IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 WP(C).No. 25808 of 2011(A) -------------------------------- PETITIONER(S): ------------------ POSIDON INFRASTRUCTURE PVT.LTD. HAVING REG.OFFICE AT GOKUL BUILDING,VISHRAMBHAG, SANGLI, MAHARASHTRA-416415, BRANCH OFFICE AT MIG 151, SRISAILAM, GANDHI NAGAR,ERNAKULAM-682020, REP.BY ITS MANAGING DIRECTOR MR.RAMESH GUNANI THROUGH HIS P/A HOLDER VINOD NAIR, S/O.VASUDEVAN NAIR, NOW R/AT MIG 151, SRISAILAM, GANDHI NAGAR, ERNAKULAM 682020. BY ADV. SRI.KRISHNA PRASAD. S RESPONDENT(S): ------------------- 1. THE SUB INSPECTOR OF POLICE, TANUR POLICE STATION, MALAPPURAM DISTRICT.676 302. 2. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDANT OF POLICE, MALAPPURAM.676 505. 3. TANALUR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, TANALUR GRAMA PANCHAYATH OFFICE, TANALUR, MALAPPURAM DISTRICT. PIN-676 307. 4. SHIHAB, S/O.MUHAMMEDALI, MATATHIPARAMBIL HOUSE, MEENADATHUR, MALAPPURAM DISTRICT. PIN-676 307. 5. BARKATHALI, S/O.MARAKKAR, MANGATTIRI HOUSE, MEENADATHUR, MALAPPURAM DISTRICT. PIN-676 307. GOVT. PLEADER SMT.C.M.CHARISMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 25808 of 2011(A) APPENDIX PETITIONER'S EXTS EXT.P1:- TRUE COPY OF THE BUILDING PERMIT NO.A2.83/2011 DATED 11/08/11 ISSUED BY THE SECRETARY, TANALUR GRAMA PANCHAYAT. EXT.P2:- A TRUE COPY OF THE COMPLAINT LODGED TO THE 1ST RESPONDENT DATED 05/09/11. EXT.P3:- A TRUE COPY OF THE RECEIPT OF COMPLAINT ISSUED BY THE 1ST RESPONDENT DATED 05/09/11. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & P. BHAVADASAN, JJ. ------------------------------------------------ W. P. C. No.25808 of 2011 ------------------------------------------------ Dated this the 10th day of October, 2011 JUDGMENT Pius C. Kuriakose, J The petitioner, a company which is in the business of erecting telecommunication towers to various providers of telecommunication services has approached this Court seeking protection for the construction of a Base Transceiver Station free from obstructions of respondents 4 and 5. It is alleged that respondents 4 and 5 are opposing the construction on grounds of health hazard. According to the petitioner, Ext.P1 building permit has been issued by the 3rd respondent and the proposed construction will be strictly in accordance with Ext.P1. It is further alleged that though Ext.P2 complaint was submitted to the 1st respondent Sub Inspector of Police, the 1st respondent has not chosen to W. P. C. No.25808 of 2011 -2- remove the obstructions caused by respondents 4 and 5. Even though notice of this Writ Petition was served on the party respondents including the 3rd respondent Panchayat they have not chosen to file any counter affidavits. Thus the averments in the Writ Petition stands established by non- traverse. The issue of health hazards by energization of mobile telephone towers stands decided in favour of service providers by judgment of this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2), KLT 516). 2. It is submitted by Smt.C.M.Charisma, the learned Government Pleader that it is not clear from Ext.P1 that Ext.P1 is in respect of construction of a Base Transceiver Station. Ext.P1 according to her indicates that the same has been issued for the construction of ground floor of a building for commercial purposes. 3. It is true that as pointed out by the learned Government Pleader that Ext.P1 gives room for some W. P. C. No.25808 of 2011 -3- confusion. But as already stated the avermnts in the Writ Petition stand established by non-traverse. 4. The submission of Sri.Krishna Prasad S., the learned counsel for the petitioner that the petitioner company is engaged exclusively in the business of construction of mobile towers has some appeal. Under the above circumstances we are inclined to grant relief subject to certain observations:- 5. If the 1st respondent Sub Inspector of Police receives reliable report regarding obstructions by respondents 4 and 5 or anybody acting under them to the construction of a Base Transceiver Station by the petitioner, the 1st respondent will take appropriate action for the removal of such obstruction after ensuring that the petitioner company or their principal M/s Indus Towers Pvt. Ltd. are having a valid and current Building Permit for the construction of a Base Transceiver Station in property comprised in Sy. W. P. C. No.25808 of 2011 -4- No.430/13 of Tanalur Thaluk. 6. In other words, it should be ensured that Ext.P1 permit pertains to construction of a Base Transceiver Station. Once it is so ensured, the 1st respondent will take appropriate action to ensure that the petitioner is able to carry on the constructions smoothly. PIUS C. KURIAKOSE JUDGE P. BHAVADASAN JUDGE kns/-