Kerala High Court
Antony Karippasserry vs State Of Kerala on 29 January, 2021
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
WP(C).No.11181 OF 2015(S) -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF JANUARY 2021 / 9TH MAGHA, 1942
WP(C).No.11181 OF 2015(S)
PETITIONER/S:
ANTONY KARIPPASSERRY
AGED 46 YEARS
PATTATHIL CHIRA HOUSE, KANDAMKARY PO, ALAPPUZHA -
699 573.
BY ADVS.
SRI.JOMY GEORGE
SRI.SEBASTIAN THOMAS
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT OF
KERALA, GOVERNMENT SECRETARIT, THIRUVANANTHAPURAM -
695 001.
2 DIRECTOR
KERALA STATE INFORMATION TECHNOLOGY MISSION,
DEPARTMENT OF INFORMATION TECHNOLOGY, GOVERNMENT OF
KEALA, THIRUVANANTHAPURAM - 695 001.
3 SECRETARY
PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
4 SECRETARY
LOCAL SELF GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
5 SECRETARY
EDUCATIONAL DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695 001.
6 CHIEF EXECUTIVE OFFICER
ASIANET COMMUNICATION LIMITED., ASIANET COMPLEX,
PULIYARAKONAM PO, THIRUVANANTHAPURAM - 695 573.
WP(C).No.11181 OF 2015(S) -2-
7 CHIEF EXECUTIVE OFFICER
BHARATHI AIRTEL LIMITED, ZODIAC SQUARE, 2ND FLOOR,
N.H.BYPASS, KUNDANOOR JUNCTION, MARADU PO-682 304.
8 CHIEF EXECUTIVE OFFICER
IDEA CELLULAR LTD., 2ND FLOOR, MERCY ESTATE,
RAVIPURAM PO, ERNAKULAM DISTRICT, 682 015.
9 CHIEF EXECUTIVE OFFICER
VODAFONE CELLULAR LIMITED., 4TH FLOOR, ANGELS
ARCADE, SOUTH KALAMASSERY PO, ERNAKULAM DISTRICT -
682 022.
10 CHIEF EXECUTIVE OFFICER
TATA COMMUNICATIONS LIMITED, VIDESH SANCHAR BHAVAN,
KAKKANADU PO, ERNAKULAM DISTRICT - 682 030.
11 CHIEF EXECUTIVE OFFICER
TATA TELESERVICES LIMITED, TATA DOCOMO, 5TH FLOOR,
S.L.PLAZA, PALARIVATTOM PO, ERNAKULAM DISTRICT -
682 025.
12 CHIEF EXECUTIVE OFFICER
RELIANCE COMMUNICATION LIMITED, A & P ARCADE,
S.A.ROAD, KADAVANTHARA, COCHIN - 682 016.
13 CHIEF EXECUTIVE OFFICER
KERALA COMMUNICATION NET WORK PRIVATE LIMITED,
C/O.RELIANCE COMMUNICATION LIMITED, A&P ARCADE,
S.A.ROAD, KADAVANTHARA, COCHIN - 682 016.
14 STATE CONSTRUCTION HEAD
RELIANCE JIJO INFOCOMM LIMITED, 4TH FLOOR,
CHANDRIKA BUILDING, S.A.ROAD, VYTTILA PO, ERNAKULAM
DISTRICT - 682 019.
OTHER PRESENT:
SRISURIN GEORGE IPE SR GP FOR R1 TO R5
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
29-01-2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.11181 OF 2015(S) -3-
J UD G M E N T
Dated this the 29th day of January, 2021
S. Manikumar, C. J.
Instant writ petition has been filed seeking for the following
reliefs:-
(a) issue writ of mandamus or any other appropriate writ,
order or direction directing the respondents 1 to 5 to ensure that
respondents 6 to 14 are providing free internet/communication
connectivity with required bandwidth to all educational
institutions, both Government and in the aided sector, that fall in
the route of their optic fibre network as contemplated in Exhibits
P-1 to P- 4.
