A.K.Suraja vs The District Collector
2021 Latest Caselaw 23270 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
          THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                    WP(C) NO.25100 OF 2021
PETITIONERS :-

    1     A.K.SURAJA, AGED 45 YEARS
          W/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
          VENGERI P.O., KOZHIKODE DISTRICT-673 010.

    2     E.ANAGHA MURALEEDHARAN, AGED 22 YEARS
          D/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
          VENGERI P.O., KOZHIKODE DISTRICT-673 010.

    3     E.ABHINAND, AGED 20 YEARS
          S/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
          VENGERI P.O., KOZHIKODE DISTRICT-673 010.

         BY ADVS.
         K.MOHANAKANNAN
         H.PRAVEEN (KOTTARAKARA)


RESPONDENTS :-

    1     THE DISTRICT COLLECTOR,
          CIVIL STATION, ERANHIPALAM,
          KOZHIKODE DISTRICT-673 020.

    2     THE CHAIRMAN,
          DISTRICT TELECOM COMMITTEE,
          DISTRICT COLLECTOR, CIVIL STATION,
          KOZHIKODE DISTRICT-673 020.

    3     KOZHIKODE MUNICIPAL CORPORATION,
          MUNICIPAL CORPORATION OFFICE,
          KOZHIKODE DISTRICT-673 032,
          REPRESENTED BY ITS SECRETARY.

    4     THE SECRETARY,
          KOZHIKODE MUNICIPAL CORPORATION,
          MUNICIPAL CORPORATION OFFICE,
          KOZHIKODE DISTRICT-673 032.

    5     M/s.INDUS TOWERS PVT. LTD.,
          8TH FLOOR, VANKARATH TOWERS, NH BYPASS,
 WP(C) Nos.25100 & 25139 OF 2021

                                  -: 2 :-

           PALARIVATTOM, ERNAKULAM DISTRICT-682 024,
           REPRESENTED BY AUTHORIZED SIGNATORY, BINDASURAN.

     6     THE EXECUTIVE ENGINEER,
           KERALA STATE ELECTRICITY BOARD,
           (CENTRAL SECTION), KOZHIKODE-673 032.

           BY ADVS.
           G.SANTHOSH KUMAR (P).
           PHILIP T.VARGHESE
           THOMAS T.VARGHESE
           ACHU SUBHA ABRAHAM
           V.T.LITHA
           K.R.MONISHA
           SHRUTHI SARA JACOB
           SRI.V.KRISHNA MENON, SC,
           SRI.SUDHEER GANESH KUMAR.R
           SRI.RIYAL DEVASSY, GP

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.11.2021, ALONG WITH WP(C).25139/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.25100 & 25139 OF 2021

                                  -: 3 :-


            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
            THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA, 1943
                      WP(C) NO. 25139 OF 2021
PETITIONER :-

           INDUS TOWERS LIMITED REPRESENTED BY
           THEIR CIRCLE HEAD (LEGAL) MR.RAJKUMAR PAVOTHIL,
           8TH FLOOR, VANKARATH TOWERS, PALARIVATTOM,
           ERNAULAM-682 025.

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


RESPONDENTS :-

     1     CORPORATION OF KOZHIKODE,
           REPRESENTED BY ITS SECRETARY,
           MUNICIPAL CORPORATION OFFICE, KOZHIKODE-673 012.

     2     THE SECRETARY,
           CORPORATION OF KOZHIKODE,
           MUNICIPAL CORPORATION OFFICE, KOZHIKODE-673 012.

     3     THE SUPERINTENDING ENGINEER,
           CORPORATION OF KOZHIKODE,
           MUNICIPAL CORPORATION OFFICE, KOZHIKODE-673 012.

     4     THE EXECUTIVE ENGINEER,
           CORPORATION OF KOZHIKODE,
           MUNICIPAL CORPORATION OFFICE, KOZHIKODE-673 012.

     5     THE ASSISTANT ENGINEER,
           KERALA STATE ELECTRICITY BOARD LTD.,
           ELECTRICAL SECTION, KARAPARAMBA, KOZHIKODE-673 010.
 WP(C) Nos.25100 & 25139 OF 2021

                                  -: 4 :-

  ADDL.6   A.K.SURAJA, AGED 45 YEARS,
           W/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
           VENGERI P.O., KOZHIKODE DISTRICT - 673 010.

