IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 WP(C).No. 5951 of 2008(H) ------------------------- PETITIONER: ------------ M/S.TVS INTERCONNECT SYSTEMS LTD 'MEENA MADHAVAM'OPP.BHAVANS VIDYA MANDIR DESHABHIMANI ROAD,,ELAMAKKARA PO ERNAKULAM-26 REPRESENTED BY ITS PROJECT MANAGER SRI. SREEJITH G. PILLAI. BY ADV. SRI.SANTHOSH MATHEW RESPONDENTS: ------------- 1. THE CHALIYAR GRAMA PANCHAYAT , PO ERANJIMANGAD PIN 679 343 REPRESENTED BY ITS SECRETARY. 2. THE CHALIYAR GRAMA PANCHAYAT COMMITTEE CHALIYAR GRAMA PANCHAYAT PO, ERANJIMANGAD PIN 679 343 REPRESENTED BY ITS PRESIDENT. 3. THE SUB INSPECTOR OF POLICE NILAMBUR, MALAPPURAM DISTRICT. 4. THE SECRETARY,POURA SAMITHY CHALIYAR GRAMA PANCHAYAT PO, ERANJIMANGAD PIN 679 343 MALAPPURAM DISTRICT. BY ADV. SRI.D.KRISHNA PRASAD FOR R1 & R2 SRI.D.NARENDRANATH SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92) FOR R4 GOVT. PLEADER SRI.K.J.MOHAMMED ANZAR FOR R3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No.5951 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 28th day of February, 2008 JUDGMENT The grievance voiced in this writ petition filed by M/s TVS Interconnect Systems Ltd, a company which provides infrastructure for mobile telephone services, is that while they were constructing a telecommunication tower on the strength of Ext.P1 building permit, they have been issued with Ext.P2 stop memo. Because of Ext.P2 stop memo, the construction had to be stopped half way. The petitioner therefore prays that Ext.P2 be quashed. 2. Separate counter affidavits have been filed by the Panchayat as well as by the 4th respondent, who is the Secretary of the Poura Samithy on the basis of whose complaint only, Panchayat issued Ext.P2. Going by the counter affidavit filed by the Panchayat, it is in the wake of the public uphieval that the Panchayat became constrained to issued Ext.P2. The party respondent has filed counter affidavit and in paragraph 8, the following prominent contentions are raised: “ It is respectfully submitted that the site of WPC.No.5951/08 2 the proposed Tower is in the middle of the Akampadam town, which is a thickly populated residential area. There are residential buildings, educational institutions, places of worship and commercial establishments in the close proximity of the proposed site. The permission is granted without having any concern of the anticipated inconveniences or injuries of the nearby residents and the public in general. The residents of the area are in great anguish on account of the proposed installation of the telecommunication tower. The residents including this respondent reasonably apprehends that the continuous contiguity with the telecommunication tower will be causing health hazards to them besides creating inconveniences and hardships. The anguish and anxiety were duly brought to the notice of the Panchayath authorities. In that contingency, the Exhibit P2 notice was issued and the first respondent is fully justified in doing so. There is no illegality or irregularity in Exhibit P2 notice. The first respondent is having ample authority to enquire into the requests made by the local residents.” 3. I heard Sri.P.Santhosh Mathew, learned counsel for the WPC.No.5951/08 3 petitioner, Sri.D.Krishna Prasad, counsel for the Panchayat and Sri.P.Venugopal, counsel for the 4th respondent. Counsel would address submissions on the basis of the pleadings raised by the respective parties. Sri.Santhosh Mathew would submit that the Panchayat has issued Ext.P2 without notice to the petitioner and without taking into account the principles laid down by this court in Reliance Infocomm v. Chemancherry Grama Panchayat ( 2006(4) KLT 695). The apprehension of the 4th respondent that health hazards will be caused to the public are not at all well founded. Sri.P.Venugopal would submit that it is not correct to say that the Division Bench has held that no health hazards will result on account of the radiation emanating from the operation of the mobile telephone tower. What has been held by the Division Bench is only that it has not been established beyond doubt that there will be health hazards. Sri.P.Venugopal would also submit that apart from health hazards, ongoing constructions violate the building Rules and even the permit which is granted to the petitioner. 3. Sri.D.Krishna Prasad would submit that as a democratic WPC.No.5951/08 4 local self Government, the Panchayat cannot be totally unmindful of the apprehensions of its citizenry. 4. The only reason stated in Ext.P2 is that certain persons obstructed the construction of the tower which was being constructed by the petitioner company on the strength of the permit issued by the Panchayat styling themselves to be the members of Poura Samithy of the locality and these obstructions led to certain law and order situations. It is not clear from Ext.P2 as to what was the ground on which the members of the Poura Samithy obstructed the construction. 5. Reading of the counter affidavit filed by the 4th respondent will show that the main ground of the Poura Samithy's objection is the possibility of health hazards to the nearby public on account of the radiation which will be emanated, if the tower is operated. To a considerable extent this issue is covered by the judgment of a Division Bench of this court in Reliance Infocomm's case. The submissions of Sri.P.Venugopal that even ongoing constructions are in violation of the building Rules does not appear to have proper foundation in the counter affidavit. But since learned counsel was emphatic in his WPC.No.5951/08 5 submission at the Bar that the ongoing constructions are violating the building Rules and even the permit, I am of the view that these are all matters which should receive the attention of the Panchayat. Ext.P2 order is obviously issued without hearing the petitioner. I quash Ext.P2 and direct the Panchayat to hear the petitioner and a representative of the 4th respondent Poura Samithy and take a fresh decision. It is open to both sides to place all relevant materials including judicial precedents in support of their rival positions. 4th respondent can produce materials and even request for local inspection for the purpose of convincing the Panchayat that the ongoing constructions are in violation of the building Rules. The Panchayat will have due regard to the judgment of the Division Bench of this court in Reliance Infocomm v. Chemancherry Grama Panchayat ( 2006(4) KLT 695) and other binding judicial precedents. The hearing and passage of fresh orders as directed above shall be completed by the Panchayat at the earliest and at any rate within a period of four weeks of receiving a copy of this judgment. Since prima facie it appears to me that the building permit has been issued by the Panchayat on being convinced WPC.No.5951/08 6 that there is compliance with the statutory Rules and since the Panchayat does not contend that the constructions violate the building Rules, I permit the petitioner company to continue with the construction of the tower at their risk and subject to the outcome of the hearing to be conducted pursuant to this judgment. But the petitioner will not energise the tower without getting orders from the Panchayat. The third respondent Sub Inspector will ensure that the Panchayat is permitted to construct the tower without being obstructed by anybody including the members of the 4th respondent Samithy. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.5951/08 7