(b) issue a writ of mandamus or any other appropriate writ,
order or direction directing the respondents 6 to 14 to declare the
details of the fibre network drawn by them and the details of the
unused ducts and unused free fibre (dark fibre) drawn in excess
and the details of thelease/license given by them to other telecom
operators for using the unused ducts and unused free fibre.
(c) issue a writ of mandamus or any other appropriate writ,
order or direction directing the respondents 6 to 14 to disclose the
revenue earned through inter leasing of unused free fibre and free
ducts to other telecom companies and operators
WP(C).No.11181 OF 2015(S) -4-
(d) issue a writ of mandamus or any other appropriate writ
order or direction directing the respondents 1 to 5 to collect a
fixed percentage of revenue from the respondents 6 to 14 and
other similar operators for using the road network of the State for
laying the optic fibre cables.
(e) issue a writ of mandamus or any other appropriate writ,
order or direction directing the respondents 1 and 2 to cancel
permit/licence given to respondents 6 to 14 for drawing fibre net
work along the public roads in Kerala.
2. Short facts leading to filing of the writ petition are as
hereunder:-
According to the petitioner, the Chief Secretary, Government of
Kerala, Government Secretariat, Thiruvananthapuram, 1st respondent,
by Exts. P1 to P4 Government Orders, granted permission to telecom
companies, for laying fiber optic communication network, across
national highways, state highways, and other public properties, on the
condition that, they shall provide free internet access, to all the
Government and aided educational institutions, falling along the route
map, and free internet access, wherever there are tapping points. From
the information gathered under the Right to Information Act, 2005, it
is revealed that, the respondents 6 to 14, haven't provided any internet
WP(C).No.11181 OF 2015(S) -5-
access, to any of the Government or aided educational institutions, in
the State. It is also revealed that, Government of Kerala is not
collecting any rent / usage charges, from respondents 6 to 14, for
granting right of way permission, for laying cable, through the road
network of the State. At the same time, respondents 6 to 14 have
earned unauthorized income, running to several hundred crores of
rupees, by leasing unused ducts, and unused free fiber, drawn in
excess, to other telecom companies.
Petitioner has submitted that, though the matter was brought to
the attention of respondents 1 to 5, they did not take any action in the
matter. Being aggrieved, instant writ petition is filed.
3. In support of his contention, petitioner has relied on Exts. P1
to P5 Government Orders.
4. On 21.01.2021, when the matter came up for hearing, we
passed the following order:-
"Instant public interest litigation is filed for a direction to
respondents 6 to 14 to provide free internet access to all
Government and aided educational institutions as provided in
Exhibits P1 to P4 Government Orders.
WP(C).No.11181 OF 2015(S) -6-
2. Learned Government Pleader submitted that Kerala
State Cabinet accorded administrative sanction for Rs.1548 crore
for K-Fon project which is aimed at providing free high speed
internet connection to over 20 lakh BPL families in Kerala. It is
submitted that this project aims to strengthen the internet
backbone of the State and to provide free or subsidised internet
connection to people. Learned Government Pleader seeks time
to file a statement/counter affidavit as the case may be."
5. Reverting on the basis of G. O. (Ms) No. 10/2017/ITD dated
18.05.2017, Mr. Surin George Ipe, learned senior Government Pleader
submitted that, administrative sanction has been accorded, for
implementing Kerala Fibre Optic Network (K-FON) Project, for a
sum of Rs. 1028 Crores.
6. Learned senior Government Pleader further submitted that,
the project includes, an expenditure for providing free internet, to 20
lakh poor families. For brievity, the abovesaid Government Order is
extracted hereunder:-
"GOVERNMENT OF KERALA
Abstract
Electronics and Information Technology Department - Kerala Fibre
Optic Network (K-FON) Project - Administrative Sanction Accorded -
Orders Issued
------------------------------------------------------------------------------------------
ELECTRONICS & INFORMATION TECHNOLOGY (B) DEPARTMENT
G.O.(Ms) No. 10/2017/ITD Dated, Thiruvananthapuram, 18/05/2017
------------------------------------------------------------------------------------------
WP(C).No.11181 OF 2015(S) -7-
Read:- Letter No. KSWAN/34/2017-KSITM/514 dated 03/05/2017
from the Director, Kerala State IT Mission, Thiruvananthapuram.
