Indus Towers Limited vs The District Police ...
2021 Latest Caselaw 263 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                PRESENT

           THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN

   WEDNESDAY, THE 06TH DAY OF JANUARY 2021 / 16TH POUSHA, 1942

                      W.P.(C) No.25321 OF 2020(M)


PETITIONER/S:

                INDUS TOWERS LIMITED,
                CIRCLE OFFICE AT VANKARATH TOWERS 8TH FLOOR,
                NH 47 PALARIVATTOM COCHIN-24,
                REP BY ITS AUTHORIZED OFFICER HEAD LEGAL,
                RAJKUMAR PAVOTHIL,
                AGED 42 YEARS,
                S/O P.NARENDRAN,
                RESIDING AT MIDHILA,
                THAMARAMULANGARA, TRIPUNITHURA P.O.

                BY ADVS.
                SRI.P.SATHISAN
                SMT.KRISHNA.G.NATH
                SMT.DONA AUGUSTINE

RESPONDENT/S:

      1         THE DISTRICT POLICE CHIEF(TRIVANDRUM RURAL)
                OFFICE OF THE DISTRICT POLICE CHIEF,
                UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS,
                PALAYAM P.O.,
                THIRUVANANTHAPURAM-695 033.

      2         STATION HOUSE OFFICER,
                ARYANAD POLICE STATION,
                ARYANAD P.O., THIRUVANANTHAPURAM-695 542.

      3         DEPARTMENT OF TELECOMMUNICATION,
                O/O SR DEPUTY DIRECTOR GENERAL,
                DEPARTMENT OF TELECOMMUNICATIONS, CTSD COMPLEX,
                GANDHI NAGAR, KADAVANHRA P.O.,ERNAKULAM-682 020,
                REPRESENTED BY ADDITIONAL DIRECTOR
                GENERAL (TECHNOLOGY), KERALA LSA.

      4         DISTRICT COLLECTOR,
                COLLECTORATE,
                CIVIL STATION BUILDING,
                CIVIL STATION ROAD,
                KUDAPPANAKUNNU P.O.,
                THIRUVANANTHAPURAM-695 043.
 W.P.(C) No.25321 OF 2020(M)

                                2

               R3 BY SMT.SREEKALA K.L., CGC

OTHER PRESENT:

               SMT K.AMMINIKUTTY- SR. GOVERNMENT PLEADER

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 06.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.25321 OF 2020(M)

                                  3

                              JUDGMENT

The petitioner, a telecom infrastructure provider, which has

obtained Ext.P3 building permit dated 08.10.2020 issued by

Tholicode Grama Panchayat in respect of property comprised in

Survey Nos.1814/3-1, 1814/3-3. 1814/5-3, 1814/4, has filed this

writ petition under Article 226 of the Constitution of India, seeking

a writ of mandamus commanding the 1st respondent to extend

adequate and effective police protection to the petitioner, its

workers, men or agents for the construction and roll out for

operation of telecom tower in the property covered by deemed

building permit. The petitioner has also sought for a writ of

mandamus commanding respondents 1 and 2 to comply with

Ext.P4 letter issued by the 3rd respondent with immediate effect.

2. On 18.11.2020, when this writ petition came up for

admission, the learned Government Pleader was directed to get

instructions.

3. On 05.01.2020, the Registry was directed to get a list

of writ petitions filed by the petitioner, seeking police protection

without party respondents, i.e., without the affected persons in the

party array, on the allegation that the obstruction to the

construction of mobile tower is caused by a group of unidentifiable

persons. Registry has furnished a list, as per which, about 20 writ W.P.(C) No.25321 OF 2020(M)

petitions have been filed before this Court seeking police

protection without party respondents.

4. Heard the learned counsel for the petitioner, the learned

Central Government Counsel appearing for the 3 rd respondent and

also the learned Senior Government Pleader appearing for

respondents 1, 2 & 4.

