Vincent vs The District Collector
2021 Latest Caselaw 4064 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

           THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

    THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                      WP(C).No.41233 OF 2018(D)


PETITIONERS:

      1        VINCENT
               AGED 53 YEARS
               S/O. LOOK, RESIDING AT VINCENT COTTAGE, MEEYANNUR
               P.O, KOLLAM-691 537

      2        SAJI SREEDHARAN
               S/O. SREEDHARAN, PUNNAVILA HOUSE, MEEYANNUR P.O-691
               537

      3        SASIDHARAN PILLAI
               S/O. GOPALA KURUP, S.S. VILLA, MEEYANNUR P.O, KOLLAM-
               691 537

      4        REV. FR. KOSHY GEORGE MUTHALALY
               S/O. GEORGE MUTHALALY, MANAGER, VARINJAVILA ST.
               MARY'S CENTRAL SCHOOL, MEEYANNUR P.O, KOLLAM-691 537

               BY ADVS.
               SRI.GEORGE CHERIAN (SR.)
               SMT.K.S.SANTHI
               SMT.LATHA SUSAN CHERIAN

RESPONDENTS:

      1        THE DISTRICT COLLECTOR
               COLLECTORATE, KOLLAM

      2        THE DISTRICT TELECOM COMMITTEE
               COLLECTORATE, KOLLAM.

      3        SECRETARY
               NEDUMPANA GRAMA PANCHAYATH, NEDUMPANA P.O, KOLLAM-691
               576

      4        NEDUMPANA GRAMA PANCHAYATH
               NEDUMPANA P.O, KOLLAM-691 576
               REPRESENTED BY ITS SECRETARY.

      5        INDUS TOWER LIMITED
               VANKARATH TOWERS, N.H BYE PASS, PALARIVATTOM, KOCHI -
               24, REPRESENTED BY ITS MANAGING DIRECTOR
 WP(C).No.41233 OF 2018(D)

                                     2



               R3   & R4 BY   ADV. SRI.M.R.SASITH
               R5   BY ADV.   P.SATHISAN
               R5   BY ADV.   SMT.ROHINI S KUMAR
               R5   BY ADV.   SRI.ABHAY FERDINAND
               R1   & R2 BY   ADV.SRI.K.J.MANURAJ, GP

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-
02-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C).No.41233 OF 2018(D)

                                          3




                         W.P.(C) No.41233 of 2018
                      ------------------------------------------


                                  JUDGMENT

Petitioners are residents of Ward No.9 of Nedumpana Grama

Panchayat in Kollam District. The fifth respondent proposed to

establish a mobile tower in the neighborhood of the residences of the

petitioners. The petitioners raised objections against the establishment

of the mobile tower and lodged complaints before the District Telecom

Committee. The District Telecom Committee disposed of the

complaints directing that if the fifth respondent secures a building

permit, they shall be permitted to establish the mobile tower. The fifth

respondent thereupon obtained Ext.P6 building permit for establishing

the mobile tower. Complaints have been lodged even thereafter by

the people in the locality before the District Collector. In one of those

complaints, the District Collector passed Ext.P11 order directing the

Panchayat to take appropriate action. The writ petition is filed

thereafter seeking orders for implementation of Ext.P11 order.

2. At the time of admission, this court, byway of an

interim order, permitted the fifth respondent to erect the mobile tower.

They were however restrained from operating the telecommunication WP(C).No.41233 OF 2018(D)

tower.

3. Heard the learned Senior Counsel for the petitioners as

also the learned counsel for the fifth respondent.

4. The only point canvased by the learned Senior Counsel

for the petitioners at the time of hearing, was that permission of the

Panchayat under Section 233 of the Kerala Panchayat Raj Act, 1994

(the Act) should have been obtained by the fifth respondent before the

erection of the mobile tower as the mobile tower is to be construed as

a work place where electric power is employed. Insofar as the

permission of the Panchayat has not been obtained by the fifth

respondent under Section 233 of the Act, according to the learned

Senior Counsel, the erection of the mobile tower is illegal. The learned

Senior Counsel has placed reliance on paragraph 41 of the judgment

of this court in Essar Telecom Infrastructure (P) Ltd. v. State of

Kerala, 2011 (2) KHC 171.

5. Paragraph 41 of the judgment in Essar Telecom

Infrastructure reads thus:

"41. Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per S.232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can use any area for such purposes as are notified, without licence. This Court has taken the view that the word "offensive or dangerous to human life or health or property" are not to be construed in their ordinary sense and it need be only activities which are so considered by the Authority (See Shaji v. State of Kerala (2004 (1) KLT 118). It is true WP(C).No.41233 OF 2018(D)

that a mobile tower is not notified under S.232 as such. But, we should have regard to the words used in S.233 wherein the only indispensable requirements are the construction or establishment of any factory, workshop or workplace in which, no doubt, it must be proposed to employ steam power, water power or other mechanical power or electrical power. Nothing prevented the Legislature also indicating in S.233 that it must be a factory, workshop or workplace to which S.232 is applicable. The conspicuous omission to refer to the same and the width of the language employed in S.233 leads us to hold that any factory, workshop or workplace, be it included in S.232 or not, in which it is proposed to employ the steam power, water power, mechanical power or electrical power will attract S.233 and permission must be sought and granted before construction or establishment."

