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2010 DIGILAW 308 (KER)

Essar Telecom Infrastructure (P) Ltd. v. Circle Inspector of Police

2010-04-03

C.N.RAMACHANDRAN NAIR, P.R.RAMACHANDRA MENON, P.R.RAMAN

body2010
ORDER : P.R. Ramachandra Menon, J. 1. Is the "Police protection jurisdiction" being exercised by this Court for more than two decades, alien to the scope and scheme of Article 226 of the Constitution of India and whether the aggrieved party should be relegated to avail the remedy before the Civil Court, notwithstanding the 'failure of duty' on the part of Police; forms the crucial question to be considered in all these cases. The answer to the said question will almost provide necessary answers to the points of reference as well. 2. The physical obstruction caused by the people of the locality against the erection of 'Base Transceiver Stations' ('BTS' or Mobile Towers in short) for facilitating easy access to the mobile phones to the customers, referring to 'health hazards' to the nearby inhabitants, gave rise to the cause of action for almost all the petitioners, who are either the mobile operators/licensees or the service providers, except in one case, i.e., WP (C) 36730/2009, which is styled as a 'Public Interest Litigation' filed by a person of the locality, seeking to shift the mobile tower already erected at the instance of the 6th respondent therein, referring to the various health hazards and also inadequacy of safety measures. 3. Reference has been made by different Division Benches of this Court in view of the different views expressed at different points of time. As per the decision in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, 2006 (4) KLT 695 , it was held that the 'Radio Frequency' exposures from Mobile BTS are much less than from Radio, FM radio, Television transmissions and that the consensus of scientific community was that the radiation from Mobile Phone Base Station was far too low, to produce health hazards, if the people were kept away from direct access to the antenna and the over all evidence indicated that they were unlikely to pose a risk to health. Accordingly, the order passed by the concerned Grama Panchayat cancelling the 'permit' already given to erect the mobile tower because of the objection/apprehension as to the health problems raised by a group of people of the locality was set aside, simultaneously granting Police protection. 4. Accordingly, the order passed by the concerned Grama Panchayat cancelling the 'permit' already given to erect the mobile tower because of the objection/apprehension as to the health problems raised by a group of people of the locality was set aside, simultaneously granting Police protection. 4. In Essar Telecom Infrastructure (P) Ltd. v. C.I. of Police, 2008 (4) KLT 713 , another Division Bench took a different view and held that the view expressed by the Bench in 'Reliance case' regarding radiation etc. was in the context of cancellation of the Permit granted by the Panchayat and that the intricacies of health hazards cannot be decided by the Police or by this Court; thus denying the relief of Police protection, making it clear that the petitioners were to approach the Civil Court for appropriate relief. Subsequently, yet another Division Bench as per the decision in Dishnet Wireless Ltd. v. Circle Inspector of Police, 2009 (1) KHC 781, held that, if the petitioner had obtained all necessary licence from the statutory authority for construction of the mobile tower, nobody else was entitled to cause any physical obstruction referring to the health grounds or otherwise, and accordingly, 'Police protection' was ordered for construction of the tower so long as the construction was being done with valid permit and in the absence of any statutory bar/prohibitory order. 5. The divergent views as above were brought to the notice of the Bench of this Court when W.P.(C). No.6433/2009 and connected cases were being considered, which led to the reference order dated 24.03.2009 (by Hon'ble Mr. Justice P. R. Raman and Hon'ble Mr. Justice P.S. Gopinathan) seeking to clarify the following points: (1) Whether the construction of a Mobile Base Station by itself will give rise 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 hazards 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 obstructions is caused, is not the Police bound to act and whether in the absence, this Court could issue necessary directions to the Police. 6. While so, W.P. (C) No.24384/2009 and connected cases came up for consideration before another Bench (Hon'ble Mr. Justice K. Balakrishnan Nair and Hon'ble Mr. Justice P.Q. Barkath Ali) who sought to place reliance on the decision in Essar Telecom Infrastructure (P) Ltd. v. C.1. of Police, 2008 (4) KLT 763, and in Sadananda Bai v. Ravi, 2008 (3) KLT 542 , and observed that two more points required consideration by the Full Bench and accordingly, passed the reference order dated 2.11.2009, seeking to clarify the following two points as well: (1) Whether this Court can exercise the jurisdiction to issue a writ of mandamus to the police, as if this Court is hearing a suit for mandatory injunction and whether the objection taken to the same in para 8 of Sadananda Bai (supra) and para 8 of Essar Telecom Infrastructure (P) Ltd. (supra) is sustainable? (2) When, for causing obstruction to the construction of a mobile phone tower, the petitioners have an alternative effective remedy of filing a civil suit, is it a proper exercise of discretion by this Court to entertain the Writ Petitions and advise the respondents to invoke the alternative remedies available to them? Referring to the above issues, subsequent references are also there by other Benches as well, though no other new question has been referred. 7. As mentioned herein before, the points sought to be referred to the Full Bench of this Court being confined to the specific issues, the factual position in each case does not require much elucidation, except to the minimal level as noted below, with reference to the case of the petitioner in W.P.(C) No.6433/2009, which is taken as the lead case. 8. 8. The first petitioner Company, which is engaged in providing Telecommunication and related services to the general public was awarded a licence by the Government of India under Section 4 of the Indian Telegraph Act, to provide 'Unified Access Services' in the Kerala service area. The Government of India, by exercising the power and provisions of Section 19B of the Indian Telegraphs Act, 1885 has also conferred all the powers of the Telegraph Authority upon the duly authorised Licencees/Cellular telephone operators, as provided under Section 4 of the Indian Telegraph Act, vide notification No. S.O. 170 (E) dated 04.02.2002 published in the Gazette of India Extra- part 2 Section 3(ii) dated 07.02.2002. By virtue of the above notification and the licence granted by the Government of India, the concerned petitioners got all the rights and privileges available to a Telegraph Authority under the Indian Telegraph Act. 9. In furtherance to the steps to provide the services based on such licence, the petitioner had to establish a large number of microwave installations and base transceiver stations in various parts of Kerala, which were very much necessary for transmitting and receiving the signals, as exactly similar to the steps being pursued by the 'State owned' BSNL as well, against which no such grievance, as projected in these cases, is seen raised. 10. For the purpose of setting up the Base Transceiver Stations, petitioners had to obtain permission from the concerned Local Authority, as provided under the relevant provisions of law, particularly the Building Rules and it was after obtaining all such requisite licences, that the petitioners proceeded with the construction works; which however were intercepted by the local inhabitants, some of whom have been shown as the respondents, causing forceful obstruction apprehending 'health hazards', once the construction was completed and the towers were activated. Met with the said situation, the petitioners preferred representations/complaints before the Police referring to the threat to the 'law and order', seeking Police protection. Since such attempts have not been fruitful, the petitioners have approached this Court for issuance of a writ of mandamus, alleging failure on the part of the Police in discharging their statutory duties in preventing the cognizable offences and also for maintaining law and order. Since such attempts have not been fruitful, the petitioners have approached this Court for issuance of a writ of mandamus, alleging failure on the part of the Police in discharging their statutory duties in preventing the cognizable offences and also for maintaining law and order. As mentioned already, W.P.(C) No.36730/2009 has been filed by a local resident, seeking to shift the Mobile Tower already erected, because of the apprehended health hazards, projecting the same as a 'Public Interest Litigation'. 11. The issue whether the installation of Mobile Base Station and its functioning will cause any health hazards to the people who are residing nearby, had come up for consideration before this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, 2006 (4) KLT 695 . Apprehension was also voiced that radiation emanating from large telecommunication Towers would expose human beings living within the magnetic field to fatal diseases like cancer, embryo disruption and changes in DNA structure, as observed in paragraph 2 of the said verdict. After referring to the Report of the Committee constituted by the Ministry of Health and Family Welfare, Government of India, (as per the direction given by the High Court of Mumbai in W.P. (C)2112/2004), the Bench observed in para.3, that the contents of the Report gave considerable scientific insight for resolving the problem posed before the Court. The Bench, referring to the comparative data as to the power density (micro watts sq. cm.) between the A.M. Radio, FM Radio, Mobile Base Station, UHF TV, VHF TV, Paging Services etc. provided by the petitioner and also as to the report submitted by the Atomic Energy Regulatory Board in the case filed before the Mumbai High Court, observed that the 'Radio Frequency Waves' used for Mobile Phones are not covered under the definition of 'Radiation' as given in the Atomic Energy Act, 1962 and that they being 'non ionizing' radiations, do not have the capability to-ionize the matter with which they interact. Accordingly, it was held in para.5 is as follows: 5. Accordingly, it was held in para.5 is as follows: 5. "We have already found that RF exposures from mobile base stations are much less than from radio, FM radio and telephone transmission and that the consensus of scientific community is that the radiation from mobile phone base stations is far too low to produce health hazards if people are kept away from direct access to the antenna and the over all evidence in the case that they are unlikely to cause a risk to health." 12. The Bench also found that the effect of radio waves depends on the distance from the 'Base Station' since the antenna are directed horizontally with 5 degrees downwards tilt and that the construction was being performed by the petitioners in conformity with the statutory requirements and other norms prescribed. The Bench, after referring to the scope and ambit of the relevant provisions of the Telecom Regulatory India Act, 1997 catering to all problems in connection with the issuance of licence, held that there was no positive material so as to infer any health hazards and that the cancellation of the permit ordered by the Panchayat, merely on the apprehension of some local residents was quite wrong. Accordingly, it was set aside, granting necessary Police protection. 