Indus Towers Limited vs The District Telecom Committee
2021 Latest Caselaw 10924 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

       THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

 WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA,
                          1943

                  WP(C).No.5684 OF 2021(I)


PETITIONER :

            INDUS TOWERS LIMITED
            8TH FLOOR,
            VANKARATH TOWER, PALARIVATTOM-682024.
            (REPRESENTED BY ITS HEAD-LEGAL -MR. RAJKUMAR
            PAVOTHIL, S/O P NARENDRAN, AGED 41 YEARS,
            RESIDING AT MIDHILA, THAMARAKULANGARA,
            THRIPUNITHURA)

            BY ADV. SHRI.P.DEEPAK

RESPONDENTS:

      1     THE DISTRICT TELECOM COMMITTEE
            THIRUVANANTHAPRUAM, REPRESENTED BY ADDITIONAL
            DISTRICT MAGISTRATE AND DEPUTY COLLECTOR,
            THIRUVANANTHAPURAM-675043.

      2     SUJI A.S., AGED 38 YEARS, S/O SIVAPALAN,
            KUNNUVILA VEEDU, OOLANKUZHI ANAYARA,
            KADAKKAMPILLY VILLAGE,
            (SECRETARY, ANAYARA KIZHAKKETHIL
            SREEBHAGAVATHI TEMPLE TRUST)
            THIRUVANANTHAPURAM-695029.

      3     THE STATION HOUSE OFFICER
            PETTAH POLICE STATION, THIRUVANANTHAPURAM-
            695024.

      4     THIRUVANANTHAPURAM MUNICIPAL CORPORATION
            REPRESENTED BY ITS SECRETARY,
            VIKAS BHAVAN P.O., KERALA-695033.
                               -2-
WP(C).No.5684 OF 2021(I)

*ADDL. R5     PRADEEP
              HOUSE DEEPAM, KIZHAKKATHIL JN, ANAYARA P.O.,
              THIRUVANANTHAPURAM-695 029

*ADDL. R6     SATHEESAN
              ASHRAMAN FINANCE, LORDS JN, ANAYARA P.O.,
              THIRUVANANTHAPURAM-695 029.

              ADDL.R5 AND R6 ARE IMPLEADED AS PER ORDER
              DATED 08-03-2021 IN IA 1/2021

*ADDL. R7     THE DISTRICT FIRE OFFICER,
              DISTRICT FIRE OFFICE, FIRE AND RESCUE
              SERVICE, FIRE FORCE JUNCTION, PULIMOODU P.O.,
              THIRUVANANTHAPURAM-695 001
              Email:[email protected], is
              IS IMPLEADED AS ADDL.R7 AS PER ORDER DATED
              23-03-21 IN IA 2/21.

              R1, R3 & R7 BY SRI.SUNIL NATH, GOVT.PLEADER
              R2 BY ADV. SRI.G.P.SHINOD
              R2 BY ADV. SRI.GOVIND PADMANAABHAN
              R2 BY ADV. SHRI.AJIT G ANJARLEKAR
              R4 BY ADV. SRI.N.NANDAKUMARA MENON (SR.)
              R4 BY ADV. SRI.P.K.MANOJKUMAR

     THIS WRIT PETITION (CIVIL) HAVING COME UP            FOR
ADMISSION ON 07.04.2021, THE COURT ON THE SAME            DAY
DELIVERED THE FOLLOWING:
                                 -3-
WP(C).No.5684 OF 2021(I)

                           JUDGMENT

The petitioner, which is a company offering passive

infrastructure services to telecom operators and other wireless

service providers, has filed this writ petition under Article 226

of the Constitution of India, seeking a writ of certiorari to

quash Ext.P8 order dated 24.02.2021 issued by the 1 st

respondent District Telecom Committee. The petitioner has

also sought for a writ of mandamus commanding the 3 rd

respondent Station House Officer to afford adequate and

effective protection to the petitioner to proceed with the

construction of the telecommunication tower on the strength

of Ext.P1 building permit dated 02.11.2019 issued by the 4 th

respondent Corporation and in consonance with Ext.P7 written

undertaking dated 25.02.2021 without any let, hindrance or

obstruction from any quarter.

2. On 04.03.2021, when this writ petition came up for

admission, the petitioner was directed to file an application to

implead the objectors before the 1 st respondent, as seen from

Ext.P8 order.

