Indus Towers Ltd. and Shibu Mathew v. The S.I. of Police, Vyyyur Police Station, Thrissur District & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 3RD JUNE 2011 / 13TH JYAISHTA 1933** ## **WP(C).No. 31365 of 2010(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 MATHEWS** ## **RESPONDENT(S):** - **-------------------------** **1. THE S.I. OF POLICE, VIYYUR POLICE STATION, THRISSUR DISTRICT.** **2. THE C.I. OF POLICE, THRISSUR.** **3. THE SUPERINTENDENT OF POLICE, THRISSUR.** **4. KOLAZHY GRAMA PANCHAYAT, KOLAZHY, THRISSUR DISTRICT. REPRESENTED BY ITS SECRETARY.** **5. A.D.FRANCIS, S/O.A.O.DEVASSY, ALOORVIYYOKARAN HOUSE, KUTTUR P.O., THRISSUR DISTRICT-680 013.** **6. SHYJU, EX PANCHAYAT MEMBER, ORUPPAKAL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT 680 013.** **...2/-** **WP(C).No. 31365 of 2010(U) -2-** **7. ANIL KUMAR, PLAVINKOOTATHIL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT-680 013.** **8. GEORGE, ALUKKA HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT-680 013.** **9. DINESH KUMAR, PLAVINKOOTATHIL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT- 680 013.** **10. BALAKRISHNAN, NARANGALIL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT-680 013.** **11. AJAYAN, KUNNATHU HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT 680 013.** **12. RADHAKRISHNAN, PLAVINKOOTATHIL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT 680 013.** **13. RAJU, NARANGALIL HOUSE, PAMBOOR P.O., KUTTUR, THRISSUR DISTRICT-680 013.** **14. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **15. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI- 110001.** **R1 TO R3 & R14 BY GOVT. PLEADER SRI. T.K. VIPINDAS R4 BY ADV. SRI.K.N.VINODKUMAR R6 TO R13 BY ADV. SRI.D.SREEKUMAR R15 BY ADV. SRI. T.P.M. IBRAHIM KHAN, ASG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...2/-** **WP(C).No. 31365 of 2010(U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **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 FOR 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 10-1-2008 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 EXHIBIT P4.** - **EXT.P5 : COPY OF THE COMMUNICATION SEND BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI.** - **EXT.P6 : COPY OF BUILDING PERMIT NO. BP-7806/10 DATED 25-09-2010 ISSUED BY THE 4TH RESPONDENT PANCHAYAT TO FIRST PETITIONER.** - **EXT.P7 : COPY OF THE REPRESENTATION DATED 5-10-2010 SUBMITTED BEFORE THE 1ST RESPONDENT.** - **EXT.P8 : COPY OF RECEIPT DATED 6-10-2010 ISSUED FROM THE OFFICE OF 1ST RESPONDENT.** ## **RESPONDENT'S EXHIBITS:** - **EXT.R6(a) : COPY OF THE MASS-REPRESENTATION SUBMITTED BY THE PUBLIC.** - **EXT.R6(b) : COPY OF THE APPEAL MEMORANDUM BEFORE THE PANCHAYATH COMMITTEE.** - **EXT.R6(c) : COPY OF THE REQUEST DATED 7/10/2010.** - **ANNEX R4(a) : DECISION OF THE PANCHAYATH COMMITTEE NO. 18(2) DT. 14-12-2010.** **//TRUE COPY//** **P.S. TO JUDGE** **Mn** ## **R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.31365 of 2010-U** ## ********************************* Dated this the 3[rd] day of June, 2011 ## **JUDGMENT** ## BASANT, J. The petitioners have come to this Court seeking issue of directions under Article 226 of the Constitution of India to respondents 1 to 3 to afford police protection for the petitioners to enable them to undertake the work of construction, installation and operation of a mobile tower as permitted under Ext.P6 building permit issued by the 4[th] respondent in the property of the 5[th] respondent against any illegal objection/obstruction that is raised by respondents 6 to 13. 2. Respondents have been served. A counsel appears for the 4[th] respondent Kolazhy Grama Panchayat. It is submitted that subsequent to the issue of Ext.P6, a stop memo was issued. The same was challenged before the Tribunal for Local Self Government Institutions. The Tribunal by its judgment dated 07.04.2011 in Appeal No.99 of 2011 has set aside the stop memo and now the appellant is entitled to construct the mobile tower in accordance with Ext.P6 permit. 2 **W.P(C) No.31365 of 2010-U** 3. Respondents 6 to 13 have entered appearance through a counsel. The learned counsel for respondents 6 to 13 opposes the application. Counter affidavit has been filed. Health hazards to which the members of the local community would be exposed in the event of installation and operation of the tower is the only other ground raised. 4. Our attention has been drawn to the precedents in **Essar Telecom Infrastructure (P) Ltd. v. C.I of Police** [2010 (2) KLT 762] and **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala** [2011 (2) KHC 171]. Ext.P6 is a regular permit. It is in force and can be enforced now. We are satisfied, in these circumstances, that protection can be granted to the petitioners as prayed for. 5. In the result: a) This Writ Petition is allowed; b) Respondents 1 to 3 are directed to afford adequate and sufficient police protection to the petitioners to enable them to undertake the work of construction, installation and operation of a telecommunication in accordance with Ext.P6 permit issued by the 4[th] respondent in the property of the 5[th] respondent against obstructions/objections that are raised by respondents 6 to 13; 3 ## **W.P(C) No.31365 of 2010-U** c) Needless to say, this order for police protection is subject to the conditions and observations in **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala** [2011 (2) KHC 171]. **(R.BASANT, JUDGE)** **(K.SURENDRA MOHAN, JUDGE)** rtr/ 4 **W.P(C) No.31365 of 2010-U** ## **R.BASANT & K.SURENDRA MOHAN, JJ. *********************** W.P(C) No.31365 of 2010 ******************************* Dated this the 21[st] day of January, 2011 ## **ORDER** ## BASANT, J. The 4[th] respondent has today appeared through another counsel, Advocate K.M.Vinodkumar. The counsel submits that the permit granted to the petitioners to construct the tower has been stopped by the Panchayat. But it is surprising to note that 5 ## **W.P(C) No.31365 of 2010-U** the Panchayat, in spite of opportunities granted, has not so far chosen to file a statement or produce before Court a copy of such stop memo. The learned counsel for the petitioners submits that the petitioners are unaware of any such stop memo and they have not been served with a copy of the same. 2. One last opportunity is granted to the 4[th] respondent to file objections, if any. File such objections in two days with copy to the learned counsel for the petitioner. 3. Call on 25.01.2011 for hearing and disposal. **(R.BASANT, JUDGE)** **(K.SURENDRA MOHAN, JUDGE)** rtr/