Kerala High Court
Nandini P.M vs Chairman on 16 March, 2020
Author: Anu Sivaraman
Bench: Anu Sivaraman
W.P.(C).Nos.50/20 & 33759/19
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
WP(C).No.33759 OF 2019(T)
PETITIONERS:
1 NANDINI P.M.
AGED 49 YEARS
W/O.DIVAKARAN.K., 'NANDANAM', RAMAPURAM,
MALAPPURAM DISTRICT.
2 ABHILASH
AGED 38 YEARS
'ARYA NIVAS', RAMAPURAM, MALAPPURAM DISTRICT.
3 RISHI.M.
AGED 25 YEARS
S/O.KUNJAN, 'MELEPAT COLONY', RAMAPURAM,
MALAPPURAM DISTRICT.
4 ANILKUMAR
AGED 37 YEARS
S/O.KUNJAN, 'MELEPAT COLONY', RAMAPURAM,
MALAPPURAM DISTRICT.
5 VARIJAKSHA MENON
AGED 80 YEARS
S/O.NARAYANA MENON, 'VENUGANAM', RAMAPURAM,
MALAPPURAM DISTRICT.
BY ADVS.
SRI.K.MOHANAKANNAN
SMT.A.R.PRAVITHA
SMT.D.S.THUSHARA
SRI.H.PRAVEEN (KOTTARAKARA)
SRI.T.S.NEJIMUDDIN
SMT.T.V.NEEMA
W.P.(C).Nos.50/20 & 33759/19
2
RESPONDENTS:
1 CHAIRMAN,
DISTRICT TELECOM COMMITTEE, DISTRICT COLLECTOR,
CIVIL STATION, MALAPPURAM-676505.
2 DISTRICT COLLECTOR,
CIVIL STATION, MALAPPURAM-676505.
3 EXECUTIVE ENGINEER,
PWD NH DIVISION, MALAPPURAM-676505.
4 PUZHAKATTIRI GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY,
PUZHAKATTERRI.P.O., MALAPPURAM DISTRICT-679321.
5 P.M.RAMANNUNNI,
S/O.RAMANKUTTY PANICKER, RASMA, RAMAPURAM.P.O.,
MALAPPURAM DISTRICT-679121.
6 RELIANCE JEO INFOCOM LIMITED.,
(KER) UG FLOOR, GOPALADAS BHAVAN 28, BARAKHAMBA
ROAD, NEW DELHI-110001, REP. BY ITS AREA
MANAGER, KIZHAKKETHALA, MALAPPURAM.
R4 BY SRI.MANOJ RAMASWAMY, SC, PUZHAKKATTIRI
GRAMA PANCHAYAT
R5 BY ADV. SRI.U.K.DEVIDAS
R6 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR)
R6 BY ADV. SHRI.AKHIL SURESH
R6 BY ADV. SHRI.ROSHEN KURIAN SEBI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.03.2020, ALONG WITH WP(C).50/2020(E), THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.50/20 & 33759/19
3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
MONDAY, THE 16TH DAY OF MARCH 2020 / 26TH PHALGUNA, 1941
WP(C).No.50 OF 2020(E)
PETITIONERS:
1 NANDINI.P.M.
AGED 49 YEARS
W/O.DIVAKARAN.K, 'NANDANAM', RAMAPURAM,
MALAPPURAM DISTRICT
2 ABILASH.A
AGED 38 YEARS
'ARYA NIVAS, RAMAPURAM, MALAPPURAM DISTRICT
3 VARIJAKSHA MENON
AGED 80 YEARS
S/O.NARAYANA MENON, VENUGANAM, RAMAPURAM,
MALAPPURAM DISTRICT
BY ADVS.
