IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 WP(C).No. 13327 of 2011(M) ---------------------------------------- PETITIONER(S): ------------------------ 1. INDUS TOWERS LTD., CIRCLE OFFICE AT: VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS HEAD-LEGAL, PREMAKRISHNAN NAIR. 2. SHIBU MATHEW, S/O.MATHEW, PALATHARA HOUSE, THURUTHY.P.O., CHANGANASSERY, KOTTAYAM DISTRICT.(PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY). BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): --------------------------- 1. THE SUPERINTENDENT OF POLICE, KANNUR.PIN- 670 001. 2. THE C.I.OF POLICE, PAYYANNOOR, PIN-670 307. 3. SUB INSPECTOR OF POLICE, PAYYANNOOR POLICE STATION, KANNUR DISTRICT. PIN-670 307. 4. PAYYANNUR MUNCIPALITY, REPRESENTED BY ITS SECRETARY, PAYYANNUR. PIN-670 307, KANNUR DISTRICT. 5. MANOJ KUMAR, S/O.M.NARAYAN, MATHLADAN HOUSE, KANAI.P.O. (VIA) PAYYANNUR, PIN-670 307. 6. PREEJESH, AGED 34 YEARS, S/O.RAMACHANDRAN, CHERUTHARA HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. sts 2/- -2- WP(C)NO.13327/2011 7. RAJESH, AGED 24 YEARS, S/O.KANNAN, ADUKKADAN HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 8. VINOD, AGED 29 YEARS, S/O.PADMANABHAN, PALLIYATHIL ULIVILADAKATHU HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 9. PRASAD, AGED 31 YEARS, S/O.PADMANABHAN, PALLIYATHIL ULIVILADAKATHU HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 10. RAMAKRISHNAN, AGED 35 YEARS, S/O.KUNJURAMAN, MUTTATHIL HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 11. ANOOP, S/O.THANKAMANI, MATHRADAL HOUSE, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 12. KUNJIRAMAN, AGED 45 YEARS, S/O.NARAYANAN, MAUVADI PUTHIYAVEEDU, KANNAI, PAYYANNUR, KANNUR. PIN-670 307. 13. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. PIN- 695 001. 14. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-110 001. R1 TO R3 & R13 BY GOVERNMENT PLEADER SRI.T.K. VIPIN DAS R4 BY ADV.SRI. M.SASINDRAN R6 TO R12 BY ADV.SRI. ARUN KUMAR R14 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 3/- -3- WP(C)NO.13327/2011 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 REGISTRATION CERTIFICATE NO.177/2008 DATED 10/01/2008 ISSUED BY THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS. P4 COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. P4(A) COPY OF THE EXHIBIT P4. P5 COPY OF THE COMMUNICATION SEND BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI. P6 COPY OF THE BUILDING PERMIT NO.BA.749/10-11 DATED 04/12/2010 ISSUED BY THE 4TH RESPONDENT. P7 COPY OF THE REPRESENTATION DATED 06/05/2011 SUBMITTED BEFORE THE 1ST RESPONDENT. P8 COPY OF THE RECEIPT DATED 06/05/11 ISSUED BY THE 3RD RESPONDENT. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A.TO.JUDGE sts R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.13327 of 2011-M ***************************** Dated this the 8th day of June, 2011 JUDGMENT BASANT, J. The petitioners have come to this Court praying for issue of directions to respondents 1 to 3 under Article 226 of the Constitution of India to enable the petitioner to construct, install and operate a telecommunication tower in the property of the 5th respondent as per Ext.P6 regular permit issued by the 4th respondent Municipality against illegal obstruction that is raised by respondents 6 to 12. 2. According to the petitioners, Ext.P6 regular permit is valid. There has been no challenge against Ext.P6. But respondents 6 to 12 were raising illegal and unjustified obstruction to the construction of the telecommunication tower. In these circumstances, it is prayed that police protection may be ordered as prayed for. 3. All respondents have been served. Respondents 4 and 5 have entered appearance through their respective counsel. They have raised no objection against the prayer in this petition. W.P(C) No.13327 of 2011-M 2 Respondents 6 to 12 have also entered appearance through counsel. They have filed a counter affidavit. It is submitted that respondents 6 to 12 do also have no objection against construction, installation and operation of a telecommunication tower in accordance with Ext.P6 permit issued by the 4th respondent. Their only objection is that for the purpose of constructing the tower, the petitioners are attempting to cut out a pathway through the property of neighbours, where no such pathway exists. Against construction of tower, no objection whatsoever is raised. 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]. There is no challenge against construction, installation and operation of a tower in accordance with Ext.P6. The disputes regarding the pathway will obviously have to be settled by the parties by approaching the civil court. 5. We are, in these circumstances, satisfied that prayer for police protection can be granted making it clear that police W.P(C) No.13327 of 2011-M 3 protection granted will enable the petitioners only to construct, install and operate a telecommunication tower as permitted under Ext.P6 and shall not in any way clothe them with authority to assert any claim of right over any pathway which is disputed by respondents 6 to 12. 6. In the result: a) This Writ Petition is allowed; b) Respondents 1 to 3 are directed to afford police protection to the petitioners to undertake the work of construction, installation and operation of a telecommunication tower in the property of the 5th respondent in accordance with Ext.P6 permit issued by the 4th respondent Municipality against any illegal objection that is raised by respondents 6 to 12; c) We make it clear that we have not intended to decide any dispute between the parties about the right of way of the petitioners to the place where the tower is proposed to be constructed. That dispute will have to be resolved by the parties by approaching the appropriate civil court; d) Needless to say, this order for police protection is subject to the conditions and observations in Essar Telecom W.P(C) No.13327 of 2011-M 4 Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KHC 171]. (R.BASANT, JUDGE) (K.SURENDRA MOHAN, JUDGE) rtr/