IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 7TH AUGUST 2008 / 16TH SRAVANA 1930 WP(C).No. 13512 of 2008(H) -------------------------- PETITIONER: -------------- MS/.ESSAR TELECOM INFRASTRUCTURE(P)LTD. 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE SHENOY ROAD, COCHIN-682 017, REPRESENTED BY ASSISTANT MANAGER (SITE ACQUISITIONS & ADMINISTRATION) MR.RAHUL DAS. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENTS: ----------------- 1. THE SECRETARY PALLIKKAL GRAMA PANCHAYAT, P.O.PALLIKKAL KONDOTTY BLOCK, MALAPPURAM DISTRICT PIN.673 653. 2. THE PALLIKKAL GRAMA PANCHAYAT COMMITTEE PALLIKKAL P.O., REPRESENTED BY ITS PRESIDENT 3. THE CIRCLE INSPECTOR OF POLICE THIRURANGADI P.O., MALAPPURAM DISTRICT. 4. THE SUB INSPECTOR OF POLICE THENJIPALAM P.O., MALAPPURAM DISTRICT. ADDL.R5. ABDUL AZEEZ K.T., S/O.MOHAMMEDKUTTY HAJI, AGED 39 YEARS, KADUNGUM THOTTATHIL HOUSE, PALLIKKAL, MALAPPURAM DT. (ADDL.R5 IMPLEADED AS PER ORDER IN IA NO.6617/08 DT.06.06.2008) BY ADV. SRI.PULIKKOOL ABUBACKER FOR ADDL.R5 SRI.MUHAMMED SHAFI, SC FOR R1 AND R2 GOVT.PLEADER SRI.K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.13512/08 APPENDIX PETITIONER'S EXHIBITS EXT.P1: PHOTOCOPY OF PERMIT AND RECEIPT ISSUED TO THE PETITIONER BY THE 1ST RESPONDENT. EXT.P2: PHOTOCOPY OF THE NOTICE NO.A2-74/07-08 DTD. 30.6.07 ISSUED BY THE 1ST RESPONDENT. EXT.P3: PHOTOCOPY OF THIS HON'BLE COURT JUDGMNET IN WPC NO.3973/08 DTD. 6.2.2008. EXT.P4: PHOTOCOPY OF THE COMMUNICATION DTD. 25.3.2008 ISSUED BY 1ST RESPONDENT TO THE PETITIONER. EXT.P5: PHOTOCOPY OF THE COMPUTER PRINT OF THE TELECOM TOWER SUBMITTED BY THE PETITIONER. //TRUE COPY// P.A. TO JUDGE ANTONY DOMINIC, J. =============== W.P.(C) NO. 13512 OF 2008 H ==================== Dated this the 7th day of August, 2008 J U D G M E N T Petitioner is a company engaged in providing mobile cellular telephone service in this state . For its business purpose, Company has installed mobile tele communication towers at various parts of the State. In so far as this writ petition is concerned, on an application made to the 1st respondent Panchayat, Ext.P1 building permit was granted to the petitioner. On the strength of Ext.P1, though the petitioner commenced work for the construction of the tower, it would appear that complaints were received by the Panchayat, on the basis of which Ext.P2 stop memo was issued. The stop memo was challenged by the petitioner before this court in WP(C) No.3973/08. By Ext.P3 judgment, this court disposed of the writ petition directing that the Panchayat shall hear the petitioner and the representative of those who submitted the complaint, which led to Ext.P2 stop memo. It was further directed that the Panchayat shall take note of the Division Bench judgment of this court in Reliance Infocom Ltd v. Chemancherry Grama Panchayat (2006(4) KLT 695). 2. In pursuance to Ext.P3 judgment, it would appear that the WPC 13512/08 :2 : petitioner and the complainant's representative were heard by the Panchayat and the Panchayat issued Ext.P4, declining the permit to the petitioner on the ground that the Panchayat was satisfied that the installation of the mobile tower might have harmful physical and psychological effect on the residents of the area where the tower was being installed. It is challenging Ext.P4, this writ petition has been filed. 3. At the stage of admission, this court passed order dated 29/4/2008 permitting the petitioner to carry out the construction in terms of the building permit that was already issued to them. However, it was clarified that the petitioner shall not energise the tower without obtaining orders from this court. It is now pointed out by the counsel for the petitioner that on the strength of the interim order, they have constructed tower and what remains is only its energisation. 4. Counsel for the petitioner contends that the construction of the tower was permitted as per Ext.P1 building permit. It is also stated that the thrust of the complaints raised by the residents of the locality was the apprehension entertained by them of the probable ill effects arising out of the installation and energisation of the tower. It is contended that it was without any material whatsoever, the complaint was made and the WPC 13512/08 :3 : Panchayat has taken a decision not to permit the installation of the tower acting upon such a complaint. 5. On the other hand, counsel for the additional 5th respondent submits that he lives within 25 metres of the tower. It is stated that it was on account of their apprehension of the ill effects on account of the installation of the tower that they filed complaint before the Panchayat. It is also stated that in Ext.P3 judgment, this court had permitted the Panchayat to take a decision in this matter and that it was consistent with the aforesaid direction that the Panchayat has taken Ext.P4 decision. It is contended that this decision of the Panchayat does not warrant interference of this court. 6. From the submissions made before me, it would appear that the objection raised by the additional 5th respondent and others in the nieghbourhood was only on account of their apprehension that the installation of the tower might adversely affect the residents of the area who are likely to be exposed to the radiation generated from the tower. It would appear that this argument impressed the Panchayat and it was on that basis that the Panchayat issued Ext.P4. However, a reading of Ext.P4 shows that apart from the vague assertion made by the neighbouring WPC 13512/08 :4 : residents, the Panchayat had absolutely no material to come to the conclusion which is reflected in Ext.P4 order. As already noticed, this court in the Reliance Infocom case referred to above, has already adverted to these contentions and held that, on the materials, there was nothing to conclude that the tower can cause radiation or other ill effects as contended. In my view, in this case also there is absolutely no material to justify the apprehension entertained by the residents of the area and the Panchayat has readily accepted the unsubstantiated plea. Since Ext.P4 is based on no materials, I must hold that Ext.P4 decision has been taken on extraneous considerations. For that reason Ext.P4 will stand quashed and it is directed that the petitioner will be permitted to energise the tower constructed by them on the strength of Ext.P1 building permit. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp