IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM MONDAY, THE 29TH AUGUST 2011 / 7TH BHADRA 1933 WP(C).No. 23984 of 2010(W) -------------------------------------- PETITIONERS: 1. INDUS TOWERS LTD., CIRCLE OPFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH 47,PALARIVATTOM, KOCHI-24 REP. BY ITS HEAD LEGAL PREMAKRISHNAN NAIR. 2. SHIBU MATHEW, S/O.MATHEW, PALATHARA HOUSE, THURUTHY PO, CHANGANASSERY, KOTTAYAM DISTRICT (PARTNER,PALATHARA CONSTRUCTIONS, CHANGANACHERRY). BY ADV. SRI.V.PHILIP MATHEWS SMT.SEEMA RESPONDENTS: 1. THE S.I. OF POLICE,VADAKARA POLICE STATION(KOZHIKODE RURAL) 673 001. 2. THE C.I. OF POLICE VADAKARA,KOZHIKODE-673 001. 3. THE SUPERINTENDENT OF POLICE, KOZHIKODE-673 001. 4. THIRUVALLUR GRAMA PANCHAYAT, THIRUVALLUR KOZHIKODE DISTRICT, REP. BY ITS SECRETARY-673008. 5. SASI.K, S/O.KUNJIRAMAKURUP, PARAKANDIYIL HOUSE,CHEMMARATHOOR PO, VADAKARA,KOZHIKODE DISTRICT-673010. 6. DAMODARAN, S/O.KUNJIRAMAN, KOROOTH MITHAL, CHEMMARATHOOR PO, VADAKARA, KOZHIKODE DIST-673 010. 7. CHANDRAN, S/O.CHATHU, CHEELIL HOUSE, DO. DO. 8. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 9. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 2 0, ASHOKA ROAD, NEW DELHI-110001. 10. MAHESH KUMAR.E., S/O KUMARAN.K.P. EDAVANA HOUSE, CHEMMARATHOOR P.O., VADAKARA. 11. JAGESH KUMAR.A., S/O KUMARAN, AYANIYULLATHIL HOUSE, VILLIAPPILLY P.O., VADAKARA. (IMPLEADED AS PER ORDER DT. 29.8.2011 IN IA 12507/2010) BY GOVT. PLEADER SMT.CHARISMA FOR R1-3 ADV. SRI.R.PARTHASARATHY FOR R4 SRI.DEEPU THANKAN FOR ADDL.RES.10 & 11 SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R9 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/08/2011 ALONG WITH WPC NO. 35197 OF 2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC 23984/2010 PETITIONER'S EXHIBITS: EXT. P1 COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA EXT. P2 COPY OF THE CERTIFICATE FOR COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA EXT. P3 COPY OF THE REGISTRATION CERTIFICATE NO.177/2008 DT. 10.1.08 ISSUED BY THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS EXT. P4 COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA EXT. P4(A) TYPED COPY OF EXT. P5 EXT. P5 COPY OF THE COMMUNICATION SENT BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI EXT. P6 COPY OF THE BUILDING PERMIT NO.BA-198/09-10 DT. 8.7.09 ISSUED BY THE THIRD RESPONDENT PANCHAYAT TO FIRST PETITIONER EXT. P7 COPY OF THE REPRESENTATION DT. 10.6.10 SUBMITTED BEFORE THE FIRST RESPONDENT EXT. P8 COPY OF RECEIPT DT. 10.6.10 ISSUED FROM THE OFFICE OF THE FIRST RESPONDENT EXT. P9 COPY OF THE REPORT SUBMITTED BY THE TECHNICAL COMMITTEE BEFORE THE GOVERNMENT EXT. P10 COPY OF THE LETTER DT. 11.9.06 ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM TO KUDAPPANAKUNNU GRAMA PANCHAYAT EXT. P11 ORDER DT. 18.9.10 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVT INSTITUTIONS RESPONDENT'S EXHIBITS: EXT.R10(a) TRUE COPY OF PROCEEDINGS OF THE PANCHAYAT DT. 13.9.10 EXT.R10(b) TRUE COPY OF REPRESENTATION DT. 8.12.09 EXT.R10(c) TRUE COPY OF NEWS REPORT APPEARED IN MADHYAMAM DAILY ON 2.11.10 EXT.R10(d) TRUE COPY OF CIRCULAR OF THE GOVT. DT. 10.8.09 /TRUE COPY/ Pius C.Kuriakose & C.K.Abdul Rehim, JJ. ------------------------------------------------------------- W.P.(C)Nos.23984 & 35197 of 2010 ------------------------------------------------------------- Dated this the 29th day of August, 2011 JUDGMENT Abdul Rehim, J. W.P.(C)No.23984/2010 is filed by a Company incorporated, providing infrastructural facilities to telecom service providers along with its contractor, who was entrusted with the work of construction of a Mobile Transmission Tower (Base Transceiver Station) at Kottappally Village, Vadakara Taluk in Kozhikode District. The said writ petition is filed seeking police protection to carry out the work of erection of the mobile tower, which is being done on the strength of Exhibit P6 'Building Permit' granted by the 4th respondent Panchayat, from not being obstructed in any manner by respondents 5 to 7. The additional respondents 10 and 11, who got impleaded in the said writ petition, are the petitioners in W.P.(C)No.35197/2010, which is filed challenging Exhibit P5 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram, through which an appeal filed by the petitioners in W.P.(C)No.23984/2010 challenging revocation of the Building Permit was allowed by the said tribunal. 