Indus Towers Limited vs The District Telecom Committee
2021 Latest Caselaw 12572 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
             THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
                                   &
               THE HONOURABLE MRS. JUSTICE M.R.ANITHA
       THURSDAY, THE 27TH DAY OF MAY 2021 / 6TH JYAISHTA, 1943
                          WA NO. 737 OF 2021
         WP(C) 27549/2020 OF HIGH COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER

           INDUS TOWERS LIMITED (FORMERLY KNOWN AS BHARTI INFRATEL
           LIMITED) REP. BY ITS HEAD (LEGAL) Mr.RAJKUMAR PAVOTHIL,
           8TH FLOOR, VANKARATH TOWERS, PALARIVATTOM, ERNAKULAM
           682024


           BY ADVS.
           PHILIP T.VARGHESE
           THOMAS T.VARGHESE
           ACHU SUBHA ABRAHAM
           V.T.LITHA
           K.R.MONISHA
           SHRUTHI SARA JACOB


RESPONDENTS/RESPONDENTS

           1.THE DISTRICT TELECOM COMMITTEE, REP. BY ITS CHAIRMAN,
           THE DISTRICT COLLECTOR, ERNAKULAM 682 030
           2.THE DISTRICT POLICE CHIEF, ERNAKULAM RURAL, ALUVA 686
           002
           3. THE DEPUTY DIRECTOR GENERAL, TERM CELL, DEPARTMENT OF
           TELECOMMUNICATION, GANDHINAGAR, KOCHI - 682020
           4. KUZHUPPILLY GRAMA PANCHAYATH, REP. BY ITS SECRETARY,
           AYYAMPILLY PO, 682 501
           5. THE SECRETARY, KUZHUPPILLY GRAMA PANCHAYATH,
           AYYAMPILLY P.O., 682 501
 W.A.737 of 2021
                                       2

              6. UNNIKRISHNAN T.S., S/O SIVAN T.R., THAYYAPADATH HOUSE,
              MANAPPILLY, AYYAMPILLY PO, ERNAKULAM 682501
              7. N.D.SURESH, S/O DASAN, NEELIMATHARA HOUSE, MANAPPILLY,
              AYYAMPILLY PO, ERNAKULAM 682 051
              8. CHANDRASEKHARAN K., S/o SANKARAN NAIR, PRESIDENT,
              MYTHRI RESIDENTS WELFARE ASSOCIATION ER 785/09,
              MARACHERIL HOUSE, MANAPPILLY, AYYAMPILLY PO, ERNAKULAM
              682 501


              BY SRI.P.R.AJITH KUMAR



THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2021, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.A.737 of 2021
                                          3

                     K.VINOD CHANDRAN & M.R.ANITHA, JJ.
                     ---------------------------------
                  W.A.737 of 2021 in W.P(C).27549 of 2020
                         ---------------------------
                            Dated : 27th May, 2021

                                      JUDGMENT

K.Vinod Chandran, J.

1.By the impugned judgment, the learned Single Judge

refused to exercise discretion, in the interference

sought to Ext.P8 order of the District Telecom

Committee. The appellant seeks for a consideration of

the merits of the matter. We heard the learned counsel

for the appellant on admission.

2.The brief facts to be noticed are that, Ext.P1 is a

building permit for the installation of a Telecom

Tower in Survey/re-survey No.96/2 in an area of six

cents in Kuzhuppully Village, Kochi Thaluk, Ernakulam

District. The same was challenged by certain residents

before this Court which challenge was declined as per

Ext.P2 directing consideration of a representation.

The objectors then approached the Tribunal for Local

Self Government Institutions by an Appeal in which W.A.737 of 2021

Ext.P4 interim order of stay was passed. The appellant

on the ground of expediency in enabling

telecommunication facilities, sought to install a

'Cell on Wheels' which, according to them, does not

require a building permit.

3.The learned counsel for the appellant argued before us

that the objectors when approaching the Tribunal did

not disclose the earlier proceedings before this

Court, as revealed from Ext.P2. In addition to the

suppression of facts, it is pointed out that what is

now sought to be installed does not require a building

permit and the District Telecom Committee in Ext.P8

order, has relied on the interim order passed by the

Tribunal to interdict the appellant from erecting the

tower. It is argued that the appellant would contest

the matter before the Tribunal and a permanent

structure would be erected only on the building permit

being upheld. However, in the meanwhile, the "Cell on

Wheels" would facilitate telecommunication in the

area, which cannot be objected to, for reason of there W.A.737 of 2021

being no requirement for building permit.

4.We are unable to countenance the arguments addressed

by the learned counsel for the appellant. It is to be

noticed that the objection regarding the installation

of a Telecommunication Tower is not confined to the

construction or the structural facility sought to be

installed in the property. The objection is also with

respect to the operation of such a tower in the area,

for multifarious reasons. We perfectly agree with the

learned Single Judge, who refused exercise of

discretion, in the context of a challenge having been

made to the erection and installation of a

Telecommunication Tower in the subject property.

Otherwise, whenever a building permit is declined or

interfered with by a competent Court, the Telecom

operator or their service provider could install a

mobile tower so as to get over the objection of the

nearby residents.

5.We cannot, but observe that a mobile 'Cell on Wheels'

cannot be installed in lieu of a permanent structure W.A.737 of 2021

when the building permit for the permanent structure

is stayed by a competent Court or Tribunal. What is

intended by facilitating telecommunication services

through a "Cell on Wheels" is only to facilitate such

services in the interregnum when a construction is

going on pursuant to a valid building permit. If the

Tribunal finds in favour of the appellant, then,

definitely the construction could be proceeded with

and in the meanwhile, they could also operate the

'Cell on Wheels' till the construction as enjoined in

the building permit, is completed.

6.We do not enter into the objections raised nor are we

deciding on merits the allegations raised by the

complainants. However, we feel it appropriate, as

rightly held by the learned Single Judge, that the

appellants proceed for installation of a

Telecommunication Tower and commence operations only

if the Tribunal disposes of the matter in their

favour.

7.In this context, we have to notice that the interim W.A.737 of 2021

order itself was passed by the Tribunal as early as on

26.8.2020. There is no contention raised by the

appellant of having approached the Tribunal for an

expeditious disposal. Immediately thereafter, they

approached the District Telecom Committee with a

request to install the Telecommunication facility by

way of a Mobile Tower, which we find is an attempt to

circumvent the order of the Tribunal. We cannot

entertain such an action. We hence dismiss the Appeal

in limine, leaving the parties to agitate their cause

before the Tribunal.

Sd/-

K.VINOD CHANDRAN, Judge Sd/-

M.R.ANITHA, Judge

Mrcs/27.5.