3. On 08.03.2021, this Court allowed I.A.No.1 of

WP(C).No.5684 OF 2021(I)

2021, whereby additional respondents 5 and 6 were

impleaded. The learned Government Pleader took notice on

admission for respondents 1 and 3. The learned Standing

Counsel took notice on admission for the 4 th respondent. This

Court issued urgent notice on admission by special messenger

to the 2nd respondent and additional respondents 5 and 6,

returnable by 15.03.2021.

4. On 23.03.2021, this Court allowed I.A.No.2 of 2021

filed by the petitioner seeking an order to implead the District

Fire Officer, Fire and Rescue Services, Thiruvananthapuram as

the additional 7th respondent.

5. Heard the learned counsel for the petitioner, the

learned Government Pleader appearing for respondents 1, 3

and additional 7th respondent, the learned counsel for the 2 nd

respondent and also the learned Standing Counsel for the 4 th

respondent Corporation. Despite service of notice, none

appears for additional respondents 5 and 6.

6. During the course of arguments, the learned

counsel for the petitioner would submit that the petitioner

intents to use Valve Regulated Lead Acid Batteries, instead of

WP(C).No.5684 OF 2021(I)

KSEB power supply or diesel generator for the

telecommunication tower proposed to be constructed on the

strength of Ext.P1 building permit. The petitioner shall submit

a proper request before the 1st respondent for reconsideration

of the matter, which may be directed to be considered by the

1st respondent expeditiously.

7. The learned counsel for the 2nd respondent would

submit that reconsideration of the matter by the 1st

respondent District Telecom Committee may be with notice to

the 2nd respondent and other objectors and after taking note

of the legal contention of the 2nd respondent that construction

of mobile telecommunication tower cannot be permitted in a

residential zone.

8. The learned Government Pleader would submit that

in case a proper request is made by the petitioner for

reconsideration of the matter, as submitted by the learned

counsel for the petitioner, the 1st respondent District Telecom

Committee shall consider that request with notice to both

sides.

Having considered the submissions made by the learned

WP(C).No.5684 OF 2021(I)

counsel on both sides, this writ petition is disposed of by

setting aside Ext.P8 order dated 24.02.2021 of the 1 st

respondent District Telecom Committee, so as to enable the

said Committee to reconsider the matter based on the request

that has to be made by the petitioner, within a period of two

weeks from the date of receipt of a certified copy of this

judgment, to proceed with the construction of the

telecommunication tower on the strength of Ext.P1 building

permit by using Valve Regulated Lead Acid Batteries for power

supply, instead of diesel generators or power supply from the

Kerala State Electricity Board. The 1st respondent District

Telecom Committee shall consider that request and take an

appropriate decision, after considering its technical feasibility

and other relevant aspects, with notice to the petitioner, the

2nd respondent, additional respondents 5 and 6 and other

objectors, if any, and also the additional 7 th respondent

District Fire Officer, as expeditiously as possible, at any rate,

within a period of one month from the date of receipt of such

request. While taking such a decision, the 1 st respondent shall

advert to the legal contention raised by the 2 nd respondent

WP(C).No.5684 OF 2021(I)

that the construction of mobile telecommunication tower

cannot be permitted in a residential zone.

Sd/-

ANIL K.NARENDRAN, JUDGE AV/8/4

WP(C).No.5684 OF 2021(I)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT DATED 02.11.2019 ISSUED BY THE 4TH RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE LOCATION PLAN IN SY.NO. 1700/1-1-1 & 1700/2-2 KADAKAMPILLY VILLAGE.

EXHIBIT P3 TRUE COPY OF THE COMPLAINT DATED 04.08.2020 FILED BEFORE THE 3RD RESPONDENT.

EXHIBIT P4 TRUE COPY OF THE COUNTER AFFIDAVIT FILED BY THE 2ND RESPONDENT IN WPC 16043 OF 2020.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT DATED 11.11.2020 PASSED BY THIS HON'BLE COURT IN WPC 16043 OF 2020.

EXHIBIT P6 TRUE COPY OF THE PROCEEDINGS BEFORE 1ST RESPONDENT DATED 16.01.2021.

EXHIBIT P7 TRUE COPY OF THE WRITTEN UNDERTAKING SUBMITTED BY THE PETITIONER DATED 25/02/2021.

EXHIBIT P8 TRUE COPY OF THE PROCEEDINGS BEFORE THE 1ST RESPONDENT DATED 24.02.2021.