IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 32421 of 2009(W)
1. TOWER VISION INDIA (P) LIMITED,
... Petitioner
Vs
1. THE SUPERINTENDENT OF POLICE, KOLLAM
... Respondent
2. THE CIRCLE INSPECTOR OF POLICE,
3. THE SUB INSPECTOR OF POLICE,
4. ADV. SUKUMARA PILLAI,
5. MR. ABRAHAM GEORGE @ JOY, PROPRIETOR,
6. MR. BABY, (PROPRIETOR),
7. MR. ALEX, (PROPRIETOR),
8. MR. MAHESH, (MOTOR CYCLE MECHANIC),
9. PUNALUR MUNICIPALITY,
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent :SRI.B.GOPAKUMAR
The Hon'ble MR. Justice KURIAN JOSEPH
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :01/12/2009
O R D E R
KURIAN JOSEPH & C.T.RAVIKUMAR, JJ.
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W.P(C)Nos.32421 of 2009, 33113 of 2009 and
33114 of 2009
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Dated this the 1st 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
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
2
prohibitory order issued by 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.
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
3
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 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
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
4
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 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
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
5
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 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
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
6
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)
ssn
W.P(C)Nos.32421 of 2009,
33113 of 2009 and 33114 of 2009
7
KURIAN JOSEPH &
C.T.RAVIKUMAR, JJ.
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W.P(C)Nos.24020, 28688,
28689, 28690, 28691,
28946, 28982, 28987,
28988, 29118, 29222
and 30057 of 2009
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JUDGMENT
28th October, 2009