SUDEVAN Vs. MUNDUR GRAMA PANCHAYAT

JUDGEMENT

(1.) The petitioners, permanent residents of Mundur Grama Panchayat, have filed this Writ Petition challenging Ext. P6 order dated 23.3.2013 of the Tribunal for Local Self Government Institutions in Appeal No. 814 of 2012. The petitioners were not parties to the said proceedings. The said appeal was filed by the 2nd respondent herein challenging a resolution adopted by the Grama Panchayat on 18.9.2012, which is Ext. P4 and a decision taken by the Secretary of the Panchayat on the same day revoking the building permit granted to the second respondent, which is Ext. P5. The short facts in the case are summarised below. The second respondent is a Company engaged in the installation of Mobile Telecommunication Towers for the providers of Cell Phone Facility. Exts. P1 and P2 permits had been issued to the petitioners to erect two mobile towers. Pursuant to agitations launched by the local residents, the Panchayat appears to have appointed a Sub Committee to enquire into and find out whether the installation of the mobile towers would cause health hazards to the residents of the locality. As per Ext. P3 report, the Sub Committee appears to have recommended against permitting erection of the mobile towers. Pursuant thereto, Ext. P4 resolution was adopted by the Panchayat Committee on 18.9.2012. On the same day, the Secretary of the Panchayat has issued Ext. P5 proceedings revoking the Building Permits issued to the petitioner. The Tribunal for Local Self Government Institutions, Thiruvananthapuram (hereinafter referred to as 'the Tribunal' for short), considered the appeal and by Ext. P6 order, has set aside Ext. P5 order of the Secretary. The 1st respondent Panchayat has not challenged the said order. Therefore, the order has become final as far as the 1st respondent is concerned. The present challenge is, as already noticed, at the instance of two local residents.

(2.) According to Advocate P.B. Sahasranaman, the learned counsel for the petitioners, the Tribunal has adopted a technical approach in setting aside the order Ext. P5. According to the learned counsel, though it is true that the Panchayat has passed a resolution in the matter on the basis of the report submitted by the Sub Committee that was appointed to study the entire issue, the Secretary has taken an independent decision to revoke the permit. Such a power is available to the Secretary under R. 18 of the Kerala Panchayat Building Rules, 2011 (hereinafter referred to as 'the Building Rules' for short). The order has been passed by the Secretary for the only reason that, the construction if carried on would be a threat to the life or property of the local residents. Since the Secretary felt that there was a likelihood of threat to the local residents, the Secretary was perfectly within his powers to issue the said order. However, without taking note of the above crucial aspect, according to the learned counsel, the Tribunal has set aside the order. The learned counsel also places reliance on Ext. P8, which is an Office Memorandum issued by the Government of India, Ministry of Environment and Forests (Wild Life Division), with an advisory appended thereto, which seeks to regulate the operation of mobile towers so as to minimise their impact on Wildlife, including birds and bees. Ext. P8 is pressed into service to drive home the contention of the learned counsel for the petitioners that the Government of India has recognised the deleterious effects of mobile towers on the health of human beings. If birds and bees are likely to be affected, according to the learned counsel, human beings are also likely to be affected. Reliance is placed on the decision of the Honourable Supreme Court reported in M.C. Mehta v. Union of India, 2004 AIR(SC) 4016 , to contend that where there is a doubt regarding the likelihood of health hazards, a decision has to be taken favouring the cause of the environment. According to the learned counsel, the Tribunal ought to have permitted the petitioners to produce sufficient documents and materials to justify their contention that mobile towers are hazardous to health.

(3.) A statement has been filed on behalf of the 1st respondent Panchayat. Advocate U. Balagangadharan appears for the Panchayat. According to the learned counsel, though Exts. P3 and P4 have preceded the issue of Ext. P5, the decision in Ext. P5 was taken independently by the Secretary on the basis of the said materials. Therefore, according to the learned counsel, the Tribunal went wrong in setting aside Ext. P5.