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 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 WP(C).No. 16017 of 2010(B) ------------------------------- PETITIONER(S): ------------------ INDIA TELECOM INFRA LTD., NO.42/1327(1), 2ND FLOOR, V.S.ARCADE, POWER HOUSE ROAD, OPP:POWER HOUSE, KACHERIPADI, COCHIN-682018, REPRESENTED BY ITS AUTHORISED PERSON BOBY SEBASTIAN, CIRCLE HEAD. BY ADV. SRI.P.SATHISAN RESPONDENT(S): -------------------- 1. THE SUPERINTENDENT OF POLICE, THIRUVANANTHAPURAM. 2. STATION HOUSE OFFICER, KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM. 3. SARATH, AGED 18 YEARS, S/O. PRASAD, THIRUVATHIRA, THOPPIL, MULAKULATHUKAVU P.O., THIRUVANANTHAPURAM-695614. 4. VIJAYAN, AGED 55 YEARS, LIJEE MANDIRAM, THOPPIL, MULAKULATHUKAVU P.O., THIRUVANANTHAPURAM - 695614. WP(C).No. 16017 of 2010(B) -2- 5. KILIMANOOR GRAMA PANCHAYATH REP.BY ITS SECRETARY, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT. ADV. SRI.SIJU KAMALASANAN FOR R5 SRI.T.M.ABDUL LATHEEF FOR R3,4 SRI.A.MOHAMED RASHEED FOR R3,4 SRI.T.K.VIPINDAS, GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 16017 of 2010(B) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE LICENSE ISSUED BY GOVT. OF INDIA TO M/S INDIA TELECOM INFRA LTD. DTD. 16/08/07 (PREVIOUSLY KNOWN AS NK DIGITAL INFRASTRUCTURE SERVICES LTD.). EXT.P1(a):- TRUE COPY OF THE CERTIFICATE ISSUED BY GOVT. OF INDIA TO THE PETITIONER SHOWING THE CHANGE OF NAME DATED 19/06/2008. EXT.P2:- TRUE COPY OF THE BUILDING PERMIT ISSUED BY THE KILIMANOOR GRAMA PANCHAYATH DATED 28/01/10 WITH NO.A3/1/245/2010. EXT.P3:- TRUE COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT DATED 17/05/10. EXT.P4:- TRUE COPY OF the ACKNOWLEDGMENT TO THE P2 COMPLAINT DTD. 17/05/10. RESPONDENTS EXTS EXT.R5(a):- THE COPY OF CIRCULAR NO.2750/RD.2/09/LSGD DATED 13/03/2009. EXT.R3(A):- TRUE COPY OF SKETCH. EXT.R3(B):-TRUE COPY OF THE MASS PETITION DATED NIL SUBMITTED BEFORE THE PANCHAYAT. EXT.R3(C):-TRUE COPY OF THE CIRCULAR NO.2750(S)/RD2/09/L.ADM.DEPT. DATED 10/08/09. EXT.R3(D):-TRUE COPY OF THE STUDY REPORT “CELL TOWER RADIATION” BY RAJESH CHOPRA DATED NIL. EXT.R3(E):-TRUE COPY OF THE STUDY REPORT “CELL TOWER RADIATION” BY RAJESH CHOPRA DATED NIL. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & C. K. ABDUL REHIM, JJ. ------------------------------------------------ W. P. C. No.16017 of 2010 ------------------------------------------------ Dated this the 27th day of September, 2011 JUDGMENT Pius C. Kuriakose, J The counsel for the petitioner submitted that this Court has issued an interim order dated 31/08/10 on the strength of which the petitioner is carrying on the construction of the proposed mobile tower. Counsel for the petitioner requested that the above interim order be confirmed and the Writ Petition be dismissed accordingly. The above request is opposed by the counsel for the Panchayat, the 5th respondent who submitted that the permit is cancelled. The learned Government Pleader submitted that the ground on which the party respondents are obstructing is that the proposed mobile tower is on a rocky area and that construction is not permissible unless the petitioner is given necessary licence for blasting the rock. Even though the learned counsel for the Panchayat submitted that the permit W. P. C. No.16017 of 2010 -2- granted by the Panchayat has been cancelled, a reading of the counter affidavit filed by the Panchayat shows that the Panchayat has taken the stand that the petitioner is having a valid permit and that the construction is being carried on lawfully in consonance with the directions issued by the Government in this regard. 2. As for the submission of the learned Government Pleader that blasting licence is necessary, we do not find that any such contention is raised by the party respondents. We, therefore, are inclined to dispose of the Writ Petition permitting the petitioner to continue with the construction of the proposed tower if the petitioner is having permit from the Panchayat and all other permits and licences if any required for carrying on the construction in the present site and fashion. If the construction is lawful in all respects and the same is obstructed by the party respondents, protection will be granted by the 2nd respondent for completing the construction. The question of energisation will be decided W. P. C. No.16017 of 2010 -3- later. PIUS C. KURIAKOSE JUDGE C. K. ABDUL REHIM JUDGE kns/-