Kerala High Court
Sudevan.C.C vs Mundur Grama Panchayath
Author: K.Surendra Mohan
Bench: K.Surendra Mohan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
MONDAY, THE 12TH DAY OF AUGUST 2013/21ST SRAVANA, 1935
WP(C).No. 13273 of 2013 (H)
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PETITIONERS:
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1. SUDEVAN.C.C., AGED 55 YEARS,
SON OF CHAMY IYER, AISWARYA HOUSE,
MYLUMPPULLY, NAMPULLYPARA
MUNDUR - 678 592.
2. PRASAD K, KALHARAM HOUSE,
PORIYANI, MUNDUR - 678 592.
BY ADVS.SRI.P.B.SAHASRANAMAN
SRI.T.S.HARIKUMAR
SRI.K.JAGADEESH
RESPONDENTS:
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1. MUNDUR GRAMA PANCHAYATH
REPRESENTED BY ITS SECRETARY
OFFICE OF THE MUNDUR GRAMA PANCHAYATH,
MUNDUR JUNCTION,
MUNDUR P.O., PIN - 678 592.
2. INDUS TOWERS LTD, REPRESENTED BY ITS HEAD LEGAL OFFICER
VANKARATH TOWERS, 8TH FLOOR, NH-47
PALARIVATTOM, COCHIN - 682 024.
RR1 BY ADV. SRI.U.BALAGANGADHARAN
RR2 BY ADV. SRI.V.PHILIP MATHEW
RR2 BY ADV. SRI.JEPH JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-08-2013, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
WP(C).No. 13273 of 2013 (H)
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A P P E N D I X
PETITIONERS' EXHIBITS
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EXT.P-1 TRUE PHOTOSTAT COPY OF THE ORDER NO.A6/3067/2012 DATED
12.6.2012 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE TOWER NEAR
TO THE HOUSE OF THE 2ND PETITIONER.
EXT.P-2 TRUE PHOTOSTAT COPY OF THE ORDER NO.A4/3068/2012 DATED
12.6.2012 ISSUED BY THE 1ST RESPONDENT IN RESPECT OF THE TOWER NEAR
TO THE HOUSE OF THE 1ST PETITIONER.
EXT.P-3 TRUE PHOTOSTAT COPY OF THE REPORT OF THE SUB-COMMITTEE OF
THE 1ST RESPONDENT PANCHAYATH DATED NIL.
EXT.P-4 TRUE PHOTOCOPY OF THE MINUTES OF THE 1ST RESPONDENT DATED
18.9.2012.
EXT.P-5 TRUE PHOTOSTAT COPY OF THE ORDER NO.A4-4871/2012 DATED
18.9.2012.
EXT.P-6 TRUE PHOTOSTAT COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL
SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.814 OF
2012 DATED 23RD MARCH 2013.
EXT.P-7 TRUE PHOTOSTAT COPY OF THE OFFICE MEMORANDUM
F.NO.15-11/2010/WL-I, DATED 30TH AUGUST, 2010.
EXT.P-8 TRUE PHOTOSTAT COPY OF THE OFFICE MEMORANDUM,
F.NO.15-11/2010/WL-I, DATED 9TH AUGUST, 2012, ISSUED BY THE
GOVERNMENT OF INDIA, MINISTRY OF ENVIRONMENT AND FOREST.
/TRUE COPY/
P.A TO JUDGE
"C.R"
K.SURENDRA MOHAN, J.
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W.P(c) No.13273 of 2013-H
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Dated this the 12th August, 2013
J U D G M E N T
The petitioners, permanent residents of Mundur Grama Panchayat, have filed this Writ Petition challenging Ext.P6 order dated 23.03.2013 of the Tribunal for Local Self Government Institutions in Appeal No.814 of 2012. The petitioners were not parties to the said proceedings. The said appeal was filed by the 2nd respondent herein challenging a resolution adopted by the Grama Panchayat on 18.09.2012, which is Ext.P4 and a decision taken by the Secretary of the Panchayat on the same day revoking the building permit granted to the 2nd respondent, which is Ext.P5. The short facts in the case are summarised below.
2. The 2nd respondent is a Company engaged in the installation of Mobile Telecommunication Towers for the providers of Cell Phone Facility. Exts.P1 and P2 permits had been issued to the petitioners to erect two mobile towers. W.P(c) No.13273 of 2013-H 2 Pursuant to agitations launched by the local residents, the Panchayat appears to have appointed a Sub Committee to enquire into and find out whether the installation of the mobile towers would cause health hazards to the residents of the locality. As per Ext.P3 report, the Sub Committee appears to have recommended against permitting erection of the mobile towers. Pursuant thereto, Ext.P4 resolution was adopted by the Panchayat Committee on 18.09.2012. On the same day, the Secretary of the Panchayat has issued Ext.P5 proceedings revoking the Building Permits issued to the petitioner. The Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as `the Tribunal' for short), considered the appeal and by Ext.P6 order, has set aside Ext.P5 order of the Secretary. The 1st respondent Panchayat has not challenged the said order. Therefore, the order has become final as far as the 1st respondent is concerned. The present challenge is, as already noticed, at the instance of two local residents.
