IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN TUESDAY, THE 2ND FEBRUARY 2010 / 13TH MAGHA 1931 WP(C).No. 19450 of 2009(A) --------------------------------------- PETITIONER: ------------------- K.V.JOSE, S/O.VAREETH, AGED 68 YEARS, PALAKKAL KOLLANNUR HOUSE, PONNANI TALUK, MALAPPURAM. BY ADVS. MR. SAJI ISAAC. K.J, DR.ELIZABETH VARKEY. RESPONDENTS: ------------------------ 1. VILLAGE OFFICER, NANNAMUKKU, MALAPPURAM DISTRICT. 2. REVENUE DIVISIONAL OFFICER, TIRUR, MALAPPURAM DISTRICT. R1 & R2 BY GOVERNMENT PLEADER MR. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.19450/2009-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE POSSESSION CERTIFICATE. EXT.P.2: COPY OF THE BUILDING PERMIT. EXT.P.3: COPY OF THE STOP MEMO. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE MASS REPRESENTATION. EXT.R1.B: COPY OF THE LOCATION SKETCH. EXT.R1.C: COPY OF THE STATEMENT FILED BY ONE KUNJUNNI AND BALAN NAIR. EXT.R1.D: COPY OF THE REPORT SUBMITTED BEFORE THE R.2. //TRUE COPY// P.A. TO JUDGE. Prv. THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.19450 OF 2009 ------------------------------------------- Dated this the 2nd day of February, 2010 JUDGMENT 1.The petitioner provided a piece of land belonging to him for the construction of a mobile tower. The operator got the necessary licences, it is stated. The building permit was also duly issued by the secretary of the Grama Panchayat. The impugned direction of the Village Officer is to stop the erection activities. The reason stated is that the local people are aggrieved by the proposal to erect the mobile tower on ground that they apprehend that it will visit them with adverse health consequences. Ext.R1(a) produced along with the counter affidavit is the mass representation. It contains an omnibus statement as to apprehension of probable health hazards. That complaint is dated 24.6.2009. The Village Officer is stated to have obtained it having been forwarded by the Revenue Divisional Officer. An inspection is immediately conducted and on the next day, the impugned order is issued. WPC.19450/09 2 2. Even assuming that the decision making process is not vitiated by malafides or otherwise guided by extraneous consideration or motives, it needs to be stated that the reason for the issuance of the impugned order, as stated in paragraph 4 of the counter affidavit, is unsupportable for different reasons. The first respondent states that on enquiry conducted by her and on the basis of the statement given by the local residents, it is found that there is every change of developing health problem to the local residents in the event of the establishment of the mobile tower in the proposed site. The stand taken by the first respondent is that there are residences within a distance of 100 metres from the site proposed for the tower. Obviously, mobile towers are necessary where people reside or otherwise use mobile phone. Towers are required to ensure that there is proper transmission. Unless there is scientific material to hold that such activity is imminently injurious to the local inhabitants, it may not be feasible to take a view merely on guess work. Even if this Court is to put the burden of proof in this regard on the WPC.19450/09 3 operator, applying the precautionary principle, this Court has on record a decision of the Division Bench in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat [2006 (4) KLT 695], in which, it has been noticed that there was no scientific material to hold that mobile towers create health hazards for the citizens. As of now, there is no reason to assume to the contrary and sustain the impugned order. 3.In this context, learned Government Pleader points out that the persons at whose instance the impugned order was passed are not parties to this writ petition. The petitioner is aggrieved by the decision taken by the authority and the impugned order is not generated on a litigation of an adversarial nature. Not only that, the power to grant a permit to install a mobile telecommunication tower is with the competent authorities and is regulated by the provisions of the laws applicable to panchayat/municipalities. Therefore, that objection is overruled. WPC.19450/09 4 For the aforesaid reasons, this writ petition is allowed, quashing Ext.P3. No costs. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.04/02.