Kerala High Court
Indus Towers Limited vs Corporation Of Kozhikode on 8 February, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 8TH DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944
WP(C) NO. 28022 OF 2022
PETITIONER:
INDUS TOWERS LIMITED
REPRESENTED BY THEIR CIRCLE HEAD (LEGAL)
MR.RAJKUMAR PAVOTHI, 8TH FLOOR, VANKARATH TOWERS,
PALARIVATTOM, ERNAKULAM - 682 025.
BY ADVS.
P.DEEPAK
NAZRIN BANU
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 ASSISTANT EXECUTIVE ENGINEER
KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION,
KARAPARAMBA, KOZHIKODE - 673 010.
4 A.K.SURAJA
AGED 45 YEARS
W/O.LATE MURALEEDHARAN, KIZHAKKEKUNDOTTIL HOUSE,
VENGERI P.O., KOZHIKODE DISTRICT - 673 010.
5 THE CIRCLE INSPECTOR OF POLICE
CHEVAYOOR POLICE STATION, KOZHIKODE - 673 012.
BY ADVS.
BINDUMOL JOSEPH
K.MOHANAKANNAN
SRIVIDYA K
H.PRAVEEN (KOTTARAKARA)
SRI.E.C.BINEESH-GP
SRI.B.PRAMOD (Sc)
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
08.02.2023, ALONG WITH WP(C).37348/2022, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) NOs.28022 & 37348 OF 2022
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 8TH DAY OF FEBRUARY 2023 / 19TH MAGHA, 1944
WP(C) NO. 37348 OF 2022
PETITIONER:
INDUS TOWERS LIMITED,
REPRESENTED BY THEIR CIRCLE HEAD (LEGAL)
MR. RAJKUMAR PAVOTHIL, 8TH FLOOR,
VANKARATH TOWERS, PALARIVATTOM,
ERNAULAM-682 025.
BY ADVS.
P.DEEPAK
NAZRIN BANU
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 ASSISTANT ENGINEER,
KERALA STATE ELECTRICITY BOARD LTD.,
ELECTRICAL SECTION, KARAPARAMBA, KOZHIKODE-673
010.
4 THE DISTRICT TELECOM COMMITTEE,
KOZHIKODE, COLLECTORATE, KOZHIKODE-673020
5 THE CIRCLE INSPECTOR OF POLICE,
CHEVAYOOR POLICE STATION, KOZHIKODE-673012.
6 A.K. SURAJA,
AGED 45 YEARS, W/O.LATE MURALEEDHARAN,
KIZHAKKEKUNDOTTIL HOUSE, VENGERI P.O.,
KOZHIKODE DISTRICT - 673 010.
7 E. ANAGHA MURALEEDHARAN,
KIZHAKKEKUNDOTTIL HOUSE, VENGERI P.O.,
WP(C) NOs.28022 & 37348 OF 2022
3
KOZHIKODE DISTRICT - 673 010.
8 E. ABHINAND,
KIZHAKKEKUNDOTTIL HOUSE, VENGERI P.O.,
KOZHIKODE DISTRICT - 673 010.
BY ADVS.
V.KRISHNA MENON
K.MOHANAKANNAN
H.PRAVEEN (KOTTARAKARA)
SRI.E.C.BINEESH-GP
SRI.B.PRAMOD (SC)-R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 08.02.2023, ALONG WITH WP(C).28022/2022, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NOs.28022 & 37348 OF 2022
4
JUDGMENT
Dated this the 8th day of February, 2023
[WP(C) Nos.28022 & 37348/2022]
Indus Towers Limited is the petitioner in both the writ
petitions. The petitioner was issued with a Site Approval and
Building Permit on 04.03.2021 for construction of a
Telecommunication Tower in Survey No.15/4 of Vengeri Village.
The petitioner states that Ext.P1 Building Permit was
subsequently revoked as per Ext.P2. Based on Ext.P2 order of
the Corporation, the Kerala State Electricity Board (KSEB)
disconnected the electric supply given to the
Telecommunication Tower, as per Ext.P3.
2. W.P.(C) Nos.25100 and 25139 of 2021 were filed
before this Court in connection with construction of the
Telecommunication Tower and disruption of electric supply.
