Kerala High Court
Abdul Kabeer vs District Telecom Committee on 26 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 26TH DAY OF AUGUST 2021 / 4TH BHADRA, 1943
WP(C) NO. 15570 OF 2020
PETITIONERS:
1 ABDUL KABEER
S/O.LATE ABDUL RAHMAN, UDAYAMTHIRITHI HOUSE,
P.O.THOZHIYOOR, CHAVAKKAD TALUK, THRISSUR DISTRICT.
2 BABU,
S/O.KURIAKKU, VAZHAPPILLY HOUSE, P.O.THOZHIYOOR,
CHAVAKKAD TALUK, THRISSUR DISTRICT.
3 SHAJAHAN,
S/O.UMMER, MATHRAMCODE HOUSE, P.O.THOZHIYOOR, CHAVAKKAD
TALUK, THRISSUR DISTRICT.
BY ADV P.JAYARAM
RESPONDENTS:
1 DISTRICT TELECOM COMMITTEE,
REPRESENTED BY ITS CHAIRMAN (DISTRICT COLLECTOR),CIVIL
STATION, THRISSUR, PIN-680001
2 THE DISTRICT COLLECTOR,
THRISSUR, PIN-680001.
3 THE STATION HOUSE OFFICER,
THAIKKAD POLICE STATION, P.O.THAIKKAD, THRISSUR, PIN-
680104.
4 THE SECRETARY,
GURUVAYOOR MUNICIPALITY, P.O.GURUVAYOOR, PIN-680101.
5 RELIANCE JIO INFO COM. LIMITED
32/0/2552-C, P.K.TOWER, FIRST FLOOR, MAMAMANGALAM, NEAR
YATHRI NIVAS, P.O.PALARIVATTOM, ERNAKULAM, COCHIN-
682025.
6 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, DEPARTMENT OF ELECTRONICS
AND INFORMATION TECHNOLOGY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001.
WP(C) NO.15570/2020
2
7 ADDL.R7.RAJESH.P.K
S/O LATE KURIAKOSE, PERAMANGALATH HOUSE,
THOZHIYOOR POST, KUNNAMKULAM, THRISSUR
DISTRICT, PIN-680 520
[ADDL.R7 IMPLEADED AS PER ORDER DATED
17.08.2020 IN IA NO.1/2020 IN W.P.(C)
15570/2020.] (EXPIRED)
8 ADDL.R8. MINU
W/O.LATE RAJESH P.K., PERAMANGALATH HOUSE,
P.O. THOZHIYOOR, KUNNAMKULAM, THRISSUR
DISTRICT, PIN - 680520.
9 ADDL.R9. SYRIAC
S/O.LATE RAJESH P.K., PERAMANGALATH HOUSE,
P.O. THOZHIYOOR, KUNNAMKULAM, THRISSUR
DISTRICT, PIN - 680520.
10 ADDL.R10. CYRIL
S/O.LATE RAJESH P.K., PERAMANGALATH HOUSE,
P.O. THOZHIYOOR, KUNNAMKULAM, THRISSUR
DISTRICT, PIN - 680520.
[ADDL.R8 TO R10 ARE IMPLEADED AS LEGAL
REPRESENTATIVES OF THE DECEASED 7TH RESPONDENT
AS PER ORDER DATED 23.07.2021 IN I.A.1/2021 IN
WP(C)15570/2020.]
BY ADVS.
SRI.K.K.CHANDRAN PILLAI (SR.)
SRI.G.HARIKUMAR (GOPINATHAN NAIR)
SMT.S.AMBILI, SC, GURUVAYUR MUNICIPALITY
DEEPA NARAYANAN, SENIOR GP
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 26.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO.15570/2020
3
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No.15570 of 2020
--------------------------------
Dated this the 26th day of August 2021
JUDGMENT
The above Writ petition is filed with
following prayers:
"i) Declare that the erection of
mobile tower at the location covered by
Exhibit P2 building permit would be
hazardous to the life and living of the
petitioners and other locals living at
Thozhiyoor in Guruvayur Municipality.
ii) Issue a writ of certiorari
or other appropriate writ, direction or
order quashing Exhibit P1
decision/proceedings of the District
Telecom Committee, Thrissur to the
extent it affected the petitioners.
iii) Issue a writ of mandamus or
other appropriate writ, direction or
order directing the respondents 1 and 2
to consider and pass orders in Exhibit
P3 representation in a time bound
manner after hearing all the affected.
iv) grand such other reliefs
found just and proper in the facts and
circumstances of the case.
