M/S Essar Telecom Infrastructure (P) Ltd. vs State of Kerala & Ors.

In these batch of writ petitions certain common questions

arise and we deem it appropriate to dispose of the cases by the

following common judgment.

2. Petitioners are either service providers or infrastructure WPC.NO.14094/10 & CONN.CASES 3

providers or agreement holders with the infrastructure holders. The

controversy arises on account of obstruction to the construction of

mobile towers and in many cases, obstruction to construction of

towers for their operation and they seek police protection to aid them.

3. This issue had engaged the attention of this Court earlier.

Divergent views were expressed by this Court in the decision in

Reliance Infocom Ltd. v. Chemanchery Grama Panchayat

(2006 (4) KLT 695) (hereinafter referred to as the "Reliance

case"), Essar Telecom Infrastructure (P) Ltd. v. Circle

Inspector Of Police (2008 (4) KLT 713) and Dishnet Wireless

Limited v. Circular Inspector of Police (2009 (1) KHC 781).

On noticing the divergent views, a Division Bench of this Court

referred the following two questions to the Full Bench:

"(1) Whether the construction of a Mobile Base Station by itself will give rise to a dispute of civil nature, merely for the reason that a section of the public apprehends that it may cause some health hazards and whether a larger question of this nature as to whether such Mobile Base Station could cause any health hazards could be decided in a petition filed under Article 226 of the Constitution of India. WPC.NO.14094/10 & CONN.CASES 4

(2) If the petitioners have obtained licence in accordance with the relevant statute in force and when they start functioning of a Mobile Base Station, can anybody cause any physical obstruction to such work, without raising a dispute and seeking remedies available to them under law, and in case, any such physical obstructions is caused, is not the Police bound to act and whether in the absence, this Court could issue necessary directions to the Police."

Subsequently, another Division Bench felt that two more

points require consideration by the Full Bench and sought to

clarify the following two points :

"(1) Whether this Court can exercise the jurisdiction to issue a writ of mandamus to the police, as if this Court is hearing a suit for mandatory injunction and whether the objection taken to the same in para 8 of Sadananda Bai's case (supra) and para 8 of Essar Telecom Infrastructure (P) Ltd's case (supra) is sustainable ?

(2) When, for causing obstruction to the construction of a mobile phone tower, the petitioners have an alternative effective remedy of filing a civil suit, is it a proper exercise of discretion by this Court to entertain the Writ Petitions and advise the respondents to invoke the alternative remedies available to them ?"

The Full Bench answered the questions in the decision in WPC.NO.14094/10 & CONN.CASES 5

Reliance Telecommunications Ltd. v. S. I. of Police (ILR

2010 (2) Ker. 592) (hereinafter referred to as the Full

Bench decision) as follows:

"33. Points sought to be clarified as per the reference order dated 24-3-2009 in W.P.(C).

No.6433/2009 and connected cases are answered in the above background as follows:The construction of a Mobile Base

Station by itself witll not give rise to a dispute purely of civil nature, to be relegated to a civil court, merely for the reason that a section of the public apprehends that it may cause some health hazards. Whether a larger question of this nature, as to whether such Mobile Base Station could cause any health hazard, could be decided in a petition filed under Article 226 of Constitution of India, there cannot be any legal bar to such a course in appropriate cases, where sufficient materials are provided as to the scientific studies and norms/guidelines prescribed by the Government/Licensing authorities in this regard; which situation is conspicuously absent in the instant cases. If the petitioners have obtained all requisite licences/permits in accordance with the relevant statutes/orders/notifications in force and start construction/functioning of a Mobile Base Station, nobody can cause any physical obstruction to such work/operation, but it is open to them for raising a dispute and seek WPC.NO.14094/10 & CONN.CASES 6

remedies available under the law.

If the police is alerted as to the threat to the law and order situation and if there is any violation on the part of the Police to discharge the statutory duty in takiang steps to prevent cognizable offence, a Writ of Mandamus is very much liable to be issued granting police protection.

34. Points sought to be clarified as per the reference dated 2-11-2009 in W.P.(C).

Nos.24384 & 25157/2009 are answered as follows:

(i) In view of the observation in paragraph 8 of Sadananda Bai's case (2008 (3) KLT 542) and similar observations in paragraaph 8 of Essar Telecom's case (2008 (4) KLT 713) holding that this Court is very much having the power to provide the remedy, in case of violation to discharge the duty by the police, further reference doubting the power of this Court under Article 226 is quite unwarranted. In view of the law declared by this Court as stated in the forgoing paragraphs, the observations to the contrary in the above two decisions (Sadananda Bai's case and Essar Telecom's case) are not correct or sustainable.

(ii) Relegation to the Civil Court, in the event of forceful obstruction to the construction or energization of Mobile Phone Tower is not an effective alternate remedy and interference by this WPC.NO.14094/10 & CONN.CASES 7

Court, granting `Police protection', invoking the power and discretionary jurisdiction under Article 226 of the Constitution of India is warranted to advance the course of justice."

The Full Bench also approved the law declared by the decision in

Reliance Case and the Dishnet Case. Thereafter, the Full Bench

ordered as follows:

"36. The next question is whether the merits of each case are to be dealt with or not. Even though we are very much aware of the scope and power under Sec.7 of the Kerala High Court Act, in view of the dictum laid down by the Apex Court as per the decision in Kerala State Science & Technology Museum v. Rambal Co. and Others reported in (2006) 6 S.C.C. 258), we find it proper to have the cases considered and decided on merits by the appropriate Court, in the light of the law declared as above."

4. In many of these cases the matter had engaged the attention

of the Full Bench of this Court. We are proceeding to dispose of not

only the cases which were listed before the Full Bench, but also other

cases, many of them filed subsequent to the decision of the Full

Bench.

5. Sri. P. Sathisan, learned counsel for the petitioners in many

of these cases would make the following submissions: Under Section 4 WPC.NO.14094/10 & CONN.CASES 8

of the Indian Telegraph Act, a licence has been granted to establish a

telegraph, which takes in a mobile business also. He points out that

Entry 31 of List I of the 7th Schedule provides for legislative power to

Parliament, as hereunder:

"Entry 31: Posts and telegraphs; telephones,

wireless, broadcasting and other like forms of

communication."

He would submit that it is in the exercise of the legislative power that

the Parliament has enacted the Telecom Regulatory Authority of India

Act, 1997 (TRAI Act for short). He would draw our attention to Section

11 of the said Act. He relies further on Section 14 which provides for

right of appeal to the appellate authority. He further draws our

attention to Se.2 (l) of the Municipality Building Rules where the word

"building" is defined. He would canvass, in particular, Rule 141 (8) of

the Kerala Municipality Building Rules, 1999. It reads as follows:

"141. Submission of application and its

disposal.-

(8) The Secretary shall, if convinced of the

boundaries and ownership of the plot, plans and drawings

and genuineness of the certificates, issue permit, not

later than 30 days from the date of receipt of the WPC.NO.14094/10 & CONN.CASES 9

application."

He would further contend that there is a right of appeal to the Tribunal

under Se.276 of the Kerala Panchayat Raj Act, 1994. Without

challenging the permit issued under the Building Rules, it is contended

that it is not open to the respondents or their men in these cases to

obstruct the petitioners from carrying out the work for which they have

taken permit and are otherwise armed with necessary licences under

the Central enactment governing the field. He would submit that if

the tower is not put up and operated it will affect the quality of the

service which would result in the petitioners being liable to pay

penalties. He would refer to the Division Bench decision of this Court

in Dishnet Wireless Ltd. v. Circle Inspector of Police and Others

(2009 (1) KHC 781) and the unreported judgment of another Division

Bench. He also relied upon the judgment of the Full Bench (supra) of

this Court and contended that the writ petitions are only to be allowed.

He would submit that there is a bar under Se.37 of the TRAI Act to

institute a civil suit. He relied further on the judgment of the Apex

Court in Union of India v. Tata Teleservices (Maharashtra) Ltd.

(2007 (7) SCC 517).

6. Sri. Santhosh Mathew, learned counsel for the petitioners in

many of these cases would essentially adopt the arguments of Sri. P. WPC.NO.14094/10 & CONN.CASES 10

Satheesan. He would submit that once permit is obtained under the

Building Rules, there is no need for further permission under Se.235

(h). He would refer to the 73rd Amendment to the Constitution. He

would further refer to Se.166 of the Panchayat Raj Act and would

contend that the local body may not have any further say in the matter

once a permit is obtained. He would also refer to Exts.P9 which are

questions seeking information under the Right to Information Act and

Ext.P10 reply given in W.P.(C) No.10907/2010 to contend that the

petitioners have obtained all necessary permissions required as per

law. He also relied on the decision of the Apex Court in All India

Federation of Tax Practitioners And Others v. Union of India

And Others (2007 (7) SCC 527 (at 547)). He would further refer to

Se.256 of the Panchayat Raj Act. He would further point out that writ

petitions are pending since 2009. He also referred to the unreported

judgment of the Bombay High Court in Crl. Appeal 930/2009 and the

unreported judgment of the Karnataka High Court

MANU/KA/0496/2001 in W.P No.35408/2000 (para 15) and the

judgment of this Court in W.A.No.1596/2007.

7. Shri. Philip Mathew, learned counsel for the petitioners in

many of these cases would point out that except in some cases no

counter affidavit is filed. He would address six points before us. (i). WPC.NO.14094/10 & CONN.CASES 11

Se.232 and Se.233 of the Kerala Panchayat Raj Act are not applicable

in view of Chapter 19 of the Municipal Building Rules. (ii) Se.233 (B)

of the Panchayat Raj Act corresponding to Se.450 of the Kerala

Municipalities Act provides for exemption from taking permit for

installation of machinery. In this regard he relies on clause (a) and

(c). (iii) He refers to the heading of Sec.233 and he would contend

that it is only in cases where the matter is covered by Se.232 that

Se.233 will apply and since there is no notification which requires

taking out a licence under Se.232, Se.233 of the Panchayat Raj Act

cannot apply. (iv) Sec.4 of the Telegraph Act contains certain

safeguards and the Panchayat Raj Act cannot be made applicable in an

area held by the Telegraph Act. (v) He would contend that the

technological benefit should be made available to the masses and the

Court must interpret the provisions of laws in such a manner that the

technological advancement are made available to the masses. He

would also contend that the workplace used in Se.233 (a) must be

given the commonly understood meaning. He would refer to G.P.Singh

Interpretation of Statutes 10th Edition Page 158 where the learned

Author refers to the importance to be attached to the heading of a

section. He would refer to Mimansa Rules of Interpretation (3rd

Edition) page 185. He relies on the decision in Vijay v. State of WPC.NO.14094/10 & CONN.CASES 12

Maharashtra (2006 (6) SCC 289). He refers to the provisions of the

Dangerous Trades Licensing Rules made under the Panchayat Raj Act

particularly the explanatory note. He would contend that no separate

form is prescribed under the Municipality Building Rules and he would

refer us to Form A to contend that once a permit is acquired there can

be no scope for obtaining any other permission. He refers to the

decision of a Division Bench of this Court in Bini v. Sundaran K.V.

(2008 (1) KHC 209). He would contend that State Government has

some power but it may not operate when any collision with the Central

Legislation is occasioned. He further submitted that without

acquiring land, the rights of the owner cannot be affected and he

relied on the judgment in Raju S. Jeth malani v. State of

Maharashtra (2005(11) SCC 222) and Nasar v. Malappuram

Municipality (2009 (3) KLT 92). He would rely on the decision

in Indore Vikas Pradhikaran v. Pure Industrial Coke &

Chemicals Ltd. (2007 (8) SCC 705) to contend that the Apex

Court has recognised that right to immovable property, though no

longer a fundamental right is a human right. He further relied on

the decision in Sivadasan v. Mattannur Municipality (2008 (4) WPC.NO.14094/10 & CONN.CASES 13

KLT 684).

8. Shri. V. G.Arun, learned Counsel appears for the

petitioners in a number of writ petitions wherein, the petitioners

seek police protection for constructing and operating the mobile

towers. He also relied in Entry 31 of list I, which we have already

referred to. Besides, he also referred us to Entry 13 of list II. He

would refer us to Section 3(1)AA of the Indian Telegraph Act,

Section 2 sub-Section (2) of the Wireless Telegraph Act 1933,

Sections 4, 7, 19 and 8 of the Telegraph Act, to contend that the

matter of establishing the telecommunication tower is governed by

the provisions of the Central Enactments. He sought to buttress

this position with reference to the provisions of the Telecom

Regulatory Authority of India Act (hereinafter referred to as the

TRAI Act). He referred us to the provisions of Section 11 besides

Section 13 of the Act. He also made available the licence

agreement and referred us to various clauses therein in an attempt

to contend that the matter engaged the attention of the Licensing WPC.NO.14094/10 & CONN.CASES 14

Authority which has provided for various conditions and,

therefore, he would contend that the provisions of The Wireless

Telegraphy Act, Telegraph Act and the TRAI Act r/w terms of the

licence (agreement) occupy the field and there is no space for the

State to legislate as the field is completely occupied. He would also

refer us to the third schedule to the Panchayat Raj Act and Section

166 of the same. He also would submit that, having regard to the

fact that the new licence condition has been imposed for regulating

electro magnetic field, radiation, by way of self-audit and

providing for officials to cross-check the same and as under the

licence condition, stringent punishment is provided by way of

penalty and also if needed, revocation of the licence, all is well.

In this regard, he referred us to the communication dated 2.11.2010

addressed by the Government Department to the term "cells". He

also relied on the decision in Baijnath Kedia v. The State of

Bihar (AIR 1970 (SC) 1436).

WPC.NO.14094/10 & CONN.CASES 15

9. Shri. Krishna Prasad, learned Counsel for the petitioners

appearing in writ petitions wherein, the petitioners are civil

contractors, undertaking work of construction of towers, submits

that they are only engaged in construction of towers for which they

are having Permits. According to him, no other permission is

required. He adopts the argument of the other petitioners.

10. Shri. A. Mohamed Mustaque, learned Counsel for the

petitioners would raise the following contentions:

He appears in the writ petitions wherein the petitioners are

infrastructure providers, i.e., the petitioners are engaged in

construction of mobile towers. He would broadly contend as

follows:

There is a social philosophy behind the policy of the

Government in the matter of having mobile towers. Secondly, he

would delineate on the aspect of a writ of mandamus and when it

will be issued. Thirdly, he would contend that no permission is

required u/s. 233 of the Panchayat Raj Act or the provisions WPC.NO.14094/10 & CONN.CASES 16

contained the Municipalities Act. Expatiating his contentions, he

would refer us to clause 3 at page 55 (compilation No.1). He

would contend that there is a universal service obligation, that is to

say an obligation to take the mobile telephone to the remote and

rural areas through the length and breadth of the country and there

is a social philosophy as the framers of the policy have found that

reaching this modern means of communication to the far corners,

of the country will best promote the development of the people.

He referred to Sections 9, 9A, 9C, and 9D of the India Telegraph

Act. He would point out the gap between the number of towers

required (3,30,000) by 2010 (see page 5 of compilation 1). He

would contend that there is need to bear in mind that concept of

sustainable development. He would point out that the

implementation of the policy being man made, there will be

imperfection. He would contend that in fact, there is an increasing

awareness and which is being translated to reality also that

operators must share towers. He referred us to various material to WPC.NO.14094/10 & CONN.CASES 17

show that the matter of erection of towers is seized of by

International Telecommunication Union and also the National

Authorities in India, namely the concerned Government

Department. He would point out that there is lot of dispute in the

matter of allocation of spectrum. He would also rely on literature

to contend that it may be necessary to have more base stations

(towers) and it would be in the interest of the members of the

public themselves. He would also submit that the matter must be

treated as occupied field having regard to the central legislation

and the conditions of the licence. He also would refer us to the

experience in other countries. He would contend that the radiation

in the case of a mobile tower is non-ionizing. He referred us to the

concepts of wireless networks cellular topography and contended

that there is no merit at all in obstructing the construction of the

towers. He would contend that ideally when the density of the

population increases, there would be a corresponding increase in

the number of towers.

WPC.NO.14094/10 & CONN.CASES 18

11. Shri A. Mohamed Mustaque would also contend that the

petitioners had the liberty and, therefore, there was

correspondingly no right for the obstructionists to physically

obstruct. He referred us to the decision in Gardon Riots' case. He

would submit that the discretion of this Court would be fettered, if

there is any established violation of law. Thirdly, he would

contend, in regard to Section 233 of the Panchayat Raj Act and the

corresponding provisions in the Municipalities Act, that the

principle of ejusdem generis, must be applied. He would submit

that Section 233 contemplates a quasi-judicial procedure for

processing applications seeking permission under the same. He

would submit that when the Panchayat Raj Act and the

Municipality Act were enacted, the Legislature had before it the

Factories Act, 1948, Air Pollution Act, 1981 and the

Environmental Protection Act, 1986. He referred us to the

definition of "factory" and "machinery" contained in the Factories

Act. He does not dispute that the Antenna, Receiver and Generator WPC.NO.14094/10 & CONN.CASES 19

(if used) would be machinery. But, he would contend that it is not

machinery as was contemplated under Section 233(1)(b) of the

Panchayat Raj Act. According to him, the machinery must be

machinery which is used in a factory, workshop or work place and

it must be capable of producing pollution or nuisance as is

contemplated in sub-section (3) of Section 233. He referred us to

case law to explain the concept of ejusdem generis and to contend

that Section 233 of the Act did not and does not contemplate

within its scope, the component parts used in a mobile tower. He

would refer us to the definition of the words "air pollutant" in the

Air Pollution Act, 1981 and the Water Pollution Act, 1974 to

contend that the Legislature did not intend to include the

components of a mobile tower within the scope of the Act.

Therefore, he would contend that Section 233 of the Panchayat Raj

Act would not apply as they stand, to the construction or

installation of machinery in the tower.

WPC.NO.14094/10 & CONN.CASES 20

12. He would next argue that if it is found to be an omission,

then, it is not for the Court to supply the omission of the

Legislature and he projected the principle of casus omissus. He

relied on the Judgments of the Apex Court in Smt. Hira Devi v.

District Board, Shahjahnpur (AIR 1952 SC 362), Gullapalli

Nageswara Rao v. A.P. State Road Transport Corpn. (AIR

1959 SC 308) and Bondu Ramaswami v. Bangalore

Development Authority (2010 (7) SCC 129). He also relied on

Black Law Dictionary and Maxwell on Interpretation of Statutes

in this regard. He would further submit that Section 233 B, no

doubt, provide for exemptions. But, he would contend that the fact

that the component parts of a tower are not mentioned therein,

would not immediately mean that Section 233 applies for the

reasons which he has already advanced. He would further submit

that Section 233 A of the Panchayat Raj Act provides for

remedying nuisance and a perusal of its terms would show that the

Legislature did not contemplate the nuisance if any which may WPC.NO.14094/10 & CONN.CASES 21

emanate from the operation of a mobile tower.

13. Shri K. Ramakumar, learned senior counsel appearing for

the petitioner in W.P.(C).No.1693/10 would contend as follows:

He would submit that the question as to whether the

component parts are machinery requiring permission has not been

raised or pleaded and it is not open to the Court to decide questions

which are not pleaded or raised. He referred us to the decisions in

Naresh Shridhar Mirajkar v. State of Maharashtra (AIR 1967

SC 1) and Sundarjas Kanyalal Bhatija v. Collector, Thane

((1989) 3 SCC 396) (paragraphs 16 to 26). He would submit that

at present the protection is sought only for putting up the tower and

the Court need not assume that the local bodies will fail to

discharge their duties. It is not open to the Court to travel beyond

pleadings. It is not open to the people to physically obstruct the

construction of the tower. He relied on the decision in Union of

India v. Jai Prakash Singh ((2007) 10 SCC 712). In considering

the issue of prerogative writs, the Court must be confined to the WPC.NO.14094/10 & CONN.CASES 22

pleadings and documents before it. He relied on the decision in

Union of India v. R. Bhusal ((2006) 6 SCC 36). He would

contend that it may be open to the Court to direct the Authorities

concerned to look into as to whether any permission is necessary

and it is not for this Court to primarily decide the very issue itself.

The case of the respondents:

14. In W.P.(C).No.13403/2010, the second respondent has

produced Ext.R2(b), an article written by a retired Civil Surgeon

about the dangers of the radiation. Ext.R2(c) purports to be a

Newspaper Report in Madhyamam Daily. Ext.R2(d) purports to be

another paper Report. Ext.R2(g) purports to be a Report in the

newspaper, the Times of India reporting the adverse effect of

electromagnetic radiation on honeybees. Ext.R2(h) purports to be

a study report by Professor Girish Kumar, Electrical Engineering

Department, IIT Bombay with regard to the biological effects on

the cell tower operation. It is, inter alia, stated that when the

human body is exposed to electromagnetic radiation, it absorbs the WPC.NO.14094/10 & CONN.CASES 23

radiation because the human body contains seventy per cent of

liquid. The current international standards based on ICNIRP

recommendations are purely based on thermal effects of radiation,

whereas various epidemiological and experimental studies have

shown to have significant biological effects far below these

standards. It is stated further that non-thermal effects of radio

frequency radiation accumulate over time and the risks are more

pronounced after 8 to 10 years of exposure. There is reference to

studies in Australia and Germany linking increased level of cancer

to residents near TV and FM towers and cellular transmitter site

respectively. It is further stated as follows:

"Radiation from cell phone towers has been associated with greater increase in brain tumor. (2) This is due to the damage in the blood brain barrier and the cells in the brain which are concerned with learning, memory and movement. Studies by Carl Blackman have shown that weak electromagnetic fields release calcium ions from cell membranes (4). Leakage of calcium ions into the cytosol acts as a metabolic stimulant, which accelerates growth and healing, but it also promotes the growth of tumors. Loss of calcium ions causes leaks in the membranes of lysosomes releasing DNAase that causes DNA WPC.NO.14094/10 & CONN.CASES 24

damage. Another possibility of DNA damage is via increased free radical formation inside cells (5, 6), which further causes cellular damage in the mitochondria. Irreversible infertility has been reported in mice (7) and continuous exposure has been associated with reduction in sperm viability and mobility by around 25 percent in men (8). Children are more vulnerable to radio frequency radiation emissions as their skulls are thinner, their nervous system still developing and myelin sheath is yet not developed. A pregnant woman and the fetus both are vulnerable because of the fact that these RF radiations continuously react with the developing embryo and increasing cells. Microwave radiation damages the placental barrier, implying that pregnant woman should not use cell phone (9). The RF Exposure can adversely affect the heart pace maker, implantable cardiovascular defibrillators and impulse generators (10). These radiations may stop Pace maker from delivering pulses in a regular way or may generate some kind of external controlling pulse putting the patient to death. Studies of people who are exposed in their work (occupational exposure), have shown to have elevated levels of health risks. Another study reveals that workers who are in the highest 10% category for EMF exposure are twice as likely to die of prostate cancer as those exposed at lower levls (11).

Exposure to electromagnetic fields has shown to be in connection with Alzheimer's disease, motor neuron disease and Parkinson's disease (12). All these diseases are involved with the death of specific neurons and are classified as neurodegenerative diseases. Inhabitants living near mobile phone base stations are also at risk for developing WPC.NO.14094/10 & CONN.CASES 25

neuropsychiatric problems as headache, memory loss, nausea, dizziness, tremors, muscle spasms, numbness, tingling, altered reflexes, muscle and joint paint, leg/foot pain, depression, and sleep disturbance (13). More severe reactions include seizures, paralysis, psychosis and stroke. All point to the fact that the current exposure standards for microwaves are not safe for long-term exposure."

15. It is submitted by Shri V.P. George that the Full Bench

has not relegated the parties to the civil court. He relies on the

Statement of the Government of India filed in one of the cases. He

would rely on Section 23 of the Environmental Protection Act. He

contends that he does not take the extreme position that mobile

phones should be banned or that mobile towers should not be

constructed. But, having regard to the dangers emanating from the

indiscriminate proliferation of towers and mobile phones and the

radiation which emanates from the same, they are matters to be

regulated. He would submit that an environmental impact report

must be obtained before proceeding further. TRAI is not concerned

with the safety aspects, he contends. He relied on the Judgment of

the Gujarat High Court in D.S. Rana & Others v. Ahamedabad WPC.NO.14094/10 & CONN.CASES 26

Municipal Corporation and Others (AIR 2000 Guj. 45)

(paragraph 19).

16. In W.P.(C).No.14476/10, Shri Vinod Madhavan,

appearing for the fifth respondent, a local body, would point out

as follows:

The petitioner is Indus Tower. But, in Ext.P1, another name

is shown. In Ext.P2, building permit is issued to one Biju Nair,and

not issued to the petitioner, it is contended. Therefore, the

petitioner has no locus standi. Reference is made to Ext.P3

complaint. He would contend that under Section 233(1)(b) of the

Panchayat Raj Act, the equipments which are put on a mobile

tower constitute machinery within the meaning of Section 233(1)

(b) and permission is indeed required for installation of the

components.

17. In W.P.(C).No.17009/10, it is submitted on behalf of

respondents 4 and 5 that Ext.P2 permit was issued to Indus

Towers, but the petitioner is another. He also refers to WPC.NO.14094/10 & CONN.CASES 27

IA.No.12508/10. In W.P.(C).No.13401/10, Advocate Shri T.N.

Suresh, appearing on behalf of the second respondent would point

out that Leela is the mother-in-law of Madhu who entered into

Ext.P1 agreement and there is no reply affidavit. He otherwise

adopts the arguments of the other respondents.

