Shaji V.P. and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **MONDAY, THE 06TH DAY OF JANUARY 2020 / 16TH POUSHA, 1941** ## **WP(C).No.28336 OF 2018(S)** ## **PETITIONERS:** - **1 SHAJI V.P., AGED 44 YEARS S/O. MUHAMMED.V.P, VALIYAPEEDIAKKAL, CHERUKULAMBA, VATTALOOR P.O., MALAPPURAM(DT)-676507.** - **2 JAFAR MANCHINGAL, AGED 35 YEARS S/O. HAMZA, MACHINGAL(H), VATTALOOR P.O, MALAPPURAM (DT)-676507.** - **3 MOHAMMED NOUSHAD, S/O. ABDU RAHMAN, THEKKAN(H) CHERUKULAMBA, VATTALOOR P.O., MALAPPURAM(DT)-676507.** - **BY ADVS. PRASANTH S. SMT.VARSHA BHASKAR SRI.JYOTHISH D.MONY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, CIVIL STATION, MALAPPURAM-676505.** - **2 THE EXECUTIVE ENGINEER (ROADS), PUBLIC WORKS DEPARTMENT, CIVIL STATION, MALAPPURAM-676505.** - **3 KURUVA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, VATTALLOOR P.O., MALAPPURAM-676507.** - **4 M/SINDUS TOWERS LTD., 8TH FLOOR, VANKARATH TOWER, NH BYEPASS JN., PALARIVATTOM, COCHIN-24.** - **5 UMMER, URUTHODI HOUSE, CHERUKULAMBA, VATTALOOR P.O, MALAPPURAM(DT)-676507.** 2 W.P(C) No.28336 of 2018 **R1-R2 BY SR. GP. SRI.SURIN GEORGE IPE R4 BY ADV. KRISHNA PRASAD. S** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P(C) No.28336 of 2018 3 ## **JUDGMENT** Dated this the 6[th] day of January, 2020 ## S.Manikumar, CJ. Instant public interest litigation is filed with the following prayers: (a) To issue a writ of mandamus or any other appropriate writ or order directing the 1[st] respondent to consider and pass order on Exhibit-P1 representation; (b) To issue a writ of mandamus or any other appropriate writ or order directing the 2[nd] respondent to consider and pass order on Exhibit-P2 representation; (c) To issue a writ of mandamus or any other appropriate writ or order directing respondents 1 and 2 to conduct a survey of the road abutting the plot of the 5[th] respondent leased to the 4[th] respondent; 2. Petitioners as well as respondent No.5 are the residents of Cherukulamba in Kuruva Grama Panchayat. Being aggrieved by the reluctance of State of Kerala, represented by the District Collector, Malappuram, and the Executive Engineer (Roads), PWD, Malappuram, respondent Nos.1 and 2 respectively, in taking action on Exhibits-P1 and P2 representations for conducting a survey, in order to ascertain the alleged encroachment into the Government property, petitioners have filed the writ petition. 3. Respondent No.5 has given 5 cents of property on lease to respondent No.4. According to the petitioners, said plot is an encroached property and any construction activity therein would affect widening of W.P(C) No.28336 of 2018 4 Kottakkal-Perinthalmanna road, which is having a width of 46 metres. According to the petitioners, the Secretary of Kuruva Grama Panchayat has given permission to the 4[th] respondent for constructing a telecommunication tower. Petitioners have submitted representations dated 7.8.2018 before the State of Kerala, represented by the District Collector, Malappuram and the Executive Engineer (Roads), Malappuram. Respondent No.3 has now issued a stop memo dated 7.8.2018 (Exhibit-P3) to the 4[th] respondent to stop the construction temporarily based on permit dated 20.07.2018. However, there is no mention about the encroached Government land. ## 4. Respondent No.4 has filed a counter affidavit contending as follows: (a) Building permit has been granted to the 4[th] respondent after verifying all the documents and sketches as envisaged under law by the 3[rd] respondent. He is not aware of any representation given by the petitioners against the construction. (b) Panchayat has issued stop memo subsequent to the issuance of building permit at the instigation of the petitioners. The 4[th] respondent has approached the Tribunal for Local self Government Institutions, Thiruvananthapuram, against the stop memo and obtained an order of stay dated 14.08.2018 in I.A. No.1197 of 2018 in