13. Whether a co-owner of the firm who was appointed as the 'Receiver' as per the interim order passed by the Civil Court was entitled to have Police protection, came up for consideration before another Bench, which led to the verdict in Sadananda Bai v. C. M. Ravi & Ors., 2008 (3) KLT 542 . After referring to the facts and events, the Bench observed that the dispute was purely a civil dispute between the parties concerned and if there was any violation of the interim order passed by the Civil Court, remedial measures could also be taken by the Civil Court. After referring to the facts and events, the Bench observed that the dispute was purely a civil dispute between the parties concerned and if there was any violation of the interim order passed by the Civil Court, remedial measures could also be taken by the Civil Court. It was also observed that the Police have no statutory power/duty to meddle with civil dispute or to enforce the interim or final orders of the Civil Court and accordingly, interference was declined, holding that no statutory duty or violation was established on the part of the Police so as to have the relief granted, even though reference was made to the mandate under 5.149 of the Cr.P.C., as to the powers and duties of the Police to prevent cognizable offences and reference was also made to the decision rendered by an earlier Division Bench of this Court (to which one of the learned Judges was a party) in M/s. Harrisons Malayalam Ltd. v. State of Kerala, 2007 (4) KLT 540 , where it was held that the Police, has got a duty, in view of the provisions of the Cr.P.C., to maintain law and order and in case of failure, they are liable to be compelled by issuing a writ of mandamus for providing Police protection. The factual position involved in Sadananda Bai's case was in respect of civil dispute/civil rights between the parties concerned to hold the office as a 'Receiver' in the light of interim order passed by the Civil Court and it was in the said circumstance, that the Bench declined interference, making it clear (in paragraph 16) that the Court was not expressing anything as to the merits on the claim preferred by the petitioner. 14. Even though interference was declined by the Division Bench of this Court denying police protection and relegating the party to approach Civil Court both in Sadananda Bai a C.M. Ravi & Ors., 2008 (3) KLT 542 , and Essar Telecom infrastructure (P) Ltd. v. C.I. of Police, 2008 (4) KLT 713 . 14. Even though interference was declined by the Division Bench of this Court denying police protection and relegating the party to approach Civil Court both in Sadananda Bai a C.M. Ravi & Ors., 2008 (3) KLT 542 , and Essar Telecom infrastructure (P) Ltd. v. C.I. of Police, 2008 (4) KLT 713 . Paragraph 8 of both the above decisions as extracted by the Division Bench in the reference order dated 2.11.2009 in W P (C) 24384/2009 and connected cases clearly reveals that the power of this Court to issue a Writ of Mandamus to provide Police protection is very much accepted and declared once the failure of duty on the part of the Police is established. This is evident from the last sentence of paragraph 8 of the decision in Sadananda Bai's case as extracted in the said reference order, which says as follows: "This Court can issue a mandamus to the police to perform their duty enjoined upon them by the statutes." Similarly, in paragraph 8 of the decision in Essar Telecom case extracted in the very same reference order, it is observed as follows: "The powers of this Court, while exercising this jurisdiction, are coterminous with the failure of duty of the police. If this Court finds that the police have failed to perform a duty, it can remedy that." 15. The reason for declining interference in Sadananda Bai's case was that under the guise of 'Police protection', civil disputes were being raised before this Court, calling upon the Court to make prima facie adjudication and based on that, to issue a direction to render Police protection, which was held as beyond the power and jurisdiction. The reason for declining interference in Essar Telecom case was on the ground that the Police have no right or power or authority to decide any dispute regarding the ill effects of radiation from the mobile phone tower if at all it causes radiation and also placing reliance on the observations made by the Apex Court in 2006 (2) KLT 119 (SC), P.R. Muralidharan v. Swami Dharmananda Theertha Padar. In the above case considered by the Apex Court, the challenge was with regard to the Police protection ordered by this Court permitting the writ petitioner to continue as the 'Sthiradhyakshan' (permanent chairman) of Vadayambadi Ashramam on the basis of some provisions in the by-laws, which however were stated as deleted by amendment, as contended by the opposite side. The Civil Suit filed by the Sanyasin claiming that he was the 'Sthiradhyakshan' was dismissed for default by the Civil Court and it was thereafter, that Police protection was ordered by this Court, on filing a Writ Petition; which in turn was reversed by the Apex Court. In short, the power to issue a writ of mandamus to grant Police protection if there is a failure in discharge the duty, is not seen disputed or doubted much and the issue herein is whether it should be invoked. Now the questions which require to be considered by this Court for formulating a concrete opinion are: (1) Whether there is any failure on the part of the Police in discharging any statutory duty upon them? (2) Whether there is any necessity to provide Police protection invoking the power under Article 226? (3) Whether the party should be relegated to avail the Civil remedy? 16. With regard to the first question, the vital aspect to be considered is Not whether the erection of Base Transceiver Station (mobile towers) and transmission therefrom will cause any health hazards, but whether the work being pursued by the party concerned, on the basis of valid permit/licence and in conformity with the statutory requirements/other norms prescribed, if physically obstructed, is likely to result in a threat to the law and order situation, leading to commission of cognizable offence. The observations made by the Division Bench of this Court earlier, as per the decision in Reliance case, ( 2006 (4) KLT 695 ) that, as per the scientific data available as on date, it was not established that the activity would result in any health hazards, stands in tact. The respondents have never brought it to the notice of this Court, any decision or material to the contrary, so as to draw a different inference. The respondents have never brought it to the notice of this Court, any decision or material to the contrary, so as to draw a different inference. In any view of the matter, this Court does not propose to examine the correctness or otherwise of the finding in Reliance case ( 2006 (4) KLT 695 ) as to the instance of any health hazards; more so since the points of reference are rather something else. Similarly, this Court also does not propose to go into the merits of the contentions raised by the respondents that various other licences are also required under the relevant provisions of Panchayat Raj Act/Kerala Municipality Act/Kerala Municipal Building Rules etc., which however is strongly rebutted from the part of the petitioners as well. The more relevant question is, if the petitioners are having all the requisite licences and are pursuing the constructions/activities on the basis of such licence/permit issued by the Government/local authority/statutory bodies, is there any justification for causing physical obstruction based on some apprehension from some corners, as to the probable health hazards and if there is any violation in discharging the duty by the Police, whether the aggrieved party should be relegated to approach the Civil Court, declining the relief under Article 226. 