SRI.K.MOHANAKANNAN
SRI.H.PRAVEEN (KOTTARAKARA)
RESPONDENTS:
1 CHAIRMAN
DISTRICT TELECOM COMMITTEE, DISTRICT COLLECTOR,
CIVIL STATION, MALAPPURAM-676505
2 DISTRICT COLLECTOR,
CIVIL STATION, MALAPURAM-676505
3 EXECUTIVE ENGINEER
PWD NH DIVISION, MALAPPURAM-676505
W.P.(C).Nos.50/20 & 33759/19
4
4 PUZHAKATTIRI GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY,
PUZHAKATTERRI.P.O, MALAPPURAM DISTRICT-679321
5 THAHASILDAR,
PERINTHALMANNA, MALAPPURAM-679322
6 P.M.RAMANNUNNI
S/O.RAMANKUTTY PANICKER, RASMA, RAMAPURAM.P.O,
MALAPPURAM DISTRICT-679322
7 RELIANCE JEO INFOCOM LIMITED,
(KER) UG FLOOR, GOPALADAS BHAVAN 28, BARAKHAMBA
ROAD, NEW DELHI-110001
CORRECTED AS-
RELIANCE JIO INFOCOM LIMITED, (KER)VG FLOOR,
GOPALADAS BHAVAN 28, BARAKHAMBHA ROAD, NEWDELHI
- 110001, REP. BY ITS AREA MANAGER,
KIZHAKKETHALA, MALAPPURAM P.O., MALAPPURAM
DISTRICT - 676519 - AS PER ORDER DATED
10.01.2020 IN IA 1/2020 IN WPC NO. 50/2020.
R4 BY SRI.MANOJ RAMASWAMY, SC, PUZHAKKATTIRI
GRAMA PANCHAYAT
R6 BY ADV. SRI.U.K.DEVIDAS
R7 BY ADV. SRI.G.HARIKUMAR (GOPINATHAN NAIR)
R7 BY ADV. SHRI.AKHIL SURESH
R7 BY ADV. SHRI.ROSHEN KURIAN SEBI
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
16.03.2020, ALONG WITH WP(C).33759/2019(T), THE COURT ON
THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).Nos.50/20 & 33759/19
5
JUDGMENT
[ WP(C).33759/2019, WP(C).50/2020 ] Dated this the 16th day of March 2020
1. W.P.(C).No.33759 of 2019 is filed seeking directions to respondents 1 to 4 to ensure that the construction of the mobile tower by the 6th respondent is not proceeded with. There is a further prayer to direct the 1st respondent to ensure that no mobile tower is constructed by the 6th respondent before finalising Exhibit P3 in terms of Exhibit P4 judgment and for a direction to the Tribunal for the Local Self Government Institutions to decide Appeal No.612/2019 before the mobile tower is permitted to be constructed.
2. W.P.(C).No.50 of 2020 is filed challenging Exhibit P5 communication dated 26.6.2019 from the District Collector to the Secretary of the 4th respondent Panchayat permitting the construction of the mobile tower as well as Exhibit P6 decision of the District Telecom Committee dated 29.10.2018.
3. Heard learned counsel for the petitioners, learned Government Pleader, the learned standing counsel appearing for the 4th W.P.(C).Nos.50/20 & 33759/19 6 respondent-Panchayat, the learned counsel appearing for respondents 6 and 7 respectively.
4. The contention of the petitioners in W.P.(C).No.50 of 2020, who claim to be residents of the locality where the mobile tower is proposed to be put up by the 7 th respondent is that Exhibit P1(a) representation had been submitted by the petitioners and other residents of the locality on 4.5.2018 against the construction of the mobile tower on the ground that the same creates health hazards to the residents as also on the ground that the building of the 6th respondent is protruding into the National Highway and the installation of the tower would result in vehicle accidents on the highway. It is also contended that the building is put up encroaching into the road puramboke and that no permission can be granted to put up a mobile tower on such a building. Exhibit P2, P2(a) and P3 complaints were also preferred by the petitioners before various authorities.
5. The petitioners had earlier approached this Court by filing W.P. (C).No.19209/2019 which was disposed of by Exhibit P4 judgment directing the 1st respondent District Telecom Committee to consider the representations preferred by the W.P.(C).Nos.50/20 & 33759/19 7 petitioners, while considering the application for permission to construct the mobile tower. It is stated that when steps were taken for construction of a basement without obtaining orders from the 1st respondent, the petitioners preferred W.P. (C).No.33759 of 2019 and that the same is pending. It is stated that the petitioners have also challenged the permit issued by the Panchayat to the 7th respondent and the same is also pending before the Tribunal for Local Self Government. While so, Exhibit P5 proceedings have been issued on 26.6.2019, which was communicated to the 1st petitioner only on 19.12.2019. It is contended that the District Telecom Committee held on 23.10.2018 called for a report from the 5 th respondent with regard to any encroachment by the 6 th respondent. By report dated 11.3.2019, the 5th respondent reported that there is no encroachment and that permission could be granted for construction of the tower. It is stated that in reply to a query raised under the Right to Information Act, Exhibit P8 was received stating that no survey had been conducted in respect of the boundaries of the 6th respondent's property and the National Highway. It is, therefore, contended that the grant for permission to erect the mobile tower without considering any of W.P.(C).Nos.50/20 & 33759/19 8 the other aspects raised by the petitioner on a finding that the 6th respondent's property did not encroach into the National Highway puramboke is clearly illegal and unsustainable.
