Kerala High Court
Indus Towers Limited vs Kuzhuppilly Grama Panchayat on 3 February, 2022
Author: P.V.Kunhikrishnan
Bench: P.V.Kunhikrishnan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
THURSDAY, THE 3RD DAY OF FEBRUARY 2022 / 14TH MAGHA, 1943
WP(C) NO. 13220 OF 2021
PETITIONER:
INDUS TOWERS LIMITED
REPRESENTED BY THEIR HEAD (LEGAL) MR.RAJKUMAR PAVOTHIL,
8TH FLOOR, VANKARATH TOWERS, PALARIVATTOM, ERNAKULAM-
682024.
BY ADVS.
PHILIP T.VARGHESE
THOMAS T.VARGHESE
ACHU SUBHA ABRAHAM
V.T.LITHA
K.R.MONISHA
SHRUTHI SARA JACOB
RESPONDENTS:
1 KUZHUPPILLY GRAMA PANCHAYAT
REPRESENTED BY ITS SECRETARY, AYYAMPILLY P.O-682501.
2 THE SECRETARY
KUZHUPPILLY GRAMA PANCHAYATH, AYYAMPILLY P.O.-682501.
3 THE DISTRICT TELECOM COMMITTEE
REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR,
ERNAKULAM-682030.
4 THE DISTRICT POLICE CHIEF
ERNAKULAM RURAL, ALUVA-686002.
5 THE DEPUTY DIRECTOR GENERAL.
TERM CELL, DEPARTMENT OF TELECOMMUNICATION,
GANDHINAGAR, KOCHI-682020.
6 THE ASSISTANT ENGINEER
KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL
SECTION, NEAR AZHEEKAL SREE VARAHAM TEMPLE, DEVASWOM
NADA, CHERAI-683514.
7 UNNIKRISHNAN T.S.,
S/O.SIVAN T.R., THAYYAPADATH HOUSE, MANAPPILLY,
WP(C) NO. 13220 OF 2021
2
AYYAMPILLY P.O., ERNAKULAM-682501.
8 N.D.SURESH,
S/O.DASAN, NEELIMATHARA HOUSE, MANAPPILLY,
AYYAMPILLY P.O., ERNAKULAM-682051.
9 CHANDRASEKHARAN.K,
S/O.SANKARAN NAIR, PRESIDENT, MYTHRI
RESIDENTS WELFARE ASSOCIATION ER 785/09,
MARACHERIL HOUSE, MANAPPILLY, AYYAMPILLY
P.O., ERNAKULAM-682501.
BY ADVS.
SHRI.R.ROHIT, SC, KUZHUPPILLY GRAMA
PANCHAYAT
M.M.MONAYE, SC
M.PAUL VARGHESE
NIRMALA P.V.
SRI. P. R AJITHKUMAR SC,
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 03.02.2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NO. 13220 OF 2021
3
P.V.KUNHIKRISHNAN, J
-------------------------------
W.P.(C)No. 13220 of 2021
--------------------------------
Dated this the 3rd day of February, 2022
JUDGMENT
The above writ petition is filed challenging Exhibit P10 order passed by the Tribunal for Local Self Government Institution, Thiruvananthapuram in Appeal No.346/2020 and Ext.P16 notice issued by the 6th respondent pursuant to Ext.P10 order. Ext.P10 is an order passed by the Tribunal in Appeal No.346/2020 and it is actually a remand order. It will be better to extract the relevant portion of Ext.P10 order:
"8) Point No.(ii) & (iii) In view of my finds on Point No.(i) I find the appeal preferred by the appellant could be allowable.
In the result appeal is allowed by way of remand as follows;
(1) The impugned building permit No. A2- 760/BP/02/2020-21 dated 28.05.2020 is hereby set aside.
WP(C) NO. 13220 OF 2021 4 (2) The matter is remitted back for considering the same afresh after affording an opportunity of hearing to the appellants as well as the 2 nd respondent in the light of the complaint preferred by the appellants herein. The Secretary shall consider the matter afresh and shall take a decision in accordance with the law.
Considering the nature and circumstances no order as to cost."