17. Section 29(b) of the Kerala Police Act, clearly says that there is a duty cast upon the Police to prevent the commission of cognizable offences. Under clause 'g' of Section 29, Police is also to discharge such duties as imposed by any other law for the time being in force. By virtue of Section 29(r), it shall be the duty of every Police officer to perform all duties imposed on him by rules for the time being in force under the said Act, in the manner and subject to the conditions therein prescribed. Similarly, under Section 149 of the Cr.P.C., the Police is bound to prevent cognizable offence and there is a duty upon every Police officer in this regard. 18. Causing physical/forceful obstruction to the construction of the Mobile Tower or connected activities being pursued by the valid licence/permit holders or the workers under them very much amounts to 'wrongful restraint' as contemplated under Section 339 of the I.P.C. and this is an offence punishable under Section 34 1. 18. Causing physical/forceful obstruction to the construction of the Mobile Tower or connected activities being pursued by the valid licence/permit holders or the workers under them very much amounts to 'wrongful restraint' as contemplated under Section 339 of the I.P.C. and this is an offence punishable under Section 34 1. By virtue of the classification of the offence under 5.341 in the First Schedule of the Cr.P.C., it is a 'cognizable' one'. Since there is a duty upon every Police officer to prevent any such cognizable offence and to prevent the threat to 'law and order', if there is a violation on the part of the Police officer in discharging the above statutory duties, whether this Court can shut its eyes to make it dark, referring to the 'Civil remedy' available to the party and declining to interfere under Article 226, is the question that assumes more importance. 19. It is settled, that the 'rule of law should prevail' and nobody shall be permitted to take the law into hands. As observed hereinbefore, no materials have been brought in, by any of respondents by way of counter-affidavit, producing the requisite documents to draw an inference that there is a 'health hazard' or that there is violation of any of the statutory or other prescriptions. The line of thought expressed by the Bench as per the reference order dated 2.11.2009 that the Police does not have the power or jurisdiction to decide the health hazards and hence this Court also can't decide the same and that the party is to approach the Civil Court does not appear to be the correct approach. Of course, it is not a matter for the Police to decide whether there is any 'health hazards' or not and the duty of the Police is only to prevent the commission of cognizable offence and to meet the threat to the law and order situation. It may also not be correct to say that this Court does not have the power to consider the various aspects as to the alleged health hazards which according to the reference Court is surprisingly vested only with the Civil Court. Suffice to say, it is not a question of absence of jurisdiction, but a question of necessity for interference. It may also not be correct to say that this Court does not have the power to consider the various aspects as to the alleged health hazards which according to the reference Court is surprisingly vested only with the Civil Court. Suffice to say, it is not a question of absence of jurisdiction, but a question of necessity for interference. The instance of any health hazards has to be established with reference to tangible materials and evidence has to be let in; for which, it could be said that the matter may require to be adjudicated before the Civil Court. But then, it is for the concerned party to plead and prove as to the specific threat to the health hazards with reference to reliable materials and also as to the alleged infringement of any statutory prescription or violation of the norms prescribed. It is not for the petitioners to prove a 'negative aspect' that there is no health hazard. When the petitioners have prima facie established their right to construct and operate the mobile transmission tower by obtaining all the required licences, it is for the objectors, if any, to prove infraction of their right, if any, and to show the dis-entitlement of the petitioners to establish a mobile tower by resorting to the remedy of approaching the licensing authorities, or to approach the Civil Court or by establishing their right in the Writ Petition for police protection. If any such objection is found prima facie established, this Court can certainly decline to grant police protection or in case the respondent fails to prove their right by documentary evidence, could still reserve his right to approach the Civil Court, as the burden to prove any such infraction is on the objector who asserts any such right. That apart, the observations made by the Division Bench of this Court in 'Reliance case' that the scientific study and the materials brought to light as on date did not reveal any such health hazards still stands, as the said observation has not been successfully challenged and no material has been produced to arrive at a different finding. 20. That apart, the observations made by the Division Bench of this Court in 'Reliance case' that the scientific study and the materials brought to light as on date did not reveal any such health hazards still stands, as the said observation has not been successfully challenged and no material has been produced to arrive at a different finding. 20. The learned counsel appearing for the petitioners placed much reliance on the decision rendered by the Division Bench of this Court, (to which, one of the learned Judges who rendered the decision in Essar Telecom Case and passed the reference order dated 2.11 .09 was a party) in Harrison Malayalam Ltd. v. State of Kerala & Ors., 2007 (4) KLT 540 , wherein, it was held as the primary duty of the Government to maintain the law and order and protect life and property of the citizen and it shall not appear that, it is turning a blind eye towards 'lawlessness'. It was also held, with reference to Section 29(b), (c), (d) and (g) of the Kerala Police Act, relevant provisions of the Cr.P.C. and also as to the scope of Article 226 of Constitution of India that, if a person disobeys a law, whatever be the motivation for the same, the law must take its own course and that the Police have a duty in the light of the provisions of the Criminal Procedure Code and the Kerala Police Act to maintain law and order and to avert breach of peace. Referring to the specific instance of threat therein, it was observed by the Bench that, if a group of persons having absolutely no right over a property, encroach into it and commit mischief, the owner is entitled to the help of Police to protect his property and that the filing of Civil Suit is not an efficacious remedy. 21. It is also relevant to note that another Division Bench(of which one of the learned Judges who passed the verdict in Essar Telecom and also the 'Reference Order' dated 2.11.2009 was also a party) had considered the scope of issuance of Writ under Article 226 to grant 'Police protection' in Sabu v. Assistant Commissioner, Cantonment Police Station & Ors, 2008 (3) KHC 849. Deprecating the steps being pursued by the 'High Tech Banks' for re-possession of the vehicles, when there was a default in payment of the loan, it was held by the Bench that, they cannot deploy any 'strong arm method' to repossess the vehicle, but had to respect the law of the land and take recourse to the remedies available under the law. Accordingly, it was observed that the Police had to take effective steps to nip in the bud, the attempts made by the 'New Generation Banks' to recover the loan amount using force, observing that the Police had to protect the life and property of the persons concerned; for enforcing which, Writ Petition was held as very much maintainable and that the remedy available under the C.P.C. was not at all efficacious. 22. The learned counsel for the petitioners placed further reliance on the decision rendered by the Apex Court in Howrah Mills Co. Ltd. v. M.D. Shamin, (2006) 5 SCC 539 , to contend that the observations made by the Reference Court in the order dated 2.11.2009, that 'Police protection' is a particular jurisdiction available in Kerala alone, is quite wrong. In the above case, when the concerned Company, in the course of the steps being pursued before the BIFR proposed to sell a portion of the land for re-construction revival of the industry, it was forcefully obstructed by some interested parties. The learned Single Judge of the High Court of Calcutta found that there was prima facie violation on the part of the Police in performing the duties and accordingly, 'Police protection' was ordered, which however was set aside by the Division Bench in the appeal filed by three persons claiming to be the assignees of a fraction of shareholders who contended that intricate questions of title and other aspects over the land were involved and hence that the Writ Petition was not maintainable under Article 226. The Apex Court set aside the verdict passed by the Division Bench and restored the verdict passed by the Single Bench granting Police protection, also for constructing a compound wall and to enjoy the property in a better manner. 23. The Apex Court set aside the verdict passed by the Division Bench and restored the verdict passed by the Single Bench granting Police protection, also for constructing a compound wall and to enjoy the property in a better manner. 23. Coming to the case in hand, the respondents do not have any material to show that the construction is being effected by the petitioners contrary to the statutory prescriptions/permit/licences, nor do they have any material to show that the observations made by the Division Bench of this Court in Reliance case ( 2006 (4) KLT 695 ) are not correct or sustainable and that there was some health hazard. The stand taken by the respondents apprehending such health hazards without any legally acceptable evidence cannot be supported by this Court. The observation made by the Reference Court as per para. 4 of the order dated 2.11 .2009 that the Police have no duty to stand guard for the construction of Mobile Towers driving away the local residents who think the operation of which will be harmful to them, is not, in our considered view, correct in law. as it is not for anybody to cause physical obstruction to the vested rights and interests of other citizens. preventing construction/operations using Muscle power. This will only lead to total anarchy and chaos, with scant regards to the rule of law and the Police, as duty bound, have necessarily to rise to the occasion and do the needful, so as to prevent any cognizable offence from being committed. 24. The next question to be considered is whether, the remedy before the Civil Court is 'efficacious' or not, so as to meet the situation as prevailing in the instant cases. The Reference Court in the second set of reference, as per order dated 2.11.2009, has observed that the reasons given earlier in Essar Telecom case in this regard are very much relevant. As per the said decision, it has been observed that, there is power for the Civil Court to grant interim injunction and if there is any violation, there is a provision to proceed against the culprits by giving directions to the Police under 39, Rule 2A. 'How far such course is effective', is the matter to be considered, in view of the nature of contentions raised and the time bound action to be pursued by the persons like the petitioners. 25. 'How far such course is effective', is the matter to be considered, in view of the nature of contentions raised and the time bound action to be pursued by the persons like the petitioners. 