Kerala High Court
M/S Atc Telecom Tower Corporation (P) ... vs Kerala State Electricity Board on 2 August, 2024
2024:KER:61384
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 2ND DAY OF AUGUST 2024/1TH SRAVANA, 1946
WP(C) NO. 40316 OF 2016
PETITIONER:
M/S ATC TELECOM TOWER CORPORATION (P) LTD,
FORMERLY KNOWN AS ESSAR TELECOM INFRASTRUCTURE (P) LTD,
36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE,
SHENOY ROAD, COCHIN - 682 017,
REPRESENTD BY ITS SENIOR MANAGER (LEGAL),
MR.BABU PATTATHANAM.
BY ADVS.
SRI.SANTHOSH MATHEW
SRI.ARUN THOMAS
SRI.ALPHIN ANTONY
SRI.JENNIS STEPHEN
SMT.MARIA ROY
SRI.VIJAY V. PAUL
RESPONDENTS:
1 KERALA STATE ELECTRICITY BOARD,
REPRESENTED BY ITS SECRETARY,
VYDYUTHIBHAVANAM, PATTOM,
THIRUVANANTHAPRUAM - 695 001.
2 THE ASSISTANT ENGINEER,
ELECTRICAL SECTION, KSEB, MUKKAM,
KOZHIKODE DISTRICT - 673 602.
3 MUKKAM MUNICIPALITY,
KOZHIKODE DISTRICT - 673 602,
REPRESENTED BY ITS SECRETARY.
4 SRI.HABEEB REHMAN P.M,
PUTHOOR MADATHIL, MUKKAM,
KOZHIKODE DISTRICT - 673 602.
W.P.(C).No.40316 of 2016
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5 MRS.RAHIDA,
W/O.ABDUL NASIR, ANGATTAPOYIL,
KODIYATUR PO, THAZHEKODE VILLAGE,
KOZHIKODE DISTRICT - 673 602.
6 MR.ABDURAHIMAN,
PULIYULLA KANDIYIL HOUSE,
MUKKAOM P.O,
KOZHIKODE - 673 602.
BY ADVS.
SRI.SUDHEER GANESH KUMAR R., SC, KERALA STATE
ELECTRICITY BO
SRI.E.C.AHAMED FAZIL
SRI.EBIN MATHEW
SRI.K.M.FIROZ
SRI.P.J.MATHEW
SMT.M.SHAJNA
SMT.UMMUL FIDA
SRI. B. PRAMOD- SC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
02.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C).No.40316 of 2016
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JUDGMENT
(Dated this the 2nd day of August, 2024)
The petitioner was granted a licence by the Department of
Tele-communication for providing infrastructure to the various
mobile cellular operators. Accordingly, the petitioner constructed
a tele-communication tower after obtaining a permit from the 3rd
respondent Municipality. Thereafter, the petitioner also entered
into lease agreements dated 09.05.2016 with the 5th respondent for
the purpose of erection of the tower. It appears that the
Municipality due to various complaints received from the
neighborhood, issued Ext.P7 notice dated 14.11.2016 proposing to
take action as to why the building permit issued by them shall not
be cancelled.
2. To Ext.P7, the petitioner has submitted a detailed
objection as Ext.P8. The petitioner has also produced Ext.P9
completion certificate. In the meantime, the 3rd respondent issued
a communication to the Kerala State Electricity Board for the
disconnection of the electricity connection. This necessitated, the
petitioner to approach this Court with the present writ petition.
3. I have heard Sri.Arun Thomas, the learned Counsel
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appearing for the petitioner; Sri. B. Pramod, the learned standing
Counsel for the Electricity Board; Sri.P.J.Mathew, the learned
counsel appearing for the 3rd respondent and Sri. K.M. Firoz,
learned counsel appearing for the 4th respondent.
4. The learned Counsel appearing for the petitioner
submitted that without finalising the proceedings which have not
been initiated as evidenced in Ext.P7, the 3rd respondent
Municipality could not have intimated to the Electricity Board of
disconnection of the electrical energy. He also pointed out that the
Completion Certificate is also submitted before the Municipality
for appropriate action in this regard. Therefore, prays that
Ext.P14 communication, issued by the 3rd respondent Municipality
to the KSEB Board be interfered with and a direction be issued to
the Municipality to finalise the proceedings before taking
appropriate action in this regard.
