High Court of KeralaSingle Judge2008-11-19Petition allowed; Annexure-8 order set aside; S...

Essar Telecom Infrastructure (P) Ltd. v. Revenue Divisional Officer, Kozhikode (Crl.M.C. No. 1185 of 2008)

Case / Petition Number:Crl.M.C. No. 1185 of 2008

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2008-11-19
Court Decision / Holding: This Crl.M.C. is allowed. Annexure-8 order is set aside. It is made clear that the setting aside of Annexure-8 order will not in any way fetter the right of the SDM to initiate fresh proceedings under Chapter XB (Sec.133 Cr.P.C.) in accordance with law if there are legal grounds to initiate such proceedings. It is also made clear that the petitioner’s right to challenge any such proceedings initiated under Chapter XB will not be fettered by any observations in this order. The court notes Reliance Infocom Ltd. v. Chemanchery Grama Panchayat for context but does not rely on it to dispose of the petition. A subsequent order on 21 May 2008 directs status quo and no further construction, with a directive to keep the matter in the usual course for further action.
Final Disposition: Petition allowed; Annexure-8 order set aside; SDM retains the authority to initiate fresh proceedings under Chapter XB if legally warranted; petitioner’s rights to challenge any future Chapter XB actions preserved; separate May 2008 order directing status quo on construction.

Parties to the Case

Appellants / Petitioners

M/S. Essar Telecom Infrastructure (P) Ltd.

Respondents

Revenue Divisional Officer, Kozhikode
Village Officer, Village Office, Unnikulam
Unnikulam Grama Panchayat, Erakool P.O., Kozhikode District
Smt. Padmini, Mukkatakkunnummel House, Erakul P.O., Unnikulam, Kozhikode

Legal Representation & Advocates

Counsels for Petitioners

• Sri. Santhosh Mathew
• Sri. Sathish Ninan

Counsels for Respondents

• Sri S.U. Nazar (Public Prosecutor for R1, R2)
• Sri V.V. Suresh (for R4)
• Sri P. Shrihari (for R3)
• Sri P. Vani (for R3)

Case Synopsis & Summary

Essar Telecom Infrastructure (P) Ltd., the petitioner, challenges Annexure-8 order issued by the Revenue Divisional Officer, Kozhikode. The order purportedly directed relocation of a mobile phone tower to a different site on the ground that the house of the 4th respondent faced danger and insecurity. The petitioner contends that the Annexure-8 order cannot be treated as a valid order under Chapter XB of Cr.P.C. (Sec.133 Cr.P.C.), since no proceedings under Chapter XB were initiated, and it cannot be regarded as an interim order under Sec.142 Cr.P.C. The respondents concede it cannot be sustained as a conditional order under Sec.133 Cr.P.C. or as an interim order under Sec.142 Cr.P.C., but urge that the SDM may be empowered to initiate appropriate action under Chapter XB if legally justified. The Panchayat had issued sanctions for construction, and the 4th respondent supported the petition. The Judge ultimately holds that Annexure-8 cannot be sustained as either a conditional order under Sec.133 Cr.P.C. or an interim order under Sec.142 Cr.P.C., and sets it aside, while recognizing that the SDM retains the right to initiate fresh proceedings under Chapter XB if warranted. The decision cites Reliance Infocom Ltd. v. Chemanchery Grama Panchayat for context but does not base the ruling on it. In a separate post-judgment note, directions were issued maintaining status quo and preventing further construction, with full reservation of rights to challenge future Chapter XB proceedings. The matter is adjudicated by a Single Judge, R. Basant.