It is seen that after having held that any factory, workshop or

workplace, be it included in Section 232 or not, where steam power,

water power, mechanical power or electrical power is proposed to be

employed, will attract Section 233, the court proceeded to consider

whether a mobile tower could be regarded as a work place and held

that a mobile tower cannot be regarded as a work place. Paragraphs

67 and 68 of the said judgment read thus:

"67. Going by the concept of worker, either he must be employed in a manufacturing process or in cleaning any machinery or premises used for a manufacturing process or any work which is incidental or connected with the manufacturing process. Having regard to the definition of the word 'manufacturing process', we are of the view that the activity which is carried out in a mobile tower cannot be treated as a manufacturing process. At any rate, we would think that drawing light from the definition of the word 'workplace' in the Travancore - Cochin Public Health Act, that the activity which is carried on in a mobile tower cannot be treated as an industrial, manufacturing or a trade process. The fact that the mobile tower operates or works without any employee or workmen having to attend to it with any measure of regularity fortifies our view that it cannot WP(C).No.41233 OF 2018(D)

be treated as a workplace, as intended by the Legislature. We would think that not only must systematic work be done with the aid of power as stated therein, but there must be at least a few employees who attend to the work with some measure of regularity. This feature is certainly not present in the case of a mobile tower and the presence of an occasional worker, essentially for doing maintenance once in a while, cannot render the place a workplace.

68. We do not think that it would be reasonable in the circumstances to consider it as a workplace on the principle that the Court must do so on the basis that the enactment is an ongoing statute. In this regard, the said principle must be applied with great care, as any interpretation in this direction must also be adopted with due regard to the consequences which flow from such interpretation being placed."

In the light of the decision aforesaid, the contention raised

by the learned Senior Counsel for the petitioners is unsustainable and

the writ petition is, accordingly, dismissed.

Sd/-

                                                    P.B.SURESH KUMAR

Mn                                                          JUDGE
 WP(C).No.41233 OF 2018(D)





                                APPENDIX
PETITIONER'S EXHIBITS:

EXHIBIT P1                  TRUE COPY OF THE MINUTES OF THE MEETING OF
                            SECOND RESPONDENT DATED 8.2.18

EXHIBIT P2                  TRUE COPY OF THE DECISION DATED 5.3.18 OF
                            PANCHAYATH COMMITTEE.

EXHIBIT P3                  TRUE COPY OF THE LETTER DATED 8.3.18 BY 3RD
                            RESPONDENT.

EXHIBIT P4                  TRUE COPY OF THE APPLICATION FOR PERMIT
                            DATED 7.11.17

EXHIBIT P5                  TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.
                            9585/18 DATED 9.4.18

EXHIBIT P6                  TRUE COPY OF THE BUILDING PERMIT ISSUED BY
                            THE SECRETARY.

EXHIBIT P7                  TRUE COPY OF THE LETTER DATED 28.11.18
                            ISSUED BY 3RD RESPONDENT TO THE VICE
                            PRESIDENT OF THE PANCHAYATH.

EXHIBIT P8                  TRUE COPY OF THE REPRESENTATION DATED
                            10.8.18

EXHIBIT P9                  TRUE COPY OF THE COMPLAINT DATED 21.11.18
                            BEFORE THE PANCHAYATH SECRETARY

EXHIBIT P10                 TRUE COPY OF THE LETTER DATED 23.11.18

EXHIBIT P11                 TRUE COPY OF THE REPRESENTATION UNDER THE

LEADER OF MEMBER OF PANCHAYATH TO DISTRICT COLLECTOR, KOLLAM DATED 4.12.18

EXHIBIT P12 TRUE COPY OF THE NOTICE DATED 18.12.18 ISSUED TO THE 5TH RESPONDENT BY THE 3RD RESPONDENT

EXHIBIT P13 TRUE COPY OF THE PETITION FILED BY THE PETITIONER TO THE PANCHAYATH DATED 20.12.18

EXHIBIT P14 TRUE COPY OF THE APPLICATION FOR PERMIT SUBMITTED BY THE 5TH RESPONDENT

RESPONDENTS' EXHIBITS:

WP(C).No.41233 OF 2018(D)

EXHIBIT R5 A TRUE COPY OF THE MINUTES OF MEETING CHAIRED BY 2ND RESPONDENT DATED 24.10.2018 (M-15- 51062/14)

EXHIBIT R5 B TRUE COPY OF THE OBJECTION FILED BY THE 5TH RESPONDENT DATED 19.12.2018

EXHIBIT R5 C TRUE COPY OF THE LETTER NUMBERED A2.4621/2018 DATED 21.12.2018 ISSUED BY THE 3RD RESPONDENT

EXHIBIT R5 D TRUE COPY OF THE INTERIM ORDER IN WP(C) NO-

41233/2018 DATED 18.12.2018

//TRUE COPY// PA TO JUDGE