Microqual Techno Private Ltd. v. The Superintendent of Police, Kannur & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933** **WP(C).No. 15972 of 2011(V)** **--------------------------------------** **PETITIONER:** - **-------------------** **MICROQUAL TECHNO PRIVATE LTD., METRO PALACE, OPP. NORTH RAILWAY STATION, COCHIN, A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956, REPRESENTED BY ITS ASSISTANT MANAGER SRI.SHAJI B.S.** **BY ADVS. SRI.RAJ MOHAN R.PILLAI, SRI.P.BANI.** **RESPONDENTS:** **------------------------** **1. THE SUPERINTENDENT OF POLICE, KANNUR, PIN-670 002.** **2. THE SUB INSPECTOR OF POLICE, PAYANGADI POLICE STATION, PAYANGADI, PIN-670 303.** ## **3. THE STATE OF KERALA,** **REP. BY ITS SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM – 695 001.** ## **4. SAJITH,** **S/O.KUNHIRAMAN, THACHAN HOUSE, NARIKODE, KOTTILA P.O., PAYANGADI, KANNUR – 670 334.** ## **5. SANESH,** - **S/O.SATHYAN, OLNEDIYAN HOUSE, NARIKODE, KOTTILA P.O., PAYANGADI, KANNUR – 670 334.** ## **W.P.(C). NO.15972/2011-V:** ## **6. RAJESH, S/O.MUKUNDAN,** **OLNEDIAN HOUSE, NARIKODE, KOTTILA P.O., PAYANGADI, KANNUR – 670 334.** ## **7. SATHEESH,** **S/O.KALYANI, EDACHERIAN HOUSE, NARIKODE, KOTTILA P.O., PAYANGADI, KANNUR – 670 334.** ## **8. PRASAD, S/O.NARAYANAN,** **THEKKATHIL HOUSE, NARIKODE, KOTTILA P.O., PAYANGADI, KANNUR – 670 334.** **R1 TO R3 BY GOVT. PLEADER SMT. C.M. CHARISMA, R4 TO R8 BY ADVS. SRI.SUNIL NAIR PALAKKAT, SRI.K.N.ABHILASH.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/06/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.15972/2011-V:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** ## **EXT.P.1: COPY OF THE RELEVANT PAGES OF THE RELEASE ORDER ISSUED BY THE INDUS TOWER LIMITED IN FAVOUR OF THE PETITIONER.** **EXT.P.2: COPY OF THE BUILDING PERMIT ISSUED BY EZHOME GRAMA PANCHAYATH.** **EXT.P.3: COPY OF THE COMPLAINT DTD. 26/03/11 SUBMITTED BY THE PETITIONER BEFORE THE R.2.** **EXT.P.4: COPY OF THE RECEIPT ISSUED ACKNOWLEDGING THE ACCEPTANCE OF EXHIBIT P.3.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** **R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------WPC No.15972 of 2011 ------------------------------------------Dated this the 29[th] June, 2011** ## **JUDGMENT** ## Basant, J. The petitioner has come to this Court seeking issue of directions to respondents 1 and 2 police officials under the third respondent State to afford protection to the petitioner against the obstruction apprehended from respondents 4 to 8 for the construction of a communication tower as per Ext.P2 permit issued by the Ezhome Panchayat. 2. According to the petitioner, Ext.P2 permit has been issued to M/s Indus Towers, Kochi and under that, vide Ext.P1, the petitioner is undertaking the work of construction of the tower on behalf the permit holder. Respondents 4 to 8 have no legal right to cause any obstruction to such construction. But, they are unnecessarily raising objections. Ext.P2 is a regular permit. The permit remains valid. There has been no stop memo or order of any court against undertaking the work under Ext.P2. It is in these circumstances that the petitioner has come to this Court seeking directions under Article 226 of the Constitution. WPC No.15972/2011 2 3. Respondents 4 to 8 have entered appearance through counsel. Counter affidavit has been filed. The learned counsel for respondents 4 to 8 raises various contentions. 4. First of all, it is contended that the period of Ext.P2 permit expires today and under the permit without renewal, the petitioner cannot undertake the work at any rate. It is further contended that the petitioner, who claims to have been entrusted with the work by the permit holder - M/s Indus Towers Limited, Kochi, has produced only Ext.P1 and the period of validity of such arrangement has also expired. In these circumstances, there is no merit in the prayer by the petitioner to undertake the work, it is submitted. No other objections are raised. In fact the learned counsel for respondents 4 to 8 submits that respondents 4 to 8 have no intention to cause any physical obstruction to the construction of the tower. It may be ensured that the petitioner is competent to undertake the work and that he carries out the work strictly in accordance with Ext.P2 building permit subject to its further validation and extension. 5. The learned Counsel for the petitioner submits that M/s Indus Towers have granted the petitioners further time to construct the tower notwithstanding the stipulations in Ext.P1. WPC No.15972/2011 3 He further submits that the petitioner shall undertake the work strictly in accordance with Ext.P2 permit after getting the permit validated for a further period of time. The learned counsel for the petitioner relies on the precedents in **Essar Telecom Infrastructure (P) Ltd., v C.I. of Police** [2010(2) KLT 762) (FB)] and **Essar Telecom Infrastructure (P) Ltd. v State of Kerala** (2011(2) KHC 171). It is in these circumstances prayed that appropriate directions may be issued under Article 226 of the Constitution. 6. The learned Government Pleader on behalf of respondents 1 to 3 submits that respondents 1 to 3 have no objection provided the petitioner carries out the work strictly in terms of Ext.P2 permit after getting the same duly validated and extended. 7. We are in these circumstances satisfied that the petitioner can be granted the requisite police protection subject of course to appropriate directions. 8. In the result, - a) This writ petition is allowed. - b) Respondents 1 and 2 are directed to afford police - protection to the petitioner to undertake construction in WPC No.15972/2011 4 accordance with Ext.P2 permit against obstruction, if any, caused by respondents 4 to 8. c) We make it clear that this order of police protection shall operate only if the petitioner produces before respondents 1 and 2 the requisite authorization from M/s Indus Towers, the permit holder and further produces Ext.P2 permit after due validation and extension. d) We further direct that the construction shall be undertaken strictly in accordance with the terms of Ext.P2 permit. e) c) Needless to say that the order of protection granted shall be subject to all the observations and conditions in **Essar Telecom Infrastructure (P) Ltd. v State of Kerala** (supra). sd/- **R.BASANT JUDGE** **sd/- K.SURENDRA MOHAN JUDGE** css/ true copy P.S.TO JUDGE WPC No.15972/2011 5 **R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------WPC No.15972 of 2011** WPC No.15972/2011 6 ## **------------------------------------------Dated this the 22[nd] June, 2011** ## **ORDER** ## Basant, J. Service is complete. Respondents 4 to 8 appear through counsel. Counsel prays for time to file counter affidavit. Time granted. File counter affidavit in four days with copy to the counsel for the petitioner. Reply affidavit, if any, to be filed on or before 28.6.2011. 2. Call on 29.6.2011 finally for hearing and disposal. **R.BASANT JUDGE** **K.SURENDRA MOHAN JUDGE** css/