High Court of KeralaDivision Bench2011-05-27Petition allowed; police protection directed to...

Sha ji Mathew v. The S.I. of Police, Anchal, Kollam District & Others

Case / Petition Number:WP(C).No. 28422 of 2010(C)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
K. Surendra Mohan
Judgment Date: 2011-05-27
Court Decision / Holding: This petition is allowed. Respondents 1 and 2 are directed to afford protection to the petitioner for the construction, installation and operation of a mobile tower in accordance with Ext.P1 permit issued by the third respondent.
Final Disposition: Petition allowed; police protection directed to safeguard construction of the mobile tower under Ext. P1

Parties to the Case

Appellants / Petitioners

SHAJI MATHEW, S/O. MATHEW, Palathara House, Thruthy P.O., Changanassery, Kottayam District (Partner, Palathara Constructions, Changanacherry)

Respondents

The S.I. of Police, Anchal, Kollam District
The Superintendent of Police, Kollam
Edamulackal Grama Panchayat, Edamulackal, Kollam District-691 321, represented by its Secretary
A. Zulaiman, A.S.R., Sunil House, Thadikuad P.O., Kollam-691 306
K. Shamsudeen, Vayalarakkathathu, Thadicaud P.O., Kollam District-691 306
Abdul Khadir, Kaleeralikathu House, Thadicaud P.O., Kollam District-691 306
Abdul Khan Rawther, Chalamon House, Thadicaud P.O., Kollam District-691 306
Salim, Hisham Manzil, Thadicaud P.O., Kollam District-691 306
Sulaiman, Kettidathi House, Thadicaud P.O., Kollam District-691 306
Indus Towers Ltd., Circle Office at Vankarath Towers, 8th Floor, NH-47, Palarivattom, Kochi-24
State of Kerala, represented by its Chief Secretary
Union of India, represented by its Secretary, Ministry of Communications and IT, Department of Telecommunications

Legal Representation & Advocates

Counsels for Petitioners

• Sri. V. Philip Mathews

Counsels for Respondents

• Sri. M.R. Sabu (Senior Government Pleader) for R1, R2 & R11
• Sri. C.J. Joy for R3
• Smt. P. Shyni for R6 to R9
• Sri. T.P.M. Ibrahim Khan, ASG for R12

Case Synopsis & Summary

Sha ji Mathew, the petitioner, approached this Court under Article 226 of the Constitution seeking police protection to undertake the construction, installation and operation of a mobile telecom tower in accordance with Ext. P1 on the property of the sixth respondent. Ext. P1 is an ordinary permit issued by the Edamulackal Grama Panchayat, though it was subsequently revoked by the Panchayat; however, the Tribunal for Local Self Government Institutions by a judgment dated 16 November 2010 in Appeal 1060/2011 set aside the revocation, leaving the permit in effect and the project potentially viable. Respondents 5 to 9 allegedly obstructed the construction, raising objections to the tower’s erection. All respondents were served, but there was no appearance from respondents 5 to 9 and no counter-affidavit was filed. The court noted two Essar Telecom matters — 2010(2) KLT 762 and 2011(2) KHC 171 — and found the circumstances in this case fit within the approach approved in those opinions. It held that protection could be afforded, subject to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011(2) KHC 171). Accordingly, the petition was allowed, with directions to the police to provide protection to the petitioner for the construction, installation and operation of the mobile tower as per Ext.P1.

Provisions of Law Cited

Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends Ext. P1 permit is valid and seeks police protection to implement the project; he asserts revocation by the Panchayat was set aside by the Tribunal (16-11-2010) and that there is no lawful bar to proceeding with the tower, subject to compliance with statutory requirements. He relies on the extensions and protective order jurisprudence established by prior decisions.

