A mobile tower does not qualify as a workplace as per the Kerala Panchayat Raj Act, therefore no permit under Section 233 is required prior to its erection.

J U D G M E N T

Petitioners are residents of Ward No.9 of Nedumpana Grama Panchayat in Kollam District. The fifth respondent proposed to establish a mobile tower in the neighborhood of the residences of the petitioners. The petitioners raised objections against the establishment of the mobile tower and lodged complaints before the District Telecom Committee. The District Telecom Committee disposed of the complaints directing that if the fifth respondent secures a building permit, they shall be permitted to establish the mobile tower. The fifth respondent thereupon obtained Ext.P6 building permit for establishing the mobile tower. Complaints have been lodged even thereafter by the people in the locality before the District Collector. In one of those complaints, the District Collector passed Ext.P11 order directing the Panchayat to take appropriate action. The writ petition is filed thereafter seeking orders for implementation of Ext.P11 order.

2. At the time of admission, this court, byway of an interim order, permitted the fifth respondent to erect the mobile tower. They were however restrained from operating the telecommunication tower.

3. Heard the learned Senior Counsel for the petitioners as also the learned counsel for the fifth respondent.

4. The only point canvased by the learned Senior Counsel for the petitioners at the time of hearing, was that permission of the Panchayat under Section 233 of the Kerala Panchayat Raj Act, 1994 (the Act) should have been obtained by the fifth respondent before the erection of the mobile tower as the mobile tower is to be construed as a work place where electric power is employed. Insofar as the permission of the Panchayat has not been obtained by the fifth respondent under Section 233 of the Act, according to the learned Senior Counsel, the erection of the mobile tower is illegal. The learned Senior Counsel has placed reliance on paragraph 41 of the judgment of this court inEssar Telecom Infrastructure (P) Ltd. v. State of Kerala, 2011 (2) KHC 171 .

5. Paragraph 41 of the judgment in Essar Telecom Infrastructure reads thus:

“41. Government have framed the Kerala Panchayat Raj (Licensing of Dangerous Trade) Rules, 1996. As per S.232, it is for the local body to notify that a particular activity is offensive or dangerous to human health or property and in such a case, without licence from the Executive Authority, no person can use any area for such purposes as are notified, without licence. This Court has taken the view that the word “offensive or dangerous to human life or health or property” are not to be construed in their ordinary sense and it need be only activities which are so considered by the Authority (See Shaji v. State of Kerala ( 2004 (1) KLT 118 ). It is true that a mobile tower is not notified under S.232 as such. But, we should have regard to the words used in S.233 wherein the only indispensable requirements are the construction or establishment of any factory, workshop or workplace in which, no doubt, it must be proposed to employ steam power, water power or other mechanical power or electrical power. Nothing prevented the Legislature also indicating in S.233 that it must be a factory, workshop or workplace to which S.232 is applicable. The conspicuous omission to refer to the same and the width of the language employed in S.233 leads us to hold that any factory, workshop or workplace, be it included in S.232 or not, in which it is proposed to employ the steam power, water power, mechanical power or electrical power will attract S.233 and permission must be sought and granted before construction or establishment.”

It is seen that after having held that any factory, workshop or workplace, be it included in Section 232 or not, where steam power, water power, mechanical power or electrical power is proposed to be employed, will attract Section 233 , the court proceeded to consider whether a mobile tower could be regarded as a work place and held that a mobile tower cannot be r