5. The basis for this writ petition is Ext.P5 representation

dated 06.11.2020 filed before the 2 nd respondent Station House

Officer. The said representation read thus;

"After initiation of preliminary works for putting up of telecommunication towers, we came to understand that, there is a probability of public protest against construction of mobile tower. Under those circumstances, we are unable to carry on with our work at the site, which we are legally entitled to do on the basis of the permit granted by the local authority vide reference cited 1st above. This is a very critical site since, the coverage in and around the site area is low and on account of the same.

Unless and until a telecom tower is constructed in that particular area, telecom coverage cannot be provided for that specific location and, as you are aware, that in the current pandemic situation telecom network is playing a vital role in enabling communication for all the segments like Work from Home, Online classes for schools and colleges etc." (underline supplied) W.P.(C) No.25321 OF 2020(M)

6. In Bharat Singh v. State of Haryana [(1988) 4 SCC

534] the Apex Court held that, when a point which is ostensibly a

point of law is required to be substantiated by facts, the party

raising the point, if he is the writ petitioner, must plead and prove

such facts by evidence which must appear from the writ petition

and if he is the respondent, from the counter affidavit. If the facts

are not pleaded or the evidence in support of such facts is not

annexed to the writ petition or to the counter affidavit, as the case

may be, the Court will not entertain the point. The Apex Court held

further that there is a distinction between a pleading under the

Code of Civil Procedure Code, 1908 and a writ petition or a counter

affidavit. While in a pleading, i.e., a plaint or a written statement,

the facts and not evidence are required to be pleaded, in a writ

petition or in the counter affidavit not only the facts but also the

evidence in proof of such facts have to be pleaded and annexed to

it.

7. M/s.Larsen and Toubro Ltd. v. State of Gujarat

[(1998) 4 SCC 387] the Apex Court was dealing with a case

arising out of the proceedings initiated for the acquisition of land

for M/s.Larsen and Toubro Ltd. under the provisions of the Land

Acquisition Act, 1894. The Apex Court noticed that, in the absence W.P.(C) No.25321 OF 2020(M)

of any allegation that Rule 3 the Land Acquisition (Companies)

Rules, 1963 had not been complied and there being no particulars

in respect of non compliance of Rule 4 also, it is difficult to see as

to how the High Court could have reached the finding that

statutory requirements contained in these Rules were not fulfilled

before issuance of notification under Section 4 and declaration

under Section 6 of the Land Acquisition Act. High Court did not

give any reason as to how it reached the conclusion that Rules 3

and 4 had not been complied in the face of the record of the case.

Rather, it returned a finding which is unsustainable that it was "not

possible on the basis of the material on record to hold that there

was compliance with Rules 3 and 4". The Apex Court held that, it is

not enough to allege that a particular Rule or any provision has not

been complied. It is a requirement of good pleading to give details,

i.e., particulars as to why it is alleged that there is non compliance

with a statutory requirement. Ordinarily, no notice can be taken on

such an allegation which is devoid of any particulars. No issue can

be raised on a plea, the foundation of which is lacking. Even where

rule nisi is issued, it is not always for the department to justify its

action when the court finds that a plea has been advanced without

any substance, though ordinarily department may have to place its W.P.(C) No.25321 OF 2020(M)

full cards before the court. On the facts of the case, the Apex

Court found that the State has more than justified its stand that

there has been compliance not only with Rule 4 but with Rule 3 as

well, though there was no challenge to Rule 3 and the averments

regarding non compliance with Rule 4 were sketchy and without

any particulars whatsoever. High Court was, therefore, not right in

quashing the acquisition proceedings.

8. In Narmada Bachao Andolan v. State of Madhya

Pradesh [(2011) 7 SCC 639] a Three-Judge Bench of the Apex

Court held that, it is a settled proposition of law that a party has to

plead its case and produce/adduce sufficient evidence to

substantiate the averments made in the petition and in case the

pleadings are not complete the Court is under no obligation to

entertain the pleas. Pleadings and particulars are required to

enable the court to decide the rights of the parties in the trial.