Contentions of Respondents

Respondents 5 to 9 did not appear and filed no counter affidavit; there are no articulated arguments on their behalf in the record. The respondents’ factual objections to the tower’s construction appear not to have been contested in court; the court nonetheless evaluates the matter in light of extant orders and case-law.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Essar Telecom Infrastructure (P) Ltd. v. C.I of Police	2010(2) KLT 762	Positive	Court relied on this decision to authorize police protection in similar circumstances.
Essar Telecom Infrastructure (P) Ltd. v. State of Kerala	2011(2) KHC 171	Positive	Court explicitly references this decision and adopts its observations/conditions for 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. 28422 of 2010(C)** **-----------------------** ## **PETITIONER :** - **---------------------** **SHAJI MATHEW, S/O.MATHEW, PALATHARA HOUSE, THRUTHY P.O., CHANGANASSERY, KOTTAYAM DISTRICT. (PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY).** **BY ADV. SRI.V. PHILIP MATHEWS** ## **RESPONDENT(S):** - **-------------------------** **1. THE S.I. OF POLICE, ANCHAL, KOLLAM DISTRICT.** **2. THE SUPERINTENDENT OF POLICE, KOLLAM.** **3. EDAMULACKAL GRAMA PANCHAYAT, EDAMULACKAL, KOLLAM DISTRICT-691 321, REPRESENTED BY ITS SECRETARY.** **4. A.ZULAIMAN, A.S.R., SUNIL HOUSE, THADIKADU P.O., KOLLAM-691 306.** **5. K.SHAMSUDEEN, VAYALARAKKAKATHU, THADICAUD P.O., KOLLAM DISTRICT-691 306.** **6. ABDUL KHADIR, KALEERALIKATHU HOUSE, THADICAUD P.O., KOLLAM DISTRICT-691 306.** **7. ABDUL KHAN RAWTHER, CHALAMON HOUSE, THADICAUD P.O., KOLLAM DISTRICT-691 306.** **8. SALIM, HISHAM MANZIL, THADICAUD P.O., KOLLAM DISTRICT-691 306.** **...2/-** **WP(C).No. 28422 of 2010(C) -2-** **9. SULAIMAN, KETTIDATHI HOUSE, THADICAUD P.O., KOLLAM DISTRICT-691 306.** **10. INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS HEAD-LEGAL, PREMAKRISHNAN NAIR.** **11. STATE OF KERALA, REPRESENTED BY ITSCHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** ## **12. UNION OF INDIA,** **REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND I.T., DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-110001.** **R1, R2 & R11 BY SR. GOVT. PLEADER SRI. M.R. SABU R3 BY ADV. SRI.C.J.JOY R6 TO R9 BY ADV. SMT. P. SHYNI R12 BY ADV. SRI. T.P.M. IBRAHIM KHAN, ASG** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mn** **...3/-** **WP(C).No. 28422 of 2010(C)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF BUILDING PERMIT DATED 8-7-2010 ISSUED BY THE 3RD RESPONDENT PANCHAYAT.** - **EXT.P2 : COPY OF THE REPRESENTATION DATED 6.8.2010 SUBMITTED BEFORE FIRST RESPONDENT.** - **EXT.P3 : COPY OF THE RECEIPT DATED 6-8-2010 ISSUED FROM THE OFFICE OF FIRST RESPONDENT.** - **EXT.P4 : COPY OF THE LETTER NO. T8/89000/06 DATED 30-10-2006 ISSUED BY THE DIRECTOR GENERAL OF POLICE, KERALA.** - **EXT.P5 : COPY OF THE REPORT SUBMITTED BY THE TECHNICAL COMMITTEE.** - **EXT.P6 : COPY OF THE LETTER DATED 11-9-06 ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM TO KUDAPPANAKUNNU GRAMA PANCHAYAT.** ## **RESPONDENT'S EXHIBITS - NIL** ## **//TRUE COPY//** ## **P.S. TO JUDGE** **Mn** ## **R.BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------W.P(C) NO: 28422 OF 2010 C ----------------------------------------------------------Dated this the 27[th] May, 2011.** ## **JUDGMENT** ## Basant, J. Petitioner has come to this Court seeking issue of directions under Art.226 of the Constitution to respondents 1 and 2 police officials to afford protection to the petitioners to undertake the work of construction, installation and operation of a mobile tower as permitted in Ext.P1 in the property of the sixth respondent against illegal obstructions raised by respondents 5 to 9. 2. According to the petitioners Ext.P1 is a regular permit issued by the Panchayat. Though there has been subsequent revocation of the permit by the Panchayat, the Tribunal for Local Self Government Institutions by judgment dated 16-11-2010 in Appeal 1060/2011 had set aside the order of revocation. Respondents 5 to 9 are causing illegal obstruction against the construction of work. Petitioner has hence come to this Court with this petition. WPC 28422/2010 2 3. All respondents have been served. There is no appearance for respondents 5 to 9 when the matter came up for hearing. They have not filed any counter affidavit also. 4. 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}.** Having considered all the relevant circumstances, we are satisfied that protection can be afforded. The petitioner is entitled for an order of police protection subject to the observations and conditions in **Essar Telecom Infrastructure (P) Ltd. v. State of Kerala {2011(2) KHC 171}.** ## 5. In the result; a) This petition is allowed. b) Respondents 1 and 2 are directed to afford protection to the petitioner for the construction, installation and operation of a WPC 28422/2010 3 mobile tower in accordance with Ext.P1 permit issued by the third respondent. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 28422/2010 4