Kerala High Court
V.J. John vs The State Of Kerala on 28 January, 2022
Author: T.R.Ravi
Bench: T.R.Ravi
W.P.(C)No.17210/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
FRIDAY, THE 28TH DAY OF JANUARY 2022 / 8TH MAGHA, 1943
WP(C) NO. 17210 OF 2021
PETITIONERS:
1 V.J. JOHN
AGED 63 YEARS
VADAKKEDAM, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
2 LISAMMA JOHN
VADAKKEDAM, PADINJAREKKRA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
3 REMANI
PATTARACKAL PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
4 SARASWATHI E.R.
PATTARACKAL, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM, DIST.KOTTAYAM - 686 146.
5 NARAYANAN
PATTARACKAL, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
6 P.R.SOMAN
PATTARACKAL, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
7 SOBHANA
PATTARACKAL, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
8 SARALA
PATTARACKAL PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
W.P.(C)No.17210/2021 2
DIST.KOTTAYAM - 686 146.
9 PREETHI P.V.
PATTARACKAL, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST.KOTTAYAM - 686 146.
10 RAJESH KUMAR U.D.
UDUVELI THAZHCHA, PADINJAREKKARA P.O.,
VALLAKOM, VAIKOM,
DIST. KOTTAYAM - 686 146.
BY ADVS.
SRI K.REGHU KOTTAPPURAM
SRI R.MAHESH (KOTTAPPURAM)
SRI MURUKESH REGHU
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY PRINCIPAL SECRETARY, DEPARTMENT OF
INFORMATION TECHNOLOGY AND ENVIRONMENT,
SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
2 THE SECRETARY
MINISTRY OF ENVIRONMENT AND FOREST AND CLIMATE CHANGE,
GOVT.OF INDIA,
NEW DELHI - 110 001.
3 THE STATE TELECOM COMMITTEE
REPRESENTED BY SECRETARY OF INFORMATION AND
TECHNOLOGY, SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 DISTRICT TELECOM COMMITTEE
REPRESENTED BY THE CHAIRMAN, CIVIL STATION,
KOTTAYAM - 686 002.
5 DISTRICT COLLECTOR
KOTTAYAM DISTRICT, CIVIL STATION,
KOTTAYAM - 686 002.
6 REVENUE DIVISIONAL OFFICER
PALA, DIST. KOTTAYAM - 686 575.
7 DISTRICT MEDICAL OFFICER
COLLECTORATE BUILDING, K.K.ROAD,
KOTTAYAM - 686 002.
8 THE SECRETARY
W.P.(C)No.17210/2021 3
UDAYANAPURAM GRAMA PANCHAYATH, VALLAKOM,
PADINJAREKKARA P.O., VAIKOM,
DIST. KOTTAYAM - 686 146.
9 BINOY K.S.
S/O.LATE SUKUMARAN, KANNANKERIL,
UDAYANAPURAM P.O., VAIKOM,
DIST.KOTTAYAM - 686 143.
10 SUMIT DIGITAL INFRASTRUCTURE PVT.LTD.
PULILAKATTU KARYATTU TOWER, MAMANGALAM,
PALARIVATTOM P.O., KOCHI - 682 025.
11 THE VILLAGE OFFICER
UDAYANAPURAM VILLAGE, PADINJARAKKARA P.O., VAIKOM,
DIST. KOTTAYAM - 686 146.
12 THE ENVIRONMENTAL ENGINEER
KERALA STATE POLLUTION CONTROL BOARD, V PUBLISHERS
BUILDING, SREENIVASA IYER ROAD, KOTTAYAM 686 001
BY ADVS.
R1 TO R7 & R11 BY SRI VIPIN NARAYAN, GOVT.PLEADER
R8 BY SHRI.S.RAJMOHAN,, SC, UDAYANAPURAM GRAMA
PANCHAYAT
R9 BY GEORGE CHERIAN (SR.) SMT.K.S.SANTHI
SMT.LATHA SUSAN CHERIAN
SMT.ALEXY AUGUSTINE
SRI GEORGE A.CHERIAN
R10 BY G.HARIKUMAR (GOPINATHAN NAIR)
AKHIL SURESH R12 BY SRI T.NAVEEN (SC, PCB)
SMT.SINDHUMOL.T.P., CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 01.11.2021, THE COURT ON 28.1.2022 DELIVERED THE
FOLLOWING:
W.P.(C)No.17210/2021 4
T.R.RAVI,J.
