M/S ATC (American Tower Corporation) Telecom Tower Corporation (P) Ltd v. Circle Inspector of Police, Thalassery & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE Ag. CHIEF JUSTICE MRS.MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 2ND DAY OF JANUARY 2012/12TH POUSHA 1933** - **WPC.No. 27697 of 2011 (J) ======================** - **PETITIONER(S) =============** **M/S.ATC (AMERICAN TOWER CORPORATION) TELECOM TOWER CORPORATION (P) LTD FORMERLY KNOWN AS ESSAR TELECOM INFRASTRUCTURE (P) LTD, 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, COCHIN- 682 017, REPRESENTED BY ITS DEPUTY MANAGER (LEGAL), MR.BABU PATTATHANAM.** - **BY ADV. SRI.SANTHOSH MATHEW, SRI.SATHISH NINAN,** - **SRI.ARUN THOMAS, SRI.JENNIS STEPHEN.** - **RESPONDENT(S) ==============** **1. THE CIRCLE INSPECTOR OF POLICE, THALASSERY P.O., KANNUR DISTRICT PIN- 670 101.** **2. THE SUB INSPECTOR OF POLICE, NEW MAHE POLICE STATION THALASSERY P.O, THALASERY THALUK, KANNUR DISTRICT, PIN- 673 311.** **3. MR.SANATH, S/O.DASAN, DAS CHEKEREPOYIL, PARAL P.O., THALASSERY, KANNUR DISTRICT, PIN- 670 671.** ## **WPC.No. 27697 of 2011 (J)** **4. MR.NISHANTH, S/O.DASAN, DAS CHEKEREPOYIL, PARAL P.O., THALASSERY TALUK, KANNUR DISTRICT.** **5. MR.VASU, FATHERS NAME NOT KNOWN TO THE PETITIONER, DEVAPREBHA, PARAL P.O., THALASSERY TALUK, KANNUR DISTRICT, PIN- 670 671.** **6. THALASSERY MUNICIPALITY, THALASSERY P.O, THALASSERY TALUK, KANNUR DISTRICT, REPRESENTED BY ITS SECRETARY, PIN- 670 101.** ## **R1 & R2 BY SR. GOVT. PLEADER MR.T.P. SAJID.** **R3 TO R5 BY ADV. SRI.CIBI THOMAS.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02-01-2012 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rs** ## **WPC.No. 27697 of 2011 (J)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1 COPY OF THE BUILDING PERMIT DATED 10/05/2011 ISSUED BY 6TH RESPONDENT. EXT.P2 COPY OF THE RECEIPT DATED 10/05/2011 ISSUED BY THE 6TH RESPONDENT. EXT.P3 COPY OF THE REPRESENTATION DATED 08/07/2011 GIVEN TO THE FIRST AND SECOND RESPONDENTS BY THE PETITIONER AND RECEIPTS ISSUED BY THE SECOND AND THIRD RESPONDENTS. EXT.P4 COPY OF THE STOP MEMO ISSUED BY THE 6TH RESPONDENT DATED 06/06/2011.** **EXT.P5 COPY OF THE INTERIM ORDER STAY GRANTED BY THE L.S.G.D. DATED 29/06/2011.** **EXT.P6 COPY OF THE FINAL ORDER PASSED BY THE L.S.G.D. IN APPEAL NO.465/2011 DATED 15/09/2011.** **EXT.P7 COPY OF THE REPRESENTATION DATED 12/10/2011 GIVEN TO THE FIRST AND SECOND RESPONDENTS BY THE PETITIONER.** ## **RESPONDENT'S EXHIBITS:-** **EXT.R3A COPY OF THE REPRESENTATION SENT BY THE PEOPLE OF THE LOCALITY TO THE 6TH RESPONDENT DATED 28/05/2011.** **//TRUE COPY//** **P.S. TO JUDGE** **rs** ## **MANJULA CHELLUR, Ag.C.J** ## **&** ## **P.R.RAMACHANDRA MENON, J.** ## **----------------------------------------------** ## **W.P(C).No. 27697 of 2011** ## **----------------------------------------------** ## **Dated this the 2[nd] day of January, 2012 JUDGMENT** ## **Manjula Chellur, Ag.C.J.** Heard learned counsel for the petitioner, learned Government Pleader appearing for respondents 1 and 2, learned counsel appearing for the private respondents and the learned Standing Counsel for the 6[th] respondent Municipality. 2. The petitioner has approached this Court seeking effective and adequate police protection for the construction of telecommunication tower without any obstruction from respondents 3 to 5 and the persons, who are claiming under them. 3. It is not in dispute that initially though permission was given by the 6[th] respondent, they issued a stop memo, when there was some objection from the residents of the locality. Aggrieved by the same, the petitioner approached the concerned Tribunal and by virtue of the order of the Tribunal, stop memo was set aside by revival of permission for setting up of tower. _**W.P(C).27697/11**_ 2 Meanwhile, the private respondents, challenging the orders of the Tribunal, have approached this Court in W.P(C).No. 29678 of 2011, which is pending. The present Writ Petition is filed complaining the difficulties faced by the petitioner to even start construction of the tower as the private respondents along with their supporters are obstructing the construction itself on the ground of health hazards. 