High Court of KeralaDivision BenchWrit petition allowed; police protection direct...

Indus Towers Ltd. & Shibu Mathew v. The S.I. of Police, Cherpulassery Police Station, The C.I. of Police, Cherpulassery, The Superintendent of Police, Palakkad, Thrikkadere Grama Panchayat, Unniyankutty, Saidalavi, Majeed, Ali, Muhammed Ali, Hamsa, State of Kerala, Union of India (WP(C).No. 38766/2010)

Case / Petition Number:WP(C).No.38766/2010

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • R.BASANT
  • K.SURENDRA MOHAN
Judgment Date
2011-05-27
Court Decision / Holding
3/- This petition is allowed. Respondents 1 to 3 are directed to afford protection to the petitioner for undertaking the work of construction, installation and working of the mobile tower as permitted under Ext.P6 against any objection that may be raised by respondents 6 to 10. We make it clear that if there be any subsequent order of competent courts/authorities against undertaking of such work, this order of police protection cannot be enforced.
Final Disposition
Writ petition allowed; police protection directed to be provided to permit construction, installation and operation of the mobile tower, subject to conditions from the controlling Essar decision and future court orders.

Parties to the Case

Appellants / Petitioners

  • Indus Towers Ltd.
  • Shibu Mathew

Respondents

  • The S.I. of Police, Cherpulassery Police Station, Palakkad
  • The C.I. of Police, Cherpulassery, Palakkad
  • The Superintendent of Police, Palakkad
  • Thrikkadere Grama Panchayat, Thrikkadere, Palakkad District
  • Unniyankutty, S/O Moidu
  • Saidalavi
  • Majeed, S/O Mamootty
  • Ali, S/O Khadar
  • Muhammed Ali, S/O Sajutty Haji
  • Hamsa, S/O Mammed
  • State of Kerala, represented by Chief Secretary
  • Union of India, represented by Secretary, DoT

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. V. Philip Mathew

Counsels for Respondents

  • • Sri. M.R. Sabu (Senior Government Pleader)
  • • Smt. T.D. Rajalakshmi
  • • Sri. R. Sreehari
  • • T.P.M. Ibrahim Khan, CG

Case Synopsis & Summary

The petitioners—Indus Towers Ltd. and Shibu Mathew—approached the High Court seeking police protection to undertake the construction, installation and operation of a mobile telecommunications tower on the property with Ext.P6 permit issued by the fourth respondent Panchayat. Respondents 6 to 10 opposed the project, arguing non-compliance with Ext.P6 and pointing to a stop memo issued by the Panchayat, as well as ongoing civil litigation. The petition argues that the health hazards alleged by locals cannot override a project lawfully permitted, and that police protection would prevent obstruction and facilitate lawful work. The petition relies on precedents, notably Essar Telecom decisions, arguing that police protection can be granted subject to conditions set by higher courts. Respondents contend that the tower is not being constructed in terms of Ext.P6 and rely on orders in the local litigation (Ext.P8, CMA 32/2010). After considering pleadings and authorities, the Court cites Essar Telecom frameworks and concludes that police protection may be granted, subject to the observations and conditions in Essar Telecom (2011) 2 KHC 171. If subsequent court orders oppose the project, this order cannot be enforced. The petition is allowed with directions to provide police protection for the tower work.

Submissions & Arguments

Contentions of Appellants / Petitioners

Petitioners submit that Ext.P6 building permit issued by the 4th respondent Panchayat authorizes the erection and operation of a mobile tower on the petitioner's land. They contend service is complete since 6,7,9 respondents have appeared in proceedings, and no interim order bars construction. They argue that health hazards raised by locals cannot defeat a lawful project and police protection should be granted subject to the Essar precedents. They note a civil suit (by the 6th respondent) and a pending CMA, but maintain that police protection is a valid remedy to prevent obstruction and allow the project to proceed; they request directions to provide protection pending resolution of related litigation, with adherence to conditions laid down in jurisprudence.

