IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933 WP(C).No. 32377 of 2010(V) ---------------------------------- PETITIONER(S): ------------------- SHAJI MATHEW, S/O.MATHEW, PALATHARA HOUSE, THURUTHY P.O., CHANGANASSERY, KOTTAYAM DISTRICT. (PARTNER, PALATHARA CONSTRUCTIONS, CHANGANASSERY). BY ADV. SRI.V.PHILIP MATHEW RESPONDENT(S): -------------------- 1. THE S.I. OF POLICE, KOTTAYAM EAST, KOTTAYAM - 686 001. 2. THE C.I OF POLICE, KOTTAYAM EAST, KOTTAYAM- 686 001. 3. THE SUPERINTENDENT OF POLICE, KOTTAYAM- 686 001. 4. PANACHIKKAD GRAMA PANCHAYATH, PANACHIKKAD, KUZHIMATTOM P.O., KOTTAYAM DISTRICT - 686 533. REPRESENTED BY ITS SECRETARY. 5. S.R.SANTHOSH KUMAR, KADUVAKKULAM, IDUNGADIYIL, KOTTAYAM EAST, KOTTAYAM - 686 001. 6. MARTIN ABRAHAM, MUNDACKAL HOUSE, POOVANTHURUTH P.O., KOTTAYAM- 686 001. 7. M.K.JACOB, KADANCHERIYIL HOUSE, POOVANTHURUTH P.O., KOTTAYAM- 686 001. svs ..............2/-... ...2... WPC.NO.32377/010 8. JOSE, S/O.OUTHAKUTTY, KATTATHARA, POOVANTHURUTH P.O., KOTTAYAM- 686 001. 9. KUNJUMON, S/O.VAVACHEN, PUTHENPARAMBIL HOUSE, POOVANTHURUTH P.O., KOTTAYAM- 686 001. 10. K.H.JOSEPH @ SUNNY, S/O.HENTRY, KOIPARAMBIL HOUSE, POOVANTHURUTH P.O., KOTTAYAM- 686 001. 11. ANTAPPAN, S/O.HENTRY, KOIPARAMBIL HOUSE, POOVANTHURUTH P.O., KOTTAYAM- 686 001. * 12. BALAKRISHNAN NAIR,(DELETED FROM PARTY ARRAY) POOVANTHURUTH P.O., KOTTAYAM- 686 001. 13. INDUS TOWERS LTD., CIRCLE OFFICE AT: VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI - 24. REPRESENTED BY ITS HEAD - LEGAL, PREMAKRISHNAN NAIR. 14. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 15. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI - 110001. * R12 DELETED FROM PARTY ARRAY AS PER ORDER IN I.A. 16431/2010 DATED 30/11/2010 R1 TO R3 & R14 BY GOVT.PLEADER SRI.T.K.VIPINDAS R4 ADV. SRI.LIJI.J.VADAKEDOM R6,8-11 BY ADV. SRI.SIVAN MADATHIL R15 BY ADV. SMT.P.A.REZIYA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 32377/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF BUILDING PERMIT NO.A1-4376/2010 DATED 07/08/2010 ISSUED BY THE 3RD RESPONDENT PANCHAYAT. P2: COPY OF THE ORDER DATED 02/09/2010 PASSED BY THE TRIBUNAL FOR LACAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A. NO.1079/2010 IN APPEAL NO.773/2010. P3: COPY OF THE REPRESENTATION DATED 04/09/2010 SUBMITTED BEFORE FIRST RESPONDENT. P4: COPY OF THE RECEIPT DATED 04/09/2010 ISSUED FROM THE OFFICE OF FIRST RESPONDENT. P5: COPY OF THE ORDER DATED 01/10/2010 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.773/2010. P6: COPY OF THE REPRESENTATION DATED 14/10/2010 SUBMITTED BEFORE FIRST RESPONDENT. RESPONDENT'S EXHIBITS: R4(a):COPOY OF THE GOVERNMENT CIRCULAR NO.2750/RD2/2009/LSGD DATED 13/03/2009. R4(b):COPYCC OF THE STOP MEMO DATED 31/08/2010 ISSUED BY THE SECRETARY OF THE 4TH RESPONDENT TO THE PETITIONER IN THE WRIT PETITION. /TRUE COPY/ P.A. TO JUDGE. svs R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No.32377 of 2010-V ------------------------------------------------- Dated this the 3rd day of June, 2011 JUDGMENT Basant,J. The petitioner has come to this Court seeking issue of directions to respondents 1 to 3 to afford police protection for the petitioner to undertake the work of construction, installation and operation of a mobile tower in accordance with Ext.P1 permit issued by the 4th respondent against any illegal obstruction that may be raised by respondents 6 to 12. 2. According to the petitioner, the tower is to be put up in the property of the 5th respondent who has consented to the same. Ext.P1 is a regular permit. Respondents 6 to 12 are raising illegal objections/obstructions to the undertaking of the construction in accordance with Ext.P1. Subsequently, the 4th W.P.(C) No.32377 of 2010 -: 2 :- respondent had issued a stop memo; but the Tribunal For Local Self Government Institutions by Ext.P5 judgment has set aside the stop memo. In these circumstances, the petitioner is entitled to undertake the construction as per Ext.P1. Respondents 6 to 11 (the 12th respondent has subsequently been deleted from the array of parties) are not entitled to raise any objection against such construction. It is with these averments that the petitioner has come before this Court. 