18. In W.P.(C).No.8321/09, Shri Joseph George appearing

on behalf of the eighth respondent would point out that there are

two civil suits pending. Fixation of boundary is sought. In W.P.

(C). No.14361/10 Shri R. Parthasarathy appearing on behalf of

respondents 3 and 4 would submit that they are neighbours and

their consent was not obtained and Rule 7(1) of the Kerala

Municipality Building Rules has been violated. He also relied on

Ext.R3(c) Circular issued by the Government.

19. Shri P. Chandrasekhar, learned counsel who appears in

W.P.(C).Nos.14094/10 and 24384/09 (for party respondents)

would submit as follows:

WPC.NO.14094/10 & CONN.CASES 28

He would contend that the tower would be a "work place"

and it requires permission under Section 233 of the Panchayat Raj

Act. At any rate, he would submit that the component parts

constitute machinery under Section 233(1)(b). He relied on the

Judgment of this Court in N.S.S. Hindu College v. Chief

Engineer, Kerala State Electricity Board and Others (2007 (4)

KHC 271). He would contend that the Local Authority has a

constitutional duty and he relied on Article 243 G of the

Constitution and Entry 23 of the Eleventh Schedule which, inter

alia, provides for "Health and Sanitation". He also refers to

Section 166 of the Panchayat Raj Act and the 3rd Schedule. The

3rd Schedule, inter alia, provides for mandatory functions of the

Panchayat. It provides for maintenance of environmental hygene.

He would submit that this must be read in conjunction with Section

233 of the Act. He would submit that "work place" takes colour

from the provision to the effect where electrical power/steam

power is used. He would further take us to Sections 235F, 235H, WPC.NO.14094/10 & CONN.CASES 29

235P and 235Q of the Panchayat Raj Act. He would refer to

Section 233(5) to contend that the permission under the provisions

mentioned therein, must also be obtained. He would further refer

us to Rule 140A of the Kerala Municipal Building Rules. He

would rely on the Judgment of a Division Bench of this Court in

Gopalan Bhavani v. Raghavan Aravindakshan (1989 (2) KLT

118) and the decision in Satyawati Sharma (dead) by Lrs. v.

Union of India and Another (2008) 5 SCC 287) to contend that

the Court must provide a purposive interpretation. He also relied

on the decisions in State v. Chaudhary (1996 (1) KLT 454(SC))

and Kashmir Singh v. Union of India & Others ((2008) 7 SCC

259) to contend that the provisions of the Panchayat Raj Act and

the Municipalities Act are provisions contained in an ongoing

Statute and accordingly, the interpretation must be so placed in

keeping with the principles applicable thereto. He would submit

that to constitute a "work place", the workers need not go to work

there all the time. Systematic work goes on in a mobile tower with WPC.NO.14094/10 & CONN.CASES 30

the aid of power. Certainly, some workmen will be going there

from time to time. He relied on the decision in Consumer

Education & Research Centre & Others v. Union of India &

Others (AIR 1995 SC 922 for supporting his argument that the

mobile tower is a "work place" under Section 233(1)(a) of the

Panchayat Raj Act. He also relied on the alma ata convention and

the asbestos convention, 1986. He also referred us to the

constitution of WHO (World Health Organisation). He would

submit that different kind of cells are used and they include micro,

pico and macro cells. He would submit that the effect of these

cells would vary and macro cells used in thickly populated areas,

would constitute a great threat to the health. He also relied on the

decision of the Apex Court in Gramophone Company of India

Ltd. v. Birendra Bahadur Pandey & Others ((1984) 2 SCC 534.

According to him, the Court must give considerable importance to

the purpose. The context of the provision must also be borne in

mind as also the mischief which is sought to be redressed by the WPC.NO.14094/10 & CONN.CASES 31

author of the law. It is stated that there is no pleading in the Writ

Petition that the respondents physically obstructed and a writ of

police protection would not lie on the pleadings.

20. Shri K. Sasikumar, learned counsel appearing on behalf

of the respondents in W.P.(C).No.7312/09 and 6433/09 would

adopt the arguments of Shri P. Chandrasekhar. He would further

refer us to the letter issued by the Pollution Control Board in W.P.

(C).No.7312/09.

21. Shri Rinny Stephen Chamaparambil, learned counsel

appearing for the party respondents in W.P.(C).Nos. 35836/09 and

31772/09 would rely on the Report of Professor Girish. He also

draws support from Ext.R1(c). He would contend that there are

thermal and non-thermal effects. He relied on Ext.R3(j) Report

and Ext.R3(k) resolution. He further referred us to Ext.R11(d) and

(e). He referred us to paragraph 18 of the Full Bench decision.

22. Learned counsel appearing for the respondents in W.P.

(C).No.29644/10 would contend that the petitioner has no locus WPC.NO.14094/10 & CONN.CASES 32

standi and the tower is being erected in the middle of a thickly

populated area.

23. Shri T.K. Vipindas, learned Government Pleader would

contend as follows:

He relies on Entry 6 of List II. He would contend that the

State has legislative power under Entry 6 of List II to provide for

public health which is what Section 233 of the Panchayat Raj Act

is all about. He relies on the decision on State of Rajasthan v. G.

Chawla & Another (AIR 1959 SC 544). He would contend that

the TRAI Act does not deal with any matter covered by Entry 6 of

List II. In this regard, he referred to the provisions of Section 11 of

the TRAI Act. Learned Government Pleader would specifically

say that the Government does not have a case that the mobile tower

is a "work place" within the meaning of Section 233 of the

Panchayat Raj Act. However, he would submit that under Section

233(1)(b), the component parts installed in a tower would

constitute machinery and, therefore, permission is required under WPC.NO.14094/10 & CONN.CASES 33

Section 233. He would contend that Sections 233 and 233A of the

Panchayat Raj Act deal with issues of nuisance and health. He

further drew our attention to the provisions of Section 2 of the

Travancore - Cochin Public Health Act. In particular, he referred

us to the definition of "nuisance". He further brought to our

attention Sections 39 and 40 of the said Act, besides Sections 95,

98 and 99. He further referred us to the Town Planning Scheme

and contended that under the Scheme, towers cannot be permitted

in residential areas. He also referred us to the decision in State of

Maharashtra v. Bharat Shanti Lal Shah & Others ((2008) 13

SCC 5). Learned counsel for the petitioners would counter the

arguments of the learned counsel for the respondents and we shall

deal with the same more elaborately.

24. Construction of mobile towers have given rise to these

Writ Petitions. In most of these cases, the petitioners have

obtained Permits issued for construction of mobile tower under the WPC.NO.14094/10 & CONN.CASES 34

Municipal Building Rules, which Rules have been made applicable

to the Panchayats also.

Whether the operation of mobile tower a health

hazard ?

25. The first question, of course, is as to whether there is any

material produced to warrant the view that the construction of the

towers and their operation would constitute a health hazard.

Counsel for the petitioners would point out that most of the

materials have been considered by the Division Bench and the Full

Bench. It is contended that this Court has found that the

precautionary principle would not apply in the matter of operation

of the mobile towers and that it is not the burden of the petitioners

to show that there is no pollution or nuisance. In the Reliance

case, the Court proceeded to refer to the constitution of the

Committee under the Chairmanship of Shri N. K. Ganguly, DG,

ICMR by the Government as directed by the Bombay High Court. WPC.NO.14094/10 & CONN.CASES 35

The Court, inter alia, held as follows:

" Mobile phones produce radio-frequency.

Magnetic energy moving through space is generally called radio frequency electro magnetic radiation (EMR). EMR is of course a part of everyday life. EMR is emitted by natural sources like the sun, the earth and the ionosphere and also by artificial sources, such as, electrical and electronic equipments, radar facilities, broadcast towers and mobile phone base stations, etc. EMR absorbed in human body is measured in units called the specific absorption rate (SAR) which is usually expressed in units of watts per kilogram (w/kg.) or milliwatts per gram (mw/g.).

There are multiple sources of exposures to electromagnetic fields including radio, FM radio, Television and other household gadgets. Exposure standards for Radio Frequency Energy has been develop0ed by various countries and organizations. Based on these scientific data, the National Council for Radiation Protection and Measurement of USA and the Australian Communication Authority urges a public exposure limit of 200 microwatts per square centimetre in the 30 to 300 Mhz range. Direct use of mobile phones including radio FM radio, Television and other household gadgets would have some illeffects on human beings. A workshop conducted by World Health Organization (WHO) in Prague in 2004 reached the following conclusions, viz., that (1) reported symptoms are very unspecific and could have other causes: (2) there is no casual association demonstrated between exposure and symptoms; (3) that patients who display those symptoms should be medically examined for alternative explanations and WPC.NO.14094/10 & CONN.CASES 36

causes including psychiatric/psychological ones and other environmental factors: (4) lowering the safety limits for handset radiation (SAR levels) will not affect the situation. Study conducted would show that there is no scientific evidence for a casual relationship between the reported clusters of symptoms and exposure to microwave radiation used in cell phones, well below the safety standards............Question that is posed for consideration in this case is not with regard to ill effects of the use of mobile phones but whether installation of mobile base station and its functioning would cause any health hazards to the people who are residing nearby.

Reference was made to the following remarks of a Committee

appointed pursuant to the decision of the Bombay High Court:

"* There are multiple sources of exposures to electromagnetic fields including radio, FM radio, Television and other household gadgets. There is a need to acknowledge the confounding effects on these sources of RF.

* There are different types of Mobile Base Stations depending on the requirements of a particular system (GSM or CDMA) prevalent in India, however GSM system outnumbers CDMA.

* RF exposures from Mobile Base Stations are much less than from radio, FM radio and WPC.NO.14094/10 & CONN.CASES 37

television transmissions.

* The height of Mobile Base Station antennae is nominally 36 metres and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt.

* The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will be higher exposures.

* There are two main types of effects of electromagnetic waves: thermal and non- thermal which includes electrophysiological behavioural effects. These can be sleep disorder, cognitive disorder, memory disturbances, hearing disorders, etc.

* Factors like urbanization, siting of base stations, distance from the towers, existence of multiple towers and multiple providers, etc. all may have confounding effects which could be difficult to quantify.

* Subjective symptoms such as sleep disorders, cognitive disorders, memory

disturbances, hearing disorders, etc. have been reported. However, the three completed human studies pertaining to base stations conducted by Santini R et al (2002), WPC.NO.14094/10 & CONN.CASES 38

Borkiewicz et al (2004) & Hutter & kundi et atl (2006) do not report any quantitative parameters related to health hazards.

* ICNIRP Guidelines in respect of restriction on Specific Absorption Rate (SAR) are available internationally and have been adopted by various European countries, such as UK, Australia, Malaysia and Korea. But, China has adopted more stringent criteria.

* Various studies conducted across the world on RF from Mobile Base Stations have shown that the exposures are of a such lower magnitude than the internationally accepted levels.

* At the moment there is no concrete evidence of any health hazard and WHO has the same opinion as mentioned in the latest Fact Sheet modified in May, 2006. The Committee felt that more objective research is needed in the above disorders to quantify the effect on human health.

* WHO in its Fact Sheet No.304 regarding EMF in relation to Base Stations and wireless technology which has been updated in May, 2006 recommends "National Authorities should adopt international standards to protect their citizens against adverse levels of RF fields."

* Taking the above mentioned into account, the WPC.NO.14094/10 & CONN.CASES 39

Committee opined that overall there is not enough evidence to show direct health hazards of RF exposures from Mobile Base Stations."

The Court also held as follows:

"Atomic Energy Regulatory Board also submitted a report before the Bombay High Court in WP.No.2112 of 2004. Report states that radio frequency waves used for mobile phones are not covered under the definition of "radiation" as given in the Atomic Energy Act, 1962 and non ionizing radiations do not have the capability to ionize the matter with which they interact. Radiation Protection Division (NRPB) of the U.K. Health Protection Agency in the year 2000 has reported that the balance of evidence indicates that there is no general risk to the health of people living near the base stations on the basis that exposures are expected to be small fractions of guidelines. Scientific data made available to the Court would indicate that the use of mobile phone, AM Radio, FM Radio etc. is more harmful to the human beings compared to the power emission from the base Transcieving Stations and that of Mobile Towers. Surveys conducted in proximity to base stations indicate that the public is exposed to extremely low intensity RF fields in the environment and all the evidence indicates that they are unlikely to pose a risk to health. We may in this connection also refer to the order of the Delhi High Court in OS 1121/02 wherein the court opined that so far there is neither any conclusive research nor authoritative scientific evidence to show that the radiations emitted by such Transmission Towers are dangerous to the health of WPC.NO.14094/10 & CONN.CASES 40

human beings.

We have already found that RF exposures from Mobile Base Stations are much less than from radio, Fm radio and television transmissions and that the consensus of scientific community is that the radiation from Mobile Phone Base Stations is far too low to produce health hazards if people are kept away from direct access to the antenna and the overall evidence indicates that they are unlikely to pose a risk to health. The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will get higher exposures. We have also found that the height of Mobile Base Station antennae is normally 36 metres and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. Human studies pertaining to base stations conducted by Santini R et al (2002), Bortkiewicz et al (2004) & Hutter & Kundi et al (2006) do not report any quantitative parameters related to health hazards. Therefore, it can safely be concluded that the permission granted for installation of Mobile Base Station by the Panchayat would not cause as such any health hazards nor will it affect the fundamental rights guaranteed to citizens under Art. 21 of the Constitution. Right to life enshrined under Art.21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its own ill-effects on human beings, but, at times people will have to put up with that at the cost of their advantages. Petitioner and others for installing towers will have necessarily to comply with WPC.NO.14094/10 & CONN.CASES 41

the statutory provisions contained in Chapter XIX of the Kerala Municipal Building Rules, 1999 which permits construction of telecommunication towers over buildings. Petitioner has submitted that it has already satisfied all those conditions and in such circumstance, Panchayat has granted the licence."

Thereafter, the Court referred to the TRAI Act and its powers. The

Court also, we notice, held as follows:

"Petitioner has not installed any generator as on today and if the installation of generator would cause any sound pollution, evidently Pollution Control Board can give appropriate direction and the petitioner will have to obtain necessary consent from the Pollution Control Board for installation of generators, so that it would not cause any sound pollution. So also, if the installation of Tower and the emission of electromagnetic waves causes any air pollution, affecting human health the Pollution Control Board can take appropriate measures under Air (Prevention and Control of Pollution) Act, 1991."

Reverting back to the decision of the Full Bench, we notice that

since the Full Bench has posted the matter for consideration of the

case on merits before this Bench, it is apposite to refer to the

following findings as well:

WPC.NO.14094/10 & CONN.CASES 42

26. In the Full Bench decision, it is, inter alia, stated as

follows:

"The observations by the Division Bench of this Court earlier, as per the decision in Reliance's case that, as per the scientific data available as on date, it was not established that the activity would result in any health hazards, stands in tact. The respondents have never brought it to the notice of this Court, any decision or material to the contrary, so as to draw a different inference. In any view of the matter, this Court does not propose to examine the correctness or otherwise of the finding in Reliance's case as to the instance of any health hazards; more so since the points of reference are rather something else. Similarly, this Court also does not propose to go into the merits of the contentions raised by the respondents that various other licences are also required under the relevant provisions of Panchayat Raj Act/Kerala Municipality Act/ Kerala Municipal Building Rules, etc., which, however, is strongly rebutted from the part of the petitioners as well...........It may also not be correct to say that this Court does not have the power to consider the various aspects as to the alleged health hazards which according to the reference Court is surprisingly vested only with the Civil Court. Suffice to say, it is not a question of absence of jurisdiction, but a question of necessity for interference. The instance of any health hazards has to be established with reference to tangible materials and evidence has to be let in; for which, it could be said that the matter may require to be adjudicated before the Civil Court. But then, it is for the concerned party to plead and WPC.NO.14094/10 & CONN.CASES 43

prove as to the specific threat to the health hazards with reference to reliable materials and also as to the alleged infringement of any statutory prescription or violation of the norms prescribed. It is not for the petitioners to prove a `negative aspects' that there is no health hazard. When the petitioners have prima facie established their right to construct and operate the mobile transmission tower by obtaining all the required licences, it is for the objectors, if any, to prove infraction of their right, if any, and to show the dis-entitlement of the petitioners to establish a mobile tower by resorting to the remedy of approaching the licensing authorities, or to approach the Civil Court or by establishing their right in the Writ Petition for police protection. If any such objection is found prima facie established, this Court can certainly decline to grant police protection or in case the respondent fails to prove their right by documentary evidence, could still reserve his right to approach the Civil Court, as the burden to prove any such infraction is on the objector who asserts any such right. That apart, the observations made by the Division Bench of this Court in `Reliance's case' that the scientific study and the materials brought to light as on date did not reveal any such health hazards still stands, as the said observation has not been successfully challenged and no material has been produced to arrive at a different finding."

27. Therefore, the first question which arises is whether any

material is produced by the respondents to establish that there is

any health hazard, at least, prima facie. We have already referred WPC.NO.14094/10 & CONN.CASES 44

to the findings of the Committee appointed by the Government of

India pursuant to the directions of the Bombay High Court as

extracted from the judgment in the Reliance Case. We have

already also referred to the fact which is again considered by the

Bench in the Reliance Case that the Atomic Energy Regulatory

Board has reiterated that radio frequency waves used in mobile

phones are not covered under the definition of "radiation" as

provided in the Atomic Energy Act, 1962, and that non-ionizing

radiations do not have the capacity to ionize the matter with which

they interact.

28. Now, let us see the materials which are produced by the

respondents in these cases.

W.P.(C).NO.35836/2009 Y:

The 11th respondent has, inter alia, stated that it is well settled from

scientific studies that electro magnetic radiation emanating from

mobile towers would result in health hazards and the people who

are continuously exposed to such radiation, would be badly WPC.NO.14094/10 & CONN.CASES 45

affected and are more prone to serious illness, like brain tumour

and cancer as a result of such continuous exposure to radiation.

There is reference to the high sound emanating from the diesel

generators. The students in the area would not be able to study in a

peaceful and noise free atmosphere. Ext.R11(f) purports to be an

Article published by one Ali Ashraf in a newspaper, highlighting

the effects of radiation. There is no mention about the credentials

of the Author of the Article by way of his expertise in the field.

Essentially, he refers to various studies. In the Reply Affidavit, the

petitioners would state that the mobile stations erected by the

petitioners are within the safety limits set by the International

Council on non-ionizing, radiation protection and it will not create

any health hazard. The standard set by the said Council for

efficiency levels are safe and have been adopted by most of the

countries including India. Reliance is also placed on the report of

Technical Committee which is produced as Ext.P11. Ext.R11(e) is

produced by the 11th respondent as a communication from the WPC.NO.14094/10 & CONN.CASES 46

Pollution Control Board to the Secretaries of the Panchayats

mentioned. It refers to the need for getting permission from the

Pollution control Board for using generators as such. In Ext.P11

Report given by the Committee constituted by the Government of

Kerala, under the heading "Observations by the Committee", it is

stated as follows:

"The committee had gone through the websites of world bodies dealing with the subject. The committee has noted that considerable research had been undertaken by various countries on the subject. Opinions expressed by some of the reputed organizations are as follows:

World Health Organization (WHO) recommends adoption of the International Commission on Non-Ionizing Protection

(ICNIRP) 1998 guidelines6 states that these guidelines '.....offer protection against all identified hazards of RF energy with large safety margins7.

" Based on a recent in-depth review of the scientific literature, the WHO concluded that current evidence does not confirm the existence of any health consequences from exposure to low level electromagnetic fields8.

" To date, all expert review on the health effects WPC.NO.14094/10 & CONN.CASES 47

of exposure to RF fields have reached the same conclusion: ....no adverse health consequences established from exposure to RF fields ...... "-WHO9

The WHO states that "current scientific evidence indicates that exposure to RF fields, such as those emitted by mobile phones and their base stations, is unlikely to induce or promote cancers".10

Overall, the existing scientific literature ..... provides no convincing evidence that the use of radiotelephones or other radio systems, whether analogue or digital, poses a long-term public health hazard - European Commission Expert Group. 11

" In many cases where the general public has shown concern, radiation intensity has proved to be less than a thousandth of the permitted level"12. To summarize, mobile telecommunications base stations do not constitute a risk regarding radiation protection.-Swedish Radiation Protection Institute13

" The Nordic authorities14 agree that there is no scientific evidence for any adverse health effects from mobile telecommunication systems, neither from the base stations nor from the handsets... There are a number of published reports suggesting that biological effects may occur at exposure levels below the ICNIRP WPC.NO.14094/10 & CONN.CASES 48

guidelines..... important to note the biological effects do no necessarily imply health hazard"- Nordic Countries: Denmark, Finland, Iceland, Norway, Sweden.

" The AFSEE notes that the general analysis of current scientific data on exposure to base station waves show no health risk linked to mobile phones as base stations........"15 French Environment Heal And Safety Agency (AFSEE)

There is no substantive evidence that adverse health effects, including cancer, can occur in people exposed to levels at or below the limits on whole body average SAR recommended by the INIRC (IRPA / INIRC 1998) or at below the ICNIRP limits for localized SAR. 16

No adverse health effects are expected from continuous exposures to the RF radiation emitted by the antennas on mobile telephone base station towers. Australian Radiation Protection and Nuclear Safety Agency.17

The weight of national & international scientific opinion is that there is no substantial evidence that exposure to low level RF EME cause adverse health effects. The view is backed by every major review panel on the subject including the Royal Society of Canada (1999), the International Expert Group on Mobile Phones (2000), the French Health General Directorate (2001) and ARPANSA's RF standard Working Group (2002)".

WPC.NO.14094/10 & CONN.CASES 49

Australia: Committee On Electromagnetic Energy Public Health Issues.18

" Regarding Health Hazards: As per the information available with TRAI there is no definite conclusive study, which confirms that health is adversely affected by radiations emitted by mobile phones"- Telecom Regulatory Authority of India 19

The Atomic Energy Regulatory Body also produced a report before the Mumbai High Court which states that the radio frequency waves used for mobile phones are not covered under the definition of "Radiation" as given in the Atomic energy Act 1962. 20

The International Commission in Non-Ionizing Radiation Protection (ICNIRP) specifies Specific absorption Rate (SAR) for various Frequencies. For 10MHz to 10GHz range, it imposes a basic restriction as described below for an averaging time of 6 minutes.

Localized SAR in 10g(Watts/kg) Whole body SAR (Watts/kg) Head and Trunk Arms and legs General public exposure 0.08 2 4 Occupational exposure 0.4 10 20 WPC.NO.14094/10 & CONN.CASES 50

The Institute of Electrical and electronic Engineers (IEEE) specifications are similar to ICNIRP levels.

Whole body SAR Localized SAR in cube(W/kg) Watts/kg Head and Trunk Extremities Uncontrolled exposure 0.08 1.6(1g) 4(10g) Controlled exposure 0.4 10 20

The transmission from a Mobile tower is classified as Non-ionizing, which is difference Ionizing radiations such a X-rays, Gamma rays and atomic radiations. In non-ionizing radiations, thermal effects predominate when it comes to injury to human beings - like in the case of radiations from microwave ovens. Non-ionizing radiation from mobile towers is of low power levels and hence does not produce heating effects that can damage body tissues.

There is an immediate minimum reduction of more than 2 billion times as the microwave energy enters the atmosphere. The signal power level reduces in a logarithmic manner as we move away from the tower.

The mobile antenna are fed 5 watts to 20 watts of power in the normal course. The Standing Advisory Committee on Frequency Allocation (SACFA) under the Wireless Planning Wing of DOT does not give permission to operate above 20 Watts in India. On WPC.NO.14094/10 & CONN.CASES 51

the other hand, mobile set transmit from 0.25 watt to 2 watt depending on the distance from the mobile tower. As the handset moves away it increases the power to a maximum of 2 watts.

As the frequency spectrum (Number of radio channels) is limited, there is a need for mobile operators to establish more and more BTSs to accommodate the ever increasing customer base. As BTS count is increasing, they have to reduce the power of facilitating the frequency reuse.

It is now established that the mobile handsets are to be treated with caution than the mobile towers. Many studies caution that a headset that is kept near the brain or heart could affect these parts in the long run if the usage is continuous, especially in children less than 18 years. They suggest the use of hand free devices or speakers rather than direct use of handsets near the ear."

29. Thereafter, under the heading "Need for caution", it is

stated that though thermal effect from the mobile radiation is ruled

out, it is non-thermal effects which are under research currently by

various countries in the world. It is further stated that international

bodies still suspect that there could be some effect from

microwave transmissions even at the very low power level and are WPC.NO.14094/10 & CONN.CASES 52

in continuously in search of conclusive proof since the past many

years. Thereafter, the Committee proceeded to make certain

recommendations. They include the recommendations that the

towers, both ground and roof based, should be avoided within 50

metres of schools or hospitals. The micro and piocel antenna

mounted inside the buildings should not exceed 5 watts. The

Government of Kerala is to request the Central Government to ask

the Department of Telecommunications to ensure that operators

are not exceeding the level stipulated by the TEC through its field

units or wireless monitoring units under the Wireless Planning and

Co-ordination Wing. It is also recommended that the mobile

towers may be permitted across all developable zones in the

Zoning Regulations of the Power Planning Schemes subject to the

conditions specified in Chapter 19 of the Building Rules.