3. According to Advocate P.B.Sahasranaman, the learned counsel for the petitioners, the Tribunal has adopted a technical approach in setting aside the order Ext.P5. According to the W.P(c) No.13273 of 2013-H 3 learned counsel, though it is true that the Panchayat has passed a resolution in the matter on the basis of the report submitted by the Sub Committee that was appointed to study the entire issue, the Secretary has taken an independent decision to revoke the permit. Such a power is available to the Secretary under Rule 18 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as `the Building Rules' for short). The order has been passed by the Secretary for the only reason that, the construction if carried on would be a threat to the life or property of the local residents. Since the Secretary felt that there was a likelihood of threat to the local residents, the Secretary was perfectly within his powers to issue the said order. However, without taking note of the above crucial aspect, according to the learned counsel, the Tribunal has set aside the order. The learned counsel also places reliance on Ext.P8, which is an Office Memorandum issued by the Government of India, Ministry of Environment and Forests (Wild Life Division), with an advisory appended thereto, which seeks to regulate the operation of mobile towers so as to minimise their impact on Wildlife, including birds and bees. Ext.P8 is pressed into service to drive home the contention of the learned counsel for the W.P(c) No.13273 of 2013-H 4 petitioners that the Government of India has recognised the deleterious effects of mobile towers on the health of human beings. If birds and bees are likely to be affected, according to the learned counsel, human beings are also likely to be affected. Reliance is placed on the decision of the Honourable Supreme Court reported in M.C.Mehta v. Union of India [2004 AIR SCW 4033 = AIR 2004 SC 4016], to contend that where there is a doubt regarding the likelihood of health hazards, a decision has to be taken favouring the cause of the environment. According to the learned counsel, the Tribunal ought to have permitted the petitioners to produce sufficient documents and materials to justify their contention that mobile towers are hazardous to health.
4. A statement has been filed on behalf of the 1st respondent Panchayat. Advocate U.Balagangadharan appears for the Panchayat. According to the learned counsel, though Exts.P3 and P4 have preceded the issue of Ext.P5, the decision in Ext.P5 was taken independently by the Secretary on the basis of the said materials. Therefore, according to the learned counsel, the Tribunal went wrong in setting aside Ext.P5.
5. Advocate V.Philip Mathew appears for the 2nd W.P(c) No.13273 of 2013-H 5 respondent. According to the learned counsel, the Panchayat Committee has no power even to appoint the Sub Committee that has submitted Ext.P3 report. My attention is drawn to the resolution of the Panchayat Committee, Ext.P4, which specifically mentions at the concluding portion thereof that, the Secretary has been entrusted with the duty of taking steps to revoke the building permit granted to the 2nd respondent. It was pursuant to the said resolution that Ext.P5 order has been passed, it is contended. According to the learned counsel, three Division Benches as well as a Full Bench of this Court have considered similar contentions and have found that there is no evidence available, of any health hazards emanating from the functioning of the mobile towers. Therefore, it is contended that absolutely no grounds were available before the Sub Committee to make its report Ext.P3, that the building permit issued to the mobile towers should be revoked. Though the Secretary was the authority competent to revoke the building permit, without any application of mind, the Secretary has issued Ext.P5 in compliance with the directions contained in Ext.P4. Therefore, it is contended that the Tribunal has rightly set aside the same.
6. Heard the respective counsel appearing for the W.P(c) No.13273 of 2013-H 6 contesting parties. Though the attack of the learned counsel for the petitioners on Ext.P6 order is mounted on the premise that installation and use of mobile towers create health hazards, the fact remains that the scientific community itself is divided on the above question. Studies hitherto made have not been able to produce any conclusive evidence to prove that the radiations from radio waves have any harmful effects on human beings. It is true that suspicion of varying degrees have been voiced by different studies pointing out chances of harmful effects. However, considering the fact that the use of mobile phones have become so widespread throughout the world, it is not possible to exclude altogether, the facility of mobile communication through such towers. Some tests even reveal that the rays of mobile phones expose a human being to more radiation than what a mobile tower is expected to produce. Until and unless conclusive tests establish the harmful effects, of which the vociferous complaints are made, it is not safe to act on the basis thereof. It is worth noticing that this Court has considered the issue in the decisions reported in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat [2006(4) KLT 695] and Essar Telecom Infrastructure (P) Ltd. v. C.I. W.P(c) No.13273 of 2013-H 7 Of Police [2008(4) KLT 713], where 2 different Division Benches have taken the view that establishment of mobile towers would not cause any health hazards or affect the fundamental rights of a citizen. The Full Bench decision in Essar Telecom Infrastructure (P) Ltd. v. C.I. Of Police [2010 (2) KLT 762] has also endorsed the above position. In view of the above binding precedents, I do not consider it necessary to go into the issue at any length in this case. Another Division Bench of this Court in a recent unreported decision dated 10.07.2013 in W.P
(c) No.30892 of 2012 [Indus Towers Ltd. v. The S.I. Of Police and Ors.] has, after considering a similar issue, made the following observations.