Contentions of Respondents

Respondents object that construction is not in conformity with Ext.P6 and point to a stop memo by the Panchayat, Ext.P8 Munsiff's order and CMA 32/2010, pending before the Sub Court Ottappalam. They cite ongoing local disputes, potential health concerns and local resistance, urging the court to refrain from granting police protection until the civil matters are resolved. They argue that police protection cannot override pending court orders and that the Panchayat's permit may not suffice to authorize the contemplated tower. They request the court to consider the proper legal framework and to await competent orders before providing protection.

Cited Precedents (2)

Case NameCitationTreatmentExplanation
Essar Telecom Infrastructure (P) Ltd v C.I. of Police2010(2) KLT 762Mentioned OnlyCited in the discussion but not relied upon as the controlling authority; the court ultimately relies on the 2011 KHC 171 decision for the governing principles.
Essar Telecom Infrastructure (P) Ltd. v. State of Kerala2011(2) KHC 171PositiveCourt explicitly references and follows the observations/conditions laid down in this decision to grant police protection.

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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 R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **FRIDAY, THE 27TH MAY 2011 / 6TH JYAISHTA 1933** **WP(C).No. 38766 of 2010(U)** **-----------------------------------------** ## **PETITIONER(S):** **-------------------------** **1. INDUS TOWERS LTD., CIRCLE OFFICE AT: VANKARATH TOWERS, 8TH FLORR, 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, CHERPULASSERY POLICE STATION, PALAKKAD.PIN- 678 001.** **2. THE C.I. OF POLICE, CHERPULASSERY, PALAKKAD.PIN- 678 001.** **3. THE SUPERINTENDENT OF POLICE, PALAKKAD. PIN- 678 001.** **4. THRIKKADEERI GRAMA PANCHAYAT, THRIKKADEERI, PALAKKAD DISTRICT, REPRESENTED BY ITS SECRETARY. PIN- 679101.** **5. UNNIYANKUTTY, S/O MOIDU, NAMBITTIKULAM VEEDU, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101.** **sts 2/-** **-2-** ## **WP(C)NO.38766/2010** ## **6. SAIDALAVI,** **NAMBITTIKULAM VEEDU, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN-679 101.** **7. MAJEED, S/O MAMMOOTTY, PALATTUPARAMBIL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101.** **8. ALI, S/O KHADAR, PANNIKARETHODI, THRIKKADEERI P.O. OTTAPALAM, PALAKKAD DISTRICT.PIN-679 101** **9. MUHAMMED ALI, S/O SAJUTTY HAJI, KARIMBANAPALLIYAYIL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679 101.** **10. HAMSA, S/O MAMMED, PARACKAL, THRIKKADEERI P.O., OTTAPALAM, PALAKKAD DISTRICT. PIN- 679101.** **11. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.PIN-695 001** ## **12. UNION OF INDIA,** **REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-PIN- 110 001.** **R1 TO R3, R11 BY SENIOR GOVERNMENT PLEADER SRI.M.R.SABU R6, R7 & R9 BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI** **R12 BY ADV. T.P.M.IBRAHIM KHAN, CG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **3/-** **-3-** ## **WP(C)NO.38766/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES,NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA.** - **P2 COPY OF THE CERTIFICATE FOR COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA.** - **P3 COPY OF THE REGISTRATION CERTIFICATE NO.177/2008 DATED 10/01/2008 ISSUED BY THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS.** - **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.** - **P4(A) COPY OF THE EXHIBIT P4** - **P5 COPY OF THE COMMUNICATION SEND BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNICATIONS, NEW DELHI.** - **P6 COPY OF THE BUILDING PERMIT NO.41/2009-2010 DATED 22/05/09 ISSUED BY THE 4TH RESPONDENT PANCHAYAT TO FIRST PETITIONER.** - **P7 COPY OF THE ORDER DATED 22/12/2009 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.934/09.** - **P8 COPY OF THE ORDER DATED 23/10/2010 IN PASSED BY THE MUNSIF COURT, OTTAPALAM IN IA.1284/09 IN OS.NO.281/09.** - **P9 COPY OF THE REPRESENTATION DATED 03/12/10 SUBMITTED BEFORE THE 1ST RESPONDENT.** - **P10 COPY OF THE RECEIPT DATED 04/12/2010 ISSUED FROM THE OFFICE OF FIRST RESPONDENT.