However, it is recommended that Chapter 19 may be amended and

3 metres setback shall be increased to 5 metres (Rule 131(1)). It is

further recommended that 1.20 metres specified for the distance WPC.NO.14094/10 & CONN.CASES 53

from the boundary of the plot in Rule 131(3) shall be increased to

3 metres. (Actually, it is to be noted that these aspects have been

referred by the Full Bench in its judgment). Petitioners have

produced Ext.P10 letter (produced along with I.A No.9997/2010)

written by the the Director, Regional Cancer Centre, Trivandrum

to the Secretary of the Kudappanakunnu Grama Panchayat dated

11.09.2006, wherein it is stated as follows:

"Radio Frequency (RF) fields are present in the environment ever since the invention of radio. AM/ FM transmission, Television, Radar etc use RF fields. The intensity of these fields including the one that is used in mobile phones is very low. Mobile phone towers emit RF microwaves in the frequency range 800-1000 MHz that are directed towards the horizon. So people staying near the tower will not receive any significant radiation. Besides, the signal fades away rapidly over distance. Microwave is a non-ionising radiation unlike X rays or gamma rays that are ionising. Ionising radiation can cause biological damage. These RF fields do not have sufficient energy to produce direct biological effects. The RF fields generated near mobile towers are thousands of times lower than the recommended maximum exposure levels. (Specific Absorption Rate for Public: 0.08 watt/kg).

WPC.NO.14094/10 & CONN.CASES 54

Scientific studies performed to date suggest that exposure to low intensity non-thermal RF fields do no impair the health of humans or animals. The overall population exposure from mobile phone towers is extremely low and no increased risk for cancer or other diseases has been established.

A group of independent experts led by Sir William Stewart in UK has investigated possible health effects posed by mobile phone technology and has come to the following conclusions. "

The balance of evidence indicates that there is no general risk to the health of people living near base stations, on the basis that exposures are expected to be small fractions of guidelines".

From the above it is clear that mobile phone towers are not a health hazard for the Public as per available knowledge.

The facts mentioned above are from different international study groups. Should you require any more clarifications on this, please feel free to write to me."

Ext.P12 is a letter written by the Joint Secretary, Government of

India, Ministry of Health & Family Welfare Wing. Therein, it is

stated that the Committee constituted pursuant to the direction of

the High Court of Mumbai, has opined that overall there is not WPC.NO.14094/10 & CONN.CASES 55

enough evidence to show direct health hazards or RF exposures

from Mobile Base Stations. The 11th respondent has produced

Ext.R11(j), a report prepared by Professor Thomas Haumann and

others, who are stated to be the experts in conducting research on

Electro-Magnetic radiation. It is, inter alia, stated in the report as

follows:

"The GSM technology of wireless communication produces constant pulsed microwave radiation. The cellular base stations are transmitting continuously even when nobody is using the phone. We know from a variety of scientific studies, that significant biological effects result from the non-thermal effects of extremely periodic pulsed-HF-radiation as are utilized in the most common modern digital cellular and cordless phone systems in Germany and round the world. Official international and national standards and safety guidelines (based on ICNIRP recommendations) are still only taking into account the risk of thermal effects of high energy HF- radiation. Most of the official HF public exposure measurements are conducted to observe the percentage of the current standard with only broadband-not frequency selective- measurements. Only in very few cases one or more percent of the (thermal) guideline value is reached or exceeded close to antenna sites. Exposure recommendations based on non-thermal effects are by far lower by many magnitudes. Frequency selective measurements are necessary to observe the cellular WPC.NO.14094/10 & CONN.CASES 56

base station downlink frequencies and differentiate from other radiation sources as FM radio or TV transmitters. Therefore, very limited information is available on the exposure to cellular base station radiation in residential areas at difference distances and directions to antenna sites. The objective of this field study was to collect measurement data, statistical evaluation, documentation and exposure assessment for cellular phone tower radiation in Germany. Measurements were conducted at different distances and directions, inside and outside of representative public and residential buildings. Frequency selective spectrum analysis was used to obtain capital GSM power densities following the current recommendations for capital GSM cellular phone radiation measurements."

Thereafter, there is reference to the methods employed, as follows:

" BELOW AND CLOSE TO ROOF TOP POSITIONS

Directly below roof top positions (e.g. schools, preschools homes) significant exposures in the range of a few 1,000 uW/m2 were observed due to secondary side lobes and reflections. During our data collection, highest exposure values in the range of 10,000-100,000 uW/m2 were observed very close to low antenna/roof top positions at inside and outside locations in line of sight and distance < 100 meter."

Summary:

WPC.NO.14094/10 & CONN.CASES 57

The results of this study show that the GSM cellular phone tower radiation is the dominating HF source in residential areas in Germany. The median power density is found in the range of 200 uW/m2 (50. percentile) with the maximum value exceeding 100,000 uW/m2. No location reached or exceeded the standard values for the USA or Germany. For comparison, thermal (official threshold), other non-thermal (recommendations), and cellular tower exposure reference values are listed in table

2..................Therefore, in respect to recent studies and review of articles regarding non-thermal biological effect of e.g. pulsed GSM radiation, the STOA study concluded with a considerable concern. For example 25% of the locations the long term exposure levels are very high above 1,000 uW/m2, which has been suggested to be the average threshold value for non-

thermal biological effects. These levels are reached especially is proximity of the antenna sites, directly below antenna sites and in line of sight in a distance of < 250 m. Two of the most important limiting factors are the distance and the direct line-of-sight to the antenna site. But, in proximity to the antenna site the GSM radiation levels are scattered due to various influencing parameters and cannot be calculated easily by using antenna power and distance models only. In general, exposures for without line of sight locations are about 90 % (-10 dB) lower than those for line of sight.

The Authors would conclude, inter alia, as follows:

" The human body reacts more complexly than acknowledged in the thermal model and is sensitive to WPC.NO.14094/10 & CONN.CASES 58

extreme periodic stimuli. The biological system takes the "energy" as well as the "information" which is brought by the continuous pulsed modulation pattern. Much experimental evidence of non-thermal influences of microwave radiation on living systems have been published in the scientific literature during the last 30 years - relating both to in vitro and in vivo studies - and were reviewed just recently by the STOA commission of the European Parliament (STOA 2001). From the use of microwave wireless technologies e.g. the following non-thermal biological effects have been reported:

Changes in the electrical activity in the human brain (VON KLITZING 1995)

Increase in DNA single and double strand breaks from RF exposure to 2.45 Ghz (LAI & SINGH 1996)

Increased lymphoma rates (2 fold) in transgenic mice exposed twice a day exposed to 30 minutes of cell phone (GSM) signals over 18 month (REPACHOLI 1997)

Increased permeability of the blood-brain barrier in rats (PERSSON 1997)

Production of heat shock proteins and cancer risk (FRENCH 2001)

Higher risk of uveal melanoma (STANG 2001)

Other reported effects include e.g. (STOA 2001): WPC.NO.14094/10 & CONN.CASES 59

7 Observation of an increase in resting blood pressure during exposure.

7 Increased permeability of the erythrocyte membrane. 7 Effects on brain electrochemistry (calcium efflux), 7 Increase of chromosome aberrations and micronuclei inhuman blood lymphocytes, 7 Synergistic effects with cancer promoting drugs and certain psychoactive drugs, 7 Depression of chicken immune systems, 7 Increase in chick embryo mortality, 7 Effects on brain dopamine/opiate electrochemistry, 7 Increase in DNA single and double strand breaks in rat brain, 7 Stressful effects in healthy and tumour bearing mice, 7 Neurogenetic effects and micronuclei formation in peritoneal macrophage.

From the scientific point of view adverse human health effects of non-thermal radiation levels cannot be exactly quantified, verified, or excluded at this time. Only limited toxicological information is available in respect to the widespread use and the economical impact of the cellular phone systems in industrial nations. On one side, there is always a demand for scientific proof for human adverse health effects and dose response when establishing official economically reasonable guideline exposure threshold values. On the other side, insufficient limit of detection, insufficient dosimetry and exposure control, and industry friendly research bias the risk assessment for long-term adverse health effects, especially in the field of the cellular phone industry. That makes it clear-that by definition-official guideline WPC.NO.14094/10 & CONN.CASES 60

standard values can only limit the consequences of adverse health effects in the frame of the economical impact. "

Under the head "recommendations", it is stated as follows:

" We recommend to follow the principle of prevention. This includes implementation of residential exposure minimization and prevention procedures in the frame of the technical feasibility as long as the non-thermal effects are not considered in any official standard and guideline. These will include especially sensitive locations as preschools, schools, hospitals and residential areas. So far, no other technical aspects than interferences, system coverage and system performance are taking into account. By official definition, the cellular phone system covers an area when the signal strength of about 0.001 uW/m2 is reached we expect that with little effort, cities, communities, and the providers will be able to significantly reduce the long term radiation exposures to cellular phone towers in residential areas. "

30. Ext.R11(k) purports to be the Minutes of the meeting

chaired by the Minister of Local Self Government Institutions. It

was decided to issue circular to ensure that when there are WPC.NO.14094/10 & CONN.CASES 61

complaints from the public about the siting of the tower, there

should be discussion and the matter should be settled and a

suitable place found out. It is also decided to not repeat the

process of illegally issuing stop memos. Ext.R11(l) (marked as

Ext.R3(i)) purports to be the report prepared by Prof.Girish

Kumar, Electrical Engineering Department, IIT Bombay, on the

Biological Effects of Electro Magnetic Radiation. The Author

would, inter alia, state as follows:

All the transmitting towers, such as AM and FM towers, TV

towers, cell towers etc emit RF/microwave radiation continuously.

Also, Wi-Fi (wireless Internet) wireless computers, cordless

phones and their base units, cell phones and all other wireless

devices emit microwave radiation. Cell phones operate within the

frequency band of 800 Mhz, 900 Mhz and 1800 Mhz and the latest

3G technology works between 1900-2200 Mhz. Microwave

radiation effect can be classified as thermal and non-thermal. The

thermal effect has been largely studied and refers to the heat that is WPC.NO.14094/10 & CONN.CASES 62

generated due to absorption of microwave radiation. Exposure to

thermal effect could cause fatigue, cataracts and reduced mental

concentration. Sadly, the current exposure safety standards are

purely based on the thermal effect while ignoring the non-thermal

effects of radiation. The Author refers to various reports in news

papers from across the world. It is, inter alia, stated as follows:

7 "Base stations affect health negatively,

Among people living closer than 300 m away from the base station, a French study found an increased incidence of tiredness within 300m, of headache, sleep disturbance, discomfort, etc, within 200 m, and of irritability, depression, loss of memory, dizziness libido decrease, etc. Within 100 m.

Women were found to complain significantly more often than men of headache, nausea, loss of appetite, sleep disturbance, depression, discomfort and visual perturbations. This study, based on the symptoms experienced by people living in vicinity of base stations recommend that the minimal distance of people from cellular phone base stations should not be < 300 m. (Santini R, et al 2002)

7 New Austrian research confirms health effects of base station radiation.

Another study where tests were done on subjects WPC.NO.14094/10 & CONN.CASES 63

living within 20-600 meters from Mobile Phone Base stations were found to have sleeping problems and effect on cognitive performance. (Hutter et al 2006)

7 Building Top Floors under the Antenna Closed After Brain tumor Alert

The Australian UK (5.13.2006)

After a seventh case of brain tumor observed among workers in the top floors of a Melbourne office building, the top floors were closed down and 100 people were evacuated. The mobile phone towers on the roof of the 17-storey RMIT University building were thought to be linked to the recurrent cancer cluster.

7 Three groups find danger of tumors

Sun Sentinel, florida (1.2.2006)

Three European research groups in separate studies have found an increased risk of brain tumors in people who have used the phones for 10 years or more. Two of the studies found a correlation between the tumor's location and the side of the head where people reported they held the phone (Hardell et al 2003).

One also suggests the greatest risk is in people who began using the phones before age of 20. Lennart Hardell found that the use of cell phones before age of 20 increased the risk of brain tumors by 5.2, compared to 1.4 for all ages."

WPC.NO.14094/10 & CONN.CASES 64

There is reference to increased brain cancer risk for people who

use the phone more intensively and for more years. There is again

reference to a German study and a research and it is stated as

follows:

" What they found is quite telling: the proportion of newly developed cancer cases was three times higher among those who had lived during the past ten years at a distance of up to 400m from the cellular transmitter site, compared to those living further away. They also revealed that the patients fell ill on average 8 years earlier.

Computer stimulation and measurements used in the study with both show that radiation in the inner area (within 400m) is 100 times higher compared to the outer area, mainly due to additional emissions coming from the secondary lobes of the transmitter."

The Author, would also say as follows:

" Mumbai has witnessed a spurt in the number of phone towers in the recent past exposing people to dangerously high levels of radiations. Being exposed to such radiations, this leads to problems like loss of appetite, irritation, fatigue, difficulty in concentrating, headaches, problems in vision, infertility and deformity of fetus. Medical experts feel it is a 'slow and invisible killer'."

WPC.NO.14094/10 & CONN.CASES 65

Under the heading "Radio-Wave Sickness", it is stated as

follows:

" Unfortunately, cell phone users are not the only ones, whose brains and ears are getting affected. Organs such as the lungs, nervous system, heart, eyes, testes and thyroid gland have been shown to be especially susceptible to radio waves.

Diseases such as asthma, sleep disorders, anxiety disorders, attention deficit disorder, autism, multiple sclerosis, ALS, Alzheimer's disease, epilepsy, fibromyalgia, chronic fatigue syndrome, cataracts, hypothyroidism, diabetes, malignant melanoma, testicular cancer, heart attacks and stokes in young people have increased remarkably in the last couple of decades, and have shown to be connected with massive increase in radiation in our environment. Radiation changes sleep rhythm, affect's body's cancer-fighting capacity by harming immune system and changes nature of electrical and chemical signals communicating between cells. These changes lead to functional changes in the nervous system. It also causes red blood cells to leak hemoglobin, leading to heart disease and kidney stones."

It is also stated as follows:

"Melatonin Reduction

" Melatonin is a powerful antioxidant, antidepressant and immune system enhancer that regulates our circadian rhythm. When availability of melatonin is WPC.NO.14094/10 & CONN.CASES 66

impaired, a whole range or disorders including sleep disturbances and psychological imbalances such as depression can occur (Abeline et al 1999)

Various studies show that exposure to EMR reduce melatonin levels in people (wilson et al. 1990. Wood et al 1998). Melatonin protects the brain against damage leading to Alzheimer's disease; hence degenerative diseases such as Alzheimer's and Parkinson's disease as well as cancer have been linked to suppressed melatonin production in the body."

It is stated that "keep out of Mobile phone towers/base stations."

Studies indicate an increased rate of diseases, including cancers,

within about 400 m from them." It is stated that the thermal

measurements taken at a cell phone base station have ranged as

high as 900W/KG whereas the permissible SAR level for cell

phone base station antenna is 100 W/KG. There is also reference

to significant environmental effects of cell tower radiations.

Referene is made to effect on birds, farm animals and vanishing of

bees.

W.P.(C).NO.31772/2009 N

31. Ext.R3(n) is the same Report by Professor Girish Kumar, WPC.NO.14094/10 & CONN.CASES 67

which we have already referred above, while Ext.R3(k) purports to

be a Circular issued in terms of the decision which we have also

already referred to, as per which where there is protest from the

public, suitable place has to be found out after discussion with the

public. In W.P.(C).No.13403/2010, Ext.R2(h) purports to be the

Report of Professor Girish Kumar which we have already referred

above.

32. Let us now examine the material produced by the

petitioners. Shri A. Mohamed Mustaque in his Compilation would

refer to WHO Paper on ionizing radiation. It states, inter alia, as

follows:

Energy emitted from a source is generally referred to as

radiation. Examples include heat or light from the sun,

microwaves from an Oven, X rays from an X-ray tube, and gamma

rays from radioactive elements. Ionizing radiation is stated to be

radiation with enough energy so that during an interaction with an

atom, it can remove tightly bound electrons from the orbit of an WPC.NO.14094/10 & CONN.CASES 68

atom, causing the atom to become charged or ionized. Ionizing

radiation occurs in waves or particles. Radiowaves, heat waves,

infrared light, visible light, ultraviolet light, X rays and Gamma

rays are different forms of electromagnetic radiation. They differ

only in frequency and wave length. It is also stated that longer

wave length, lower frequency waves (heat and radio) have less

energy than shorter wave length, higher frequency waves (X-ray,

gamma rays). Not all electromagnetic (EM) radiation is ionizing.

Only the high frequency portion of the electromagnetic spectrum is

ionizing. Another paper produced is stated to be part of a series of

background paper prepared for ITU Forum (International

Telecommunication Union Forum) of the regional working group

of the private sector issues, Asia and Pacific region, in New Delhi,

India. It is a Forum said to be jointly organized by the ITU and the

Cellular Operators' Association of India and hosted by the

Department of Telecommunications. In the same, it is, inter alia,

stated as follows:

WPC.NO.14094/10 & CONN.CASES 69

There is also lack of awareness that RF radiations emitted by

the mobile base station lie in the non-ionizing part of the

electromagnetic spectrum and thus do not have enough energy to

cause genetic damage. It is also not known to most people that the

average level of RF exposure from the base station is only 0.002

per cent, ie. 50,000 times lower than the levels laid down in the

recommended guidelines. Then, there is reference to the

electromagnetic spectrum and it is stated that the range of

frequencies used for radio transmissions, radio frequency (RF)

signals lie in the non-ionizing part in the electromagnetic spectrum

and do not have any energy to cause genetic damage. The WHO is

quoted and it is stated by it as follows:

"An adverse health effect causes detectable impairment of the health of the exposed individual or of his or her offspring; a biological effect, on the other hand, may or may not result in an adverse health effect.

It is not disputed that electromagnetic fields above certain levels can trigger biological effects. Experiments with healthy volunteers indicate that short-term exposure at the levels present in the WPC.NO.14094/10 & CONN.CASES 70

environment or in the home do not cause any apparent detrimental effects. Exposures to higher levels that might be harmful are restricted by national and international guidelines. The current debate is centred on whether long-term low level exposure can evoke biological responses and influence people's well being."

It is further stated as follows:

"Some people believe that there are possible thermal or non-thermal effects of exposure to RF fields. This refers to alleged effects at levels of exposure too low to cause detectable heating. Reports of such effects have been considered, however, the effects have not been substantiated and therefore, the heating or thermal effects are regarded as the only scientifically acceptable basis for RF exposure safety standards setting.

In commenting on reports of `thermal' effects ICNIRP concludes in the 1998 guidelines that:

Overall, the literature on thermal effects of AM (Amplitude Modulated) electromagnetic fields is so complex, the validity of reported effects so poorly established, and the relevance of the effects to human health so uncertain, that it is impossible to use this body of information as a basis for setting limits on human exposure to these fields."

It is again stated as follows:

"In 1995, Dr. Michael Repacholi commented in WPC.NO.14094/10 & CONN.CASES 71

a report prepared by him as the then Chairman of ICNIRP:

All learned reviews have concluded that the RF fields emitted from base stations do not have any known impact on health. While research is continuing to determine if there are any health effects from very low levels, it is only possible to make decisions based on our present knowledge. Regulators are well aware of the fact that physical agents such as X-Rays, asbestos and smoking were once considered safe but later studies revealed they were not. In the case of radio frequency, studies have continued for some 40 years and laboratory techniques are extremely sensitive. While it cannot be dismissed that subtle effects will be found in the future, it is comforting to know that a large amount of research has been conducted and international standards have not had to be lowered for more than fifteen years. Another point that needs to be remembered is that RF emissions from base stations are some 50,000 times lower than the levels at which the first health effects begin to be established."

It is also stated as follows:

"To date, all expert reviews on the health effect4s of exposure to RF fields have reached the same conclusion: There has been no adverse health consequences established from exposure to RF fields at levels below the international guidelines on exposure limits published by the International Commission on Non-Ionizing Radiation Protection". WPC.NO.14094/10 & CONN.CASES 72

33. In Compilation No.4 produced by Shri A. Mohamed

Mustaque, reference was made to a Paper on Health effects of

electromagnetic field by the Department of Communications,

Marine and Natural Resources, Ireland. It is stated that the Report

was compiled by a group of experts from the electromagnetic field.

An electromagnetic field is a generic term for fields of force

generated by electrical charges or magnetic fields. Under certain

circumstances, EMF can be considered as a radiation when they

radiate energy from the source of the fields. Electromagnetic

waves periodically change between positive and negative. The

number of changes per second is called the frequency and is

expressed in hertz. In response to the question, are there any

harmful health effects from living near base stations or using

mobile phones, is stated as follows:

"Response: From all the evidence accumulated so far, no adverse short or long term health effects have been shown to occur from exposure to the signals produced by mobile phones and base station transmitters. However, studies have mainly involved looking at cancer and cancer-related topics. Among WPC.NO.14094/10 & CONN.CASES 73

other studies being planned are prospective cohort studies of children and adolescent mobile phone users and studies of health outcomes other than brain cancer including more general health outcomes such as cognitive effects and sleep quality.

The only established adverse health effect associated with mobile phones is with traffic accidents. Research has clearly demonstrated an increase in the risk of traffic accidents when mobile phones (either hand held or with a hands-free kit) are used while driving."

Under the heading "Children and base stations", it is stated as

follows:

"Children and base stations:

It is common for the public to object to proposals to build phone masts in their neighbourhood. When the proposal involves the phone mast being located near a school or creche or health centre or indeed anywhere children gather the number of objections will usually increase.

In Ireland there are 4500 base stations in an area of just over 70,000 km2. If these masts were evenly distributed geographically no one would be more than 2.5 km from a mast. However because the distribution of masts reflects the distribution of the population, in urban areas no one is likely to be more than a kilometre from the nearest mast. This can be WPC.NO.14094/10 & CONN.CASES 74

confirmed by accessing the Communications Regulator's website www. ComReg.ie. It is clear that it is no longer possible for anyone, including children, to live anywhere in Ireland and not be exposed to the RF fields emitted by phone masts. However, it is equally the case that there is nowhere in Ireland where a child is not exposed to the RF fields produced by local, national and international radio and television broadcasting stations. Indeed there are now few adults who have not been exposed to radio broadcasts all of their lives. Furthermore, the fields from TV and radio stations are usually stronger than those from mobile phone masts.

One reason for the absence of concern regarding radio and TV is that broadcasting transmitters are more powerful than base station phone masts, so fewer of them are required to cover an area. However, over 500 transmitters are still required to provide national TV coverage. Another explanation is that radio and TV transmitters are generally located on high ground that is usually unpopulated; in the case of the most powerful transmitters exclusion areas are employed to restrict public access from the areas where the RF fields might exceed international guideline limits.

The levels of public exposure to phone masts are usually thousands and often tens of thousands times below the international limits. The highest exposures at ground level are found some 50 m to 300 m from the phone mast. Fields at ground level at the site and within 50 m of the mast are generally lower than those at 200 m to 300 m distance.

WPC.NO.14094/10 & CONN.CASES 75

National and international health advisory authorities have concluded that exposure to base station phone masts is not associated with adverse health effects. The position is summarised in a conclusion of the Stewart report (IEGMP, 2000):

"The balance of evidence indicates that there is no general risk to the health of people living near to base stations on the basis that exposures are expected to be small fractions of guidelines."

The fact that exposures are very small fractions of the internationally accepted guidelines of ICNIRP has been demonstrated by the Communications Regulator's "400 Site Survey" (ComReg, 2004). The WHO workshop on children's exposure to EMF (WHO, 2004) also concluded that from the low exposures and the scientific evidence collected to date, it appeared highly unlikely that the weak signals to which people are exposed from base stations could cause cancer or any other adverse health effects. This was explained in the WHO fact sheet on mobile phone base stations and wireless networks (WHO, 2006).

Children and base stations - conclusions:

There is no scientific basis for, or evidence of, adverse health effects affecting either children or adults as a result of their exposure to RF fields from phone masts.

This applies irrespective of the location of the phone mast. While the maximum exposures from a phone mast will occur at some distance from the mast, WPC.NO.14094/10 & CONN.CASES 76

and not in its immediate vicinity nor underneath it, the exposures are so low as to make it immaterial where masts are located with respect to schools, playgrounds, health centres or other places where children gather."

It is further stated as follows:

"ICNIRP ICNIRP is the formally recognised non-

governmental Organisation responsible for non- ionising radiation protection for WHO, the International Labour Office (ILO), and the EU. Among other things it provides guidelines on limiting the exposure of the public to EMF, optical radiation, ultrasound and infrasound. The ICNIRP guidelines limiting public and occupational exposure to EMF are endorsed by the WHO; have been adopted by a great many countries around the world; and are incorporated into an EU occupational exposure Directive (EU, 2004) and a public exposure Recommendation (EU, 1999). In Ireland, the ICNIRP guidelines have been adopted by both the Communications Regulator and the Commission for Energy Regulation.

ICNIRP guidelines and long-term exposure:

The ICNRP guidelines are based on comprehensive review of all relevant published peer- reviewed literature. Exposure limits are based on effects relating to short-term acute exposure as the above question implies. However, it is not the case that long-term exposures are disregarded or WPC.NO.14094/10 & CONN.CASES 77

discounted, it is simply that the available information on long-term effects is considered to be insufficient to establish exposure limits. For example, there have been several very large lifetime exposure studies involving animals. These studies have involved exposures to both ELF and RF fields, corresponding respectively to power line fields and mobile phone fields. So far, none of these studies have established any adverse health effects at exposures corresponding to the present guideline limits or at higher levels."

Under the head "Base stations", it is stated as follows:

"A common concern about base stations is that whole body exposure to the RF signals they emit may have long term health effects. To date, the only acute health effects identified from RF fields are related to increases in temperature of more than about 1oC, as discussed above. The levels of RF exposure from base stations (and other local wireless networks) are so low that the body's temperature rise is insignificant.

