SHAJI MATHEW v. STATE OF KERALA & OTHERS

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
K. Surendran Mohan
Judgment Date: 2011-06-17
Court Decision / Holding: This petition is allowed. Respondents 7 and 8 are directed to afford police protection for the petitioner to undertake the construction as per Ext.P1 permit issued by the sixth respondent against any obstruction that may be raised by respondents 1 to 5, and subject to the observations and conditions in Essar Telecom Infrastructure (P) Ltd. v State of Kerala (supra).
Final Disposition: Petition allowed; police protection directed to be provided for construction as per Ext.P1, subject to Essar conditions.

Parties to the Case

Appellants / Petitioners

SHAJI MATHEW

Respondents

RAHEEM
NAZAR
CHEMMOD
RASHEED
NAJEEB
VAZHAKULAM GRAMA PANCHAYATH
THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION
SUPERINTENDENT OF POLICE, ERNAKULAM DISTRICT
PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• SRI JOMY GEORGE
• SRI M.J. BENNY
• SRI SEBASTIAN THOMAS

Counsels for Respondents

• SRI.K.M.SHAMSUDEEN
• SRI.P.THOMAS GEEVERGHESE
• DR.K.P.SATHEESAN
• SRI.K.K.GOPINATHAN NAIR
• SRI.M.R.JAYAPRASAD
• SRI.P.MOHANDAS (ERNAKULAM)
• SRI.MATHEW SUNNY
• SRI.ANOOP.V.NAIR

Case Synopsis & Summary

This writ petition under Article 226 of the Constitution concerns construction of a BSNL communication tower at North Ezhippuram, Ernakulam, based on Ext.P1 building permit issued by Vazhakulam Grama Panchayath (6th respondent). Petitioner Sha ji Mathew, a contractor for BSNL, seeks police protection for carrying out the construction in accordance with Ext.P1, after the permit was cancelled by the Panchayath but later upheld in an appeal by BSNL, rendering Ext.P1 valid. Respondents 1–5 object to construction and argue non-compliance with the Building and Other Construction Workers (Regulation of Employment and Working Conditions) Act, 1996, while respondents 7–10 (police authorities) are expected to provide protection. The petitioner contends that alleged non-compliance does not invalidate the permit or create a right to obstruct construction. The court relies on Essar Telecom Infrastructure (P) Ltd. v C.I. of Police (2010) and Essar Telecom Infrastructure (P) Ltd. v State of Kerala (2011) to hold that mere statutory non-compliance does not defeat a valid permit, and that police protection can be granted subject to the conditions in the Essar decision. The petition is allowed, directing respondents 7 and 8 to provide police protection for the construction as per Ext.P1, subject to the stated Essar conditions.

Provisions of Law Cited

Article 226 of the Constitution of IndiaBuilding and Other Construction Workers (Regulation of Employment and Working Conditions) Act, 1996

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that Ext.P1 is a valid regular permit for BSNL construction and that respondents 1–5 have no legal right to obstruct construction. They rely on Essar Telecom precedents to argue that non-compliance with the 1996 Act does not vitiate the permit or create a right to obstruct, and that police protection should be granted to proceed with construction.

Contentions of Respondents

Respondents 1–5 oppose on the ground that the contractor may have non-complied with the Building and Other Construction Workers Act, 1996, and that such non-compliance can invalidate the permit or justify obstruction. They rely on statutory compliance as a condition for protection and construction.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Essar Telecom Infrastructure (P) Ltd., v C.I. of Police	2010(2) KLT 762 (FB)	Positive	Court relied on this decision to justify police protection and to treat non-observance of certain statutory elements as not fatal to a valid permit.
Essar Telecom Infrastructure (P) Ltd. v State of Kerala	2011(2) KHC 171	Positive	Court followed this decision to support the permissibility of protecting construction under a valid permit with conditions.

