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2023 DIGILAW 355 (KER)

Anish Thomas S/o Thomas M. A. v. State of Kerala

2023-04-11

VIJU ABRAHAM

body2023
JUDGMENT : VIJU ABRAHAM, J. 1. The above writ petition is filed challenging Ext.P13 order passed by the 2nd respondent whereby permission was granted to the 7th respondent to install 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 dated 03.09.2021. 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. 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, i.e. 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 11.02.2022 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. 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 2nd 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 vs. Sub Inspector of Police, Thodupuzha and Others, 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. 4. The 7th respondent has filed a detailed counter affidavit mainly contending that the 6th respondent has already issued Ext.R7(a) building permit in compliance with the provisions in the Kerala Panchayat Building Rules, 2019. The learned counsel relying on Ext.R7(b) judgment submits that if any person is aggrieved by the construction of a telecom tower, shall approach the appropriate authority specified as per law namely the Tribunal for the Local Self Government Institutions and assail the building permit granted. It is the further case of the 7th respondent that they have already obtained Ext.R7(d) EMF certificate for radiation compliance and based on that it is contended by the counsel for the 7th respondent that their mobile tower does satisfy the norms regarding radiation. It is also contended that a duly constituted committee has heard the matter and after hearing, Ext.P13 order has been issued. It is also contended that the District Telecom Committee functions as an advisory body and therefore the building permit granted cannot be assailed before the 2nd respondent. The telecom service is an essential service as per the Essential Service Management Act, 2005. It is also contended that the District Telecom Committee functions as an advisory body and therefore the building permit granted cannot be assailed before the 2nd respondent. The telecom service is an essential service as per the Essential Service Management Act, 2005. It is further submitted that the petitioner after participating in the proceedings cannot challenge the very same hearing and it is legally unsustainable and therefore the petitioner cannot challenge Ext.P13. The stand taken by the official respondents in the counter affidavit is that only after affording a reasonable opportunity of being heard and after considering the petition in four sittings, that Ext.P13 decision was taken. Dr. Mythili, Assistant Professor, CUSAT, is the eminent public person nominated to the 2nd respondent committee by the 3rd respondent. All the issues raised by the petitioners have been addressed. Therefore, the 7th respondent prayed for the dismissal of the writ petition. 5. A counter affidavit has been filed by the 3rd respondent District Collector wherein it is contended that the District Telecom Committee constituted as per GO (Ms) No. 32/2014/ITD dated 15.11.2014 of the Information Technology (B) Department has considered the complaints of the petitioners in many of its sittings and submissions and contentions raised by the petitioners have been duly considered and it was on the request of the petitioners, the District Telecom Committee has decided to conduct a subsoil investigation as is evident from Ext.R3(a) minutes of the meeting. It is also contended that the 2nd respondent committee has considered the grievance of the petitioners in five sittings, i.e. on 09.12.2021, 01.02.2022, 06.04.2022, 29.04.2022 and 04.08.2022 and the District Collector himself heard the petitioners in the DTC meeting dated 06.04.2022. Therefore, the contention of the petitioners that the 2nd respondent has not heard them is factually incorrect. The DTC has considered the complaints of the petitioners multiple times in its various sittings and an order is finally issued as per Ext.P13 after addressing all the contentions of the petitioners. Term Cell carried out all technical/ feasibility checks for the construction of the mobile tower as per the guidelines issued by the Government and the 7th respondent has obtained favourable reports in technical tests such as stability, subsoil investigation, radiation, etc. Term Cell carried out all technical/ feasibility checks for the construction of the mobile tower as per the guidelines issued by the Government and the 7th respondent has obtained favourable reports in technical tests such as stability, subsoil investigation, radiation, etc. The decision to give police protection for the construction of the mobile tower was taken based on the soil investigation report and other reports/certifications required as per the existing guidelines for the construction of mobile towers in Kerala. 6. A reply affidavit has been filed by the petitioners to the counter filed by the 7th respondent wherein it is stated that the main grievance raised by the petitioners is regarding Ext.P3 structural stability certificate obtained by the 7th respondent which is a stereotyped one and it does not speak about the details of soil investigation conducted, etc. Another major grievance raised by the petitioner is regarding the manner in which the hearing has conducted by the DTC, without the presence of expert members. The impugned order was passed in the absence of expert members and the members specified in the order is shown only to mislead the public and so as to make it appear that the committee properly met and considered all the objections. As per Ext.P1 Government order, the 2nd respondent, is not an advisory body, as contended by the 7th respondent. Ext.P13 order is challenged essentially for non-consideration of the issues involved, by the expert committee members, as envisaged in Ext.P1 Government order. 