** - **P11 COPY OF THE ORDER DATED 21/12/2010 PASSED BY THIS HONBLE COURT IN WP (C)NO.37051/10.** ## **RESPONDENT'S EXHIBITS:** - **R6(A) COPY OF THE APPROVED PLAN FOR THE CONSTRUCTION OF THE MOBILE TOWER.** **sts 4/-** **-4-** ## **WP(C)NO.38766/2010** - **R6(B) COPY OF THE PLAINT IN OS NO.281/2009 OF MUNSIFF'S COURT, OTTAPALAM.** - **R6(C) COPY OF THE COMMISSIONER'S REPORT AND PLAN IN IA 1283/2009 IN OS 281/2009 OF MUNSIFF'S COURT, OTTAPALAM.** - **R6(D) COPY OF THE APPEAL MEMO-RANDUM IN CMA 32/2010 OF SUB COURT, OTTAPALAM.** - **R6(E) COPY OF THE AFFIDAVIT AND PETITION IN IA 3487/2010 IN CMA 32/2010 OF SUB COURT, OTTAPALAM.** ## **R6(F) COPY OF THE PLAN SUBMITTED BY THE PETITIONER BEFORE THE 4TH RESPONDENT FOR APPROVAL.** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **R.BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------W.P(C) NO:38766 OF 2010 U ----------------------------------------------------------Dated this the 27[th] May, 2011.** ## **JUDGMENT** ## Basant, J. Petitioners have come to this Court seeking issue of directions to respondents 1 to 3 to afford police protection to the petitioners to undertake the work of construction, installation and operation of a mobile tower in accordance with Ext.P6 permit issued by the fourth respondent Panchayat. It is the case of the petitioners that respondents 6 to 10 are raising illegal objections/obstruction against the petitioners undertaking construction in the property of the fifth respondent. 2. Service is complete. Respondents 6, 7 and 9 have entered appearance. They oppose the prayer in the petition. Inter alia it is contended that stop memo has been issued by the Panchayat against continuation of the work as per Ext.P6 building permit. It is further contended that the construction of the mobile tower is not being undertaken in terms of Ext.P6. It is pointed out that the sixth respondent has already filed a civil suit to stop the petitioner from undertaking the construction. In WPC 38766/2010 2 these circumstances police protection is not liable to be granted, it is contended. No other contentions are raised. 3. Our attention has been drawn to **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}** . The learned counsel for the petitioners submits police protection may be granted subject to the observations and conditions in **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171)** . 4. The objection raised about the working of the mobile tower causing health hazards to the members of the local community cannot now stand in the light of the precedents referred above. Learned counsel for the party respondents contends that the construction is not undertaken in terms of the permission granted under Ext.P6. We find that this question was considered by the Munsiff's Court in detail and Ext.P8 order has been passed. It is submitted that C.M.A 32/2010 is pending before Sub Court, Ottappalam against Ext.P8 decision. But no interim order has admittedly been obtained by the sixth respondent so far. WPC 38766/2010 3 5. Having considered all the relevant inputs, we are of the opinion that police protection can be afforded to the petitioners subject of course to the observations and conditions in **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171}** . If any interim or final orders are secured by the sixth respondent in the suit/C.M.A needless to say this order of police protection cannot be enforced. We do not otherwise find any valid objection against the prayer made in the writ petition. 6. In the result; a) This petition is allowed. b) Respondents 1 to 3 are directed to afford protection to the petitioner for undertaking the work of construction, installation and working of the mobile tower as permitted under Ext.P6 against any objection that may be raised by respondents 6 to 10. c) We make it clear that if there be any subsequent order of competent courts/authorities against undertaking of such work, this order of police protection cannot be enforced. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 38766/2010 4 WPC 38766/2010 5