IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 21ST OCTOBER 2008 / 29TH ASWINA 1930 WP(C).No. 18568 of 2008(I) -------------------------- PETITIONER(S): --------------- M/S.ESSAR TELECOM INFRACTURE (P) LTD., 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE SENOY ROAD, COCHIN-682017, REP. BY ASSISTANT MANAGER (SITE ACQUISITIONS AND ADMINISTRATION) MR.RAHUL DAS. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS RESPONDENT(S): --------------- 1. THE CIRCLE INSPECT OF POLICE, THALIPARAMBA KANNUR DISTRICT. 2. THE SUB INSPECTOR OF POLICE, THALIPARAMBA POLICE STATION THALIPARAMBA, KANNUR 3. SRI.LAKSHMANAN, CHAITHRAM HOUSE PARASHINIKKADAVU PO., KOLMOTTA, KANNUR 4. SRI.JOIBIN LAKSHMANAN, S/O.LAKSHMAN, CHAITHRAM HOUSE, PARASHINIKKADAVU PO., KOLMOTTA, KANNUR 5. SRI.RAMACHANDRAN.K.P., KUNHIPURAYIL HOUSE, PARASHINIKKADAVU PO., KOLMOTTA, KANNUR 6. SRI.VINOD, KUNNON HOUSE, NANNICHARY P.O., KODALLOOR, KOLMOTTA, KANNUR DISTRICT. WPC 18568/08 7. THALIPARAMBU MUNICIPALITY, MUNICIPAL OFFICE, THALIPARAMBA, KANNUR DISTRICT, REP. BY ITS SECRETARY. ADDL. RESPONDENT: *8. TELECOMMUNICATION ENGINEERING CENTRE, MINISTRY OF COMMUNICATIONS AND INFORMATION TECHNOLOGY, DEPARTMENT OF TELECOMMUNICATIONS, GOVERNMENT OF INDIA, GATE NO.5, KHURSHID LALBHAVAN, JANPATH, NEW DELHI – 110 001 REPRESENTED BY ITS DIRECTOR. *(IMPLEADED AS ADDL 8TH RESPONDENT AS PER ORDER DT. 14.7.08 IN IA 8971/08) ADV. SRI.M.SASINDRAN FOR R3 TO 6 SRI.P.V.SURENDRANATH FOR R7 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR ADDL.R8 SR. GOVT. PLEADER SRI.BENJAMIN PAUL FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2008, ALONG WITH WPC NO. 26169 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 18568/08 APPENDIX PETITIONER'S EXTS. EXT.P1 - PHOTO COPY OF THE BUILDING PERMIT BEARING NO.BA 531/2007-08 DATED 14.3.2008. EXTS.P2 & P2(a) – PHOTO COPY OF THE RECEIPTS ISSUED BY THE 7TH RESPONDENT DATED 14.3.2008 FOR RS.10200/- & RS.1000/-. EXT.P3 - PHOTO COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST AND 2ND RESPONDENTS DATED 6.5.2008. RESPONDENTS' EXTS. EXT.R6(a) A TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT MEDICAL OFFICER OF HEALTH, KANNUR TO THE SPECIAL GRADE SECRETARY, KALLIYASSERI GRAMA PANCHAYAT DATED 31.1.2006. EXT.R6(b) – A TRUE COPY OF THE MATERIALS COLLECTED FROM THE INTERNET. ANNEXURE-R8(a) – TRUE COPY OF THE GUIDELINES IN TELECOM SECTOR. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- W.P.(C) NOS. 26169/2007 & 6960, 7450, 7476, 10424, 10435, 12904, 18568, 22490, 27780 & 30600 OF 2008 ----------------------------------------- Dated 21st October, 2008. JUDGMENT Balakrishnan Nair, J. The petitioners in these writ petitions are companies providing mobile telephone service or companies providing infrastructure to such companies. W.P.(C) No.18568/2008 is treated as the main Writ Petition for referring to the facts and exhibits. W.P.(C) No.18568/2008: 2. The petitioner herein is proposing to set up 300 telecommunication towers at various places throughout the State of Kerala for enhancing the network coverage for various mobile telephone operators. It has obtained the necessary building permits from the local authorities concerned and also obtained consent of the Pollution Control Board for operation of diesel generator sets. Ext.P1 is WPC 18568/08 ETC. 2 the permit issued to the petitioner by the Taliparamba Municipality for erecting a telecommunication tower at Kolmotta. When steps were taken by the petitioner for construction of the tower, based on Ext.P1 permit, certain residents of the locality under the leadership of the 3rd respondent, obstructed the construction. So, the petitioner's representative filed Ext.P3 petition before the police, seeking necessary police protection for constructing the telecommunication tower, without any obstruction from the near-by residents and the persons in the locality. The relevant portion of the said representation reads as follows: “1. Essar Telecom Infrastructure (P) Ltd., is part of ESSAR Group and has stated operations in September 2005. The Head Office of the Company is at Essar House, Mahalalakshmi, Mumbai. We had set up 400 Mobile Telecommunication towers at various places throughout the State of Kerala for enhancing the net work coverage for various Mobile Operators after having obtained the requisite no objection certificate from the local authorities concerned. 2. For improving the coverage in the Kolmotta in Kannur District, we submitted an application for putting up a telecommunication tower in Taliparamba Municipality and the same has been approved, issuing the building permit which is attached with the petition and referred as No.2. 