Installation of telecommunication tower allowed: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY THE 23RD DAY OF OCTOBER 2020 1ST KARTHIKA 1942 WP(C).No.21476 OF 2020(H VAVACHAN A. AGED 55 YEARS VALLATTORE HOUSE PUTHUPALLY P.O. KAYAMKULAM K. BABU RAO AISWARYA PUTHUPALLY P.O. P.S. NIDHEESH VAYALVARATHUMADOM PUTHUPALLY BINDHU SANTHOSH SAROVARAM PUTHUPALLY SAJITH UTHRAM PUTHUPALLY BY ADV. SRI.A.K.ALEX RAGINI RAVI D O. RAVEENDRAN THARANGAM PUTHUPALLY P.O. KAYAMKULAM 690 527 DEVIKULANGARA GRAMA PANCHAYATH PUTHUPALLY P.O. KAYAMKULAM 690 527 W.P.(C) No. 21476 of 2020 KERALA STATE POLLUTION CONTROL BOARD REPRESENTED BY ITS DIRECTOR POLLUTION CONTROL BOARD ALAPPUZHA 688 001 DISTRICT OFFICE POLLUTION CONTROL BOARD ALAPPUZHA 688 001 ENVIRONMENTAL ENGINEER DISTRICT OFFICE POLLUTION CONTROL BOARD ALAPPUZHA 688 001 DEPUTY DIRECTOR OF PANCHAYATH. ALAPPUZHA 688 001 DISTRICT COLLECTOR ALAPPUZHA 688 001 INDUS TOWERS 8TH FLOOR VANGARATH TOWERS PALARIVATTOM KOCHI 682 025 GP. PAUL ABRAHAM VAKKANAL THIS WRIT PETITIONHAVING BEEN FINALLY HEARD ON 19 10 2020 THE COURT ON 23 10 2020 DELIVERED THE W.P.(C) No. 21476 of 2020 P.B.SURESH KUMAR J W.P.(C) No.214720 Dated this the 23rd day of October 2020 Petitioners are persons residing within the limits of Devikulangara Grama Panchayat. The first respondent is a person residing in the neighbourhood of the residences of the petitioners. The eighth respondent has obtained a building permit for erection of a telecommunication tower in the property of the first respondent. According to the petitioners if the telecommunication tower proposed by the eighth respondent is permitted to be erected the same would cause health hazards to the people residing near the tower including the petitioners. Ext.P1 is a complaint sent by the people in the W.P.(C) No. 21476 of 2020 locality to the second respondent requesting him to take appropriate action in this regard. It appears that a copy of Ext.P1 complaint was forwarded to the sixth respondent and in response to a query by the sixth respondent the second respondent has informed the sixth respondent that building permit was issued to the eighth respondent in accordance with the Kerala Panchayat Building Rules. Ext.P3 is the communication issued in this regard by the second respondent to the sixth respondent. It is stated by the petitioners that the people in the locality thereupon preferred Ext.P4 representation to the seventh respondent the District Collector and the seventh respondent in turn referred the said representation to the sixth respondent. It is stated by the petitioners that on the said reference the sixth respondent has issued Ext.P5 communication to one among the signatories to Ext.P4 representation informing that since building permit has been issued in terms of the rules in force they are free to W.P.(C) No. 21476 of 2020 approach the District Telecom Committee if they are aggrieved by the decision of the panchayat. Aggrieved by the said stand taken by the sixth respondent the petitioners preferred Ext.P6 representation to the fifth respondent the Environmental Engineer attached to the concerned District Office of the Pollution Control Board and the fifth respondent forwarded the representation to the District Telecom Committee with a request to insist the eighth respondent to obtain permission of the Pollution Control Board for establishing and operating the telecommunication tower as also the generator to be installed for operating the telecommunication tower. The writ petition is filed thereafter challenging Ext.P3 communication issued by the second respondent. The petitioners also seek directions to the Pollution Control Board to consider and pass orders on Ext.P6 representation directions to the second respondent to consider Ext.P1 representation and also directions to the seventh respondent to consider Ext.P4 representation. The W.P.(C) No. 21476 of 2020 petitioners also seek a declaration that the second respondent has no authority to grant building permit for erection of a mobile tower in a densely populated area Heard the learned counsel for the petitioners as also the learned Standing Counsel for the Kerala State Pollution Control Board. Placing reliance on Ext.P8 communication issued by the fifth respondent the learned counsel for the petitioners vehemently contended that permission of the Pollution Control Board is required for erecting a telecommunication tower and the building permit obtained by the eighth respondent for erection of telecommunication tower without the permission of the Pollution Control Board is therefore unsustainable. It was also contended strenuously by the learned counsel that the telecommunication tower if permitted to be operated would cause health hazards to the people around the same and this Court shall therefore W.P.(C) No. 21476 of 2020 interdict the erection of the same The learned Standing Counsel for the Pollution Control Board submitted that permission of the Pollution Control Board is not required for erection of a telecommunication tower and that permission is required only for erecting the generator for operation of the telecommunication tower if the same causes sound pollution On being asked as to the reason for issuing Ext.P8 communication by the Pollution Control Board after getting instructions the learned Standing Counsel submitted that Ext.P8 is a communication issued by mistake. A telecommunication tower is treated as a building in terms of the provisions of the Kerala Panchayat building Rules 2019. A building permit is required to be obtained therefore for the purpose of erecting a telecommunication tower. The petitioners do not have a case that the second respondent has not complied with the W.P.