IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 WP(C).No. 36231 of 2010(D) ------------------------- PETITIONER(S): --------------- M/S. ASIAN CONSTRUCTIONS, MOONLIGHT BUILDING, AREACODE.P.O,REPRESENTED BY ITS PROPRIETOR, MAHABOOB.C. BY ADVS. SRI.P.R.AJITHKUMAR SRI.K.MANOJ CHANDRAN RESPONDENTS: --------------- 1. THE COMMISSIONER OF POLICE,OFFICE OF THE CITY COMMISSIONER,KOZHIKODE CITY-673001. 2. THE SUB INSPECTOR OF POLICE,CHEMNANGAD POLICE STATION,CALICUT CITY,PIN-673 001. 3. MR.RASHEED,S/O.ABDUL KHADAR,NADAYALATH PARAMBU,KUTHUKALLU,KALLAYI.PO,-673003. 4. MR.ABDUL LATHEEF,S/O.UMMER KOYA, SOUDHA NIVAS,KUTHUKALLU,KALLAYI.P.O.-673003. R1 & R2 BY GOVT. PLEADER : SRI. T.K. VIPINDAS. R3 BY ADV. SRI.JACOB ABRAHAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.36231/2010 -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE PERMIT No.TP 5/19532/10 DATED 23-03-2010. EXT.P2 : COPY OF THE LEASE AGREEMENT DTD. 15-03-2010 EXT.P3 : COPY OF THE PURCHASE ORDERS DT 16-04-2010. EXT.P4 : COPY OF THE COMPLAINT DATED NIL. EXT.P5 : COPY OF THERECEIPT ISSUED BY THE 2ND RESPONDENT DATED 11-08- 2010. RESPONDENT'S EXHIBITS: EXT.R4(A) : COPY OF THE REPORT OF THE TECHNICAL COMMITTEE TO STUDY THE VARIOUS ISSUES WITH REFERENCE TO ERECTION OF MOBILE COMMUNICATION TOWERS IN KERALA AND RECOMMEND SOLUTIONS TO GOVERNMENT. EXT.R4(B) : COPY OF THE REPORT OF THE INTER MINISTERIAL COMMITTEE OF EMP RADIATION. //TRUE COPY// P.A. TO JUDGE AMG R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.36231 of 2010-D ***************************** Dated this the 17th day of June, 2011 JUDGMENT BASANT, J. The petitioner has come to this Court with this petition claiming issue of directions under Article 226 of the Constitution to respondents 1 and 2 to afford protection to them to construct, install and operate a mobile tower in accordance with law and in accordance with Ext.P1 permit issued by the Kozhikode Corporation against illegal obstruction that is apprehended from respondents 3 and 4. 2. According to the petitioner, the petitioner is under Ext.P1 permit entitled to undertake the construction of a mobile tower. Respondents 3 and 4 are raising illegal objections. They are not entitled to do the same. The petitioner, in these circumstances, has come to this Court seeking issue of directions under Article 226 of the Constitution. 3. Respondents have been served. Respondents 3 and 4 have filed a counter affidavit. They raise objections against the construction and operation of the mobile tower. W.P(C) No.36231 of 2010-D 2 4. Our attention has been drawn to the precedents in 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]. The learned counsel for respondents 3 and 4 submits that the rights of respondents 3 and 4 to approach the civil court in accordance with the observations in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KHC 171] may be reserved and subject to that alone permission may be granted. 5. We have considered all the relevant inputs. Ext.P1 permit is valid. The same has not been challenged by anyone so far and that is not disputed. We are, in these circumstances, satisfied that police protection can be granted to the petitioner subject to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KHC 171]. 7. In the result: a) This Writ Petition is allowed; b) Respondents 1 and 2 are directed to afford police protection to the petitioner to undertake the construction of a mobile tower strictly in accordance with Ext.P1 permit issued by W.P(C) No.36231 of 2010-D 3 the Kozhikode Corporation; c) Needless to say, the direction hereby issued shall be subject to all observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KHC 171]; d) We clarify that the right of respondents 4 and 5 to approach the civil court in tune with the observations in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KHC 171] shall remain unfettered. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/