3. When steps were taken by the Company for WPC 18568/08 ETC. 3 constructing the Tower, certain residents of the locality including Mr.Lashman, Chaithram, Parassinikkadavu P.O., Kolmotta, Kannur and some others alleging that the putting up of the tower will cause health hazard to the residents of the locality, obstructed the same. The allegation that the construction of the telecommunication tower will cause health hazards to the residents of the locality is absolutely baseless. A Division Bench of Kerala High Court has decided in the case Reliance v. Chemanchery Grama Panchayat published in 2006(4) KLT 695, that the mobile tower is not causing hazardous effects to human bodies. 4. When people are causing problem in tower site we have approached the DGP of Kerala for police protection, he has pleased to give a direction to police officials to provide police protection, if statutory compliances are fulfilled. The order copy is attached and referred as No.1. 5. In these circumstances, your good self may be pleased to provide effective and adequate police protection for constructing the telecommunication tower without any obstruction from the nearby residents and persons in the locality.” (Emphasis supplied) Ext.P3(2) is the receipt issued by the Sub Inspector of Police, Taliparamba on submission of Ext.P3 before the said officer. Alleging that the police did not extend any help, this Writ Petition is filed, seeking the following relief: “issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding first and second respondents to provide effective and adequate police protection to the petitioner's workers for constructing WPC 18568/08 ETC. 4 the telecommunication tower without any obstruction from respondent Nos.3 to 6 and their henchmen.” 3. The 1st and 2nd respondents respectively are the Circle Inspector and Sub Inspector of Police, Taliparamba. The respondents 3 to 6 have filed a counter affidavit, resisting the prayers in the writ petition. According to them, the functioning of the telecommunication tower is a health hazard. They rely on Ext.R6(a) communication dated 31.1.2006 issued by the District Medical Officer, Kannur to the Special Grade Secretary, Kalliasseri Grama Panchayat, advising against the installation of a telecommunication tower in that Panchayat. The D.M.O., Kannur has stated that the tower would cause health hazard, in view of the radiation emanating from it. The diesel generator set used for supplying power to the tower also will cause sound and air pollution. The said respondents have produced Ext.R6(b) materials collected from the internet, which would tend to show that radiation from the mobile phone towers will cause cancer and other health problems. So, the said respondents pray for not issuing any direction to the police, as prayed for by the writ petitioner. 4. As directed by this Court, the 8th respondent, WPC 18568/08 ETC. 5 Telecommunication Engineering Centre, Department of Telecommunications, Government of India has produced Ext.R8(a) guidelines issued by the International Commission on Non-Ionizing Radiation Protection. Those guidelines have been adopted by several other countries. Now, India has also adopted those guidelines and the mobile phone operators have to conduct audit and provide certificates for meeting the standards for registration of the antenna (mobile tower) used by them, in terms of the said guidelines. 5. We heard the learned counsel on both sides. Whether the electromagnetic fields upto 300 G.Hz will have any adverse effect on the health of persons exposed to it, is a disputed question. Many environmentalists assert, they have adverse impact, whereas the mobile phone service providers, whose operations generate EMF upto 300 G.Hz make assertions to the contrary. Following the precautionary principle, many countries have introduced restrictions regarding the level of radiation from such towers. In India Ext.R8(a) guidelines are being enforced, governing installation of mobile phone towers. Mr.Santhosh Mathew, learned counsel for the petitioner mainly relied WPC 18568/08 ETC. 6 on the decision of this Court in support of his submissions, in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat [2006(4) KLT 695], wherein this Court quashed the order of the Chemanchery Grama Panchayat, cancelling the building permit for erecting a mobile phone tower and also ordered the police to grant necessary protection for the construction of the tower. In view of the said decision, this Court may grant police protection to the petitioner to construct the tower, it is submitted. According to the learned counsel, the decision of the Government of India to enforce Ext.R8(a) guidelines has not brought about any qualitative change in the situation. He also submits that the companies providing mobile phone service will undertake to abide by the aforementioned guidelines. The learned counsel relied on sub-sections (b) and (c) of Section 29 of the Kerala Police Act and submitted that the police have a duty to prevent commission of cognizable offences and also to preserve peace. He referred to Rule 158 of the Kerala Municipality Building Rules and submitted that if the tower constructed is dangerous to health, the remedy of the persons in the neighbourhood is to move the Secretary of the Municipality WPC 18568/08 ETC. 7 concerned. The said officer can take action under sub-rule (2) of Rule 158, it is pointed out. 6. We also heard M/s.V.G.Arun and P.Sathisan, learned counsel appearing for the petitioners in the connected writ petitions. They supported the submissions of the learned counsel for the petitioner in W.P.