WP(C) NO.15570/2020
2. The short facts are like this:
The petitioners are residing at
Thozhiyoor in Guruvayur Municipality, Chavakkad
Taluk in Thrissur District. The 5th respondent is
a private mobile phone company and they had
taken steps to install their mobile tower at
Thozhiyoor. According to the petitioners the
tower was attempted to be brought at a densely
populated residential area. It is stated in the
writ petition that there is a lower primary
school, a higher secondary school and
residential building in close proximity, within
a radius of 100 meters, from the proposed tower.
It is also stated that there are four dwelling
houses within a radius of 15 meters to the
proposed tower. According to the petitioners,
they suggested an alternative site also. The
respondents are not ready to accept that
suggestion. Ultimately the matter was
considered by the statutory authority. Ext.P1
is the proceedings of the 1st respondent. The
WP(C) NO.15570/2020
relevant portion of the order regarding the
proposal of the tower construction involved in
this case is in page No.4 of Ext.P1. It will be
better to extract the same.
"യയയോഗതതീരുമയോനന: പരയോതതികയോർ ടവർ നതിർമയോണതതിനന
എതതിരലല്ലെനന, എനയോൽ ഭയോവതിയതിൽ പല
ആയരയോഗഗ്യപ്രശ്നങ്ങളന ഉണയോകുലമനതതിനയോലന പരയോതതിലപ്പെട
സയോഹചരഗ്യതതിൽ പരയോതതികയോരുലട നഗ്യയോയവയോദങ്ങൾ
ഓയരയോനന കമതിറതി പരതിയശയോധതിച. വതിശദമയോയ
യറേഡതിയയഷൻ പരതിയശയോധന നടതതിയതതിനുയശഷമയോണന
ഓയരയോ യകസതിലന ടവർ നതിർമയോണതതിനയോയതി അനുവയോദന
നൽകുനലതനന, യടന ലസൽ പ്രതതിനതിധതി യയയോഗലത
അറേതിയതിച. ലസക്രടറേതിയതിൽ നതിനന ലപർമതിറന ലഭഗ്യമയോയ
സയോഹചരഗ്യതതിൽ ജനങ്ങളലട ആശങ്കകന
അടതിസയോനമതിലല്ലെനന യബയോധഗ്യലപ്പെടതതിനയോലന ജനങ്ങളലട
ആശങ്ക അകറ്റുനതതിനയോയതി യബയോധവൽകരണന
യയയോഗതതിൽ നൽകതി. യപയോലതീസന സനരക്ഷണയതയോടുകൂടതി
ടവർ നതിർമയോണന പൂർതതിയയോക്കുനതതിനന തതീരുമയോനമയോയതി."
3. The grievance of the petitioners is that
the petitioners were not given sufficient
opportunity of hearing before passing such an
order. They were not able to submit their
grievance properly. The learned counsel for the
petitioners submitted that Ext.P3 is the
representation submitted by the petitioners
before the 1st respondent.
4. Heard the learned counsel for the
WP(C) NO.15570/2020
petitioners, the learned Standing counsel for
the 5th respondent, the learned Standing counsel
for the Municipality and the learned Government
Pleader for respondents 1, 2, 3 and 6 also.
5. The learned counsel for the petitioners
reiterated his contentions in the writ petition.
The learned Standing counsel who appeared for
the 5th respondent submitted that the case of the
petitioners that they were not heard is not
correct. The learned counsel takes me through
the 1st page of Ext.P1 in which serial No.17 is
the 2nd petitioner. The learned counsel also
submitted that a detailed counter affidavit is
filed by the 5th respondent in which all the
relevant orders obtained by the 5th respondent
from the statutory authorities for the
construction of the tower are produced. The
apprehension of the petitioners that there will
be radiation is absolutely unwarranted in the
light of the documents produced in the counter
affidavit. The learned counsel submitted that
WP(C) NO.15570/2020
the writ petition was filed on 29.07.2020. There
is no interim order in this writ petition. Even
then, there is physical obstruction from the
petitioners for completing the construction.