5. On the other hand, learned Counsel appearing for the
3rd respondent Municipality submitted that there were several
irregularities found in the construction of the tower.
6. The learned counsel appearing for the Municipality
submitted that the occupancy certificate of the building was not
applied for and hence not granted and therefore any constructions
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may therein would necessarily be termed as unauthorised.
7. Be that as it may, the fact remains that the proceedings
now initiated against the petitioner by way of Ext.P7 has not
attained any finality. The petitioner as shown cause under Ext.P8
and also produced the Completion Certificate as evident from
Ext.P9. Necessarily, the Municipality has to complete the said
process within a time frame. Without finalising the said process, it
was not appropriate for the Municipality to have directly
approached the KSEB and requested them to disconnect the
electrical energy.
8. In the result, the petitioner is entitled to succeed,
Exts.P11, P13 and P14 are quashed. There will be a direction to
the 3rd respondent Municipality to take up Ext.P8 & P9 and
consider the same and pass appropriate orders after hearing the
petitioner as well as all other affected parties. Needful in this
regard shall be done, at any rate, within a period of three months
from the date of receipt of a copy of this judgment.
The writ petition is ordered accordingly. No order as to
costs.
Sd/-
EASWARAN S.
JUDGE
ADS
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APPENDIX OF WP(C) 40316/2016
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY BUILDING PERMIT DATED 25.08.2016
ISSUED BY THE 3RD RESPONDENT TO THE
PETITIONER.
EXHIBIT P2 TRUE COPY OF THE LEASE DEED DATED 09.05.2016
EXECUTED BETWEEN THE PETITIONER AND THE 5TH
RESPONDENT.
EXHIBIT P3 TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
29.04.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3 A TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
29.04.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P3 B TRUE COPY OF THE OWNERSHIP CERTIFICATE DATED
29.04.2016 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4 TRUE COPY OF THE LAND TAX RECEIPT DATED
16.10.2015.
EXHIBIT P5 TRUE COPY OF THE POSSESSION CERTIFICATE
OBTAINED BY THE 5TH RESPONDENT FROM THE
VILLAGE OFFICER, THAZHEKKODE VILLAGE.
EXHIBIT P6 TRUE COPY OF THE STRUCTURAL STABILITY
CERTIFICATE ISSUED BY A CHARTERED ENGINEER TO
THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE SHOW CAUSE NOTICE DATED
14.11.2016 ISSUED BY THE 3RD RESPONDENT TO
THE PETITIONER.
EXHIBIT P8 TRUE COPY OF THE REPLY DATED 18.11.2016
SUBMITTED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE COMPLETION CERTIFICATE
SUBMITTED BY THE PETITIONER BEFORE THE 3RD
RESPONDENT.
EXHIBIT P10 TRUE COPY OF THE RECEIPT DATED 13.12.2016
ISSUED BY THE 3RD RESPONDENT.
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EXHIBIT P11 TRUE COPY OF THE NOTICE DATED 05.12.2016
ISSUED BY THE 2ND RESPONDENT TO THE
PETITIONER.
EXHIBIT P11 A TRUE COPY OF THE COMPLAINT MADE BY THE 4TH
RESPONDENT.
EXHIBIT P12 TRUE COPY OF THE REPLY DATED 14.12.2016
SUBMITTED BY THE PETITIONER BEFORE THE 2ND
RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE NOTICE DATED 13.12.2016
ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P14 TRUE COPY OF THE NOTICE DATED 03.12.2016 SENT
BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT
ATTACHED WITH EXT.P12.
EXHIBIT P15 TRUE COPY OF THE REPLY DATED 14.12.2016
SUBMITTED BEFORE THE 2ND RESPONDENT BY THE
PETITIONER.
EXHIBIT P16 TRUE COPY OF THE BOARD ORDER NO.2678/2010
DATED 14.10.2010.
