Kerala High Court
Nazeeb B vs State Of Kerala on 21 December, 2023
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
WP(C) NO. 25604 OF 2023
PETITIONER:
NAZEEB B.
AGED 32 YEARS
S/O BADARUDEEN,
MUJEEB MANZIL, PAZHAVILA,
PANGODU.P.O PANGODE VILLAGE,
NEDUMANGADU TALUK,
THIRUVANANTHAPURAM, PIN - 695609
BY ADVS.
R.HARIKRISHNAN (H-308)
G.SUDHEER
SMRITHI S.S.
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SECRETARY TO GOVERNMENT,
LSG DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM DISTRICT, PIN - 695001
2 THE DISTRICT COLLECTOR
THIRUVANANTHAPURAM DISTRICT COLLECTORATE,
KUDAPPANAKUNNU.P.O.
THIRUVANANTHAPURAM, PIN - 695043
3 TELECOM REGULATORY AUTHORITY OF INDIA
REPRESENTED BY ITS CHAIRMAN & MANAGER,
MAHANAGAR, DURSANCHAR BHAVAN,
JAWAHARLAL NEHRU MARG,
NEW DELHI, PIN - 110001
4 THE DISTRICT TELECOM COMMITTEE
REPRESENTED BY ITS CHAIRMAN,
DISTRICT COLLECTOR, COLLECTORATE,
W.P.(C).No.25604 of 2023
-:2:-
THIRUVANANTHAPURAM DISTRICT
THIRUVANANTHAPURAM, PIN - 695043
5 PANGODU GRAMA PANCHAYAT
REPRESENTED BY IT'S SECRETRY,
PANCHAYATH OFFICE, PANGODU.P.O, PIN - 695609
6 INDUS TOWERS LTD.
VANKARATH TOWERS, 8TH FLOOR,N.H. BYPASS,
PALARIVATTOM, ERNAKULAM,
REPRESENTED BY ITS CIRCLE LEGAL HEAD (KERALA),
MR. RAJKUMAR PAVOTHIL, PIN - 682024
7 SHYLA
AGED 54 YEARS
W/O MOHANAN, KOCHUVEEDU, P
AZHAVILA PANGODU.P.O.,
THIRUVANANTHAPURAM, PIN - 695609
BY ADVS.
JAISHANKAR V.NAIR
PHILIP T.VARGHESE
ACHU SUBHA ABRAHAM(K/001758/1999)
V.T.LITHA(K/278/2006)
VARSHA JEEJO(K/1505/2021)
OTHER PRESENT:
SRI.C.R.SIVAKUMAR, STANDING COUNSEL
K.AMMINIKUTTY, SENIOR GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.25604 of 2023
-:3:-
BECHU KURIAN THOMAS, J.
-----------------------------------------
W.P.(C).No.25604 of 2023
-------------------------------------------
Dated this the 21st day of December, 2023
JUDGMENT
Petitioner's challenges the erection of a mobile tower in Ward
No. XVIII of the 5th respondent Panchayat.
2. According to the petitioner, 6th respondent is installing a mobile
tower within three metres of his house and that, the general public has
submitted a mass petition against such installation. Based on the said
complaint, the Panchayat had issued a stop memo which has been
challenged by the 6th respondent before the Tribunal for Local Self
Government Institutions, and an interim order of stay against the stop
memo was issued on 30.05.2023, pursuant to which construction is being
carried on. It is at this juncture that the writ petition was filed.
3. Petitioner contend that the complaint filed by the general public
produced as Ext.P1 has not been considered by the District Telecom
Committee, and therefore, in the absence of any decision having been
communicated to the petitioner, the 6th respondent is not entitled to
continue the construction of the mobile tower. It is also pointed out that
the Panchayat had issued a stop memo taking note of the complaints
raised by the petitioner and other local residents and therefore, 6 th
respondent cannot continue construction of the mobile tower disregarding
the apprehension of petitioner and other local residents.
4. A counter affidavit has been filed by the 3rd respondent stating
that they have no role in the matter and the issue of installation, removal
of mobile towers or its health hazards are beyond the scope of its
functions.