(C) No. 21476 of 2020 provisions of the Kerala Panchayat Building Rules 2019 in the matter of granting the building permit for the telecommunication tower referred to in the writ petition. The provisions of the Kerala Panchayat Building Rules 2019 do not insist permission of the Pollution Control Board for obtaining building permit for erection of telecommunication tower. As such the Panchayat cannot be blamed for having issued building permit to the eighth respondent. The learned counsel for the petitioners submitted that it is in the light of Section 21 of the Air Prevention and Control of Pollution) Act that the fifth respondent has issued Ext.P8 communication. Of course Section 21 of the AirAct provides that no person shall without the previous consent of the State Board establish or operate any industrial plant in an air pollution control area. The telecommunication tower is not an industrial plant and as such I do not think that Section 21 of W.P.(C) No. 21476 of 2020 the said Act has any application Coming to the contention advanced by the learned counsel for the petitioners that operation of the telecommunication would cause health hazards it is seen that identical contention was repelled by this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat 2006No. 21476 of 2020 Tower would cause any health hazards. Licence granted has been cancelled by the Panchayat based on an apprehension that the radiation may cause health hazards to the people of the locality. Further Ext.P5 also says that installation of generator would cause sound pollution. Petitioner has not installed any generator as on today and if the installation of generator would cause any sound pollution evidently Pollution Control Board can give appropriate direction and the petitioner will have to obtain necessary consent from the Pollution Control Board for installation of generators so that it would not cause any sound pollution. So also if the installation of Tower and the emission of electromagnetic waves causes any air pollution affecting human health the Pollution Control Board can take appropriate measures under AirAct 1991. ” In the aforesaid facts and circumstances and in the light of the decision of this Court in Reliance Infocom Ltd the writ petition is only to be dismissed and I do so P.B.SURESH KUMAR JUDGE W.P.(C) No. 21476 of 2020 PETITIONER S S EXHIBITS TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE NEARBY RESIDENTS OF 1ST RESPONDENTS PROPERTY WHICH INCLUDES SOME OF THE PETITIONERS TO THE ACKNOWLEDGEMENT RECEIVED FROM THE 2ND RESPONDENT WHICH SHOWS THAT EXT P1 IS RECEIVED ON 1.6.2020 TRUE COPY OF THE LETTER DATED 15.6.2020 SENT BY THE 2ND RESPONDENT TO 6TH RESPONDENT TRUE COPY OF THE REPRESENTTION DAED 8.6.2020 SENT TO THE 7TH RESPONDENT DISTRICT COLLECTOR BY THE NEARBY RESIDENTS OF 1ST RESPONDENTS PROPERTY TRUE COPY OF THE LETTER SENT BY THE PANCHAYATH ASSISTANT DIRECTOR ALAPPUZHA TO ONE RAJEEVKUMAR WHO IS THE FIRS SIGNATORY IN EXT. P4 TRUE COPY OF THE REPRESENTATION DATED 29.6.2020 SENT TO THE 4TH RESPONDENT BY THE NEARBY RESIDENTS OF RESPONDENTS PROPERTY IN WARD NO. XIV ND XV OF DEVIKULANGARA PANCHAYATH INCLUDING W.P.(C) No. 21476 of 2020 TRUE COPY OF THE POSTAL RECEIPT WHICH SHOWS THAT EXT P6 IS SENT TO DIRECTOR POLLUTION CONTROL BORD ALAPPUZHA TRUE COPY OF THE LETTER DATED 15.7.2020 SENT BY THE ENVIRONMENTAL ENGINEER POLLUTION CONTROL BOARD DISTRICT OFFICE ALAPPUZHA TO DISTRICT TELECOM COMMITTEE 

Summary: In the case of Vavachan A. versus Ragini Ravi, Kerala State Pollution Control Borad and others [WP (C). No. 21476 OF 2020 (H)], the Kerala High Court headed by Justice P. B. Suresh Kumar dismissed the writ petition. The petition was filed to stop the installation of the telecommunication tower which the petitioners contended could cause health hazard to the people residing in the same area where the said tower was supposed to be installed. The matter was concerned with the fact that if the telecommunication tower proposed by the respondent was permitted to be erected, it would cause air pollution by emission of electromagnetic waves which would harm the lives of people residing in that area including that of the petitioner. The counsel of the petitioner contented that telecommunication tower was not an industrial plant as stated by one of the respondent under Section 21 of the Air (Prevention and Control of Pollution) Act. According to Section 21 “of the said act no person shall, without the previous consent of the State Board, establish or operate any industrial plant in an air pollution control area”, so section 21 of he said act was not applicable here. The present court relied on the judgement passed by the same court in the case of Reliance Infocom Ltd. V. Chemanchery Grama Panchayat, 2006 (4) Klt 695 said that the Panchayat revoked the building permit granted for erection of telecommunication tower on the ground that it was likely to cause health hazard. The court in this case further clarified that the permission of the Pollution Control Board was required for the installation of the generator for operation of the telecommunication tower only if the same caused any kind of sound pollution. The court quoted the judgement of Paragraph 8 of the above case stating that: