Delta Telecom India Pvt. Ltd. v. Sub Inspector of Police, Elathur Police Station, Kozhikode District; Commissioner of Police, Kozhikode District; Kakodi Grama Panchayat; Majeed; Sivarman; Riyas

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE &** **THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM** **MONDAY, THE 24TH OCTOBER 2011 / 2ND KARTHIKA 1933** **WP(C).No. 22050 of 2011(E)** **--------------------------** **PETITIONER(S):** - **---------------** **DELTA TELECOM INDIA PVT. LTD,HAVING ITS R/O.AT 17 SHILPIN CENTRE,40,GD AMBEDKAR MARG, WADALA WEST,MUMBAI-31,MAHARSHTRA,REP.BY ITS M.D ANIL CHANDRAN,THROUGH HIS P/A HOLDER RINOY K.L, S/O.LONA,PROJECT MANAGER B-31,HOUSING BOARD COLONY CHALAKKUDY, THRISSUR DISTRICT - 680 307.** **BY ADV. SRI.KRISHNA PRASAD. S** **RESPONDENT(S):** - **---------------** **1. THE SUB INSPECTOR OF POLICE, ELATHUR POLICE STATION, KOZHIKODE DISTRICT 673 303.** **2. THE COMMISSIONER OF POLICE, OFFICE OF THE COMMISSIONER OF POLICE, KOZHIKODE DISTRICT 673 001.** ## **3. KAKKODI GRAMA PANCHAYAT,** **REPRESENTED BY ITS SECRETARY, KAKKODI GRAMA PANCHAYAT OFFICE, KAKKODI P.O, KOZHIKODE 673 611.** **4. MAJEED,RTD AGRICULTURAL OFFICER, KATTIL PEDIKAYIL HOUSE, CHERUKULAM KAKKODI P.O, KOZHIKODE 673 611.** **5. SIVARAMAN,THAZHE PUTHIYA VEETTIL (H) CHERUKULAM, KAKKODI P.O, KOZHIKODE 673 611.** **6. RIYAS, MAKKADOL THAZHATHU HOUSE,CHERUKULAM , KAKKODI P.O, KOZHIKODE 673 611.** **ADV. SRI.P.V.KUNHIKRISHNAN FOR R3 SRI.M.P.MOHAMMED ASLAM FOR R4-6 GOVERNMENT PLEADER, SHRI DHANESH MATHEW MANJOORAN FOR R1 AND R2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 22050 of 2011(E)** ## **APPENDIX** ## **PETITIONER'S EXTS:** **EXT.P1 TRUE COPY OF THE AGREEMENT DT.9/4/2010 BETWEEN M/S.DELTA TELECOM INDIA PVT. LTD. AND M/S. INDUS TOWERS** - **EXT.P2 TRUE COPY OF BLDG. PERMIT NO.742/10-11 DT.9/2/2011 ISSUED BY THE SECRETARY, KAKKODI GRAMA PANCHAYATH** **EXT.P3 TRUE COPY OF THE COMPLAINT LODGED TO THE 1ST RESPONDENT DT.7/7/2011** - **EXT.P4 TRUE COPY OF THE RECEIPT OF COMPLAINT ISSUED BY THE 1ST RESPONDENT DT.7/7/2011** - **EXT.P5 TRUE COPY OF REGISTRATION CERTIFICATE BEARING NO.177/2008 DT.10/1/2008 ISSUED TO M/S.INDUS INFRATEL LTD., BY THE DIRECTOR, DEPARTMENT OF TELECOM** - **EXT.P6 TRUE COPY OF THE COMMUNICATION DT.25/07/2008 RECORDING THE NAME CHANGE BY THE DEPARTMENT OF TELECOM.** ## **RESPONDENTS EXTS:** - **EXT.R4(1) TRUE COPY OF THE COMPLAINT FILED BY PANAKKAL DINESH KUMAR AND 118 OTHERS BEFORE THE 3RD RESPONDENT DT.25/4/2011** - **EXT.R4(2) TRUE COPY OF THE CIRCULAR NO.25070/R.D.2/2011/LSGD DT.16/05/2011** - **EXT.R4(3) TRUE COPY OF THE DECISION OF THE 3RD RESPONDENT PANCHAYAT ARRIVED AT IN THE MEETING CONVENED ON 17/06/2011 AND DT.17/08/2011** **EXT.R4(4) TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 5TH RESPONDENT BEFORE THE 3RD RESPONDENT DT.22/7/2011** ## **`\\True copy//`** ``` P.A to Judge ``` PIUS C.KURIAKOSE & C.K.ABDUL REHIM,JJ. ------------------------------WP(C).NO. 22050 of 2011 --------------------------------Dated this the 24th day of October, 2011 ## JUDGMENT ## Abdul Rehim,J. The petitioner company is seeking police protection for its staff and employees for carrying out construction and other works of a Base Transceiver Station and its ancillary unit tower, in survey No.11/4 in Kakkodi Village, in Kozhikode District, from the threat and hindrance alleged to have been caused by respondents 4 to 6 and their men. Averments are to the effect that, by virtue of Ext.P1 agreement entered into with M/s. Indus Towers Ltd., which is a registered infrastructure provider, the petitioner had undertaken construction of the Telecommunication Tower in question, for which M/s. Indus Towers Ltd. had obtained Ext.P2 Building Permit from Kakkodi Grama Panchayat, the 3[rd] respondent herein. But when the petitioner company started the works relating to construction of the Telecommunication Tower on 7.7.2011, the respondents 4 to 6 along with some other persons threatened the workers and WP(C).22050/2011 2 created physical obstructions. Eventhough the petitioner submitted Ext.P3 complaint before the 1[st] respondent, no effective steps were taken to remove such obstructions and to afford protection to the activities of the petitioner. Hence this writ petition is filed. 2. According to the petitioner, M/s. Indus Towers Ltd. is a registered infrastructure provider entitled to establish and maintain Towers for the purpose of granting them same on lease/rent/sale to licensee of Telecom services, who are licenced under section 4 of the Indian Telegraph Act 1885. Ext.P5 is the certificate of registration issued to the infrastructure provider. It is submitted that the name M/s. Indus infratel Ltd., shown in Ext.P5 has been changed to M/s. Indus Towers Limited, as evidenced from Ext.P6. It is further contended that the obstruction is caused on the basis of apprehension that establishment of the Tower will cause health hazard to the neighbouring residents. It is contended that a Division Bench of this court in the decision in **Essar