IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 17968 of 2011(U) -------------------------------- PETITIONER(S): ------------------ 1. INDUS TOWERS LTD.CIRCLE OFFICE AT VANKARATH TOWERS,8TH FLOOR, NH-47,PALARIVATTOM, KOCHI-24. REPRESENTED BY ITS HEAD-LEGAL, PREMAKRISHNAN NAIR. 2. SHIBU MATHEW,S/O. MATHEW,PALATHARA HOUSE, THURUTHY.P.O., CHANGANASSERY,KOTTAYAM DISTRICT. (PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY. BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): -------------------- 1. THE S.I. OF POLICE, PONNANI, MALAPPURAM DISTRICT-679577 2. THE C.I. OF POLICE, PONNANI, MALAPPURAM DISTRICT-679577 3. THE SUPERINTENDENT OF POLICE, MALAPPURAM-676505 4. PONNANI MUNICIAPALITY, PONNANI MUNICIPAL OFFICE, PONNANI, MALAPPURAM DISTRICT-679577 REPRESENTED BY ITS MUNICIPAL SECRETARY. WP(C).No. 17968 of 2011(U) -2- 5. RANGANATHAN, S/O. ACHUTHAN, MUKOOTACKAL,EZHUVATHIRUTHY VILLAGE,PONNANI, MALAPPURAM DISTRICT-679577 6. NARAYANAN, THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 7. KUTTAN, S/O. NARAYANAN,THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 8. PRASAD, S/O. NARAYANA, THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 9. PRASAD, S/O. NANU, MARILA VALAPPIL, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 10. BABU, S/O. VASU, KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 11. SHAJI, S/O.ARUMUGHAN,KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 12. ANOOP, S/O. KUTTAAPU, KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 13. VELAYUDHAN, S/O. APPUKUTTAN, KORATTIYIL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 14. NARAYANAN, KOTTAMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 15. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001 WP(C).No. 17968 of 2011(U) -3- 16. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN 20, ASHOKA ROAD, NEW DELHI-110001. ADV. SRI.C.M.MOHAMMED IQUABAL FOR R4 SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R6 TO 13 SRI.T.RAMPRASAD UNNI FOR R6 TO 13 SMT.SMITHA GEORGE FOR R6 TO 13 GOVT. PLEADER SMT.C.M.CHARISMA SRI.P.PARAMESWARAN NAIR, ASG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17968 of 2011(U) APPENDIX PETITIONERS' EXTS EXT.P1:- COPY OF the CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P2:- COPY OF THE CERTIFICATE OF COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P3:- COPY OF THE REGISTRATION CERTIFICATE NO.177/2008 DATED 10/01/08 ISSUED BY THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS. EXT.P4:- COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P4(a):- TYPED COPY OF EXT.P4 EXT.P5:- COPY OF THE COMMUNICATION SENT BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI. EXT.P6:- COPY OF BUILDING PERMIT NO.67/11-12 DATED 25/05/11 ISSUED BY THE 4TH RESPONDENT. EXT.P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER TO THE FIRST RESPONDENT. EXT.P8:- COPY OF THE POSTAL RECEIPTS. EXT.P9:- COPY OF THE RECEIPT DATED 26/06/11 ISSUED BY THE FIRST RESPONDENT. RESPONDENTS' EXTS EXT.R9(a):- TRUE COPY OF THE MEMORANDUM SUBMITTED BY THE RESIDENTS OF THE MUKKUTTUKKAL PALAM IN 13TH WARD OF PONNANI MUNICIPALITY. EXT.R9(B):- TRUE COPY OF CIRCULAR NO.25070/R.D.2/2011/LSGD DT.16/05/11 BY THE GOVT. OF KERALA. EXT. R4(a):- THE TRUE COPY OF THE REPRESENTATION DATED 24/06/11 FILED BY THE INHABITANTS OF THE MUNICIPALITY. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. ------------------------------------------------ W. P. C. No.17968 of 2011 ------------------------------------------------ Dated this the 17th day of August, 2011 JUDGMENT Pius C. Kuriakose, J A mobile telephone service provider and their contractor for the construction of a mobile tower (Base Transceiver Station) are before this Court seeking police protection for construction of the mobile tower and for its subsequent energisation. Detailed pleadings have been raised by the parties and the stand taken by the Municipality is that they have issued a building permit in accordance with the rules after conducting necessary enquiries. In the counter affidavit filed by the party respondents 9 and 11 to 13 they have inter alia contended that an appeal has been preferred to the Municipal Council against the permit issued. It is also contended that the radiation emanated by the W. P. C. No.17968 of 2011 -2- energisation of the tower will result in serious health hazards to the neighbouring public. Sri.K.Ramakumar, senior counsel for the contesting respondents submitted before this Court that the District Collector has initiated some proceedings for holding up the permit and for preventing the construction of the tower. In view of that submission, we directed the learned Government Pleader to seek instructions from the Collector as to whether he has intervened on the basis of complaint received from the persons who are opposed to the construction. Accordingly Smt.C.M.Charisma, the learned Government Pleader submitted on 02/08/11 that the Collector received a complaint from the 6th respondent and the Collector forwarded that complaint to the 4th respondent for remarks. The learned counsel for the Municipality submitted before us today that the remarks forwarded by the Municipality to the Collector was only that this Writ W. P. C. No.17968 of 2011 -3- Petition is pending before this Court. 2. Very extensive submissions were addressed before us by the counsel for the petitioners and the counsel appearing for the various respondents including the counsel for the Municipality. The question is whether the police protection directions sought for should be granted. The construction is opposed by the opposing respondents on two grounds. 1) The issuance of the building permit has not been in accordance with law. 2) If the tower is constructed and energised the same will result in health hazards to the neighbouring public. The issue of health hazards is covered against the opposing respondents by judgment of a Division Bench of this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2), KLT 516) . As for the legality of the permit we are of the view that the statutory remedy available to persons who are challenging the said legality is W. P. C. No.17968 of 2011 -4- to prefer appeal to the Tribunal for Local Self Government Institutions. It is open to the party respondents to challenge the permit issued to the first petitioner before the Tribunal within a period of three weeks from today and obtain interim orders staying operation of the permit. If such interim orders are not obtained there is no justification for not granting permission to the petitioners to construct the tower. Under the above circumstances, this Writ Petition will stand disposed of issuing the following directions:- 1) Respondents 1 to 3 will grant adequate and effective police protection to the petitioners, their agents and workers for erecting mobile transmission tower in the property situated in Survey No.226/B of Ezhuvathiruthy village, Ponnani Taluk, Malappuram District on the basis of Ext.P6 after a period of three weeks from today on condition that in the meanwhile, the Tribunal for Local Self Government W. P. C. No.17968 of 2011 -5- Institutions has not stayed the operation of Ext.P6. We clarify that the question of energization of the tower will be decided later. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-