-----------------------------
W.P.(C)No.17210 OF 2021
-------------------------------
Dated this the 28th day of January, 2022 The petitioners are aggrieved by the construction of a mobile tower by the 10th respondent in the property belonging to the 9th respondent, who had received permission for conversion of the land for the purpose of construction of a residential house.
2. Heard Sri Reghu Kottappuram, counsel for the petitioners, Sri Vipin Narayan, Government Pleader for respondents 1 to 7 and 11, Sri S.Rajmohan, Standing Counsel for the 8 th respondent, Sri George Cherian, Senior Counsel, instructed by Smt.K.S.Santhi on behalf of the 9th respondent, Sri Harikumar G.Nair for the 10th respondent, and the Standing Counsel for the 12 th respondent.
3. The contentions raised by the counsel for the petitioners are as follows:-
(a) The mobile tower is sought to be erected in a place where there are several residential houses and the construction of the mobile tower is likely to cause serious health hazards due to electromagnetic radiation.W.P.(C)No.17210/2021 5
(b) The 9th respondent had obtained permission for conversion of the land from "nilam" to "purayidom"
stating the purpose as construction of residential house and by allowing construction of mobile tower, the said permit is violated. It is submitted that conversion was permitted for the construction of a residential house of 3000 Sq.ft. plinth area, but what is constructed is a mobile tower of about 40 metres height.
(c) There are no guidelines in place which can guide the District Telecom Committee and hence granting permission on the basis of recommendation in the report of the District Medical Officer ought not to be permitted. It is contended that neither the DMO nor the DTC has the expertise to gauge the level of electromagnetic radiation caused by the mobile tower. According to the petitioners, the role of the District Medical Officer is only under the Kerala Public Health Act and his duty is only to maintain public health and sanitation.
(d) It is contended that the tower has been constructed after digging the ground to great depths even without obtaining permission from the District Geologist. W.P.(C)No.17210/2021 6
4. The petitioners rely on the guidelines issued by the Hon'ble Supreme Court in the decision in Cellular Operators Association of India & Ors. v. Justice I.S. Israni reported in [2015 KHC 4973]. It is submitted that the mobile tower should not have been permitted to be installed without proper study regarding the impact and hazards of the electromagnetic radiation which is likely to occur while the mobile tower functions. The petitioners also challenge Ext.P15 building permit granted by the Panchayat.
5. The 10th respondent has filed a counter affidavit stating that the construction of the tower is not within the prohibited distance nor does it offend any statutory rules. It is submitted that the 9th respondent has been issued with permission to change the category of the land under the provisions of the Kerala Conservation of Paddy Land and Wetland Act, 2008. The Agricultural Officer had certified that the land had been converted as dry land much before 2008. It is submitted that the building permit has been granted after taking into account all the relevant matters. The allegation that excavations were made in the land is denied and it is stated that digging was done only for the purpose of the creating the base foundation for erecting a stable tower as sanctioned by the W.P.(C)No.17210/2021 7 authorities. It is further submitted that persons claiming to be the residents of the locality who are known to be relatives of the petitioners have already filed Appeal No.403/2021 on 24.8.2021 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram and the copy of the appeal has been produced as Ext.R10(a). It is stated that after having approached the statutory authority, the petitioners are not entitled to approach this Court for relief under Article 226 of the Constitution of India. The averment that the installation of the tower is likely to cause health hazards is denied. It is stated that the District Telecom Authority, which is the authority empowered to look into such aspects has already considered the issue and come to the conclusion that the functioning of the tower is not harmful to the residents. It is also stated in the report of the District Telecom Committee which is produced as Ext.R10(b) that the radiation from the tower will be within the permissible limits. The building permit dated 5.7.2021 has been produced as Ext.R10(c). Reliance is placed on the judgment of this Court in Reliance Infocomm v. Chemancherry Grama Panchayat reported in [2006 (4) KLT 695] to submit that the mobile towers do not cause any hazardous effect to humans and that the same is only an apprehension not backed by any scientific W.P.(C)No.17210/2021 8 data. Similar view was taken in the judgment in Sudevan and another v. Mundoor Grama Panchayat and another reported in 2013 (4) KLT 55]. It is further submitted that the Hon'ble Supreme Court has approved the said dictum in the decision in G.Sundarrajan v. Union of India reported in [(2013) 6 SCC 620]. It is further submitted that the radiation norms prescribed by the DOT are very strict and stringent and require that the radiation should be 1/10th of the permissible radiation prescribed by the ICNIRP guidelines. It is submitted that even if the radiation is within the norms prescribed by ICNIRP guidelines, the same would not cause any health hazard whatsoever. It is submitted that when the prescription is 1/10th of the radiation norms prescribed as above, there can absolutely be no objection on the ground of health hazard. Details of the scientific aspect on the issue has also been explained in the counter affidavit, which are not being repeated in this judgment. Ext.R10(d) produced would show that the necessary certification from the Office of the DDG TERM, Kerala has been obtained which shows compliance with radiation norms. It is submitted that similar writ petitions have been dismissed by this Court and the copy of the judgment in W.P.(C)No.16601 of 2020 has been produced as Ext.R10(f).
