High Court of KeralaDivision Bench2011-08-17Disposed of with directions as stated: grant po...

Indus Towers Ltd. and Shibu Mathew v. State of Kerala and Others

Case / Petition Number:WP(C).No. 17968 of 2011(U)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Pius C. KuriaKose
N. K. Balakrishnan
Judgment Date: 2011-08-17
Court Decision / Holding: 1) Respondents 1 to 3 shall grant adequate and effective police protection to the petitioners, their agents and workers for erecting a mobile transmission tower on the specified property, after a period of three weeks from today, provided that the Tribunal for Local Self Government Institutions has not stayed the operation of Ext.P6. 2) The energization of the tower will be decided later.
Final Disposition: Disposed of with directions as stated: grant police protection for erection after three weeks if Ext.P6 remains un-stayed by the Tribunal; energization to be decided later.

Parties to the Case

Appellants / Petitioners

INDUS TOWERS LTD.
Shibu Mathew

Respondents

S.I. of Police, Ponni, Malappuram District
C.I. of Police, Ponni, Malappuram District
Superintendent of Police, Malappuram
Ponnani Municipality
Ranganathan, S/O. Achuthan
Narayanan, Theratty House, Mukkoottackal Palam
Kuttan, S/O. Narayanan
Prasad, S/O. Narayana
Prasad, S/O. Nanu
Babu, S/O. Vasu
Shaji, S/O.Arumughan
Anoop, S/O. Kuttaapu
Velayudhan, S/O. Appukuttan
Narayanan, Kottamel House
State of Kerala
Union of India

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Philip Mathew

Counsels for Respondents

• Sri. C.M. Mohammed Iquabal (for R4)
• Sri. K. Ramakumar, Senior Advocate (for R6 to R13)
• Sri. T. Ramprasad Unni (for R6 to R13)
• Smitha George (for R6 to R13)
• GOVT. PLEADER Smt.C.M.Charisma
• Sri.P. Parameswaran Nair, ASG (for Union of India)

Case Synopsis & Summary

This High Court of Kerala writ petition concerns a mobile telecommunications service provider (Indus Towers Ltd.) and its partner Shibu Mathew seeking police protection to construct and energize a Base Transceiver Station (BTS) tower at Ezhuvathiruthy village, Ponnani taluk, Malappuram. The petition asserts that the building permit Ext.P6 was issued lawfully and urges the court to permit erection with police protection, arguing that delays in energization would impede telecom services. Respondents, including the S.I. of Police, C.I. of Police, the Superintendent of Police, the Ponnani Municipality, and several nearby residents, challenge the legality of the permit and raise health-safety concerns from radiation emitted by energized towers. The court frames two central objections: (i) whether the building permit was granted in accordance with law, and (ii) whether energization poses health hazards to nearby residents. It cites Essar Telecom Infrastructure (P) Ltd. v. State of Kerala to address health hazard concerns and indicates that the legality of the permit can be tested via appeal to the Tribunal for Local Self Government Institutions, with interim relief possibly staying Ext.P6. The court directs a three-week window for obtaining interim relief, after which police protection for erection will be granted, with energization to be decided later. The disposing order balances telecom needs, due process, and safety considerations.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that police protection was essential to enable erection and energisation of the BTS tower on the petitioners’ property. They asserted that Ext.P6, the building permit, was issued in accordance with law after due process, and that any challenge to its legality should be addressed through the Tribunal for Local Self Government Institutions rather than by delaying construction. They argued that energization would be governed by subsequent orders, and interim protection should be granted if the Tribunal has not stayed Ext.P6. The petitioners emphasized the urgent public interest in telecom services and asserted that health concerns are to be decided within the statutory framework rather than blocking project progress. They acknowledged the possibility of judicial scrutiny but urged expeditious protection subject to legal remedies.

Contentions of Respondents

The respondents argued that the building permit may not have been issued in strict compliance with the law, and hence police protection for construction should not be granted. They raised health hazard concerns from radiation emitted by energized towers to nearby residents, invoking safety principles established in jurisprudence. They urged that the legality of the permit be tested via appeal to the Tribunal for Local Self Government Institutions and that interim relief, including stay orders, should be available to safeguard public interest. They relied on Essar Telecom Infrastructure (P) Ltd. v. State of Kerala to underscore health concerns and urged the court to defer energization pending Tribunal proceedings and proper statutory remedy.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Essar Telecom Infrastructure (P) Ltd. v. State of Kerala	2011(2) KLT 516	Positive	The court relies on this Division Bench decision to address health hazard concerns related to radiation from towers, indicating the case supports incorporating public health considerations in telecom infrastructure decisions.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 17968 of 2011(U) -------------------------------- ## 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. SHIBU MATHEW,S/O. MATHEW,PALATHARA HOUSE, THURUTHY.P.O., CHANGANASSERY,KOTTAYAM DISTRICT. (PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY. BY ADV. SRI.V.PHILIP MATHEW ## RESPONDENT(S): -------------------- 1. THE S.I. OF POLICE, PONNANI, MALAPPURAM DISTRICT-679577 2. THE C.I. OF POLICE, PONNANI, MALAPPURAM DISTRICT-679577 3. THE SUPERINTENDENT OF POLICE, MALAPPURAM-676505 4. PONNANI MUNICIAPALITY, PONNANI MUNICIPAL OFFICE, PONNANI, MALAPPURAM DISTRICT-679577 REPRESENTED BY ITS MUNICIPAL SECRETARY. WP(C).No. 17968 of 2011(U) -2- 5. RANGANATHAN, S/O. ACHUTHAN, MUKOOTACKAL,EZHUVATHIRUTHY VILLAGE,PONNANI, MALAPPURAM DISTRICT-679577 6. NARAYANAN, THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 7. KUTTAN, S/O. NARAYANAN,THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 8. PRASAD, S/O. NARAYANA, THERATTY HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 9. PRASAD, S/O. NANU, MARILA VALAPPIL, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 10. BABU, S/O. VASU, KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 11. SHAJI, S/O.ARUMUGHAN,KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 12. ANOOP, S/O. KUTTAAPU, KOTTAMMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 13. VELAYUDHAN, S/O. APPUKUTTAN, KORATTIYIL HOUSE, - MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 14. NARAYANAN, KOTTAMEL HOUSE, MUKKOOTTACKAL PALAM,EZHUVATHIRUTHY VILLAGE,PONNANI MALAPPURAM DISTRICT-679577 15. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695001 WP(C).No. 17968 of 2011(U) -3- 16. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN 20, ASHOKA ROAD, NEW DELHI-110001. ADV. SRI.C.M.MOHAMMED IQUABAL FOR R4 SRI.K.RAMAKUMAR, SENIOR ADVOCATE FOR R6 TO 13 SRI.T.RAMPRASAD UNNI FOR R6 TO 13 SMT.SMITHA GEORGE FOR R6 TO 13 GOVT. PLEADER SMT.C.M.CHARISMA SRI.P.PARAMESWARAN NAIR, ASG THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 17968 of 2011(U) ## APPENDIX PETITIONERS' EXTS EXT.P1:- COPY OF the CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P2:- COPY OF THE CERTIFICATE OF COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P3:- COPY OF THE REGISTRATION CERTIFICATE NO.177/2008 DATED 10/01/08 ISSUED BY THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS. EXT.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. EXT.P4(a):- TYPED COPY OF EXT.P4 EXT.P5:- COPY OF THE COMMUNICATION SENT BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI. EXT.P6:- COPY OF BUILDING PERMIT NO.67/11-12 DATED 25/05/11 ISSUED BY THE 4TH RESPONDENT. EXT.P7:- COPY OF THE REPRESENTATION SUBMITTED BY THE 2ND PETITIONER TO THE FIRST RESPONDENT. EXT.P8:- COPY OF THE POSTAL RECEIPTS. EXT.P9:- COPY OF THE RECEIPT DATED 26/06/11 ISSUED BY THE FIRST RESPONDENT. RESPONDENTS' EXTS EXT.R9(a):- TRUE COPY OF THE MEMORANDUM SUBMITTED BY THE RESIDENTS OF THE MUKKUTTUKKAL PALAM IN 13TH WARD OF PONNANI MUNICIPALITY. EXT.R9(B):- TRUE COPY OF CIRCULAR NO.25070/R.D.2/2011/LSGD DT.16/05/11 BY THE GOVT. OF KERALA. EXT. R4(a):- THE TRUE COPY OF THE REPRESENTATION DATED 24/06/11 FILED BY THE INHABITANTS OF THE MUNICIPALITY. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & N. K. BALAKRISHNAN, JJ. -----------------------------------------------W. P. C. No.17968 of 2011 -----------------------------------------------Dated this the 17[th] day of August, 2011 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ A mobile telephone service provider and their contractor for the construction of a mobile tower (Base Transceiver Station) are before this Court seeking police protection for construction of the mobile tower and for its subsequent energisation. Detailed pleadings have been raised by the parties and the stand taken by the Municipality is that they have issued a building permit in accordance with the rules after conducting necessary enquiries. In the counter affidavit filed by the party respondents 9 and 11 to 13 they have inter alia contended that an appeal has been preferred to the Municipal Council against the permit issued. It is also contended that the radiation emanated by the W. P. C. No.17968 of 2011 -2- energisation of the tower will result in serious health hazards to the neighbouring public. Sri.K.Ramakumar, senior counsel for the contesting respondents submitted before this Court that the District Collector has initiated some proceedings for holding up the permit and for preventing the construction of the tower. In view of that submission, we directed the learned Government Pleader to seek instructions from the Collector as to whether he has intervened on the basis of complaint received from the persons who are opposed to the construction. Accordingly Smt.C.M.Charisma, the learned Government Pleader submitted on 02/08/11 that the Collector received a complaint from the 6[th] respondent and the Collector forwarded that complaint to the 4[th] respondent for remarks. The learned counsel for the Municipality submitted before us today that the remarks forwarded by the Municipality to the Collector was only that this Writ W. P. C. No.17968 of 2011 -3- Petition is pending before this Court. 2. Very extensive submissions were addressed before us by the counsel for the petitioners and the counsel appearing for the various respondents including the counsel for the Municipality. The question is whether the police protection directions sought for should be granted. The construction is opposed by the opposing respondents on two grounds. 1) The issuance of the building permit has not been in accordance with law. 2) If the tower is constructed and energised the same will result in health hazards to the neighbouring public. The issue of health hazards is covered against the opposing respondents by judgment of a Division Bench of this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2), KLT 516) . As for the legality of the permit we are of the view that the statutory remedy available to persons who are challenging the said legality is W. P. C. No.17968 of 2011 -4- to prefer appeal to the Tribunal for Local Self Government Institutions. It is open to the party respondents to challenge the permit issued to the first petitioner before the Tribunal within a period of three weeks from today and obtain interim orders staying operation of the permit. If such interim orders are not obtained there is no justification for not granting permission to the petitioners to construct the tower. Under the above circumstances, this Writ Petition will stand disposed of issuing the following directions:- 1) Respondents 1 to 3 will grant adequate and effective police protection to the petitioners, their agents and workers for erecting mobile transmission tower in the property situated in Survey No.226/B of Ezhuvathiruthy village, Ponnani Taluk, Malappuram District on the basis of Ext.P6 after a period of three weeks from today on condition that in the meanwhile, the Tribunal for Local Self Government W. P. C. No.17968 of 2011 -5- Institutions has not stayed the operation of Ext.P6. We clarify that the question of energization of the tower will be decided later. PIUS C. KURIAKOSE JUDGE N. K. BALAKRISHNAN JUDGE kns/-