IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE THURSDAY, THE 21ST FEBRUARY 2008 / 2ND PHALGUNA 1929 WP(C).No. 1615 of 2008(P) ------------------------- PETITIONER: ------------ M/S.ESSAR TELECOM INFRASTRUCTURE (P)LTD, 41/256, C-19, SECOND FLOOR, MATHER SQUARE, OPP.NORTH RAILWAY STATION, COCHIN-682018 REPRESENTED BY EXECUTIVE (SITE ACQUISITION AND ADMINISTRATION) MR. RAHUL DAS. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENTS: ------------- 1. THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. KOYILANDY MUNICIPALITY, MUNICIPAL OFFICE KOYILANDY.P.O., REPRESENTED BY ITS SECRETARY. 3. SRI.P.MUTHUKRISHNAN, S/O.P.KARUNAKARAN, 'ANUPAMAM', PUTHIYATTIL HOUSE, MUTHAMBI ROAD, KOYILANDY.P.O., KOZHIKODE DISTRICT. ADDITIONAL RESPONDENTS 4. THE CIRCLE INSPECTOR OF POLICE, KOYILANDY POLICE STATION,KOYILANDY P.O, 5. THE SUB INSPECTOR OF POLICE, KOYILANDY POLICE STATION,KOYILANDY P.O. 6. SRI.T.N.AJITH KUMAR, S/O T.N.NARAYANAN,THONNAKARAPURATH HOUSE(THAYYIL) NEAR KOYILANDY RAILWAY STATION, MUTHENKI ROAD,KOYILANDY-673 305. 7. SRI.SANTHOSH,S/O DAMODARAN, NELLIKOTTUKUNNUMMAL HOUSE, KOYILANDY-673 305. (ADDL R-7 IMPLEADED AS PER ORDER DATED 8.2.2008 IN I.A.1832/2008. Additional respondents 4 to 7 impleaded as per order dtd. 8-2-08 in I.A.No.1832/08 8. MR.E.GANGADHARAN, S/O E.RAGHAVAN, GEETHANJALI, P.O.KOYILANDY,KOZHIKODE-673 305. 9. MR.T.N.AJITH KUMAR, S/O NARAYANAN, THAYYIL HOUSE,P.O.KOYILANDY,KOZHIKODE-673 305. 10. C.K.MANOJ, S/O KELAPPAN,"LAKSHMY" CHERUKUNNUMMAL HOUSE,P.O.KOYILANDY, KOZHIKODE-673 305. (ADDL. R8 TO R10 IMPLEADED SUO MOTU AS PER ORDER DATED 8.2.2008.) BY ADV. SRI.M.P.ASHOK KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 1615 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of February, 2008 JUDGMENT Heard Sri.Santhosh Mathew, counsel for the petitioner and Sri.M.P.Ashok Kumar, counsel for the party respondent. There is no appearance for the second respondent Municipality, though they have been served with notice. Even though the very maintainability of the writ petition challenging a interim order passed by the Ombudsman for Local Self Government Institutions was seriously questioned by Sri.Ashok Kumar, I feel that since Ext.P4 visiting the petitioner with civil consequences has been passed in a proceedings to which the petitioner was not a party and since I find merit in the case of the petitioner that Ext.P4 was outside the jurisdictional competence of the Ombudsman, I am of the view that the Secretary of the Corporation can be directed to take a fresh decision in the issue covered by Ext.P2 order with notice to the petitioner and the party respondent. WPC.No.1615/08 2 Under these circumstances, I set aside Ext.P2 and direct the Secretary of the Municipality to take a fresh decision regarding as to whether the construction of the tower which is permitted under Ext.P1 should be continued. While taking decision, the secretary of Municipality will not be unduly influenced by Ext.P4 order and the decision will be taken on the basis of the arguments addressed and binding judicial precedents cited. The petitioner and the party respondent are permitted to raise all grounds available to them during hearing. Hearing will be conducted and orders as directed above shall be passed by the Secretary at the earliest and at any rate within three weeks of receiving a copy of this judgment. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.1615/08 2