Provisions of Law Cited

Sec. 133 Cr.P.C.Sec. 142 Cr.P.C.Chapter XB Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Annexure-8 cannot be a valid order under Chapter XB Cr.P.C. since no proceedings under Sec.133 Cr.P.C. were initiated; it cannot be treated as a conditional order under Sec.133 Cr.P.C. or as an interim order under Sec.142 Cr.P.C. The SDM’s competence to act under Chapter XB is disputed; the sanction of the Panchayat supports construction, and the 4th respondent’s allegations leave the scope beyond what Reliance Infocom Ltd. addressed. The remedy lies in quashing the impugned order and clarifying that the petitioner’s rights to challenge any future Chapter XB proceedings remain intact.

Contentions of Respondents

The respondents concede that Annexure-8 cannot be treated as a valid conditional order under Sec.133 Cr.P.C. or as an interim order under Sec.142 Cr.P.C., but submit that the SDM may still be empowered to initiate appropriate action under Chapter XB based on the petition; they rely on the possibility of action under XB and emphasize that the Panchayat’s sanction supports construction. The Public Prosecutor argues for permissible action by the SDM if legally warranted, without equating Annexure-8 with a valid order under the relevant statutes.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Reliance Infocom Ltd. v. Chemanchery Grama Panchayat	2006 (4) KLT 695	Mentioned Only	Cited in passing as a related discussion on nuisance from telecom towers; the present judgment does not base its ruling on it and discusses broader issues not strictly governed by that decision.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Essar Telecom Infrastructure (P) Ltd. v. Revenue Divisional Officer, Kozhikode (Crl.M.C. No. 1185 of 2008) and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930** **Crl.MC.No. 1185 of 2008()** **-----------------------------------** **ORDER OF THE REVENUE DIVISIONAL OFFICER, KOZHIKODE IN PROCEEDINGS NO.A.5844/2007 DATED 24/01/2008.** **...............................** ## **PETITIONER/ACCUSED** **--------------------------------** **M/S.ESSAR TELECOM INFRASTRUCTURE (P) LTD., 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, COCHIN-682 017, REPRESENTED BY ASSISTANT MANAGER (SITE ACQUISITIONS & ADMINISTRATION) MR.RAHUL DAS.** **BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN** ## **RESPONDENTS/STATE AND COMPLAINANT** **--------------------------------------------------------------** **1. THE REVENUE DIVISIONAL OFFICER, KOZHIKODE.** **2. THE VILLAGE OFFICER, VILLAGE OFFICE, UNNIKKULAM.** **3. UNNIKULAM GRAMA PANCHAYAT, EKAROOL P.O., KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY.** **4. SMT.PADMINI, MUPPATTAKKUNNUMMEL HOUSE, EKAROOL P.O., UNNIKKULAM, KOZHIKODE.** **PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R1, R2 ADV. SRI.V.V.SURESH FOR R4 ADV. SRI.P.SHRIHARI FOR R3 ADV. SMT.P.VANI FOR R3** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Rs/** ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 1185 of 2008 ------------------------------------------------Dated this the 19[th] day of November, 2008** ## **ORDER** The petitioner is aggrieved by Annexure-8 order passed by the 1[st] respondent. Annexure-8 order, it appears, is passed by the Revenue Divisional Officer. Reckoning the same as a conditional order under Sec.133 Cr.P.C., this Crl.M.C. has been initiated. 2. Annexure-8 order reveals that the 4[th] respondent herein had filed an application complaining about a construction which was undertaken by the petitioner herein for setting up a mobile telephone tower near the house of the 4[th] respondent. On the complaint of the 4[th] respondent, the 1[st] respondent i.e., the Revenue Divisional ## **Crl.M.C. No. 1185 of 2008** -: 2 :- Officer, Kozhikode, appears to have entertained the satisfaction that the house of the 4[th] respondent is facing danger and insecurity. Accordingly, it was directed that the constructions of the tower may be shifted to an alternate site such that danger to the house of the 4[th] respondent is abated. 