25. It is pertinent to note that the 'Civil dispute' forming the subject-matter of a case before the Civil Court and granting of injunction can only be in respect of a 'known person' in the party array and the rights, liberties and enforcement are confined between such parties. Unlike this, in the case of forceful obstruction by a group of people in the locality, whose identity may not be known to the persons like the petitioners, such persons cannot be effectively brought before the Civil Court. That apart, interim order of injunction, if at all obtained, will have to be served to such persons and if only any violation is established, further action can be taken against such person who is a party before the Civil Court, which may not be possible in a case as herein, where obstruction is being made by a group of people. For this reason itself, the civil remedy may not be effective at all. 26. True, in the latter Reference Order dated 2.11.2009, it has been mentioned about the recourse available under O.XXXIX R.2A of the Code of Civil Procedure, for violation of injunction. As observed by the Division Bench in Essar Telecom case, the instance of obstruction may lead to cognizable offences and on committing the same, it will be for the Police to register crime and to investigate the case. It has been further observed that, if there is any violation, necessary directions can be given to the Police for enforcing the order passed by the Civil Court. Obviously, the course pursued under O.XXXIX R.2A of C.P.C. is only with regard to the consequential steps 'on violation' of the interim order of injunction and not with regard to any steps 'for prevention' of cognizable offences. In case there is any violation of the interim order of injunction there is provision for attaching the property of the violator and, such attachment will be valid for a maximum period of one year; upon which, if the violation still continues, the property could be sold and necessary amounts can be given as compensation to the other side. In case there is any violation of the interim order of injunction there is provision for attaching the property of the violator and, such attachment will be valid for a maximum period of one year; upon which, if the violation still continues, the property could be sold and necessary amounts can be given as compensation to the other side. This may not be effective at all in the case of a 'group of people' causing physical obstruction; for many a reason including that the identity may not be known or that the violator may not be having any property in his/her name. It is also provided in the above provision that, in case of violation, the violator can be caused to be arrested and sent to 'Civil Prison'. But for adopting such a course, it must be against a 'known person' available in the party array before the Civil Court, which may not be the case when the forceful obstruction is made by a 'group of people' without proper identification. Further, the course prescribed therein can be defeated by continuing to pursue such exercise of causing forceful obstruction, simply by changing/deputing/deploying different persons on different dates. As such, the remedy before the Civil Court cannot be effective at all, on this score as well. 27. Yet another reason pointed out by the latter reference Court (referring to the verdict in Essar Telecom case) as stated in paragraph 5 of the reference order dated 2.11.2009 is that this Court is grappling with the problem of mounting arrears; one of the reasons for which is identified as entertaining matters which other forum can also entertain and grant relief and it was accordingly; that the interference was declined, relegating the petitioner to approach the Civil Court. This Court, of course is very much concerned and aware of the mounting number of litigations and the pendency, which cannot but be a natural phenomenon and direct consequence of the increased number of population and other incidental circumstances enhancing the number of cause of actions, coupled with other relevant aspects like higher affordability. This Court, of course is very much concerned and aware of the mounting number of litigations and the pendency, which cannot but be a natural phenomenon and direct consequence of the increased number of population and other incidental circumstances enhancing the number of cause of actions, coupled with other relevant aspects like higher affordability. The Parliament/Legislature is also very much conscious of the position and it is for this reason, that various recourses and the remedial measure have been brought about in the form of Legislations providing/enabling/promoting settlement of disputes through various Forum and also by amending C.P.C., substituting Section 89 (w.e.f. 1.7.2002) to reduce the burden of Courts by resorting to 'Alternative Disputes Resolution Forums' by way of (a) Arbitration (b) Conciliation (c) Judicial Settlement including settlement through Lok Adalat or (d) Mediation. In any view of the matter, the mere declining of interference in 'Writ jurisdiction', relegating the party to approach the Civil Court, will not actually reduce the number of litigations as such. Possible reduction of the cases on this score before the High Court, can only increase the number of pending cases before the Civil Court. That apart, once the Civil Court decides the issue after years, irrespective of the fact that it may not be effective, the matter is further likely to be taken up by way of Appeal/Second Appeal/C.R.P. etc. again pushing the ball to this Court. The observation of the eminent jurist and constitutional expert Sri. H. M. Seervai in his book Constitutional law of India, 4th Edition, Volume 2, Page 1493, quoting the words of Baron Martin, is very much relevant as extracted below: "Instead of being astute to discover reasons for not applying this great Constitutional remedy for error and mis-Government, we think it is our duty to be vigilant to apply it in every case to which, by any reasonable construction, it can be made applicable". The availability of alternate remedy is never a bar to entertain the Writ jurisdiction, particularly in the matters of Police protection; more so since mere availability of alternate remedy is not enough, it should be equally convenient and effective as well. 28. Necessity to approach the Civil Court may be relevant only if a 'fact adjudication' is necessary on the basis of the evidence to be let in. 28. Necessity to approach the Civil Court may be relevant only if a 'fact adjudication' is necessary on the basis of the evidence to be let in. If the decision can be taken on the basis of the available materials on record and