Kerala High Court
Mr. Shan Vidhyadharan vs Sheeba on 17 August, 2021
OP(C) No.1372/2021 1/5
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
Tuesday, the 17th day of August 2021 / 26th Sravana, 1943
OP(C) NO. 1372 OF 2021
CMA NO.5/2021 OF SUB COURT, VADAKARA, KOZHIKODE
PETITIONER/2ND RESPONDENT/2ND DEFENDANT:
MR. SHAN VIDHYADHARAN, AUTHORISED REPRESENTATIVE OF RELIANCE JIO
INFRATEL PVT LTD,PUKALAKKATTU KARYATTU TOWER, NEAR YATHRI NIVAS,
MAMANGALAM, PALARIVATTOM P.O., ERNAKULAM, KOZHI-682 025, KERALA
STATE
RESPONDENTS 1 TO 4 /APPELLANTS/PLAINTIFFS:
1. SHEEBA, AGED 48 YEARS, D/O.MADHAVI, KOLANGARA HOUSE, ONCHIYAM AMSOM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,PIN-673 101.
2. SHANOJ, AGED 45 YEARS, S/O. DASAN, VARAM KANDIYIL, ULARUNGAL AMSOM
DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,PIN-673 101
3. RAVEENDRAN.V.P., AGED 59 YEARS, S/O.GOVINDAN, MEETHALE VALIYA
PARAMBATH HOUSE, ONCHIYAM AMSOM DESOM, VATAKARA TALUK, KOZHIKODE
DISTRICT,PIN-673 102
4. KAMALA.V.K., AGED 57, D/O. GOVINDAN, VARANKANDIYIL HOUSE, URALUNGAL
AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,PIN-673 102
5. SANTHOSH, AGED 49 YEARS, S/O.VASU , KAKKATT KUNNUMMAL HOUSE,
URALUNGAL AMSOM DESOM, VATAKARA TALUK, KOZHIKODE DISTRICT,PIN-673
102
6. THE CHAIRMAN, DISTRICT LEVEL TELECOM COMMITTEE, THE DISTRICT
COLLECTOR, KOZHIKODE, CIVIL STATION, ERNANHIPALAM, POST,
KOZHIKODE,PIN-673 020
OP (Civil) praying inter alia that in the circumstances stated in
the affidavit filed along with the OP(C) the High Court be pleased to stay
the operation of Ext P11 order dated 2.8.2021 in I.A. 1/2021 in C.M.A
5/2021 and Ext P12 judgment dated 2.8.2021 in C.M.A 5/2021 on the file of
the Subordinate Judges Court, Vatakara, pending disposal of this Original
Petition.
This petition coming on for admission upon perusing the petition and
the affidavit filed in support of OP(C) and upon hearing the arguments of
M/S LAL K.JOSEPH, P.MURALEEDHARAN (THURAVOOR), T.A.LUXY, SURESH SUKUMAR,
HARIKUMAR G NAIR, KOYA ARAFA MIRAGE, ANZIL SALIM, MANUEL K.M., CHACKO
MATHEWS K., Advocates for the petitioner, the court passed the following:
(p.t.o)
OP(C) No.1372/2021 2/5
APPENDIX OF OP(C) 1372/2021
Exhibit P4 TRUE COPY OF THE IA 3/2021 IN OS NO.34/2021
Exhibit P2 TRUE COPY OF THE GOVERNMENT ORDER NO.RA 1/1/2021 DATED
06.01.2021
Exhibit P2A TRUE COPY OF THE GOVERNMENT ORDER NO.RA 1/96/2021 DATED
27.06.2021
Exhibit P8 TRUE COPY OF THE ORDER DATED 09.04.2021 IN IA 5/2021 OF
THE MUNSIFF COURT, VATAKARA
Exhibit P11 TRUE COPY OF THE ORDER DATED 02.08.2021 IN IA 1/2021 IN
CMA 5/2021
Exhibit P12 TRUE COPY OF THE JUDGMENT DATED 02.08.2021 IN CMA
5/2021
Exhibit P17 TRUE COPY OF THE ORDER DATED 17.06.2021 PASSED BY THE
DTC
OP(C) No.1372/2021 3/5
GOPINATH P., JUDGE.
-----------------------------------------------
O.P.(C)No.1372 of 2021
--------------------------------------------------
Dated this the 17th day of August, 2021
ORDER
Admit. Issue notice by speed post to the respondents.
2. The respondents are the plaintiffs in O.S.No.34/2021 on
the file of the Munsiff Court, Vatakara. The main prayers in the suit
are as under:-
"a) for a permanent prohibitory injunction thereby restrain
the defendant No.1 and 2 and their men from erecting mobile
tower having 40 meters height, having weight of 7 Tones with
6 GSM Antennas and I micro wave antenna at plaint 'E'
schedule property without complying legal formalities and
without getting clearance from the defendant No.3, The
Chairman of the District Level Telecom Committee.
b) direct the defendant No.2 shift the proposed installation of
mobile tower from plaint 'E' schedule property to the
convenient and feasible vacant land without population
available at Onchiyam Panchayath."
The respondents also filed Ext.P4 application for injunction in
O.S.No.34/2021. The learned counsel submits that no orders have
been passed on Ext.P4 and it is pending consideration. In the
meanwhile, a petition was filed under Section 151 of the Code of Civil
Procedure seeking an order of status quo, which was rejected by the
learned Munsiff through Ext.P8 order dated 9.4.2021. That order
dated 9.4.2021 was subject matter of challenge in C.M.A.No.5/2021.
The learned Subordinate Judge, who considered C.M.A.No.5/2021
together with I.A.No.1/2021 passed Ext.P11 order finding that the
OP(C) No.1372/2021 4/5
District Level Telecom Committee was yet to consider the grievances
put forth by the respondents/plaintiffs and also found that the
building permit issued to the petitioner had expired. On such finding,
the prayer for interim relief was allowed in the following manner:-
"39. Point No.(ii):- In view of the finding on point No.
(i), this petition is allowed. No costs. The trial court
shall consider the grievances raised by the petitioners
before the DTC and shall ascertain whether there is
any merit in their apprehension that the tower may
fall due to soil erosion or due to some other
geographical reasons. Petitioners can produce
documents if any before the trial court which shows
that emission of electro magnetic radiation will cause
for health issues of the petitioners. 2 nd respondent can
produce certificate showing soil test and renewed
building permit. The trial court shall take maximum
effort to dispose of the suit within 3 months from the
date of receipt of copy of this order. Return lower
court records forthwith along with copy of this order.
Return Exts.A1 to A3 to the counsel for the petitioners;
B1 and B2 to the 2nd respondent and B3 to Addl.
Government Pleader for producing before the trial
court."
In the light of the aforesaid finding C.M.A.No.5/2021 was also allowed
by the learned Subordinate Judge.
3. The learned counsel for the petitioner refers to
Government Orders produced as Exts.P2 and P2(a). He submits that,
in the light of the Covid-19 Pandemic, the Government issued orders
extending the validity of all building permits. He would, therefore,
submit that finding in Ext.P11 that the building permit had expired, is
not correct. He would further submit with reference to Ext.P17 that
the District Level Telecom Committee has also cleared the
construction of the mobile tower in question. Taking note of the
aforesaid facts, I am of the opinion that the petitioner is entitled to an
OP(C) No.1372/2021 5/5
interim order as prayed for. Accordingly, there will be an interim
order as prayed for, for a period of four weeks. However, the tower in
question shall not be energised without getting further orders from
this Court.
sd/-
GOPINATH P.
JUDGE
acd
17-08-2021 /True Copy/ Assistant Registrar