(C) No. 18568/2008. They further pointed out that the petitioners in those writ petitions are providing service on the strength of the licences issued by the Central Government under the provisions of the Indian Telegraph Act. In the light of the provisions contained therein, they have a right to establish and maintain mobile phone towers. They also referred to the provisions of Telecom Regulatory Authority Act, 1997 and pointed out that the remedy of the aggrieved persons against the establishment of the tower is to move the Telecom Regulatory Authority constituted under the said Act. 7. The learned counsel for the contesting party respondents submitted that in view of the disputed questions involved, this Court may not order any protection to the petitioners. The local people are protesting against the commencement of an activity in their WPC 18568/08 ETC. 8 neighbourhood, which is going to be a perpetual health hazard, affecting their right to life. They are not committing any cognizable offence. If the rights of the petitioner are infringed by them, it has to move the civil court for reliefs, it is contended. 8. Police protection jurisdiction is a “special” original jurisdiction, which, it appears, is exercised by the Kerala High Court only. Disputes between the parties are raised before the High Court, as if they are raised in an original suit. This Court adjudicates the rights and based on its findings, issues directions to the police. We find that this Court has no such power under the Constitution or under any other statute. The writ petitions are filed for issuing a writ of mandamus to the police under Article 226 of the Constitution of India, on the ground that the police have failed to discharge their statutory duty. It means, the powers of this Court, while exercising this jurisdiction, are co- terminous with the failure of duty of the police. If this Court finds that the police have failed to perform a duty, it can remedy that. The police have no right, power or authority to decide the dispute regarding the ill-effects of radiation or whether a mobile phone tower will cause WPC 18568/08 ETC. 9 radiation, which is injurious to the health of the people residing in the locality. So, in this jurisdiction, this Court also cannot adjudicate that dispute. One of the cases in which this Court exercised the “special” original jurisdiction of adjudicating the civil rights of parties, which was later reversed by the Apex Court, was in W.P.(C) No.16047 of 2004. It was a case where a Sanyasin claimed that he is the Sthiradhyakshan (permanent Chairman) of Vadayampadi Ashramam and the rival group claimed that the bye-laws of the Trust were amended, deleting the provision concerning Sthiradhyakshan. The Sanyasin's suit to continue as Sthiradhyakshan was dismissed by the civil court for default. Undaunted, he approached the High Court for police protection to continue as Sthiradhyakshan. Another suit filed by a founder member of the Trust, challenging the validity of the above said amendment was pending before the civil court. This Court under Article 226 adjudicated the above civil dispute and granted police protection. The Apex Court reversed that judgment by the decision in P.R.Muralidharan v. Swami Dharmananda Theertha Padar [(2006)4 SCC 501]. In the said decision, it was held as follows: WPC 18568/08 ETC. 10 “7. Though the suit filed by the first respondent was dismissed, he filed a writ petition before the Kerala High Court at Ernakulam praying for police protection which was marked as WP(C) No.16047 of 2004. A Division Bench of the said High Court went into the question as to whether the first respondent was entitled to hold the office of Madathipathi and Sthiradhyakshan for the purpose of issuing an appropriate direction as regards grant of police protection. The High Court opined that the State and the police officials have got a legal obligation to give protection to the life and properties of the appellant upon arriving at a finding of fact that he was entitled to hold the said office. The High Court proceeded to determine the said purported question in the light of Article 21 of the Constitution and opined: 'Respondents 5 and 6 have not given adequate and effective police protection in spite of repeated requests which only paved the way for the contesting respondents and others to take law into their hands and act contrary to the terms of the trust deed. Such being the conduct of the respondents, their assertion that Ext.P3 is fabricated by the petitioner cannot be believed. Going by the facts and circumstances of the case, and on going through the materials placed before us, we are inclined to accept the averment made by the petitioner that he is Sthiradhyakshan and Madathipathi of the Ashramam'. 