if there is no much disputed fact (which requires evidence), the party need not be driven away to seek the relief from the Civil Court, as rightly observed by a Division Bench of this Court in Grace Joseph v. State of Kerala & Ors. reported in 2006 (2) KLJ 577 : 2006 (3) KLT SN 68 (C.No. 93). Issuance of the highly prerogative Writ even against 'private individuals' when there is a 'public duty', has been highlighted by the Apex Court on many a time, including as per the decision in Binny Lid. v. Sadasivan, 2005 (4) KLT 315. This being the position, when there is a statutory duty upon the Police as contemplated under 29(b), (d), (h)and(r)of the Kerala Police Act and also under Section 149 of the Cr.P.C., to prevent any cognizable offence and to meet the threat to the law and order, when the local inhabitants/a group of people, on the basis of their apprehension, without any legal right, forcefully obstruct the construction or energising of Mobile Towers by the persons like the petitioners, the Police cannot act as silent spectators. If they fail, it cannot but be held that there is a violation/failure in discharging their statutory duty, which hence is liable to be corrected by issuing appropriate Writ for Police protection, so as to maintain the Rule of Law. 29. One of the learned counsel for the respondents submits that the 'burden of proof as to the absence of any health hazards is on the parties like the petitioners who want to construct and energise the Mobile Towers and not on the respondents. The said submission appears to have been made in view of the observation made by the Reference Court in para.5 of the 'Reference Order' dated 2.11.2009, in spite of the fact that the very same Bench has observed in the opening sentence of para.4 of the Reference Order as "The ill effects of radiation from Mobile Towers and its extent are yet to be established by scientific studies". Reliance is also placed on para.I l of the decision rendered by the Apex Court in Vellore Citizens' Welfare Forum v. Union of India & Ors. (1996) 5 SCC 647 . It was a case of 'environmental pollution' by Tannery Industries. While accepting the principle of 'sustainable development', it was observed by the Apex Court that, it was a balancing concept and 'Precautionary Principle' and 'Polluter Pays Principle' have been accepted as part of the law of the country and should be implemented. It is observed in para.11 as follows:. 11. Some of the salient principles of "Sustainable Development", as culled out from Brundtland Report and other international documents, are Inter-Generational Equity, Use and Conservation of Natural Resources, Environmental Protection, the Precautionary Principle, Polluter Pays Principle, Obligation to Assist and Co-operate, Eradication of Poverty and Financial Assistance to the developing countries. We are, however, of the view that "The Precautionary Principle" and "The Polluter Pays Principle" are essential features of "Sustainable Development". The "Precautionary Principle" - in the context of the municipal law - means: (i) Environmental measures - by the State Government and the statutory authorities must anticipate, prevent and attack the causes of environmental degradation. (ii) Where there are threats of serious and irreversible damage, lack of scientific certainly should not be used as a reason for postponing measures to prevent environmental degradation,. (iii) The "onus of proof is on the actor or the developer/industrialist to show that his action is environmentally benign. (emphasis supplied) 30. It is very much evident that the factual situation considered in the above case was with specific reference to the 'environmental degradation' resulted by the Tannery Industries by draining out the untreated waste water to the nearby river, polluting the water, making it unfit for human consumption, contaminating the subsoil water and spoiling the physico-chemical properties of the soil, making it unfit for agricultural operations. In the instant cases, there is absolutely no question of any pollution and there is no pleading or proof as to any such instance and the only apprehension is with regard to the 'health hazards' likely to be created by the 'EMR'. In the instant cases, there is absolutely no question of any pollution and there is no pleading or proof as to any such instance and the only apprehension is with regard to the 'health hazards' likely to be created by the 'EMR'. As mentioned already, the Radio frequency waves are non-ionizing radiation, which cannot emit any electrones, unlike 'X-rays' and that apart, no Scientific Committee Report has been procured or produced to controvert the findings rendered by the Division Bench in Reliance case ( 2006 (4) KLT 695 ). 31. In this context, reference is made by the learned Counsel for the petitioners, to the "Precautionary measures" already taken by the Government implementing the guidelines prescribed by the concerned authorities as evident from Ext. P11 dated 4.11.2008 of the Ministry of Telecommunication and IT, Government of India. The learned Counsel also made reference to the steps purued by the State Government as well, whereby a Committee was deputed to study the various aspects involved. The said Committee consisting of the Head of the Bio Medical Technology Wing, Sree Chitira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram, Structural Consultant (Quality Control) SRRDA, Chief Town Planner and the General Manager, BSNL have submitted the report as borne by Ext. P9. The recommendations of the said Committee, after conducting detailed study as to the alleged 'health hazards' are as follows: 1. The Antenna should be mounted on or above 30 metres from the ground where the power at antenna port is 10 watts or above, Micro and Pico cell antennae mounted inside the buildings should not exceed 5 Watts. 2. Towers (Both ground based and roof based) should be avoided within 50 metres from schools or hospitals. New towers should be located 50 metres away from schools and hospital buildings. Existing towers should be relocated within a year if they are located within 30 metres from the schools or Operation room/Intensive Care Units in hospitals. 3. Kerala State shall request Central Government to ask Department of Telecommunication (DOT) to ensure that the operators are not exceeding the levels stipulated by TEC through its field units or Wireless monitoring units under the Wireless Planning and Co- ordination Wing (WPC). 