Kerala High Court
Church Nagar Residents ... vs M/S. Reliance Jio Infocomm Ltd on 10 May, 2022
WP(C) NO. 30295 OF 2016 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 10TH DAY OF MAY 2022 / 20TH VAISAKHA, 1944
WP(C) NO. 30295 OF 2016
PETITIONERS:
1 CHURCH NAGAR RESIDENTS' ASSOCIATION
REG.NO.ER 813/02,
CN 133, 1ST STREET,
ANGAMALY-683 572,
ERNAKULAM DISTRICT,
REPRESENTED BY ITS PRESIDENT
K.M.VARGHESE, S/O.K.I.MATHAI,
RESIDING AT CN 87 F,
CHURCH NAGAR,
ANGAMALY-683 572.
2 K.M.VARGHESE
S/O.K.I.MATHAI,
PRESIDENT,
CHURCH NAGAR RESIDENTS' ASSOCIATION,
REG.NO.ER 813/02,
CN 133, 1ST STREET,
ANGAMALY-683 572,
RESIDING AT CN 87 F,
CHURCH NAGAR,
ANGAMALY-683 572.
BY ADVS.
SRI.N.N.SUGUNAPALAN (SR.)
SRI.S.SUJIN
RESPONDENTS:
1 M/S. RELIANCE JIO INFOCOMM LTD.
CHANDRIKA CHAMBERS, SA ROAD, VYTILA, KOCHI-682019,
REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MR.VINOD
GIYAL, THE STATE HEAD, M/S.RELIANCE JIO INFORCOMM
LTD., KERALA CIRCLE.
2 THE SECRETARY
ANGAMALY MUNICIPALITY,
MUNICIPAL OFFICE, ANGAMALY,
PIN-683 572.
WP(C) NO. 30295 OF 2016 2
3 THE ANGAMALY MUNICIPALITY
REPRESENTED BY ITS SECRETARY,
MUNICIPAL OFFICE,
ANGAMALY, PIN-683572.
BY ADVS.
SRI.P.BENNY THOMAS
SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY
SRI ANIL K.MUHAMED
SRI.M.GOPIKRISHNAN NAMBIAR
SRI.P.GOPINATH
SRI.K.JOHN MATHAI
SRI.JOSON MANAVALAN
SRI.KURYAN THOMAS
SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY
SRI. E.K.NANDAKUMARA MENON (SR.), SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28.03.2022, THE COURT ON 10.05.2022 DELIVERED THE
FOLLOWING:
WP(C) NO. 30295 OF 2016 3
T.R. RAVI, J.
--------------------------------------------
W. P. (C). No. 30295 of 2016
--------------------------------------------
Dated this the 10th day of May, 2022
JUDGMENT
The writ petition has been filed by a Residents' Association,
challenging the order of the 2nd and 3rd respondents granting licence
to the 1st respondent to erect and operate a telecommunication
tower. Initially, the 1st respondent had applied for a permit in 2014,
which was not considered by the Municipality within the statutory
period. The 1st respondent started the construction of the tower
based on the provision regarding deemed licence. The 1 st
respondent approached the Tribunal for Local Self Government
Institutions (hereinafter referred to as the Tribunal) and the Tribunal
directed the Municipality to issue the licence. The petitioners
challenged the order of the Tribunal before this Court in W.P.
(C)No.29002 of 2014 which was allowed by this Court by judgment
Ext.P1 dated 03.07.2015. This Court held that since the application
submitted by the 1st respondent was not in order, the deeming
provision cannot be applied. This Court however observed that the
1st respondent is not prevented from approaching the appropriate
authority concerned with a fresh application for licence. Since the
construction of the tower was already over, the 1 st respondent
preferred a fresh application requesting for regularisation of the
construction. The application was rejected by the Municipality by
order dated 17.03.2016 against which the 1 st respondent preferred
an appeal before the Tribunal. The Tribunal dismissed the appeal on
the ground of delay and the order of the Tribunal was challenged
before this Court in W.P.(C)No.17072 of 2016. The Municipality had
in the meanwhile directed the owner of the building on which the
tower had been constructed, to demolish the building as the same
was unauthorized. The applications were filed for regularisation of
the construction as well and for permission to operate the tower.
W.P.(C)No.17072 of 2016 was withdrawn since applications for
regularisation of the constructions were pending. The Municipality
thereafter considered the application for regularisation and passed
Ext.P2 order regularising the construction. The writ petition has
been filed by the petitioner challenging Ext.P2 order.
2. The 1st respondent has filed a counter-affidavit specifically
answering the issues regarding the apprehended effect of radiation
that may be caused by a mobile tower. Thereafter I.A.No. 1 of 2021
has been filed producing Exts.R1(a) to R1(e) and I.A.No.1 of 2022
has been filed producing Exts.R1(f) to R1(h).
