IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WA.No. 199 of 2010() -------------------- AGAINST THE JUDGEMENT IN WPC.27497/2009 Dated 07/01/2010 .................... APPELLANT(S): PETITIONERS ------------------------- 1. ACTION COUNCIL, CHALAKKA, REP. BY ITS CONVENER, E.K.MOHANDAS, S/O.KUTTAPPAN, IRANJITHARA, KUTHIATHODU P.O., CHALAKKA. 2. SUKUMARAN K.A., KANDANTHARA HOUSE, CHALAKKA, KUTHIATHODU P.O., ERNAKULAM. BY ADV. SMT.P.K.SANTHAMMA RESPONDENT(S): RESPONDENTS -------------------------- 1. THE KUNNUKARA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KUNNUKARA, ERNAKULAM DIST. 2. THE DISTRICT COLLECTOR, COLLECTORATE, ERNAKULAM. 3. THE SECRETARY, LOCAL SELF GOVERNMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 4. AIRCEL DISHNET WIRELESS LTD. R.R.ARCADE, GEETHANJALI BUS STOP, N.H BYE PASS, THAMMANAM VYTTILA, KOCHI - 32 REP. BY ITS MANAGER. GOVT.PLEADER SRI.BENNY GERVASIS ADV.SRI.V.G.ARUN, R4 ADV.SRI.SHANAVAS KHAN, R1. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.199 of 2010 ---------------------------------------------- Dated 4th February, 2010. J U D G M E N T Balakrishnan Nair, J. The writ petitioners are the appellants. The first appellant is an Action Council, represented by its Convenor. The second appellant is a member of that Action Council. He is also a resident of Kuthiathodu. The writ petition was filed by the appellants, challenging Ext.P5 order of the Tribunal for Local Self Government Institutions and Ext.P6 building permit issued on the strength of Ext.P5, by the first respondent Grama Panchayat. 2. The facts of the case are the following : The 4th respondent took steps to erect a telecommunication tower in Kuthiathodu, Kunnukara Grama Panchayat. Since the Panchayat refused to grant building permit, the matter was taken up before the Tribunal for Local Self Government Institutions and the Tribunal, by Ext.P5 order allowed the appeal filed by the 4th respondent and directed the Panchayat to reconsider the application of the 4th respondent, in accordance with law. Pursuant to that, the Secretary of the Grama Panchayat issued Ext.P6 building permit. On the strength of Ext.P6, the 4th respondent tried to construct the tower. The writ petition was WA NO.199/2010 2 filed, challenging Exts.P5 and P6. On 1.10.2009, this Court permitted the 4th respondent to complete the construction of the foundation. Later, by order dated 26.11.2009, this Court permitted the construction of the tower, but prohibited the energizing of the tower. It was also stated that the construction made will be at the risk of the operator and subject to the final decision in the writ petition. Again, the matter came up before the bench on 7.1.2010 and on that day, by Annexure III order, this Court permitted the 4th respondent to energize the tower, subject to the outcome of the writ petition. In the above circumstances, the Writ Appeal is filed. 3. According to the appellants, such a direction was unwarranted, based on the facts of this case. The learned counsel for the 4th respondent on the other hand submitted that the Writ Appeal is not maintainable, as it is only an ad interim order. Secondly, it is submitted that the tower has already been energized. 4. We think, in the Writ Petition filed by the appellants, the learned Single Judge ought not have issued a direction in the form of Annexure III. Though not stated in so many words, the said order will be taken as permission to the 4th respondent, for energizing the tower. The appellants sought stay WA NO.199/2010 3 of Exts.P5 and P6. The learned Judge may allow or reject that prayer. Further, we find that no reasons are stated for issuing such an order. Further, that order will remain in force till the disposal of the writ petition. The learned Judge has not examined, even assuming such an order could have been issued, whether the 4th respondent had the requisite clearances etc. from the competent authorities for energizing the tower. In view of the above position, we find it difficult to sustain Annexure III. Accordingly, it is set aside. The 4th respondent will be free to move for vacating Annexure II order, wherein there is a restriction against energizing the tower. In that event, the learned Single Judge shall consider the matter on merits and if the contention of the 4th respondent is accepted, the learned Judge may pass an order withdrawing the order prohibiting energizing the tower, but shall not pass any order, permitting energizing it. To save time, the learned Judge can consider disposing of the Writ Petition itself. The Writ Appeal is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. P.N.RAVINDRAN, JUDGE. WA NO.199/2010 4 K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ. ---------------------------------------------- W.A. No.199 of 2010 ---------------------------------------------- J U D G M E N T Dated 4th February, 2010.