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2022 Supreme(Online)(KER) 58844
HIGH COURT OF KERALA
C.S. DIAS, J
MR. SHAN VIDHYADHARAN – Appellant
Versus
SHEEBA – Respondent
OP(C)/1372/2021
LAL K.JOSEPH, P.MURALEEDHARAN (THURAVOOR), T.A.LUXY, SURESH SUKUMAR, G.HARIKUMAR (GOPINATHAN NAIR), KOYA ARAFA, MIRAGE, ANZIL, SALIM MANUEL, K.M.CHACKO, MATHEWS K.
Regulatory clearance is essential for erecting mobile structures, ensuring safety and environmental considerations are prioritized by the trial court.
Headnote:
Telecom - Mobile Tower Erection - Code of Civil Procedure Section 151 - The court underscored the need for proper clearance before erecting a mobile tower and emphasized the trial court's duty to address the grievances regarding health impacts and structural safety.
Fact of the Case:
An original petition was filed to challenge an order regarding the erection of a mobile tower on a property, with plaintiffs seeking to prevent construction due to health risks and legality concerns.
Finding of the Court:
The court found that the building permit for the mobile tower had expired and emphasized the necessity for the District Level Telecom Committee to address the plaintiffs' concerns before any construction could proceed.
Issues: Whether the injunction against the erection of the mobile tower should continue despite claims of an extended building permit and prior clearance from the telecom committee.
Ratio Decidendi: The court noted that without due clearance and consideration of health hazards, the mobile tower's erection should not proceed, highlighting the importance of regulatory compliance.
Final Decision: The court allowed energisation of the mobile tower at the risk of the petitioner, pending a determination in the underlying suit within six months.
JUDGMENT
The original petition is filed to set aside the order dated 02.08.2021 in I.A.No.1/2021 in CMA No.5/2021 (Ext.P11) and the judgment in CMA No.5/2021 (Ext.P12) of the Court of the Subordinate Judge, Vatakara.
2. When this original petition came up for admission on 17.08.2021, this Court passed the following interim order:
“Admit. Issue notice by speed post to the respondents.
2. The respondents are the plaintiffs in O.S.No.34/2021 on the file of the Munsiff Court, Vatakara. The main prayers in the suit are as under:-
“a) for a permanent prohibitory injunction thereby restrain the defendant No.1 and 2 and their men from erecting mobile tower having 40 meters height, having weight of 7 Tones with 6 GSM Antennas and I micro wave antenna at plaint 'E' schedule property without complying legal formalities and without getting clearance from the defendant No.3, The Chairman of the District Level Telecom Committee.
b) direct the defendant No.2 shift the proposed installation of mobile tower from plaint 'E' schedule property to the convenient and feasible vacant land without population available at Onchiyam Panchayath.”
The respondents also filed Ext.P4 application for injunction in O.S.No.34/2021. The learned counsel submits that no orders have been passed on Ext.P4 and it is pending consideration. In the meanwhile, a petition was filed under Section 151 of the Code of Civil Procedure seeking an order of status quo, which was rejected by the learned Munsiff through Ext.P8 order dated 9.4.2021. That order dated 9.4.2021 was subject matter of challenge in C.M.A.No.5/2021. The learned Subordinate Judge, who considered C.M.A.No.5/2021 together with I.A.No.1/2021 passed Ext.P11 order finding that the District Level Telecom Committee was yet to consider the grievances put forth by the respondents/plaintiffs and also found that the building permit issued to the petitioner had expired. On such finding, the prayer for interim relief was allowed in the following manner:- “
39. Point No.(ii):- In view of the finding on point No. (i), this petition is allowed. No costs. The trial court shall consider the grievances raised by the petitioners before the DTC and shall ascertain whether there is any merit in their apprehension that the tower may fall due to soil erosion or due to some other geographical reasons. Petitioners can produce documents if any before the trial court which shows that emission of electro magnetic radiation will cause for health issues of the petitioners. 2nd respondent can produce certificate showing soil test and renewed building permit. The trial court shall take maximum effort to dispose of the suit within 3 months from the date of receipt of copy of this order. Return lower court records forthwith along with copy of this order. Return Exts.A1 to A3 to the counsel for the petitioners; B1 and B2 to the 2nd respondent and B3 to Addl. Government Pleader for producing before the trial court.”
In the light of the aforesaid finding C.M.A.No.5/2021 was also allowed by the learned Subordinate Judge.
3. The learned counsel for the petitioner refers to Government Orders produced as Exts.P2 and P2(a). He submits that, in the light of the Covid-19 Pandemic, the Government issued orders extending the validity of all building permits. He would, therefore, submit that finding in Ext.P11 that the building permit had expired, is not correct. He would further submit with reference to Ext.P17 that the District Level Telecom Committee has also cleared the construction of the mobile tower in question. Taking note of the aforesaid facts, I am of the opinion that the petitioner is entitled to an OP(C) No.1372/2021 5 / 5 17-08-2021 /True Copy/ Assistant Registrar O.P.(C)No.1372/2021 3 interim order as prayed for. Accordingly, there will be an interim order as prayed for, for a period of four weeks. However, the tower in question shall not be energised without getting further orders from this Court”.
3. Heard; Sri.Lal K. Joseph, the learned counsel