8. It was directed: 'We have therefore no hesitation to allow this writ petition giving direction to Respondents 5 and 6 to give adequate and effective police protection to safeguard the interest of the petitioner being the Sthiradhyakshan and Madathipathi of the Vadayampadi Ashramam. The petitioner be given effective police protection so as to discharge the function as Sthiradhyakshan and Madathipathi as per Ext.P1 trust deed for his peaceful residence in the Ashramam...' xxxxx xxxxx xxxxx xxxxx 11. The question is a contentious one. Construction of WPC 18568/08 ETC. 11 the said trust and the rights and obligations thereunder were in question. The first respondent filed a suit in that behalf. The said suit was dismissed. In terms of Order 9 Rule 9 of the Code of Civil Procedure another suit would not be maintainable at his instance. We have noticed hereinbefore that another suit being OS No. 30 of 2002 is pending in the Court of Munsiff. The High Court, despite noticing the said fact, sought to usurp the jurisdiction of the civil court. It, as noticed hereinbefore, determined the contentious issues which were required to be proved in terms of the provisions of the Evidence Act. Xxxxx xxxxx xxxxx xxxxx 14. For the foregoing reasons, the impugned judgment cannot be sustained which is set aside accordingly.” Thus, the Hon'ble Supreme Court has condemned the entertaining of “police protection Original Suits”. 9. As pointed out by the learned counsel for the petitioner, the police have a duty under Section 29(b) of the Kerala Police Act to prevent commission of cognizable offences. They are to collect and communicate to the best of their ability, intelligence concerning the commission of cognizable offences or designs to commit such offences. Under Section 29(c), they are also duty bound to preserve peace and collect and communicate intelligence affecting or likely to affect public peace. Under Section 149 of the Cr.P.C., the police have a duty to prevent commission of cognizable offence. In this case, going by WPC 18568/08 ETC. 12 the averments in the representation of the petitioner before the police, we find that what is done by the people of the locality is objecting to the construction of the tower. The same cannot be described as commission of a cognizable offence, warranting interference from the part of the police. But, the objection may turn into situations, which may cause commission of acts amounting to cognizable offences like wrongful restraint (Section 341 I.P.C.), criminal trespass (Section 447 I.P.C.), etc. In that event, the police have a duty to register crimes and investigate. If the police have failed to do that, the aggrieved persons have a remedy of moving the superior police officers and/or moving the criminal court concerned under Section 156(3) of the Cr.P.C., as stated by the Apex Court in Sakiri Vasu v. State of U.P. [2008(1) KLT 724(SC)]. Normally, this Court is not supposed to interfere with the operational freedom of the police under Article 226 of the Constitution of India. The founding fathers of our Constitution did not define the scope of various writs mentioned under Article 226. But, the Apex Court said that the writs mentioned therein are the writs issued by English courts and the principles evolved by the English WPC 18568/08 ETC. 13 courts may be followed by the Indian courts also. In this context, it may be apposite to quote the words of the Apex Court from the decision in Union of India v. Upendra Singh [1994(3) SCC 357], which read as follows: “It is true that a High Court acting under Art.226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by this Court in T.C.Basappa v. T.Nagappa. It was observed by Mukherjea, J., speaking for the Constitution Bench: 'The language used in Arts. 32 and 226 of our Constitution is very wide and the powers of the Supreme Court as well as of all the High Courts in India extend to issuing of orders, writs or directions including writs in the nature of 'habeas corpus, mandamus, quo warranto, prohibition and certiorari' as may be considered necessary for enforcement of the fundamental rights and in the case of the High Courts, for other purposes as well. In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English Law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of 'certiorari' in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English