5. In the counter affidavit filed by the 6 th respondent it is pointed out
that the District Telecom Committee had, on 12.07.2023 as per R6(c)
considered the issue and stated that in view of the order of stay issued by
the order of the Tribunal, the 6 th respondent has the right to commence
construction of the mobile tower. It is also stated that the apprehension of
health hazards due to mobile telecommunication is baseless, since in
various decisions the said issue had been considered. Reference was
made to the decisions in Reliance Infocom Limited vs. Chemenchery
Grama Panchayat [2006 (4) KLT 695] and in Essar Telecommunication
Infrastructure Private Limited vs. State of Kerala [2011 (2) KLT 516].
6. I have heard Sri. R. Harikrishnan, the learned counsel for the
petitioner, Sri. Jaishankar V Nair, the learned counsel for the 3 rd
respondent, Sri. C. R. Sivakumar, the learned Standing Counsel for the
Pangode Grama Panchayat and Sri. Philip T Varghese, the learned Counsel
for the 6th respondent as well as Smt. K.Amminikutty, the learned Senior
Government Pleader.
7. The issue whether telecommunication tower cause health hazard
is no longer res integra. In several decisions of this Court as well as the
various studies conducted, it has been identified that, there is no evidence
of any health hazard due to the radiation emitted from the
telecommunication towers. This Court has already held in the decisions in
Reliance Infocom Ltd.'s case (supra) and Essar's case (supra) that
there are no health hazards in installing mobile towers. Therefore, the
apprehension by the petitioner or the local residents is without any basis.
8. On identifying that there are no serious health hazards due to a
mobile telecommunication tower, the building Rules also provide for an
intimation done to be given, before commencing construction of the tower.
The intention of the delegated legislation is evident that, no regulatory
approval is required from the Local Authority for indulging in such a
construction.
9. In the above circumstance, I find no reason to direct stoppage of
the installation of the mobile tower in Ward No. XVIII of the 5 th respondent
Panchayat.
This writ petition lacks merit and it is dismissed.
Sd/-
BECHU KURIAN THOMAS
JUDGE
Jka/21.12.23.
APPENDIX OF WP(C) 25604/2023
PETITIONER'S EXHIBITS
Exhibit P1 COPY OF THE MASS PETITION DATED 16.05.2023
SUBMITTED BY THE PETITIONER AND OTHER
RESIDENTS BEFORE THE 5TH RESPONDENT.
Exhibit P2 COPY OF THE DECISION OF THE EXECUTIVE
COMMITTEE OF THE 5TH RESPONDENT DATED
18.05.2023.
Exhibit P3 COPY OF THE ORDER BEARING NO.
400224/BAGC03/GPO/2023/2830(1), WHICH IS A
STOP MEMO ISSUED BY THE 5TH RESPONDENT TO
THE 6TH RESPONDENT DATED 18.05.2023.
Exhibit P4 COPY OF NOTICE NO. S.L. 375/2023 DT.
05.2023 ISSUED BY THE 4TH RESPONDENT.
Exhibit P5 COPY OF NOTICE NO. S.L. 375/2023 DT. 6/23
ISSUED BY THE 4TH RESPONDENT.
Exhibit P6 COPY OF THE ORDER DATED 30.05.2023 IN I.A.
NO. 800 OF 2023 IN APPEAL NO. 294 OF 2023
PASSED BY THE TRIBUNAL FOR LOCAL SELF
GOVERNMENT INSTITUTIONS.
RESPONDENT EXHIBITS
Exhibit R5 A A TRUE COPY OF THE ORDER DATED 12/07/2023
ISSUED BY THE 4TH RESPONDENT.
Exhibit R5 B A TRUE COPY OF THE JUDGEMENT IN WP(C) NO.
30943/23 DATED 10/11/2023 BY THIS HON'BLE
COURT.
Exhibit R6 TRUE COPY OF THE ACKNOWLEDGMENT RECEIPT
ISSUED BY THE 5TH RESPONDENT DATED
19.04.2023
Exhibit R6(a) TRUE COPY OF THE RECEIPT OBTAINED FOR
PAYMENT OF THE PRESCRIBED APPLICATION FEE
FROM THE 5TH RESPONDENT DATED 19.04.2023
Exhibit R6(b) TRUE COPY OF THE PROCEEDINGS OF THE 4TH
RESPONDENT DATED 02.06.2023
Exhibit R6(c) TRUE COPY OF THE PROCEEDINGS OF THE 4TH
RESPONDENT DATED 12.07.2023
