IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 WP(C).No. 8753 of 2011(T) ---------------------- PETITIONER : --------------------- 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, MALAPPURAM DIST - 676 505. 2. STATION HOUSE OFFICER, KUTTIPURAM POLICE STATION, MALAPPURAM - 679 571. 3. HARIDASAN, MANNATHIL VEEDU, THRIKKADAPURAM P.O., THRIKKADAPURAM, THAVANOOR, MALAPPURAM DISTRICT, PIN - 679573. 4. SIVAN, THAYYIL VEEDU, THRIKKADAPURAM P.O., THRIKKADAPURAM, THAVANOOR, MALAPPURAM DISTRICT, PIN - 679573. 5. THAVANUR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, PONNANI TALUK, MALAPPURAM DIST - 679577. R1 & R2 BY GOVT. PLEADER SMT. C.M. CHARISMA R3 & R4 BY ADVS. SRI.K.B.ARUNKUMAR SRI.HARIDAS SMT.AMBIKA NAIR R5 BY ADVS. SRI.C.A.MAJEED SRI.K.H.ASIF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 8753 of 2011(T) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE REGISTRATION CERTIFICATE FOR INFRASTRUCTURE PROVIDER CATEGORY – I (IP-I). EXT.P1(a) : COPY OF THE CERTIFICATE ISSUED BY GOVT. OF INDIA WITH RESPECT TO THE NAME CHANGE. EXT.P1(b) : COPY OF THE LICENSE ISSUED BY CENTRAL GOVT. TO ONE OF THE SERVICE PROVIDERS. EXT.P2 : COPY OF THE BUILDING PERMIT ISSUED BY 5TH RESPONDENT TO THE PETITIONER DATED 21/10/2010. EXT.P3 : COPY OF THE COMPLAINT SUBMITTED BEFORE THE 2ND RESPONDENT DTD 7/2/2011. EXT.P4 : COPY OF THE ACKNOWLEDGMENT TO THE P3 COMPLAINT DATED 7/2/2011. EXT.P5 : COPY OF THE RELEVANT NOTIFICATION CONFERRING THE STATUS OF TELEGRAPH AUTHORITY ON THE PETITIONERS. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO: 8753 OF 2011T ----------------------------------------------------------- Dated this the 30th May, 2011. JUDGMENT Basant, J. Petitioner has come to this Court claiming issue of directions under Art.226 to respondents 1 and 2 against illegal obstructions by respondents 3 and 4 against the attempt of the petitioner to construct, instal and operate a mobile tower in accordance with Ext.P2 permit issued by the fifth respondent. 2. According to the petitioner Ext.P2 permit is validly issued. Respondents 3 and 4 are raising illegal obstructions. Police are not affording protection. It is hence that the petitioner has come to this Court. 3. Fifth respondent panchayat has entered appearance. Learned counsel for the panchayat confirms that Ext.P2 permit is legally valid and the fifth respondent has no objection against the prayer in the petition. Learned counsel for respondents 3 and 4 submits that the panchayat has granted Ext.P2 permit without proper application of mind. There is an oldage home near the place where the mobile tower is sought to be erected. WPC 8753/2011 In these circumstances police protection may not be afforded it is prayed. 4. Admittedly Ext.P2 permit has not been challenged before the Tribunal for Local Self Government Institutions. Our attention has been drawn to Essar Telecom Infrastructure (P) Ltd. v. C.I of Police {2010(2) KLT 762} and Essar Telecom Infrastructure (P) Ltd. V State of Kerala {2011(2) KHC 171}. We have carefully considered all the relevant inputs. We do not find any valid objection raised by respondents 3 and 4. We are satisfied that police protection can be ordered in favour of the petitioner. Needless to say such orders shall be subject to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171}. 5. In the result; a) This petition is allowed. b) Respondents 1 and 2 are directed to afford police protection to the petitioner to construct, instal and operate the mobile tower in accordance with Ext.P2 permit issued by the WPC 8753/2011 fifth respondent against any illegal obstruction/objections of third and fourth respondents. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 8753/2011 6 R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO:8753 2011 T ----------------------------------------------------------- Dated this the 28th February, 2011. O R D E R Basant, J. Service is complete. Respondents 3 to 5 have been served. Fifth respondent has entered appearance through counsel. Building permit has been issued by the Panchayat, it is confirmed by the counsel for the fifth respondent. No appearance for respondents 3 and 4. 2. We have heard the learned counsel for the petitioner and the respondents. Our attention has been drawn to the directions issued earlier by different Benches under identical circumstances. We are satisfied that interim directions can be issued subject to appropriate safeguards. Accordingly we issue the following interim directions:- i) first and second respondents shall grant adequate police protection to the petitioner to proceed with and complete the 7 construction of mobile transmission tower as against any obstruction that may be raised by fourth respondent for a period of one month from this date on the following terms and conditions:- a) The petitioner must possess valid licences/permits issued by the statutory authorities concerned for the construction of mobile transmission tower including the licence from the Department of Telecommunications. b) No prohibitory order issued by a competent civil court or statutory authority restraining the petitioner from proceeding with the construction of mobile transmission tower is in force. c) The building permit issued by the local authority has not been cancelled or revoked and no stop memo has been issued by the competent authority or is in force. We make it clear that fourth respondent, if he is so advised, shall be at liberty to challenge the permit granted to the petitioner before the competent superior authorities. d) The petitioner shall not commission the mobile transmission tower without obtaining further orders from this Court. e) The respondent objecting to the construction of the 8 mobile transmission tower shall be free to carry out peaceful demonstration against the construction; but shall not cause any physical obstruction to the construction or commit any act of waste. f) If it is found that the petitioner must acquire permission other than permission under Rule 141 of the Kerala Municipalities Building Rules, the petitioner shall be liable to demolish the tower. g) No equipment including generator shall be put up on the tower without further directions from this Court. 4. Call on 31-3-2011 for final disposal. R.BASANT Judge K. SURENDRA MOHAN Judge jj 9 10 R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO:8753 OF 2011 T ----------------------------------------------------------- Dated this the 21st March, 2011. O R D E R Basant, J. Heard. Admitted. Notice given and the learned Govt. Pleader appears for respondents 1 and 2. Issue notice to respondents 3 to 5. Counsel prays and is accordingly permitted to take out notice to respondents 3 to 5 by special messenger. Verify service and call again on 28-3-2011. 11 R.BASANT Judge K. SURENDRA MOHAN Judge jj 12