Kerala High Court
V.J. John vs The State Of Kerala on 28 January, 2022
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.
(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.
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
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
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).
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
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
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
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.
