IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 19TH NOVEMBER 2008 / 28TH KARTHIKA 1930 Crl.MC.No. 1185 of 2008() ----------------------------------- ORDER OF THE REVENUE DIVISIONAL OFFICER, KOZHIKODE IN PROCEEDINGS NO.A.5844/2007 DATED 24/01/2008. ............................... PETITIONER/ACCUSED -------------------------------- M/S.ESSAR TELECOM INFRASTRUCTURE (P) LTD., 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, COCHIN-682 017, REPRESENTED BY ASSISTANT MANAGER (SITE ACQUISITIONS & ADMINISTRATION) MR.RAHUL DAS. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENTS/STATE AND COMPLAINANT -------------------------------------------------------------- 1. THE REVENUE DIVISIONAL OFFICER, KOZHIKODE. 2. THE VILLAGE OFFICER, VILLAGE OFFICE, UNNIKKULAM. 3. UNNIKULAM GRAMA PANCHAYAT, EKAROOL P.O., KOZHIKODE DISTRICT, REPRESENTED BY ITS SECRETARY. 4. SMT.PADMINI, MUPPATTAKKUNNUMMEL HOUSE, EKAROOL P.O., UNNIKKULAM, KOZHIKODE. PUBLIC PROSECUTOR SRI.S.U.NAZAR FOR R1, R2 ADV. SRI.V.V.SURESH FOR R4 ADV. SRI.P.SHRIHARI FOR R3 ADV. SMT.P.VANI FOR R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 19/11/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Rs/ R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1185 of 2008 ------------------------------------------------- Dated this the 19th day of November, 2008 ORDER The petitioner is aggrieved by Annexure-8 order passed by the 1st respondent. Annexure-8 order, it appears, is passed by the Revenue Divisional Officer. Reckoning the same as a conditional order under Sec.133 Cr.P.C., this Crl.M.C. has been initiated. 2. Annexure-8 order reveals that the 4th respondent herein had filed an application complaining about a construction which was undertaken by the petitioner herein for setting up a mobile telephone tower near the house of the 4th respondent. On the complaint of the 4th respondent, the 1st respondent i.e., the Revenue Divisional Crl.M.C. No. 1185 of 2008 -: 2 :- Officer, Kozhikode, appears to have entertained the satisfaction that the house of the 4th respondent is facing danger and insecurity. Accordingly, it was directed that the constructions of the tower may be shifted to an alternate site such that danger to the house of the 4th respondent is abated. 3. The learned counsel for the petitioner submits that the impugned order cannot be reckoned as a valid order under Chapter XB Cr.P.C. It cannot be reckoned as a conditional order under Sec.133 Cr.P.C. inasmuch as the essential requisites of such an order under Sec.133 Cr.P.C. is not satisfied. Since no proceedings under Chapter XB (Sec.133 Cr.P.C.) is initiated, the impugned order cannot also be reckoned as an interim order passed under Sec.142 Cr.P.C. also. In these circumstances, the proceedings are liable to be quashed. The learned counsel for the petitioner submits that in fact, it is not the Executive Magistrate who has initiated the proceedings under Annexure-8 and it is only the R.D.O. who has initiated the proceedings. It is not possible to discern from Annexure-8 whether the order is Crl.M.C. No. 1185 of 2008 -: 3 :- passed invoking the powers under Chapter XB Cr.P.C. In these circumstances, the impugned order may be set aside. It may be clarified that it is not an order passed under Sec.133 Cr.P.C. and the petitioner is not liable to face any consequences reckoning Annexure-8 is an order under Sec.133 Cr.P.C. 4. The 3rd respondent is the local authority i.e., Unnikulam Grama Panchayat. The Panchayat had issued the requisite sanction (Annexure- 1) to the petitioner to undertake the construction in question. The 3rd respondent stands by Annexure-1 sanction given for construction and virtually supports the prayer of the petitioner. 5. The learned Public Prosecutor on behalf of respondents 1 and 2 submits that the impugned order cannot validly be supported as an order passed under Chapter XB (Sec.133 Cr.P.C.). The learned Public Prosecutor accepts that the same shall not be executed as though it is a conditional order under Sec.133 Cr.P.C. or an interim order under Sec.142 Cr.P.C. But the learned Public Crl.M.C. No. 1185 of 2008 -: 4 :- Prosecutor submits, and the 4th respondent supports that submission, that the S.D.M. may be given an option to take appropriate action, if necessary, under Chapter XB on the basis of the petition of the 4th respondent. 6. I am satisfied that the impugned order – Annexure-8 cannot in law be supported as either a conditional order under Sec.133 Cr.P.C. or an interim order under Sec.142 Cr.P.C. In these circumstances, Annexure-8 order deserves to be set aside. The prayer of the Public Prosecutor can be accepted. 7. The learned counsel for the petitioner submits that the question of nuisance emanating from installation of a telecommunication tower for mobile phone communications has already been considered by a Division Bench of this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat (2006 (4) KLT 695). The learned counsel hence contends that the SDM is not competent to take any action under Chapter XB. I am not going into that question in detail as the allegations made in the complaint by the 4th respondent covers areas uncovered by the decision in Crl.M.C. No. 1185 of 2008 -: 5 :- Reliance Infocom Ltd. 8. I the result: (a) This Crl.M.C. is allowed. (b) Annexure-8 order is set aside. (c) It is made clear that the setting aside of Annexure- 8 order will not in any way fetter the right of the SDM to initiate fresh proceedings under Chapter XB (Sec.133 Cr.P.C.) in accordance with law if there are legal grounds to initiate such proceedings. It is also made clear that the petitioner's right to challenge any such proceedings initiated under Chapter XB will not also be fettered by any observations in this order. Sd/- (R. BASANT, JUDGE) Nan/ //true copy// P.S. to Judge Crl.M.C. No. 1185 of 2008 -: 6 :- R. BASANT, J. ------------------------------------------------- Crl.M.C. No. 1185 of 2008 ------------------------------------------------- Dated this the 21st day of May, 2008 ORDER After discussions at the Bar, it is agreed that there can be a direction that status quo as on today shall be maintained and no further constructions shall be undertaken by the petitioners in the property in question. It is submitted by the petitioners that the construction of the tower is complete and the respondent insists that there may be a direction that no further constructions are undertaken. Directions to that effect are issued. Call this petition in the usual course. (R. BASANT, JUDGE) Nan/ Crl.M.C. No. 1185 of 2008 -: 7 :-