W.P.(C)No.17210/2021 9
6. The 9th respondent has filed a counter affidavit stating that all necessary permissions have been obtained for conversion of the land. The orders in this regard and the building permits issued by the Panchayat have also been produced. The 8 th respondent Panchayat has also placed on record a counter affidavit stating that permits have been granted after considering all the relevant aspects. It is stated that on 10.6.2021 on the District Level Telecom Committee meeting, the issue has been discussed in detail as item No.4. Ext.R8(c) proceedings dated 2.7.2021 has been produced to show that all the stakeholders were heard by the Panchayat before granting the building permit.
7. A Division Bench of this Court has in the decision in Sudhakaran Pillai v. Vaikom Municipality and others reported in [2019 KHC 915], catalogued the decisions of the Hon'ble Supreme Court, this Court and some decisions of the High Court of Madras and has, after noticing that the permission for erection of the mobile tower in the said case was granted by the District Telecom Committee after considering the relevant factors and that the necessary permits and Electromagnetic Frequency Certification for radiation compliance had also been obtained, rejected the challenge against the putting up of the mobile tower. A learned Single Judge W.P.(C)No.17210/2021 10 has in Ext.R10(f) judgment also rejected the plea against the putting up of mobile tower in a thickly populated area on the ground that all necessary permits have been granted and EMF certification has also been obtained.
8. After having considered the decisions cited above and the contentions raised by the petitioners, I am of the view that this Court will not be justified in considering the question regarding the health hazards all over again in view of the judgments in Reliance Infocomm (supra), Sudevan (supra), Sundarrajan (supra) and Sudhakaran Pillai (supra). A properly constituted District Telecom Committee has considered the issue and found that the 10 th respondent can be permitted to continue with the construction of the mobile tower. The Panchayat has issued a building permit as is required. The 10th respondent has also obtained the EMF certification. No grounds warranting interference by this Court in exercise of the extraordinary jurisdiction under Article 226 is made out. The writ petition fails and is dismissed.
Sd/-
T.R.RAVI JUDGE dsn W.P.(C)No.17210/2021 11 APPENDIX OF WP(C) 17210/2021 PETITIONER EXHIBITS Exhibit P1 A PHOTO COPY OF APPLICATION DATED 12/10/2020 SUBMITTED BY 9TH RESPONDENT BEFORE REVENUE DIVISIONAL OFFICER.
Exhibit P2 A PHOTOCOPY OF REPORT VIDE LETTER NO.271/2020 DATED 12/11/2020 SENT BY VILLAGE OFFICER TO REVENUE DIVISIONAL OFFICER.
Exhibit P3 A PHOTOCOPY OF PROCEEDINGS NO.L2-3182/2020 DATED 13/1/2021 OF R.D.O. Exhibit P4 A PHOTO COPY OF COMPLAINT DATED 8/8/2021 SUBMITTED BY THE PETITIONERS BEFORE THE PANCHAYATH.