The learned counsel for the petitioners strongly
opposed the same and the counsel submitted that
there is no such obstruction. The learned
counsel for the petitioner also submitted that
this is the third tower which is going to be
constructed in this area and the distance from
existing tower to the proposed tower is only
about 25 meters. The learned Government Pleader
supported Ext.P1 proceedings of the 1st
respondent.
6. After hearing both sides, I see no
reason to interfere with the order passed by the
1st respondent in Ext.P1 proceedings. But the
grievance of the petitioners is that their
contentions were not properly considered by the
1st respondent. Even in Ext.P1, it is stated
that the 1st respondent tried to make an
WP(C) NO.15570/2020
awareness to the objectors about the
apprehension of radiation. But there is
apprehension even now. The petitioners narrated
their grievances in Ext.P3 representation. I
think it will be proper to direct the 1 st
respondent to consider Ext.P3 representation
also to rule out the apprehension raised by the
petitioners and that also, after giving an
opportunity of hearing to them. I make it clear
that I have not considered the matter on merit
and the 1st respondent is free to decide the
matter in accordance to law. I make it clear
that I am not interfering with Ext.P1
proceedings already issued by the 1st respondent.
All the contentions of the petitioners and the
5th respondent are left open.
Therefore, this writ petition is disposed in
the following manner:
(i) The 1st respondent is directed to
consider Ext.P3 representation of the
petitioners after giving an opportunity of
WP(C) NO.15570/2020
hearing to the petitioners and the 5 th
respondent.
(ii) The 1st respondent will pass final
orders in Ext.P3 as expeditiously as possible,
at any rate, within three weeks from the date of
receipt of a copy of this judgment.
(iii) The 1st respondent can conduct the
hearing either virtually or physically.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
DM
WP(C) NO.15570/2020
APPENDIX OF WP(C) 15570/2020
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF FILE
NO.DCTSR/7318/-C2 (C2-10121/19) DATED
20.12.2019 OF DISTRICT TELECOM
COMMITTEE, THRISSUR.
EXHIBIT P2 TRUE COPY OF BUILDING PERMIT DATED
6.10.2018 ISSUED TO 5TH RESPONDENT
COMPANY FROM GURUVAYOOR MUNICIPALITY
FOR ERECTION OF MOBILE TOWER.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED
24.7.2020 SUBMITTED BY THE PETITIONERS
AND OTHERS BEFORE THE 1ST
RESPONDENT/DISTRICT COLLECTOR,
THRISSUR SEEKING PROPER HEARING ON
THEIR COMPLAINTS AND INSPECTION OF
AVAILABILITY OF ALTERNATE LOCATION FOR
THE MOBILE TOWER.
RESPONDENTS EXHIBITS :
EXHIBIT R5(A) TRUE COPY OF THE COMPLAINT DATED
22.07.2020.
EXHIBIT R5(B) A TRUE COPY OF THE GOVERNMENT ORDER
NO.G.O.(MS)NO.25/2014/ITD DATED 02-08-
2014.
EXHIBIT R5(C) A TRUE COPY OF THE GOVERNMENT ORDER
NO.G.O.(MS)NO.31/2014/ITD DATED 05-11-
2014.
EXHIBIT R5(D) A TRUE COPY OF THE EMF CERTIFICATE
DATED 31.08.2018.
EXHIBIT R5(E) A TRUE COPY OF THE STABILITY
CERTIFICATE DATED 14.09.2018.
EXHIBIT R5(F) A TRUE COPY OF ORDER NO.DOT/KRL/6-
WP(C) NO.15570/2020
14/DM-CORR/2019-20/DATED 24-03-2020.
EXHIBIT R5(G) A TRUE COPY OF ORDER NO.AS-25/1/2019-
OFFICE OF DIR(AS-V) DATED 21-03-2020.
EXHIBIT R5(H) A TRUE COPY OF THE JUDGMENT DATED
22.10.2020 IN WP(C) 16601 OF 2020 OF
THIS HON'BLE COURT.
//TRUE COPY//
PA TO JUDGE