Thus, the pleadings are more to help the court in narrowing the

controversy involved and to inform the parties concerned to the

question(s) in issue, so that the parties may adduce appropriate

evidence on the said issue. It is settled legal proposition that as a

rule relief not founded on the pleadings should not be granted.

Therefore, a decision of a case cannot be based on grounds W.P.(C) No.25321 OF 2020(M)

outside the pleadings of the parties. The object and purpose of

pleadings and issues is to ensure that the litigants come to trial

with all issues clearly defined and to prevent cases being expanded

or grounds being shifted during trial. If any factual or legal issue,

despite having merit, has not been raised by the parties, the court

should not decide the same as the opposite counsel does not have

a fair opportunity to answer the line of reasoning adopted in that

regard. Such a judgment may be violative of the principles of

natural justice.

9. In Bihar Eastern Gangetic Fishermen

Cooperative Society Ltd. v. Sipahi Singh [(1977) 4 SCC 145]

a Three-Judge Bench of the Apex Court held that a writ of

mandamus can be granted only in a case where there is a

statutory duty imposed upon the officer concerned and there is a

failure on the part of that officer to discharge the statutory

obligation. The chief function of a writ is to compel performance of

public duties prescribed by statute and to keep subordinate

tribunals and officers exercising public functions with in the limit of

their jurisdiction.

10. In State of U.P. v. Harish Chandra [(1996) 9 SCC

309] the Apex Court held that, under the Constitution a W.P.(C) No.25321 OF 2020(M)

mandamus can be issued by the Court when the applicant

establishes that he has a legal right to performance of legal duty

by the party against whom the mandamus is sought and said right

was subsisting on the date of the petition. The duty that may be

enjoined by mandamus may be one imposed by the Constitution or

a Statute or by Rules or orders having the force of law. But no

mandamus can be issued to direct the Government to refrain from

enforcing the provisions of law or to do something which is

contrary to law.

11. In Oriental Bank of Commerce v. Sunder Lal Jain

[(2008) 2 SCC 280] the Apex Court held that, in order that a

writ of mandamus may be issued, there must be a legal right with

the party asking for the writ to compel the performance of some

statutory duty cast upon the authorities. In the said decision, the

Apex Court noticed the principles on which a writ of mandamus

can be issued have been stated as under in 'The Law of

Extraordinary Legal Remedies' by F. G. Ferris and F. G. Ferris, Jr.

that, mandamus is, subject to the exercise of a sound judicial

discretion, the appropriate remedy to enforce a plain, positive,

specific and ministerial duty presently existing and imposed by law

upon officers and others who refuse or neglect to perform such W.P.(C) No.25321 OF 2020(M)

duty, when there is no other adequate and specific legal remedy

and without which there would be a failure of justice.

12. In Bhaskara Rao A.B. v. CBI [(2011) 10 SCC 259]

the Apex Court reiterated that, generally, no court has competence

to issue a direction contrary to law nor can the court direct an

authority to act in contravention of the statutory provisions. The

courts are meant to enforce the rule of law and not to pass orders

or directions which are contrary to what has been injected by law.

13. In order to seek police protection under Article 226 of

the Constitution of India, the petitioner in a writ petition filed

under Article 226 of the Constitution of India has to first approach

the concerned Station House Officer with a proper complaint

against those who are causing threat to the life and/or the

property of the petitioner. Since a writ of mandamus can be

granted only in a case where there is a failure on the part of that

officer concerned to discharge the statutory obligation, in the

complaint filed before the concerned Station House Officer, which

is foundation upon which a writ petition seeking police protection

has been built, the petitioner has to disclose his legal right to

compel performance of a statutory duty cast upon that authority.

The said complaint should contain necessary pleadings. In case W.P.(C) No.25321 OF 2020(M)

there is any failure on the part of the officer concerned in

discharging the statutory duty or obligation, the petitioner can

approach this Court in a writ petition filed under Article 226 of the

Constitution of India, seeking appropriate reliefs, in which the State

of Kerala, the officer concerned and also those who are causing

threat to the life and/or the property of the petitioner, as alleged in

the said complaint, are to be arrayed as respondents.

