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