IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 37722 of 2007(N)
1. ROYCE GEORGE,AGED 40 YEARS,
... Petitioner
Vs
1. STATE OF KERALA REP.BY ITS SECRETARY,
... Respondent
2. THE KANJIYAR GRAMA PANCHAYATH,
3. ST.MARYS CHURCH,KANJIYAR,IDUKKI DISTRICT
4. IDEAL MOBILE COMMUNICATION LTD,
For Petitioner :SRI.GEORGE MATHEW
For Respondent :SRI.SANTHOSH MATHEW
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :16/01/2008
O R D E R
PIUS C. KURIAKOSE, J.
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W.P.(C) NO. 37722 of 2007
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Dated this the 16th day of January , 2008
JUDGMENT
The petitioner is aggrieved by the construction of a mobile
telephone tower by the 4th respondent company and has filed this writ
petition inter alia seeking a direction to implement Ext.P4 stop memo
issued by the Panchayat to the 4th respondent. Other reliefs sought
for are a direction to the 2nd respondent Panchayat to hear the
petitioner also before permission is granted to the 4th respondent for
errecting the tower. The 3rd and the final relief sought for in the writ
petition is a declaration that construction of the telecommunication
tower by the 4th respondent on the property of the 3rd respondent is
unauthorised. First relief cannot be granted now since Ext.R2(a)
order has been issued by the Panchayat vacating the stop memo after
considering the reply submitted by the 4th respondent company to
Ext.P4.
2. It is submitted by Sri. George Mathew, the learned counsel
for the petitioner that against Ext.R2(a), an appeal has already been
preferred by the petitioner before the Council of the Panchayat and
that the Council of the Panchayat may be directed to take up that
WPC No.37722/2007 2
appeal and dispose of the appeal in accordance with law after hearing
the petitioner as well as a representative of the 4th respondent
company. The petitioner has taken strong exception to Ext. R4(1)
building permit, which is issued to the 4th respondent. It will be
immediately stated that in the teeth of Ext.R4 building permit, releif
No.’2′ sought for also cannot be granted.
2. The learned counsel for the petitioner would draw my
attention to the provisions of the KMBR and submit that Ext.R4(1) has
been issued in gross violation of the Building Rules. According to him,
tower is constructed on the roof top of a building and the door
number of the building on the roof top of which tower is constructed is
not shown in the building permit.
3. The petitioner has statutory remedy before the Tribunal
for Local Self Government Institutions, which has got every power to
hold necessary enquiries into the matter and take a correct decision.
Hence I relegate the petitioner to his remedy against Ext.R4(1) before
the Tribunal for local Self Government Institutions. If the Tribunal
receives an appeal from the petitioner against Ext.R4(1) within three
weeks from today, the Tribunal will entertain that appeal
notwithstanding delay, if any, and dispose of that appeal in
accordance with law, after hearing the petitioner as well as a
WPC No.37722/2007 3
representative of the the respondent company, and after calling for
remarks from the Panchayat. It is open to the petitioner to raise
grounds pertaining to the structural stability of the building before the
Tribunal and the Tribunal will decide all the grounds which are raised
in the prospective appeal. Since the permit has already been issued
to the company on the basis of the revised plan submitted by the
company and since the construction of the tower is completed on the
strength of an interim order passed by this court, I do not find any
reason as to why the the respondent company should not be permitted
to energize the tower. Of course, the learned counsel for the
petitioner submitted that if energisation of the tower is permitted, the
vibration which would be caused will be of such a magnitude and
momentum that the building, on the top of which the tower is installed,
stands a great risk of collapsing. Notwithstanding the above
submission, I am of the view that the 4th respondent company can be
permitted to enrgise the tower at its risk. The company is reminded
that the liability in the event of any damages or loss caused on
account of the enrgization of the tower will be unlimited.
The writ petition will stand disposed of permitting the 4th
respondent company to energise the tower already constructed
subject to the decision taken by the Council of the Panchayat on the
WPC No.37722/2007 4
appeal already preferred by the petitioner against Ext.R2(a) and the
decision of the Tribunal in the prospective appeal to be filed against
Ext.R4(1).
PIUS C. KURIAKOSE,
JUDGE.
dpk