IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL MONDAY, THE 28TH NOVEMBER 2011 / 7TH AGRAHAYANA 1933 WP(C).No. 26808 of 2011(A) --------------------------------------- PETITIONER: ------------------- VIOM NET WORKS LTD.,REGISTERED OFfICE AT 5TH FLOOR, GOWRA TRINITY,CHIRAN FORT LANE, BEGUMPET,SECUNDERABAD 500 003 AND CIRCLE OFFICE AT J & CO CHAMBERS, MANIMALA ROAD,EDAPPALLY,COCHIN-24 THROUGH ITS AUTHORISED SIGNATORY MR.M.SANTHOSH KUMAR. BY ADVS. SRI.A.MOHAMED MUSTAQUE, SRI.K.R.AVINASH (KUNNATH). RESPONDENTS: ------------------------ 1. THE S.I OF POLICE, PANOOR POLICE STATION, KANUR- 670 109. 2. NANU, NAMATHUPOYYIL HOUSE, CHAMBAD P.O, PANOOR VIA, KANNUR 670 109. 3. MANEESH E.K,ETTUVEETTIL HOUSE, CHAMBAD P.O, PANOOR VIA, KANNUR 670 109. 4. ASHOKAN, KUNHIPURAYIL HOUSE, CHAMBAD P.O, PANOOR VIA, KANNUR 670 109. R1 BY SR. GOVT. PLEADER SRI. M.K. ABOOBACKER, R2 TO R4 BY ADV. SRI.C.P.PEETHAMBARAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.26808/2011-A: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1. TRUE COPY OF THE AGREEMENT DATED 12.1.2011. EXHIBIT P2. TRUE COPY OF THE PERMIT DATED 18.01.2011 ISSUED BY PANNIYANNUR GRAMA PANCHAYAT. EXHIBIT P3. TRUE COPY OF THE REQUEST MADE BY THE PETITIONER BEFORE THE IST RESPONDENT DATED 3.10.2011. EXHIBIT P4. TRUE COPY OF THE ACKNOWLEDGEMENT OF EXHIBIT P3. RESPONDENT'S EXHIBITS:- EXT.R2.A: COPY OF THE ORDER DTD. 10/06/2011 IN I.A. 1169/2011 IN O.S. 176/2011 OF MUNSIFF COURT, THALASSERY. EXT.R2.B: COPY OF THE JUDGMENT DTD. 10/10/2011 IN O.P.(C).NO.3225/2011 OF THIS HON'BLE COURT. EXT.R2.C: COPY OF THE MEMORANDUM OF O.P.NO.1386/2011 FILED BY THE R.3. BEFORE THE OMBUDSMAN. EXT.R2.D: COPY OF THE APPLICATION DTD. 24/10/2011 SUBMITTED BY THE R.4. TO THE INFORMATION OFFICER OF THE PANNIANNORE GRAMA PANCHAYATH. EXT.R2.E: COPY OF THE REPLY DTD. 27/10/2011 ISSUED BY THE SECRETARY, PANNIANNORE GRAMA PANCHAYATH. EXT.R2.F: COPY OF THE MINUTES DTD. 02/05/2011 OF THE ACTION COMMITTEE. EXT.R2.G: COPY OF THE NOTICE PUBLISHED IN CONNECTION WITH THE PROTEST MARCH OF ACTION COMMITTEE. EXT.R2.H: COPY OF THE PAPER REPORT PUBLISHED IN NEW INDIAN EXPRESS DAILY DTD. 13/10/2011. EXT.R2.I: COPY OF THE APPLICATION DTD. 19/10/2011 SENT TO THE PUBLIC INFORMATION OFFICER, UNION MINISTRY OF ENVIRONMENT, NEW DELHI. EXT.R2.J: COPY OF THE LETTER ISSUED BY THE MINISTRY. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. PIUS C.KURIAKOSE & K. HARILAL, JJ. ------------------------ W.P.(C).No26808 OF 2011 ------------------------ Dated this the 28th day of November, 2011 JUDGMENT Pius C.Kuriakose, J. The Panniyannur Grama Panchayat , represented by its Secretary is impleaded suo motu as additional 5th respondent. The Registry is directed to carry out corrections in the cause title. 2. The petitioner company, engaged in the business of providing infrastructure for providers of Teli-communication services, has approached this court seeking police protection for the construction of base transceiver station on the basis of Ext.P2 permit issued by the Additional 5th respondent. The petitioner alleges that respondents 2 to 4 are raising obstructions stating that construction of the tower and its energisation will result in serious health hazards to them and to the other inhabitants of the Panchayat. According to the petitioner, they have obtained Ext.P2 permit from the Panchayat and they have all other requisite licences and consents. 3. The party respondents have filed a detailed counter WPC.No.26808/2011 2 affidavit and they have produced Exts. R2(a) to R2 (j) documents. 4. Sri.Mohamed Mustaque learned counsel for the petitioner and C.P.Peethambaran learned counsel for the party respondents have addressed us at length on the basis of the rival pleadings raised by their parties. Our attention was drawn by the learned counsel to the various documents placed on record by the parties. 