2. Earlier, this Court had issued an interim order in W.P.(C) No.23984/2010, on 12.8.2010, directing respondents 1 and 2 to afford WPC 23984 & 35197/10 2 adequate police protection to the petitioners therein to proceed with construction of the mobile tower, from not being obstructed by respondents 5 to 7 therein. The interim order initially issued for a period of three weeks was subsequently extended periodically. Meanwhile, the additional respondents 10 and 11 got themselves impleaded and produced Exhibit R10(a), which indicated that the 4th respondent Panchayat had cancelled Exhibit P6 Building Permit, on the basis of a mass petition received from the local public. In Exhibit R10(a), it is specifically mentioned that the Panchayat had taken note of the interim order issued by this Court in W.P.(C)No. 23984/2010. It is also mentioned that the Secretary of the Grama Panchayat had pointed out the illegality in cancelling the permit by the Committee of the Grama Panchayat, without affording any opportunity to the petitioners, in violation of the provisions of the Kerala Panchayat Raj Act. But, discarding such opinion as well as the interim order of this Court, the Committee had taken a decision in its meting held on 30.9.2010 to cancel the Building Permit. In the appeal filed by the petitioners in W.P.(C)No.23984/2010 before the Tribunal for Local Self Government Institutions, after elaborate consideration of the matter, it was held that the decision of the Panchayat Committee to revoke the Building Permit was without jurisdiction and the same was in violation of Section 185B of the Kerala Panchayat Raj Act. It is WPC 23984 & 35197/10 3 further held that such a decision was taken without following the procedure prescribed under the proviso to Rule 16 of the Kerala Municipality Building Rules. Therefore, the decision of the Panchayat Committee was set aside, as per Exhibit P5 in W.P.(C)No.35197/2010. 3. The petitioners in W.P.(C)No.35197/2010 have raised serious contentions challenging sustainability of Exhibit P5 order of the Tribunal. Detailed arguments were addressed by Sri.V.Philip Mathews, learned counsel appearing for the petitioners in W.P.(C)No. 23984/2010 and Miss.Sonia George, learned counsel appearing for the petitioners in W.P.(C)No.35197/2010. Sri.Philip Mathews contended that the objection against erection of the mobile tower is mainly on the ground of apprehended health hazard to the neighbouring residents. He has drawn our attention to the decision of a Division Bench of this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011 (2) KLT 516). It is pointed out that the question as to whether the operation of a mobile tower will cause health hazard was considered in detail by this Court. Referring to the reports of the World Health Organisation and other expert agencies, this Court held that there is nothing to point out violation of international standards of radiation, and that any deviation from the said standards alone is liable to be visited with serious consequences. It is held that use of mobile phone in modern day is a wonder and WPC 23984 & 35197/10 4 contribution of technological advancement which has marked the 20th century in particular, and undoubtedly its use is invaluable not only to the individual as such, but to the nation itself. It is further observed that it cannot be gainsaid that nothing comes without a price-tag and the resolution of every problem of this nature must be in the adoption of a balanced view. However, it was found that nobody should be precluded from their rights to approach civil courts and seeking relief by letting in evidence and producing materials as they are advised, and in such a case the civil courts shall decide the matter untramelled by any of the above said observations. 4. Sonia George, learned counsel appearing for the petitioners in W.P.