IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 46 of 2011()
1. K.H. JOSEPH @ SUNNY,
... Petitioner
2. K.E. PHILIPPOSE, SECRETARY,
Vs
1. PANACHIKKAD GRAMA PANCHAYATH,
... Respondent
2. SHAJI MATHEW, PARTNER,
3. INDUS TOWERS LTD., CIRCLE OFFICE AT
4. A.M. RAVEENDRAN, SECRETARY,
5. STATE OF KERALA,
6. UNION OF INDIA,
For Petitioner :SRI.SIVAN MADATHIL
For Respondent :SRI.T.P.M.IBRAHIM KHAN,ASST.S.G OF INDI
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice P.R.RAMACHANDRA MENON
Dated :12/01/2011
O R D E R
J.Chelameswar, C.J. & P.R.Ramachandra Menon, J.
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W.A.No. 46 OF 2011
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Dated this the 12th day of January, 2011
JUDGMENT
Ramachandra Menon, J.
Petitioners in the writ petition are the appellants in
this writ appeal. The writ petitioners approached this Court
with the following prayers:
“a) Call for the records leading to issuance of
ExhibitsP1 to P9 and quash Exhibit.P5 order of the Tribunal for
Local Self Government Institutions by issuing a writ of
certiorari;
b) Issue a writ of mandamus or any other writ,
order or direction commanding the respondents 5 &6 to take
immediate steps to ascertain the exact health hazards of the
public by constituting an expert body with competent
personalities to ascertain the exact extent of health hazards to
the public due to the mobile radiation;
c) Direct the respondents 2,3 & 5 not to proceed
with the construction of mobile transmission tower under the
strength of Exhibit.P5 order, until a report submitted by the
respondents 5 & 6 to the effect that mobile radiation will not
cause harm and adverse health impacts to the general public
as well as to the environment;”
2. The sequence of events as narrated in the writ
petition as well as in the memorandum of appeal is as follows.
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In connection with the setting up of a Mobile Base Transceiver
Station(Mobile Tower), the third respondent sought for a
building permit which was issued by the local authority(1st
respondent) as borne by Ext.P1. Based on Ext.P1, further
steps were being taken for the construction of the Tower. At
that point of time the petitioners filed a complaint/objection,
pursuant to which Ext.P3 ‘stop memo’ was issued by the
Panchayat stalling the construction. Aggrieved by this, the
concerned respondents(2nd and 3rd respondents in the writ
petition), approached the Tribunal for Local Self Government
Institutions, wherein the Tribunal passed Ext.P4 interim order,
staying the operation of the ‘stop memo’ issued by the
Panchayat. The petitioners got impleaded themselves in the
proceedings before the Tribunal. Despite service of notice,
respondents 1 and 4 herein, who were respondents 1 and 2 in
the appeal, did not turn up before the Tribunal. After
considering the available materials on record, the Tribunal
allowed the appeal and the ‘stop memo’ was set aside, which
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formed the subject matter of challenge in the writ petition filed
by the appellants.
3. The learned Single Judge considered the matter
both on legal as well as factual aspects and arrived at a finding
that the course pursued by the Panchayat by issuing ‘stop
memo’ after the granting of necessary permit is erroneous and
that the Tribunal was justified in allowing the appeal filed by the
aggrieved parties. The contentions raised by the petitioners
were repelled by the learned Single Judge and the writ petition
was dismissed ‘in limine’, which is under challenge in this
appeal.
4. The learned counsel for the appellant submits
that the vital aspects projected in the writ petition have not
been properly considered by the learned Single Judge.
Referring to ‘Rule 11’ of the Kerala Municipality Building Rules,
1999, on the basis of which Ext.P1 permit is stated as issued,
the learned counsel submits that the matter ought to have been
considered with reference to ‘Rule 130’ and other rules under
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Chapter XIX of the aforesaid rules which specifically deal with
the construction of ‘mobile towers’.
5. In fact, the said aspect was also considered by
the learned Single Judge and a finding was rendered in this
regard in paragraph 5 of the judgment, observing that the
failure to refer to Rule 130 of the rules while issuing the permit
will not vitiate the permit.
6. With regard to the rights and liberties of the
parties, particularly with reference to the contention as to the
alleged health hazard, reference has been made to the decision
rendered by a Division Bench of this Court reported in Reliance
Infocom v. Chemancherry Grama Panchayat (2006 (4)KLT
695). The Division Bench has arrived at a finding that, as on
date, no scientific data or reliable material is available to show
that installation of a mobile tower will cause any health hazard.
This was approved by a Full Bench of this Court in Messers
Essar Telecom Infrastructure (P) Limited v. C.I.of Police,
Angamali Police Station [2010 (2) KHC 445 (FB)]. Both
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these verdicts were considered by the learned Single Judge
while declining interference in the Writ Petition.
7. Another important aspect to be noted is that the
challenge raised by the petitioners in the writ petition is to set
aside ‘Ext.P5’ order passed by the Tribunal; while no specific
prayer is there to set aside ‘Ext.P1’ permit in the writ petition.
The main relief sought for stands confined to quashing of
Ext.P5 alone, which is the order passed by the Tribunal,
intercepting Ext.P3 stop memo issued by the Panchayat, for
the reasons stated therein. Ext.P1 was never subjected to
challenge at the instance of anybody before the Tribunal or such
other appropriate Forum.
8. In the above facts and circumstances, we find
that the verdict passed by the learned Single Judge is beyond
challenge. The appeal is devoid of merit and none of the
grounds raised in support of the same does serve the purpose.
No interference is warranted and the writ appeal is dismissed
accordingly.
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However, we make it clear that we have not
expressed anything with regard to the merits of the case,
pertaining to the legality or sustainability of Ext.P1 permit. It is
open for the parties concerned, to challenge the same in
accordance with law, before appropriate forum, if at all
aggrieved in any manner.
J.Chelameswar,
Chief Justice.
P.R.Ramachandra Menon,
Judge.
ttb