IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 RP.No. 371 of 2011 -------------------- AGAINST THE JUDGEMENT IN WPC.24384/2009 Dated 11/03/2011 .................... REVIEW PETITIONER/PETITIONER: -------------------------------------------------- M/S. ATC (AMERICAN TOWER CORPORATION),TELECOM TOWER CORPORATION (P) LTD. (FORMERLY KNOWN AS M./S. ESSAR TELECOM INFRASTRUCTURE (P) LTD,36/2624,FIRST FLOOR, CHERAMANGALATHU HOUSE, SHENOEY ROAD, COCHIN-682017,REP.BY DEPUTY MANAGER (LEGAL) MR.BABU PATTATHANAM BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S)/RESPONDENTS: ----------------------------------------------- 1. THE CIRCLE INSPECTOR OF POLICE, ANGAMALI POLICE STATION, ANGAMALY P.O. ERNAKULAM DISTRICT - 683 572. 2. THE SUB INSPECTOR OF POLICE, CHENGAMANAD POLICE STATION, CHENGAMANAD P.O., ERNAKULAM DIST - 683 578. 3. MR.THASIM, S/O.ABU,. VALLINALIL HOUSE, CHENGAMANAD P.O., ERNAKULAM DISTRICT,PIN-683578 * 4. MR.HAMSA, S/O.KOCHALI, KALLINAL HOUSE, CHENGAMANAD P.O.,ERNAKULAM DIST,PIN-683 578 5. MR.KHALID, S/O.NETHIN PILLA, KALLINAL HOUSE CHENGAMANAD P.O.,ERNAKULAM DIST,PIN-683 578 R.P.NO.371 OF 2011 6. MR.KARIM, S/O.HYDROSE, KALLINALIL HOUSE, CHENGAMANAD P.O.,ERNAKULAM DIST,PIN-683 578 7. CHENGAMANAD GRAMA PANCHAYAT, CHENGAMANAD P.O., ERNAKULAM DIST - 683 578, REP.BY ITS SECRETARY. R1 & R2 BY GOVERNMENT PLEADER SHRI R. GITHESH. R3, R5 & R6 BY ADV. SHRI P. CHANDRASEKHAR. (THE FOURTH RESPONDENT IS DELETED FROM THE PARTY ARRAY AS PER ORDER ON I.A.NO.583 OF 2011 DATED 27.09.2011). THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX IN RP. NO.371 OF 2011 REVIEW PETITIONER'S EXHIBITS: ANNEXURE I PHOTO COPY OF THE NAME CHANGE CERTIFICATE DATED 3.1.2011 ISSUED TO THE PETITIONER. ANNEXURE II PHOTOCOPY OF THE STOP MEMO DATED 14.9.2009 ISSUED BY THE 7TH RESPONDENT. ANNEXURE III PHOTOCOPY OF THE STAY ORDER IN I.A.1046/2009 IN APPEAL NO.786/2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ANNEXURE IV PHOTOCOPY OF THE FINAL ORDER IN APPEAL NO.786/2009 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. ANNEXURE V PHOTOCOPY OF THE REQUEST DATED 13.11.2009 SUBMITTED BY THE PETITIONER BEFORE 7TH RESPONDENT. ANNEXURE VI PHOTOCOPY OF THE REGULARISATION ORDER DATED 8.3.2010 PASSED BY THE 7TH RESPONDENT. ANNEXURE VII PHOTOCOPY OF THE JUDGMENT IN W.P.(C).NO.27789/2009 OF THIS HONOURABLE COURT. ANNEXURE VIII PHOTOCOPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 7TH RESPONDENT PANCHAYAT UNDER RTI ACT. ANNEXURE IX TRUE COPY OF THE REPLY DATED 20.9.2011 RECEIVED BY THE PETITIONER FROM THE RESPONDENT PANCHAYAT. RESPONDENTS' EXHIBITS: NIL. // TRUE COPY// PS TO JUDGE K.M. JOSEPH & M. C. HARI RANI, JJ. ----------------------------------------- R.P.NO.371 OF 2011 IN W.P.(C).NO. 24384 OF 2009 P ------------------------------------------ Dated this the 27th September, 2011 ORDER K.M. Joseph, J. I.A. Nos. 582 & 583 of 2011 are allowed. 2. The Review Petition is filed by the writ petitioner seeking police protection in connection with construction of mobile tower. The Writ Petition was dismissed on the basis of the reasoning contained in paragraph 96 of the Judgment, which reads as follows: “96. In W.P.(C).No.24384/2009, as already noticed, there is a case for the respondents that there was no inspection done and even proceeding on the basis that site approval is there, in terms of Rule 141 (1), (4) and (8) before the Permit was granted, as contended by Shri Santhosh Mathew, there was no site inspection. In this context, we notice that Ext.P2 Permit is granted under Rule 11(3) of the Building Rules. In view of the specific pleading in the Counter Affidavit that there was no inspection which is not denied, we are inclined to decline jurisdiction.” R.P.NO.371 OF 2011 2 3. The complaint in the Review Petition, however, is that there was site inspection as evident from Ext.P16. It is further contended that in fact the seventh respondent has granted regularisation also after conducting site inspection. 4. We heard the learned counsel for respondents 3, 5 and 6 besides the learned Government Pleader. We would think that in the light of the developments which are placed before us, the matter may have to be considered. Accordingly, we allow the Review Petition and set aside the Judgment in respect of W.P.(C). No.24384 of 2009 filed by the review petitioner and restore the Writ Petition. We direct that the Writ Petition be posted before the appropriate Court for hearing. Sd/= K. M. JOSEPH, JUDGE Sd/= M. C. HARI RANI, kbk. JUDGE //True Copy// PS to Judge. R.P.NO.371 OF 2011 3