IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 33562 of 2009(M)
1. INDUS TOWERS LIMITED, VANKARATH TOWER,
... Petitioner
Vs
1. THE SUPERINTENDENT OF POLICE,
... Respondent
2. STATION HOUSE OFFICER, KUNNAMANGALAM
3. MR.KUMARAN C., VALIYADUMEL HOUSE,
4. MR.RAMESAN, VALIYADUMEL HOUSE,
5. KUNNAMANGALAM GRAMA PANCHAYATH
For Petitioner :SRI.P.SATHISAN
For Respondent :SRI.E.NARAYANAN
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :10/12/2009
O R D E R
KURIAN JOSEPH & C.T. RAVIKUMAR, JJ.
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W.P. (C) NOS. 33562, 33613, 33685,
33700, 33722, 34004 & 34328 OF 2009
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Dated this the 10th day of December, 2009
JUDGMENT
Kurian Joseph, J.
These writ petitions are filed at the instance of service
providers/infra-structure service providers, who have been issued licence
by the Department of Telecommunications for the erection of mobile
towers and for their operation. It is also seen that the local authority
concerned had issued building permit for the construction of the tower. In
some of the cases, it appears, after the issuance of the building permit, the
local authority concerned itself had issued a stop memo. Some of the
people at the locality entertained an apprehension with regard to the
hazards to their health and they physically obstructed the petitioners from
taking up the construction of the tower though the same was permitted by
the local authority concerned and though they had the licence. When the
writ petitions came up before this court, it is seen that this court had issued
a direction to the Police to render necessary police protection for the
construction of the tower, in case there is no prohibitory order issued by
W.P.(C) NO.33562/2009
& Connected Cases. 2
any statutory authority or any court of law. It was also made clear that the
commissioning of the tower will be done only after obtaining further
orders from this court. The order regarding commissioning as above was
issued in view of the reference order dated 24-3-2009 in W.P(C)
No.6433/2009 and connected cases, to the Larger Bench. The following
are the two questions referred to the Larger Bench:-
1) Whether the construction of a Mobile Base Station
by itself will give raise to a dispute of civil nature,
merely for the reason that a section of the public
apprehends that it may cause some health hazards
and whether a larger question of this nature as to
whether such Mobile Base Station could cause any
health hazard could be decided in a petition filed
under Article 226 of the Constitution of India.
2) If the petitioners have obtained licence in
accordance with the relevant statute in force and
when they start functioning of a Mobile Base
Station, can anybody cause any physical
obstruction to such work, without raising a dispute
and seeking remedies available to them under law,
and in case, any such physical obstruction is
caused, is not the Police bound to act and whether
in the absence, this Court could issue necessary
directions to the Police.
The Larger Bench is yet to consider the reference.
2. We find that none of the members of the public or for that matter
any local authority has challenged either the licence granted to the
petitioners by the Department of Telecommunications or the permit
W.P.(C) NO.33562/2009
& Connected Cases. 3
granted to the applicants, as the case may be, before this court. Apparently
such challenges could not have been taken up before this court in the
ordinary course since any person aggrieved by an order passed by the local
authority is to pursue his grievance before the Tribunal for Local Self
Government Institutions. Similarly any person aggrieved by the licence
granted by the Department of Telecommunications is to pursue the matter
before the TDSAT. If there is any other issue, the same is to be sorted out
before the civil court.
3. Be that as it may, it is reported that pursuant to the interim orders
granted by this court, the applicants have either completed the construction
of the base tower or the same is in the process of construction/completion.
In that view of the matter since the issue referred to the Larger Bench has
nothing to do with the construction of the base station, we do not think that
there is any point in keeping these writ petitions before this court. The
construction is undertaken only on a licence issued by the Department of
Telecommunications and a permit issued by the local authority concerned.
If the local authority concerned has issued a stop memo for any valid
reason and in case the same is in force, it is for the service provider/infra-
structure service provider to pursue the matter in appropriate proceedings
before the Tribunal for Local Self Government Institutions. Similarly, if
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& Connected Cases. 4
any of the respondents or for that matter any person is aggrieved by the
permit granted by the local authority for the construction of the base
station or by the licence issued to the service provider/infra-structure
service provider, it is for that person to pursue the matter before the
TDSAT. If there is still any other dispute, it is for the party concerned to
approach the civil court. Unless interdicted by any such forum or a
competent authority, petitioners are free to act according to the
licence/permit granted to them.
Therefore, these writ petitions are disposed of making it clear that in
the event of any person/party approaching the Tribunal or TDSAT.
referred to above or the civil court, such forums shall consider the issues
taken up before them ignoring the factual position that pursuant to the
interim order granted by this court for police protection, the construction
of the mobile tower has been either constructed or started construction.
We make it clear that the construction thus made will be subject to the
orders, if any, passed by the forums as referred to above. Still further it is
made clear that the petitioners cannot claim any equity on the only ground
of the construction. We make it further clear that if any such forum is
approached by any of the parties, that forum is free to consider the matter
on all available grounds and that the construction had been made as
W.P.(C) NO.33562/2009
& Connected Cases. 5
permitted by the High Court shall not be taken as an objection for dealing
with those aspects. However, it is made clear that in case there is no
interdiction from any competent forum, and in case the construction is
made in accordance with the permit/licence from the local
authority/competent authority, there cannot be any physical obstruction in
doing a lawful activity. In the unlikely event of any obstruction in such
circumstances, the police shall render necessary assistance.
(KURIAN JOSEPH)
JUDGE
(C.T. RAVIKUMAR)
JUDGE
sp/
W.P.(C) NO.33562/2009
& Connected Cases. 6
KURIAN JOSEPH
&
C.T. RAVIKUMAR, JJ.
W.P.(C)NOS.33562, 33613,
33685, 33700, 33722, 34004
& 34328 OF 2009
JUDGMENT
10th December, 2009
W.P.(C) NO.33562/2009
& Connected Cases. 7