3. Heard Sri.N.N.Sugunapalan, learned Senior Advocate
instructed by Sri.S.Sujin on behalf of the petitioners,
Sri.E.K..Nandakumar, learned Senior Advocate instructed by
Sri.Kurian Thomas on behalf of the 1st respondent and
Sri.P.P.Thajudeen, learned Standing Counsel for respondents 2 & 3.
4. The challenge is against Ext.P2 order whereby the
respondents 2 and 3 have regularised the construction of the building
as well as the mobile tower over the building. It is seen from Ext.P2
that the decision has been taken after obtaining a report from the
Municipal Engineer. The report confirms that the constructions
comply with Rule 131 of the Kerala Municipality Building Rules, 1999.
The petitioner has not challenged the report of the Municipal
Engineer. There is also no specific violation of the Building Rules
pointed out in the writ petition. All that is stated is an earlier writ
petition filed against the order of the Tribunal as W.P.(C). No.17072
of 2016 which was withdrawn by the first respondent and hence the
earlier order of the Tribunal has become final. Admittedly, the
Tribunal had rejected the appeal on the ground of delay and the said
order does not preclude reconsideration of the application for
regularisation. The main challenge of the petitioner, which is raised
even though in a veiled manner, is against the very installation of the
mobile tower on the ground that it would cause serious health
hazards. The above issue has already been set at rest by the
judgment of a Division Bench of this Court in Reliance Infocom
Ltd. v. Chemanchery Grama Panchayat & Ors. reported in
[2006 (4) KLT 695] and several other subsequent decisions. The
pleadings in the case do not disclose whether the petitioner had
approached the District Telecom Committee challenging the
permission granted for the construction of the mobile tower. In the
absence of a specific challenge to the grant of permit for construction
of the mobile tower before the appropriate authority and in the
absence of any specific challenge on that issue, this Court is not
required to consider the same. Apart from that, even if such a
challenge is entertained, the same cannot be sustained in the light of
the judgment in Reliance Infocom (supra) and other subsequent
decisions. No grounds have been made out warranting interference
with Ext.P2 order issued by the respondents 2 and 3. The writ
petition fails and is dismissed.
Sd/-
T.R. RAVI
JUDGE
Pn
APPENDIX OF WP(C) 30295/2016
PETITIONERS' EXHIBITS
EXHIBIT P1 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE
COURT IN WPC.NO.29002/2014 DATED 3-7-2015.
EXHIBIT P2 : TRUE COPY OF THE SAID ORDER OF THE
MUNICIPALITY ISSUED AS PER PROCEEDINGS OF
THE SECRETARY OF THE MUNICIPALITY DATED
10-8-2016.
EXHIBIT P3 : TRUE COPY OF THE INTERIM ORDER DATED 21-3-
2016 IN WPC.NO.27023/16 REFERRED TO IN
EXT.P2 PROCEEDINGS OF THE PANCHAYATH.
EXHIBIT P4: TRUE COPY OF THE RESOLUTION PASSED BY THE
MUNICIPALTIY ON 08.05.2015
RESPONDENTS' EXHIBITS
EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 21.03.2020
ISSUED BY THE DEPARTMENT OF
TELECOMMUNICATIONS, GOVT. OF INDIA
INFORMED ALL THE CHIEF SECRETARIES OF ALL
THE STATES AND UNION TERRITORIES.
EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 24.03.2020
ISSUED BY THE CHAIRMAN KERALA STATE
TELECOM DISASTER COORDINATION COMMITTEE &
DEPUTY DIRECTOR GENERAL - TECHNOLOGY
EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 16.11.2020
ISSUED BY THE UNDER SECRETARY TO THE
GOVERNMENT, ELECTRONICS AND IT DEPARTMENT,
GOVT. OF KERALA TO THE CEOS OF ALL TELECOM
COMPANIES
EXHIBIT R1(D) TRUE COPY OF THE COMMUNICATION DATED
14.06.2021 ISSUED FROM THE OFFICE OF THE
DEPUTY DIRECTOR OF EDUCTION, ERNAKULAM
DATED 14.06.2021 BEARING NO.C3/6005/2020
EXHIBIT R1(E) TRUE COPY OF THE MINUTES OF THE MEETING
DATED 11.06.2021 CONVENED BY THE DEPUTY
COLLECTOR, ERNAKULAM
Exhibit R1(F) TRUE COPY OF THE ORDER DATED 28.3.2016 IN
I.A. NO.482 OF 2016 IN APPEAL NO.262 OF
2016 ISSUED BY THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS,
THIRUVANANTHAPURAM.
Exhibit R1(G) TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD
RESPONDENT CORPORATION DATED 22.8.2016
Exhibit R1(H) TRUE COPY OF THE INTERNET PAYMENT RECEIPT
OF THE PAYMENT OF PROPERTY TAX BY THE
OWNER SH.KT PETER FOR THE YEAR 2021-2022
DATED 18.10.2021
