ASHOKAN Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioners, who claim to be residents of Ward No.17 of Kodassery Panchayat, have approached this Court being aggrieved by the proposal of respondents 5 and 6 to construct a telecommunication tower in Sy.No.22/1 in Elinjipra Village. According to the petitioners, the construction is sought to be made in a property that is retained as a Panchayat Puramboke.

(2.) The petitioners initially preferred a complaint before the District Collector on 14/3/2019 which is produced as Ext.P3. Thereafter, on coming to know that respondents 5 and 6 have been issued a building permit for the construction of the mobile tower, they preferred Ext.P4 appeal before the Panchayat Committee on 24/4/2019. On 1/7/2019, the Secretary of the Panchayat issued Ext.P5 order directing respondents 5 and 6 to stop further construction based on the building permit granted to them. The order Ext.P5 was taken up in appeal before the Tribunal for Local Self Government Institutions, Thiruvananthapuram by the 6th respondent and by Ext.P7 order, the appeal was allowed setting aside Ext.P5 order as well as the decision dtd. 10/6/2019 of the Panchayat Committee. The Tribunal allowed the 6th respondent to carry out the construction of the telecommunication tower based on the permit issued in their favour on 14/2/2019. The petitioners have challenged Ext.P7 order of the Tribunal in this writ petition. The main contention raised by the petitioners is that there was a Panchayat well situated in the property which had been closed pursuant to Ext.P1 decision taken by the Panchayat on 24/9/1994. It is submitted that in Ext.P1 it was decided to retain the area where the well was situated, as 'Panchayat puramboke'. According to the petitioners, the 5th respondent had annexed the above property as his own and it is in the said property that the mobile tower is being constructed. The petitioners further submitted that the fact that there is a Panchayat well is also clear from Ext.P2 document dtd. 15/5/2009 which shows the northern boundary as Panchayat well.

(3.) The 6th respondent has filed a counter-affidavit. The contentions of the petitioners that there has been trespass into the Panchayat Puramboke and that construction is being carried out in the trespassed area is denied. It is pointed out that there is nothing on record to show that the property covered by Ext.P1 is the very same property where the 6th respondent intends to construct the mobile tower. It is further submitted that the 4th respondent has issued the building permit after inspecting the site and has not noticed any community well or any encroachment by the 6th respondent or the 5th respondent into Panchayat property. The 6th respondent submits that the petitioners have not proved the existence of the well in the property chosen for the erection of the tower. It is further submitted that the area where the tower is sought to be put up is part of a larger extent of land in the lawful possession of the 5th respondent. The 6th respondent has also produced the minutes of the District Telecom Committee (DTC) dtd. 22/2/2022 whereby the DTC has dismissed the complaint filed by the petitioners.