The strength of an RF field is greatest at its source and diminishes rapidly with distance. At or near ground level, in the vicinity of a typical 25-metre high base station mast, RF exposure is much lower than that received from a mobile phone. Because base station antennas do not radiate equally in all directions, but in a collimated beam tilted slightly to the ground, the maximum ground level exposure is always at some distance from the base of the mast. Recent measurements made in Ireland as part of the "400 Site" Survey (ComReg, 2004) indicate that RF WPC.NO.14094/10 & CONN.CASES 78

exposures from base stations are thousands of times below international exposure guidelines and are similar to or below those from radio and television broadcasting antennas.

Over the past 15 years a small number epidemiological studies have been undertaken to examine the association between cancer incidence and living near RF transmitters (UK, 2004; WHO, 2005). These studies have provided no evidence that RF exposure from transmitters increases the risk of cancer, even though the RF exposures are much higher than those found near base stations (WHO, 2006).

It is of interest to note that more of the energy from the RF fields emitted by TV and FM radio transmitters is absorbed in the body than those from base stations. This is because the frequencies used in FM radio (around 100 Mhz) and in TV broadcasting (around 450MHz to 600MHz) are lower than those employed in mobile telephony (900 Mhz and 1800 Mhz). At these lower frequencies the height of the adult human acts as a more efficient receiving antenna. Children, because of their smaller size, absorb somewhat more RF energy at higher frequencies than do adults. While radio stations have been broadcasting for 80 years and TV for over 50 years without being associated with adverse health effects, there has been only a limited amount of research undertaken in this area. Essentially, there have been few reasons to carry out such studies.

Mobile telephony involves the transmission of WPC.NO.14094/10 & CONN.CASES 79

complex digital signals. Soon many radio stations and most TV stations will also be transmitting their programmes digitally. Detailed reviews conducted on the possible health effects of digital signals have, so far, not revealed any hazard specific to different RF modulations (Foster and Repacholi, 2004; WHO, 2005).

In addition to these studies there have been occasional media reports of cancer clusters around mobile phone base stations and these have heightened public concern. When these clusters are analysed it is often found that the reported cluster doesn't exist. This can be due to a number of factors including multiple reporting of the same cases; some of the reported cancers having occurred many years before the existence of the base station; or that a number of the cancers were clearly associated with heavy smoking or some other more likely cause. Indeed, because cancer is primarily a disease that affects older people, over 20% of the Irish population will eventually die of cancer.

Although most cancer clusters reported in the media can be explained, the distribution of cancer in a population follows what is termed in statistics as a `Poisson distribution'. Because of this, the distribution of the incidence of cancer in small areas will be very uneven, with some locations having many more cases than the average, and others far fewer. Further, since there are 4500 phone masts in Ireland, distributed relatively evenly among the population, it is to be expected that at any location where a cancer cluster is reported, there is likely to be a phone mast. This does WPC.NO.14094/10 & CONN.CASES 80

not mean that the phone mast is the cause of the cluster."

34. Learned counsel for the Cochin Corporation referred to

the phenomenon of electromagnetic hypersensitivity. Under the

head "Electromagnetic Hypersensitivity", it is stated as follows in

the Irish Report (supra):

"Electromagnetic Hypersensitivity:"

What is EHS ?

The term `electromagnetic hypersensitivity' (EHS) is often used to denote a phenomenon where individuals experience adverse health effects while using or being in the vicinity of electric, magnetic, EMF sources and devices, and when the individuals themselves attribute their symptoms to EMF emissions from these sources and devices. There are no standardised diagnostic criteria available and, although the symptoms experienced vary substantially among the affected individuals, they are generally non-specific with no objective signs present. The severity of the condition varies; the majority of cases present mild symptoms, but some people experience severe problems with major consequences for work and everyday life (SSI, 2004).

There is little support for the term `electromagnetic hypersensitivity' to describe t4his WPC.NO.14094/10 & CONN.CASES 81

condition among medical specialists. The symptoms and the distress they cause clearly exist, but, so far, no study has been able to prove a link between EMF exposure and the occurrence of symptoms. At a recent workshop organised by the WHO on the subject (WHO, 2004), it was proposed that, the term should not be used. Instead the expression `idiopathic environmental intolerance' or IEI was suggested. The independent Expert Group to the Swedish Radiation Protection Agency, who also recommend against the use of the term `electromagnetic hypersensitivity', believe that any term that combines exposures and health consequences will hinder further studies (SSI, 2004)."

It also stated that in a Swiss EHS study, it was found that the most

common reported symptoms were sleep disorders, followed by

headaches, nervousness or distress, fatigue and concentration

difficulties. It is stated that, there is no doubt, that the symptoms

affecting EHS individuals (electromagnetic sensitivity) are real and

this has led national and international authorities to investigate and

determine. It is further stated as follows:

The authors in studies conducted in 2005, concluded that

while the symptoms described by EHS sufferers can be severe and

are sometimes disabling, it was difficult to show under blind WPC.NO.14094/10 & CONN.CASES 82

conditions that exposure to EMF can trigger these symptoms.

They concluded that EHS was unrelated to the presence of EMF

and this conclusion is shared by a United States review. It is also

stated that as sham exposure was sufficient to trigger severe

symptoms in some participants, psychological factors may have an

important role in causing this condition. In conclusion, it is stated

that a WHO workshop in Prague (WHO, 2004) attended by leading

European researchers on EHS, concluded that EHS has no

scientific basis to link its symptoms to EMF exposure. Further,

EHS is not a medical diagnosis, it is stated.

35. In Compilation No.2, Shri A. Mohamed Mustaque has

produced certain pages from the International Telecommunication

Union Paper from the Telecommunication News Magazine. It is,

inter alia, stated as follows:

"Many Brazilian cities have now established rules that limit radio station installations in urban areas. Also, there is a national regulation establishing limits for electromagnetic emissions, based on the International Commission on Non-Ionizing Radiation Protection (ICNIRP) guidelines. However, due to the WPC.NO.14094/10 & CONN.CASES 83

lack of a device to demonstrate that the levels of radiation are within permitted limits in the vicinity of a radio tower, the number of lawsuits has risen. Alongside municipal laws to slow down installations, this significantly complicates expansion projects.:"

It is also stated as follows:

"The monitoring system that was developed in Brazil performs continuous measurements and simulations of the intensity of non-ionizing radiation (NIR) produced by base stations of wireless telecommunication systems. The system allows users to see, via the internet, a map of actual electromagnetic emissions in their city, or to examine simulations of the emissions from changes to the wireless network."

Sri. A. Mohamed Mustaque has also relied on communication from

the Government of India, Department of Telecommunication

Engineering Centre. We find that it is stated as follows :

GENERAL

DOT vide letter No.800-15/2010-VAS dated 8th April 2010 has

directed all CMTS/UAS licensees for compliance of the reference

limits/levels prescribed by International Commission on Non-

Ionizing Radiation Protection (ICNIRP) for exposure for general

public in respect of electromagnetic emission by Base Transceiver

Stations (BTSs). The limits/reference levels are reproduced WPC.NO.14094/10 & CONN.CASES 84

below:

Type of Frequency Electric field Magnetic field Eqivalent Plane Exposure range strength (V/m) Strength (A/m) Wave Power Density S (W/m2)

General Public 400-2000 MHz 1.375f 0.0037f f/200

20300 GHz 61 0.16 10

f is the frequency of operation in Mhz.

TEC had published Test Procedure for measurement of EMF

from Base Transceiver Stations vide Document

Ref.No.TEC/TP/EMF/001/01.SEP 2009.The procedure seeks for

compliance of Electromagnetic Field exposure levels prescribed by

International Commission on Non-Ionizing Radiation Protection

(ICNIRP).

This document addresses the number of representations seeking

clarification received from associations of Service Providers and

with an objective to provide assistance to the Telecom Enforcement

Resource & Monitoring (TERM) Cells for audit verification of EMF

compliance of BTSs. It is very important to note that

Electromagnetic Emission should be below the above limits

prescribed for general public and if emission levels are higher,

those areas should be restricted for access to general public and

duly marked as exclusion zone. Adequate barricades should be

erected and signboard for caution of Electromagnetic Radiation

Hazard/Danger should be put on the likely entry points of the

exclusion zones.

This document serves as an addendum to the aforesaid TEC Test

Procedure. Based on the experience gained so far, it elaborates

the methodology, Calculations, Measurements and report formats

for verification of compliance of a BTS to the above limits." WPC.NO.14094/10 & CONN.CASES 85

36. The communication provides for estimation of EIRP (Total)

for each operator. It provides for various methods for compliance. It

also says mobile service operator should have proper signage warning

entry of general public of the exclusion zones. It provides for various

signs. They include warning non-ionizing radiation ! Beyond the

point RF fields exist that exceed the rules for human exposure

Authorised personnel only. It also states another sign danger RF

radiation ! Do not touch tower ! Access to Authorsed Personnel only !

Caution ! non-ionizing radiation!

37. Sri. A. Mohamed Mustaque also place reliance on the

communication dated 8.4.2010 from the Government of India to

CMTS/UAS Licensees.

"Licensee shall conduct audit and provide self certificates

annually as per procedure prescribed by Telecommunication

Engineering Centre (TEC)/ or any other agency authorized by

Licensor from time to time for confirming to limits/levels for

antennae (Base Station Emissions) for general public exposure as

prescribed by international Commission on Non-ionizing Radiation

Protection (ICNIRP) from time to time. The present limits/levels

are reproduced as detailed below:

WPC.NO.14094/10 & CONN.CASES 86

Frequen E-Field H-Field Power

cy range Strength Strength Density

(Volt/Me (Amp/M (Watt/Sq

ter eter .Meter

(V/m) (A/m) (W/Sq.m

)

400 1.375f 0.0037f f/200

MHz to

2000

Mhz

2GHz to 10

300GHz 61 0.16

(f= frequency in Mhz)

Note: The compliance in the form of Self Certificate shall

commence six months after the date of issue of prescribed test

procedure by TEC or any other agency authorized by Licensor."

2. TEC has since issued the test procedure

No.TEC/TP/EMF/001/01.SEP-2009 which has been intimated to

the Licensees vide letter dated 09.11.2009.

3. In view of the above, the following instructions are issued for

meeting the ICNIRP guidelines:

(i) All existing BTSs should be ICNIRP guidelines complaint by

08.05.2010 as the TEC test procedure has been circulated on

09.11.2009. Therefore,all BTSs should be self certified as meeting

the radiation norm. Self certification should be submitted to

respective Telecom Enforcement Resource & Monitoring (TERM)

Cells of DOT by 15.05.2010.

(ii). All new BTS sites should start radiating only after self

certificate has been submitted to relevant TERM Cells.

(iii) The TERM Cell will test up to 10% of new BTS sites randomly WPC.NO.14094/10 & CONN.CASES 87

at its discretion. Additionally, the BTS sites against which there

are public complaints, shall also be tested by TERM Cell. The

testing shall be done as per procedures prescribed by Telecom

Engineering Center (TEC) from time to time.

(iv) The cost of test for audit of EMF exposure from BTS shall be

borne by the the Mobile Service Operator, which shall be

Rs.10,000(Rs.Ten Thousands only) for one site/per Service

Provider.

(v) Tools and equipments for testing would be provided by the

concerned Mobile Service Provider to the TERM cell.

(vi) If a site fails to meet the EMR criterion, a penalty of Rs.5 lakh

shall be levied as per BTS per service provider. Service providers

must meet the criterion within one month of the report of TERM

cell in such cases, after which the site will be shut down.

(vii) The BTS site details would be hosted on Telecom Engineering

Center (TEC) website on submission of self test and registration

with TERM cell, giving the test result and mentioning that the BTS

site is self certified by the service Providers. Nature of compliance

will be mentioned against each BTS i.e. self certified, TERM

certified and not certified. After the BTS site has been tested by

TERM cell, status of the BTS site will be changed to be "TERM

certified."

(viii) The service providers also have the option of getting all the

BTS sites tested from TERM cell by paying the requisite fee. TERM

cell will test such sites at their discretion depending upon the

availability of resources with them. If they are not able to test

such sites either the test fee shall not be accepted or will be

refunded within a month's time, if a commitment to test the site

within next 6 months is not given."

WPC.NO.14094/10 & CONN.CASES 88

He has also produced communication to show terms of expanded

telecom enforcement and monitoring cells have been set up which

were formerly known as VTM cells. They have been entrusted with

functions including monitoring functions to inter alia check compliance

by the licensee in respect of license conditions and any directions

issued by the licensor in public interest. Petitioners have also

produced communication dated 8th June, 2010 referring to letter dated

8.4.2010 which were adverted to and which related to instructions on

implementation of radiation norms on EMF exposure by Base

Transceiver Stations. The time line for self certifying by stations was

extended by 6 months that is till 15.11.2010.

38. Mobile phone works on Electromagnetic radiation. In the

state of materials on record the radiation involved can safely be

treated as non-ionizing. It does cause thermal effect. But the thermal

effect produced is far too insignificant to constitute a perceptible health

hazard provided the radiation is confined to internationally prescribed

standards. Apparently, it is non-thermal effect which is engaging the

attention of researchers all over the world. We have already noticed

the concept of Electromagnetic Hypersensitivity.

39. There is an international body concerned with the effects of

such radiation. The standards prescribed by the said body is sought WPC.NO.14094/10 & CONN.CASES 89

be enforced by Government of India also. It is the view taken by the

large number of scientific experts that radiation in conformity with the

said standards have not been established to produce any health

hazards as such. At any rate, we do not think that it is appropriate

for this Court with the material as such on record alone to hold that

the respondents have established that siting of the tower would pose a

health hazard sufficient enough to warrant this court to decline

jurisdiction to grant police protection if the petitioners are otherwise

entitled to the same. We must notice that we are not called upon to

decide upon the question of health hazards emanating from the use of

mobile phones and a distinction must be maintained between the use

of mobile phones and the alleged dangers emanating from the

operation of a mobile tower. Going by the materials, it does appear

that there are international standards. Radiation in deviation from the

said standards is, in law, liable to be visited with serious consequences

including stoppage of the operations. It is not established before us

that these standards are being violated. We have to remind

ourselves that the use of mobile phone is a modern day wonder and

the contribution of technological advancement which has marked

the twentieth century, in particular. Undoubtedly, its use is WPC.NO.14094/10 & CONN.CASES 90

invaluable, not only to the individual as such, but to the Nation

itself, as it would be instrumental in bridging the communication

gaps that isolate, otherwise inaccessible areas of the country. Its

uses in a vast array of areas is so formidable that it can in one sense

be treated as a priceless boon of science. It cannot be gainsaid that

nothing comes without a price-tag and the resolution of every

problem of this nature must be in the adoption of a balanced view.

Needless to say, we do not mean that we have precluded the rights of

the respondents to approach the civil court and seek relief against the

petitioners by letting and producing materials as they are advised in

which case necessarily the civil court shall decide the matter

untrammelled by anything contained in this judgment.

40. The further question is whether any other permission is

required for operating the mobile towers other than the permit

under the Building Rules ?

We must deal first with certain preliminary objections in this

regard. We must address the argument of Shri Philip Mathew,

learned counsel for the petitioners that Section 233 will apply only WPC.NO.14094/10 & CONN.CASES 91

in a situation where Section 232 applies. Section 232 of the

Panchayat Raj Act reads as follows:

"232. Purpose for which places may not be

used without a licence.- (1) The Village Panchayat

may notify that no place in the Panchayat area shall

be used for any of the purposes specified in the rules

made in this behalf being purposes which in the

opinion of Government, are likely to be offensive or

dangerous to human life or health or property, without

a licence issued by the Secretary and except in

accordance with the conditions specified in such

licence:

Provided that no such notification shall

take effect until the expiry of thirty days from the date

of its publication. "

41. Government have framed the Kerala Panchayat Raj

(Licensing of Dangerous Trade) Rules, 1996. As per Section 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 WPC.NO.14094/10 & CONN.CASES 92

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 Section 232 as such. But, we should have regard to

the words used in Section 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 Section 233 that it must be a factory, workshop or workplace to

which Section 232 is applicable. The conspicuous omission to

refer to the same and the width of the language employed in

Section 233 leads us to hold that any factory, workshop or

workplace, be it included in Section 232 or not, in which it is WPC.NO.14094/10 & CONN.CASES 93

proposed to employ the steam power, water power, mechanical

power or electrical power will attract Section 233 and permission

must be sought and granted before construction or establishment.

Whether Central legislation occupies the field ?

Whether in pith and substance, the Panchayat Raj

Act and the Municipality Act fall under Entry 6 of

List II ?

42. We must also address the arguments raised on behalf of

the petitioners that no other permission is required to construct and

operate a mobile tower, in view of the fact that the Central

Legislation occupies the field. This argument is based on the

provisions of Entry 31 of List I of the VIIth Schedule. It reads as

follows:

"31. Posts and telegraphs; telephones, wireless,

broadcasting and other like forms of communication."

It is pointed out that in exercise of exclusive legislative power, the

Central Legislature has enacted the Wireless Telegraphy Act, the WPC.NO.14094/10 & CONN.CASES 94

Telegraph Act, and the TRAI Act. They occupy the entire field.

All aspects are covered by the Central Legislation. There is no

scope for the State Legislature to legislate in respect of

construction or operation of mobile towers, as mobile telephony is

embraced within the scope of Entry 31 of List I of the

Constitution, it is contended. Let us consider the provisions

contained in the Central Enactments. It is necessary that we

consider the scheme of the Central enactment as pressed by the

petitioners. The Indian Telegraph Act, 1885 defines the word

"telegraph" as follows:

"3.(1AA): "telegraph" means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images, and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, Radio waves or Hertzian waves, galvanic, electric or magnetic means;

Explanation.- "Radio waves" or "Hertzian waves" means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide."

Section 4 provides for power with the Central Government to grant WPC.NO.14094/10 & CONN.CASES 95

licence and it reads, inter alia, as follows:

"4. Exclusive privilege in respect of telegraphs, and power to grant licences:- (1) Within India, the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs:

Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments as it thinks fit, to any person to establish, maintain or work a telegraph within any part of India."

Section 8 provides for power with the Central Government to

revoke at any time any licence granted under Section 4 on the

breach of any other conditions contained therein or in default of

payment of any consideration payable thereunder. Section 9 being

relevant, we extract the same hereunder:

"9. Government not responsible for loss or damage.- The Government shall not be responsible for any loss or damage which may occur in consequence of any telegraph Officer failing in his duty with respect to the receipt, transmission or delivery of any message; and no such Officer shall be responsible for any such loss or damage, unless he causes the same negligently, maliciously or fraudulently."

WPC.NO.14094/10 & CONN.CASES 96

Section 9A provides for creation of a Universal Service Obligation

Fund. It is apposite to notice that Universal Service Obligation has

been defined in Section 3 (1A) to mean "the obligation to provide

access to telegraph services to people in the rural and remote areas

at affordable and reasonable prices." Section 9D provides that the

fund shall be utilised exclusively for meeting the Universal Service

Obligations. Section 10 of the Indian Telegraph Act provides for

power for the Telegraph Authority to place and maintain telegraph

lines and posts. Section 16 provides for powers conferred under

Section 10 in respect of property other than that of a Local

Authority.

43. The Indian Wireless Telegraphy Act was enacted in the

year 1933. Section 2(1) defines "wireless communication" as

follows:

"Sec.2(1): "Wireless communication" means any transmission, omission or reception of signs, signals, writing, images and sounds, or intelligence of any nature by means of electricity, magnetism, or Radio waves or Hertzian waves, without the use of wires or other continuous electrical conductors between the WPC.NO.14094/10 & CONN.CASES 97

transmitting and the receiving apparatus.

Explanation.- "Radio waves" or "Hertzian waves" means electromagnetic waves of frequencies lower than 3,000 gigacycles per second propagated in space without artificial guide."

"Wireless telegraphy apparatus" is defined as follows:

"Section 2. Definitions.- In this Act, unless there is anything repugnant in the subject or context,-

(2) "Wireless telegraphy apparatus" means any apparatus, appliance, instrument or material used or capable of use in wireless communication, and includes any article determined by rule made under Section 10 to be wireless telegraphy apparatus, but does not include any such apparatus, appliance, instrument or material commonly used for other electrical purposes, unless it has been specially designed or adapted for wireless communication or forms part of some apparatus, appliance, instrument or material specially so designed or adapted, nor any article determined by rule made under Section 10 not to be wireless telegraphy apparatus".

Section 2A defines the word "wireless transmitter" as follows:

"Sec.2A: "Wireless transmitter" means any apparatus, appliance, instrument or material used or capable of use for transmission or emission of wireless communication."

WPC.NO.14094/10 & CONN.CASES 98

44. The latest of the triology of enactments is the TRAI Act,

1997. The word "licensee" is defined as a person licensed under

Section 4 of the Telegraph Act for providing specific public

telecommunication services. "Service provider" is defined to mean

the Government as a service provider and includes a licensee

(Section 2(j)). Section 2(k) defines "telecommunication service" as

follows:

"Section 2(k): "Telecommunication service"

means service of any description (including electronic mail, voice mail, data services, audio tax services, video tax services, radio paging and cellular mobile telephone services) which is made available to users by means of any transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature, by wire, radio, visual or other electromagnetic means, but shall not include broadcasting services;

Provided that the Central Government may notify other service to be telecommunication service including broadcasting services."

Section 11 provides for powers and functions of the Authority

established under the Act. It reads as follows: WPC.NO.14094/10 & CONN.CASES 99

"S. 11: Functions of Authority.- (1) Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the functions of the Authority shall be to-

(a) make recommendations, either suo motu or on a request from the licensor, on the following matters, namely:-

(i) need and timing for introduction of new service provider;

(ii) terms and conditions of licence to a service provider;

(iii)revocation of licence for non-compliance of terms and conditions of licence;

(iv)measures to facilitate competition and promote efficiency in the operation of telecommunication services so as to facilitate growth in such services;

(v)technological improvements in the services provided by the service providers;

(vi) type of equipment to be used by the service providers after inspection of equipment used in the network;

(vii)measures for the development of telecommunication technology and any other matter relatable to telecommunication industry WPC.NO.14094/10 & CONN.CASES 100

in general;

(viii)efficient management of available spectrum;

(b) discharge the following functions, namely:-

(i)ensure compliance of terms and conditions of licence;

(ii)notwithstanding anything contained in the terms and conditions of the licence granted before the commencement of the Telecom Regulatory Authority of India (Amendment) Act, 2000, fix the terms and conditions of inter-

connectivity between the service providers;

(iii)ensure technical compatibility and effective inter-connection between different service providers;

(iv)regulate arrangement amongst service providers of sharing their revenue derived from providing telecommunication services;

(v)lay-down the standards of quality of service to be provided by the service providers and ensure the quality of service and conduct the periodical survey of such service provided by the service providers so as to protect interest of the consumers of telecommunication service;

(vi)lay-down and ensure the time period for providing local and long distance circuits of telecommunication between different service WPC.NO.14094/10 & CONN.CASES 101

providers;

(vii)maintain register of interconnect agreements and of all such other matters as may be provided in the regulations;

(viii)keep register maintained under clause (vii) open for inspection to any member of public on payment of such fee and compliance of such other requirement as may be provided in the regulations;

(ix)ensure effective compliance of universal service obligations;

) levy fees and other charges at such rates and in respect of such services as may be determined by regulations;

(d)perform such other functions including such administrative and financial functions as may be entrusted to it by the Central Government or as may be necessary to carry out the provisions of this Act:

Provided that the recommendations of the Authority specified in clause (1) of this sub-section shall not be binding upon the Central Government.

Provided further that the Central Government shall seek the recommendations of the Authority in respect of matters specified in sub-clauses (1) and (ii) of clause (a) of this sub-section in respect of new licence to be issued to a service provider and the WPC.NO.14094/10 & CONN.CASES 102

Authority shall forward its recommendations within a period of sixty days from the date on which that Government sought the recommendations:

Provided also that the Authority may request the Central Government to furnish such information or documents as may be necessary for the purpose of making recommendations under sub-clauses (i) and

(ii) of clause (a) of this sub-section and that Government shall supply such information within a period of seven days from receipt of such request.

Provided also that the Central Government may issue a licence to a service provider, if no recommendations are received from the Authority within the period specified in the second proviso or within such period as may be mutually agreed upon between the Central Government and the Authority:

Provided also that if the Central Government having considered that recommendation of the Authority, comes to a prima facie conclusion that such recommendation cannot be accepted or needs modifications, it shall, refer the recommendation back to the Authority for its reconsideration, and the Authority may within fifteen days from the date of receipt of such reference, forward to the Central Government its recommendation after considering the reference made by that Government. After receipt of further recommendation, if any, the Central Government shall take a final decision.

(2)Notwithstanding anything contained in the Indian Telegraph Act, 1885 (13 of 1885), the WPC.NO.14094/10 & CONN.CASES 103

Authority may, from time to time, by order, notify in the Official Gazette the rates at which the telecommunication services within India and outside India shall be provided under this Act including the rates at which messages shall be transmitted to any country outside India:

Provided that the Authority may notify different rates for different persons or class of persons for similar telecommunication services and where different rates are fixed as aforesaid, the Authority shall record the reasons therefor.

(3)While discharging its functions under sub-

section (1) or sub-section (2) the Authority shall not act against the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality.

(4) The Authority shall ensure transparency while exercising its powers and discharging its functions."

