V.J. John vs State Of Kerala

T.R.Ravi, J.

The petitioners are aggrieved by the construction of a mobile tower by the 10th respondent in the property belonging to the 9th respondent, who had

received permission for conversion of the land for the purpose of construction of a residential house.

Heard Sri Reghu Kottappuram, counsel for the petitioners, Sri Vipin Narayan, Government Pleader for respondents 1 to 7 and 11, Sri S.Rajmohan,

Standing Counsel for the 8th respondent, Sri George Cherian, Senior Counsel, instructed by Smt.K.S.Santhi on behalf of the 9th respondent, Sri

Harikumar G.Nair for the 10th respondent, and the Standing Counsel for the 12th respondent.

The contentions raised by the counsel for the petitioners are as follows:-

(a) The mobile tower is sought to be erected in a place where there are several residential houses and the construction of the mobile tower is likely to cause serious

health hazards due to electromagnetic radiation.

(b) The 9th respondent had obtained permission for conversion of the land from “nilam†to “purayidom†stating the purpose as construction of residential

house and by allowing construction of mobile tower, the said permit is violated. It is submitted that conversion was permitted for the construction of a residential

house of 3000 Sq.ft. plinth area, but what is constructed is a mobile tower of about 40 metres height.

(c) There are no guidelines in place which can guide the District Telecom Committee and hence granting permission on the basis of recommendation in the report of

the District Medical Officer ought not to be permitted. It is contended that neither the DMO nor the DTC has the expertise to gauge the level of electromagnetic

radiation caused by the mobile tower. According to the petitioners, the role of the District Medical Officer is only under the Kerala Public Health Act and his duty is

only to maintain public health and sanitation.

(d) It is contended that the tower has been constructed after digging the ground to great depths even without obtaining permission from the District Geologist.

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The petitioners rely on the guidelines issued by the Hon'ble Supreme Court in the decision in Cellular Operators Association of India & Ors. v.

Justice I.S. Israni reported in [2015 KHC 4973]. It is submitted that the mobile tower should not have been permitted to be installed without proper

study regarding the impact and hazards of the electromagnetic radiation which is likely to occur while the mobile tower functions. The petitioners also

challenge Ext.P15 building permit granted by the Panchayat.

The 10th respondent has filed a counter affidavit stating that the construction of the tower is not within the prohibited distance nor does it offend

any statutory rules. It is submitted that the 9th respondent has been issued with permission to change the category of the land under the provisions of

the Kerala Conservation of Paddy Land and Wetland Act, 2008. The Agricultural Officer had certified that the land had been converted as dry land

much before 2008. It is submitted that the building permit has been granted after taking into account all the relevant matters. The allegation that

excavations were made in the land is denied and it is stated that digging was done only for the purpose of the creating the base foundation for erecting

a stable tower as sanctioned by the authorities. It is further submitted that persons claiming to be the residents of the locality who are known to be

relatives of the petitioners have already filed Appeal No.403/2021 on 24.8.2021 before the Tribunal for Local Self Government Institutions,

Thiruvananthapuram and the copy of the appeal has been produced as Ext.R10(a). It is stated that after having approached the statutory authority, the

petitioners are not entitled to approach this Court for relief under Article 226 of the Constitution of India. The averment that the installation of the

tower is likely to cause health hazards is denied. It is stated that the District Telecom Authority, which is the authority empowered to look into such

aspects has already considered the issue and come to the conclusion that the functioning of the tower is not harmful to the residents. It is also stated in

the report of the District Telecom Committee which is produced as Ext.R10(b) that the radiation from the tower will be within the permissible limits.

The building permit dated 5.7.2021 has been produced as Ext.R10(c). Reliance is placed on the judgment of this Court in Reliance Infocomm v.

Chemancherry Grama Panchayat reported in [2006 (4) KLT 695] to submit that the mobile towers do not cause any hazardous effect to humans and

that the same is only an apprehension not backed by any scientific data. Similar view was taken in the judgment in Sudevan and another v. Mundoor

Grama Panchayat and another reported in 2013 (4) KLT 55]. It is further submitted that the Hon'ble Supreme Court has approved the said dictum in

the decision in G.Sundarrajan v. Union of India reported in [(2013) 6 SCC 620]. It is further submitted that the radiation norms prescribed by the DOT

are very strict and stringent and require that the radiation should be 1/10th of the permissible radiation prescribed by the ICNIRP guidelines. It is

submitted that even if the radiation is within the norms prescribed by ICNIRP guidelines, the same would not cause any health hazard whatsoever. It

is submitted that when the prescription is 1/10th of the radiation norms prescribed as above, there can absolutely be no objection on the ground of

health hazard. Details of the scientific aspect on the issue has also been explained in the counter affidavit, which are not being repeated in this

judgment. Ext.R10(d) produced would show that the necessary certification from the Office of the DDG TERM, Kerala has been obtained which

shows compliance with radiation norms. It is submitted that similar writ petitions have been dismissed by this Court and the copy of the judgment in

W.P.(C)No.16601 of 2020 has been produced as Ext.R10(f).

The 9th respondent has filed a counter affidavit stating that all necessary permissions have been obtained for conversion of the land. The orders in

this regard and the building permits issued by the Panchayat have also been produced. The 8th respondent Panchayat has also placed on record a

counter affidavit stating that permits have been granted after considering all the relevant aspects. It is stated that on 10.6.2021 on the District Level

Telecom Committee meeting, the issue has been discussed in detail as item No.4. Ext.R8(c) proceedings dated 2.7.2021 has been produced to show

that all the stakeholders were heard by the Panchayat before granting the building permit.

A Division Bench of this Court has in the decision in Sudhakaran Pillai v. Vaikom Municipality and others reported in [2019 KHC 915], catalogued

the decisions of the Hon'ble Supreme Court, this Court and some decisions of the High Court of Madras and has, after noticing that the permission for

erection of the mobile tower in the said case was granted by the District Telecom Committee after considering the relevant factors and that the

necessary permits and Electromagnetic Frequency Certification for radiation compliance had also been obtained, rejected the challenge against the

putting up of the mobile tower. A learned Single Judge has in Ext.R10(f) judgment also rejected the plea against the putting up of mobile tower in a

thickly populated area on the ground that all necessary permits have been granted and EMF certification has also been obtained.

After having considered the decisions cited above and the contentions raised by the petitioners, I am of the view that this Court will not be justified

in considering the question regarding the health hazards all over again in view of the judgments in Reliance Infocomm (supra), Sudevan (supra),

Sundarrajan (supra) and Sudhakaran Pillai (supra). A properly constituted District Telecom Committee has considered the issue and found that the

10th respondent can be permitted to continue with the construction of the mobile tower. The Panchayat has issued a building permit as is required. The

10th respondent has also obtained the EMF certification. No grounds warranting interference by this Court in exercise of the extraordinary jurisdiction

under Article 226 is made out. The writ petition fails and is dismissed.