Appeal No.534 of 2018 [Exhibit-R4(b)] in his favour by the Tribunal. Though the stay was granted only till 19.09.2018 due to non production of the building permit, the same was extended subsequently by order dated 19.09.2018 in I.A.No.1197 of 2018 in Appeal No.534 of 2018 by the Local Self Government Institutions, Thiruvananthapuram [Exhibit-R4(c)]. W.P(C) No.28336 of 2018 5 (c) The petitioners have approached this Court without making proper enquiries and merely filing a half page representation before respondents 2 and 3. They have deliberately not made the concerned Village officer and Tahsildar as parties in the writ Petition. Moreover the petitioners could not produce any document to substantiate their case. (d) The 5[th] respondent became the owner of the property in question as per a registered document bearing number 4945/2012 in Sy. No.25/9-5 of Kuruva Village. Reference is made to the possession certificate issued to the 5[th] respondent by the Kuruva Village office dated 25.06.2018 [Exhibit-R4(d)] to substantiate the contention. The survey number and boundaries of the property for which building permit has been granted is for the same land as described in the possession certificate. If the petitioners had any grievance against the construction, their remedy is to approach the District Telecom Committee for the resolution of the same and they have already approached DTC after this Writ petition was filed. (e) Moreover, the petitioners did not opt to challenge the issuance of building permit before the Tribunal under Section 276 of the Kerala Panchayat Raj Act. The new telecom policy has been formulated in place of National Telecom Policy and aims to facilitate India's effective participation in the digital Economy. As the present world entered the era of modern technological advancements in the Telecom Sector such as 5G,LOT,M2M etc, a need was being felt to introduce a ‘customer focused’ and ‘application driven’ policy for the Indian Telecom Sector, which can form pillar of Digital India by addressing emerging opportunities for expanding not only the availability of telecom services but also telephone based services. The policy aims to ensure digital sovereignty and the objectives are to be achieved by 2022. Under the new telecom policy, the W.P(C) No.28336 of 2018 6 Government aims to provide universal broadband connectivity at 50 Mbps to every citizen. It has kept a target of providing 1 Gbps connectivity to all Grama Panchayat by 2020 and 10 Gbps by 2022. Hence, the Central Government has introduced National Digital Communication Policy 2018. The 4[th] respondent is duty bound to erect more telecommunication towers to achieve the above goal as a part of National Digital Communication Policy 2018. Thus, the 4[th] respondent sought for dismissal of the writ petition.” 5. Heard learned counsel for the parties and perused the material available on record. 6. Exhibit-P1(a) stated to be the representation dated 7.8.2018, submitted to the Collector by the residents of Cherukulamba in Kuruva Grama Panchayat is reproduced: ## “ **Submitted before the District Collector by the residents of Cherukulamba in Kuruva Grama Panchayat** Sub: Public Property encroached by a private person and transferred for Tower construction-Reg. Kottakkal-Perintlamanna road is known as Tippu Sultan Road. This road has a width of 46 metres from Chattiparambu to Padaparamba even during the survey done at the time of British Rule. It is learned that a private person has encroached the land near Cherukulamba LP School in Chattiparambu area. Hence it is requested that steps may be taken to conduct survey and protect public property. It is also requested that directions may be given to the authorities to stop construction of the tower Hill survey procedures are completed. W.P(C) No.28336 of 2018 7 07-08-2018 Cherukulamba **==> picture [75 x 26] intentionally omitted <==** ## **Receipt** Received the application dated 07-08-2018 of Sri.Mansoor **==> picture [97 x 25] intentionally omitted <==** 7. Reading of the above makes it clear that without verifying as to whether there is any encroachment or not, on an assumption, a representation has been made. Based on the complaint submitted by Shri Abdul Majeed and others, Kuruva Grama Panchayat has issued a direction dated 07.08.2018, that construction activities of mobile tower, on the basis of permit issued, be temporarily stopped. 