IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 WP(C).No. 22825 of 2009(W) ---------------------------------- PETITIONER(S): ------------------------- 1. INDUS TOWERS LTD., CIRCLE OFFICE AT, VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS DGM-HEAD SITE ACQUISITION, BIJU T.NAIR. 2. SHIBU MATHEW, S/O.MATHEW, PALATHARA HOUSE, THURUTHY P.O., CHANGANASSERY, KOTTAYAM DISTRICT. 3. JACOB ANDREWS, AGED 50 YEARS, S/O.LATE ANDREWS, KALLUKULATHILAYA KALLOOR HOUSE, VEROOR P.O., CHETHIPUZHA, CHANGANASSERY, KOTTAYAM. BY ADV. MR.V.PHILIP MATHEW RESPONDENT(S): ----------------------- 1. TAHSILDAR, CHANGANASSERY, KOTTAYAM. 2. VAZHAPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS PRESIDENT, KURUSUMODU P.O.-686 104. 3. SECRETARY, VAZHAPALLY GRAMA PANCHAYAT, KURUSUMODU P.O., CHANGANASSERY. 4. SUPERINTENDENT OF POLICE, KOTTAYAM. 5. JOSEPH KURIEN @ APPACHAN, S/O.KUREIN, PUTHENPURA, VEROOR P.O., CHANGANACHERRY. W.P.(C) NO.22825/2009 6. AJI, S/O.MATHAI, KAVALAM HOUSE, VEROOR P.O., CHANGANACHERRY. 7. PHILIPOCHAN, S/O.ITTY AVIRA, KAVALAM HOUSE, VEROOR P.O., CHANGANACHERRY. 8. ABY JOSE, KALATHIVEETTIL, VEROOR P.O., CHANGANACHERRY. 9. BABU AIKKARA, S/O.DEVASSIYA, AIKKARA HOUSE, KAVALAM HOUSE, VEROOR P.O., CHANGANACHERRY. 10. K.V.THOMAS, S/O.VAKKACHAN, KOTTAKKAPARAMBIL HOUSE, KURISHUM MOODU P.O., CHANGANACHERRY. 11. MATHUKUTTY, MAAREETU HOUSE, VEROOR P.O., CHANGANACHERRY. 12. SIBY KALAYIL, S/O.CHACKOCHAN, VEROOR P.O., CHANGANACHERRY. 13. JOHNSON, POLICE CONSTABLE, NO.6415, KARUKACHAL POLICE STATION, KARUKACHAL. R2 & R3 BY ADVS. MR.SIBY MATHEW, MR.PHILIP J.VETTICKATTU, MR.B.PREMNATH (E). R4 BY GOVT. PLEADER MR..MANU R1, R5 TO R7 , 9,10, 12 BY MR.P.K.VIJAYAMOHANAN R1, R5 TO R7, 9,10, 12 & 13 MR.GILBERT GEORGE CORREYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON 28/10/2009 DELIVERED THE FOLLOWING: W.P.(C) NO.22825/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. P2:- COPY OF THE CERTIFICATE FOR COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. P3:- COPY OF THE REGSITRARION CERTIFICATE NO.177/08 DTD 10.1.08 ISSUED BY THE MINISTRY OF COMMUNICATION S & IT, DEPARTMENT OF TELECOMMUNICATIONS. P4:- COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEUENT UPON CHANGE OF NAME ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA . P5:- COPY OF THE COMMUNICATION SENT BY THE DIRECTOR ( CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF COMMUNICATIONS, NEW DELHI. P6:- COPY OF THE BUILDING PERMIT NO.C3.BP DTD. 27.6.09 ISSUED BY VAZHAPALLY PANCHAYAT TO IST PETITIONER. P7:- COPY OF THE PURCHASE ORDER (WORK ORDER) DTD. 10.6.09 ISSUED BY IST PETITIONER TO 2ND PETITIONER. P8;- COPY OF THE PETITION DTD. 7.7.09 SUBMITTED BY CHARLES MATHEW, BROTHER OF 2ND PETITIONER BEFORE THE C.I. OF POLICE, CHANGANACHERRY. P9:- COPY OF THE ORDER IN W.P.(C) NO.20980/09 DT. 27.7.09. P10:- COPY OF THE SALE DEED BETWEEN 3RD PETITIONER AND 7TH RESPONDENT. P11:- COPY OF THE SALE DEED BETWEEN JOSEPH MARIA AND GIGY GEORGE. P12:- COPY OF THE STOP MEMO ISSUED BY IST RESPONDENT. P13:- COPY OF THE REPRESENTATION SUBMTITED BY 3RD PETITIONER DTD. 5.8.09 TO IST RESPONDENT. P14:- COPY OF THE LETTER FROPM THE TAHSILDAR DTD. 5.8.09. P15:- COPY OF THE PROCEEDINGS OF THE PANCHAYAT COMMITTEE DTD. 1.8.09. P16:- COPY OF THE PETITION FILED BY CHARLES MATHEW, BROTHER OF 2ND PETITIONER BEFORE 4TH RESPONDENT. P17:- COPY OF THE PLAINT IN OS. 245/09, WHEREIN EXT. R7(a) WAS PASSED. R7(a):- COPY OF THE INJUNCTION ORDER DTD 11.8.09 IN IA. NO.1438/09 IN OS. 245/09 OF THE MUNSIFF'S COURT, CHANGANACHERRY TRUE COPY P.S. TO JUDGE tss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.22825 OF 2009 ------------------------------------------- Dated this the 28th day of October, 2009 JUDGMENT After serving notice by special messenger to the parties, order dated 18.8.2009, an elaborate one, was issued after detailed consideration, after hearing the learned Government Pleader and appearing parties, quite extensively on the matter. The tower has since been erected. The Tribunal is also stated to have issued orders. Hence, nothing survives. In the result, this writ petition is dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.28/10. WPC.22825/09 Page numbers THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.22825 OF 2009 ------------------------------------------- Dated this the 18th day of August, 2009 O R D E R 1.On 27.7.2009, the Division Bench of this Court issued Ext.P9 order in a writ petition filed by two among the petitioners seeking an order for police protection. It reads as follows: “Govt. Pleader takes notice for R1 to R3. Issue notice to R4 to R11. If the petitioners possess all the valid licence for construction of a Mobile Tower and in case there is any obstruction caused to such construction, protection be afforded for completion of the construction, in the absence of any interdictory orders passed by the civil court or by any statutory authorities, subject to the condition that petitioners shall not commission the same without obtaining further orders from this Court.” WPC.22825/09 Page numbers 2.After that, on 4.8.2009, the first respondent Tahsildar issued Ext.P12 stating that he conducted a site inspection following a law and order situation