45. The Authority under Section 12 is empowered to call

upon any service provider to furnish information or explanation, to

appoint one or more persons to conduct an enquiry into the affairs

of any service provider. Section 13 provides for power with the

Authority to issue directions for the discharge of functions under WPC.NO.14094/10 & CONN.CASES 104

Sub-sec.(1) of Section 11 to the service provider on matters

specified in Clause 11(1)(b). The Act provides for an Appellate

Tribunal. Section 15 provides that no civil court shall have

jurisdiction in respect of any matter for which the Appellate

Tribunal was empowered by or under the Act, to determine and no

injunction can be granted by any court or other authority in respect

of any action taken or to be taken in pursuance of the Act. A

further right of Appeal is created to the Apex Court. The order of

the Appellate Tribunal can be executed as a decree. There is a bar

of jurisdiction of the civil court in respect of any matter which the

Authority is empowered to determine (See Section 27). Obviously,

all these enactments can be traced to the power of Parliament under

Entry 31 of List I.

46. Per contra, as already noted, the learned Government

Pleader draws our attention to Entry 6 of List II which provides as

follows:

"6. Public health and sanitation; hospitals and dispensaries." WPC.NO.14094/10 & CONN.CASES 105

In State of Rajasthan v. G. Chawla and another (AIR 1959 SC

544), the prosecution was launched against the respondents for

breach of two conditions of the Permit granted to the first

respondent to use sound amplifiers. Reliance was successfully

placed by the respondents on Entry 31 before the High Court. The

State relied on Entry 6 of List II. The Apex Court in appeal,

however, held as follows:

"These Entries, it has been ruled on many an

occasion, though meant to be mutually exclusive are

sometimes not really so. They occasionally overlap,

and are to be regarded as enumeratio simplex of

broad categories. Where in an organic instrument

such enumerated powers of legislation exist and there

is a conflict between rival Lists, it is necessary to

examine the impugned legislation in its pith and

substance, and only if that pith and substance falls

substantially within an Entry or Entries conferring

legislative power, is the legislation valid, a slight

transgression upon a rival List, notwithstanding." WPC.NO.14094/10 & CONN.CASES 106

Thereafter, the Court further held as follows:

"12. There can be little doubt that the growing

nuisance of blaring loud-speakers powered by

amplifiers of great output needed control, and the

short question is whether this salutary measure can be

said to fall within one or more of the Entries in the

State List. It must be admitted that amplifiers are

instruments of broadcasting and even of

communication, and in that view of the matter, they

fall within Entry 31 of the Union List. The

manufacture, or the licensing of amplifiers or the

control of their ownership or possession, including the

regulating of the trade in such apparatus is one

matter, but the control of the `use' of such apparatus

though legitimately owned and possessed, to the

detriment of tranquillity, health and comfort of others

is quite another. It cannot be said that public health

does not demand control of the use of such apparatus

by day or by night, or in the vicinity of hospitals or

schools, or offices or habited localities. The power to

legislate in relation to public health includes the

power to regulate the use of amplifiers as producers of WPC.NO.14094/10 & CONN.CASES 107

loud noises when the right of such user, by the

disregard of the comfort of and obligation to others,

emerges as a manifest nuisance to them. Nor is it any

valid argument to say that the pith and substance of

the Act falls within Entry 31 of the Union List, because

other loud noises, the result of some other instruments

etc., are not equally controlled and prohibited.

13. The pith and substance of the impugned Act

is the control of the use of amplifiers in the interests of

health and also tranquillity, and thus fails

substantially (if not wholly) within the powers

conferred to preserve, regulate and promote them and

does not so fall within the Entry in the Union List, even

though the amplifier, the use of which is regulated and

controlled is an apparatus for broadcasting or

communication."

This Judgment has been referred to in State of Maharashtra v.

Bharat Shantilal Shah & Others ((2008) 13 SCC 5). Shri Philip

Mathew submits that, that was a case where there was no

legislation as enacted by the Central Legislature whereas in this WPC.NO.14094/10 & CONN.CASES 108

case, enactments, like the Telegraph Act, etc. which we have

referred to have been enacted and that makes the difference and it

is contended that if the Panchayat Raj Act and the Municipalities

Act are interpreted as empowering the local bodies to insist on

obtaining permission as contended by the respondents, it would

amount to a transgression by the State Legislature into an area

reserved by the Constitution exclusively for the Central

Legislature.

47. We must notice in this regard certain provisions of the

Constitution. Articles 246 and 254 of the Constitution read as

follows:

"246: Subject-matter of laws made by

Parliament and by the Legislatures of States.- (1)

Notwithstanding anything in clauses (2) and (3),

Parliament has exclusive power to make laws with

respect to any of the matters enumerated in List I in

the Seventh Schedule in this Constitution referred to as

the "Union list".

(2) Notwithstanding anything in clause (3), WPC.NO.14094/10 & CONN.CASES 109

Parliament and, subject to clause (1), the Legislature

of any State also, have power to make laws with

respect to any of the matters enumerated in List III in

the Seventh Schedule (in this Constitution referred to

as the "Concurrent List").

(3) Subject to clauses (1) and (2), the Legislature

of any State has exclusive power to make laws for such

State or any part thereof with respect to any of the

matters enumerated in List II in the Seventh Schedule

(in this Constitution referred to as the "State List").

(4) Parliament has power to make laws with

respect to any matter for any part of the territory of

India not included in a State notwithstanding that such

matter is a matter enumerated in the State List."

254. Inconsistency between laws made by

Parliament and laws made by the Legislatures of

States.-(1) if any provision of a law made by the

Legislature of a State is repugnant to any provision of

a law made by Parliament which Parliament is

competent to enact, or to any provision of an existing

law with respect to one of the matters enumerated in

the Concurrent List, then, subject to the provisions of

clause (2), the law made by Parliament, whether WPC.NO.14094/10 & CONN.CASES 110

passed before or after the law made by the Legislature

of such State, or, as the case may be, the existing law,

shall prevail and the law made by the Legislature of

the State shall, to the extent of the repugnancy, be

void.

(2) Where a law made by the Legislature of a

State with respect to one of the matters enumerated in

the Concurrent List contains any provision repugnant

to the provisions of an earlier law made by Parliament

or an existing law with respect to that matter, then, the

law so made by the Legislature of such State shall, if it

has been reserved for the consideration of the

President and has received his assent, prevail in that

State:

Provided that nothing in this clause shall

prevent Parliament from enacting at any time any law

with respect to the same matter including a law adding

to, amending, varying or repealing the law so made by

the Legislature of the State."

48. Sub-article (1) of Article 246 confers exclusive power on

Parliament to make laws in respect of matters in List I. This power

is conferred notwithstanding anything contained in Clauses (2) and WPC.NO.14094/10 & CONN.CASES 111

(3) of the same Article. Article 246 (2) deals with matters in the

concurrent list with which we are not concerned. Sub-article (3)

deals with the exclusive power of the State Legislature to make

laws in respect of matters in List 2 of the VIIth Schedule. It is

pertinent to note that Article 246(3) begins with the words "Subject

to Clauses (1) and (2)". Thus, the scheme of Article 246 is

essentially the supremacy of the Parliament in the federal set up

envisaging distribution of legislative powers between the two

legislative organs. This result is inevitable, bearing in mind, the

non-obstanti clause in Article 246(1) and it is made clear further by

the opening words of Sub-article (3) as the power of the

Legislature of the State is made subject to Clauses (1) and (2).

49. Lists 1 to 3 of the VIIth Schedule enumerate, as it is well

settled, fields of legislation. Individual entries are to be construed

in a most wide and liberal manner. The framers of the Constitution

have designed the lists intending to deal with different fields of

legislation. However, overlapping cannot be ruled out and WPC.NO.14094/10 & CONN.CASES 112

experience shows that often, superior Courts have had to deal with

the issue arising from legislative exercises made by Parliament and

the State Legislatures, giving rise to questions of occupied field,

doctrine of pith and substance and repugnancy. It is to be at once

noted that essentially the doctrine of repugnancy is appropriately

traceable to Article 254 of the Constitution. The scheme of Article

254 would appear as follows:

Both Parliament and the State Legislatures have legislative

power to legislate on the fields of legislation indicated in List 3.

However, any law made by the State Legislature must give way to

the law made by the Parliament, if the provisions are irreconcilable

or in other words, if the provisions of the law made by the State is

repugnant to the law made by the Parliament. Of course, Sub-

article (2) provides for the exceptional case whereunder State

Legislature makes a law and reserves the Bill for the assent of the

President and assent is accorded. In such an event,

notwithstanding the provisions contained in such law which are WPC.NO.14094/10 & CONN.CASES 113

repugnant to the Central Legislation, the State law will prevail in

the State over the Central law.

50. Coming back to Article 246, it becomes necessary to

appreciate that since the Lists have been made intending to

earmark different and exclusive fields of legislation for Parliament

and the State Legislatures (Lists 1 and 2), it is the duty of the

Courts when faced with the contention that the law made by the

State constitutes an encroachment upon the legislative province of

the Parliament, to conduct an enquiry as to what is the true scope

of the enactment in substance. That is to say, the Court will look at

the entries and the law and find out whether, in pith and substance,

the law actually is encompassed within the four walls of an entry in

List 2 and encroachment if any, on a matter covered by List 1, is

purely incidental. This is what the doctrine of pith and substance

is all about. In that juncture, it is also necessary to bear in mind the

aspect theory. A subject matter may have different aspects and,

therefore, a subject matter can give rise to the two legislatures WPC.NO.14094/10 & CONN.CASES 114

possessing legislative power in respect of the different aspects of

the very same subject matter. It is only if after effort is made to

harmonise the different legislation and if possible, to support the

legislation, if it is in substance supported by the entries in List 2

and it becomes impossible for both the Central legislation and

State legislation to operate together that the Courts would be

constrained to hold to accord supremacy to the Central legislation.

This, we think, is the effect of the various decisions.

51. We would only refer to a few. In Kerala State

Electricity Board v. The Indian Aluminium Co. Ltd. (1976 (1)

SCC 466), the Court, inter alia, held as follows:

"There is, in the arguments on behalf of the respondents, a certain amount of confusion. The question of repugnance arises only in case both the legislations fall within the same (sic entry in ) List III. There can, therefore, be no question of repugnance between the Electricity Act and the Electricity (Supply) Act on the one hand and the Kerala Act on the other, if the former fall in List I or List III and the latter in List II. If any legislation is enacted by a State Legislature in respect of a matter WPC.NO.14094/10 & CONN.CASES 115

falling within List I that will be without jurisdiction and therefore void.........In view of the provisions of Article 254, the power of Parliament to legislate in regard to matters in List III, which are dealt with by clause (2), is supreme. The Parliament has exclusive power to legislate with respect to matters in List I. The State legislature has exclusive power to legislate with respect to matters in List II. But this is subject to the provisions of clause (1) [leaving out for the moment the reference to clause (2)]. The power of Parliament to legislate with respect to matters included in List I is supreme notwithstanding any thing contained in clause (3) [again leaving out of consideration the provisions of clause (2)]. Now what is the meaning of the words "notwithstanding"

in clause (1) and "subject to" in clause (3) ? They mean that where an entry is in general terms in List II and part of that entry is in specific terms in List I, the entry in List I takes effect notwithstanding the entry in List II. This is also on the principle that the 'special' excludes the 'general' and the general entry in List II is subject to the special entry in List I. For instance, though house accommodation and rent control might fall within either the State list or the concurrent list, Entry 3 in List I of Seventh Schedule carves out the subject of rent control and house accommodation in cantonments from the general subject of house accommodation and rent control (see Indu Bhusan v. Sundari Devi). Furthermore, the word 'notwithstanding' in clause (1) also means that if it is not possible to reconcile the two entries the entry in List I will prevail. But before that happens attempt should be made to decide in which list a particular legislation falls. For deciding under WPC.NO.14094/10 & CONN.CASES 116

which entry a particular legislation falls the theory of "pith and substance" has been evolved by the courts. If in pith and substance a legislation falls within one list or the other but some portion of the subject-matter of that legislation incidentally trenches upon and might come to fall under another list, the Act as a whole would be valid notwithstanding such incidental trenching. These principles have been laid down in a number of decisions."

52. Interestingly, the question arose as to whether the

doctrine of pith and substance is applicable to a situation where the

law made by the Central Legislature and the law made by the State

Legislature, though falling in the Concurrent List were under

different Entries. Justice K. Ramaswamy, took the view that the

doctrine of pith and substance cannot be employed in such a

scenario, but the majority held the view that even if the legislation

is apparently conflicting and is traceable to different Entries in the

Concurrent List, the doctrine of pith and substance is available to

ascertain whether there is repugnancy (See Vijay Kumar Sharma

And Others v. State of Karnataka and Others (1990 (2) SCC

562). We would think essentially, the concept of "occupied field" WPC.NO.14094/10 & CONN.CASES 117

is more apposite in the context of the doctrine of repugnancy

which is applicable only when the legislation in question is

traceable to the Concurrent List. As far as the question as to

whether the legislation falls in the Entries in List I or II, it is to be

resolved with the aid of the doctrine of pith and substance and as

held in the Indian Aluminium Company's Case (supra), it is only

if it is not possible to reconcile two legislations, the law made by

Parliament will prevail and it is for deciding as to under which

Entry the legislation falls, the theory of pith and substance is

employed.

53. Now let us deal with the specific legislation and entries.

Entry 31, no doubt, deals with posts and telegraphs, telephones,

wireless, broadcasting and other like forms of communications. It

is true that in the exercise of the legislative power conferred under

Entry 31, Parliament has enacted the Telegraph Act, Wireless

Telegraph Act and TRAI Act. It is also equally true that mobile

phone and the erection of towers are comprehended within the WPC.NO.14094/10 & CONN.CASES 118

scope of the Telegraph Act and TRAI Act. We have already

extracted Section 11 conferring functions upon the Authority under

the TRAI Act. We have also extracted and referred to the

provisions in the Telegraph Act. We would think that the said

enactments do not specifically deal with the place where the

mobile towers are to be located. They do not appear to deal with

the sites of the mobile towers. Section 233 of the Panchayat Raj

Act and the corresponding provisions of the Municipalities Act, on

the other hand purport to deal with the issue of public health in

substance. It is at this juncture, we must recall the words of Entry

6 of List II. The State Legislature under the said Entry is

empowered to make laws in regard to public health and sanitation,

inter alia. Therefore, the State Legislature has the exclusive power

to make laws in respect of public health. If, therefore, we conclude

that mobile tower is a "work place" or/and the component parts are

"machinery" and, therefore, permission under the State enactment

is mandatory and since, the purport of the State enactment is the WPC.NO.14094/10 & CONN.CASES 119

protection of the public health by way of obviating or minimising

nuisance and pollution, particularly in the context of a densely

populated area, then necessarily we must hold that in pith and

substance, Section 233 of the Panchayat Raj Act, is a law which

falls in Entry 6 and, when it applies to the mobile tower or to the

"machinery" therein, the encroachment, if we consider it as one, on

the powers of the Central Legislature under Entry 31 of List 1, is

barely incidental. We would appear to be fortified in the view we

take, having regard to the principle laid down by the Apex Court in

Chavlas case (supra) (AIR 1959 SC 543). No doubt, Shri. Philip

Mathew has contended that, that was a case where there was no

law made by the Parliament, but in this case, there are laws made

by the Parliament as aforesaid occupying the field and they cannot

square with each other. We have already found that nothing in the

laws made by the Parliament really deal with the question of sites

of the mobile towers or the public health aspects. We must take it

that the Parliament was aware that public health is the subject WPC.NO.14094/10 & CONN.CASES 120

which is consigned under the Constitution to be exclusive domain

of the State Legislatures. This is particularly so, having regard to

the fact that it is a local legislature which would be better

equipped, to know more of the specific problems having regard to

the topography, the density of population, the salient features

which are present in one State, which may not be present in

another State. The matter is best left for the consideration of the

legislatures of the different States. We must note that the

petitioners do not have any compliant about acquiring a permit

under the Municipal Building Rules for constructing the towers.

Entry 5, in fact, of List II deals with Local Government, that is to

say, the constitution and powers of Municipal Corporations,

Improvement Trusts, District Boards, Mining Settlement

Authorities and other local Authorities for the purpose of Local

Self Government or village administration. There cannot be any

dispute that the Panchayat Raj Act and the Municipality Act and

also the Building Rules made under the Municipality Act which WPC.NO.14094/10 & CONN.CASES 121

are made applicable to the Panchayats also in the State of Kerala

are traceable to Entry 5 of List II. It is not the case of the

petitioners that (except BSNL where also it relies ultimately on the

Rules) they are exempted from taking the permit under the

Building Rules. If the argument of the petitioners were to be

accepted, then, could it not also be argued that as they have licence

under the Central enactment that is, under the Telegraph Act, they

are free to put up the tower free from all control and without any

restrictions. Therefore, this aspect also would go a long way to

reinforce us in our view we take that the Central enactments,

namely the Wireless Telegraphy Act, the Telegraph Act and the

TRAI Act, notwithstanding, the State Legislature is not denuded

of the legislative power under Entry 6 to make laws to protect

public health or otherwise, catering to public health and we have

no doubt in our minds that the provisions of the Panchayat Raj Act

is geared in substance to preserve and protect the public health.

We, therefore, repel the contention of the petitioners that no other WPC.NO.14094/10 & CONN.CASES 122

permission can be predicated from State Legislatures in their

attempts to secure public health, if otherwise, the activities in

question attract the wrath of the provisions.

Whether a base station is a "workplace" under

Section 233(1) (a) of the Panchayat Raj Act and

corresponding provision of the Municipality Act ?

54. The arguments of some of the petitioners would appear to

be that they have approached this Court seeking protection for

construction of the towers. They are either the infrastructure

providers or persons who have entered into agreements with

infrastructure providers. They would contend that as per the interim

orders they have already proceeded with the construction and the

embargo against the commissioning of the tower was put only because

of the view taken by the Division Bench that a writ for police

protection would not lie in the matter and now that the Full Bench has

held that a writ of police protection would lie, it is contended that no

dispute remained in the matter. It is also contended that they have

not put up any equipment.

55. Shri. P. Chandrasekhar, however, would point out that the

matter was left open by the Full Bench and interim orders were WPC.NO.14094/10 & CONN.CASES 123

obtained under which they proceeded to construct and it does not lie in

their mouth to say that this court should not go into the question as to

whether any other permission is required. He would contend that it

does not suffice to operate a tower unless permission is obtained

under Sec.233 of the Panchayat Raj Act, as the tower when it is

operational, is a workplace. He would further contend that the

permission under Chapter XXI of the Panchayat Raj Act would be

required to put up the tower as it is a "building" as defined under the

Act. It is necessary in this context to refer to the pleadings in the

cases in which he appears. In W.P.(C).No.24384/09, in the Counter

Affidavit filed by respondents 3 to 6, it is, inter alia, stated that Section

235H of the Kerala Panchayat Raj Act prohibits construction without

permission. It is also stated that Section 235B to G has not been

satisfied in respect of the mobile tower and, therefore, the construction

is illegal. It is also stated that the Permit is granted to construct tower

on the building which is only about 150 Sq. Feet and it is issued

without inspecting the said building and without any application of

mind. The mobile tower is stated to be a building. There is no Reply

Affidavit filed. In W.P.(C).no.14094/2010, in the Counter Affidavits

filed by respondents 5 and 9, it is, inter alia, stated as follows: WPC.NO.14094/10 & CONN.CASES 124

Petitioner has not obtained from the Secretary of the Panchayat,

approval of the site where the telecommunication tower is sought to be

constructed under Section 235F. The telecommunication tower is a

"building" and site approval is mandatory. Without site approval,

permission cannot be granted under Section 235G. It is further stated

specifically that the mobile base station or telecommunication tower is

a "workplace" and, therefore, permission is necessary under Section

232 and permission has not been obtained. It is also stated that

Permit under the Building Rules is not sufficient, as the Rules are

subordinate legislation and permission under Section 232 and approval

and sanction under Section 235F and G are necessary. Petitioner does

not have all the Permits and approval required for construction of

telecommunication tower. Shri P. Chandrasekhar would point out that

the respondents had in mind permission under Section 233 of the

Panchayat Raj Act in answer to the contention of the petitioners that a

case under Section 233 was not specifically pleaded. In the Reply

Affidavit filed by the petitioner in this case, it is, inter alia, stated that

there is no prescribed form for issuing Permit under Section 235H of

the Kerala Panchayat Raj Act. It is further stated that Section 235F

and 235H of the Panchayat Raj Act should be read harmoniously vis-a-

vis the Building Rules. It is further stated that when there is no WPC.NO.14094/10 & CONN.CASES 125

prescribed form in the Act, it is to be interpreted that if the petitioner

submits application under Rule 141 (1) of the Building Rules and the

Secretary of the Panchayat issues the Permit under Rule 141(8), it

should be presumed that the mandates contained in Section 235F and

235H has been complied with. No separate permission is required

from the Panchayat under Section 235J, if the building permit is

obtained under the Kerala Municipality Building Rules. After 6.6.2007,

applications for permit is under Rule 141 (1) of the Building Rules and

prior to the said date, on applications being given to the Panchayat

Authority under Section 235F, No Objection Certificates were being

issued under Section 253J of the Panchayat Raj Act. It is stated that

the telecommunication tower will not come under Section 232.

Telecommunication tower is not a "work place", it is contended. There

are other allegations.

56. Sri. Vinod Madhavan, learned counsel on behalf of the

Panchayat in the writ petition, as noted, has also contended that the

component parts of a tower would constitute machinery under

Sec.233 (1) (b) of the Panchayat Raj Act. There is no pleading by

any of the local authorities that permission is required under Sec.233

or any other provision. Of course, Sri. P. Chandrasekhar would

contend that the component parts would constitute machinery and WPC.NO.14094/10 & CONN.CASES 126

their installation must be preceded by permission. But, at any rate he

would submit that, that may be an issue to be gone into by the

primary authority, namely the local body. Learned Government Pleader

would submit that the tower would not be a "work place", but the

component parts would constitute "machinery".

57. Considering the matter, we are of the view that we must

go into the question as to whether the mobile tower when it is

operational would constitute a workplace. The word 'workplace' has

not been defined in the Act. So also, the words "factory" and

"workshop" are not defined in the Act. As far as the word "factory" is

concerned, the Factories Act 1948 (Central enactment ) defines the

word "factory". The words "factory", "workshop" and "workplace" are

all defined in the Travancore-Cochin Public Health Act 1955. They read

as follows:

"2. Definitions.- In this Act, unless there is

anything repugnant in the subject or context,-

(12) "Factory" means any premises, including the

precincts thereof, wherein any industrial, manufacturing

or trade process is carried on with the aid of steam,

water, oil, gas, electrical or any other form of power

which is mechanically transmitted and is not generated by

human or animal agency."

(42) "Workplace" means any premises including WPC.NO.14094/10 & CONN.CASES 127

the precincts thereof (not being a factory or a workshop),

wherein is carried on any industrial, manufacturing or

trade process, at which not less than five persons are

employed for wages or any other remuneration."

(43) "Workshop" means any premises including the

precincts thereof (not being a factory), wherein any

article or part of an article is made, repaired, altered,

ornamented, finished or otherwise adapted for use on a

commercial basis and not less than five persons are

employed for that purpose for wages or any other

remuneration."

58. If we go by the definition of "workplace" in the Public

Health Act, undoubtedly there can be no doubt that the mobile tower

would not be a workplace for the simple reason that there is no

industrial, commercial or trade activities involved therein. The

requirement of five employees also is not fulfilled. However, the

argument of Sri. P. Chandrasekar is that the context and the object of

the Public Health Act differs from the object of the Panchayat Raj Act

and Municipalities Act. He would seek to establish this pointing out

that Sec.39 of the Travancore-Cochin Public Health Act which deems

certain acts and omissions as nuisance would go to indicate that the

legislature was actually concerned with the interest of the employees

in the workplace, factories and workshops and that was why a criteria WPC.NO.14094/10 & CONN.CASES 128

based on the number of employees is provided in the definition of the

word 'workplace' also. He would also rely on the judgment of the Apex

Court in Consumer Education and Research Centre and Others v.

Union of India and others (AIR 1995 SC 923) wherein the Apex

Court has stated as follows:

"30. It would thus be clear that in an appropriate case, the Court

would give appropriate directions to the employer, be it the State

or its undertaking or private employer to make the right to life

meaningful; to prevent pollution of work place; protection of the

environment; protection of the health of the workman or to

preserve free and unpolluted water for the safety and health of the

people. The authorities or even private persons or industry are

bound by the directions issued by this Court under Article 32 and

Article 142 of the Constitution."

He would further contend that having regard to the wording of Sec.233

of the Panchayat Raj Act, while each and every place may not be a

workplace for the mere reason that some work is being done, the

crucial criteria to render a place as "workplace" within the meaning of

Sec.233 would be whether the principal work is one which is done with

the aid of power. Where work is done employing steam power, water

power, mechanical power or electric power, it would be a workplace,

he submits. He would say that an Advocate's office may not be a

workplace. He would contend that in an Advocate's office, the chief

work would be the intellectual work of the lawyer and while there may WPC.NO.14094/10 & CONN.CASES 129

be fans, lights and even computers, the main work is not done by

using electricity. There is also no propensity for such work to produce

any nuisance or pollution and the work by itself is innocuous. Thus, in

a general sense while it can be said that a place where the work is

done would be a workplace, Sri. P. Chandrasekhar would contend that

it is not his case that all places where any work is done would be

workplace. He draws the distinction which we have already pointed

out. He would contend that without consuming electric power, the

main work which goes on in a mobile tower station would be

inconceivable, as work on the tower is systematic work of receiving

and transmitting information and messages on the back of

electromagnetic energy. He also points out in this regard the

provisions of the Building Rules to contend that there is a work room,

etc. Generators are installed. He would further contend that the fact

that no particular number of employees are regularly stationed in the

mobile tower would not detract from the tower being a workplace and

the court should not lose focus of the core issue which is whether the

systematic work is being done in the said place established by an

operator for doing his business. He would further submit that the

statute in question is an on going statute and therefore the court must

give new meaning to the words in question. He would also press into WPC.NO.14094/10 & CONN.CASES 130

service the Heydon principle namely the Mischief Rule and in this

regard he relied on the judgment of the Apex Court in K. P. Varghese

v. Income-tax Officer, Ernakulam and another (AIR 1981 SC

1922) In the said decision the Apex Court has, inter alia, held as

follows:

"It is a sound rule of construction of a statute firmly

established in England as far back as 1584 when

Heydon's case (1584) 3 Co. Rep-7a was decided that

"...........for the sure and true interpretation of all statutes

in general.........four things are to be discerned and

considered: "(1) What was the common law before the

making of the Act, (2) What was the mischief and defect

for which the common law did not provide, (3) What

remedy the Parliament hath resolved and appointed to

cure the disease of the Commonwealth, and (4) The true

reason of the remedy, and then the Office of all the

Judges is always to make such construction as shall

suppress the mischief, and advance the remedy."

