IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 23RD JANUARY 2008 / 3RD MAGHA 1929 WP(C).No. 2029 of 2008(N) ------------------------- PETITIONER: ------------ IDEA CELLULAR LIMITED LTD., MERCY ESTATE, M.G.ROAD, RAVIPURAM, ERNAKULAM. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: ------------- 1. STATE OF KERALA, REP. BY SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR, ERNAKULAM, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.V.M.KURIAN, SC, PERUMBAVOOR MUNICIPALITY. SHRI.K.J.MOHAMMED ANZAR, GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) No. 2029/2008 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE AGREEMENT BETWEEN PETITIONER AND 2ND RESPONDENT DATED 03/06/99. P2 : COPY OF THE STATEMENT OF ACCOUNTS. P3 : COPY OF THE ORDER OF 2ND RESPONDENT ENHANCING DEPOSIT AND LEASE AMOUNT DATED 28/09/2006. P4 : COPY OF INTERIM ORDER IN IA NO.613/2006 IN APPEAL NO.425/2006 DATED 13/11/2006. P5 : COPY OF ORDER OF TRIBUNAL DATED 22/12/2006. P6 : COPY OF THE MINUTES DATED 13/09/2007. P7 : COPY OF LETTER CUM NOTICE DATED 20/07/2007 ISSUED BY 2ND RESPONDENT. P8 : COPY OF THE ORDER OF TRIBUNAL IN APPEAL NO.451/2007 DATED 07/12/2007. P9 : COPY OF LETTER ISSUED BY PARUR MUNICIPALITY DATED 29/03/2004. // TRUE COPY // PA TO JUDGE. jg PIUS C.KURIAKOSE, J. ------------------------- W.P.(C) No. 2029 of 2008 --------------------------------- Dated, this the 23rd day of January, 2008 J U D G M E N T The petitioner company, which provides mobile telephone services, is aggrieved by the enhancement of lease amount / licence fee payable by the company to the Perumbavoor Municipality, the 2nd respondent herein. The petitioner submits that they have taken on lease / license a space of approximately 250 sq. feet and erected a telecommunication tower of about 25 meters height in Perumbavoor belonging to the 2nd respondent Municipality. Together with that petitioner has also taken on lease, a room of approximately 175 sq. feet for accommodating its equipments. This room is on the roof top of a godown-cum-canteen complex belonging to the Municipality. Apart from that, 250 sq. feet of open space on the ground floor also has been provided by the Municipality to the petitioner for installation of a generator. Ext.P1 is the agreement. Under Ext.P1, which was for a period of three years from 03/06/1999, petitioner had to deposit a sum of rupees one lakh as security deposit and to pay every month a sum of Rs.3,375/-. On expiry of three years period the agreement was extended for a period of another three years and the petitioner has WP(C) No. 2029/2008 -2- been making monthly payments @ Rs.3,713/-. Upon expiry of that period, petitioner requested the Municipality for renewal of agreement for another three years period from 02/06/2005. Petitioner’s grievance is that under Ext.P3 order, the Municipality has enhanced the rent from Rs.3,375 to Rs.20,000/- and the security amount from Rs.1 lakh to Rs.5 lakhs. Against Ext.P3, petitioner approached the Tribunal for Local Self Government Institutions. The Tribunal passed Ext.P4 order of stay on condition that the petitioner pays a sum of Rs.2,00,000/-. Petitioner complied with the order and made the payment. Thereafter, the appeal was disposed of setting aside Ext.P3 and directing the Municipality to pass fresh orders. Ext.P5 is the judgment in appeal. Pursuant to Ext.P5 Municipality decided that there is no necessity to change the rates fixed under Ext.P3. Ext.P6 is copy of the minutes. According to the petitioner, it was an eye-wash of a personal hearing, which was given to the petitioner by the Municipality before issuing Ext.P6. Against Ext.P7, the petitioner approached the Tribunal but the Tribunal this time has passed Ext.P8 order dismissing the appeal and declined to interfere with the decision of Municipality. The petitioner submits that the very same Municipality WP(C) No. 2029/2008 -3- has leased out several premises at much lower rates and is demanding unreasonable hike in the rent and security deposits from the petitioner without any justifiable reason. It is also pointed out that other local authorities in the District like Paravur Municipality is claiming only reasonable hikes. The petitioner has relied on Ext.P9 to show that the Paravur Municipality is demanding only 5% increase for renewal. 2. The 2nd respondent Municipality has filed a detailed counter statement, wherein it is contended that the Council was of the view that the fee and security deposit are insignificant in view of the all round increase including cost of land. There was manifold increase in the business of the petitioner which was achieved making use of the tower erected in the property of the Municipality. It is pointed out that the building at which the tower is erected is situated in the most important locality in highest point in the Perumbavoor Municipal Town. This place is best suited for erecting telecommunication tower and maximum coverage is available. The counter also points out that the petitioner has no right to continue after the expiry of the period. Petitioner is continuing illegally. It is also pointed out that the petitioner has no case of inability to pay. WP(C) No. 2029/2008 -4- The Municipality on the other hand is in need of funds for running the establishments and to maintain essential civil services like water supply, public streets, street lights etc. 3. I have heard the submissions of Shri.P.Sanjay, learned counsel for the petitioner and Shri.V.M.Kurian, learned standing counsel for the Perumbavoor Municipality. 4. Shri.Sanjay and Shri. Kurian addressed the arguments on the basis of the contentions raised by their respective parties. Though Mr.Kurian’s argument that there is no warrant for exercising the judicial powers to review the order passed by the Tribunal, whether it be under Article 226 or under the Supervisory Jurisdiction Article 227, cannot be said to be without any force, I find that there is an arbitration clause in the agreement between the parties. Therefore, I dispose of the writ petition issuing the following directions. The petitioner is directed to invoke the arbitration clause in the agreement and shall do whatever necessary to have the issue resolved through arbitration. Proceedings will be initiated within three weeks of the petitioner receiving copy of this judgment. The Arbitrator appointed will pass his award within a period of two months of entering on reference. WP(C) No. 2029/2008 -5- In the meanwhile all coercive action for enforcing the enhancement made by the Municipality pursuant to Exts.P6 & P8 will be kept in abeyance for a period of four months on condition that the petitioner pays the Municipality w.e.f. June 2005 lease rent / license fees @ Rs.7,400/- per month. This arrangement will be subject to the award to be passed by the Arbitrator in the prospective arbitration proceedings. (PIUS C.KURIAKOSE, JUDGE) jg