"5. As we have been stating in the judgments in other similar writ petitions, whether it causes health hazards or not, cellular phones are a reality, without which, we cannot live in this world now and it has practically become part of our bodies itself. In fact two Division Benches of this Court have held that there is no tangible evidence to prove that telecommunication towers cause any health hazards. Still in international scientific community, there is difference of opinion. Whatever that be,we are bound to live with cellular phones for the rest of our lives. W.P(c) No.13273 of 2013-H 8 All what we can do now is to see that the rules and guidelines prescribed for erection of telecommunication towers are followed by telecommunication service providers. If they do so, nobody has any authority to interfere with the erection of a telecommunication tower."
7. The learned counsel for the 2nd respondent places reliance on the decision of the apex Court in G. Sundarrajan v. Union of India [2013(2) KHC SN 31 (SC) = 2013 AIR SCW 4019 = 2013(2) KLT SN 152] to point out that minor exposure to radiation is no ground to exclude altogether, modern scientific advancements. In the said case the apex Court was dealing with the objections to the establishing of Kudamkulam Nuclear Power Plant. For the above reasons, the contention that the revocation of the permit granted to the 2nd respondent was fully justified in view of the likelihood of health hazards, cannot be accepted.
8. The Tribunal, however, has not gone into the above aspects at all. The Tribunal has found that Ext.P5 order has been issued by the Secretary on the basis of the resolution adopted by the Panchayat. The power to suspend or revoke a building permit is conferred on the Secretary of a Panchayat by Rule 18 of the KeralaPanchayat Building Rules. Rule 18 reads as W.P(c) No.13273 of 2013-H 9 follows:
"18. Suspension and Revocation of permit:- The Secretary shall stay, suspend or revoke any permit issued under these rules if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property:
Provided that before revoking permit, the owner of the permit shall be given 7 days notice, and an opportunity of being heard to explain and the explanation shall be duly considered by the Secretary."
9. A perusal of the above provision shows that a permit can be revoked only in cases where one of the reasons stated in the sub rule is available. The grounds on which a permit can be revoked are therefore, the following:
i) The permit was issued by mistake, or
ii) A patent error has crept in it; or
iii) The permit happened to be issued on a misrepresentation of fact or law; or
iv) The construction if carried on will be a threat to life or property.
W.P(c) No.13273 of 2013-H 10 In the present case, it is contended that, the construction if carried on would be a threat to the life of the local residents. As already found, there is no reliable material or evidence to warrant a conclusion that the tower if permitted to be established, would be a health hazard to the local residents. The learned counsel for the 1st respondent as well as the petitioners place reliance on Ext.P3 report of the Sub Committee. It is not disputed that the Sub Committee is constituted by members of the Panchayat Committee, who are not scientific experts or persons possessed of specialised knowledge in the matter of assessing the scientific data that is necessary to be considered or to give an opinion as to whether the proposed tower would be a health hazard or not. Therefore, Ext.P3 report does not justify a conclusion that mobile towers are causes of health hazard to the local residents.
10. In spite of the above, relying on Ext.P3, Ext.P4 resolution was adopted by the Panchayat deciding to revoke the building permits Exts.P1 and P2. The said resolution, Ext.P4, also entrusts the Secretary with the duty of taking necessary steps to revoke the permits. Promptly, on the same day itself, Ext.P5 order has been passed by the Secretary, implicitly relying W.P(c) No.13273 of 2013-H 11 on the resolution of the Panchayat, Ext.P5. A reading of Ext.P5 shows that there was no application of mind by the Secretary as contemplated by Rule 18 of the Building Rules. Therefore, the Tribunal has rightly interfered with the matter and set aside the order Ext.P5.
For the above reasons, I find no grounds to interfere with Ext.P5 order of the Tribunal or to grant any of the reliefs sought for in this Writ Petition. This Writ Petition fails and is therefore dismissed.
Sd/-
(K.SURENDRA MOHAN, JUDGE) rtr/