ORDER
In the budget speech 2017 (Paras 131 & 132) Hon'ble Finance Minister has announced that free internet connections will be provided to 20 lakh BPL families. For others, cost effective state of the art internet services will be provided through an optical fibre network at affordable rate. Thus Kerala is poised Lo become the only State in India where internet facility will be the right of the citizen. The universal basic internet facility will be made available to all citizens and Government machinery through a now optic fiber pathway created in parallel to KSEB electric power network. It was also announced that the fund needed for the capital investment will be provided through KIIFB.
2. Towards achieving this goal, a state wide optical network named Kerala Fibre Optic Network (K-FON) need be established. Kerala Fibre Optie Network (K-FON) aims to build a state wide optical fibre network infrastructure for providing high speed connectivity to all Government, educational institutions (approx. 30,000 numbers) and leveraging the network to the Telecom/Internet service providers on non discriminatory basis to provide quality and affordable internet services to the citizens. The network will provide ensured quality access to Government and non-Governmental services, apart from educational, health, social welfare, entertainment and knowledge bused service facilities to common people through computer and mobile phone
3. The draft DPR was presented before the Apex Committee on e-Governance headed by Chief Secretary held on 26.4.2017 discussed the matter and directed to take immediate necessary steps to issue Administrative Sanction for the project. As per letter read above, the Director, Kerala State IT Mission has submitted Detailed Project WP(C).No.11181 OF 2015(S) -8- Report at an estimate cost of Rs 1028.20 crores excluding taxes, with the following components:-
Sl. No. Description Amount in INR Crores
1. Setting up of Crore Network 475.40
2. Setting up of Access Network 432.00
3. Operational charges per year (Core 104.40 and Access network)
4. Establishment to SPV and 16.40 operations Total Amount (Exclusive of Taxes) Rs. 1028.20
4. The expenditure for providing free internet to 20 Lakh poor families will be in addition to the above amount. A delivery model will be worked out and an open tender will be floated to provide connectivity to such families.
5. In the above circumstances and in accordance with stage 1 (2) of guidelines for availing financial resources from KIIFB, Government are pleased to accord Administrative Sanction for implementing Kerala Fiber Optic Network (K-FON) Project at an estimated cost of Rs. 1028.20 Crores (Rupees One Thousand Twenty Eight Crores and Twenty Lakh only) excluding taxes.
6. Government are also pleased to designate Kerala State Information Technology Infrastructure Ltd. (KSITIL) as the implementing agency of this project Managing Director, KSITIL is authorised to take steps to implement the project through a competitive tendering process once the approval from KIIFB is obtained Managing Director, KSITIL will also submit a comprehensive proposal outlining the constitution of the PMU, on the functional arrangement proposed with KSEBL and strengthening of KSITIL as an effective SPV to implement the project in a time bound manner. The project needs to be made fully operational in 18 months.
By order of the Governor M SIVASANKAR SECRETARY"
WP(C).No.11181 OF 2015(S) -9-7. Mr. Surin George Ipe, learned senior Government Pleader, also submitted that, revised administrative sanction and approval of tender, has been issued in G. O. (Ms) No. 27/2019/ITD dated 11.11.2019, and that, tender in favour of consortium M/s Bharat Electronics Limited, has been approved.
8. In addition to the above, based on the intra departmental correspondence between Managing Director, Kerala State IT Infrastructure Limited, Thiruvananthapuram and the Secretary to the Government, E & IT (B) Department, Thiruvananthapuram, Mr. Surin George Ipe, learned Senior Government Pleader further submitted that, 32% of the project has already been completed, and it is expected that, the first phase of the project, would be completed during February, 2021. It is also stated thereunder, that the agency was selected by the Kerala State IT Infrastructure Limited, by e-tender, and three companies, namely, A2Z Infra Engineering Limited, Bharat Electronics Limited and Telecommunication Consultants India Limited, participated in the tender process.
