ATC Telecom Tower Corporation Private Limited v. Deputy Superintendent Of Police
2013-07-15
K.RAMAKRISHNAN, S.SIRI JAGAN
body2013
DigiLaw.ai
JUDGMENT S. Siri Jagan, J. 1. W.P(C) No. 8681/2013 is filed by an infrastructure provider of telecommunication services, seeking police protection for the construction of mobile telecommunication tower without obstruction from respondents 4 to 9 and their supporters. The contention raised is that they have obtained all necessary permits etc., for erecting the telecommunication tower and therefore nobody can prevent them from erecting the same. It is further submitted that although there was originally a stop memo issued by the Panchayat keeping the permit in abeyance, by Ext. P7 final order, the Tribunal has set aside the stop memo and directed that the period of permit shall be only one year and not three years. The petitioner therefore seeks the following relief: "Issue a writ in the nature of mandamus or any other appropriate writ, order or direction commanding respondents 1 to 3 to provide effective and adequate police protection to the petitioners' workers for constructing the telecommunication tower without any obstruction from respondent nos. 4 to 9 and their supporters." 2. W.P(C) No. 16673/2013 is filed by the 4th respondent in W.P (C) No. 8681/2013, challenging Ext. P7 order of the Tribunal in W.P(C) No. 8681/2013, which is produced as Ext. P2 in W.P(C) No. 16673/2013. They are challenging it on the ground that the Tribunal has not considered their contention that the telecommunication tower is being constructed by the petitioner in violation of the norms of the Department of Telecommunication in the matter of construction of telecommunication towers. It is further submitted that the Tribunal has wrongly entered a finding that the Panchayat committee has no power to interfere with the orders of the Secretary, regarding the granting or revocation of permit under the Kerala Panchayat Building Rules and particularly Rule 18 thereof. It is submitted that the finding of the Tribunal that the Panchayat committee cannot interfere with the decision of the Secretary in such matters is illegal and unsustainable. They rely on the decision of a learned Single Judge of this Court in Antony v. Chellanam Grama Panchayat, 2009(3) KLT 334 . The petitioner seeks the following reliefs: "(i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P2. (ii) Call for the records of the case and to pass appropriate orders." 3. We have heard the parties. 4.
The petitioner seeks the following reliefs: "(i) Issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P2. (ii) Call for the records of the case and to pass appropriate orders." 3. We have heard the parties. 4. In view of the fact that if W.P(C) No. 16673/2013 is allowed, W.P(C) No. 8681/2013 would become infructuous, we shall consider W.P(C) No. 16673/2013 first. 5. We are of opinion that the question as to whether the Panchayat committee can initiate proceedings under Rule 18 of the Kerala Panchayat Building Rules is not of much consequence in deciding the validity of the impugned order of the Tribunal, insofar as apart from that technical question, the Tribunal has decided the matter on merits also. The primary contention of the petitioner in W.P(C) No. 16673/2013 is that commissioning of telecommunication tower would create health hazards to the local people and the same is in violation of the guidelines issued by the Department of Telecommunications. The Tribunal found that the Panchayat could not bring out any circumstances which would warrant suspension of the permit issued to the petitioner in W.P(C) No. 8681/2013. Although the petitioner in W.P(C) No. 16673/2013 would contend that the erection is in violation of the guidelines issued by the Department of Telecommunication, the Tribunal has specifically entered a finding that those guidelines were not produced for the perusal of the Tribunal. The Tribunal has also relied on the decisions of this Court in Reliance Infocom Limited v. Chemanchery Grama Panchayat, 2006 (4) KLT 695 and Essar Telecom Infracture (P) Ltd., v. State of Kerala, 2011 (2) KLT 516 ) for the proposition that telecommunication towers do not pose health hazards to the people.. Of course, the learned counsel for the petitioner in W.P(C) No. 16673/2013 has, along with I.A.No. 9537/2013, produced guidelines issued by the Department of Telecommunications for issue of clearance in installation of mobile towers. Learned counsel for the petitioner in W.P(C) No. 8681/2013 undertakes to construct the tower strictly in accordance with Ext. P3 guidelines now produced by the petitioner in W.P(C) No. 16673/2013. 6. In the above circumstances, we do not find any merit in W.P(C) No. 16673/2013 . Therefore, we dismiss the same with a condition that the petitioner in W.P(C) No. 8681/20113 shall erect the telecommunication tower strictly in accordance with Ext. P3 guidelines of the Department of Telecommunication. 7.
P3 guidelines now produced by the petitioner in W.P(C) No. 16673/2013. 6. In the above circumstances, we do not find any merit in W.P(C) No. 16673/2013 . Therefore, we dismiss the same with a condition that the petitioner in W.P(C) No. 8681/20113 shall erect the telecommunication tower strictly in accordance with Ext. P3 guidelines of the Department of Telecommunication. 7. As far as W.P(C) No. 8681/2013 is concerned, we are of opinion that as long as the petitioner constructs the telecommunication tower and operates the same strictly in accordance with the permits issued by the local authority and also guidelines issued by the DOT, respondents 4 to 7 or anybody else have no right to obstruct the petitioner from constructing and commissioning the tower. In the above circumstances, we dispose of W.P(C) No. 8681/2013 directing respondents 2 and 3 to afford adequate police protection to the petitioner for erecting and commissioning the telecommunication tower in accordance with Ext. P1 permit as modified by the Tribunal in Ext. P7 order and the guidelines issued by the Department of Telecommunication, which is produced as Ext. P3 in W.P(C) No. 16673/2013.