7. Relevant documents were sought for from the 2nd respondent to consider the contention of the petitioners that Ext.P13 order is not as per the decision of the 2nd respondent Committee and the learned Government Pleader handed over copies of relevant documents regarding the same. Admittedly, complaint was raised not only by the petitioners but also by the general public regarding the construction of a mobile tower. Ext.P6 is a complaint filed by 33 residents of the locality before the respondent panchayat whereas Ext.P7 is a complaint preferred by 81 residents of the locality submitted before the 2nd respondent. Ext.P8 is the resolution taken by the respondent panchayat on the basis of the complaint by the local people. Ext.P6 is a complaint filed by 33 residents of the locality before the respondent panchayat whereas Ext.P7 is a complaint preferred by 81 residents of the locality submitted before the 2nd respondent. Ext.P8 is the resolution taken by the respondent panchayat on the basis of the complaint by the local people. A perusal of Ext.P8 also would reveal that the landlord has stated before the Panchayat committee that he is not intending to avoid erection of tower in his property but he is ready to shift the tower, after deliberation with the tower authorities. Thereupon, the Panchayat committee as per Ext.P8 resolved to intimate about the complaint submitted by the local public to the District Collector, 3rd respondent herein, and also to hold a negotiation with the tower authority. A perusal of Exts.P6 and P7 would reveal that various complaints/apprehensions were raised by the general public including that, the tower is being located in a densely populated area, the tower is nearby residential buildings and an Anganwadi, the tower is being erected near a thodu through which saline water flows, it is in violation of Kerala Coastal Zone Management Act, the soil in the proposed area is not dry but too muddy and the presence of saline water in this low lying area will accelerate the rusting of four legs of the tower, etc. and therefore, construction of a tall tower in the site is a threat to the nearby residents. The petitioners has also raised grievance mainly contending that there is a vast height difference of 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, and therefore in case of any soil erosion or land slide due to heavy rain, which is so common nowadays, the entire tower itself may collapse causing serious threat to the life of the petitioners. Petitioners have also raised similar contentions which are raised by the general public in Exts.P7 and P8. The main contention raised by the petitioner is regarding the manner in which Ext.P13 decision was taken. It is contended by the petitioner that there was no meeting of the 2nd respondent for granting an order in the nature of Ext.P13. Petitioners have also raised similar contentions which are raised by the general public in Exts.P7 and P8. The main contention raised by the petitioner is regarding the manner in which Ext.P13 decision was taken. It is contended by the petitioner that there was no meeting of the 2nd respondent for granting an order in the nature of Ext.P13. Specific case of the petitioner is that whatever reports or opinion that has been called for should be discussed by the committee itself and not by the chairman of the committee as has been done in the present case. The purpose and necessity of participation of all the members of the committee who are experts in various fields is to foresee any unexpected or untoward incident that are likely to occur while installing the tower and after installation, especially taking note of the fact that the area in question is always prone to flood during heavy rain. Therefore, it is contended that the constitution of the committee is not in accordance with Ext.P1 Government order and therefore, Ext.P13 decision is also not in accordance with law. 8. On the contrary, the stand taken by the 7th respondent in the counter affidavit filed is that disputed questions of fact cannot be adjudicated and decided in a writ petition and therefore writ petition is not maintainable, particularly when such facts and circumstances were considered and decided by the 2nd respondent committee. The said respondent would contend that necessary building permit has been granted by the local authority as is evident from Ext.R7(a) and relying on Ext.R7(b) judgment in W.P. (C) No. 24020 of 2009 and connected cases, contended that if any person is aggrieved by the building permit granted, the aggrieved person has to approach the Tribunal for Local Self Government Institutions and challenge against any other licence granted by the department of Telecommunication, has to be pursued before TDSAT and if there are any other issues, same has to be sorted out before the Civil Court. It is further submitted by the learned counsel for the 7th respondent that Ext.R7(d) clearance, EMF certificate for radiation compliance has also been obtained. 9. In the above backdrop it is essential to consider the powers and duties of the District Telecom Committee (DTC), the 2nd respondent herein. This Court in Indus Towers Ltd. case supra, in paragraph 22 held as follows: “22. 