ANISH THOMAS Vs. STATE OF KERALA

JUDGEMENT

(1.) The above writ petition is filed challenging Ext.P13 order passed by the 2nd respondent whereby permission was granted to the 7 th respondent to instal a mobile tower in Karumaloor Grama Panchayat.

(2.) Petitioners are residents of ward No.3 of Karumaloor Panchayat. The 7th respondent for the purpose of erecting a mobile telecommunication tower in the property of the 8th respondent, submitted Ext.P2 application for building permit before the 6th respondent. Along with the permit application, the 7th respondent also submitted Ext.P3 stability certificate dtd. 3/9/2021. It is the case of the petitioners that the stability certificate does not mention the requirement of a mobile telecommunication tower foundation. Petitioners submit that the mobile tower is very adjacent to the residential house of the 1st petitioner and an Anganwadi centre. There is a vast height difference between the surface level of the properties of the 1st petitioner and that of the 8th respondent, wherein the mobile tower is proposed to be erected. The 7th respondent is making attempts to erect the mobile tower near to the edges (boundary) of the high-lying property of the 8th respondent and in case of any soil erosion or landslide due to heavy rain, the entire tower itself may collapse and in case of such a mishap, the destruction caused by the same shall be immeasurable. Due to the proximity of residential houses and Anganwadi, the radiation of waves are also to be confined within the permissible limits and hence there is a necessity to ascertain that the cell antenna of the tower does not transmit frequency beyond permissible range. Petitioners have also a case that the construction of the tower is in violation of the provisions of the Kerala Coastal Zone Management Act.

(3.) Petitioners submit that the proposed location of the tower is not a dry land and is muddy and has the presence of saline water, which will accelerate the rusting of the four legs of the tower. On coming to know about the submission of the building permit application by the 7th respondent, petitioners and other neighbouring property owners represented before the local authority, ie. the 5th respondent as well as the 2nd respondent, the District Telecom Committee (DTC) as per Exts.P6 and P7 respectively and the Panchayat committee considered the matter and as per Ext.P8, took a decision to intimate about the complaint raised by the public to the District Collector. When the 7th respondent attempted to lay the foundation for the construction of the tower, the petitioners along with two other residents approached this Court filing W.P.(C) No.25103 of 2021 with a prayer to consider the representation submitted before the District Collector and this Court as per Ext.P9 judgment directed the 2nd respondent, District Telecom Committee, to consider the complaint preferred by the petitioners. Pursuant to the direction issued by this Court, a notice of hearing was issued by the 2nd respondent. The petitioners approached the 2nd respondent through counsel and a hearing note was also submitted. In one of the postings, the service provider was directed to obtain a report of the subsoil investigation. Thereupon Ext.P10 report prepared by the Civil Engineering Department, Government Engineering College, Thrissur was also submitted. The last of such hearing conducted by the 2nd respondent was on 11/2/2022 and the matter was taken for orders. At any point of time throughout the conduct of the hearing on various posting days, none of the District Telecom Committee members were present in the hearing venue. It is the case of the petitioners that the manner in which the hearing is conducted is totally against the concept of a hearing by an expert body. Without considering any of the contentions in a proper manner, the 2nd respondent has issued Ext.P13 order granting permission for the 7th respondent service provider to install the mobile telecommunication tower and also ordered police protection for the construction of the tower. Petitioners submit that the Government has constituted the 2 nd respondent committee as per Ext.P1 order specifically for the purpose of addressing the public grievances in connection with the mobile towers and the members of the committee were also stipulated in Ext.P1. Petitioner submits that this Court in Indus Towers Ltd., Palarivattom and others v. Sub Inspector of Police, Thodupuzha and others reported in 2014 (4) KHC 81 has held that any public who apprehends difficulties faced on account of the installation of mobile towers, as well as the telecom service providers, could approach the said authority for redressing their grievances. Based on this the learned counsel for the petitioners would contend that the District Telecom Committee is given wide powers for redressal of the grievances raised by the petitioners. The grievance raised by the petitioners is that though a committee has been constituted as per Ext.P1 Government order, whether the committee members have concurred to the grant of permission as per Ext.P13 is not discernible from a reading of Ext.P13 order.