IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 5951 of 2008(H)
1. M/S.TVS INTERCONNECT SYSTEMS LTD
... Petitioner
Vs
1. THE CHALIYAR GRAMA PANCHAYAT ,
... Respondent
2. THE CHALIYAR GRAMA PANCHAYAT COMMITTEE
3. THE SUB INSPECTOR OF POLICE
4. THE SECRETARY,POURA SAMITHY
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent :SRI.D.KRISHNA PRASAD
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :28/02/2008
O R D E R
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