  ADDL.7   E.ANAGHA MURALEEDHARAN, AGED 22 YEARS,
           D/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
           VENGERI P.O., KOZHIKODE DISTRICT - 673 010.

  ADDL.8   E.ABHINAND, AGED 20 YEARS,
           S/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
           VENGERI P.O., KOZHIKODE DISTRICT - 673 010.

           ADDITIONAL RESPONDENTS 6 TO 8 ARE IMPLEADED AS PER
           ORDER DATED 25.11.2021 IN I.A.No.1/2021.

           BY SRI.K.MOHANAKANNAN
           BY SRI.V.KRISHNA MENON, SC
           BY SRI.SUDHEER GANESH KUMAR.R.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 25.11.2021, ALONG WITH WP(C).25100/2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 WP(C) Nos.25100 & 25139 OF 2021

                                  -: 5 :-


                            JUDGMENT

[WP(C) Nos.25100/2021 and 25139/2021] Dated this the 25th day of November, 2021

These writ petitions are filed with regard to revocation of

permit granted to the petitioner in W.P.(C) No.25139/2021 for the

erection of a telecommunication tower.

2. Heard the learned counsel for the petitioners in both the

cases, the learned Government Pleader and the learned counsel

appearing for the Kozhikode Corporation.

3. It is contended by the learned counsel for the petitioner

in W.P.(C) No.25139/2021 that the petitioner, a telecommunication

infrastructure provider, had erected a telecommunication tower on

the strength of Ext.P1 site approval and building permit and had

submitted a completion plan on 3.8.2021 seeking the issuance of

an occupancy certificate. It is submitted that no reply was

forthcoming from the respondent Corporation and on 19.8.2021,

the petitioner became entitled to a deemed occupancy certificate

on the basis of the provisions of the Act. It is submitted that on the

basis of the deemed occupancy, electric connection was provided

to the mobile tower and the tower became functional. Ext.P4

notice dated 16.9.2021 was issued to the petitioner intimating

certain discrepancies and deviations from the plan. The learned WP(C) Nos.25100 & 25139 OF 2021

counsel for the petitioner submits that the notice was dispatched

only on 18.9.2021 and that the petitioner did not receive the notice

before the hearing proposed to be conducted on 22.9.2021. It is

submitted that thereafter, Ext.P5 order had been issued on

23.10.2021 revoking the permit on the sole ground that the

petitioner did not appear for hearing and submit his objections. It

is contended that on the basis of the same, the electric connection

to the tower had been disconnected on 5.11.2021 and that the

petitioner is not in a situation to operate the tower due to the

disconnection of energy.

4. It is contended by the learned counsel for the petitioner

that the revocation and cancellation of permit, without hearing the

petitioner, is completely unsustainable and that in case the

petitioner is granted an opportunity, he could place all relevant

materials before the respondents. It is further submitted that an

application has been submitted by the petitioner before the

Secretary of the Corporation for regularisation of the variations

from the building plan and permit as Ext.R5(a) dated 3.11.2021

produced along with the counter affidavit filed by the 5 th

respondent (petitioner in W.P.(C) No.25139/2021) in W.P.(C)

No.25100/2021 and the same is liable to be considered in

accordance with law.

WP(C) Nos.25100 & 25139 OF 2021

5. The petitioners in W.P.(C) No.25100/2021 seek an

implementation of the revocation of the building permit and

dismantling of the tower in question on the ground that it is

causing threat and danger to the life and property of the

petitioners. It is submitted that the petitioners are residing in the

adjacent properties and that the well in the adjacent property is

completely damaged due to the construction carried out by the

service provider in violation of the building plan and permit. It is

further contended that the permit had been obtained by fraud and

that detailed representations have been submitted by the

petitioners before the DTC as well as the Corporation, but no steps

have been taken to consider the same. It is further submitted that

the petitioners had approached the DTC and a hearing was

conducted on 23.11.2021 and orders had been passed by the DTC

directing the implementation of the order of the Corporation dated

23.10.2021.

6. The learned Standing Counsel appearing for the

Corporation submits that it is clear from Ext.P4 notice produced in

W.P.(C) No.25139/2021 that the same was dispatched on

18.9.2021. It is further submitted that the notice had been served

in person and the hearing was scheduled on 22.9.2021. However,

it is submitted that the petitioner in W.P.(C) No.25139/2021 did not WP(C) Nos.25100 & 25139 OF 2021

attend the hearing and no reasons had been submitted for not

revoking the permit, which has led to Ext.P5. It is further

contended that no orders have been passed by the DTC on

23.11.2021 and that the Corporation has been directed to proceed

with the matter in accordance with law.

