Indus Towers Ltd. v. The Superintendent of Police, Kasaragod District & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE & THE HONOURABLE MR. JUSTICE K.HARILAL THURSDAY, THE 17TH NOVEMBER 2011 / 26TH KARTHIKA 1933 WP(C).No. 13580 of 2011(V) -------------------------------- 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, PALATHRA HOUSE, THURUTHY.P.O., CHANGANASSERY, KOTTAYAM DISTRICT. (PARTNER, PALATHRA CONSTRUCTIONS, CHANGANCHERRY). BY ADV. SRI.V.PHILIP MATHEW ## RESPONDENT(S): - ------------------- 1. THE SUPERINTENDENT OF POLICE, KASARAGOD DISTRICT-671121 2. THE C.I. OF POLICE, KANHANGAD, KASARAGOD DISTRICT.-671315 3. SUB INSPECTOR OF POLICE, KANHANGAD POLICE STATION,KASARAGOD DISTRICT.-671315 4. KNAHANGAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KANHANGAD.P.O., KASARAGOD DISTRICT.-671315 5. SUNIL KUMAR, S/O.NARAYANAN, APPATHIVALAPPU HOUSE, NELLIKKATTU.P.O., KASARAGOD DISTRICT.-671121 WP(C).No. 13580 of 2011(V) -2- 6. BIJU, S/O. KARTHYAYINI, APPATHIVALAPPU HOUSE, NELLIKKATTU.P.O.,KASARAGOD DISTRICT.-671121 7. SUNIL KUMAR S/O. RAMAN, APPATHIVALAPPU HOUSE, NELLIKKATTU.P.O., KASARAGOD DISTRICT.-671121 8. BABU, S/O. SAROJINI, APPATHIVALAPPU HOUSE, NELLIKKATTU.P.O., KASARAGOD DISTRICT.-671121 9. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 10. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-110001. 11. M. PANDURENGA RAO, RAJESWARI NIVAS, NELLIKKATU, BALLA.P.O., KASARAGOD DISTRICT.-671531 ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA FOR R10 SRI.M.SASINDRAN FOR R5-8 SRI.A.ARUNKUMAR FOR R5-8 SRI.T.K.VIPINDAS FOR R4 SMT.P.K.PRIYA FOR R4 SR. GOVT. PLEADER SRI.M.K.ABOOBACKER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 13580 of 2011(V) APPENDIX PETITIONER'S EXTS EXT.P1:- COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE ASST. REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P2:- COPY OF THE CERTIFICATE FOR COMMENCEMENT OF BUSINESS ISSUED BY THE ASST. REGISTRAR OF COMPANIES, NAITONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P3:- COPY OF THE REGISTRATION CERTIFICATE NO.177/08 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 DY. REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT.P4(a):- TYPED COPY OF EXT.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.BA 994/10-11 DATED 23/02/11 ISSUED BY THE 4TH RESPONDENT. EXT.P7:- COPY OF THE REPRESENTATION DT. 26/03/11 SUBMITTED BEFORE THE 1ST RESPONDENT. EXT.P8:- COPY OF THE POSTAL RECEIPTS. //TRUE COPY// P.A. TO JUDGE PIUS C. KURIAKOSE & K. HARILAL, JJ. -----------------------------------------------W. P. C. No.13580 of 2011 -----------------------------------------------Dated this the 17[th] day of November, 2011 ## **JUDGMENT** ## _Pius C. Kuriakose, J_ The petitioner, a company which provides infrastructure for mobile telephone service providers and the company's contractor who was being given the work of constructing a BTS in Balla village, Kasargod District have approached this Court seeking police protection for the construction of the Mobile Telecommunication Transmission tower free of obstructions from the party respondents. It is alleged that the party respondents who are members of the local public inhabiting the area where the tower is proposed to be constructed are raising obstructions alleging that several health hazards will result if the tower is constructed and subsequently energised. Sri.T.K.Vipindas appearing for the 4[th] respondent Municipality submitted that it is true that Ext.P6 Building Permit was issued by the Municipality in W. P. C. No.13580 of 2011 -2- favour of the 1[st] petitioner for construction of the proposed tower. However, the local public agitated and they have submitted a mass representation. The Municipality intends to convene a conference of the petitioners and the representations of the local public so that an endeavour can be made for sorting out the issue. The party respondents have filed a counter. They have produced Ext.R5(a) which is copy of the representation submitted by the local public to the Chair Person of the Municipality. It is contended that the persons who have been arrayed as party respondents are not physically obstructing the work of construction. But it is pointed out that the residents in the locality have formed an action committee and they agitated against the proposed construction and they have filed mass representation signed by as many as 236 persons against the construction. They apprehend that serious health hazards will result if the tower is constructed and permitted to be energized. 2. Extensive submissions were addressed before us by W. P. C. No.13580 of 2011 -3- Sri.Philip Mathews, the learned counsel for the petitioner, Sri.T.K.Vipindas, the learned Standing Counsel for the Municipality and Sri.M.Sasindran, counsel for the party respondents. The only question which falls for decision by us is whether the protection direction sought for should be granted. The stand taken by the party respondents is that though they are not personally obstructing the construction there is agitation amongst the local public against the proposed tower. The apprehension of the local public is that if the tower is constructed and permitted to be energized serious health hazards will result. The issue of health hazards was considered by a Division Bench of this Court in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011 (2), KLT 516) . It is observed in the above judgment that the health hazards which would result from the transmission through Base Transceiver Stations will be minimal when compared to the health hazards which may result form the use of the mobile handsets. Therefore, it has to be found W. P. C. No.13580 of 2011 -4- that the issue of health hazards is decided in favour of the petitioners. 3. Now coming to the question of the mass representation received by the Municipality, the Municipality cannot be blamed for having entertained Ext.R5(a) because we find that the Government has issued a circular wherein the Government has directed the local authorities to explore the possibilities of establishing telecommunication towers in areas not thickly populated. It is keeping in mind the directions in the Government's Circular that the Municipality is taking action upon Ext.R5(a). The Municipality is free to take such action and this judgment will not stand in the way of the Municipality initiating appropriate action based on Ext.R5(a). 4. Result of the above discussion is that the Writ Petition is allowed. If the party respondents or anybody claiming under them are raising physical obstruction in the matter of construction of tower by the petitioners it shall be W. P. C. No.13580 of 2011 -5- the duty of the respondents 2 and 3 to remove such obstruction and pave the way of construction of the towers peacefully by the petitioners. Sd/PIUS C. KURIAKOSE JUDGE Sd/K. HARILAL JUDGE kns/- //True Copy// P. A. To Judge