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.
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Crl.M.C. No. 1185 of 2008
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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
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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
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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
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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
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R. BASANT, J.
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Crl.M.C. No. 1185 of 2008
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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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