent has filed a counter affidavit. It is averred therein that when the people of the locality obstructed the erection of the tower, the fourth respondent filed W.P.(C).No.36037/2009 seeking police protection and Ext.R4(a) interim order was granted by this Court. The petitioners herein were respondents 2 and 5 and the first respondent herein is the sixth respondent in the said writ petition. The petitioners or the Panchayat did not appear before this Court after the receipt of notice in W.P.(C).No.36037/2009 and thereafter by Ext.R4(b), the writ petition itself was disposed of in their favour 5. The first question is whether the petitioners ought to have been heard by the Tribunal before Ext.P6 order is passed. It is vehemently contended by the learned counsel Shri B. Mohan Lal appearing for the petitioners that the Panchayat issued the stop memo based on the mass W.P.(C). No.14563/2010 -:3:- petition and, therefore, the fourth respondent ought to have impleaded the petitioners before the Tribunal. 6. True that the petitioners were not made the parties before the Tribunal. Herein, it is relevant to consider the objections raised by the petitioners in their petition filed before the District Collector. What is pointed by the petitioners, going by Ext.P3 is that the radiation from the Tower will cause difficulties to them. It is only an apprehension raised by the petitioners and other people. Reliance is placed by the petitioners on Ext.P7 Circular issued by the Government also. The Statutory Rules governing the grant of permit is Rule 141 of the Kerala Municipality Building Rules, 1999. In the light of the Statutory Rules, the Circular like Ext.P7 cannot restrict the power of the Secretary to grant such a permit. 7. The question is whether non-impleadment of the petitioners has resulted in any prejudice to them. Even going by the averments in the writ petition, the petitioners have not projected the materials to allege that there will be danger to human life or health while erecting the tower. Therefore, even if the petitioners were impleaded before the Tribunal, they would not have been able to produce any data to support their plea. Therefore, W.P.(C). No.14563/2010 -:4:- absence of any hearing of them will not vitiate the order passed by the Tribunal. 8. Apart from that, now the matter is governed between the parties, by Ext.R4(b) Judgment rendered by the Division Bench. Paragraph (3) of the above Judgment made it clear that, “if any of the respondents or for that matter any person is aggrieved by the permit granted by the local authority for the construction of the base station or by the licence issued to the service provider/infra- structure service provider, it is for that person to pursue the matter before the TDSAT. If there is still any other dispute, it is for the party concerned to approach the civil court.” 9. Therefore, the remedy of the petitioners is to approach the said forum or the Civil Court to challenge the erection of the tower itself. Obviously, the fourth respondent has proceeded with the construction of the tower in the light of Ext.R4(b) Judgment. Infact, in the operative portion of Ext.R4(b) Judgment it is made clear that, “in the event of any person/party approaching the Tribunal or TDSAT, referred to above or the civil court, such forums shall consider the issues taken up before them ignoring the factual position that pursuant to the interim order granted by this Court for police protection, the construction of the mobile tower has been either W.P.(C). No.14563/2010 -:5:- constructed or started construction. We make it clear that the construction thus made will be subject to the orders, if any, passed by the forums as referred to above. Still further it is made clear that the petitioners cannot claim any equity on the only ground of construction. We make it further clear that if any such forum is approached by any of the parties, that forum is free to consider the matter on all available grounds and that the construction had been made as permitted by the High Court shall not be taken as an objection for dealing with those aspects.” 10. In the light of the above, remedies of the petitioners are as directed in Ext.R4(b) Judgment. In that view of the matter, merely because the Tribunal has lifted the stop memo, it cannot be said that the petitioners rights, if any, are affected in the matter. Therefore, I do not find any reason to interfere with the order passed by the Tribunal. The writ petition is dismissed. 11. It is made clear that the dismissal of the writ petition will not bar the remedy of the writ petitioners to approach the Tribunal or TDSAT or the civil court or any other forum to challenge the permit granted by the Panchayat and the consequent erection of the tower. No costs. (T.R. Ramachandran Nair, Judge.) ms