6. A counter affidavit has been filed by the 6th respondent contending that the writ petition is completely misconceived and is liable to be dismissed with costs. It is stated that sanction had been obtained by the 6 th respondent from the National Highway Department before the construction was effected and No Objection Certificate and survey plan are produced along with the counter affidavit. It is stated that the Panchayat had granted building permit in the year 2005 and the entire construction was completed on the basis of Exhibit R6(e) building permit dated 30.06.2008. It is stated that the Taluk Surveyor and Tahasildar measured the property and the boundary with the National Highway after giving notice to the husband of the 1 st petitioner herein and the report along with survey plan was submitted before the Tahasildar. The report and the plan are produced as Exhibits R6(e) and R6(f) respectively. It is stated that there was absolutely no orders in the appeal preferred by the husband of the 1st petitioner before the LSGD Tribunal and the mother of W.P.(C).Nos.50/20 & 33759/19 9 the 1st petitioner had filed a civil suit before the Munsiff's Court, Perinthalmanna, in which also, there was no order of interim injunction. It is stated that there are criminal cases pending against the 1st petitioner as well. It is stated that there was absolutely no material behind the contention that the mobile tower causes health hazards and the fact has been taken note of by this Court in several decisions.
7. The petitioner has filed a reply affidavit raising allegations against the veracity of the documents produced by the 6 th respondent.
8. The 7th respondent has also placed a counter affidavit on record contending that there was absolutely no material in any of the allegations raised and contending that the impugned order had been served on the 1st petitioner's husband immediately after it was rendered and that the contention that the 1st petitioner received a copy only in December, 2019 is a false statement. It is stated in paragraph 9 of the counter affidavit of the 7 th respondent as follows:-
W.P.(C).Nos.50/20 & 33759/19 10 "The averments in paragraphs 6 to 8 of the writ petition are incorrect and hence denied. It is a matter of fact that the husband of the 1 st petitioner along with several others had lodged a complaint with the 1st respondent in the year 2018 alleging that building has been constructed by the 6th respondent by encroaching into puramboke property. Acting on such complaint, the 1 st respondent in its meeting held on 23.10.2018 decided to refer the issue to the Tahsildar to examine the issue and submit a report. A true copy of the minutes of meeting dated 29.10.2018 of 1st respondent is annexed herewith and marked as Exhibit R-7 b . Thereafter, the Tahsildar caused an enquiry to be conducted and submitted a report stating that the land and building is constructed in Sy No. 26/7 which is not a puramboke land. A true copy of the report of the Tahsildar dated 11.03.2019 is annexed herewith and marked as Exhibit R-7(c). On the basis of the said report of the Tahsildar, the 1 st respondent passed final orders on the representation of the 1 st petitioner granting permission to this respondent to effect construction of the mobile tower. A true copy of the order dated 26.06.2019 passed by the 1 st respondent is annexed herewith and marked as Exhibit R 7(d)."
9. It is further contended that the apprehension that the mobile towers constitute a health hazard has been specifically considered by this Court in Reliance Infocom Ltd.v. Chemanchery Grama Panchayat [2006 (4) KLT 695] and in later decision in Sudevan v. Mundoor Grama Panchayat [2013 (4) KHC 68] and also by the Apex Court in G.Sundarrajan v. Union of India [(2013) 6 SCC 620], it was specifically found that there W.P.(C).Nos.50/20 & 33759/19 11 is absolutely no material to support the said contention. It is therefore contended that the respondents are liable to go ahead with the construction of the mobile tower.
10.On a consideration of the contentions advanced, I find that the contentions of the petitioners that the objections raised by them have not been considered by the respondents while passing Exhibit P5 order cannot be accepted. The petitioners and residents of the locality had been put on notice and heard before the permission had been granted by the the District Telecom Committee. In view of the contentions urged, the authority had called for a report as to whether there was any encroachment into the road puramboke committed by the 6 th respondent. After conducting due inspections and measurements, reports had been submitted by the Taluk Surveyor and Tahasildar to effect that there was no such encroachment. These reports were acted upon and the District Telecom Committee had decided to permit the erection of the tower.