8. Perusal of the counter affidavit shows that by virtue of a registered document No.4945/2012 in Sy. No.25/9-5 of Kuruva Village, respondent No.5 has become the owner of the subject property. Exhibit-R4(d) possession certificate dated 25.06.2018 reads thus: ## “ **GOVERNMENT OF KERALA** ## KURUVA VILLAGE OFFICE ## **POSSESSION CERTIFICATE** |**POSSESSION CERTIFICATE**|**POSSESSION CERTIFICATE**| |---|---| |No.33387263<br>Date:<br>25/06/2018|| |Name of Person to who certificate is<br>issued|UMMER| |Name of Father|KUNHIMOHAMMED| |Address|UROTHODY<br>HOUSE,<br>8/44.<br>CHERUKULAMBA| W.P(C) No.28336 of 2018 8 |Post Office with PIN Code|VATTALOOR PO.676507| |---|---| |District|Malappuram| Certified that land shown in the schedule below are in possession and enjoyment of the person |Taluk/Village|Old<br>Survey<br>No.|Re-<br>Survey<br>Block|Re<br>Survey<br>No.|Re<br>Survey<br>No.|Extend<br>in Ha.|Thandapp<br>er|Class of<br>Land| |---|---|---|---|---|---|---|---| |Perinthalma<br>nna/Kuruva|25/9-5|1|||0.05||dry| ||||||||| |Certificate issued date||||25/06/2018|||| |Designation of the issuing officer||||VILLAGE OFFICER|||| |Purpose for which the certificate is<br>issued for||||KSEB OFFICE CHATTIPARAMBA|||| This certificate is issued based on the details given in the application, local enquiry, facts and records produced. Security Code: B09N2 Signature valid Digitally signed by RATHNAKARAN Date: 2018.06.25.10.37.55 IST” 9. Perusal of the order in I.A. No.1197 of 2018 in Appeal No.534 of 2018 on the file of the Tribunal for Local Self Government Institutions, Thiruvananthapuram, shows that the stop memo dated 07.08.2018, has been stayed by the Tribunal. Said order of the Tribunal reads thus: “IN THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Present : Smt. Cijimol Kuruvila, LL.M, The Tribunal I.A. No.1197/2018 in ## Appeal No. 534/2018 Appellant: M/s. Indus Towers Ltd. Represented by Mr. Prema Krishnan Nair M.N., D G M Legal, 8[th] Floor, W.P(C) No.28336 of 2018 9 Vankarath Towers, NH Bypass, Palarivattom, Cochin, Kerala. (By Adv. Sri. Krishna Prasad S.) ## Respondent : Kuruva Grama Panchayath, Represented by its Secretary. The Appeal is filed as against the stop memo bearing No.A3 4272/18 dated 07.08.2018 of the Secretary, Kuruva Grama Panchayath. Along with the appeal, the appellant filed the above petition to stay the implementation of the impugned stop memo. After having considered the nature of the impugned stop memo from which the appeal is preferred and the grounds stated in the appeal memorandum and the averments in the affidavit in support of the petition, I am satisfied that the appellant have succeeded in establishing a prima facie case entitling them to get a stay as prayed for. In the result, impugned order is stayed till 19.09.18. Produce the copy of permit. Call on 19.09.18. Dated this the 14[th] day of August, 2018. Sd/- ## Cijimol Kuruvila, Tribunal for Local Self Government Institutions” ## 10. On the production of permit, interim stay granted by the Tribunal has been extended. “IN THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Present : Smt. Cijimol Kuruvila, LL.M, The Tribunal I.A. No.1197/2018 in APPEAL NO. 534/2018 W.P(C) No.28336 of 2018 10 Appellant: M/s. Indus Towers Limited, 8[th] Floor, Vankarath Towers, NH Bypass, Palarivattom, Cochin, Kerala. (By Adv. Sri. Krishna Prasad S.) Respondent : Kuruva Grama Panchayath, Represented