9. In the above backdrop it is essential to consider the powers and duties of the District Telecom Committee (DTC), the 2nd respondent herein. This Court in Indus Towers Ltd. case supra, in paragraph 22 held as follows: “22. However, it is clear from the Government Orders issued by the Central Government as well as State Government, that they are concerned with the apprehension expressed by the public at large as well as the difficulties faced by telecommunication providers and it is in the said background that the Government has issued order dated 2.8.2014 to constitute DTC. The duties and functions of DTC as extracted above clearly indicates that the public who apprehends difficulties faced on account of the installation of mobile towers as well as the apprehension expressed by the Telecom Service Providers could approach the said authority for redressing their grievances. In other words, DTC has been constituted for the purpose of redressing all grievances of the stake holders including public at large. When an issue is identified by a service provider or an agency engaged by them for setting up a MT Tower, or if there is objection from the people in the locality, the DTC can either suo motu or on an application by any person involved, i.e. either the public who objects to the putting up of mobile tower or any official of the Government, service provider or infrastructure provider, adjudicate all such aspects and redress the grievance. The functions of the DTC is so wide that it may also consider any apprehension expressed by the petitioners by way of objection from the local residents in the locality. If it is found by the DTC that the grievance raised by the public are not genuine, it is always open for the DTC to direct the police to render necessary assistance for putting up MT Tower or energizing the same.” (Underline supplied) This Court issued necessary directions in the judgment quoted supra as follows: In the result, these writ petitions are disposed of as under: (i) If the DTC or STC has not been constituted by the Government, necessary steps in that regard shall be made and DTC and STC shall be constituted within a period of two weeks from the date of receipt of a copy of this judgment. (ii) Petitioners in these cases are permitted to approach the DTC for redressing their grievances and on submission of such representations/applications, the DTC shall consider the same, after notice to the affected parties and take appropriate steps as expeditiously as possible in accordance with the procedure prescribed. This Court in Indus Towers Ltd. case supra has clearly held that the functions of DTC is so wide so as to consider any apprehension expressed by the public at large and the local residents in the locality. This Court has also held that if the parties approaches the DTC for redressing their grievances, the DTC shall consider the same after notice to the affected parties and take appropriate steps “in accordance with the procedure prescribed.” It is pertinent to note that the Government has issued G.O. (Ms) No. 25/2014/ITD dated 02.08.2014 constituting District Telecom Committee (DTC) to consider the grievance raised by the public regarding installation of mobile towers and certain duties and functions have also been stipulated which inter-alia included consideration of public grievances, power to send recommendation to the Local Self Government Institutions, to cancel permit granted by local authorities, to issue stop memo, to take action for violation of Government of India or State Government guidelines, building rules, etc., and other matters relating to the same. Relevant portion of the Government Order dated 02.08.2014 is extracted below: “xxx xxx xxx Duties and Functions (i) DTC shall deal with public grievances relating to installation of Mobile Towers and issues related to telecom infrastructure in the respective district. (ii) DTC shall initiate Suo moto actions based on public protest/complaint/petition/ press/media reports etc. in connection with Mobile Tower installation. (iii) The DTC shall have powers to send recommendation to LSGI to cancel the permits granted by LSGI for installing Mobile Towers or to issue stop memo if the committee finds: (a) The operator violates Government of India/State Government guidelines, building rules of LSGD. (b) Any other institutions involved have given adverse remarks against the TSP. (iv) The committee (DTC) may give the company (Telecom Service Provider) an opportunity to rectify the defects, if the committee feel so. (v) Telecom Service Provider or petitioner/complainant may file appeal before STC within 15 days from the date of receipt of the DTC final decision, under intimation to Local Self Government Institutions concerned. (iv) The committee (DTC) may give the company (Telecom Service Provider) an opportunity to rectify the defects, if the committee feel so. (v) Telecom Service Provider or petitioner/complainant may file appeal before STC within 15 days from the date of receipt of the DTC final decision, under intimation to Local Self Government Institutions concerned. (vi) The recommendations of DTC shall be adhered to by LSGI/Police Department or any other authority related to the subject. (vii) The TSP can also approach DTC for redressing their grievances, if any. xxx xxx xxx Though the said Government Order has been modified subsequently as per Exts.P1 and P2, the duties and functions stated in the said Government Order has not been changed. By Exts.P1 and P2, the Government has constituted/reconstituted the State Telecom