9. Inasmuch as, State of Kerala, and other competent authorities, have taken appropriate steps for providing free internet / WP(C).No.11181 OF 2015(S) -10- communication connectivity, with required bandwidth, to all educational institutions, and also to 20 lakh poor families, and consequently, 1/3rd of the project has already been completed, there is no need to issue any mandamus, as prayed for.
10. There is no need to go into the reliefs sought for in paragraphs 'b' to 'e', as they are not incidental to the main relief, for providing free internet / communication connectivity.
Placing on record the submissions of the learned Senior Government Pleader, duly supported with the Government Orders extracted supra, writ petition is disposed of. Work undertaken be expedited and completed as scheduled.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY
JUDGE
Eb
///TRUE COPY/// P. A. TO JUDGE
WP(C).No.11181 OF 2015(S) -11-
APPENDIX
PETITIONER'S/S EXHIBITS:
EXHIBIT P1 EXT.P1: THE GOVERNMENT ORDER NO.G.O.
(MS) NO.4/2002/ITD DATED 20.4.2002.
EXHIBIT P2 EXT.P2: TRUE COPY OF THE GOVERNMENT
ORDER DATED 30.04.2010 NO.G.O.(MS)
NO.16/2010/ITD.
EXHIBIT P3 EXT.P3: TRUE COPY OF THE GOVERNMENT
ORDER DATED 14.6.2013 NO.G.O.(MS)
NO.30/13/ITD.
EXHIBIT P4 EXT.P4: TRUE COPY OF THE GOVERNMENT
ORDER DATED 11.10.2013 NO.G.O.(MS)
NO.30/13/ITD.
EXHIBIT P5 EXT.P5: TRUE COPY OF THE GOVERNMENT
ORDER DATED 29.1.2014 NO.G.O.(MS)
NO.6/2014/ITD.
EXHIBIT P6 EXT.P6: TRUE COPY OF THE REQUEST FOR
INFORMATION UNDER RIGHT TO INFORMATION ACT SUBMITTED BY THE PETITIONER BEFORE THE PUBLIC INFORMATION OFFICER DATED 10.4.2014.
EXHIBIT P7 EXT.P7: TRUE COPY OF THE REPLY DATED 15.5.2014 GIVEN BY THE STATE PUBLIC INFORAMATION OFFICER TO EXHIBIT P6.
EXHIBIT P8 EXT.P8:TRUE COPY OF THE INFORMATION DATED 11.09.2014 GATHERED BY THE PETITIONER FROM COCHIN CORPORATION.
EXHIBIT P9 EXT.P9: THE INFORMATION FURNISHED BY THE APPELLATE AUTHORITY DATED 16.9.2014.
EXHIBIT P10 EXT.P10: TRUE COPY OF THE REQUEST DATED 3.10.2014 SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P11 EXT.P11: TRUE COPY OF THE INFORMATION DATED 14.11.2014 FURNISHED BY KERALA STATE INFORMATION TECHNOLOGY MISSION.
EXHIBIT P12 EXT.P12: TRUE COPY OF THE INFORMATION DATED 9.10.2014 FURNISHED FROM THE OFFICE OF THE PWD ROADS AND BRIDGES, THIRUVANANTHAPURAM.
WP(C).No.11181 OF 2015(S) -12-EXHIBIT P13 EXT.P13: THE TRUE COPY OF THE REQUEST MADE BY THE PETITIONER ON 27.10.2014 TO THE CHIEF ENGINEER.
EXHIBIT P14 EXT.P14: TRUE COPY OF THE REPRESENTATION DATED 23.1.2015 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT WITH COPY TO MINISTERS FOR INFORMATION AND TECHNOLOGY AND PWD.