3. Respondents No.4 has entered appearance. Respondents 6, 8, 9 and 11 have also entered appearance. They oppose the application. A counter affidavit has been filed. There is no representation for the party respondents 6 to 11 when the matter came up for hearing. 4. Our attention has been drawn to the decisions in Essar Telecom Infrastructure (P) Ltd., v. C.I. of Police [2010 (2) KLT 762) (FB)] and Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011 (2) KHC 171). No tenable objections are seen raised by the contesting respondents. The learned counsel for the 4th respondent only wants to clarify that the right of the Panchayat to take further action if there is any inadequacy/ violation irregularity may be left open. We are satisfied that the petitioner is entitled for an order of protection as prayed for W.P.(C) No.32377 of 2010 -: 3 :- subject to appropriate terms and conditions. 5. In the result: (a) This writ petition is allowed. (b) Respondents 1 to 3 are directed to afford police protection to the petitioner to construct, install and operate the mobile tower in accordance with Ext.P1 building permit issued by the 4th respondent/Panchayat in the property of the 5th respondent. (c) It is made clear that the construction will have to be undertaken by the petitioner strictly in accordance with the terms stipulated in Ext.P1. (d) Needless to say that this judgment is issued subject to all observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011 (2) KHC 171). Sd/- R. BASANT (Judge) Sd/- K. SURENDRA MOHAN (Judge) Nan/ //true copy// P.S. to Judge W.P.(C) No.32377 of 2010 -: 4 :- R. BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------- W.P.(C) No.32377 of 2010-V ------------------------------------------------- Dated this the 21st day of January, 2011 ORDER Basant,J. This petition is filed by the petitioner for issue of a direction under Art.226 of the Constitution to respondents 1 to 3 to provide adequate police protection to enable the petitioner to undertake and complete the work of construction of a mobile transmission tower. Interim direction to the same effect is prayed pending disposal of the petition. 2. We have heard both counsel. This writ petition deserves to be heard at length and disposed of. Our attention has been drawn to the directions issued earlier by different Benches under identical circumstances. We are satisfied that interim directions can be issued subject to appropriate safeguards. Accordingly, we issue the following interim directions: (1) Respondents 1 to 3 shall grant adequate police protection to the petitioner to proceed with and complete the W.P.(C) No.32377 of 2010 -: 5 :- construction of mobile transmission tower as against any obstruction that may be raised by respondents 6 to 11 for a period of one month from this date on the following terms and conditions: (i) The petitioner must possess valid licence/permit issued by the statutory authorities concerned for the construction of mobile transmission tower including the licence from the Department of Telecommunications. (ii) No prohibitory order issued by a competent civil court or statutory authority restraining the petitioner from proceeding with the construction of mobile transmission tower is in force. (iii) The building permit issued by the local authority has not been cancelled or revoked and no stop memo has been issued by the competent authority or is in force. We make it clear that respondents 6 to 11 , if they are so advised, shall be at liberty challenge the permit granted to the petitioner before the competent superior authorities. (iv) The petitioner shall not commission the mobile transmission tower without obtaining further orders from this Court. (v) The respondents objecting to the construction of the mobile transmission tower shall be free to carry out peaceful W.P.(C) No.32377 of 2010 -: 6 :- demonstration against the construction; but shall not cause any physical obstruction to the construction or commit any act of waste. (vi) If it is found that the petitioner must acquire permission other than permission under Rule 141 of the Kerala Municipalities Building Rules, the petitioner shall be liable to demolish the tower. (vii) No equipment including generator shall be put up on the tower without further directions from this Court. 3. Call for hearing and disposal finally on 18/2/11. R. BASANT (Judge) K. SURENDRA MOHAN (Judge) Nan/