by its Secretary. I.A. No.1197/2018 stood for consideration on 19.09.2018 and the Tribunal passed the following: ## **ORDER** Copy of permit is produced. Permit is valid upto 27.07.2019. Hence, stay extended till 27.07.2019. Dated this the 19[th] day of September, 2018. Sd/- Cijimol Kuruvila, Tribunal for Local Self Government Institutions” 11. Perusal of the letter dated 23.07.2019 [Exhibit-R4(a)] of the Village Officer, Kuruva, addressed to the District Collector, Malappuram, shows that respondent No.5 is not an encroacher of any Government property. Said letter is extracted hereunder: “No.89/19 Village Officer, Kuruva Date:23.07.2019 From The Village Officer Kuruva. To The District Collector, Malappuram. W.P(C) No.28336 of 2018 11 ## Sir, Sub:- Regarding the permission for the construction of tower Ref:- Your notice dated 20.07.2019 DCMPM/1039/2019 E3. Please refer to the reference notice. The survey number given in the notice is incorrect. The correct survey number given in the Kuruva village is 25/9-5. According to the 4945/2012 number titled deed registered at the Makkaraparamba SubRegistrar Office, this land is in the possession and tax being paid by Oorothodi Umar S/o. Kunji Muhamed in survey number 25/9-5 of block 1 there is 0.0505 hectors of land. This property is situated in the northern side of the Chattiparamba-Padamparamba road. It is reported that this property is not included either in purampoku land or excess land. ## 23.07.2019 Enclosed: 1. Service of notice. 2. Sketch provided by Taluk Surveyor.” 12. Thus, from the above, it could be deduced that the petitioners, without ascertaining as to whether, 4[th] respondent is the owner of the subject property or an encroacher, has merely sent a complaint to the Panchayat and other authorities to prevent construction of a mobile tower. Building permit granted remains unchallenged. There are no bonafides on the part of the petitioners. As right contended by the 5[th] respondent, as per the decision of the Hon'ble Full Bench in **Indus Towers, Palarivattom and Ors.** v. **Sub** W.P(C) No.28336 of 2018 12 **Inspector of Police, Thodupuzha and Ors.** [2014 (4) KHC 81], District Telecom Committee is the concerned authority to decide upon the grievance pertaining to mobile communication towers and the matter is stated to be pending before the District Telecom Committee, Malappuram. In the light of the above discussion and decision, we are of the view that there are no merits in the writ petition. Accordingly, the same is dismissed. No costs. **Sd/S.MANIKUMAR CHIEF JUSTICE** **Sd/SHAJI P. CHALY JUDGE** Krj.6/1 W.P(C) No.28336 of 2018 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE RESIDENTS OT CHERUKULAMBA TO THE 1ST RESPONDENT ALONG WITH ACKNOWLEDGMENT.** **EXHIBIT P1(A) TRUE ENGLISH TRANSLATION OF EXT.P1.** **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE RESIDENTS OT CHERUKULAMBA TO THE 2ND RESPONDENT ALONG WITH ACKNOWLEDGMENT.** **EXHIBIT P2(A) TRUE ENGLISH TRANSLATION OF EXT.P2.** **EXHIBIT P3 TRUE COPY OF THE STOP MEMO NO.A3-4272/18 DATED 07.08.2018 ISSUED BY THE 3RD RESPONDENT TO THE 4TH RESPONDENT.** **EXHIBIT P4 TRUE ENGLISH TRANSLATION OF EXT.P3.** ## **RESPONDENTS' EXHIBITS:-** **R4(A): TRUE COPY OF THE BUILDING PERMIT DATED 2.7.2018 ISSUED IN FAVOUR OF THE 4TH RESPONDENT BY THE 3RD RESPONDENT.** **R4(B): TRUE COPY OF THE ORDER DATED 14-8-2018 MADE IN I.A. NO.1197 OF 2018 IN APPEAL NO.534 OF 2018 BY THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **R4(C):- TRUE COPY OF THE ORDER DATED 19.09.2018 MADE IN I.A. NO.1197 OF 2018 IN APPEAL NO.534 OF 2018 BY THE LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.** **R4(D):- TRUE COPY OFTHE POSSESSION CERTIFICATE ISSUED TO THE 5TH RSPONDENT FROM THE KURUVA VILLAGE OFFICE DATED 25-06-2018.** **R4(E):- TRUE COPY OF THE REPORT OF THE VILLAGE OFFICER, KURUVA DATED 23.07.2019 (WITH TRANSLATION)** //TRUE COPY// P.A. TO JUDGE