Telecom Infrastructure Pvt. Ltd vs. State of Kerala (2011 (2) KLT 516)** held that merely on the basis of allegations of apprehended radiation in deviation from the international standards prescribed, operation of mobile WP(C).22050/2011 3 towers could not be restrained, and this court cannot be prevented or held to decline jurisdiction to grant police protection if the petitioner is otherwise entitled for such establishment. Referring to another decision reported in **Essar Telecom Infrastructure Pvt. Ltd vs. C.I. Of Police (2010(2) KHC 445** **(FB) i** t is contended that in case of forceful obstruction by a group of people whose identity cannot be available, no efficacious relief can be obtained against the obstructors from the civil court and in such cases police protection is the only efficacious remedy. Hence the petitioner is seeking a writ of mandamus for a direction to afford adequate and effective police protection. 3. In the counter affidavit of respondents 4 to 6 it is contended that the petitioner had not obtained the requisite permits and licences for erecting the Tower in questiion. It is contended that the Tower which is proposed to be erected is a 'telegraph' as defined under section 2 (1AA) of the Indian Telegraph Act 1885. It is pointed out that section 4 of the said Act confers exclusive privilege in establishing, maintaining and working of telegraphs on the Central Government and it confers power on the Central Government to grant licences for such establishment, maintenance and working, to any person within WP(C).22050/2011 4 any part of India. According to respondents, since the petitioner is not issued with any licence as contemplated under section 4, they are not entitled to establish, maintain and work any telegraph including a Telecommunication Tower. Since the petitioner has not obtained any requisite permit as above, this court may not order police protection is the contention. On facts it is stated that, on the basis of apprehended health hazard which will be caused by establishment of the Telecommunication Tower, a mass petition has been submitted to the 3[rd] respondent as per Ext.R4(1). The respondents also points out Ext.R4(2) circular issued by the Government of Kerala instructing the local authorities to convene meetings and discussions on objections if any raised with respect to erection of mobile towers and to find out solution by finding alternative sites for establishing such towers. It is contended that the 3[rd] respondent have taken a decision to request the petitioner to relocate the tower as per Ext.R4(3), but without complying with such directions, this writ petition is filed. Yet another contention raised by the petitioner is that the Building Permit was granted by the 3[rd] respondent Panchayat without approval of site plan and that no installation permission was obtained from the 3[rd] respondent Panchayat WP(C).22050/2011 5 under section 233 (1)(b) of the Kerala Panchayat Raj Act required for establishment of any machinery. 4. Arguments of Sri.Krishna Prasad S, learned counsel for the petitioner and Sri.M.P.M.Aslam, learned counsel appeparing for respondents 4 to 6 were heard, at length. Contention of Sri.Aslam is to the effect that Ext.P5 registration cannot be considered as a licence contemplated under section 4 of the Telegraph Act, and without there being any such valid licence the petitioner company is not entitled to establish, maintain and work a telegraph. Per contra, Sri. Krishna Prasad contended that the petitioner company, by virtue of Ext.P1, has undertaken only the work of erecting a tower and all other machinery required for transmission or reception of signals will be established or installed only by the infrastructure provider or the telecom service provider. Erection of a tower is not installation of any machinery and the work is purely in the nature a fabrication works using iron and steel and other construction materials. The Tower as such is not a 'telegraph' and for establishing the Tower no licence as contemplated under section 4 is required, is the contention. 5. For the purpose of deciding the controversy, a WP(C).22050/2011 6 perusal of the definition of the 'telegraph' under section 3(1AA) will be beneficial. It defines the word 'telegraph' as any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing , images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or hertzian waves, galvanic, electric or magnetic means. The question posed is as to whether the Tower as such is capable of use for transmission or reception of signs or signals. It is common knowledge that only the instrument or appliance fitted to such Tower will be used for transmission or reception of signs and signals. Hence we have no hesitation to hold that the Tower as such is not a 'telegraph' coming within the purview of section 3 (1AA). Restriction imposed under section 4 is only with respect to establishments, maintenance and working of a 'telegraph'. Therefore the petitioner herein being a company which had undertaken the work of erection of a Telecom Tower is not under any obligation to get licence under section 4 of the Telegraph Act unless they establish, maintain or operate a 'telegraph'. 