WP(C) NOs.28022 & 37348 OF 2022
3. This Court passed Ext.P4 common judgment setting
aside Ext.P2 order revoking the Building Permit. The
Corporation was directed to consider regularisation of
construction already made by the petitioner. The petitioner
contends that subsequently as per Ext.P5, Occupancy
Certificate was also issued to the Telecommunication Tower on
24.05.2022.
4. As the electric supply was withdrawn due to the
earlier revocation of Building Permit, the petitioner approached
the KSEB for resuming electric supply. When the workers of the
KSEB reached the premises for restoring electric supply,
respondents 6 to 8 in W.P.(C) No.37348 of 2022 obstructed the
Electricity Board workers and consequently, the
Telecommunication Tower could not be provided with electric
connection. Though the petitioner submitted Ext.P7 complaint
before the 5th respondent-Station House Officer, the 5 th
respondent did not give adequate protection to the workers of
WP(C) NOs.28022 & 37348 OF 2022
the Kerala State Electricity Board and the petitioner, for starting
functioning of the Tower.
5. It was in these circumstances that the petitioner filed
W.P.(C) No.28022 of 2022 seeking to command the 5 th
respondent-Circle Inspector of Police to act upon Exts.P6 and
P6(a) representations filed by the 3rd respondent-Assistant
Executive Engineer, KSEB and accord adequate and effective
protection to the personnel of the KSEB to restore the electric
supply connection to the Telecommunication Tower constructed
by the petitioner. The petitioner, thereafter, filed W.P.(C)
No.37348 of 2022 seeking to command the 5th respondent-
Circle Inspector of Police to act upon Ext.P7 representation filed
by the 3rd respondent-Assistant Executive Engineer, KSEB and
accord adequate and effective protection to the personnel of the
KSEB to restore the electricity supply to the Telecommunication
Tower constructed by the petitioner.
WP(C) NOs.28022 & 37348 OF 2022
6. Standing Counsel for respondents 1 and 2 submitted
that pursuant to the common judgment of this Court in W.P.(C)
Nos.25100 and 25139 of 2021, Occupancy Certificate has
already been issued to the Telecommunication Tower erected
by the petitioner.
7. Standing Counsel for the KSEB submitted that the
electric connection was withdrawn consequent on the earlier
revocation of the Building Permit and as the Corporation has
issued Occupancy Certificate to the petitioner, the KSEB is
ready to give electric supply to the petitioner's Tower. In fact,
the workers of the KSEB went to the premises for restoration of
electric supply, but there were obstructions from certain
quarters.
8. Respondents 6 to 8 in W.P.(C) No.37348 of 2022
strongly resisted the writ petition filing a counter affidavit.
Respondents 6 to 8 stated that the distance between the house
of respondents 6 to 8 and the boundary of the
WP(C) NOs.28022 & 37348 OF 2022
Telecommunication Tower is hardly 5 metres and the distance
from the boundary of their property is 4 metres. There is a
drinking water well in between this area. After the
commencement of the construction of the Telecommunication
Tower, the well has started to collapse. Respondents 6 to 8
have challenged the issuance of Building Permit and
Occupancy Certificate by filing Appeal No.635 of 2022 before
the Tribunal for Local Self Government Institutions. The said
appeal is still pending.
9. Respondents 6 to 8 have also filed O.S.No.274 of
2022 seeking prohibitory injunction against the petitioner from
resuming the construction of the Telecommunication Tower and
for a mandatory injunction to direct the petitioner to dismantle
the Tower already constructed. Furthermore, the matter is
pending consideration before the District Legal Service
Authority also, and stands posted to 15.02.2023.
WP(C) NOs.28022 & 37348 OF 2022
10. Respondents 6 to 8 further pointed out that as per
Ext.R8(f) Commission Report, it is evident that the distance
between the house of respondents 6 to 8 and the Tower is only
4 metres and the well situated in the property of the
respondents started to collapse. In view of Ext.R8(f), the
petitioner is compellable to dismantle the Telecommunication
Tower, contended the counsel for respondents 6 to 8.
Respondents 6 to 8 have a further case that though the
property where the Telecommunication Tower is situated has a
separate access, respondents 6 to 8 are accessing the property
through the petitioner's land, which cannot be permitted.