5. It was submitted by Sri.Mohamed Mustaque that in this case the party respondents approached the Civil Court and filed a suit against the petitioner. Even though in the first instance the court passed an order of injunction against the petitioner, in appeal the above order was vacated subject to certain observations. Even though the party respondents filed writ petition under Article 227 challenging the order in appeal, this court also did not interfere with the order of the Appellate Court vacating injunction. Hence, according to Mr.Mohamed Mustaque there is every justification for granting the protection directions sought for. 6. Sri.C.P.Peethambaran learned counsel for the party WPC.No.26808/2011 3 respondents drew our attention to the order passed by the court of appeal as well as by this court under Article 227. The learned counsel submitted that even the Ombudsman for the Local Self Government Institutions is in seizin of the matter. The suit is likely to be listed for trial immediately. Protection directions may not be issued till the suit is finally decided. In reply, Mr.Mohammed Mustaque submitted that the petitioner is ready and willing to obey any conditions which may be issued by this court. The protection being given can be made subject to the outcome of the suit as well as the petition before the Ombudsman. 7. We have given our anxious consideration to the submissions addressed at the Bar as well as to the rival pleadings raised by the parties apart from the various documents produced. As noticed by this court in Ext.R2(b) judgment, the issue of health hazards resulting from the construction of Telicommunication towers and also from the radiation, which may emanate from such towers upon their energisation, is covered in favour of the petitioner company by the judgment of this court in Reliance Infocom v. Chemanchery WPC.No.26808/2011 4 Grama Panchayat (2006 (4) KLT 695) and Essar Telecommunications (P) Ltd. v. State of Kerala (2011 (2) KLT 516). The argument of Sri.C.P.Peethambaran is that later studies have revealed that the radiation, which will emanate from telecommunication towers, will be injurious to the health of the people residing near to the towers. The learned counsel's further argument was that during the course of trial it will be open to the party respondents to adduce evidence regarding the recent studies. We find from Ext.R2(d) that, in that judgment itself it has been made clear that whether or not the radiation emanating from the proposed tower once it is energised will be hazardous to the health of the people residing nearby is a matter to be considered by the Civil Court in the trial which is yet to commence. The same is the position regarding the proceedings stated to be pending before the Ombudsman for Local Self Government Institutions. But, we are of the view that protection can be given to the petitioner in the matter of construction of the tower alone. Accordingly, we allow this writ petition to the limited extent of directing the first respondent to remove physical obstructions, WPC.No.26808/2011 5 if any caused by respondents 2 to 4 or persons acting under them for the construction of the tower on the strength of Ext.P2 permit. But we make it clear that we have not granted any protection to the petitioners for energisation of the tower. Once, the suit is decided in favour of the petitioner, it is open to the petitioner to approach this court court seeking protection for energisation of the tower. It is clarified further that if, in the meanwhile, the Ombudsman passed any order against the petitioner in the matter of construction or energisation of the tower, the petitioner will be bound by such order. It is needless to mention that if the verdict of the Civil Court comes to be in favour of the party respondents, the protection directions issued herein will stand automatically withdrawn. PIUS C.KURIAKOSE,JUDGE K. HARILAL, JUDGE. dpk WPC.No.26808/2011 6