6. Further question arises as to whether the infrastructure provider, M/s. Indus Towers Ltd. requires any WP(C).22050/2011 7 licence under section 4, apart from Ext.P5 registration for establishing and maintaining or working of a 'telegraph' or in other words, for operating the Telecom Tower. Contention raised by Sri.Krishna Prasad is to the effect that, even the registered infrastructure providers are providing such facility only on behalf of licenced telecom service providers. It is the contention that if the establishment of any telegraph is intended for use of a licenced service provider, such establishment or maintenance or working can only be construed as an act for and on behalf of the licenced service provider. Therefore, the contention is that, once the service provider is licenced under section 4 the infrastructure provider who is only establishing and maintaining any instrument or appliance which will come within the purview of definition 'telegraph' on behalf of such service provider does not require a licence under section 4. However on the facts of the case at hand it is evident that the petitioner company is neither a service provider nor a infrastructure provider, but they are only a contracting company constructing Tower on behalf of the infrastructure provider. Therefore we are not proposing to enter upon any finding as to whether the infrastructure provider (M/s. Indus Towers Ltd. ) require any licence under section 4. Since WP(C).22050/2011 8 the protection sought for is only with respect to construction (erection of the tower) , we leave open the controversy for the parties to agitate at appropriate stage. 7. Further contention of respondents 4 to 6 is to the effect that Ext.P2 Building Permit is unsustainable since the same was granted without site approval as required under the provisions of the Kerala Municipality Building Rules. We notice that the respondents 4 to 6 or anybodyelse have not taken any steps to challenge Ext.P2 Building Permit. Nobody has approached the competent appellate authority in this regard. Therefore we are not in a position to evaluate the contention in this regard. Further there is no material placed before us to arrive at any conclusion that the Building Permit was granted without approval of the site. However it will be left open to the respondents to challenge Ext.P2 Building Permit, before appropriate appellate authority, if permissible under law. 8. Yet another contention raised is to the effect that, installation of any machinery for operation of the tower as well as its energisation, including installation of the Tower will amount to an installation of machinery as contemplated under section 233 of the Kerala panchayat Raj Act and in such case the WP(C).22050/2011 9 place in question will be considered as a work place which requires installation permit. We notice that in the decision in **Essar Telecom Infrastructure II** case ( cited supra) this court had specifically held that a mobile tower would not be a work place within the meaning of section 233 of the Kerala Panchayat Raj Act or section 448 of the Municipality Act. However in the said decision this court had left open the question as to whether the component parts of a mobile tower are machinery as contemplated under section 233(1) (b) of the Panchayat Raj Act. Therefore we do not propose to enter upon the question as to whether the installation permit is required for installation of components and for installation of generator and other equipments. 9. From the discussions as mentioned above we are proposing to dispose of the writ petition on the limited question as to whether the respondents 4 to 6 have any manner of right to obstruct construction (erection) of a Telecom Tower undertaken on the basis of Ext.P1 contract by the petitioner company. We do not find any legally tenable and sustainable ground to hold that the petitioner company is not legally entitled to do such construction. Therefore we dispose of the writ petition granting WP(C).22050/2011 10 relief to the limited extent. 10. There will be a direction to respondents 1 and 2 to take effective measures to remove obstructions if any caused to the staff and workers engaged by the petitioner company for construction (erection) of the Telecom Tower at the site in question. We direct to afford police protection for completing such works if there is any continued obstruction. 11. We make it clear that we have not arrived at any conclusion as to whether for installation of components of machinery, any permission is required as contemplated under section 233 (1)(b). We have also not decided as to whether such installation of machinery and operation of the Telecom Tower can be done by the infrastructure provider for and on behalf of a telecom service provider. ## PIUS C. KURIAKOSE,JUDGE C.K.ABDUL REHIM,JUDGE pmn/