(C)No.35197/2010, placed reliance on a decision of the Honourable apex court in Kashmir Singh v. Union of India and others ((2008) 7 SCC 259). Our attention was drawn to the observations contained in the said judgment, which is as follows: “For the purpose of giving an effective and meaningful construction to the provisions, the Court is bound to take into consideration the situational change. The Sikh Gurudwaras Act, 1925, is an ongoing statute. The number of litigations in the year 1925 might have been small. Occasional formation of the Commission might be contemplated keeping in view the number of litigations at that point of time. The Act, however, must be interpreted differently as the Court cannot ignore the ground realities. If it is to be held that in terms of WPC 23984 & 35197/10 5 Section 83 of the Act, the State Government has the power to dissolve the Commission only in terms thereof, for all intent and purport, the Commission shall continue till a member dies or resigns. In view of the situational change, a meaning which could be attributed in the year 1925 cannot be given the same meaning today. Sections 40 and 70 of the Act must be read together. Therefore, a holistic reading of the entire Act would be necessary. So read, the opinion of the majority in High Court judgment is acceptable that the tenure of Commission is co-terminus with the SGPC.” 5. We notice that the ruling in Kashmir Singh's case (cited supra) was considered by the Bench of this Court in detail while rendering the decision in Essar Telecom case (cited supra). The question whether the mobile tower is a workplace coming within the purview of Section 233(1)(a) of the Kerala Panchayat Raj Act was also considered in detail. Sonia George also placed for our perusal copy of a report submitted by the Inter-Ministerial Committee on EMF Radiations to Government of India, Ministry of Communications & Information Technology, Department of Telecommunications. Referring to the information of various international experts contained therein, she contended that usage of mobile phone as well as transmissions from the base transceiver stations will cause health hazards. But, she is not in a position to point out that the Ministry of WPC 23984 & 35197/10 6 the Government of India had taken any positive steps based on the above report, nor any Regulation has been brought in to control erection of telecom transmission towers in any manner on the basis of the apprehended health hazard. We are of the considered opinion that these are mainly issues coming within the domain of legislative wisdom and part of executive actions of the Governments and scope for judicial interference is limited to the extent of violation of any statutory provisions or violation of fundamental rights protected under the Constitution. 6. In Essar Telecom case (cited supra), this Court held that erection of telecom transmission tower will not come within the purview of 'workplace' as contemplated under Section 233 of the Kerala Panchayat Raj Act and that no installation permission is required under the said provisions. Therefore, we could not accept the contention of Sonia George that the 'Building Permit' granted by the Grama Panchayat is not sufficient and that permission under Section 233 of the Kerala Panchayat Raj Act is essential. Eventhough various contentions were raised in this regard, we do not find any material grounds, which is legally tenable, to deviate from the view taken by this Court in Essar Telecom case. 7. Petitioners in W.P.(C)No.35197/2010 is challenging Exhibit P6 Building Permit (produced in W.P.(C)No.23984/2010) and Exhibit WPC 23984 & 35197/10 7 P5 order of the Tribunal for Local Self Government Institutions. We do not find any material illegality or irregularity to cancel the permit. We are also not in a position to hold that the cancellation of the permit effected through Exhibit R10(a) (in W.P.(C)No.23984/2010) was legally sustainable. Therefore, we are inclined to concur with the findings of the Tribunal for Local Self Government Institutions. Since we are not persuaded to arrive any any conclusion that the decision in Essar Telecom case (cited supra) requires reconsideration, we are of the opinion that the challenge in W.P.(C)No.35197/2010 has to fail. Consequently, we dismiss the said writ petition. 8. While considering the reliefs sought for in W.P.(C)No. 23984/2010, we are of the view that respondents 5 to 11 have no manner of right to obstruct the construction of the Base Transceiver Station. Hence, we dispose of W.P.(C)No.23984/2010 by confirming the interim order issued by this Court on 12.08.2010 and direct respondents 1 and 2 to afford adequate police protection if there is any obstructions caused to the construction of the mobile tower and its functioning. (Pius C.Kuriakose, Judge) (C.K.Abdul Rehim, Judge) tkv