2. Heard the learned counsel for the petitioner, the learned counsel for respondents 7 to 9, the learned counsel for the Panchayat and the learned Standing counsel for the K.S.E.B. I also heard the learned Government Pleader.
3. I perused Ext.P10 order. As stated above, it is a remand order. Ext.P10 order was passed by the Tribunal on 30.04.2021 as per the direction of this Court in Ext.P9 judgment. In Ext.P9 judgment, this Court directed the Tribunal to dispose of Appeal No.346/2020 within three weeks and the parties are directed to appear before the Tribunal on 15.04.2020. WP(C) NO. 13220 OF 2021 5 Based on that direction, the Tribunal passed Ext.P10 order on 30.04.2021. Subsequent to Ext.P10 order, the petitioner challenged Ext.P9 judgment before this Court by filing Writ Appeal No.737/2021. The counsel for the petitioner submitted that, in the writ appeal memorandum, it is clearly stated that Ext.P10 order was delivered on 30.04.2021. A reading of Ext.P15 judgment, it is clear that Ext.P10 order was not bring to the notice of the Division Bench by the petitioners.
By Ext.P15 this Court dismissed the writ appeal. The relevant portion of Ext.P15 is extracted hereunder:
"4.We are unable to countenance the arguments addressed by the learned counsel for the appellant. It is to be noticed that the objection regarding the installation of a Telecommunication Tower is not confined to the construction or the structural facility sought to be installed in the property. The objection is also with respect to the operation of such a tower in the area, for multifarious reasons. We perfectly agree with the learned Single Judge, who refused exercise of discretion, in the context of a challenge having been made to the erection and installation of a WP(C) NO. 13220 OF 2021 6 Telecommunication Tower in the subject property. Otherwise, whenever a building permit is declined or interfered with by a competent Court, the Telecom operator or their service provider could install a mobile tower so as to get over the objection of the nearby residents.
5.We cannot, but observe that a mobile 'Cell on Wheels' cannot be installed in lieu of a permanent structure when the building permit for the permanent structure is stayed by a competent Court or Tribunal. What is intended by facilitating telecommunication services through a "Cell on Wheels" is only to facilitate such services in the interregnum when a construction is going on pursuant to a valid building permit. If the Tribunal finds in favour of the appellant, then, definitely the construction could be proceeded with and in the meanwhile, they could also operate the 'Cell on Wheels' till the construction as enjoined in the building permit, is completed.
6.We do not enter into the objections raised nor are we deciding on merits the allegations raised by the complainants. However, we feel it appropriate, as rightly held by the learned Single Judge, that the appellants proceed for installation of a Telecommunication Tower and commence operations only if the Tribunal disposes of the matter in their favour.
7.In this context, we have to notice that the WP(C) NO. 13220 OF 2021 7 interim order itself was passed by the Tribunal as early as on 26.8.2020. There is no contention raised by the appellant of having approached the Tribunal for an expeditious disposal. Immediately thereafter, they approached the District Telecom Committee with a request to install the Telecommunication facility by way of a Mobile Tower, which we find is an attempt to circumvent the order of the Tribunal. We cannot entertain such an action. We hence dismiss the Appeal in limine, leaving the parties to agitate their cause before the Tribunal."
4. Therefore, it is clear that the petitioner is trying to get some orders from the Division Bench suppressing Ext.P10 order. It is true that the counsel for the petitioner repeatedly submitted before this Court that, in the Writ appeal memorandum, it is mentioned that the Tribunal already disposed of the appeal. But simply making some averments in the memorandum of writ appeal is not sufficient. It is the duty of the counsel to bring to the notice of the Court that the appeal is already disposed. I leave it there.
5. As I stated earlier, Ext.P10 is only a remand order. The Tribunal was pleased to set aside the WP(C) NO. 13220 OF 2021 8 building permit and remitted back the matter for fresh consideration in accordance to law. I perused Ext.P10 order. I see no reason to interfere with Ext.P10 order because it is a remand order. I make it clear that the 2nd respondent will consider the matter as directed by the Tribunal in Ext.P10 untrammeled by any observation in Ext.P10 order. The petitioner and the contesting respondents are free to raise all their contentions before the 2nd respondent. The counsel for the petitioner submitted that some urgent orders are necessary and no time limit is fixed by the Tribunal in Ext.P10 order. I think that is a reasonable submission. Therefore, there can be a direction to the 2nd respondent to decide the matter as directed in Ext.P10 within a time frame.