He would point out that Sec.97 of the 1960 Act corresponding to

Sec.233(1) of the present Panchayat Raj Act constitutes a conscious

value judgment of the legislature to create a new right and to enforce

a new liability, that is to say, the common law did not provide for

permission from local body for establishing a factory, workplace or WPC.NO.14094/10 & CONN.CASES 131

workshop and right at common law consisted of then right to sue if

there was nuisance after the factory, workplace or workshop were

commissioned and started operations. The driving force was to secure

public health. Nuisance and pollution being aspects of public health

the State sought to secure the interest of the public by insisting on

permission even for establishing such ventures as are stated. Having

regard to the deleterious effect attributed to radiation emanating from

mobile towers and having regard to the fact that it is an ongoing

statute, the word "workplace" must comprehend the mobile tower

even though it may be true that it was not even contemplated in the

year 1960 when the Panchayats Act was enacted or even in 1994

when the present enactments both the Panchayat Raj Act and

Municipality Act were enacted. It is in this context, he relied on the

decision of the Apex Court in State v. Chaudhary (1996 (1) KLT 454

(SC) where the Apex Court was considering the question whether a

typewriter expert could be examined under Section 45 of the Evidence

Act even though the word used in Sec.45 inter alia refer only to

handwriting expert. The Apex Court inter alia held as follows:

"In the present case, even without resort of the word

'handwriting' in S.45 to include typewriting therein, in the view we

have taken the word 'science' is wide enough to meet the

requirement of treating the opinion of a typewriter expert as an

opinion evidence coming within the ambit of S.45 of the Evidence WPC.NO.14094/10 & CONN.CASES 132

Act. We may, however, add that the long accepted practice of

judicial construction which enabled the reading of the word

'telegraph' to include 'telephone' within the meaning of that word

in Acts of 1863 and 1869 when telephone was not invented, would

also be available in the present case to read 'typewriting' within

the meaning of word 'handwriting' in the Act of 1872. This is so

because what was understood by handwriting in 1872 must now in

the present times after more than a century of the enactment of

that provision, be necessarily understood to include typewriting as

well, since typing has become more common than handwriting and

this change is on account of the availability of typewriters and their

common use much after the statute was enacted in 1872. This is

an additional reason for us to hold that the opinion of the

typewriter expert in this context is admissible under S.45 of the

Indian Evidence Act."

59. Still further the Apex Court in Kashmir Singh v.

Union of India and Others ((2008) 7 SCC 259) further approved

the concept of ongoing statute and held as follows:

"The courts while construing an ongoing statute

must take into consideration the changes in the societal

condition. The courts should also take into consideration

development in science and technology."

Per contra, it is contended by the learned counsel for the petitioners

that a tower would not be a workplace. There are no workmen as

such employed for the mobile tower. Occasionally somebody may have WPC.NO.14094/10 & CONN.CASES 133

to go for doing the maintenance work. But by no stretch of

imagination it could be called a workplace. The legislature never had

intended to embrace a mobile tower in the word "workplace" either in

1960 or in 1994 when it authored the enactments.

60. It is necessary in considering this question to extract

Sec.233 of the Panchayat Raj Act as also Sec.448 of the Municipality

Act.

"233. Permission for the construction of factories

and the installation of machinery.- (1) No person shall,

without the permission of the Village Panchayat and except in

accordance with the conditions specified in such permission.-

(a) construct or establish any factory, workshop or

workplace in which it is proposed to employ steam power, water

power or other mechanical power or electrical power; or

(b) install in any premises any machinery or

manufacturing plant driven by any power as aforesaid, not

being machinery or manufacturing plant exempted by the

provisions of this Act or the rules made thereunder.

(2) An application for permission under sub-section (1)

shall be submitted to the Village Panchayat addressed to the

Secretary in such form and with such details as prescribed.

(3) The Secretary shall, as soon as may be after the

receipt of the application, enquire and report to the Village

Panchayat as to whether the establishment of the factory,

workshop or workplace or other installation of machinery or

manufacturing plant for which permission is applied for is

objectionable by reason of density of population in the WPC.NO.14094/10 & CONN.CASES 134

neighbourhood and the possibility to cause nuisance or pollution

and the Village Panchayat after having considered the

application and the reports of the Secretary, and of such other

authorities as specified in sub-section (4) may as expeditiously

as possible, at any rate within sixty days,-

(a) grant the permission either absolutely or subject to

such conditions as it thinks fit to impose; or

(b) refuse the permission for the reasons to be recorded.

(4) Before granting or refusing permission under sub-

section (3), the Village Panchayat, shall obtain and consider:

(a) a report of the Inspector of Factories appointed

under the Factories Act, 1948 (Central Act 63 of 1948) or of an

Officer of the Industries Department not below the rank of an

Industries Extension Officer having jurisdiction over the area

regarding the adequacy of ventilation, light etc. and sufficiency

of the height and size of the rooms and doors and the suitability

of exists to be used in case of fire in the plan of factories,

workshop, workplace or premises if they came within the

purview of the Factories Act, 1948 (Central Act 63 of 1948) and

such other matters as may be prescribed:

(b) a report of the District Medical Officer regarding the

possibility of nuisance or pollution if the connected load of the

machinery proposed to be installed exceeds 25 HP or if the

nature of the machinery and installation are such that it may

cause nuisance or pollution; and

(c) a report of the Divisional Fire officer or any other

Officer authorised by him regarding the adequacy of fire

prevention and fire fighting measures planned if the proposed

industry involves the use of high tension power or inflammable WPC.NO.14094/10 & CONN.CASES 135

or explosive materials;

Provided that, no report under clause (b) shall be

called for in respect of any industry if the applicant produces a

declaration recommended by an Officer of the Industries

Department authorised in this behalf or by the Kerala State

Pollution control Board to the effect that such industry would

not cause pollution.

(5) The grant of permission under this section,-

(a) Shall be subject to the conditions to be observed in

respect of the replacement of machinery the levy of fees and to

such restrictions and conditions as may be prescribed;

(b) Shall not be deemed as exempted from observing

the provisions contained in Sections 235(F) and 235(H) or 235

(P) and 235(Q)."

"448. Application to be made for construction,

establishment or installation of factory,workshop or

workplace in which steam or other power is to be

employed.__

(1) Every person intending-

(a) to construct or establish any factory, workshop or work place

in which it is proposed to employ steam power, water power or

other mechanical power or electrical power or, any other factory

which does not employ any such power; or

(b) to install in any premises any machinery or manufacturing

plants driven by stem, water or other power not being machinery

or manufacturing plant exempted by this Act or the rules made

thereunder shall,

before beginning such construction or establishment make an

application to the Municipality in the prescribed form addressed to WPC.NO.14094/10 & CONN.CASES 136

the Secretary for permission to undertake the intended work.

(2) The application under sub-section (1) shall specify the

maximum number of workers proposed to be employed on any

day in the factory, workshop, workplace or premises and shall be

accompanied by-

(i) a plan of the factory, workshop, workplace or premises

prepared in such manner as may be prescribed; and

(ii) such particulars as to the power, machinery, plant or premises

as may be required by bye-laws made in this behalf.

(3) The Secretary shall, as soon as may be, after the receipt of

the application, report to the Council if the establishment of the

factory or workshop or workplace or the installation of the

machinery or manufacturing plant, for which permission is applied

for, is objectionable by reason of causing nuisance or pollution

due to the density of population in the neighborhood and the

Council shall, after having considered the application and the

reports of the Secretary and of such other authorities specified in

sub-section (4) and as far as possible, any how, within a

maximum period of 45 days from the date of receipt of the

application,__

(a) grant the permission applied for absolutely or subject to such

conditions as it deems fit; or

(b) refuse the permission for reasons to be recorded;

(4) The Council shall, before granting or refusing the permission

under sub-section (3) obtain and consider.__

(a) if the factory or workshop or workplace or premises comes

within the purview of the Factories Act, 1948 (Central Act 63 of

1948), a report of the Inspector of the Factories appointed under

the Factories Act, 1948 (Central Act 63 of 1948) or an officer of WPC.NO.14094/10 & CONN.CASES 137

the Industries Department not below the rank of the Industries

Extension Officer having jurisdiction over the area, regarding the

adequacy of ventilation and light, the sufficiency of the height and

dimensions of the rooms and doors, the suitability of the exists to

be used in case of fire etc. in the plan of the factory or workshop

or workplace or premises and such other matters as may be

prescribed;

(b) if the connected load of the machinery proposed to be

installed exceeds twenty-five horse power or the machinery and

other institutions are of the nature that there is possibility to

cause nuisance or pollution or the said industry is the one as

specified in the seventh schedule, a report of the District Medical

Officer of Health, regarding the possibility to cause nuisance or

pollution; and

(c ) if the connected load of the machinery proposed to be

installed exceeds twenty-five horse power or the said industry is

the one included in the eighth schedule, a report of the Divisional

Fire Officer or any other officer authorised by him, regarding the

sufficiency of the planned fire prevention and fire fighting

activities:

Provided that if a declaration is given by the applicant

recommended by the officer in the Industries Department or the

Kerala State Pollution Control Board authorised for this behalf, to

the effect that no pollution is involved in any industry,in respect of

such industry report under clause (b) may not be required.

(5) More than nine workers shall not be employed on any day in

any factory workshop, workplace or premises unless the

permission granted in respect thereof under sub-section (3)

authorises such employment, or unless fresh permission under

the said sub-section authorising such employment has been WPC.NO.14094/10 & CONN.CASES 138

obtained.

(6) The grant of permission under this section-

(a) shall, in regard to the replacement of machinery, the levy of

fees, the conditions to be observed be subject to such restrictions

and control as may be prescribed and

(b) shall not be deemed to dispense with the necessity for

compliance with the provisions of section 387 and 389 or sections

398 and 399 as the case may be.

Explanation.__The word "worker" in sub-sections (2) and (5)

shall, in relation to any factory, workshop, workplace or premises

have the same meaning as in the Factories Act 1948 (Central Act

63 of 1948)".

61. Sec.234 of the Panchayat Raj Act provides for power

with Government to make rules in respect of, inter alia, prohibiting or

regulating of grant of permit under Sec.233. The Panchayat Raj (Issue

of Licence to Dangerous and Offensive Trades and Factories) Rules,

1996 have been enacted. We notice that the Rules are made under

Sec.233 and 234 of the Panchayat Raj Act also. Rule 12 of Kerala

Panchayat Raj (Issue of Licence to Dangerous and Offensive Trades

and Factories) Rules 1996 is relevant and we extract the same. It

inter alia provides :

"12. Application to be made for constructing or establishing factory, workshop or workplace wherein steam power or other power is to be used:--(1) Every person intending:--

(a) to construct or establish any factory, workshop or workplace WPC.NO.14094/10 & CONN.CASES 139

wherein it is proposed to use steam power, water power or other

mechanical power or electricity; or

(b) to install, on any land a machinery or a manufacturing plant

operated by steam power, water power or other power as

aforesaid, not being machinery or manufacturing plant exempted

under Rule 16, shall submit an application in writing before the

Village Panchayat for permission to undertake such work before so

constructing or establishing.

(2) The application shall specify the maximum number of workers

proposed to be employed on a day in the factory, workshop,

workplace or on the land and shall be accompanied by__

(i) the plan of the factory, workshop, workplace or the land

prepared in such manner as directed by the officer authorised by

Government; and

(ii) the details in respect of power, machinery, plant or land that

the Village Panchayat may call for in this behalf."

Thereafter, sub rule 3 provides for procedure to be followed by the

panchayat. Sub rule 4 provides for appeal to Green Channel against

the decision of the Village Panchayat Committee. Sub Rule 5 provides

for obtaining the approval of the Inspector of Factories which is

referable to sub sec.4 of Sec.233 of the Panchayat Raj Act. Sub rules

(6) and (7) being relevant we quote the same.

"(6) A worker may be employed on any day in a factory, workshop,

workplace or on land coming under the purview of the Factories

Act, 1948 only after obtaining the permission granted under sub-

rule (3) authorising such employment or after submitting WPC.NO.14094/10 & CONN.CASES 140

application before the Village Panchayat for fresh permission

authorising such employment. Before granting such permission

the Panchayat shall obtain the approval of the Inspector of

Factories mentioned in clause (a) of sub-rule (5) in respect of the

matters specified therein as regards the plan of the factory,

workshop, workplace or the land.

(7) The grant of permission under this section,--

(a) shall be subject to such restrictions and conditions as may be

specified by the Government in respect of replacing machinery,

levying fees, the conditions that shall be followed etc. and

(b) if any rules exist in respect of constructing buildings in the

Panchayat areas, it shall not be considered not necessary to follow

such rules:

Provided that the industrial units, constructed within an

industrial estate under the Industries Department or functioning

with the recognition of the Industries Department, may be granted

permission for construction, considering them as a single unit if

the same has the approval of the Industries Department.

Similarly, no prior licence shall be necessary for the

installation of industrial establishments in the industrial estates,

industrial growth centres, industrial development plots, industrial

development areas and other sites approved by the Industries

Department and such establishments may, after remitting the

prescribed fee for licence, construct the building, and may install

machineries and start functioning.

Explanation.__The word 'worker' in sub-rules (2) and (6) of this

rule shall, in relation to any factory, workshop, workplace or land,

has the same meaning as in the Factories Act, 1948." WPC.NO.14094/10 & CONN.CASES 141

62. The word "workplace" has been defined in the Chambers

Dictionary as meaning "the office, factory, etc. where one works".

There is no indication in Section 233 in express words to the effect

as to whether it must be a place where there are workers employed

for carrying out any work. However, there is some indication

forthcoming in Rule 12 of the Dangerous Offensive Trade and

Factories Rules, 1996 which we have extracted. It could be said

that it does not apply where no workers are needed. The

Explanation assigns the same meaning as to the worker in sub-

rules (2) and (6) as is assigned in the Factories Act, 1948. Sub-rule

(2) does contemplate specification of the maximum number of

workers proposed to be employed on a day in the workplace

among other places. Again, sub-rule (6) of Rule 12 provides that

in respect of a workplace coming under the purview of the

Factories Act, 1948 can be employed only after obtaining

permission under sub-rule (3) authorising such employment or

after submitting application for fresh permission before the Village WPC.NO.14094/10 & CONN.CASES 142

Panchayat authorising such employment. As far as Section 448 of

the Kerala Municipality Act is concerned, this indication as to

workmen employed is reflected in the parent legislation itself,

namely Section 448 sub-section (2) which we have extracted. The

application to be given is to indicate the maximum number of

workers proposed to be employed in the workplace and among

other places. The word "worker" used in sub-section (2) is

assigned the same meaning as it carries under the Factories Act,

1948 (See Explanation in Section 448). The concept of the word

"factory" as defined in the Factories Act, 1948 is as a place where

manufacturing process is carried on. Of course, it does not include

a mine and certain excepted categories which are not relevant for

us to pursue. The word "worker" is defined under Section 2(l) of

the Factories Act as follows:

"Sec.2(l): "Worker" means a person employed, directly or by or through any agency (including a contractor) with or without the knowledge of the principal employer, whether for remuneration or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a WPC.NO.14094/10 & CONN.CASES 143

manufacturing process, or in any other kind of work incidental to, or connected with the manufacturing process, or the subject of the manufacturing process, but does not include any member of the armed forces of the Union."

It is to be remembered that Section 233 of the Panchayat Raj Act

(Sub-section 4(a)) reads as follows:

"Section 233(4)(a): a report of the Inspector of Factories appointed under the Factories Act, 1948 (Central Act 63 of 1948) or of an Officer of the Industries Department not below the rank of an Industries Extension Officer having jurisdiction over the area regarding the adequacy of ventilation, light etc. and sufficiency of the height and size of the rooms and doors and the suitability of exists to be used in case of fire in the plan of factories, workshop, workplace or premises if they came within the purview of the Factories Act, 1948 (Central Act 63 of 1948) and such other matters as may be prescribed."

63. We may notice the concept of "workplace" as defined in

certain laws. In the English Building and Other Construction

Workers (Regulation of Employment and Conditions of Service)

Central Rules, 1998, "workplace" is defined in Section 2(zv) as `all

places where building workers are required to be present or to go WPC.NO.14094/10 & CONN.CASES 144

for work and which are under the control of an employer.' In

"Words and Phrases" Legally Defined (2nd Edition Vol.V), the

word "working place" is defined as follows:

"The.........claim is made under the Building Regulations 1926, reg. 15 (revoked; see now the Construction (Working Places) Regulations 1966)..... which reads: `Every working place and approach thereto shall be efficiently lighted'.....One thing seems quite clear to my mind, and that is that the regulation is not designed to provide that the whole of the premises should be `efficiently lighted'. The regulation says `Every working-place and approach thereto'. It contemplates, therefore, a specific working-place where people are doing a specific piece of work. I do not think it can extend to the case of a night-watchman who-leaving out, conceivably, his hut-has no specific working-place at all". Field v. Perrys (Ealing), Ltd., (1950) 2 All. E.R. 521, per Devlin, J., at pp.522, 523"

"I cannot see why I am not to give the words `working place' the ordinary meaning of the English language, that is, a place where work is being done."

Ball (George) & Sons, Ltd. v. Sill (1954), 52 L.G.R. 508, per Lord Goddard, c.J., at p.509.):

"Without .......attempting a more precise definition, by a `working place' within reg.24 of the Building (Safety, Health and Welfare) Regulations 1948 (repealed; see now the Construction (Working Places) Regulations 1966) is in my opinion intended a WPC.NO.14094/10 & CONN.CASES 145

limited and defined area, something at any rate in the nature of a platform and something substantially flat or level, in or on which a workman is set to work for an appreciably continuous period of time." Gill v. Donald humberstone & Co., Ltd., (1963) 3 All E. R. 180, H.L., per Lord Evershed, at p.186".

In "Words And Phrases" (Vol.V) Judicially Defined, we find the

following commentary under the word "workplace":

"The Public Health (London) Act, 1891, s. 38 (repealed; see now Public Health (London) Act, 1936, s.106), enacts that every factory, workshop, and "workplace" must be provided with sufficient and suitable accommodation in the way of sanitary conveniences, regard being had to the number of persons employed in or in attendance at that building. "The first question that we have to answer is whether this cabyard is a workplace.......The Act is passed for the benefit of persons who, like those employed in factories and workshops and those in attendance at them, are left in large numbers and for long periods on certain premises, and are therefore likely to require the accommodation of sanitary conveniences, which the Act says shall be provided for them. In that view, I think these stables and this cabyard were analogous to a factory or workshop, since a number of people were occupied about them and were kept on the premises for some time......I think that a workplace must be a place where some work is being perpetually or permanently done." Bennett v. Harding, (1900) 2 Q.B. 397, D.C., per Channell, J., at pp.400, 401." WPC.NO.14094/10 & CONN.CASES 146

In Stroud's Judicial Dictionary of Words And Phrases (Vol.3), it is

noted that a cab proprietor's yard to which cab drivers go as hirers

of cabs was a "work-place" under Section 38 of the Public Health

(London) Act, 1891 (See 1900 (2) Q.B. 397). We further notice

that a road has been held to be not a working place within Section

49 of the Coal Mines Act, 1911 and Section 48(1) of the Mines and

Quarries Act, 1954 (See 1954 (1) WLR 264). We notice the

following commentaries under the heading "working place":

"A road is not a working-place within s.49 of the Coal Mines Act 1911 )c.50) and s.48(1) of the Mines and Quarries Act 1954 (c.70) merely because men are repairing it (Wraith v. National Coal Board (1954) 1 W.L.R.264). A party engaged in enlarging and constructing the working roadhead to the coal face, after shots had been fired to rip down the roof, were working in a "working place" within the meaning of these sections (Walsh v. National Coal Board (1956) 1 Q.B. 511). Such a "working place" includes any place where a man works, or is sent to work, or is expected to go, and it does not ipso facto cease to be a working place because an element of danger arises (Venn v. National Coal Board (1967) 2 Q.B. 557). But, an area where no miner should be working, and where the mine manager could not have expected anyone to be WPC.NO.14094/10 & CONN.CASES 147

working was held not to be a "working place" within the meaning of s.48(1) of the 1954 Act (Hammond v. National Coal Board (1984) 1 W.L.R. 1218).

A floor temporarily used as a roof was a working-place within reg. 24(1) of the Building (Safety, Health and Welfare) Regulations 1948 (No.1145) (George Ball & Sons v. Still (1954), 52 L.G.R. 508). Such working place must be similar to a working-platform and should have the same characteristics. A man painting a roof without a platform has no working-place within the regulation (gill v. donald Humberstone & co. (1963) 1 W.l/R.

929). To fall within this regulation a place had to be a place where a man was going to work for an appreciable time, a comparatively small area, and level; for example, a new flat concrete roof (Kelly v.

Pierhead (1967) 1 W.l.r. 65). But, a duckboard lying flat on the lower half of a barrel-shaped roof was held not to be a "working place" within this regulation (Regan v. G. & F. Asphalt (1967) 65 L.G.r. 464).

Gangways between holes in the floors of a building being demolished were "working places"

within the meaning of reg. 28(1) of the Construction (Working Places) Regulations 1966 (No.94) (Boyton v. Willment Brothers (1971) 1 W.L.R. 1625). Where, after the removal of scaffolding, a workman was instructed to remove some scaffold boards from a flat roof, and in doing so, fell and was injured, it was held that as the 10 to 15 minutes required to do the job was an appreciable time, the roof was a "working place"

within the meaning of these regulations (Ferguson v. John Dawson and partners (1976) 1 W.L.R. 1213)." WPC.NO.14094/10 & CONN.CASES 148

In Halsbury's Laws of England (Vol.20), paragraphs 415 deals

with "workplace" as follows:

"415. Workplace: Any workplace in which, with the permission of or under agreement with the owner or occupier, two or more persons carry on any work which would constitute the workplace a factory if they were in the employment of the owner or occupier, is deemed to be a factory. If the workplace is not a tenement factory or part of a tenement factory, the provisions of the Factories Act, 1961 apply as if the owner or occupier were the occupier of a factory and the persons working in it were employed in the factory."

No doubt, it could be said that the laws were essentially labour

legislation.

64. In the conspectus of all the decisions, the concepts and

the definitions which we have referred to, we are of the view that a

mobile tower would not be a "workplace" within the meaning of

Section 233 of the Panchayat Raj Act or Section 448 of the

Municipalities Act. As already noted, both enactments are of the

year 1994 and they are patterned on the provisions of Section 97 of WPC.NO.14094/10 & CONN.CASES 149

the Kerala Panchayats Act, 1960 and the corresponding provisions

of the Municipalities Act, 1960. The word "workshop" is found

in the company of the words "Factory" and "Workshop". The

intention of the Legislature is to promote public health by creating

safeguards by subjecting even proposal to establish factories,

workshops and workplaces to scrutiny and to grant permission

conditionally or unconditionally or even to refuse permission. The

concept of "Factory", inevitably involves the employment of

"workmen". Under the Factories Act, a factory is inextricably

intertwined with the concept of manufacturing process. Of course,

the word "manufacturing process" has been defined to embrace

within its scope various activities and it is not to be confused with

the concept of bringing a new product into existence. We have

already noticed that under the Panchayat Raj (Issue of Licence to

Dangerous And Offensive Trades And Factories) Rules, 1996 as

also Section 247 of the Kerala Municipalities Act, the concept of

"worker" is to be the same as the concept in the Factories Act. WPC.NO.14094/10 & CONN.CASES 150

65. We have already noticed the definition of "workplace" in

the Public Health Act as a place where any industrial,

manufacturing or trade process is carried out and where not less

than five persons are employed for wages or other remuneration.

The word "manufacturing process" in the Factories Act is defined

in Section 2(k) as follows:

"2(k): "manufacturing process" means any

process for -

(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use sale, transport, delivery or disposal, or

(ii) pumping oil, water, sewage or any other substance, or

(iii) generating, transforming or transmitting

power; or

(iv) composing types for printing, printing by letter press, lithography, photogravure or other similar process or book binding;

(v) constructing, reconstructing, repairing, WPC.NO.14094/10 & CONN.CASES 151

refitting, finishing or breaking up ships or vessels; or

(vi) preserving or storing any article in cold storage."

66. As far as the treaty entered into by India with other

countries, it is to be noticed that while it may have persuasive

effect unless and until it is implemented by making a law as

contemplated under the Constitution, it may not be legally binding

as such (See the decision of the Apex Court in Smt. Selvi & Ors. v.