Law' . If we do not keep to the broad and fundamental WPC 18568/08 ETC. 14 principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law, the exercise of jurisdiction becomes rudderless and unguided; it tends to become arbitrary and capricious. There will be no uniformity of approach and there will be the danger of the jurisdiction becoming personalised. The parameters of jurisdiction would vary from Judge to Judge and from Court to Court. (Some say, this has already happened.) Law does advance. Jurisprudence does undoubtedly develop with the passage of time, but not by forgetting the fundamentals. You have to build upon the existing foundation and not by abandoning them. It leads to confusion; it does not assist in coherence in thought or action”. (Emphasis supplied) Noticing the large number of writ petitions filed before this Court, seeking writ of mandamus, B.N.Srikrishna, C.J., (as His Lordship then was)in Jayachandran v. State of Kerala [2002(3) KLT 125]lamented: “15. A writ of mandamus is to be issued after circumspection, and only upon the Court being satisfied that the 'State' is either refusing or unduly delaying to act, ignoring its statutory responsibilities and has thus failed to discharge its constitutional duties. That too can be done after a specific notice drawing the attention of the statutory authority demanding redressal has failed to evoke satisfactory response. It appears that the principle underlying Art.226 of the Constitution is not being paid the attention it really deserves. Orders are often issued under Art.226 as if emanating from a slot machine at the drop of a coin and the pulling of a handle. It is time to change. Petitions under Art.226 need to be considered with greater circumspection and dealt with the seriousness they deserve. It may, perhaps, be said in extenuation, that WPC 18568/08 ETC. 15 the learned Judges are overburdened and inundated by the unabated deluge of Original Petitions in this Court under Art.226 of the Constitution of India. The contributing factors appear to be two-fold. First, there is no court fee levied on Original Petitions. We are informed that originally a court fee of Rs.25 had been levied, but now that also has been abolished. A Full Court Resolution of this Court recommending re-imposition of a reasonable court fee sent to the State Government is yet to elicit action from the State Government, despite reminders. The second, and, by far, the saddest, factor is that Original Petitions are being filed in the most undeserving and flimsiest of cases. It is high time that legal fraternity also realises its responsibility and exercises its discretion by ensuring that constitutional remedies are resorted to only in deserving cases where there is no other equally efficacious alternative remedy and that the High Prerogative Writs remain really High Prerogative Writs and do not become devalued and degenerated by over-use and abuse. We make these observations with the sad realisation of what is happening and with the hope that both the State and members of the bar will rise to the occasion and co-operate with us to effectively grapple with this problem of menacing proportions which is fast getting out of control.” (Emphasis supplied) 10. Concerning issuance of a writ of mandamus to the police, we would like to refer to a decision of the Court of Appeal in Regina v. Chief Constable of Devon and Cornwall, Ex Parte Central Electricity Generating Board, reported in [(1982)1 QB 458. Going by the facts of that case, if on similar facts, a writ petition was filed WPC 18568/08 ETC. 16 before this Court, in view of the several reported and unreported decisions rendered by it, this Court would have definitely issued a writ of mandamus to the police to remove the protesters. But, the Divisional Court as well as the Court of Appeal declined to grant relief to the petitioner/appellant therein. The relevant portion of the said decision reads as follows: “ LORD DENNING M.R. The coast of Cornwall is beautiful. Much of the inland is ugly. It is despoiled by china clay workings. Not far from them there is open farmland with small villages dotted around. Pleasant enough but not outstanding. The Central Electricity Generating Board view this as a possible site for a nuclear power station. They wish to survey it so as to compare it with other possible sites. The farmers objected to the survey. So did the villagers. They took up a stand against it. But on being told by the courts that it was unlawful for them to obstruct the survey, they desisted. They moved off the site. They obeyed the law. But then groups of outsiders came in from far and wide. They had no local connection with the place. They came anonymously. They would not disclose their identity. They would not give their name and addresses. They flouted the law. They wilfully obstructed the survey. Can