High Court of KeralaDivision Bench2011-05-27This petition is allowed; directions issued to ...

Shaji Mathew v. S.I. of Police, Mannar; Alappuzha District authorities and others

Case / Petition Number:WP(C) No. 6739/2011 (N)

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
K. Surendra Mohan
Judgment Date: 2011-05-27
Court Decision / Holding: Petition allowed. Respondents 1 and 2 are directed to afford police protection to the petitioner to undertake the construction, installation and operation of the telecommunication tower as permitted in Ext. P1.
Final Disposition: This petition is allowed; directions issued to provide police protection for the permitted tower construction and operation.

Parties to the Case

Appellants / Petitioners

Shaji Mathew

Respondents

The S.I. of Police, Mannar, Alappuzha District-689 622
The Superintendent of Police, Alappuzha-689 622
Mannar Grama Panchayat, Mannar P.O., Alappuzha District-689 622, represented by its Secretary
C.E.Abraham, Karuvelil House, Pavookara P.O., Mannar, Alappuzha District-689 622
A.J.Mathew @ Raju, Ankamalil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Anish, S/O.Anian, Panthalattil Thekkethil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Mariyamma, W/o.Oommen, Panthalattil Thekkethil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Philip Mathew, S/O.A.J.Mathew, Ankamalil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Annamma, W/o.Aniyan, Panthalattil Thekkethil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Harish, S/O.Gopinathan, Moolayil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Prakash, S/O.Prabhakaran, Moolayil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Pankajakshi, W/o.Bhaskar an, Panthalattil Thekkethil House, Pavookara P.O., Mannar, Alappuzha District-689 622
Indus Towers Ltd., Circle Office at Vankarath Towers, 8th Floor, NH-47, Palarivattom, Kochi-24, represented by Head-Legal, Premakrishnan Nair
State of Kerala, represented by its Chief Secretary, Kerala Government Secretariat, Thiruvananthapuram
Union of India, represented by its Secretary, Ministry of Communications and IT, Sanchar Bhavan, New Delhi-110 001

Legal Representation & Advocates

Counsels for Petitioners

• V. Philip Mathew

Counsels for Respondents

• M.R. Sabu (Senior Government Pleader)
• V. Anil (Adv.)
• Babu Karukapadath (Adv., CGC & ASGI)

Case Synopsis & Summary

Shaji Mathew, a partner of Palathara Constructions, approached the Kerala High Court under Article 226 seeking police protection to undertake the construction, installation, and operation of a telecommunication tower on the property of the 4th respondent, in accordance with Ext. P1 building permit issued by the 3rd respondent. He alleged illegal obstructions by respondents 5–12 in the course of constructing and operating the tower. The petitioner argued that Ext. P1 permit is valid; although cancelled by the Panchayat, the Tribunal for Local Self Government Institutions, by its judgment in Appeal No. 139/2011 (Ext. P2), set aside the revocation, thereby reinstating the permit’s validity. Respondents 5–12 did not appear, and no counter affidavit was filed. The court noted decisions in 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, and held the petitioner is entitled to police protection subject to the observations and conditions in the latter case. Consequently, the petition was allowed, and respondents 1 and 2 were directed to provide police protection to undertake the work as permitted by Ext. P1, while ensuring compliance with applicable safeguards.

Provisions of Law Cited

Article 226 of the Constitution of India

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P1 building permit is valid and capable of implementation, notwithstanding any earlier cancellation by the Panchayat. The Tribunal for Local Self Government Institutions, by its decision in Appeal No. 139/2011 (Ext. P2), has set aside the revocation of the permit, thereby affirming its validity. It is argued that respondents 5–12 obstruct the construction and operation of the telecommunication tower, and that police protection is essential to ensure lawful completion of the project in accordance with the permit and applicable regulations. The petitioner relies on the decision in Essar Telecom Infrastructure (P) Ltd. v. State of Kerala (2011) 2 KHC 171 to justify protection and to outline the conditions governing such protection.

Contentions of Respondents

Respondents 5–12 did not appear and no counter affidavit was filed. Consequently, there are no formal respondents’ arguments on record. The court’s consideration centers on the petitioner’s claim of a valid Ext. P1 permit despite Panchayat revocation and the Tribunal’s order, and the application of police protection under Article 226 guided by Essar Telecom authorities.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Essar Telecom Infrastructure (P) Ltd. v. C.I. of Police	2010(2) KLT 762	Mentioned Only	Cited as a decision relevant to the context but not expressly applied to the core ruling.
Essar Telecom Infrastructure (P) Ltd. v. State of Kerala	2011(2) KHC 171	Positive	Cited for its observations which the court adopted to grant police protection subject to conditions.

