IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 WP(C).No. 8980 of 2011(V) ------------------------------ PETITIONER(S): ----------------- INDUS TOWERS LIMITED, VANKARATH TOWER, 8TH FLOOR, N.H.BYEPASS, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS DULY AUTHORIZED REPRESENTATIVE, PREMAKRISHNAN NAIR.M.N, HEAD LEGAL. BY ADV. SRI.P.SATHISAN RESPONDENT(S): ------------------- 1. THE SUPERINTENDENT OF POLICE, KOZHIKODE DIST.-673 001. 2. STATION HOUSE OFFICER, BALUSSERY POLICE STATION, KOZHIKODE-673 001. 3. SURESH, S/O.KUTTIKRISHNAN, PULIKKOOR, IYYAD, UNNIKULAM, ARYAMBRAM, KOZHIKODE-673 587. 4. JANARDHANAN, S/O.CHANDUKUNJA, PULIKKOOR, IYYAD, UNNIKULAM, ARYAMBRAM, KOZHIKODE-673 587. 5. ACHUTHAN, MOTHALAANGODU HOUSE, IYYAD, UNNIKULAM, VARYAMBRAM, KOZHIKODE-673 587. WP(C).No. 8980 of 2011(V) -2- 6. GINITHLAL, S/O.SREEDHARAN, NELLIKUNNUMMEL, PANNIKOTTUR, NARIKUNI, KOZHIKODE-673 587. 7. RANJITHLAL, S/O.SREEDHARAN, NELLIKUNNUMMEL, PANNIKOTTUR, NARIKUNI, KOZHIKODE-673 587. 8. PRAKASAN, KARAKUNNUMMEL, PANNIKETTOOR, NARIKUNI, KOZHIKODE-673 587. 9. SANTHOSH, NADURAKANDI IYYAD, UNNIKULAM, VARYAMBRAM, KOZHIKODE-673 587. 10. BALAN, S/O.RAMAN NAIR, NADURAKANDI IYYAD, UNNIKULAM, VARYAMBRAM, KOZHIKODE-673 587. 11. UNNIKULAM GRAMA PANCHAYATH, REP. BY ITS SECRETARY, KOILANDY TALUK, KOZHIKODE DIST-673 305. ADV. SRI.BABU S. NAIR FOR R3 TO 10 SRI.K.RAKESH FOR R3 TO 10 SRI.R.SUDHISH FOR R11 SMT.M.MANJU FOR R11 SRI.K.R.RANJITH FOR R11 GOVT. PLEADER SMT.C.M.CHARISMA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/08/2011, A/W LAA.10737/11 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 8980 of 2011(V) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE REGISTRATION CERTIFICATE FOR INFRASTRUCTURE PROVIDER CATEGORY-I (IP-I) EXT.P1(a):- TRUE COPY OF THE CERTIFICATE ISSUED BY GOVT. OF INDIA WITH RESPECT TO THE NAME CHANGE. EXT.P1(b) :- TRUE COPY OF THE LICENSE ISSUED BY CENTRAL GOVT. TO ONE OF THE SERVICE PROVIDERS EXT.P2:- TRUE COPY OF THE BUILDING PERMIT ISSUED BY 11TH RESPONDENT TO THE PETITIONER DATED 04/10/10. EXT.P3:- TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT DATED 04/11/10 EXT.P4:- TRUE COPY OF THE ACKNOWLEDGMENT TO THE P3 COMPLAINT DT.04/11/10. EXT.P5:- TRUE COPY OF THE RELEVANT NOTIFICATION CONFERRING THE STATUS OF TELEGRAPH AUTHORITY ON THE PETITIONERS. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. Nos.8980 & 10737 of 2011 ------------------------------------------------ Dated this the 9th day of August, 2011 JUDGMENT Pius C. Kuriakose, J W.P.C.8980/11 is filed by a Telecom Service Provider seeking police protection for the construction and energisation of Base Transceiver Station. W.P.C.10737/11 is filed by members of the local public who are respondents in W.P.C.8980/11 challenging Ext.P3 order of the Tribunal for Local self Government Institutions under which the petitioner in W.P.C.8980/11 has been issued with deemed building permit in terms of Rule 143 of the Kerala Municipalities Building Rules. The argument addressed by the learned counsel for the Writ Petitioner in W.P.C.10737/11 was that as Ext.P3 is under challenge before this Court, this Court will not be justified in granting the protection sought W. P. C. Nos.8980 & 10737 of 2011 -2- for in W.P.C.8980/11. The submission of the learned counsel for the petitioner in W.P.C.8980/11 was that pursuant to this order passed by the Tribunal the Panchayat conducted a hearing as directed by this Court in W.P.C No.22088/10 in Ext.P2 judgment and on the basis of the above hearing the petitioner in W.P.C.8980/11 is now issued with a regular permit. The above permit is yet to be challenged by anybody. Counsel also submitted that at any rate the ground for challenge is health hazards resulting from energisation of the mobile tower. This issue is decided against the petitioner in W.P.C.10737/11 by this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2), KLT 516). 2. Having anxiously considered the rival submissions addressed at the Bar, we feel that as the regular permit issued to the petitioner in W.P.C.8980/11 is yet to be challenged and as the ground of objection is health hazards W. P. C. Nos.8980 & 10737 of 2011 -3- already covered against the petitioners in W.P.C.10737/11 by judgment in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2), KLT 516), the petitioner in W.P.C.8980/11 can be permitted to complete the construction of the tower without any obstruction from anybody. Under the above circumstances, we dispose of both the Writ Petitions issuing the following directions:- 3. Respondent No.2 in W.P.C.8980/11 is directed to afford necessary protection to the petitioner in that Writ Petition for construction of the tower in question in case there is obstruction to such construction by respondents 4 to 10 or anybody acting under them provided the building permit granted to them by the 11th respondent is in operation. The Writ Petitioners in WPC.10737/11 are free to challenge the permit presently issued to the petitioner in W.P.C.8980/11 in accordance with law. The question of W. P. C. Nos.8980 & 10737 of 2011 -4- affording protection for energisation of the tower to be constructed on the strength of this judgment will be decided later. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-