generated by the construction of the mobile tower in question and the third petitioner herein did not produce the required documents. Ext.P12 states that because of the prevailing law and order situation and because the documents were not produced, further construction of the mobile tower should stand stopped. This is under challenge in this writ petition filed on 10.8.2009. On 11.8.2009, notice by special messenger was ordered and the matter was listed to 13.8.2009. On that day, the panchayat appeared through counsel and submitted that a resolution was passed on 12.8.2009 to cancel the permit granted to the petitioners to erect the mobile tower. Accordingly, this Court minuted the order dated 13.8.2009 requiring the petitioners to be communicated with the copy of that decision of the Panchayat. As of now, it is stated that the petitioners challenged the decision of the panchayat before the Tribunal for Local Self Government Institutions and obtained an order of stay of that WPC.22825/09 Page numbers order. This means that the permit as originally granted survives and the petitioners would be entitled to carry on with the construction. 3.All that now remains on Ext.P12 is the apprehension of the Tahsildar, who is stated to be empowered to act as a District Magistrate in terms of the Code of Criminal Procedure, that there is law and order situation. 4.The Division Bench of this Court issued Ext.P9 direction that in the absence of any interdictory orders by the civil court or by any statutory authorities, if the petitioners possess valid licence for the construction of a mobile tower, protection shall be afforded for completion of the construction. In case there is any obstruction to such construction, the police authorities are obliged to provide adequate protection. When this Court said in Ext.P9 that such construction can be carried out in the absence of any interdictory orders by the civil court or by any statutory authorities, it was a clear expression of the decision WPC.22825/09 Page numbers of this Court that police protection shall be extended unless the construction is interdicted by the civil court or by any statutory authorities. When Ext.P12 was issued, it does not disclose that the Tahsildar was aware of any interdictory orders either by the civil court or by any other statutory authorities. This means that he took upon himself the responsibility of passing an order interdicting the construction contrary to the directions of the Division Bench in Ext.P9 order. This is nothing short of an affront to the authority of this constitutional Court. The Tahsildar, more particularly when he was empowered with the police power of the State under the authority as a District Magistrate under the Code of Criminal Procedure, stood duty bound to salutorily obey the dictate of this Court as issued through Ext.P9. Instead, he has, in sheer contempt, interdicted the construction on the premise that there is a law and order situation. Prima facie, it is a case where the Tahsildar has demonstrated himself to be incompetent to hold the office in relation to the functions of which he presumably passed Ext.P12 order. Law and order WPC.22825/09 Page numbers maintenance is not a matter of gratis of the economically or collectively powerful but is the guarantee under Article 21 of the Constitution. Unless Rule of Law prevails, the Nation cannot work. If the Tahsildar who is also empowered as a District Magistrate surrenders to what he calls as a law and order problem, in the teeth of a direction of this Division Bench to grant police protection, what he does is nothing but surrender to extra constitutional and extra statutory power points and forces; not to be reckoned in the constitutional frame work. The reasons stated to pass the interdicting order in Ext.P12 to that effect does not stand. Whatever reasons could have been otherwise shown, viz., the decision of the panchayat committee, as already noticed, stands stayed by the Tribunal for LSGI. 5.In the aforesaid situation, there is no authority to detain the JCB of the petitioner which is allegedly blocked using sheer criminal force. The Tahsildar, Revenue Divisional Officer, the District Collector and the State Government are hereby WPC.22825/09 Page numbers directed to enforce necessary police power to remove any block created by any construction to the movement of the JCB of the petitioner from out of where it is now situated and report to this Court on 20.8.2009, at 1.45 p.m. 6. Learned counsel for the 7th respondent states that there is an injunction against the demolition of the aforesaid wall. That order for injunction was issued on 11.8.2009 after this matter was engaging the attention of this Court. Hence, it is directed that the order now issued by this Court will override any order of injunction issued by any subordinate court and it is further clarified that the rights of parties as to the existence of any way or any other civil dispute which is gaining the attention of the civil court will stand to be decided untrammelled by anything stated in this order or in this proceeding. H/o. THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.18/8. WPC.22825/09 Page numbers