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 16TH AUGUST 2011 / 25TH SRAVANA 1933 WP(C).No. 10474 of 2011(H) -------------------------- PETITIONER(S): --------------- GTL INFRASTRUCTURE LTD., DOOR NO.40/9643, PRABHU TOWER, IST FLOOR, OPP.CHENNAI SILKS, M.G.ROAD, NORTH ERNAKULAM, KOCHI - 682035, REPRESENTED BY ITS SENIOR EXECUTIVE (LEGAL), MR.JINO ANTONY. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE OFFICE OF THE SUB INSPECTOR OF POLICE, NJARAKKAL POLICE STATION, NJARAKKAL, PIN - 682 505. 2. MR.SUNIL, S/O.SATHYANATHAN, THEKKPARAMBIL HOUSE, AZHIKKAL P.O. VYPIN. 3. ELAMKUNNAPPUZHA GRAMA PANCHAYATH, MALIPURAM - 682511, REPRESENTED BY ITS SECRETARY. ADDL.RESPONDENT 4. THE PRESIDENT, ELAMKUNNAPPUZHA GRAMA PANCHAYATH, MALIPURAM – 682 511. SUO MOTU IMPLEADED AS ADDL 4TH RESPONDENT AS PER ORDER DTD.5.8.2011 BY GOVT. PLEADER SRI.T.K.VIPINDAS ADV. SRI.B.GOPAKUMAR FOR R2 SMT.CHINCY GOPAKUMAR FOR R2 SRI.S.SHANAVAS KHAN FOR R3 SRI.S.SHANAVAS KHAN FOR ADDL.R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 10474 of 2011(H) APPENDIX PETITIONER'S EXHIBITS : EXT.P1 : COPY OF THE BUILDING PERMIT DTD.25.11.2010 EXT.P2: COPY OF THE REPRESENTATION DTD.18.3.2011 EXT.P3: COPY OF THE ORDER DTD.3.3.2011 IN WP(C) NO.4324/2011 RESPONDENT'S EXHIBITS: EXT.R2(A) : COPY OF THE APPLICATION FOR PERMISSION EXT.R2(B) : COPY OF THE MASS PETITION TO THE DISTRICT COLLECTOR, ERNAKULAM. EXT.R2(C): COPY OF THE STOP MEMO DTD.21.1.2011 //TRUE COPY// P.A TO JUDGE AB PIUS.C.KURIAKOSE & C.K.ABDUL REHIM, JJ. ------------------------------- W.P.(C) No.10474 of 2011 ------------------------------- Dated this the 16th day of August, 2011. J U D G M E N T PIUS.C.KURIAKOSE, J. The petitioner company which is providing infrastructure for mobile telephone services, has approached this Court seeking police protection in the matter of construction of mobile tower within the area of Elamkunnappuzha Grama Panchayat without any obstruction, against the 2nd respondent and other citizens of the panchayat who are opposing such obstruction. The 2nd respondent filed a counter affidavit in which Ext.R2(c) order issued by the President of the panchayat was highlighted. It was urged that in the teeth of Ext.R2(c) which has the effect of staying the operation of Ext.P1, the police protection directions sought for can not be granted. The petitioner filed a reply affidavit wherein it is contended that Ext.R2(c) was not issued by the panchayat and at any rate the issue of 2 W.P.(C) No.10474 of 2011 Ext.R2(c) was not in accordance with law. For settling the controversy as to the circumstances in which Ext.R2(c) was issued, we ordered the impleadment of the President of the Panchayat as additional 4th respondent and directed her to file an affidavit. Accordingly, the additional 4th respondent the President of the panchayat has filed an affidavit and para 2 of the affidavit is relevant and we extract the same as below :- “ It is submitted that I was impleaded as additional fourth respondent as per order dated 5/8/2011 of this Hon'ble Court. The above writ petition is filed seeking effective and adequate police protection for constructing a telecommunication tower without any obstruction from the second respondent. In the said case, the second respondent filed a counter affidavit, in which Ext.R2(c) was produced averring that the same was issued by me. It is true that Ext.R2(c) was issued by me but it was under compelling circumstances. The day on which R2(c) was issued, hundreds of people including the second respondent protested the Elamkunnappuzha Panchayat Office. On that day, the Secretary and Superintendent of the Panchayat were not in station and myself and other staff were alone in the office. The protest was arranged against the construction of tower undertaken by the petitioner alleging that if tower is established it will cause health hazards. The people gathered there and demanded to issue stop memo as to prevent the petitioner from carrying out the construction. When the agitation reached beyond our control, I had no other option but to issue Ext.R2(c). Ext.R2(c) was issued for pacifying the people and to 3 W.P.(C) No.10474 of 2011 avoid unpleasant happenings. The feelings of the local people gathered at the office at that time were also given due regard while issuing Ext.R2(c). At that time I was not in a position to think about the legal consequences that would follow the issuance of Ext.R2(c). It is also submitted that Ext.R2(c) was not officially communicated to anybody and it was only handed over to one of the persons in the crowd. ” 2. Very extensive submissions were addressed by Mr.Santhosh Mathew learned counsel for the petitioner, Mr.B.Gopakumar learned counsel for the 2nd respondent and also by Mr.S.Shanavas Khan standing counsel for the panchayat, who appeared not only for the Secretary for the panchayat but also for the additional 4th respondent. Having regard to the rival submissions addressed at the Bar, we are of the view that on the issue whether Ext.R2(c) should continue, the committee of the 3rd respondent panchayat should take a decision after hearing the petitioner and the 2nd respondent. Accordingly, we direct the committee of the 3rd respondent panchayat to hear the petitioner and the 2nd respondent on the issue of continuance or otherwise of Ext.R2(c) at the earliest. At any rate hearing shall be conducted within 7 days from the 4 W.P.(C) No.10474 of 2011 date of receiving a copy of this judgment and it is also directed that the 3rd respondent shall call for a committee meeting within another 5 days of obtaining the copy. It is open to the petitioner and the 2nd respondent to urge all the contentions they want to raise, including the contention of jurisdictional competence of the President to issue Ext.R2(c) and for continuance of Ext.R2(c). A decision will be taken by the committee on the basis of hearing conducted, without undue delay. Once the decision is taken, the same will be communicated to the petitioner and the 2nd respondent. If the decision comes in favour of the petitioner, it is open to the petitioner to approach this Court seeking police protection. PIUS.C.KURIAKOSE, JUDGE C.K.ABDUL REHIM, JUDGE ami/