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 17TH JUNE 2011 / 27TH JYAISHTA 1933** **WP(C).No. 37686 of 2010(I) ------------------------** ## **PETITIONER:** - **---------------** **SHAJI MATHEW, MANAGING PARTNER, PALATHARA CONSTRUCTIONS, S.PURAM P.O., KOTTAYAM.** **BY ADVS. SRI.JOMY GEORGE SRI.M.J.BENNY SRI.SEBASTIAN THOMAS** ## **RESPONDENTS:** - **----------------------** **1. RAHEEM, KOTTIKKAL, THOTTATHIL, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107.** **2. NAZAR, S/O.MUHAMMED, AMINAKUTTY HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107.** **3. CHEMMOD, VADAKKENATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107.** **4. RASHEED, KODIKKAL THOTTATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107.** **5. NAJEEB, KOTHAKULATHIL HOUSE, NORTH EZHIPPURAM, MARAMPILLY P.O. ERNAKULAM DISTRICT 683 107.** **..2-** **-2-** **6. VAZHAKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY - 683 549.** **7. THE SUB INSPECTOR OF POLICE, PERUMBAVOOR POLICE STATION, ERNAKULAM DISTRICT - 683 542.** **8. SUPERINTENDENT OF POLICE, ERNAKULAM DISTRICT - 682 031.** **9. PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT, THIRUVANANTHAPURAM. 695001.** **10. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 695001.** **R1 BY SRI.K.M.SHAMSUDEEN R2 TO R5 SRI.P.THOMAS GEEVERGHESE R6 BY ADVS. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY SRI.ANOOP.V.NAIR R7 TO R10 BY SRI.K.M.SHAMSUDEEN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P (C) No.37686/2010 -3- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1 : COPY OF THE BUILDING PERMIT DTD. 29-04-2010 ISSUED BY THE VAZHAKULAM GRAMA PANCHAYAT.** - **EXT.P2 : COPY OF THE GOVERNMENT CIRCULAR DTD. 30-10-2010 ISSUED BY THE 9TH RESPONDENT.** - **EXT.P3 : COPY OF THE COMPLAINT DTD. 08-11-2010 FILED BY THE 2ND PETITIONER BEFORE THE 7TH RESPONDENT.** - **EXT.P4 : COPY OF THE RECEIPT DTD. 09-11-2010 ISSUED BY THE 7TH RESPONDENT EVIDENCING THE ACCEPTANCE OF THE COMPLAINT.** ## **RESPONDENT'S EXHIBITS:** NIL ## **//TRUE COPY//** ## **P.A. TO JUDGE** **AMG** ## **R.BASANT & K.SURENDRA MOHAN, JJ.** ## **------------------------------------------WPC No.37686 of 2010 ------------------------------------------Dated this the 17[th] June, 2011** ## **JUDGMENT** ## Basant, J. The petitioner has come to this Court with this petition for issue of directions under Article 226 of the Constitution to respondents 7 and 8 - both officers under the 10[th] respondent State to afford protection to them for the construction of a BSNL Communication tower in accordance with Ext.P1 permit issued by the sixth respondent. 2. According to the petitioner, Ext.P1 is a valid regular permit. Though the permit was cancelled by the Panchayat, in an appeal filed by the BSNL, the challenge is upheld and Ext.P1 permit is now valid, submits the learned counsel for the petitioner. Respondents 1 to 5 have no legal right to raise any objections against the construction under Ext.P1 permit now. They are raising illegal obstruction. It is in these circumstances that the petitioner claims police protection in this writ petition. 3. All respondents are served. Respondents 1 to 5 have entered appearance through counsel. The learned Government Pleader appears for respondents 7 to 10. The sixth respondent has not entered appearance. 4. The prayer is opposed by respondents 1 to 5. A counter WPC No.37686 of 2011 2 affidavit has been filed by the third respondent. The learned counsel for the third respondent submits that the third respondent raises objections on the ground that the petitioner who claims to be a contractor under the BSNL has not complied with the provisions in the Building and other Construction Workers (Regulation of Employment and Working Conditions) Act, 1996. 5. 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). The learned counsel for the petitioner contends that the only objection raised by the counsel for respondents 2 to 5 is not sustainable. The alleged non-compliance of the provisions of the said statute will not in any way vitiate or invalidate the permit issued nor shall such alleged non-compliance give respondents 1 to 5 any right to raise objection/obstruction against the construction under Ext.P1. The workers concerned have not raised any obstruction against construction and no relief is claimed against them, submits counsel. 6. We find merit in the submissions of the learned counsel for the petitioner. Following the precedents referred above, we WPC No.37686 of 2011 3 are satisfied that this writ petition deserves to be allowed and police protection can be granted to the petitioner. 7. In the result, a) This petition is allowed. b) Respondents 7 and 8 are directed to afford police protection for the petitioner to undertake the construction as per Ext.P1 permit issued by the sixth respondent against any obstruction that may be raised by respondents 1 to 5. 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.37686 of 2011 4 **R.BASANT & K.SURENDRA MOHAN, JJ. ------------------------------------------WPC No.37686 of 2010 ------------------------------------------Dated this the 31[st] March, 2011** WPC No.37686 of 2011 5 ## **ORDER** ## Basant, J. Counsel for the petitioner prays for further time to file reply affidavit. File reply affidavit in ten days. Call on 27.5.2011. **R.BASANT JUDGE** **K.SURENDRA MOHAN JUDGE** css/ WPC No.37686 of 2011 6 **R.BASANT & K.SURENDRA MOHAN, JJ.** **------------------------------------------WPC No.37686 of 2010 ------------------------------------------Dated this the 14[th] March, 2011** ## **ORDER** ## Basant, J. Counter affidavit is filed. Counsel for the petitioner prays for time to file a reply affidavit. File such reply affidavit within 10 days. Call on 31.3.2011. **R.BASANT JUDGE** **K.SURENDRA MOHAN JUDGE** css/