Indus Towers Limited v. The District Police Chief, Thiruvananthapuram; The Station House Officer, Pettah Police Station; Suji A S (Secretary, Anayara Kizha kkathil Sree Bhagavathy Temple Trust)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **WP(C).No.16043 OF 2020(E)** ## **PETITIONER:** **INDUS TOWERS LIMITED, 8TH FLOOR, VANKARATH TOWER, PALARIVATTOM 682 024 (REPRESENTED BY ITS HEAD -LEGAL-MR. RAJKUMAR PAVOTHIL, S/O. P. NARENDRAN, AGED 41 YEARS, RESIDING AT MIDHILA, THAMARAKULANGARA, THRIPUNITHURA)** **BY ADV. SRI.P.DEEPAK** ## **RESPONDENTS:** - **1 THE DISTRICT POLICE CHIEF, THIRUVANANTHAPURAM, THIRUVANANTHAPURAM 675 034** - **2 THE STATION HOUSE OFFICER, PETTAH POLICE STATION, THIRUVANANTHAPURAM 695 024** - **3 * ADDL R3 SUJI A S, AGED 38 YEARS, S/O SIVAPALAN, KUNNUVILA VEEDU, OOLANKUZHI ANAYARA, KADAKAMPILLY VILLAGE, SECRETARY, ANAYARA KIZHAKKATHIL SREEBHAGAVATHI TEMPLE TRUST, THIRUVANANTHAPURAM – 695 029. * ADDL R3 IMPLEADED AS PER ORDER DATED 11.11.2020 IN I.A.NO.1 OF 2020 R3 BY ADV. G.P.SHINOD R3 BY ADV. SRI.GOVIND PADMANAABHAN R3 BY ADV. SHRI.AJIT G ANJARLEKAR** **SRI KP HARISH SR GOVERNMENT PLEADER SRI BS SWATHY KUMAR SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.16043 OF 2020** **2** ## **JUDGMENT** The petitioner, a company incorporated under the Companies Act, 1956 is engaged in offering passive infrastructure services to all telecom operators and other wireless service providers. The company has been issued with Ext.P1 building permit by the Corporation of Thiruvananthapuram for the construction of a telecommunication tower. While the company was engaged in the process of constructing the tower, they met with resistance from some unidentifiable persons. When work was disrupted, the petitioner approached the second respondent and requested for protection to enable them to carry out the work. According to them, no support was extended in spite of the fact that Telegraph and Telephone service has been declared as an essential service as per the Disaster Management Act and also under the relevant provisions of the Essential Services Maintenance Act, 1968. 2. The petitioner refers to Exhibit P2 communication issued by the Chairman, Kerala State Telecom Disaster Coordination Committee whereby directions have been issued to the District Administration and the Police to provide support to the telecom infrastructure providers and also to support the personnel for carrying out installation and maintenance and also to the passive infrastructure establishment and all other entities connected thereto. **WP(C).No.16043 OF 2020** **3** Instead of acting in terms of Exhibit P2, the Police are taking a lethargic attitude which gives an added impetus to antisocial elements to disrupt the work, contends the petitioner. They contend that due to the epidemic and containment issues, most of the people are forced to stay at home and work from home. Schools and Colleges are also closed, and the students are studying from home by utilising videoconferencing and other Internet facilities. According to the petitioner, infrastructure service providers provide the backbone and they are in the process of building infrastructure to cope up with the unprecedented demand for data to ensure that the entire population has access to Internet services for health, recreation and work without any disruption whatsoever. They would contend that Internet services like online payment, banking services, essential services etc. can be effective only if the Internet is nippy and fast. 3. It is in the afore circumstances that the petitioner approached this Court seeking a direction to the respondents to provide adequate protection to the staff and employees of the petitioner to proceed with the construction of the telecommunication tower on the strength of Exhibit P1 permit without any threat obstruction or hindrance from any person. 4. By order dated 7.8.2020, an interim order was granted to the petitioner and the same is in force. 5. While so, an application for impleadment has been filed by the Secretary of the Anayara Kizhekkethil Sree Bhagavathy Temple Trust. The **WP(C).No.16043 OF 2020** **4** said application was allowed. 6. In the counter affidavit filed by the 3rd respondent, it is contended that this Court by the judgment in **Indus Towers Ltd. v. Sub Inspector of Police** [2014 (4) KHC 81], had observed that when an effective procedure has been provided for the purpose of resolving the issues relating to installation or energizing of Mobile Telecommunication Towers before the District Telecom Committee, the parties ought to have approached the said authority before approaching this Court. It is further contended that the additional 3rd respondent had approached the Secretary of the Thiruvananthapuram Corporation challenging the grant of permit and by Ext.R3(d), the construction activities have been ordered to be kept in abeyance. It is further stated that the tower is intended to be put up in close proximity to a temple where fireworks are conducted during annual festivals and it is taking note of the said aspect that the construction was ordered to be kept in abeyance by the local authority. According to the 3rd respondent, it is only just and proper that the disputes be referred to the DTC with directions to expedite the proceedings. 