11.Exhibit P6 is admittedly an order issued on 29.10.2018. In view of the fact that it is specifically averred that copy of the W.P.(C).Nos.50/20 & 33759/19 12 order had been served on the husband of the 1 st petitioner, and there is no averment to the contrary, eventhough a reply affidavit has been filed. I am of the opinion that the present challenge is highly belated.
12.The petitioners' contentions having been considered and rejected by the District Telecom Committee, I am of the opinion that this Court cannot enter into a re-appreciation of the factual aspects of the matter. The grounds raised in W.P. (C).No.50 of 2020 do not justify the challenge to Exhibits P5 and P6. The writ petition therefore fails and the same is accordingly dismissed. W.P.(C).No.33759 of 2019, which was filed seeking directions not to issue permissions to construct the mobile tower cannot survive in the light of the decision of the District Telecom Committee dated 28.10.2018. The same also fails and the writ petition is dismissed.
Sd/-
Anu Sivaraman, Judge sj W.P.(C).Nos.50/20 & 33759/19 13 APPENDIX OF WP(C) 33759/2019 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GO(MS)NO.25/2014/ITD DATED 2.8.2014.
EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHER BEFORE THE 3RD RESPONDENT DATED 4.5.2018.
EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS ON 18.5.2019 BEFORE THE 1ST RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 15.7.2019 IN WPC.19209/2019.
W.P.(C).Nos.50/20 & 33759/19 14 APPENDIX OF WP(C) 50/2020 PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE GO(MS)NO.25/2014/ITD DATED 2.8.2014 EXHIBIT P1 A TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHERS BEFORE THE 1ST RESPONDENT DATED 4.5.2018 EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHER BEFORE THE 3RD RESPONDENT DATED 4.5.2018 EXHIBIT P2(a) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND OTHER BEFORE THE 1ST RESPONDENT DATED 4.5.2018 EXHIBIT P3 TRUE COPY OF THE COMPLAINT FILED BY THE PETITIONERS ON 18.05.2019 BEFORE THE 1ST RESPONDENT EXHIBIT P4 TRUE COPY OF THE JUDGMENT DATED 15.7.2019 IN WP9C)NO.19209/2019 EXHIBIT P5 TRUE COPY OF THE PROCEEDING OF THE 1ST RESPONDENT DATED 26.06.2019 EXHIBIT P6 TRUE COPY OF THE MINUTES OF THE MEETING OF THE 1ST RESPONDENT COMMITTEE DATED 29.10.2018 WHICH WAS HELD ON 23.10.2018 EXHIBIT P7 TRUE COPY OF THE APPLICATION SUBMITTED BY THE HUSBAND OF THE 1ST PETITIONER BEFORE THE 3RD RESPONDENT DATED 18.05.2019 EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS OF THE 5TH RESPONDENT NO.B2-4488/19 DATED 29.05.2019 W.P.(C).Nos.50/20 & 33759/19 15 RESPONDENT'S/S EXHIBITS:
EXHIBIT R6(A) TRUE COPY OF THE APPLICATION DATED 24.10.2005.
EXHIBIT R6(B) TRUE COPY OF THE LETTER DATED 09.11.2005.
EXHIBIT R6(C) TRUE COPY OF THE CHALAN DATED 19.04.2005.
EXHIBIT R6(D) TRUE COPY OF THE SURVEY PLAN DATED 24.04.2005.
EXHIBIT R6(E) TRUE COPY OF THE BUILDING PLAN AND PERMIT DATED 30.06.2008.
EXHIBIT R6(F) TRUE COPY OF THE LETTER DATED 14.06.2019 SEND BY TALUK SURVEYOR ALONG WITH SURVEY PLAN.
EXHIBIT R6(G) TRUE COPY OF THE LETTER DATED 17.06.2019 SEND BY TAHSILDAR TO NATIONAL HIGHWAY DEPARTMENT.
EXHIBIT R6(H) TRUE COPY OF THE COMPLAINT DATED 26/12/2019 BEFORE THE SUPERINTENDENT OF POLICE, MALAPPURAM.
True copy PS to Judge