Committee and District Telecom Committee “to address the public grievances in connection with the mobile towers” in all 14 districts. In view of the judgment in Indus Towers Ltd. case supra and on the basis of Exts.P1 and P2 and also the Government Order dated 02.08.2014, the 2nd respondent, the District Telecom Committee (DTC) is the authority competent to address the public grievances in connection with the mobile towers. Therefore, the directions in Ext.R7(b) judgment which was pronounced on 28.10.2009, i.e. much before the issuance of Exts.P1 and P2 Government Orders and the Order dated 02.08.2014 and before the judgment in Indus Towers Ltd. case supra, cannot stand in the way of the petitioners in approaching the 2nd respondent for redressal of their grievances, in as much as the 2nd respondent, District Telecom Committee is the Forum provided by the Government itself for the public to raise their grievances regarding the installation of a mobile tower.” 10. Another contention raised by the 7th respondent that the 2nd respondent, the District Telecom Committee (DTC) is not an authority to grant permission for telecom tower construction and admittedly it is an advisory body to consider public grievances, is also not sustainable in law. A reading of Ext.P1 Government Order itself will show that the DTC shall act as a public grievance redressal mechanism whereas STC shall act as an advisory body. A reading of Ext.P1 Government Order itself will show that the DTC shall act as a public grievance redressal mechanism whereas STC shall act as an advisory body. The said wording in the Government Order itself will clearly show that the DTC is not an advisory body as contended by the 7th respondent but it is a mechanism provided by the Government to redress public grievances regarding the installation of a mobile tower. 11. Now the question to be considered is as to whether Ext.P13 is issued in accordance with law. In the counter affidavit filed by the 3rd respondent relies on three minutes of the 2nd respondent committee, i.e. Ext.R3(a) dated 06.04.2022, Ext.R3(b) dated 29.04.2022 and Ext.R3(c) dated 04.08.2022. In Ext.R3(a) minutes, a decision was taken to conduct a soil test. Ext.R3(b) minutes show that further two weeks time was granted to conduct soil test. In Ext.R3(c) minutes a days time was granted to the petitioner to file an affidavit regarding the soil test. Thereafter, no minutes is produced which considered the objections and also the soil test report and thereafter deciding to grant permission and police protection, though Ext.P13 order says that the committee has come to such a conclusion. A perusal of Exts.R3(a) to (c) minutes will show that in certain cases minutes itself will show that the committee has decided to grant police protection for construction of the tower. The District Collector who is the Chairman of the 2nd respondent committee can issue orders only on the basis of the findings of the committee but the learned Government Pleader could not bring to this Court's notice any such committee decision to grant the permission before issuing Ext.P13 order. When the Government has constituted a committee granting wide powers as is seen from G.O. (Ms) No. 25/2014/ITD dated 02.08.2014 and Ext.P1 Government Order, I am of the opinion that a decision should be taken based on the objective satisfaction of the committee. It is also pertinent to note that it is not just a complaint raised by the neighbouring property owner alone, but Exts.P6 and P7 would reveal that it is a mass petition submitted by the public of the locality. Panchayat committee deliberated on these complaints and decided as per Ext.P8 to bring the matter before the District Collector. It is also pertinent to note that it is not just a complaint raised by the neighbouring property owner alone, but Exts.P6 and P7 would reveal that it is a mass petition submitted by the public of the locality. Panchayat committee deliberated on these complaints and decided as per Ext.P8 to bring the matter before the District Collector. Though the minutes show that the committee decided to conduct a soil test, there is no minutes to show that the committee has deliberated on Ext.P10 soil inspection report and the various contentions raised before the said committee by the general public. It is settled law that when the statute prescribes or requires a thing to be done in a particular manner; it should be done in that manner or not at all. A provision for settling the grievance of the general public is provided as per Government Orders and it specifically speaks about a committee to look into the grievances. In view of the same, a decision on the complaint preferred by the pubic or an aggrieved person should be taken by a committee constituted as per Ext.P1, and the same should be reflected in the minutes of the meeting, and it is only on the basis of the conclusions arrived at by the said committee that the District Collector who is the Chairman of the 2nd respondent committee could issue orders in this regard. Since such exercise is not seen done after receipt of Ext P10 soil test report, I am of the opinion that Ext.P13 is liable to be set aside. There will be a further direction to the District Telecom Committee, 2nd respondent herein, to take a fresh decision in the matter after affording an opportunity of being heard to the petitioners or any other complainants and also the 8th respondent herein. A decision in this regard shall be taken within a period of one month from the date of receipt of a copy of the judgment. 12. The writ petition is disposed of as above.