IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM THURSDAY, THE 27TH OCTOBER 2011 / 5TH KARTHIKA 1933 WP(C).No. 27190 of 2011(W) -------------------------- PETITIONER(S): --------------- T.R.PRATHAPACHANDRAN, PROPRIETOR, TRAVANCORE CONSTRUCTION COMPANY, NANDANAM PALACE NAGAR, THEVALLY P.O., KOLLAM-691009. BY ADV. SRI.KRISHNA PRASAD. S RESPONDENT(S): --------------- 1. THE SUB INSPECTOR OF POLICE, KUNDARA POLICE STATION, KOLLAM DISTRICT. 2. THE SUPERINTENDENT OF POLICE, OFFICE OF THE SUPERINTENDENT OF POLICE, KOLLAM DISTRICT. 3. THE SECRETARY, PERINAD GRAMA PANCHAYATH, REPRESENTING PERINAD GRAMA PANCHAYATH, OFFICE OF THE PERINAD GRAMA PANCHAYATH, CHEMMAKKAD P.O., KOLLAM DISTRICT, PIN 691 603. 4. JOHNSON, PUTHUVALVILA VEEDU, NANTHARIKKAL, VELLIMON P.O., KOLLAM DISTRICT, PIN 691 511. 5. NORVY, MUKALUVILA VEEDU, LAKSHAMVEEDU NANTHARIKKAL, VELLIMON P.O., KOLLAM DISTRICT, PIN 691 511. ADV. SRI.S.SANTHOSH KUMAR FOR R4 & R5 SMT.P.LISSY JOSE. FOR R4 & R5 SENIOR GOVERNMENT PLEADER, SHRI M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27190 of 2011(W) APPENDIX PETITIONER(S) EXHIBITS EXHIBIT-P1. A TRUE COPY OF THE BUILDING PERMIT NO.P3.67233/2011 DATED 7.09.2011 ISSUED BY PERINAD GRAMA PANCHAYATH. EXHIBIT-P2. A TRUE COPY OF THE COMPLAINT LODGED BEFORE THE 1ST RESPONDENT DATED 4.10.2011. EXHIBIT-P3. A TRUE COPY OF THE RECEIPT ISSUED BY THE 1ST RESPONDENT DATED 04.10.2011. RESPONDENTS' EXHIBITS: NIL \\True copy// P.A to Judge PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------- WP(C).NO. 27190 of 2011 --------------------------------- Dated this the 27th day of October, 2011 JUDGMENT Abdul Rehim,J. Petitioner is the proprietor of an establishment engaged in construction of Telecommunication Towers. The petitioner had undertaken erection of a Mobile Tower in a property comprised in survey No.650/11-3 of Perinad Vilalge in Kollam District, on behalf of M/s. Indus Towers Ltd., which is a registered infrastructure provider. The construction (erection) of the Telecom Tower is done on the basis of Ext.P1 Building Permit obtained by M/s Indus Towers Ltd., from the 3rd respondent. It is stated that a suit was filed against M/s. Indus Towers by one Subitha, at the instigation of respondents 4 and 5, against construction of the Telecommunication Tower. The suit was dismissed on 14.6.2011. When the petitioner continued with the construction works the respondents 4 and 5 and their henchmen created physical obstructions raising allegation that establishment of the Tower will cause health hazards to the WP(C).27190/2011 2 neighbouring residents. They threatened the workers engaged by the petitioner with physical harm. Eventhough the petitioner submitted Ext.P2 complaint before the 1st respondent , no action was taken to remove the illegal obstruction and to afford protection for continuance of the work. Hence the petitioner seeks direction from this court for affording adequate police protection for carrying out the construction of the Telecommunication Tower, on the basis of Ext.P1 Building Permit. 2. In the counter affidavit filed by respondents 4 and 5 it is contended that the petitioner can establish the Telecommunication Tower only if they have got licence as contemplated under section 4 of the Indian Telegraph Act 1885. It is further contended that, if there is any obstructions to placing of a Telecommunication Tower, which is a 'telegraph', in any property, the licencee has to obtain permission from the District Magistrate as contemplated under section 16 of the said Act In view of the statutory remedy provided as above, the petitioner is not legally entitled to seek police protection for construction of the Tower, is the contention. It is also contended that for the establishment of the Tower in question, permission WP(C).27190/2011 3 from the 3rd respondent Panchayat under section 233 of the Kerala Panchayat Raj Act is also necessary. Without obtaining such permission the activity of construction now intended is illegal and hence no police protection can be afforded, is the contention. Inter-alia the respondents contended that the establishment of the Tower in question will cause health hazard to the neighbouring residents and the people in the locality, since the location is in the midst of so many public institutions. Respondents also relied on Ext.R4(b) circular issued by the Government of India directing local bodies to seek relocation of Mobile Towers when there are protest from the public. 3. Considering the rival contentions we take note of the decision of a Division Bench of this court in Essar Telecom Infrastructure Pvt. Ltd vs. State of Kerala (2011 (2) KLT 516)in which this court held that any apprehension of radiation effect exceeding the international specifications is not a ground to deny police protection for construction of Mobile Towers. We also notice the dictum laid in the above said case to the effect that a Mobile Tower is not a work place coming within the purview of section 233 of the Kerala Panchayat Raj Act, and no WP(C).27190/2011 4 installation permission is required. Hence the contention in this regard are found against the respondents. 4. With respect to contentions raised on the basis of the provisions in the Indian Telegraph Act, we find that the petitioner is only a contractor engaged in the construction of the Mobile Tower. We are of the opinion that he is not engaged in establishment, maintenance and operation of any appliances or machinery which is capable of transmitting signs or signals, in order to constitute the establishment as one coming within the definition of 'Telegraph' under section 3 (1AA) of the Indian Telegraph Act. Since he is not establishing any telegraph as defined, under the statute, no licence under section 4 is required for establishment of the Telecom Tower. Since the petitioner is not coming within the purview of 'Telegraph Authority' or licensee conferred with the powers as contemplated under section 4, provisions contained in section 16 are not applicable and the petitioner is not under an obligation to seek orders from the District Magistrate for removal of the obstructions. 5. Since the police protection sought for is only for the limited extent of construction (erection) of the Mobile Tower we WP(C).27190/2011 5 are not deciding the question as to whether anybody other than a licencee under section 4 of the Telegraph Act can establish maintain and operate or commission functioning of the Telecom Tower. So also we are not deciding the question as to whether the installation of any machinery or appliances including Power Generator will come within the activity for which installation permission is required under section 233 (1)(b) of the Kerala Panchayat Raj Act. 6. Considering the fact that the petitioner is a contractor engaged in construction of the Mobile Tower, as held in Essar Telecommunication case (cited supra) he is entitled to complete the construction on the basis of Ext.P1 Building Permit. Respondents 4 and 5 or anybody claiming under them have no manner of right to obstruct such construction. Hence we are inclined to grant police protection. 7. In the result, the writ petition is disposed of directing respondents 1 and 2 to afford adequate and effective police protection if there is any physical obstruction caused to the work undertaken by the petitioner with respect to construction of the Mobile Tower in question. WP(C).27190/2011 6 8. We make it clear that we have not decided the question as to whether anybody other than the licencee under section 4 of the Indian Telegraph Act is entitled to establish machinery or appliances and to maintain and operate the same and also as to whether such establishment (installation) can be made without obtaining permission under section 233 (1)(b) of the Panchayat Raj Act. PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/