State of Karnataka (AIR 2010 SC 1974). Therein, the Apex Court,

inter alia, held as follows:

"199. Having surveyed these materials, it is

necessary to clarify that we are not absolutely bound

by the contents of the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment (1984) (Hereinafter "Torture

Convention"). This is so because even though India is

a signatory to this Convention, it has not been ratified

by Parliament in the manner provided under Article

253 of the Constitution and neither do we have a WPC.NO.14094/10 & CONN.CASES 152

national legislation which has provisions analogous to

those of the Torture Convention. However, these

materials do hold significant and persuasive value

since they represent an evolving international

consensus on the nature and specific contentions of

human rights norms."

67. Going by the concept of worker, either he must be

employed in a manufacturing process or in cleaning any machinery

or premises used for a manufacturing process or any work which is

incidental or connected with the manufacturing process. Having

regard to the definition of the word "manufacturing process", we

are of the view that the activity which is carried out in a mobile

tower cannot be treated as a manufacturing process. At any rate,

we would think that drawing light from the definition of the word

"workplace" in the Travancore - Cochin Public Health Act, that

the activity which is carried on in a mobile tower cannot be treated

as an industrial, manufacturing or a trade process. The fact that the

mobile tower operates or works without any employee or workmen WPC.NO.14094/10 & CONN.CASES 153

having to attend to it with any measure of regularity fortifies our

view that it cannot be treated as a workplace, as intended by the

Legislature. We would think that not only must systematic work

be done with the aid of power as stated therein, but there must be at

least a few employees who attend to the work with some measure

of regularity. This feature is certainly not present in the case of a

mobile tower and the presence of an occasional worker, essentially

for doing maintenance once in a while, cannot render the place a

workplace.

68. We do not think that it would be reasonable in the

circumstances to consider it as a workplace on the principle that

the Court must do so on the basis that the enactment is an ongoing

statute. In this regard, the said principle must be applied with great

care, as any interpretation in this direction must also be adopted

with due regard to the consequences which flow from such

interpretation being placed.

WPC.NO.14094/10 & CONN.CASES 154

69. Whether, permisison is required under

Chapter XXI of the Panchayat Raj Act ? Whether a

mobile tower is a "building" ?

It is the argument of Shri. P. Chandrasekhar that permission

is also required under Sections 235F, 235H, 235P and 235Q of the

Panchayat Raj Act. Chapter XXI of the Kerala Panchayat Raj Act

deals with the heading "buildings". The word "building" has been

defined in the Panchayat Raj Act in Section 2 (iii) as follows:

"Unless the context otherwise requires, "Building" includes a house, a out-house, stable, latrine, shed, hut and any other structure, whether of masonry, bricks, wood, mud, metal, or any other material whatsoever"

It is, therefore, contended that a mobile tower being comprehended

within the words "any other structure" would be a building and,

therefore, the relevant provisions in Chapter XXI would apply.

There is an identical definition of the word "building" in the

Municipality Act also. It is pertinent to note that the Kerala

Municipality Building Rules, 1999, which came into force on WPC.NO.14094/10 & CONN.CASES 155

1.10.1999 defines the word "building" as follows:

"2. Definitions.- (1) In these rules, unless the context otherwise requires,-

(l) `building' means any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures."

We must further notice that the word "structure" is separately

defined as Rule 2(cc) as follows:-

"2(cc): `structure' means anything that is built or constructed or building of any kind or any piece of work, artificially built up or composed of parts joined together in some definite manner. The term structure includes "building".

Thus the word "structure" will take in a "building". Rule 3

provides as follows:-

"3. Applicability.- These rules shall apply to,-

(i) any public or private building as described below, namely:-

WPC.NO.14094/10 & CONN.CASES 156

(a) where a building is newly erected, these rules shall apply to the designs and construction of the building.

(b) where the building is altered, these rules shall apply to the altered portion of the building.

(c) where the occupancy or use of a building is changed, these rules shall apply to all parts of the building affected by the change.

(d) where addition or extension is made to a building, the rules shall apply to the addition or extension only, but for calculation of floor area ratio and coverage permissible and for calculation of required off street parking area to be provided, the whole building (existing and the proposed) shall be taken into account.

(ii) all lands which is proposed to be developed or redeveloped for construction of building.

(iii) all developments and constructions existing or proposed in any village panchayath area to which the provisions of these rules stand extended."

Rule 3A provides as follows:

"3A. Provisions in the Town Planning Scheme shall prevail.- Notwithstanding anything contained in these rules, provisions or regulations in any Town Planning Scheme in force under Town Planning Acts shall prevail over the respective provisions of these rules wherever such schemes exist."

WPC.NO.14094/10 & CONN.CASES 157

It is in Chapter XIX of the Building Rules that provisions are

specifically made for telecommunication towers. It is to be further

noted that the Municipal Building Rules have been extended to the

Panchayats, since 6.6.2007. Besides the Rules, certain provisions

of the Municipality Act are made applicable. They are as follows:

"Clauses (2), (3), (19), (32), (34), (38) and (46) of

Section 2 of Chapter I, Chapter XVIII and Sections 509

and 510 of Chapter XXIII, Sections 511, 515, 517 of

Chapter XXIV, Section 563 of Chapter XXV, Sections

567, 570, 573 of Chapter XXVI and the fourth and fifth

schedules in so far as they relate to the matters

specified in Chapter XVII of the Kerala municipality

Act, 1994 (20 of 1994)."

The power to extend the provisions of the Municipal Laws is

contained in Section 274 of the Panchayat Raj Act. Section 274 of

the Panchayat Raj Act reads as follows:

"274. Extension of provisions of the Municipal laws or of the rules thereunder.- (1) The Government may, whether at the request of the Panchayat or otherwise, by notification in the Gazette, declare that any of the provisions of the law relating to WPC.NO.14094/10 & CONN.CASES 158

Municipalities in the State in force for the time being or of any rules made thereunder, shall be extended to, and be in force, in a Panchayat area or any specified place therein.

(2) The provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area or any specified place therein."

It is in Chapter XXVI dealing with supplemental provisions that

Section 274 figures. Shri. P. Chandrasekhar would argue that the

dichotomy which arises is that while under Rule 140A of the

Municipal Building Rules, which is incorporated with effect from

22.2.2001, no site approval is necessary for construction of

telecommunication towers, telecommunication pole structures or

accessory rooms essential for such service, Section 235G of the

Panchayat Raj Act, 1994 prohibits grant of permission to construct

or reconstruct a building unless and until site approval is obtained.

He would remind us that the law recognises the supremacy of a

parent enactment over subordinate legislation and, therefore, it is

Section 235G which must prevail.

WPC.NO.14094/10 & CONN.CASES 159

70. We will first consider the question whether a mobile

tower is a "building". As already noted, it is in Chapter XIX that

(Rules 130 to 142) telecommunication towers are dealt with. Shri.

V. G. Arun would point out that Rule 130 of the Municipal

Building Rules, 1999 provides that no person shall erect or re-erect

any tower or pole structures except without first obtaining a

separate permit for each tower. He would point out in other words,

that the rule giver has deliberately chosen not to use the word

"building" in Rule 130 of the Municipality Building Rules to

describe a telecommunication tower. Therefore, he would contend

that a telecommunication tower would not be a "building" within

the meaning of the Panchayat Raj Act or the Municipality Act and,

therefore, permission is not required and only a Permit under

Chapter XIX of the Municipality Building Rules is required. In

this regard, he also referred to Rule 143 of the Municipality

Building Rules. It provides for regularisation of unpermitted

construction and deviations. Rule 143 of the Municipality WPC.NO.14094/10 & CONN.CASES 160

Building Rules being relevant, is extracted hereunder:

"143. Power of the Secretary to regularise

certain constructions.- The Secretary shall have the

power to regularise construction or reconstruction or

addition or alteration of any building or digging of

any well or telecommunication tower or any structure

or land development or any work for which permission

of the Secretary is necessary under this rule

commenced, being carried on or completed without

obtaining approved plan or in deviation of the

approved plan;

Provided that such construction or

reconstruction or addition or alteration of any

building or digging of any well shall not be in

violation of any of the provisions of the Act or these

rules:

Provided further that such power shall not

relieve the Secretary of his responsibility in detecting

and preventing such work and in taking other actions

as per these rules;

Provided also that when the construction or work

was commenced, being carried on or completed after WPC.NO.14094/10 & CONN.CASES 161

the statutory period specified in Rules 15, 97, 126 or

141 and as per rules, such construction or work shall

be considered as duly permitted and not one requiring

regularisation."

He would contend that the said Rule, in fact, speaks about

regularisation of construction or reconstruction, inter alia, of any

building or digging of any well or telecommunication tower or any

structure or land development or any work for which permission of

the Secretary is necessary. He would, therefore, contend that the

law contemplates building, well, telecommunication towers, inter

alia, as falling in different categories. He would submit that this

Rule would give a clear indication therefore, that a

telecommunication towers cannot be the same as a building and as

they are used in the same provision and, therefore,

telecommunication tower is something different from a building.

Shri. A. Mohamed Mustaque, in this connection, would point out

that the Building Rules have been made not only under Section

381 of the Kerala Municipality Act which provides specifically for WPC.NO.14094/10 & CONN.CASES 162

enacting rules relating to buildings and other provisions under

Chapter XVIII, but also, under Section 565 of the Municipality

Act. Section 565 of the Municipality Act provides for general

power with the Government to make rules to carry out all or any

purposes of the Act.

71. As already noted, "building" has been defined in the Act.

The definition is couched in the widest possible manner, that is to

say, it includes a house, outhouse, stable, latrine, shed, hut, bunk

and any other structure whether of masonry, wood, brick, mud,

metal or any other material whatsoever. The word "structure" is

not defined in the Municipality Act. The word "structure" is

defined, as already noted, in Rule 2(cc) of the Municipality

Building Rules as meaning anything that is built or constructed or

building of any kind or any piece of work, artificially built up or

composed or part joined together in some definite manner. What is

more the definition further says that the term structure includes

building. We have already noted that the word "building" in fact, WPC.NO.14094/10 & CONN.CASES 163

is defined in the rules as meaning any structure for whatsoever

purpose and of whatever material constructed any every part

thereof whether, is used for human habitation or not and includes

foundation etc and building, services, verandah, balcony, cornice

or projections, part of a building or anything affixed thereto. We

must remind ourselves the question which we are called upon to

decide is whether a mobile tower is a "building" for the

construction of which permission under the Municipality Act or the

Panchayat Raj Act is required. We would think that for deciding

that issue, we need consider the definition of the word "building"

in the Act. We notice, in fact, the definition given of the word

"building" in Section 2(ii) of the Municipality Act which is the

extant provision in question, is different from the definition of the

word "building" in the Municipality Building Rules. There cannot

be any doubt that it is open to a Legislative Body to give an

artificial definition to a word. It is also well settled that when the

definition clause uses the word "includes", the Legislature intends WPC.NO.14094/10 & CONN.CASES 164

to give a wide definition and it intends to encompass the concepts

which are specifically enumerated in such a definition clause also.

If that be so, since the word "building" includes a structure built of

any material whatsoever, it is difficult to hold that a mobile tower

which is built mainly using metal would not fall within the word

"building". In fact, Rule 3 of the Municipal Building Rules also

does gives an indication that the rules have been made in relation

to buildings. The definition of the word in the Building Rules is

also couched in the widest sense and it comprehends any structure.

The fact that rule 130 uses the words "telecommunication tower"

cannot advance the case of the petitioners. The words

"telecommunication tower" etc are used to convey the intention of

the law giver that without a Permit, a telecommunication tower

cannot be built or altered. No doubt, in Rule 143 of the Building

Rules, the words beginning with the words "or telecommunication

tower" have been inserted with effect from 22.2.2001. Does that

lead us to the conclusion that a telecommunication tower or WPC.NO.14094/10 & CONN.CASES 165

any structure would not fall within the meaning of the word

"building"? We would think that having regard to the definition

of the word "building" in the Municipality Act and the definition

of the words "building" and "structure" in the Municipality

Building Rules, while a telecommunication tower may be of a

special nature, none-the-less, it is a building.

72. Section 235 of the Panchayat Raj Act provides for

numbering of buildings. Section 235A clothes the Government

with power to make Rules. Section 235B provides that no part of

the land shall be used as a site for the construction of a building

and no building shall be constructed or reconstructed otherwise

than in accordance with the provisions of this Part and any Rules

or Byelaws made under the Act relating to the use of building sites

of the construction or reconstruction of buildings. Section 235F

provides for an application to construct or reconstruct a building.

Section 235L provides for grounds on which approval of building

sites or permission to construct or reconstruct a building may be WPC.NO.14094/10 & CONN.CASES 166

refused. Section 235N provides for power to the secretary to

require alteration in the work. Section 235O provides for stoppage

of construction or reconstruction endangering human life. Section

235W provides for demolition or alteration of building works

unlawfully commenced, carried on or completed. Section 254

provides for general power with the Government to make Rules.

73. We have already noticed that Section 235B provides that

no part of the land shall be used as a site and no construction of a

building can be done except in accordance with Chapter XXI and

of any Rules or Byelaws under this Act. It is open to the

Government to make Building Rules under Section 235A. It is

also open to the Government to apply the provisions of the

Municipal Laws and Rules made thereunder under Section 274. It

is accordingly that, the Municipality Building Rules, which were

prevalent in the Municipal areas have been made applicable to the

Panchayats, apart from the provisions in the Municipalities Act

mentioned in the schedule to the Village Panchayats with effect WPC.NO.14094/10 & CONN.CASES 167

from 6.6.2007.

74. It is to be noted that in the Kerala Municipality Act,

Chapter XVIII deals with "buildings". Thereunder, Section 381

provides for power for making of Building Rules. Apparently, it

corresponds to Section 235A of the Panchayat Raj Act. Virtually,

similar provisions are contained in the said Chapter as are

contained in Chapter XXI of the Panchayat Raj Act.

75. We notice that the definition of the word "building" in

Section 2(2) of the Municipality Act, inter alia, has been made

applicable to the Panchayat areas. Chapter XVIII has been made

applicable. In Chapter XVIII, Section 382 of the Municipality Act

which again corresponds to Section 235B of the Panchayat Raj Act

provides as follows:-

"382. Building site and construction or reconstruction of buildings.- No piece of land shall be used as a site for the construction of a building and no building shall be constructed or reconstructed otherwise than in accordance with the provisions of this part and of any rules or bye-laws made under this act relating to the use of building sites or the construction or reconstruction of buildings." WPC.NO.14094/10 & CONN.CASES 168

Thus, the Municipality Building Rules which have been made

under the Municipality Act would come into play in the Panchayts

from 6.6.2007.

76. Chapter II of the Kerala Municipality Building Rules

deals with Permits. Therein, inter alia, it provides for site plan,

service plan etc, to accompany an application for any development

Permit. Rule 7 deals with application for Building Permit to carry

out construction or reconstruction of a building. Chapter III has

the heading "action against unauthorised construction".

77. Rule 16 falling in Chapter II provides for power to

suspend or revoke any permit under these Rules, if it is satisfied

that the Permit was issued by mistake or that a patent error has

crept into it or that the Permit was issued on misrepresentation of

fact or law or if the construction that will be carried out will be a

threat to life or property. Chapter IV deals with general provisions

regarding site and building requirements. It provides for various

exterior and interior open space, etc. Chapter V deals with WPC.NO.14094/10 & CONN.CASES 169

occupancy of buildings to coverage and floor area ratio, parking

and loading and unloading spaces. Then, there are special

provisions for certain occupancy of buildings in Chapter VII.

Buildings in small plots are dealt with in Chapter VIII. Row

buildings are provided in Chapter IX. Chapter XXI deals with

construction of plots , parts or which have been surrendered for

road development. High rise buildings are dealt with in Chapter

XVII. Rule 111 therein provides. inter alia, that the Rules will

apply to such buildings as modified in the said Chapter. Huts are

dealt with under Chapter XVIII. Telecommunication towers with

which we are concerned are specifically dealt with under Chapter

XIX. Rules 130 to 142 deal with almost every aspect which are

dealt with thereunder. It is in such a Chapter that the requirement

of site approval is dispensed with in Rule 140A. Chapter XX

deals with regularisation of unpermitted constructions and

deviations.

WPC.NO.14094/10 & CONN.CASES 170

78. Thus, the general set of Rules providing for site and

building requirements is contained in Chapter IV in regard to open

spaces. Thereafter, as we have already referred to, there are various

Chapters dealing with different kinds of buildings/structures. The

telecommunication tower, apparently, on account of its peculiar

features have been separately dealt with in Chapter XIX. It starts

with Rule 130 declaring essentiality of permit. Rule 131 provides

for various distances to be maintained. Rule 132 provides for a

FAR (Floor Area Ratio) and height. Rule 133 provides for

accessory rooms, they being permitted on request being made in

the application accompanied by plans/drawings. Rule 134

provides for electrical line clearance. Rule 135 provides for

protective wall. Rule 139 provides that erection of any tower or

pole, structures or accessory rooms shall be permitted only over

authorised buildings. Rule 140 provides for clearance from

defence establishments, etc. It is thereafter that Rule 140A

provides for dispensation from site approval. Rule 141 provides WPC.NO.14094/10 & CONN.CASES 171

for the submission of applications in a form accompanied by

various documents and the manner of dealing with the same. Rule

142 provides for completion certificates and it also contemplates

the Authorities concerned allowing power connection etc. for use

of the service. Section 235F of the Panchayat Raj Act

corresponding to Section 387 of the Kerala Municipality Act, reads

as follows:

"235F: Application to construct or re-construct

buildings.- (1) Where any person intends to construct

or re-construct a building other than a hut within a

Village Panchayat area, he shall send to the

Secretary.-

(a) an application in writing together with a site

plan of the land for the approval of the site and;

(b) an application in writing together with a

ground plan, elevation and sections of the building

and specification of the work for permission to execute

the work.

Explanation.- Building in this sub-section shall

include a wall on the boundary of the public street or WPC.NO.14094/10 & CONN.CASES 172

any height abutting any public street.

(2) Every document furnished under sub-section

(1) shall contain such particulars and be prepared in

such manner as may be required under the rules or

bye-laws made under this Act."

Sub-rule (1) of Rule 141 of the Kerala Municipality Building

Rules, inter alia, reads as follows:

"141. Submission of application and its

disposal.- (1) Application for permit shall be submitted

to the Secretary in the form in Appendix A along with

two copies of site plan, location, elevation, sections,

structural stability certificate, copy of agreement

executed with department of Telecommunications or

licence or permit issued by an authority approved by

Government of India from time to time and document

to prove ownership.

Note:- (1) Ownership document may be a sale

deed or mortgage deed or deed of agreement or licence

or consent document, etc."

WPC.NO.14094/10 & CONN.CASES 173

Sub-rule (4) of Rule 141 and Sub-rule (8) being relevant, are

extracted hereunder:

"141(4): The site plan shall show plot

dimensions, access street width, details of existing

structures within the plot with their uses, height,

number of floors, set back from the plot boundaries

and between them; proposed tower and ancillary

structures.

141(8) reads as follows:

The Secretary shall, if convinced of the boundaries

and ownership of the plot, plans and drawings and

genuineness of the certificates, issue permit, not later

than 30 days from the date of receipt of the

application."

79. Shri. Santhosh Mathew, learned Counsel for the

petitioners would emphasise that Rule 141 of the Municipality

Building Rules does contemplate production of the site plan. Rule

141 (4) read with Rule 141(8) clearly contemplates the need for the

authority being convinced of the correctness of the contents of the WPC.NO.14094/10 & CONN.CASES 174

site plan and only if the Secretary is convinced, can a permit be

issued. Therefore, he would contend that though Rule 140A(1) of

the Building Rules provides that no site approval is necessary, in

substance, having regard to Rule 141, there is no question of it

being ultravires Section 235G of the Panchayat Raj Act. Of

course, Shri. P.Chandrasekhar, learned Counsel for the respondents

would point out that a perusal of Section 235F of the Panchayat

Raj Act would show that the law contemplates a site inspection

before site approval is granted. Learned Government Pleader

would submit that site inspection may be necessary in some of the

cases. The purpose of the site approval is to see that the proposed

construction will be done in conformity with the provisions of law.

80. Shri. Philip Mathew, learned Counsel appearing for some

of the petitioners would contend that Section 235A of the

Panchayat Raj Act empowers the Government to enact Rules.

Section 235L provides for the grounds on which approval of

building sites or permission to construct or re-construct a building WPC.NO.14094/10 & CONN.CASES 175

may be refused. It reads as follows:

"235 L: Grounds on which approval of building

sites or permission to construct or re-construct a

building may be refused.- (1) The grounds on which

approval of site or permission to construct or re-

construct a building shall be refused are the following,

namely:-

(i) that the work or use of the site of the work or

any of the particulars comprised in the site plan,

ground plan, elevations, sections or specifications

would contravene any law or any order, rule,

declarations, or bye-law made under any law;

(ii) that application for the permission does not

contain the particulars or is not prepared in the

manner required by any rule or bye-law made under

this Act;

(iii) that any of the documents specified in

Section 235F has not been signed as required by rules

or bye-laws made under this Act;

(iv) that any information or document

required by the Secretary under rules or bye-laws

made under this Act has not been duly furnished;

WPC.NO.14094/10 & CONN.CASES 176

(v) that the proposed building would be an

encroachment upon a land belonging to the

Government or the Village Panchayat or

(vi) that the land is under acquisition

proceedings.

(2) No application for approval of a building site

or for permission to construct or re-construct a

building shall be refused without stating the reasons

for such refusal."

81. Shri. Philip Mathew would contend that the requirement

of the site approval in Section 235G of the Panchcyat Raj Act is

not mandatory for the reason that the permission to construct or

reconstruct a building cannot be refused on the ground that there

has been no site approval going by the grounds for refusal of

permission to construct or reconstruct a building, proceeding on

the basis that a mobile tower is "building". We are not impressed

by the said argument. It is true that in Section 235L there is no

mention of the requirement of site approval or that if there is no

site approval, permission to construct or reconstruct a building is to WPC.NO.14094/10 & CONN.CASES 177

be refused, but Section 235G is categoric, unambiguous and

peremptory in that, the law giver has declared that the Secretary

shall not grant permission to construct or reconstruct a building

unless and until he has approved the site on a application made

under Section 235F. Therefore, the law does contemplate the

making of an application under Section 235F and also the grant of

site approval before permission is granted to construct or

reconstruct a building. Section 235H, in fact, prohibits

commencement of construction or reconstruction of a building

without permission for the execution of the work. Section 235G

read with Section 235F must be understood to be an additional

ground, therefore, to refuse permission or construction or

reconstruction of a building. In other words, apart from the

grounds mentioned in Section 235L, it is clear that if a person were

to apply for permission for construction or reconstruction of a

building without having obtained the site approval, the permission

cannot be granted, in view of Section 235G. Equally WPC.NO.14094/10 & CONN.CASES 178

unmeritorious, is the contention of Shri. Philip Mathew based on

Section 235A. Section 235A, no doubt, provides power with the

Government to make Rules, inter alia, for regulation or restriction

of the use of sites for construction of building and for regulation

and restriction of building constructions. Thus, it is open to the

Government to make Rules for regulation of construction of

buildings. As already noted, Chapter XVIII of the Kerala

Municipality Act has been made applicable to the Panchayats with

effect from 6.6.2007. Undoubtedly, Section 382 of the

Municipality Act corresponds to Section 235A of the Panchayat

Raj Act. The Kerala Municipality Building Rules have not been

enacted under Section 235A of the Panchayat Raj Act. Instead,

they have been made apparently under Sections 381, 382, 387, 398

and 406 read with Section 565 of the Kerala Municipality Act,

1994. Therefore, the Municipality Building Rules cannot be stated

to be Rules made under the Panchayat Raj Act as contemplated in

Section 235A. However, since Chapter XVIII of the Municipality WPC.NO.14094/10 & CONN.CASES 179

Act stands extended and enforced in all the Panchayats and as

Section 381 falls in Chapter XVIII of the Municipality Act, the

Building Rules being made under Section 381 in the main, the

requirement of the law would be that construction of a building,

inter alia, must be in accordance with the provisions of Chapter

XVIII and the Municipal Building Rules, as the Municipal

Building Rules are made certainly under the Municipality Act.

Then arises the question as to what is the effect of Section 235G of

the Panchayat Raj Act requiring prior approval being contrary to

Rule 140A of the Municipal Building Rules. In the first place, we

would think that actually, in view of the fact that Chapter XVIII

itself stands extended to the Panchayats, it is the provisions of

Chapter XVIII which would govern construction of buildings

rather than Chapter XXI of the Panchayat Raj Act. It is, no doubt

true that virtually the same provisions are contained in Chapter

XXI of the Panchayat Raj Act as are contained in Chapter XVIII of

the Municipality Act. Sections 387 and 388 of the Municipality WPC.NO.14094/10 & CONN.CASES 180

Act correspond to Sections 235F and 235G respectively of the

Panchayat Raj Act. Thus, the requirement of site approval as

contained in Section 235G of the Panchayat Raj Act or Section 388

of the Municipality Act, is contained in both the enactments.

82. What is the effect of the Rules made under an Act ? Will

it become part of the Act ? If there is a conflict between the Rules

and the parent enactment, can it be got over by contending that the

Rules when framed under the Act, must be held to be part of the

Act and, therefore, even if the Rules are in conflict with the Act,

the Rules must be allowed to operate as they are also part of the

Act. This question is no longer res integra and we need only

extract the following passage from M.P. Jain and S.N. Jain on

Principles of Administrative Law (6th enlarged edition - 2007

Vol.1), as under:

"The `as if enacted' formula has been used in

India as well but its legal effect has not been beyond

doubt because the judicial view about its implications

has not so far been uniform, consistent and definitive. WPC.NO.14094/10 & CONN.CASES 181

The Supreme Court adopted the Herschel (or the

Lockwood) doctrine in a few earlier cases, while in a

few later cases, the Court declared the rules invalid in

spite of the `as if enacted' clause. In State of Kerala v.

