Disposed

M/S.Indus Tower Limitedq v. State of Kerala

Kerala HC1 Jul 2020Crl.MC/167/2014

Case brief

AI extract

What is this about?

The Kerala High Court disposed of a criminal miscellaneous petition by directing the Sub Divisional Magistrate to provide an opportunity to the petitioner mobile company to file an objection and appear for hearing regarding an interim order restraining tower construction, ensuring a fair chance to be heard before final adjudication under Section 133 Cr.P.C.

What did the court decide?

Permitted the petitioner to file a statement of objection and participate in the proceedings before the Sub Divisional Magistrate regarding the interim order.

M/S.Indus Tower Limitedq Vs State of Kerala — Service and Employment | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

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WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942

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Crl.MC.No.167 OF 2014

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ORDER BEARING NO.A3-10260/2013 DATED 13.12.2013 ISSUED BY THE SUB DIVISIONAL MAGISTRATE, MUVATTUPUZHA

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PETITIONER:

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M/S.INDUS TOWER LIMITED HAVING ITS REGISTERED OFFICE AT 'BHARTI CRESCENT', 1, NELSON MANDELA ROAD, VASANT KUNJ, PHASE II, NEW DELHI-110070, HAVING ITS KERALA CIRCLE OFFICE AT 'VANKARATH TOWER', 8TH FLOOR, N.H.BYE PASS, PALARIVATTOM, KOCHI-682024, REPRESENTED BY ITS AUTHORISED SIGNATORY, PREMAKRISHNAN NAIR.

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BY ADVS. SRI.P.JAYABAL MENON SRI.JAGAN GEORGE

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RESPONDENTS:

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1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2 SUB DIVISIONAL MAGISTRATE MUVATTUPUZHA.

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3 VILLAGE OFFICER AIKARANADU NORTH VILLAGE, KUNATHUNADU TALUK, ERNAKULAM DISTRICT.

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4 K.M.ELDHO KIZHAKKE AKATHOOT, KADAYIRIPPU, AIKARANADU NORTH VILLAGE, KUNATHUNADU TALUK, ERNAKULAM DISTRICT.

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Crl.M.C.No.167 of 2014

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5 BENNY NJATTUMKALAYIL, AIKARANADU NORTH VILLAGE, KUNATHUNADU TALUK, ERNAKULAM DISTRICT.

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*** 6 BIJU V.A. AGED 36 YEARS, S/O.ALIAS, VETTIKUZHA, KADAYIRIPPU, KOLENCHERRY, ERNAKULAM DISTRICT-682311.**

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*** IS IMPLEADED AS ADDL.R6 AS PER ORDER DTD.2/2/15 IN CRL.MA.6558/14 IN CRL.M.C.167/14.**

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BY ADV. SRI.C.ANILKUMAR KALLESSERIL BY ADV.SRI. BINEESH.E.C. (P.P)

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18-06-2020, THE COURT ON 01-07-2020 PASSED THE FOLLOWING:

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Crl.M.C.No.167 of 2014

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Dated this the 1^st day of July, 2020

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O R D E R

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Petitioner is a mobile company named M/s.Indus

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Tower Ltd. It is aggrieved by Annexure A2

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conditional order dated 13.12.2013 passed by the

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Sub Divisional Magistrate, Moovattupuzha, restraining construction of mobile tower in the property of 4^th respondent.

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The Mobile tower is currently functioning in a property belonging to one Kuriakose which neighbours the property of the 4^th respondent. Petitioner after obtaining Annexure A1 building permit from Aikaranad grama panchayat, proposed to shift the mobile tower to the property of the 4^th respondent which was protested by the local

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inhabitants by way of a mass petition filed before the Sub Divisional Magistrate, Moovattupuzha. On the strength of the complaint, a report was called

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Crl.M.C.No.167 of 2014

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for from the local Village Officer, who agreeing with the sentiments expressed by the local inhabitants reported that mobile tower, if shifted to the property of the 4^th respondent, will create serious health issues to persons living in the neighbourhood. Being impressed by this report, impugned Annexure A2 conditional order was passed by the learned Magistrate invoking Section 133 of Cr.P.C.

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The contention of the petitioner in this proceeding filed under Section 482 of Cr.P.C. is that the order which directly affected petitioner's interest was passed without notice to or hearing it. Further, the proposed construction is said to be pursuant to a valid building permit obtained from the local grama panchayat and therefore the apprehension of health issues expressed by the complaint holder is without any basis. It is also contended that the grievance ventilated before the

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Crl.M.C.No.167 of 2014

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Sub Divisional Magistrate is not a subject which could have been taken cognizance of under Section 133 of the Cr.P.C. and the conditional order passed therefore is in violation of law.

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Either of the parties was not represented

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before this Court when the matter was taken up. On the facts set out, I am satisfied that the petitioner being directly affected by Annexure A2 order, it was entitled to have been heard in the matter before an order prohibiting construction of tower was issued. But as a matter of law, Section 133 or provisions in Chapter IX B of the Cr.P.C. do not make room for an affected person to come on record in a proceeding before the Sub Divisional Magistrate on his own motion. Therefore itself, the

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remedy exercised by the petitioner invoking Section 482 of Cr.P.C. cannot be said to be misplaced.

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After having gone through the materials on record, I am of the opinion that the petitioner

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Crl.M.C.No.167 of 2014

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shall be given an opportunity to participate in the

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proceeding (A3-10260/13) on the file of Sub

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Divisional Magistrate, Moovattupuzha, and advance its contentions showing cause against impugned Annexure A2 conditional order. The petitioner shall be entitled to file a statement of objection before the learned Magistrate and pursue its contentions.

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I am of the opinion that by extending such an opportunity to the petitioner, no prejudice is going to be caused to the complaint holder or anybody affected by the proposed construction of mobile tower in the property of the 4^th respondent.

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In the result, this Crl.M.C. is disposed of permitting the petitioner company to submit its

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statement of objection in A3-10260/13 proceeding on

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the file of Sub Divisional Magistrate, Moovattupuzha, showing cause against the

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conditional order aforesaid. If such a statement of objection is filed, the learned Sub Divisional

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Crl.M.C.No.167 of 2014

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Magistrate shall hear the parties before him in the proceeding including the petitioner and decide the issue after recording evidence as in a summons case as required by Section 138 of the Cr.P.C. The

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learned Magistrate will also consider the question as to whether the issue raised before him is a matter which could be taken up and decided in exercise of power conferred under Section 133 of the Cr.P.C. Needless to say that in case the issue has already come to an end and does not survive or has become infructuous in any manner, the learned Sub Divisional Magistrate may close the matter accordingly.

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All pending interlocutory applications are

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closed.

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Sd/-

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T.V.ANILKUMAR JUDGE

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ami/

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Crl.M.C.No.167 of 2014

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PETITIONER'S EXHIBITS :

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ANNEXURE A1 : TRUE COPY OF THE BUILDING PERMIT BEARING NO.14/2013 DATED 31.8.2013 ISSUED BY

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SECERTARY, AIKARANADU GRAMA PANCHAYATH.

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ANNEXURE A2 : TRUE COPY OF THE INTERIM PROHIBITORY ORDER ISSUED BY THE 2ND RESPONDENT BEARING NO.A3-

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10260/2013 DATED 13.12.2013.

M/S.Indus Tower Limitedq v. State of Kerala

Case brief

What is this about?

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M/S.Indus Tower Limitedq v. State of Kerala

Case brief

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