11. I have heard the learned counsel for the petitioner,
the respective Standing Counsel for respondents 1 to 3, the
learned Government Pleader representing respondents 4 and 5
in W.P.(C) No. 37348 of 2022 and the 5 th respondent in W.P.(C)
No.28022 of 2022 and the learned counsel appearing for
respondents 6 to 8 in W.P.(C) No. 37348 of 2022.
WP(C) NOs.28022 & 37348 OF 2022
12. From the pleadings and arguments, it is evident that
the petitioner has started construction of a Telecommunication
Tower after obtaining Building Permit. Though the Building
Permit was cancelled earlier, subsequently, in pursuance of the
common judgment of this Court in W.P.(C) Nos.25100 and
25139 of 2021, Building Permit was restored. Now, the
construction of the Tower is complete and Ext.P5 Occupancy
Certificate has also been issued on 24.05.2022.
13. As the electric supply given to the Tower was
disconnected in view of revocation of Building Permit, the KSEB
authorities have decided to reconnect electricity to the Tower,
on restoration of Building Permit and issuance of Occupancy
Certificate. However, the workers of the KSEB could not supply
electricity due to the obstruction caused by respondents 6 to 8
in W.P.(C) No.37348 of 2022.
14. It is pertinent to note that as per the Kerala
Municipality Building Rules, the distance to be maintained by a
WP(C) NOs.28022 & 37348 OF 2022
Telecommunication Tower from the nearest compound is only
1.20 Metres. Here, admittedly the distance between the house
of respondents 6 to 8 and the Telecommunication Tower is 5
metres and the distance from the boundary of their property is 4
metres. Therefore, prima facie, there is no statutory violation in
the construction. It is true that a civil suit is pending before the
Munsiff's Court and an Appeal preferred by the petitioner is
pending before the Tribunal for Local Self Government
Institutions. But, as long as there are no interim orders by the
Civil Court or Tribunal prohibiting the petitioner from functioning
the Telecommunication Tower and since the petitioner has
obtained Occupancy Certificate and all other requisite licences,
it will be inappropriate for respondents 6 to 8 to cause physical
obstruction to the functioning of the Tower. If respondents 6 to 8
cause physical obstruction to the supply of electricity, the 5 th
respondent is bound to give adequate protection.
WP(C) NOs.28022 & 37348 OF 2022
15. In the circumstances, both the writ petitions are
disposed of directing the 5th respondent-Circle Inspector of
Police to give adequate police protection to the personnel of the
KSEB to restore the electricity supply to the Telecommunication
Tower constructed by the petitioner in Survey No.15/4 of
Vengeri Village, without any obstruction from respondents 6 to
8 or anyone else claiming under them. It is made clear that the
observations and findings in this judgment are made exclusively
for the purpose of considering the claim of the petitioner for
police protection and this judgment shall not be treated as
pronouncement on anything on merits on any issues which are
subject matter of O.S.No.274/2022 and Appeal No.633 of 2022.
16. Respondents 6 to 8 submit that the petitioner is
trespassing into the pathway of respondents 6 to 8 for the
purpose of access to the Tower. This is disputed. The counsel
for the petitioner submits that this is only an apprehension and
the petitioner or their workmen do not intend to use the pathway
WP(C) NOs.28022 & 37348 OF 2022
of respondents 6 to 8. If respondents 6 to 8 has any grievance
in this regard, respondents will be at liberty to approach the
appropriate authorities/Court.
sd/-
N.NAGARESH
JUDGE
hmh
WP(C) NOs.28022 & 37348 OF 2022
APPENDIX OF WP(C) 37348/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT
ISSUED ON 04.03.2021.
Exhibit P2 A TRUE COPY OF THE ORDER OF THE SECOND
RESPONDENT DATED 23.10.2021.
Exhibit P3 A TRUE COPY OF THE COMMUNICATION DATED
29.10.2021 OF THE 3RD RESPONDENT.
Exhibit P4 A TRUE COPY OF THE JUDGEMENT DATED
25.11.2021 IN WPC NO: 25139 OF 2021 AND
CONNECTED CASE.