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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. 6739 of 2011(N)** **--------------------------------------** ## **PETITIONER(S):** - **------------------------** **SHAJI MATHEW, PARTNER, PALATHARA CONSTRUCTIONS, CHANGANACHERRY, RESIDING AT PALATHARA HOUSE, THURUTHY P.O., CHANGANASSERY, KOTTAYAM DISTRICT.** **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT(S):** **---------------------------** **1. THE S.I. OF POLICE, MANNAR, ALAPPUZHA DISTRICT-689 622.** **2. THE SUPERINTENDENT OF POLICE, ALAPPUZHA-689 622.** **3. MANNAR GRAMA PANCHAYAT, MANNAR P.O., ALAPPUZHA DISTRICT-689 622, REPRESENTED BY ITS SECRETARY.** **4. C.E.ABRAHAM, KARUVELIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **5. A.J.MATHEW @ RAJU, ANKAMALIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **6. ANISH, S/O.ANIYAN, PANTHALATTIL THEKKETHIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **7. MARIYAMMA, W/O.OOMMEN, PANTHALATTIL THEKKETHIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **sts 2/-** **-2-** ## **WP(C)NO.6739/2011** **8. PHILIP MATHEW, S/O.A.J.MATHEW,** **ANKAMALIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **9. ANNAMMA, W/O.ANIYAN, PANTHALATTIL THEKKETHIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **10. HARISH, S/O.GOPINATHAN, MOOLAYIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **11. PRAKASH, S/O.PRABHAKARAN, MOOLAYIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **12. PANKAJAKSHI, W/O.BHASKARAN, PANTHALATTIL THEKKETHIL HOUSE, PAVOOKARA P.O., MANNAR, ALAPPUZHA DISTRICT-689 622.** **13. INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS HEAD-LEGAL, PREMAKRISHNAN NAIR.** **14. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **15. UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF COMMUNICATIONS AND IT, DEPARTMENT OF TELE COMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-110 001.** **R1, R2 & R14 BY SENIOR GOVERNMENT PLEADER SRI.M.R.SABU R5 TO R7, R9 TO R12 BY ADV. SRI.V.ANIL (K/1480/98) R15 BY ADV. SRI.BABU KARUKAPADATH, CGC & ASGI** **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.6739/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE BUILDING PERMIT NO.8065/2011 DATED 05/01/2011** - **P2 COPY OF THE ORDER DATED 24/02/2011 PASSED BY THE LSG TRIBUNAL, THIRUVANANTHAPURAM IN APPEAL. NO.139/2011** - **P3 COPY OF THE REPRESENTATION DATED 26/02/2011 SUBMITTED BEFORE THE FIRST RESPONDENT.** - **P4 COPY OF THE RECEIPT DATED 26/02/2011 ISSUED FROM THE OFFICE OF FIRST RESPONDENT.** **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.S.TO.JUDGE** **sts** ## **R.BASANT & K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------W.P(C) NO: 6739 OF 2011N ----------------------------------------------------------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 to afford police protection to the petitioner for undertaking the construction, installation and working of a telecommunication tower in the property of the fourth respondent in accordance with Ext.P1 building permit issued by the third respondent against illegal obstructions by respondents 5 to 12. 2. According to the petitioner the building permit is valid. The construction is to be undertaken in the property of the fourth respondent. Respondents 5 to 12 according to the petitioner are causing illegal and unjustified objection/obstruction to the construction and working of the tower. It is in these circumstances that directions are sought. 3. Respondents have been served. There is no appearance for respondents 5 to 12. The learned counsel for the petitioner WPC 6739/2011 2 submits that even though Ext.P1 permit was cancelled by the Panchayat, the Tribunal for Local Self Government Institutions by judgment dated 4-4-2011 in Appeal 139/2011 has set aside the revocation. The building permit Ext.P1 is hence valid, it is submitted. 4. Respondents 5 to 12, party respondents have not chosen to appear before Court nor has any counter affidavit been filed by them. 5. Our attention has been drawn to the decision in **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 relevant circumstances, we are satisfied that the petitioner is entitled for police protection subject to the observations and conditions in **Essar Telecom Infrastructure (P) Ltd. v. State** **of Kerala {2011(2) KHC 171}.** 6. In the result; a) This petition is allowed. WPC 6739/2011 3 b) Respondents 1 and 2 are directed to afford police protection to the petitioner to undertake the work of construction, installation and operation of the telecommunication tower as permitted in Ext.P1. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 6739/2011 4 ## **K. SURENDRA MOHAN, JJ.** **-----------------------------------------------------------W.P(C) NO:6739 OF 2011 N ----------------------------------------------------------Dated this the 11[th ] March, 2011.** ## **O R D E R** ## Basant, J. Service is complete. Respondents 1, 2 and 14 appeared through the learned Govt.Pleader. Other respondents have been served. Respondents 4 to 12 have appeared through counsel. No representation for the other respondents. Counsel for the petitioner presses for interim orders. Counsel for respondents 4 to 12 prays for time for filing objections. File objections with copy to the counsel for the petitioner in one week. Call on 21-3-2011. R.BASANT Judge K. SURENDRA MOHAN Judge jj WPC 6739/2011 6