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. 37686 of 2010(I) ------------------------ PETITIONER: --------------- SHAJI MATHEW, MANAGING PARTNER, PALATHARA CONSTRUCTIONS, S.PURAM P.O., KOTTAYAM. BY ADVS. SRI.JOMY GEORGE SRI.M.J.BENNY SRI.SEBASTIAN THOMAS RESPONDENTS: ---------------------- 1. RAHEEM, KOTTIKKAL, THOTTATHIL, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107. 2. NAZAR, S/O.MUHAMMED, AMINAKUTTY HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107. 3. CHEMMOD, VADAKKENATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107. 4. RASHEED, KODIKKAL THOTTATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107. 5. NAJEEB, KOTHAKULATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107. ..2- -2- 6. VAZHAKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY - 683 549. 7. THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT - 683 542. 8. SUPERINTENDENT OF POLICE, ERNAKULAM DISTRICT - 682 031. 9. PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. 695001. 10. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001. R1 BY SRI.K.M.SHAMSUDEEN R2 TO R5 SRI.P.THOMAS GEEVERGHESE R6 BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR R7 TO R10 BY SRI.K.M.SHAMSUDEEN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P (C) No.37686/2010 -3- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE BUILDING PERMIT DTD. 29-04-2010 ISSUED BY THE VAZHAKULAM GRAMA PANCHAYAT. EXT.P2 : COPY OF THE GOVERNMENT CIRCULAR DTD. 30-10-2010 ISSUED BY THE 9TH RESPONDENT. EXT.P3 : COPY OF THE COMPLAINT DTD. 08-11-2010 FILED BY THE 2ND PETITIONER BEFORE THE 7TH RESPONDENT. EXT.P4 : COPY OF THE RECEIPT DTD. 09-11-2010 ISSUED BY THE 7TH RESPONDENT EVIDENCING THE ACCEPTANCE OF THE COMPLAINT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE AMG R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.37686 of 2010 ------------------------------------------- Dated this the 17th June, 2011 JUDGMENT Basant, J. The petitioner has come to this Court with this petition for issue of directions under Article 226 of the Constitution to respondents 7 and 8 - both officers under the 10th respondent State to afford protection to them for the construction of a BSNL Communication tower in accordance with Ext.P1 permit issued by the sixth respondent. 2. According to the petitioner, Ext.P1 is a valid regular permit. Though the permit was cancelled by the Panchayat, in an appeal filed by the BSNL, the challenge is upheld and Ext.P1 permit is now valid, submits the learned counsel for the petitioner. Respondents 1 to 5 have no legal right to raise any objections against the construction under Ext.P1 permit now. They are raising illegal obstruction. It is in these circumstances that the petitioner claims police protection in this writ petition. 3. All respondents are served. Respondents 1 to 5 have entered appearance through counsel. The learned Government Pleader appears for respondents 7 to 10. The sixth respondent has not entered appearance. 4. The prayer is opposed by respondents 1 to 5. A counter WPC No.37686 of 2011 2 affidavit has been filed by the third respondent. The learned counsel for the third respondent submits that the third respondent raises objections on the ground that the petitioner who claims to be a contractor under the BSNL has not complied with the provisions in the Building and other Construction Workers (Regulation of Employment and Working Conditions) Act, 1996. 5. The learned counsel for the petitioner relies on 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). The learned counsel for the petitioner contends that the only objection raised by the counsel for respondents 2 to 5 is not sustainable. The alleged non-compliance of the provisions of the said statute will not in any way vitiate or invalidate the permit issued nor shall such alleged non-compliance give respondents 1 to 5 any right to raise objection/obstruction against the construction under Ext.P1. The workers concerned have not raised any obstruction against construction and no relief is claimed against them, submits counsel. 6. We find merit in the submissions of the learned counsel for the petitioner. Following the precedents referred above, we WPC No.37686 of 2011 3 are satisfied that this writ petition deserves to be allowed and police protection can be granted to the petitioner. 7. In the result, a) This petition is allowed. b) Respondents 7 and 8 are directed to afford police protection for the petitioner to undertake the construction as per Ext.P1 permit issued by the sixth respondent against any obstruction that may be raised by respondents 1 to 5. c) Needless to say that the order of protection granted shall be subject to all the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v State of Kerala (supra). sd/- R.BASANT JUDGE sd/- K.SURENDRA MOHAN JUDGE css/ true copy p.s.to judge WPC No.37686 of 2011 4 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.37686 of 2010 ------------------------------------------- Dated this the 31st March, 2011 WPC No.37686 of 2011 5 ORDER Basant, J. Counsel for the petitioner prays for further time to file reply affidavit. File reply affidavit in ten days. Call on 27.5.2011. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/ WPC No.37686 of 2011 6 R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------- WPC No.37686 of 2010 ------------------------------------------- Dated this the 14th March, 2011 ORDER Basant, J. Counter affidavit is filed. Counsel for the petitioner prays for time to file a reply affidavit. File such reply affidavit within 10 days. Call on 31.3.2011. R.BASANT JUDGE K.SURENDRA MOHAN JUDGE css/