7. I have considered the contentions advanced. Ext.P4

notice in W.P.(C) No.25139/2021 is seen dated 16.9.2021. It is

seen dispatched on 18.9.2021. A hearing was apparently

conducted on 22.9.2021. It is only on the ground that the

petitioner did not attend the hearing and show cause why action as

proposed in Ext.P4 shall not be taken against him that Ext.P5 order

dated 23.10.2021 has been issued. The learned counsel for the

petitioner in W.P.(C) No.25139/2021 submits that the petitioner

did not receive the notice before the hearing was conducted and

that the reasons stated in Ext.P4 notice were only with regard to

minor variations and that the petitioner has submitted an

application for regularisation of the variations from the site plan

and building permit before the respondent Corporation.

8. Having considered the contentions advanced on all

sides, I am of the opinion that in view of the fact that Ext.P5 order

dated 23.10.2021 was rendered only for the reason that the

petitioner in W.P.(C) No.25139/2021 did not appear for the hearing WP(C) Nos.25100 & 25139 OF 2021

on 22.9.2021 and did not submit his explanations and in view of the

fact that an application for regularisation has been submitted by

the petitioner, the issue requires a reconsideration at the hands of

the respondent Corporation.

In the result, Ext.P5 order dated 23.10.2021 is set aside.

There will be a direction to the Secretary of the respondent

Corporation to take up the application for regularisation submitted

by the petitioner in W.P.(C) No.25139/ 2021 and to consider and

pass orders on the same with notice to the petitioners in both these

cases and any other affected parties and after hearing them

through any appropriate means including video conferencing, at

the earliest, at any rate, within a period of one month from the date

of receipt of a copy of this judgment. It is made clear that the

status quo prevailing as on today shall continue till orders are

passed as directed above.

These writ petitions are ordered accordingly.

Sd/-

ANU SIVARAMAN JUDGE

Jvt/1.12.2021 WP(C) Nos.25100 & 25139 OF 2021

APPENDIX OF WP(C) 25139/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF SITE APPROVAL ISSUED BY THE 3RD RESPONDENT DATED 04.03.2021.

Exhibit P2 TRUE COPY OF THE LETTER SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT DATED 28.07.2021.

Exhibit P3 TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 03.08.2021.

Exhibit P4 TRUE COPY OF NOTICE NO.TP 13/15626/21 ISSUED BY THE 2ND RESPONDENT DATED 16.09.2021.

Exhibit P5 TRUE COPY O ORDER NO.TP 13/15626/21 DATED 23.10.2021.

Exhibit P6 TRUE COPY OF LETTER NO.TP 13/15626/21 ISSUED BY THE 4TH RESPONDENT TO THE 5TH RESPONDENT DATED 25.10.2021.

Exhibit P7 TRUE COPY OF NOTICE ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER DATED 29.10.2021. WP(C) Nos.25100 & 25139 OF 2021

APPENDIX OF WP(C) 25100/2021

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE LAND TAX RECEIPT DATED 19.11.2020.

Exhibit P2 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 15.4.2021.

Exhibit P3 TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT DATED 8.7.2021.

Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER BEFORE THE 4TH RESPONDENT DATED 10.3.2021.

Exhibit P5 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT NO.TP 13/15626/2021 DATED 23.10.2021.

Exhibit P6 TRUE COPY OF THE COMPLAINT DATED 1/11/2021 FILED BY THE 1ST PETITIONER BEFORE THE DISASTER MANAGEMENT AUTHORITY

Exhibit P7 TRUE COPY OF THE COMPLAINT DATED 1/11/2021 FILED BY THE 1ST PETITIONER BEFORE THE CHAIRMAN DISTRICT TELECOM COMMITTEE

Exhibit P8 TRUE COPY OF THE HEARING NOTICE ISSUED BY THE 1ST RESPONDENT TO THE 1ST PETITIONER DATED 10/11/2021

RESPONDENTS' EXHIBITS :-

EXHIBIT R5 : TRUE COPY OF THE NOTICE No.1/151343/2021 ISSUED BY THE 2ND RESPONDENT DATED 05.05.2021.

EXHIBIT R5(a) : TRUE COPY OF THE LETTER SUBMITTED BY THE 5TH RESPONDENT TO THE 4TH RESPONDENT DATED 03.11.2021.