Therefore this writ petition is disposed of in the following manner:
(i) The 2nd respondent will decide the matter as directed in Ext.P10, as expeditiously as possible, WP(C) NO. 13220 OF 2021 9 at any rate, within two weeks from the date of receipt of a copy of this judgment, after giving an opportunity of hearing to the petitioner and other affected parties.
(ii) The 2nd respondent will decide the matter untrammeled by any observation in Ext.P10 order.
(iii) All the contentions of the petitioner and the contesting respondents in this writ petition are left open.
Sd/-
P.V.KUNHIKRISHNAN JUDGE DM WP(C) NO. 13220 OF 2021 10 APPENDIX OF WP(C) 13220/2021 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER NO.DOT/KRL/6- 14/DM-CORR/2019-20 ISSUED BY KERALA STATE TELECOM DISASTER CO-ORDINATION COMMITTEE DATED 24.03.2020.
EXHIBIT P2 TRUE COPY OF BUILDING PERMIT NO.A2- 760/BP/02/2020-21 ISSUED BY THE 2ND RESPONDENT DATED 28.05.2020.
EXHIBIT P3 TRUE COPY OF THE JUDGMENT IN W.P(C)NO.11497/2020 OF HIGH COURT OF KERALA DATED 11.06.2020.
EXHIBIT P4 TRUE COPY OF THE MEMORANDUM OF APPEAL IN APPEAL NO.346/2020 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM, DATED 01.07.2020.
EXHIBIT P5 TRUE COPY OF THE ORDER IN
I.A.NO.645/2020 IN APPEAL
NO.346/2020 OF THE TRIBUNAL FOR
LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM DATED 26.08.2020.
EXHIBIT P6 TRUE COPY OF THE ORDER NO.BO/(CMD)
(GENL) NO.2740/2015 (D(D&SD6-
AE1/GEN/3669/2015) ISSUED BY THE KERALA STATE ELECTRICITY BOARD LIMITED DATED 04.11.2015.
EXHIBIT P7 TRUE COPY OF DEMAND CUM DISCONNECTION NOTICE ISSUED BY THE KERALA STATE ELECTRICITY BOARD LIMITED TO M/S.INDUS TOWERS LIMITED DATED 26.08.2020.
EXHIBIT P8 TRUE COPY OF THE ORDER NO.DCEKM/6154/2020/M2 ISSUED BY THE WP(C) NO. 13220 OF 2021 11 3RD RESPONDENT DATED 29.11.2020. EXHIBIT P9 TRUE COPY OF THE JUDGMENT IN WP(C)NO.27549/2020 DATED 31.03.2021. EXHIBIT P10 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LSG INSTITUTIONS IN APPEAL NO.346/2020 DATED 30.04.2021. EXHIBIT P11 TRUE COPY OF ANNEXURE P4 IN APPEAL NO.346/2020 OF THE TRIBUNAL FOR LSG INSTITUTIONS DATED NIL EXHIBIT P12 TRUE COPY OF RTI APPLICATION FILED BY THE 9TH RESPONDENT TO PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT DATED 16.06.2020.
EXHIBIT P13 TRUE COPY OF THE REPLY ISSUED BY THE PUBLIC INFORMATION OFFICER OF THE 1ST RESPONDENT DATED 22.06.2020.
EXHIBIT P14 TRUE COPY OF THE ARGUMENT NOTE FILED
BY THE APPELLANT IN APPEAL
NO.346/2020 BEFORE THE LSG TRIBUNAL DATED 19.04.2021.
EXHIBIT P15 TRUE COPY OF THE JUDGMENT IN WRIT APPEAL NO.737/2021 DATED 27.05.2021. EXHIBIT P16 TRUE COPY OF NOTICE ISSUED BY THE 6TH RESPONDENT TO THE PETITIONER DATED 24.06.2021.
RESPONDENTS EXHIBITS : NIL //TRUE COPY// PA TO JUDGE