7. In reply, the petitioner has produced Ext.P4 location plan and it is argued that the tower proposed is a ground based mast site by leaving proper distance and hence, the apprehension expressed by the party respondent has no basis. It is further stated that the Tribunal for Local Self Government Institutions has by Ext.P5 order stayed the order passed by the **WP(C).No.16043 OF 2020** **5** Town Planning Officer and in that view of the matter, there is no embargo in continuing with the construction. 8. I have heard Sri. P. Deepak, the learned counsel appearing for the petitioner and the learned Government Pleader. 9. The main contention of the additional respondent in the counter is that the construction of the tower in an area near to the temple where fireworks are conducted annually will be detrimental to the safety of the local people. The next contention is that this Court will not be justified in granting protection particularly in view of the fact that the petitioner has rushed to this Court without approaching the DTC. Though it is contended that the construction has been stayed by the Town Planner, it is evident from Ext.P5 that the proceedings have been stayed by the Tribunal. 10. Though I am also of the view that in the facts of the instant case, the petitioner ought to have approached the DTC which is well functioning at the Capital City, I find it ridiculous that the 3rd respondent has come up with a contention that erection of a ground based mast site to enhance network connectivity would be the cause of a health hazard, particularly when fireworks are blasted during annual festivals at the nearby temple. 11. During the crisis caused due to the pandemic, when the entire populace is cloistered in their own homes, every individual and establishment, both private and public, rely on the internet for extending **WP(C).No.16043 OF 2020** **6** their services. The existence of people has shifted online, from work meetings to school classes to stay in touch with family members and friends. This Court also has been hearing cases from the day lockdown was imposed through video conferencing. In the said circumstances, it is vitally important for the telecom industry to ensure minimum disruption to networks. If the service providers fail to provide data with a minimum speed, everything would have come to a grinding halt. The students would have lost an entire year as schools are yet to open. The Government offices, private establishments as well as banks would have been unable to transact any business. Even courts would have been unable to continue with the proceedings to address this growing demand and ensure equitable access to high-quality broadband, the Country needs to significantly ramp up its communications infrastructure. In that view of the matter, the role of the petitioner as infrastructural providers cannot be underplayed. Furthermore, this Court in **Indus Towers Ltd** ( supra) had conclusively held that there are no materials to conclude that Electro-Magnetic Radiation from Mobile Telecommunication Towers would cause any health hazard. Be that as it may, I am of the considered opinion that the contentions raised is best considered by the DTC. 12. The learned Government Pleader on instructions submitted that the DTC has started functioning and it can be convened in an expeditious manner so that the matter can be disposed of within an outer limit of 15 days. **WP(C).No.16043 OF 2020** **7** 13. In that view of the matter, I direct the petitioner to approach the District Collector, Thiruvananthapuram, who is the Chairman of the DTC within a period of one week from today. The District Collector shall convene a meeting of the DTC within a further period of one week and the additional 3rd respondent shall be noticed. The DTC shall consider the grievances and pass appropriate orders within a period of 30 days from 15.11.2020. Till orders are passed by the DTC, the 1st respondent shall direct his subordinates to ensure that law and order is maintained. This Writ Petition will stand disposed of. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** sru **WP(C).No.16043 OF 2020** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE BUILDING PERMIT ISSUED ON 02-11-2019 BY CORPORATION OF THIRUVANANTHAPURAM (WARD NO.76)** - **EXHIBIT P2 TRUE COPY OF THE ORDER DATED 24-03-2020 OF DEPARTMENT OF TELECOMMUNICATIONS, MINISTRY OF TELECOMMUNICATIONS, GOVERMENT OF INDIA, ERNAKULAM, KERALA** ## **EXHIBIT P3** **TRUE COPY OF THE COMPLAINT DATED 04-08-2020 FILED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P3(IN A TRUE COPY OF THE JUDGMENT DATED 24/07/2020 REPLY AFFIDAVIT) IN W.P.(C).NO.12473 OF 2020** - **EXHIBIT P4 A TRUE COPY OF THE LOCATION PLAN OF THE PROPOSED TELECOMMUNICATION TOWER.** - **EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 09/10/2020 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN IA NO.831/2020 IN APPEAL NO.438/2020** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R3(a) A TRUE COPY OF THE REPRESENTATION DATED 26/09/2020 SUBMITTED BY THE SECRETARY OF ANAYARA KIZHAKKATHIL SREEBHAGAVATHI TEMPLE BEFORE THE DISTRICT LEVEL TELECOM COMMITTEE.** **EXHIBIT R3(b) A TRUE COPY OF THE PETITION DATED 27/09/2020 SUBMITTED BY THE SECRETARY OF ANAYARA KIZHAKKATHIL SREEBHAGAVATHI TEMPLE BEFORE THE SECRETARY OF THIRUVANANTHAPURAM CORPORATION.** **WP(C).No.16043 OF 2020** **9** **EXHIBIT R3(c) A TRUE COPY OF THE NOTICE DATED 28/09/2020 ISSUED BY THE TOWN PLANNING OFFICER OF THE CORPORATION OF THIRUVANANTHAPURAM TO THE PETITIONER.** **EXHIBIT R3(d) A TRUE COPY OF THE LETTER DATED 01/10/2020 ISSUED BY THE ASSISTANT ENGINEER OF CORPORATION OF THIRUVANANTHAPURAM.**