14. Viewed in the light of the law laid down in the decisions

referred to supra, conclusion is irresistible that, in a writ petition

seeking police protection, the petitioner has to make out a cause of

action in the representation or complaint that has been filed before

the concerned Station House Officer. Such a representation is the

foundation of a writ petition seeking police protection, since, the

entitlement to seek a writ of mandamus arises when there is failure

on the part of the concerned Station House Officer in discharging

his statutory obligations.

15. In the instant case, as already noticed, in Ext.P5

representation dated 06.11.2020 filed before the 2 nd respondent

Station House Officer, the petitioner has not made out a case to

compel the 2nd respondent Station House Officer, the performance

of a statutory duty. The only averment in that representation is

that there is probability of public protest against the construction of W.P.(C) No.25321 OF 2020(M)

mobile tower. Similarly worded representations are produced in

other writ petitions seeking police protection for putting up

telecommunication towers. In Ext.P2, the petitioner has absolutely

no case that there is any obstruction to the construction of mobile

tower of a group of unidentifiable persons, as alleged in the writ

petition.

16. The document marked as Ext.P4 is a copy of

communication dated 24.03.2020 issued by the Chairman, Kerala

State Telecom Disaster Co-ordination Committee, addressed to

District Collectors, Police Commissioners and Superintendents of

Police in the State requesting that Telecom Service Providers,

Internet Service Providers, their authorised vendors and Telecom

Infrastructure Providers be given the support of State Police and

Disaster Response Forces for smooth and seamless operation of

telecom services in the State of Kerala. Therefore, in case there is

any obstruction from the local residents to the construction and

rolling out for operation of a telecommunication tower, the Telecom

Infrastructure Provider can approach the concerned Station House

Officer seeking police assistance with a proper complaint against

those who are causing such obstruction. In case there is inaction

on the part of the concerned Station House Officer, the Telecom

Infrastructure Provider can approach the District Telecom W.P.(C) No.25321 OF 2020(M)

Committee constituted by the State Government, which has been

constituted for the purpose of redressing the grievances of

stakeholders including public at large in all matters pertaining to

mobile telecommunication towers.

17. In the above circumstances, the petitioner is not entitled

to a writ of mandamus commanding the respondents 1 and 2 to

extend police protection for the construction and role out for

operation of telecommunication tower in the property covered by

Ext.P3 building permit.

18. In the result, this writ petition fails and the same is

accordingly dismissed; however without prejudice to the right of the

petitioner to approach the District Telecom Committee constituted

by the State Government, in case there is any obstruction to the

construction and roll out for operation of the telecommunication

tower in the property covered by Ext.P3 building permit.

No order as to costs.

Sd/-

ANIL K. NARENDRAN JUDGE

MIN W.P.(C) No.25321 OF 2020(M)

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1                TRUE COPY OF RELEVANT EXTRACT OF THE
                          CERTIFICATE OF REGISTRATION OF
                          PETITIONER COMPANY

EXHIBIT P2                TRUE COPY OF RELEVANT EXTRACT OF
                          CERTIFICATE OF INCORPORATION OF
                          PETITIONER COMPANY

EXHIBIT P2 (A)            TRUE COPY OF THE POWER OF ATTORNEY OF
                          PETITIONER'S COMPANY DATED 15.6.2020

EXHIBIT P3                TRUE COPY OF THE BUILDING PERMIT ISSUED
                          BY THOLICODE GRAMA PANCHAYATH DATED
                          08.10.2020

EXHIBIT P4                TRUE COPY OF THE LETTER SUBMITTED BY THE
                          3RD RESPONDENT DATED 24.3.2020

EXHIBIT P5                TRUE COPY OF THE ACKNOWLEDGED COPY OF
                          LETTER SUBMITTED BY THE PETITIONER TO
                          2ND RESPONDENT DATED 6.11.2020