3. The learned counsel for the petitioner submits that the impugned order cannot be reckoned as a valid order under Chapter XB Cr.P.C. It cannot be reckoned as a conditional order under Sec.133 Cr.P.C. inasmuch as the essential requisites of such an order under Sec.133 Cr.P.C. is not satisfied. Since no proceedings under Chapter XB (Sec.133 Cr.P.C.) is initiated, the impugned order cannot also be reckoned as an interim order passed under Sec.142 Cr.P.C. also. In these circumstances, the proceedings are liable to be quashed. The learned counsel for the petitioner submits that in fact, it is not the Executive Magistrate who has initiated the proceedings under Annexure-8 and it is only the R.D.O. who has initiated the proceedings. It is not possible to discern from Annexure-8 whether the order is ## **Crl.M.C. No. 1185 of 2008** -: 3 :- passed invoking the powers under Chapter XB Cr.P.C. In these circumstances, the impugned order may be set aside. It may be clarified that it is not an order passed under Sec.133 Cr.P.C. and the petitioner is not liable to face any consequences reckoning Annexure-8 is an order under Sec.133 Cr.P.C. 4. The 3[rd] respondent is the local authority i.e., Unnikulam Grama Panchayat. The Panchayat had issued the requisite sanction (Annexure- 1) to the petitioner to undertake the construction in question. The 3[rd] respondent stands by Annexure-1 sanction given for construction and virtually supports the prayer of the petitioner. 5. The learned Public Prosecutor on behalf of respondents 1 and 2 submits that the impugned order cannot validly be supported as an order passed under Chapter XB (Sec.133 Cr.P.C.). The learned Public Prosecutor accepts that the same shall not be executed as though it is a conditional order under Sec.133 Cr.P.C. or an interim order under Sec.142 Cr.P.C. But the learned Public ## **Crl.M.C. No. 1185 of 2008** -: 4 :- Prosecutor submits, and the 4[th] respondent supports that submission, that the S.D.M. may be given an option to take appropriate action, if necessary, under Chapter XB on the basis of the petition of the 4[th] respondent. 6. I am satisfied that the impugned order – Annexure-8 cannot in law be supported as either a conditional order under Sec.133 Cr.P.C. or an interim order under Sec.142 Cr.P.C. In these circumstances, Annexure-8 order deserves to be set aside. The prayer of the Public Prosecutor can be accepted. 7. The learned counsel for the petitioner submits that the question of nuisance emanating from installation of a telecommunication tower for mobile phone communications has already been considered by a Division Bench of this Court in **Reliance Infocom Ltd. v. Chemanchery Grama Panchayat** (2006 (4) KLT 695). The learned counsel hence contends that the SDM is not competent to take any action under Chapter XB. I am not going into that question in detail as the allegations made in the complaint by the 4[th] respondent covers areas uncovered by the decision in ## **Crl.M.C. No. 1185 of 2008** -: 5 :- ## **Reliance Infocom Ltd.** 8. I the result: - (a) This Crl.M.C. is allowed. - (b) Annexure-8 order is set aside. (c) It is made clear that the setting aside of Annexure- 8 order will not in any way fetter the right of the SDM to initiate fresh proceedings under Chapter XB (Sec.133 Cr.P.C.) in accordance with law if there are legal grounds to initiate such proceedings. It is also made clear that the petitioner's right to challenge any such proceedings initiated under Chapter XB will not also be fettered by any observations in this order. Sd/- ## **(R. BASANT, JUDGE)** ## **Nan/** //true copy// P.S. to Judge ## **Crl.M.C. No. 1185 of 2008** -: 6 :- ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 1185 of 2008 ------------------------------------------------Dated this the 21[st] day of May, 2008** ## **ORDER** After discussions at the Bar, it is agreed that there can be a direction that status quo as on today shall be maintained and no further constructions shall be undertaken by the petitioners in the property in question. It is submitted by the petitioners that the construction of the tower is complete and the respondent insists that there may be a direction that no further constructions are undertaken. Directions to that effect are issued. Call this petition in the usual course. **Nan/** **Crl.M.C. No. 1185 of 2008** -: 7 :-