4. The respondents' stand before this Court is that the intended tower is going to cause health hazards to the residents of the locality and therefore, the tower should not be put up in the said area. The State though has not filed objections, the learned Government Pleader submits that the instructions are to the effect that it is a thickly populated area and it may cause health hazards because of the radiation to be emitted from the tower. So far as the Municipality is concerned, according to them, they have not challenged the orders of the Tribunal and they have no objection for the construction of the tower by the petitioner. 5. The question is whether the petitioner deserves an order at the hands of this Court giving them police protection for construction of the telecommunication tower. As per the 3 _**W.P(C).27697/11**_ submissions of respondents 3 to 5, we note that apart from the so called apprehension of health hazards because of the tower, they also complain violation of certain Zonal Regulations. In other words, permission given by the 6[th] respondent is against the Statute. However, it is the subject matter of another Writ Petition, which has to be decided on merits. 6. As on today, we note that the stop memo issued by the 6[th] respondent is set aside reviving the original construction permission to the Writ Petitioner herein. Whether the permit is against any Statute is the subject matter of another litigation. As long as the permit is in force, the petitioner herein is entitled to proceed with the construction. The so called apprehension of health hazards projected before us is without any concrete material or analysis from any recognized authority. In that view of the matter, in the absence of any material with certainty pointing out the so called health hazards complained by the private respondents, we only have to say that it is only an apprehension and not a reality. The question is whether this Court can interfere and grant the relief sought by the petitioner. Learned counsel for the petitioner relies on a Full Bench decision of this Court reported 4 _**W.P(C).27697/11**_ in _**Essar Telecom Infrastructure (P) Ltd. v. Circle Inspector of Police**_ (2010(2) KLT 762). Paragraphs 23, 24, 25 and 26 of the said decision are relevant for the purpose of considering the controversy in this matter. 7. As we note from the submission and the materials placed on record, more than 80 persons are actually obstructing the construction of the tower with the able support of respondents 3 to 5. As observed at paragraph 25 of the above decision, it would be difficult for the petitioners to take recourse to civil action and having regard to the fact that the very tower is for the purpose of public utility and not for any private utility, we are of the opinion, this is a fit case, as observed in the above decision, where police protection has to be given to the petitioner. However, the genuineness or legality of the permit given by the 6[th] respondent need not be considered in this case as it is the subject matter of other Writ Petition. In the above circumstances, as long as the permit is in force, the petitioner has to proceed with the construction of the tower and respondents 1 and 2 are directed to give effective and adequate police protection to the workers of the petitioner at the 5 _**W.P(C).27697/11**_ site of telecommunication tower, without any obstruction either from respondents 3 to 5 or their supporters claiming under them. The Writ Petition is disposed of as above. **MANJULA CHELLUR, ACTING CHIEF JUSTICE** **P.R.RAMACHANDRA MENON, JUDGE** **vgs**