INDUS TOWER LIMITED Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioner is a mobile company named M/s.Indus Tower Ltd. It is aggrieved by Annexure A2 conditional order dated 13.12.2013 passed by the Sub Divisional Magistrate, Moovattupuzha, restraining construction of mobile tower in the property of 4th respondent.

(2.) The Mobile tower is currently functioning in a property belonging to one Kuriakose which neighbours the property of the 4th respondent. Petitioner after obtaining Annexure A1 building permit from Aikaranad grama panchayat, proposed to shift the mobile tower to the property of the 4th respondent which was protested by the local inhabitants by way of a mass petition filed before the Sub Divisional Magistrate, Moovattupuzha. On the strength of the complaint, a report was called 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 4th 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.

(3.) 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 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.