Exhibit P5 A PHOTOCOPY OF COMPLAINT DATED 23/4/2021 SUBMITTED BY 1ST PETITIONER BEFORE PANCHAYATH. Exhibit P6 A PHOTOCOPY OF COMPLAINT DATED 23/4/2021 SUBMITTED BEFORE PANCHAYATH BY THE 4TH PETITIONER.
Exhibit P7 A PHOTO COPY OF COMPLAINT DATED 23/4/2021 SUBMITTED BEFORE PANCHAYATH BY THE 6TH PETITIONER.
Exhibit P8 A PHOTO COPY OF COMPLAINT DATED 24/8/2021 SUBMITTED BEFORE PANCHAYATH BY THE 10TH PETITIONER.
Exhibit P9 A PHOTO COPY OF LETTER DATED 27/7/2021 TO SMT.ANCY GEORGE ISSUED BY PANCHAYATH.
Exhibit P10 A PHOTO COPY OF THE LETTER DATED 28/4/2021 SENT BY THE M.L.A. TO THE DISTRICT COLLECTOR.
Exhibit P11 A PHOTO COPY OF LETTER DATED 29/4/2021 ISSUED BY THE PANCHAYATH WARD MEMBER TO PANCHAYATH.
Exhibit P12 A PHOTO COPY OF DECISION NO.19/1 TAKEN BY THE PANCHAYATH COMMITTEE.
Exhibit P13 A FEW PHOTOGRAPHS EVIDENCING THE EXCAVATION OF EARTH BY 10TH RESPONDENT.
Exhibit P14 A PHOTOCOPY OF PETITION DATED 21/8/2021 SENT BY PETITIONERS 1ST & 10TH TO 1ST RESPONDENT.
Exhibit P15 A PHOTOCOPY OF BUILDING PERMIT DT.5.7.2021 W.P.(C)No.17210/2021 12 Exhibit P16 A PHOTOCOPY OF ORDER No.DCKTM/3104 DT.7.7.2021 OF ADDITIONAL DISTRICT MAGISTRATE RESPONDENTS' EXTS:
EXT.R8(A): A TRUE COPY OF THE LETTER NO.H6-45159/2013 DT.8.6.2021 ISSUED BY 5TH RESPONDENT. EXT.R8(B): A TRUE COPY OF THE MINUTES DT.17.6.2021 OF THE MEETING HELD ON 10.6.2021 OF THE DISTRICT TELECOM COMMITTEE.
EXT.R8(C): A TRUE COPY OF THE LETTER No.DCKTM/3104/2021-H6 DT.2.7.2021 ISSUED BY THE 5TH RESPONDENT. EXT.R9(A): TRUE COPY OF ORDER DT.2.2.2021 ISSUED BY TAHSILDAR, VAIKOM EXT.R9(B): TRUE COPY OF TAX RECEIPT DT.4.2.2021 ISSUED BY UDAYANAPURAM VILLAGE.
EXT.R9(C): TRUE COPY OF ORDER DT.7.7.21 ISSUED BY ADDL.DISTRICT MAGISTRATE, KOTTAYAM. EXT.R9(D): TRUE COPY OF THE BUILDING PERMIT ISSUED BY UDAYANAPURAM GRAMA PANCHAYAT DT.5.7.21. EXT.R10 (A): TRUE COPY OF THE APPEAL NO.403/2021 DT.24.8.2021.
EXT.R10(B): TRUE COPY OF REPORT OF THE DTC DT.7.7.2021 EXT.R10(C): TRUE COPY OF BUILDING PERMIT DT.5.7.2021 EXT.R10(D): TRUE COPY OF EMF CERTIFICATE DT.16.3.21. EXT.R10(E): TRUE COPY OF STABILITY CERTIFICATE DT.23.3.2021. EXT.R10(F): TRUE COPY OF JUDGMENT IN WPC.16601/2020 DT.22.10.2020.
EXT.R10(G): TRUE COPY OF CIRCULAR No.DOT/KRL/6-14/DM-
CORR/2019-20 DT.24.3.2020.
EXT.R10(H): TRUE COPY OF CIRCULAR No.AS-25/1/2019-OFFICE OF DIR(AS-V) DT.21.3.2020.