4. Central Government may be urged to undertake campaigns to alleviate fears among the public about the radiation from mobile towers. Central Government may be urged to appoint Ombudsman for Telecom related complaints. 5. 4. Central Government may be urged to undertake campaigns to alleviate fears among the public about the radiation from mobile towers. Central Government may be urged to appoint Ombudsman for Telecom related complaints. 5. Prolonged users should be encouraged to be use earphones instead of keeping mobile handsets near the ears. 6. Operators should be asked to refrain from advertisements depicting children using mobile phones. 7. For improving the accountability of certificates issuing agencies, stability certificate for towers should be submitted from Structural Engineers with PG qualification from the State or Central Government or PSUs under State or Central Government. Such Engineers should be personally accountable for the safety of the structure for a period of 5 years from the date of certification. 8. DOT may be urged to advise its field units to entertain complaints on radiation, improper earthing of towers and facilitate its measurements to the General Public. DOT units shall measure the power levels and earth values on specific complaints against the mobile towers. 9. Central Government may be urged to adopt the safety levels recommended by ICNIRP guidelines in India. 10. Mobile Towers may be permitted across all developable zones in the Zoning regulation of the Town Planning Schemes subject to the conditions specified in the Chapter 19 Kerala Municipality Building Rules, 1999. The following suggested modifications along with points (1) and (2) above may be considered to be included in the said Chapter 19: (i) 3 M setback specified in Rule 131(i) of Kerala Municipality Building Rules, 1999 shall be increased to 5 metres. (ii) 1.20 M specified for the distance from the boundary of the plot in Rule 131(3) shall be increased to 3 metres. 32. From the above, it is clear that no such 'environmental threat' is there as observed by the Hon'ble Supreme Court in para. 1l of the above decision in 'Tannery case' and this being the position, there reliance placed on the said verdict is not at all applicable to the case in hand. 33. 32. From the above, it is clear that no such 'environmental threat' is there as observed by the Hon'ble Supreme Court in para. 1l of the above decision in 'Tannery case' and this being the position, there reliance placed on the said verdict is not at all applicable to the case in hand. 33. Points sought to be clarified as per the reference order dated 24.3.2009 in W.P.(C) 6433/2009 and connected cases are answered in the above background as follows: (1) The construction of a Mobile Base Station by itself will not give rise to a dispute purely of civil nature, to be relegated to a Civil Court, merely for the reason that a section of the public apprehends that it may cause some health hazards. 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 Constitution of India, there cannot be any legal bar to such a course in appropriate cases, where sufficient materials are provided as to the scientific studies and norms/guidelines prescribed by the Government/Licensing authorities in this regard; which situation is conspicuously absent in the instant cases. (2) If the petitioners have obtained all requisite licences/permits in accordance with the relevant statutes/orders/notifications in force and start construction/functioning of a Mobile Base Station, nobody can cause any physical obstruction to such work/operation, but it is open to them for raising a dispute and seek remedies available under the law. If the police is alerted as to the threat to the law and order situation and if there is any violation on the part of the Police to discharge the statutory duty in taking steps to prevent cognizable offence, a Writ of Mandamus is very much liable to be issued granting police protection. 34. Points sought to clarified as per the reference dated 2.11.2009 in WP (C) Nos. 24384,25157/2009 are answered as follows: (i) In view of the observation in paragraph 8 of Sadananda Bai's case ( 2008 (3) KLT 542 ) and similar observations in paragraph 8 of Essar Telecom case ( 2008 (4) KLT 713 ) holding that this Court is very much having the power to provide the remedy, in case of violation to discharge the duty by the Police, further reference doubting the power of this Court under Article 226 is quite unwarranted. In view of the law declared by this Court as stated in the forgoing paragraphs, the observations to the contrary in the above two decisions (Sadantanda Bai's case and Essar Telecom case) are not correct or sustainable. (ii) Relegation to the Civil Court, in the event of forceful obstruction to the construction or energization of Mobile Phone Tower is not an effective alternate remedy and interference by this Court, granting 'Police protection', invoking the power and discretionary jurisdiction under Article 226 of the Constitution of India is warranted to advance the course of justice. 35. Having answered the reference as above, we find that the law declared by the Division Bench of this Court in Sadananda Bai's case ( 2008 (3) KLT 542 ) and Essar Telecoms case ( 2008 (4) KLT 713 ) do not hold good and they are accordingly overruled. The Division Bench in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat, and in Dishnet Wireless Ltd. v. Circle Inspector of Police & Ors, 2009 (1) KHC 781, having declared the law correctly, we approve the same. 36. The next question is whether the merits of each case are to be dealt with or not. Even though we are very much aware of the scope and power under Section 7 of the Kerala High Court Act, in view of the dictum laid down by the Apex Court as per the decision in Kerala State Science & Technology Museum v. Rambal Co. and Others, reported in 2006 (3) KLT 756 : (2006) 6 SCC 258 , we find it proper to have the cases considered and decided on merits by the appropriate Court, in the light of the law declared as above. 37. In the above circumstances, the reference having been answered, all the Writ Petitions are ordered to be posted before the appropriate Bench for considering the reliefs sought for and to pass appropriate orders in each case.