IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 37722 of 2007(N) -------------------------- PETITIONER: ------------ ROYCE GEORGE,AGED 40 YEARS, S/O.LATE VARGHESE,PERUNNAPPALLIL HOUSE, KANJIYAR P.O,AYYAPPANKOVIL VILLAGE,UDUMBANCHOLA TALUK,IDUKKI DISTRICT. BY ADV. SRI.GEORGE MATHEW SRI.SUNIL KUMAR A.G RESPONDENTS: ------------- 1. STATE OF KERALA REP.BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT.SECRETARIAT,THIRUVANANTHAPURAM. 2. THE KANJIYAR GRAMA PANCHAYATH, KANJIYAR P.O,IDUKKI DISTRICT,REPRESENTED BY ITS SECRETARY. 3. ST.MARYS CHURCH,KANJIYAR,IDUKKI DISTRICT REPRESENTED BY ITS VICAR. 4. IDEAL MOBILE COMMUNICATION LTD, MERCY ESTATE,RAVIPURAM,KOCHI, REPRESENTED BY ITS MANAGER. BY G.P. SRI.K.J.MUHAMMED ANZAR BY ADV. SRI.SANTHOSH MATHEW (R4) SRI.SATHISH NINAN SRI.K.JAJU BABU (R2) SRI.T.S.SHYAM PRASANTH THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS C. KURIAKOSE, J. ---------------------------------- W.P.(C) NO. 37722 of 2007 ---------------------------------- Dated this the 16th day of January , 2008 JUDGMENT The petitioner is aggrieved by the construction of a mobile telephone tower by the 4th respondent company and has filed this writ petition inter alia seeking a direction to implement Ext.P4 stop memo issued by the Panchayat to the 4th respondent. Other reliefs sought for are a direction to the 2nd respondent Panchayat to hear the petitioner also before permission is granted to the 4th respondent for errecting the tower. The 3rd and the final relief sought for in the writ petition is a declaration that construction of the telecommunication tower by the 4th respondent on the property of the 3rd respondent is unauthorised. First relief cannot be granted now since Ext.R2(a) order has been issued by the Panchayat vacating the stop memo after considering the reply submitted by the 4th respondent company to Ext.P4. 2. It is submitted by Sri. George Mathew, the learned counsel for the petitioner that against Ext.R2(a), an appeal has already been preferred by the petitioner before the Council of the Panchayat and that the Council of the Panchayat may be directed to take up that WPC No.37722/2007 2 appeal and dispose of the appeal in accordance with law after hearing the petitioner as well as a representative of the 4th respondent company. The petitioner has taken strong exception to Ext. R4(1) building permit, which is issued to the 4th respondent. It will be immediately stated that in the teeth of Ext.R4 building permit, releif No.'2' sought for also cannot be granted. 2. The learned counsel for the petitioner would draw my attention to the provisions of the KMBR and submit that Ext.R4(1) has been issued in gross violation of the Building Rules. According to him, tower is constructed on the roof top of a building and the door number of the building on the roof top of which tower is constructed is not shown in the building permit. 3. The petitioner has statutory remedy before the Tribunal for Local Self Government Institutions, which has got every power to hold necessary enquiries into the matter and take a correct decision. Hence I relegate the petitioner to his remedy against Ext.R4(1) before the Tribunal for local Self Government Institutions. If the Tribunal receives an appeal from the petitioner against Ext.R4(1) within three weeks from today, the Tribunal will entertain that appeal notwithstanding delay, if any, and dispose of that appeal in accordance with law, after hearing the petitioner as well as a WPC No.37722/2007 3 representative of the the respondent company, and after calling for remarks from the Panchayat. It is open to the petitioner to raise grounds pertaining to the structural stability of the building before the Tribunal and the Tribunal will decide all the grounds which are raised in the prospective appeal. Since the permit has already been issued to the company on the basis of the revised plan submitted by the company and since the construction of the tower is completed on the strength of an interim order passed by this court, I do not find any reason as to why the the respondent company should not be permitted to energize the tower. Of course, the learned counsel for the petitioner submitted that if energisation of the tower is permitted, the vibration which would be caused will be of such a magnitude and momentum that the building, on the top of which the tower is installed, stands a great risk of collapsing. Notwithstanding the above submission, I am of the view that the 4th respondent company can be permitted to enrgise the tower at its risk. The company is reminded that the liability in the event of any damages or loss caused on account of the enrgization of the tower will be unlimited. The writ petition will stand disposed of permitting the 4th respondent company to energise the tower already constructed subject to the decision taken by the Council of the Panchayat on the WPC No.37722/2007 4 appeal already preferred by the petitioner against Ext.R2(a) and the decision of the Tribunal in the prospective appeal to be filed against Ext.R4(1). PIUS C. KURIAKOSE, JUDGE. dpk