KM. Charia Abdulla and Co., the Court stated that if

the rule-making authority transcends the limits of the

power conferred, the rules would be invalid and the

`as if enacted' clause could attach no additional

sanctity to the rules. The Court observed: "Power to

frame rules is conferred by the Act upon the State

Government and that power may be exercised within

the strict limits of the authority concerned. If in

making a rule, the State transcends its authority, the

rule will be invalid, for statutory rules made in

exercise of delegated authority are valid and binding

only if made within the limits of the authority

delegated. Validity of a rule whether it is declared to

have effect as if enacted in the Act or otherwise is

always open to challenge on the ground that it is

unauthorised". This comes nearer the Yaffe rather

than the Lockwood approach. The Supreme Court has

again considered the matter recently. S.281(2) of the

Cantonments Act provides that the rules made under WPC.NO.14094/10 & CONN.CASES 182

the Act, on publication "shall have effect as if enacted

in the Act." The Appellants argued that the rules in

question became a part of the statute and, accordingly,

the question of their contrariety to the Act could not

arise at all. Rejecting the contention as unsound, the

Supreme Court observed:

"It is well settled that rules framed under the provisions of a statute form part of the statute. In other words, rules have statutory force. But, before a rule can have the effect of a statutory provision, two conditions must be fulfilled, namely; (1) it must conform to the provisions of the statute under which it is framed; and (2) it must also come within the scope and purview of the rule- making power of the authority framing the rule. If either of these two conditions is not fulfilled, the rule so framed would be void."

Thus, the Court ruled that in spite of S. 281(2),

"any rule framed under the Cantonments Act has to

fulfil the two conditions mentioned above for their

validity". A rule was held ultra vires the Act in the

instant case. This means that an ultra vires rule

cannot be validated by such a formula. It is suggested

that this is the reasonable and logical approach to WPC.NO.14094/10 & CONN.CASES 183

take; the courts should apply the ultra vires doctrine

even when the rules are declared to be effective "as if

enacted in the Act." The rules constitute delegated

legislation; the delegate can claim no more power

than what the ambit or scope of the rule-making power

conferred by the statute is; the rules ultra vires the

rule-making power being void ab initio cannot form

part of the statute. The Supreme Court has recently

reiterated this ruling in Asstt. Collector, Central

Excise v. Ramakrishnan."

Thus, a statutory Rule will not get any added immunity from being

rendered infirm on the score of it being ultra vires the parent

enactment for the mere reason that it is to be treated as part of the

Act. Thus, Rule 140A of the Municipal Building Rules, if it is

held that it does not square with Section 388 of the Municipality

Act which is applicable in the Panchayats from 6.6.2007, then Rule

140A must stand over-whelmed by Section 388. Therefore, the

power given under Section 235A of the Panchayat Raj Act to

make Rules cannot enable the delegate to make Rules contrary to WPC.NO.14094/10 & CONN.CASES 184

the provisions of the Act.

83. In view of the provisions contained in Rules 141(1), 141

(4) and 141(8) of the Municipality Building Rules, we are of the

following view:

Rule 140A(1) which provides that it shall not be necessary to

secure site approval for the construction of a telecommunication

tower, inter alia, would be ultra vires Section 235F read with

Section 235H of the Panchayat Raj Act which corresponds to

Sections 387 and 388 of the Municipality Act. However, in view

of Rules 141(1), 141(4) and 141(8) of the Municipality Building

Rules, we hold that no Permit can be granted under Rule 141(8)

unless there is prior site approval. As far as inspection is

concerned, we notice that though Sections 387 and 388 of the

Municipality Act do not expressly refer to the need for an

inspection for the purpose of granting site approval, Rule 11(1) of

the Building Rules mandates that the Secretary shall after

inspection of the site and verification of the site plan and WPC.NO.14094/10 & CONN.CASES 185

documents, if convinced of the bonafides of the ownership of the

site and with the site plan, drawing and specifications conforms to

the site and provisions of the Rules or Byelaws under the Act and

any other law, approve the site and site plan. The very concept of

site approval would appear to us, to require inspection of the site.

We can, on this interpretation, uphold the supremacy of the parent

enactment over the Rules. We further hold that once a Permit is

granted under Rule 141(8) to establish a mobile tower, then, if the

permission is granted in the manner aforesaid, that is, after the site

approval is granted, as we have adverted to above, then, no further

permission is required under Chapter XVIII of the Kerala

Municipality Act which corresponds to Chapter XXI of the Kerala

Panchayat Raj Act. This is for the reason that the Building Rules

provide for the manner in which the permission contemplated

under the Act is to be effectuated. Under Section 235F of the

Panchayat Raj Act corresponding to Section 387 of the

Municipality Act, the Act does not prescribe any particular form. WPC.NO.14094/10 & CONN.CASES 186

In the Rules, the application for permit is to be made as provided in

Appendix A. In Appendix A, Clause 3(vii a) deals with erection of

telecommunication tower or other structure. Once the Permit is

granted as per law, under the Rules, there is no requirement that

there must be again permission granted under the Act.

Whether the component parts are "machinery"

within the meaning of Section 233(1)(b) of the

Panchayat Raj Act and the corresponding

provisions in the Municipalities Act ?

84. Shri V. G. Arun would contend that the component parts

of a mobile tower are not "machinery" and they constitute

telecommunication apparatus. Shri M. Pathros Mathai, learned

senior counsel appearing on behalf of the petitioners would also

point out that the component parts in a mobile tower may not be

"machinery". Shri Philip Mathew also would point out that it is

not "machinery". Reliance is placed on the decision of the Privy WPC.NO.14094/10 & CONN.CASES 187

Council in Corporation of Calcutta v. Chairman of the

Cossipore and Chitpore Municipality (AIR 1922 PC 27),

wherein the Court held, inter alia, as follows:

"The determination in any given case of what is

or is not machinery must to a large extent depend upon

the special facts of that case.

Generally, the word "machinery" when used in

ordinary language, prima facie, means some

mechanical contrivances, which by themselves or in

combination with one or more other mechanical

contrivances, by the combined movement and inter-

dependent operation of their respective parts generate

power or evoke, modify, apply or direct natural force

with the object in each case of effecting a definite and

specific result."

85. Regarding the question as to whether it is "machinery"

within the meaning of Section 233(1)(b) of the Panchayat Raj Act,

we have already noted that there is absolutely no pleading by any

of the local bodies or private party respondents that the component WPC.NO.14094/10 & CONN.CASES 188

parts of the mobile tower would constitute "machinery" and,

therefore, permission is required. We have already noticed the

contention of many of the petitioners is that actually the

component parts would not constitute "machinery". In particular,

it is contended that Section 233A provides for abatement of

nuisance. It reads as follows:

"233A. Abatement of nuisance caused by

factory, workshop, etc.- (1) Where any factory,

workshop, workplace or machinery causes, in the

opinion of the Village Panchayat, nuisance by reason

of a particular kind of fuel being employed or by

reason or the noise or vibration created, or effluent

discharged or by reason of noxious odour, smoke or

dust omitted, the Secretary may direct the person in

charge of such factory, workshop, workplace or

machinery for the abatement of such nuisance within a

reasonable time to be specified for that purpose.

(2) The Village Panchayat may, if required,

obtain expert opinion with regard to the determination

of the nuisance or its abatement, at the cost of the

owner or person in charge of the factory, workshop, WPC.NO.14094/10 & CONN.CASES 189

workplace or machinery concerned.

(3) Where there has been willful default in

carrying out a direction given under sub-section (1) or

where in the existing circumstances the abatement of

nuisance is found impracticable, the Secretary may

prohibit the working of the factory, workshop,

workplace or machinery till such time the person

concerned takes necessary steps to the satisfaction of

the Secretary for the abatement of the nuisance."

86. It is pointed out that the allegations which are leveled

against the type of nuisance that allegedly emanates from the

operation of mobile tower would show that Section 233A is not

attracted at all and, therefore, there is a case that the Legislature did

not contemplate component parts of the mobile tower being

treated as "machinery" under Section 233(1)(b). It is contended by

Shri. A. Mohamed Mustaque that if it could be assumed that a

mobile tower started functioning and it did cause the ills, attributed

to it by some of the respondents, then the provisions of Section

233A would show that the local body would be totally helpless to WPC.NO.14094/10 & CONN.CASES 190

deal with such a nuisance. That is to say, what is alleged on behalf

of the respondents is that when a mobile tower is operated, it will

give rise to radiation and it can cause sleeplessness, cancer etc.

But such a contingency is clearly not contemplated under Section

233A. Therefore, it is contended that it clearly establishes that the

scheme of the Act would not take in the component parts of a

mobile tower. Of course, no doubt, it is contended by Shri Vinod

Madhavan on behalf of the respondent that under sub-section (2)

of Section 233A of the Panchayat Raj Act, the Panchayat can get

expert opinion with regard to the determination of the nuisance or

its abatement and, therefore, there is no merit in the contention of

Shri Mohamed Mustaque.

87. There is a further case for the petitioners that Section 233

(b) of the Panchayat Raj Act providing for permission for

installation of machinery in any premises must be read in

conjunction with Clause (a) and, therefore, no permission is

required for installation of component parts, even if it is WPC.NO.14094/10 & CONN.CASES 191

machinery, unless a mobile tower is a workplace which, it is not.

In this connection, we must remind ourselves that Section 233 of

the Panchayat Raj Act, after providing that no person shall without

permission of the Village Panchayat construct or establish any

factory, workshop or workplace, inter alia, install in any premises

any machinery, inter alia, driven by power, as aforesaid. The

words "as aforesaid" would appear to refer to the types of power

which attracts Sub-section (a), namely steam power, water power

or other mechanical power or electrical power. No doubt, Clause

(b) is not attracted in respect of machinery exempted by the

provisions of the Act or Rules made thereunder. Undoubtedly,

Section 233B provides for exemptions. It is, however, apposite to

refer to sub-section (2) of Section 233. It provides as follows:

"An application for permission under Sub-

section (1) shall be submitted to the Village Panchayat

addressed to the Secretary in such form and with such

details as prescribed."

WPC.NO.14094/10 & CONN.CASES 192

Rule 12 of the Kerala Panchayat Raj (issue of Licence to

Dangerous And offensive Trades and Factories) Rules, 1996 reads

as follows:

"12. Application to be made for constructing or

establishing factory, workshop or workplace wherein

steam power or other power is to be used.- Every

person intending.-

(a) to construct or establish any factory,

workshop or workplace wherein it is proposed to use

steam power, water power or other mechanical power

or electricity; or

(b) to install, on any land a machinery or a

manufacturing plant operated by steam power, water

power or other power as aforesaid, not being

machinery or manufacturing plant exempted under

rule 16, shall submit an application in writing before

the Village Panchayat for permission to undertake

such work before so constructing or establishing."

Sub-rule (2), thereafter, inter alia, provides that the application

shall be accompanied by details of machinery that the Panchayat

may call for. We may also notice the corresponding provision in WPC.NO.14094/10 & CONN.CASES 193

the Kerala Municipality Act, namely Section 448. The relevant

portion of Section 448 reads as follows:

"448. Application to be made for construction,

establishment or installation of factory, workshop or

workplace in which steam or other power is to be

employed.-

(1) Every person intending-

(a) to construct or establish any factory,

workshop or work place in which it is proposed to

employ steam power, water power or other

mechanical power or electrical power or, any other

factory which does not employ any such power; or

(b) to install in any premises any machinery or

manufacturing plants driven by steam, water or other

power not being machinery or manufacturing plant

exempted by this Act or the rules made thereunder,

shall,

before beginning such construction or

establishment make an application to the Municipality

in the prescribed form addressed to the Secretary for

permission to undertake the intended work." WPC.NO.14094/10 & CONN.CASES 194

Therefore, we may notice that in the Rules provided pursuant to

sub-section (2) of Section 233 of the Kerala Panchayat Raj Act and

Section 448 of the Kerala Municipality Act itself, the law

contemplates the making of an application "before so constructing

or establishing" in the case of rule 12" and "before beginning such

construction or establishment" in Section 448 of the Municipality

Act clearly relate to Clause (a) of Section 233(1) of the Panchayat

Raj Act and Clause (a) of Section 448 of the Municipality Act. In

other words, the words "construct and establish" appear in

conjunction with the words "factory, workshop or workplace".

The impression that would appear to be generated would be that

even in respect of installation of machinery, there is no separate

application contemplated and the application is contemplated as a

composite one at the time before the construction or establishment

of the factory, workshop or workplace. This would appear to

advance the case that the installation of "machinery" contemplated

in both the Kerala Panchayat Raj Act and the Kerala Municipality WPC.NO.14094/10 & CONN.CASES 195

Act, though stated to relate to "any premises" may have to take its

context and colouring from the words "factory, workshop or

workplace".

88. No doubt, the question could be posed as to what would

happen in a situation where fresh or additional "machinery" is to

be installed after the commencement of the "factory, workshop or

workplace." Could it be said that they could be installed without

obtaining permission ?

89. However, on the other hand, we may also notice the kind

of machinery which are exempted both under Section 233B of the

Panchayat Raj Act and Section 450 of the Municipality Act. They

would appear to create the impression that the word "premises"is

not limited with reference to the words "factory, workshop or

workplace". For instance, electrical and non-electrical appliances

installed for agricultural purposes and electrical and non-electrical

appliances and machinery intended to be used for domestic or

personal purposes. Quite clearly, it could be said that they are in WPC.NO.14094/10 & CONN.CASES 196

no way relatable to a factory, workshop or workplace.

90. Further more, we notice that Rule 133(3) and (4) of the

Municipality Building Rules reads as follows:

"133 (3): Installation of electricity generator

may be allowed if the generator is covered with

insulated sound-proof cabin.

(4) Every construction or installation ancillary

or necessary for the telecommunication system shall

conform to the relevant rules applicable to such

construction or installation and licence or permit

required under such rules shall also be obtained."

Are the words "installation, ancillary or necessary for the

telecommunication system" to take in the component parts and

which are the relevant Rules, the rule maker had in mind, are all

not matters which are canvassed before us. It is not even clear that

they have intended to refer to any Rules made under the Central

Legislation. Further, could it not be said that Rule 133(3) of the

Building Rules indicates that generator would, at any rate, be WPC.NO.14094/10 & CONN.CASES 197

"machinery" within the meaning of Section 233 of the Kerala

Panchayat Raj Act and the corresponding Municipal Law.

91. As far as Sub-rule (3) is concerned, the rule maker

appears to provide for allowing installation of electricity generator,

if it is covered with insulated sound proof cabin. Would it be a

case of an exemption contemplated in Section 233(1)(b) of the

Panchayat Raj Act and Section 448(1)(b) of the Municipality Act,

even though clearly it does not expressly say that generators (in

conditions mentioned) are exempted which is the expression used

in the parent enactment. Does it contemplate permission being

granted ? If it is a question of permission having to be granted,

will it not be traceable to the power under Section 233(1)(b) of the

Panchayat Raj Act and Section 448(1)(b) of the Municipality Act.

Further, if it is a question of installation of a generator, when it is

not covered with insulated sound proof cabin, does not Rule 133(3)

of the Building Rules further indicate that it would be "machinery'

within the meaning of Section 233 of the Panchayat Raj Act and WPC.NO.14094/10 & CONN.CASES 198

corresponding Municipal Law ?

92. We must remind ourselves that in the state of affairs and

the nature of the pleadings or rather the absence of the same, it may

not be appropriate that we resolve this issue. We reiterate that

there is no local body which has come forward for setting up a case

to the effect that "machinery" with which we are concerned, falls

under Section 233(b) of the Kerala Panchayat Raj Act and the

corresponding provision of the Kerala Municipality Act and they

require permission.

93. However, we make it clear that we are leaving this issue

open and this judgment will not stand in the way of any local body

taking the stand that the component parts are "machinery", the

installation of which requires permission under Section 233 of the

Panchayat Raj Act and the corresponding provisions of the

Municipality Act, in which case, it will be open to the

petitioners/operators to challenge the same in properly constituted

proceedings.

WPC.NO.14094/10 & CONN.CASES 199

Whether Permit is bad for contravening the

provisions of the Scheme ?

94. One of the questions raised by some of the respondents

including the Corporation of Kochi and the learned Government

Pleader is that under the Town Planning Scheme, establishment of

mobile towers is prohibited in certain Zones. Rule 3A of the

Municipal Building Rules which we have already referred to, is

also pressed into service. It was inserted with effect from

16.12.2009. It provides that the provisions of the Town Planning

Scheme in force under the Town Planning Acts will prevail over

the respective provisions in the Municipal Building Rules. Rule

140A of the Building Rules provides that telecommunication

towers, inter alia, shall be permitted in any zone or over any

building irrespective of its occupancy. In view of the fact that in

some of the schemes, towers are not permissible in certain zones

under Rule 3A, it is the provision of the scheme which will prevail WPC.NO.14094/10 & CONN.CASES 200

over the Municipal Building Rules. The petitioners counter the

argument as follows:

95. Litigation is pending in this Court challenging the

Scheme. Secondly, it is contended that when permits are issued

and they are not challenged, this Court cannot in a Writ Petition

seeking mandamus for police protection, invalidate the Permits

without there being a challenge on the ground of Permit being

issued contrary to the scheme. Particularly, in view of the fact that

there is litigation pending in regard to the legality of the scheme

itself and it becomes a factual issue, we do not think it is

appropriate for us to go into the said question and we leave open

that question.

Decision on specific contentions raised in

certain cases:

96. In W.P.(C).No.24384/2009, as already noticed, there is a

case for the respondents that there was no inspection done and WPC.NO.14094/10 & CONN.CASES 201

even proceeding on the basis that site approval is there, in terms of

Rule 141(1) (4) and (8) before the Permit was granted, as

contended by Shri Santhosh Mathew, there was no site inspection.

In this context, we notice that Ext.P2 Permit is granted under Rule

11(3) of the Building Rules. In view of the specific pleading in the

Counter Affidavit that there was no inspection which is not denied,

we are inclined to decline jurisdiction.

97. In W.P.(C).No.13401/10, the case of the second

respondent is that one Leela is the mother-in-law of one Shri

Madhu who has entered into Ext.P1 agreement and the case of the

petitioner is that the petitioner has entered into an agreement with

one Shri Madhu who is described in the Writ Petition as the owner

of the site. In the Counter Affidavit of respondents 2 to 4, the case

is that Shri Madhu is a contractor and the land belongs to Leela as

per Settlement Deed No.1379/01. There is no Reply Affidavit

filed. Thus, we must take it that the petitioner has approached this

Court without establishing that the licensor had title to the WPC.NO.14094/10 & CONN.CASES 202

property. In such circumstances, we are not inclined to exercise

our discretionary jurisdiction in favour of the petitioner and the

Writ Petition is liable to be dismissed.

98. In W.P.(C).No.14361/10, the contention taken by the

party respondents is that respondents 3 and 4 are neighbours.

Learned counsel for respondents 3 and 4 would bring our attention

to Rule 7(ia) which provides that there must be consent of the

neighbour. It was subsequently omitted by SRO.No.591/10 dated

21.6.2010. It, in substance, provides that in case of earth work

excavations, if the depth of the excavation is greater than the

horizontal distance from the nearest boundary of the place of

excavation, the written consent of the owners of the adjoining

property shall be obtained by the owner and produced along with

such application. There is no Reply Affidavit filed rebutting the

statements made in the Counter Affidavit. In such circumstances,

we are not inclined to exercise our discretionary jurisdiction under WPC.NO.14094/10 & CONN.CASES 203 Article 226 of the Constitution of India in favour of the petitioner

and the Writ Petition is liable to be dismissed.

99. In W.P.(C).No.17009/2010, the case of respondents 4

and 5 is that Ext.P2 Permit was issued to M/s. Indus Towers, but

the petitioner is somebody-else. But the Writ Petition is filed by a

Private Limited Company. We would think that there may not be

much merit in the contention of the respondent. It is to be noticed

that the petitioner has produced Ext.P1 which is purchase order

issued by Indus Towers in favour of the petitioner dated

14.12.2009. Therefore, we reject the argument based on Ext.P2

permit being issued in favour of M/s. Indus Towers, but the Writ

Petition being filed by the Private Limited Company, as under

Ext.P1, petitioner is given the right to carry out the work.

Conclusions

100. We hold that the provisions of Section 233 of the

Panchayat Raj Act and the corresponding provisions in the WPC.NO.14094/10 & CONN.CASES 204 Municipality Act, in pith and substance, fall under Entry 6 of List

II of the VIIth Schedule to the Constitution and, therefore, are

perfectly within the legislative competence of the State. We

further hold that Section 233 of the Panchyat Raj Act is not limited

by Section 232 of the said Act. We also hold that Sub-rule (1) of

Rule 140 A of the Building Rules appears to us to be ultra vires

Section 387 of the Municipality Act which is applicable in the

Panchayats also from 6.6.2007. However, in view of Rules 141(1),

141(4) and 141(8) of the Building Rules, we hold that if the

Secretary approves the site as per law before the permit is granted,

it would be sufficient compliance with the mandate of the parent

enactment and such permits would be valid. There must be site

inspection before approval is granted.

101. We find that the mobile tower is a building within the

meaning of the word "building" as defined in the Municipality Act

and the Building Rules. However, if a permit has been granted

under Rule 141(8), there need not be a further permission under WPC.NO.14094/10 & CONN.CASES 205

Chapter XXI of the Panchayat Raj Act corresponding to Chapter

XVIII of the Municipality Act. This is, however, subject to the

condition that before the permit is granted, the site is approved in

accordance with law as Rule 140 A of the Building Rules is

subservient to Section 387 of the Municipality Act. We leave open

the issue relating to whether the component parts of a mobile tower

would constitute "machinery" and it will be open to the local

authorities to take proceedings on the basis that the component

parts do constitute "machinery" and nothing contained in this

Judgment will stand in the way of them doing so. We further hold

that the mobile tower would not constitute "workplace" within the

meaning of Section 233(1)(a) of the Panchayat Raj Act. We

further find that on the basis of the materials on record, it may not

be open to this Court to decline jurisdiction under Article 226 of

the Constitution in cases where permits have been issued under

Rule 141 as per law. But, we further make it clear that it will be

open to the parties to approach any other competent Forum and WPC.NO.14094/10 & CONN.CASES 206

seek remedies in which case, nothing stated in this Judgment will

stand in the way of the competent Forum going into the issue as to

whether there is any nuisance or pollution or health hazard and

granting relief to the parties as the situation may warrant in law and

on facts.

102. On the above findings, we dispose of the Writ Petitions

as follows:

There will be a direction to the official respondents (Police

Officers) in all the Writ Petitions that they will afford protection to

the petitioners to carry on the operation of the mobile towers in all

those cases where protection has been sought for, for the operation

of the mobile towers as against the party respondents as claimed in

the Writ Petitions. This, however, will not stand in the way of the

local bodies concerned taking action as per law on the basis that

the component parts used in the towers constitute "machinery".

Necessarily, the order of police protection will remain only as long

as the Permits issued are not set aside or otherwise interfered with. WPC.NO.14094/10 & CONN.CASES 207

In all those cases where the construction was completed or

permitted on the basis of the interim orders passed by this Court

except otherwise ordered hereunder, we leave it free to the

petitioners to commission the mobile towers in accordance with

law.

103. We further make it clear that the petitioners shall be

free to install the component parts on the mobile towers in all those

cases where we had restrained the petitioners from putting the

component parts/equipments. We make it clear that if the

petitioners install any component parts, they will be doing it at

their own risk and subject to any proceedings which the local

Authorities may take on the basis that the component parts

constitute "machinery" under Section 233(1)(b) of the Panchayat

Raj Act and the corresponding provisions of the Municipality Act.

In all the cases where proceedings are taken, in any of the matters,

by the local bodies, we leave it open to the petitioners/operators to

challenge the proceedings.

WPC.NO.14094/10 & CONN.CASES 208

104. We have proceeded in these cases in the absence of

factual dispute being raised that there is a valid permit, but as we

have also made a declaration of the law that without granting site

approval as per law, a Permit cannot be issued under Rule 141 (8)

of the Building Rules, we leave open the rights of the parties in

this regard.

105. W.P.(C).Nos.13401/2010, 14361/2010 and 24384/2009

will stand dismissed and consequently the mobile towers cannot be

energized. In W.P.(C). No.8321/2009, we direct that the order of

police protection which we have granted will be subject to any

orders that may be passed by the civil court.

106. We also make it clear that in all those cases where

protection was given for construction of mobile towers, subject to

the decision of the Tribunal, the aforesaid directions will be subject

to the decision of the Tribunal as ordered.

107. We hasten to repeat that if the petitioners/operators

install or have installed component parts, it will be at their risk and WPC.NO.14094/10 & CONN.CASES 209

without prejudice to the right of the local bodies to take

proceedings against them in accordance with law.

108. Regarding the question raised by Shri K. Sasikumar

with reference to Ext.R3(c) produced in W.P.(C).No.7312 of 2009,

in view of the fact that the matter appears to be pending

consideration before this Court, we are not pronouncing on the

same and we are leaving open this issue.

K.M. JOSEPH, JUDGE

M.C. HARI RANI, JUDGE

kbk.

WPC.NO.14094/10 & CONN.CASES 210