IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933 WP(C).No. 38766 of 2010(U) ----------------------------------------- PETITIONER(S): ------------------------- 1. INDUS TOWERS LTD., CIRCLE OFFICE AT: VANKARATH TOWERS, 8TH FLORR, 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 S.I. OF POLICE, CHERPULASSERY POLICE STATION, PALAKKAD.PIN- 678 001. 2. THE C.I. OF POLICE, CHERPULASSERY, PALAKKAD.PIN- 678 001. 3. THE SUPERINTENDENT OF POLICE, PALAKKAD. PIN- 678 001. 4. THRIKKADEERI GRAMA PANCHAYAT, THRIKKADEERI, PALAKKAD DISTRICT, REPRESENTED BY ITS SECRETARY. PIN- 679101. 5. UNNIYANKUTTY, S/O MOIDU, NAMBITTIKULAM VEEDU, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101. sts 2/- -2- WP(C)NO.38766/2010 6. SAIDALAVI, NAMBITTIKULAM VEEDU, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN-679 101. 7. MAJEED, S/O MAMMOOTTY, PALATTUPARAMBIL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101. 8. ALI, S/O KHADAR, PANNIKARETHODI, THRIKKADEERI P.O. OTTAPALAM, PALAKKAD DISTRICT.PIN-679 101 9. MUHAMMED ALI, S/O SAJUTTY HAJI, KARIMBANAPALLIYAYIL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101. 10. HAMSA, S/O MAMMED, PARACKAL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679101. 11. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001 12. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-PIN- 110 001. R1 TO R3, R11 BY SENIOR GOVERNMENT PLEADER SRI.M.R.SABU R6, R7 & R9 BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI R12 BY ADV. T.P.M.IBRAHIM KHAN, CG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts 3/- -3- WP(C)NO.38766/2010 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.41/2009-2010 DATED 22/05/09 ISSUED BY THE 4TH RESPONDENT PANCHAYAT TO FIRST PETITIONER. P7 COPY OF THE ORDER DATED 22/12/2009 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.934/09. P8 COPY OF THE ORDER DATED 23/10/2010 IN PASSED BY THE MUNSIF COURT, OTTAPALAM IN IA.1284/09 IN OS.NO.281/09. P9 COPY OF THE REPRESENTATION DATED 03/12/10 SUBMITTED BEFORE THE 1ST RESPONDENT. P10 COPY OF THE RECEIPT DATED 04/12/2010 ISSUED FROM THE OFFICE OF FIRST RESPONDENT. P11 COPY OF THE ORDER DATED 21/12/2010 PASSED BY THIS HONBLE COURT IN WP (C)NO.37051/10. RESPONDENT'S EXHIBITS: R6(A) COPY OF THE APPROVED PLAN FOR THE CONSTRUCTION OF THE MOBILE TOWER. sts 4/- -4- WP(C)NO.38766/2010 R6(B) COPY OF THE PLAINT IN OS NO.281/2009 OF MUNSIFF'S COURT, OTTAPALAM. R6(C) COPY OF THE COMMISSIONER'S REPORT AND PLAN IN IA 1283/2009 IN OS 281/2009 OF MUNSIFF'S COURT, OTTAPALAM. R6(D) COPY OF THE APPEAL MEMO-RANDUM IN CMA 32/2010 OF SUB COURT, OTTAPALAM. R6(E) COPY OF THE AFFIDAVIT AND PETITION IN IA 3487/2010 IN CMA 32/2010 OF SUB COURT, OTTAPALAM. R6(F) COPY OF THE PLAN SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT FOR APPROVAL. /TRUE COPY/ P.S.TO.JUDGE sts R.BASANT & K. SURENDRA MOHAN, JJ. ------------------------------------------------------------ W.P(C) NO:38766 OF 2010 U ----------------------------------------------------------- Dated this the 27th May, 2011. JUDGMENT Basant, J. Petitioners have come to this Court seeking issue of directions to respondents 1 to 3 to afford police protection to the petitioners to undertake the work of construction, installation and operation of a mobile tower in accordance with Ext.P6 permit issued by the fourth respondent Panchayat. It is the case of the petitioners that respondents 6 to 10 are raising illegal objections/obstruction against the petitioners undertaking construction in the property of the fifth respondent. 2. Service is complete. Respondents 6, 7 and 9 have entered appearance. They oppose the prayer in the petition. Inter alia it is contended that stop memo has been issued by the Panchayat against continuation of the work as per Ext.P6 building permit. It is further contended that the construction of the mobile tower is not being undertaken in terms of Ext.P6. It is pointed out that the sixth respondent has already filed a civil suit to stop the petitioner from undertaking the construction. In WPC 38766/2010 2 these circumstances police protection is not liable to be granted, it is contended. No other contentions are raised. 3. Our attention has been drawn to 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}. The learned counsel for the petitioners submits police protection may be granted subject to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171). 4. The objection raised about the working of the mobile tower causing health hazards to the members of the local community cannot now stand in the light of the precedents referred above. Learned counsel for the party respondents contends that the construction is not undertaken in terms of the permission granted under Ext.P6. We find that this question was considered by the Munsiff's Court in detail and Ext.P8 order has been passed. It is submitted that C.M.A 32/2010 is pending before Sub Court, Ottappalam against Ext.P8 decision. But no interim order has admittedly been obtained by the sixth respondent so far. WPC 38766/2010 3 5. Having considered all the relevant inputs, we are of the opinion that police protection can be afforded to the petitioners subject of course to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171}. If any interim or final orders are secured by the sixth respondent in the suit/C.M.A needless to say this order of police protection cannot be enforced. We do not otherwise find any valid objection against the prayer made in the writ petition. 6. In the result; a) This petition is allowed. b) Respondents 1 to 3 are directed to afford protection to the petitioner for undertaking the work of construction, installation and working of the mobile tower as permitted under Ext.P6 against any objection that may be raised by respondents 6 to 10. c) We make it clear that if there be any subsequent order of competent courts/authorities against undertaking of such work, this order of police protection cannot be enforced. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 38766/2010 4 WPC 38766/2010 5