High Court Kerala High Court

M/S.Essar Telecom … vs The Revenue Divisional Officer on 19 November, 2008

Kerala High Court
M/S.Essar Telecom … vs The Revenue Divisional Officer on 19 November, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Crl.MC.No. 1185 of 2008()


1. M/S.ESSAR TELECOM INFRASTRUCTURE (P)
                      ...  Petitioner

                        Vs



1. THE REVENUE DIVISIONAL OFFICER,
                       ...       Respondent

2. THE VILLAGE OFFICER,

3. UNNIKULAM GRAMA PANCHAYAT,

4. SMT.PADMINI, MUPPATTAKKUNNUMMEL HOUSE,

                For Petitioner  :SRI.SANTHOSH MATHEW

                For Respondent  :PUBLIC PROSECUTOR

The Hon'ble MR. Justice R.BASANT

 Dated :19/11/2008

 O R D E R
                         R. BASANT, J.
           -------------------------------------------------
                 Crl.M.C. No. 1185 of 2008
           -------------------------------------------------
        Dated this the 19th day of November, 2008

                              ORDER

The petitioner is aggrieved by Annexure-8 order

passed by the 1st respondent. Annexure-8 order, it

appears, is passed by the Revenue Divisional Officer.

Reckoning the same as a conditional order under Sec.133

Cr.P.C., this Crl.M.C. has been initiated.

2. Annexure-8 order reveals that the 4th respondent

herein had filed an application complaining about a

construction which was undertaken by the petitioner

herein for setting up a mobile telephone tower near the

house of the 4th respondent. On the complaint of the 4th

respondent, the 1st respondent i.e., the Revenue Divisional

Crl.M.C. No. 1185 of 2008 -: 2 :-

Officer, Kozhikode, appears to have entertained the

satisfaction that the house of the 4th respondent is facing

danger and insecurity. Accordingly, it was directed that the

constructions of the tower may be shifted to an alternate

site such that danger to the house of the 4th respondent is

abated.

3. The learned counsel for the petitioner submits that

the impugned order cannot be reckoned as a valid order

under Chapter XB Cr.P.C. It cannot be reckoned as a

conditional order under Sec.133 Cr.P.C. inasmuch as the

essential requisites of such an order under Sec.133 Cr.P.C.

is not satisfied. Since no proceedings under Chapter XB

(Sec.133 Cr.P.C.) is initiated, the impugned order cannot

also be reckoned as an interim order passed under Sec.142

Cr.P.C. also. In these circumstances, the proceedings are

liable to be quashed. The learned counsel for the petitioner

submits that in fact, it is not the Executive Magistrate who

has initiated the proceedings under Annexure-8 and it is

only the R.D.O. who has initiated the proceedings. It is not

possible to discern from Annexure-8 whether the order is

Crl.M.C. No. 1185 of 2008 -: 3 :-

passed invoking the powers under Chapter XB Cr.P.C. In

these circumstances, the impugned order may be set aside.

It may be clarified that it is not an order passed under

Sec.133 Cr.P.C. and the petitioner is not liable to face any

consequences reckoning Annexure-8 is an order under

Sec.133 Cr.P.C.

4. The 3rd respondent is the local authority i.e.,

Unnikulam Grama Panchayat. The Panchayat had issued

the requisite sanction (Annexure- 1) to the petitioner to

undertake the construction in question. The 3rd

respondent stands by Annexure-1 sanction given for

construction and virtually supports the prayer of the

petitioner.

5. The learned Public Prosecutor on behalf of

respondents 1 and 2 submits that the impugned order

cannot validly be supported as an order passed under

Chapter XB (Sec.133 Cr.P.C.). The learned Public

Prosecutor accepts that the same shall not be executed as

though it is a conditional order under Sec.133 Cr.P.C. or an

interim order under Sec.142 Cr.P.C. But the learned Public

Crl.M.C. No. 1185 of 2008 -: 4 :-

Prosecutor submits, and the 4th respondent supports that

submission, that the S.D.M. may be given an option to take

appropriate action, if necessary, under Chapter XB on the

basis of the petition of the 4th respondent.

6. I am satisfied that the impugned order – Annexure-8

cannot in law be supported as either a conditional order

under Sec.133 Cr.P.C. or an interim order under Sec.142

Cr.P.C. In these circumstances, Annexure-8 order deserves

to be set aside. The prayer of the Public Prosecutor can be

accepted.

7. The learned counsel for the petitioner submits that

the question of nuisance emanating from installation of a

telecommunication tower for mobile phone communications

has already been considered by a Division Bench of this

Court in Reliance Infocom Ltd. v. Chemanchery Grama

Panchayat (2006 (4) KLT 695). The learned counsel hence

contends that the SDM is not competent to take any action

under Chapter XB. I am not going into that question in

detail as the allegations made in the complaint by the 4th

respondent covers areas uncovered by the decision in

Crl.M.C. No. 1185 of 2008 -: 5 :-

Reliance Infocom Ltd.

8. I the result:

(a) This Crl.M.C. is allowed.

(b) Annexure-8 order is set aside.

(c) It is made clear that the setting aside of Annexure-

8 order will not in any way fetter the right of the SDM to

initiate fresh proceedings under Chapter XB (Sec.133

Cr.P.C.) in accordance with law if there are legal grounds to

initiate such proceedings. It is also made clear that the

petitioner’s right to challenge any such proceedings

initiated under Chapter XB will not also be fettered by any

observations in this order.

Sd/-

(R. BASANT, JUDGE)

Nan/

//true copy//

P.S. to Judge

Crl.M.C. No. 1185 of 2008 -: 6 :-

R. BASANT, J.

————————————————-

Crl.M.C. No. 1185 of 2008

————————————————-
Dated this the 21st day of May, 2008

ORDER

After discussions at the Bar, it is agreed that there can be a

direction that status quo as on today shall be maintained and no

further constructions shall be undertaken by the petitioners in

the property in question. It is submitted by the petitioners that

the construction of the tower is complete and the respondent

insists that there may be a direction that no further

constructions are undertaken. Directions to that effect are

issued. Call this petition in the usual course.

(R. BASANT, JUDGE)

Nan/

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