Exhibit P5 A TRUE COPY OF THE OCCUPANCY
CERTIFICATE DATED 24.05.2022
Exhibit P6 A TRUE COPY OF THE COMMUNICATION DATED
16.06.2022 ADDRESSED TO THE 3RD
RESPONDENT.
Exhibit P7 A TRUE COPY OF THE PETITION DATED
20.06.2022 FILED BY THE 3RD RESPONDENT
BEFORE THE 5TH RESPONDENT.
Exhibit P8 A TRUE COPY OF THE ORDER DATED
29.08.2022 IN WPC NO: 28022 OF 2022.
Exhibit P9 A TRUE COPY OF THE ORDER DATED
02.09.2022 IN WPC NO: 28022 OF 2022.
Exhibit P10 A TRUE COPY OF THE ORDER OF THE 4TH
RESPONDENT DATED 29.09.2022.
Exhibit P11 TRUE COPY OF THE PLAINT IN O.S NO:
274/2022 BEFORE THE MUNSIFF COURT,
KOZHIKODE.
Exhibit P12 TRUE COPY OF THE MEMORANDUM OF APPEAL
IN APPEAL NO: 635/2022 BEFORE THE
TRIBUNAL FOR LSGI.
RESPONDENT EXHIBITS
Exhibit R8(a) THE COPY OF THE PROCEEDINGS OF THE DTC
DATED 29/11/2021.
Exhibit R8(b) THE COPY OF THE PROCEEDINGS OF THE DTC
DATED 28/12/2021.
Exhibit R8(c) THE COPY OF THE PROCEEDINGS OF THE DTC
DATED 23/07/2022.
WP(C) NOs.28022 & 37348 OF 2022
Exhibit R8(d) THE COPY OF THE PROCEEDINGS OF THE DTC
DATED 29/08/2022.
Exhibit R8(e) TRUE COPY OF THE PROCEEDINGS
NO.DCKKD/590/2022-N2 OF THE DISTRICT
TELECOM COMMITTEE DATED 29/09/2022.
Exhibit R8(f) TRUE COPY OF THE COMMISSIONER'S REPORT
IN OS NO.274/2022
WP(C) NOs.28022 & 37348 OF 2022
APPENDIX OF WP(C) 28022/2022
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE BUILDING PERMIT
ISSUED ON 04/03/2021.
Exhibit P2 A TRUE COPY OF THE ORDER OF THE SECOND
RESPONDENT DATED 23/10/2021.
Exhibit P3 A TRUE COPY OF THE COMMUNICATION DATED
25/10/2021 ADDRESSED TO THE 3RD
RESPONDENT.
Exhibit P4 A TRUE COPY OF THE JUDGMENT DATED
25/11/2021 IN WPC NO.25139 OF 2021 AND
CONNECTED CASE.
Exhibit P5 A TRUE COPY OF THE COMMUNICATION DATED
16/06/2022 ADDRESSED TO THE 3RD
RESPONDENT.
Exhibit P6 A TRUE COPY OF THE PETITION DATED
20/06/2022 FILED BY THE ASSISTANT
ENGINEER, ELECTRICAL SECTION,
KARAPARAMBA, KSEB BEFORE THE 5TH
RESPONDENT.
Exhibit P6A A TRUE COPY OF THE PETITION DATED
12/07/2022 FILED BY THE ASSISTANT
ENGINEER, ELECTRICAL SECTION,
KARAPARAMBA, KSEB BEFORE THE 5TH
RESPONDENT.
Exhibit P7 A TRUE COPY OF THE PETITION DATED
11/07/202 FILED BY THE PETITIONER TO
THE ASSISTANT ENGINEER, ELECTRICAL
SECTION, KARAPARAMBA, KSEB.
RESPONDENT EXHIBITS
Exhibit R4(A) TRUE COPY OF THE PROCEEDINGS OF THE DTC
DATED 23-11-2021.
Exhibit R4(B) TRUE COPY OF THE PROCEEDINGS OF THE DTC
DATED 23-12-2021.
Exhibit R4(C) TRUE COPY OF THE PROCEEDINGS OF THE DTC
DATED 23-7-2022.
Exhibit R4(D) TRUE COPY OF THE PROCEEDINGS OF THE DTC
DATED 26-8-2022.
