IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN FRIDAY, THE 17TH JUNE 2011 / 27TH JYAISHTA 1933 WP(C).No. 36286 of 2010(I) ---------------------------------------- PETITIONER(S): ------------------------- 1. INDUS TOWERS LTD , CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI -24, REPRESENTED BY ITS HEAD LEGAL, PREMAKRISHNAN NAIR. 2. CHARLES MATHEW, S/O.MATHEW, PALATHARA HOUSE, THURUTHY PO, CHANGANASSERY, KOTTAYAM DISTRICT (PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY). BY ADVS. SRI.V.PHILIP MATHEWS SRI.JOHNSON K.KURIEN. RESPONDENT(S): ------------------------------- 1. THE S.I OF POLICE,GANDHINAGAR POLICE STATION, KOTTAYAM DISTRICT. 2. THE C.I.OF POLICE, KOTTAYAM EAST,KOTTAYAM. 3. THE SUPERINTENDENT OF POLICE ,KOTTAYAM. 4. KUMARANALLOOR GRAMA PANCHAYATH, KUMARANALLOOR, KOTTAYAM DISTRICT, REPRESENTED BY ITS SECRETARY. 5. N.MANOHARAN, S/O. MR.LATE NANU, PUTHENPARAMBIL HOUSE, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT 686 041. 6. BINOY JOSEPH, S/O.JOSEPH, THONDUPARAMBIL HOUSE, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT 686 041. 7. C.C.CHERIAN, CHUNGATH HOUSE,MALLOOSERRY PO, PERUMBAIKKADU VILLAGE,KOTTAYAM DISTRICT 686 041. 8. REVAMMA VIJAYANATH, KIZHAKKEKUTTU, MALLOOSSERY PO., PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. Kss ..2/- ..2.... WPC.NO.36286/2010 I 9. SURENDRAN, PUTHENPARAMBIL HOUSE, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 10.RAJAMMA, PUTHENPARAMBIL HOUSE, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 11.JINU MATHEW, PERUMBALLIPARAMBIL, MALLOOSERRY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 12. JINO THOMAS, PANAMATTATHIL HOUSE, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 13. ANIL JOSEPH, KUNNUMPURATHU, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 14. GOURI, PUTHENPARAMBIL, MALLOOSSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 15. SANTHAMMA, PUTHENPARAMBIL, MALLOOSSERY PO, PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT -686 041. 16. NAZAR, PUTHENPARAMBIL, LAKSHAMVEEDU COLONY, MALLOOSSERY PO,PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT - 686 041. 17. RAJAPPAN, PUTHENPARAMBIL, MALLOOSERRY PO,PERUMBAIKKADU VILLAGE, KOTTAYAM DISTRICT 686 041. 18. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 19. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI 110001. R1 TO R3 & R18 BY GOVERNMENT PLEADER SRI. T.K.VIPINDAS R6 , R8 TO 13,15 TO 17 BY ADV. SRI.MATHEW PHILIP EDAPPALLIL R19 BY SRI. T.P.M.IBRAHIM KHAN, ASST. S.G. OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.36286/2010 I 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 DTD. 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 EXHIBIT P5. 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 BUILDING PERMIT NO.273/2010-11 DTD. 25/09/2010 ISSUED BY THE 4TH RESPONDENT PANCHAYAT TO FIRST PETITIONER. P7: COPY OF THE REPRESENTATION DTD. 20/11/10 SUBMITTED BEFORE THE 1ST RESPONDENT. P8: COPY OF POSTAL RECEIPTS. RESPONDENT'S EXHIBITS: R9(A): COPY OF THE PLAINT O.S.NO.279/2010 BEFORE MUNSIFF COURT, ETTUMANOOR. /TRUE COPY/ P.A.TO JUDGE Kss R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.36286 of 2010 ------------------------------------------- Dated this the 17th June, 2011 JUDGMENT Basant, J. The petitioner has come to this Court claiming issue of directions under Article 226 of the Constitution to respondents 1 to 3 to afford police protection to the petitioner for the construction of a mobile tower in accordance with Ext.P6 permit issued by the fourth respondent Panchayat against illegal obstruction that is being raised by respondents 6 to 17. Fifth respondent is the owner of the property. 2. Respondents have been served. Party respondents 9 and 10 alone have chosen to appear. Counter affidavit has been filed by respondents 9 and 10. The only ground of objection raised by the learned counsel for respondents 9 and 10 is that the property where the tower is proposed to be constructed is involved in a partition suit filed by the 9th respondent and others. Respondent No.5 claims that he is not a co-owner. According to him,he is entitled to exclusive rights in WPC No.36286/2010 2 respect of the property, submits the learned counsel for the petitioner. 3. The learned counsel for the petitioners submits that Ext.P6 permit issued by the fourth respondent is valid and legal. The same has not been challenged by any one. The learned counsel draws our attention to the precedents 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). Respondents 6 to 17 do not in these circumstances have any valid right to oppose the application. It is brought to our notice that by order dated 15th March 2011, an interim order of protection was granted to the petitioners subject to appropriate terms and conditions. It was directed that in the partition suit if the building is allotted to any one other than the sixth respondent, the tower constructed can be demolished by the petitioners at their expense, if the person to whom the property is allotted is unwilling to continue the tower. 4. The learned counsel for respondents 9 and 10, the only respondents who have chosen to enter appearance WPC No.36286/2010 3 and resist the prayer submits that respondents 9 and 10 agree that the interim order dated 15th March 2011 can be confirmed and police protection can be granted subject to the conditions stipulated in paragraph-3 of the said interim order which reads as follows: “We make it clear that in passing the interim order, we have accepted the undertaking of the petitioners that if in the partition suit, the property where the tower is built is allotted to anyone other than the 5th respondent, the tower constructed shall be demolished by the petitioners at their expenses if the person to whom the property is allotted is unwilling to continue the tower”. 5. In the absence of opposition from any one, we are satisfied that the prayer can be allowed. 6. In the result, a) This writ petition is allowed. b) Respondents 1 to 3 are directed to afford protection to the petitioners to construct the mobile tower in terms of Ext.P6 permit issued by the fourth respondent against obstruction, if any, raised by respondents 6 to 17. c) Needless to say the protection hereby granted is subject to the observations and conditions stipulated in Essar Telecom Infrastructure (P) Ltd. v State of WPC No.36286/2010 4 Kerala (supra). 7. We further make it clear that the protection hereby granted is again subject to the observations in paragraph-3 of the interim order dated 15.3.2011 extracted above. sd/- R.BASANT JUDGE sd/- K.SURENDRA MOHAN JUDGE css/ true copy P.S.TO JUDGE WPC No.36286/2010 5 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.36286 of 2010 ------------------------------------------- WPC No.36286/2010 6 Dated this the 31st March, 2011 ORDER Basant, J. Interim order shall now remain in force until further orders. Call on 27.5.2011 for hearing and disposal. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/