M/S Reliance Jioinfocomm Limited ... vs The Station House Officer
2023 Latest Caselaw 3801 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
            THE HONOURABLE MR.JUSTICE N.NAGARESH
  THURSDAY, THE 30TH DAY OF MARCH 2023 / 9TH CHAITHRA, 1945
                   WP(C) NO. 4242 OF 2023
PETITIONERS:
    1     M/S RELIANCE JIOINFOCOMM LIMITED ("RJIL")
          OFFICE -101, SAFFRON, NR. CENTRE POINT,
          PANCHWATI 5 RASTA,AMBAWADI,
          AHMEDABAD-380006,GUJARAT,
          INDIA WITH ITS STATE BUSINESS
          OFFICE AT PUKALAKKATTUKARIYATTU TOWERS,
          MAMANGALAM, PALARIVATTOM, COCHIN - 682025
          (FORMERLY KNOWN AS INFOTEL BROADBAND SERVICES
          LIMITED)REPRESENTED BY ITS SENIOR MANAGER LEGAL,
          ARUL KUMARPUTHUKKUDI, AGED 48 YEARS,
          S/O. BALAKRISHNAN NAIR,
          RESIDING AT FLAT NO.4A, CELESTIA,
          FATHIMA CHURCH ROAD, JAWAHAR NAGAR,
          KADAVANTHRA-682020.

    2     M/S SUMMIT DIGITEL INFRASTRUCTURE LTD
          HAVING ITS REGISTERED OFFICE AT UNIT-2,
          9TH FLOOR, TOWER-4, EQUINOX BUSINESS PARK,
          LBS MARG, KURLA (W), MUMBAI,
          MAHARASHTRA, INDIA - 400070 AND
          HAVING ITS STATE BUSINESS OFFICE AT
          PUKALAKKATTUKARIYATTU TOWERS,
          MAMANGALAM,PALARIVATTOM, COCHIN- 682025
          REPRESENTED BY ITS SENIOR MANAGER LEGAL
          ARUL KUMARPUTHUKKUDI, AGED 48 YEARS,
          S/O. BALAKRISHNAN NAIR,
          RESIDING AT FLAT NO.4A, CELESTIA,
          FATHIMA CHURCH ROAD, JAWAHAR NAGAR,
          KADAVANTHRA-682020.

          BY ADVS.
          P.SATHISAN
          DONA AUGUSTINE

RESPONDENTS:
    1     THE STATION HOUSE OFFICER
          NEMOM POLICE STATION,
          NEAR BUS STOP, NEMOM P.O.,
          THIRUVANANTHAPURAM - 695020.
 W.P.(C) No.4242 of 2023
                             2



    2    THE SUPERINTENDENT OF POLICE
         THIRUVANANTHAPURAM CITY,
         UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
         PALAYAM, PMG P.O.,THIRUVANANTHAPURAM,
         KERALA, PIN - 695033
    3    THE SECRETARY
         THIRUVANANTHAPURAM CORPORATION,
         LMS VELLAYAMBALAM RD, OPPOSITE LMS COMPOUND,
         UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
         PMG P.O., THIRUVANANTHAPURAM - 695033.
    4    THIRUVANANTHAPURAM CORPORATION
         LMS VELLAYAMBALAM RD, OPPOSITE LMS COMPOUND,
         UNIVERSITY OF KERALA SENATE HOUSE CAMPUS,
         PMG P.O., THIRUVANANTHAPURAM, KERALA ,
         REPRESENTED BY ITS SECRETARY - 695033.
    5    DISTRICT TELECOM COMMITTEE
         THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN,
         DISTRICT COLLECTOR, 2ND FLOOR CIVIL STATION
         BUILDING, CIVIL STATION ROAD, COLLECTORATE
         THIRUVANANTHAPURAM P.O. - 695043
    6      SUDHA
           AGE AND FATHER'S NAME NOT KNOWN TO THE
           PETITIONERS GOWRI NANDANA, TC 53/913,
           ESTATE P.O., NEMOM, THIRUVANANTHAPURAM,
           KERALA, PIN - 695019
    7      SHEEBA
           AGE AND FATHER'S NAME NOT KNOWN TO
           THE PETITIONERS, PERUMBUZHAKOTTUKONAM,
           ESTATE P.O., SATHYAN NAGAR,
           THIRUVANANTHAPURAM - 695019.
           BY ADVS.
           E.C.BINEESH GP.
           SUMAN CHAKRAVARTHY SC.
           CHRISTEENA P GEORGE
           SAFAL P SALIM
           SANTHAN V NAIR
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.P.(C) No.4242 of 2023
                                 3



                         JUDGMENT

Dated this the 30th day of March, 2023

The petitioners, a Telecom Service Provider and a Telecom

Infrastructure Provider, have approached this Court seeking to

direct respondents 1 and 2 to extend effective and adequate

police protection to the petitioners to construct and operate a

Telecom Tower as per Ext.P4.

2. The petitioners proposed to construct a Telecom Tower

in Sathyan Nagar, Pappanamcode in Thiruvananthapuram.

Though initially there was no Building Permit for the construction,

subsequently on 30.11.2015, the Corporation of

Thiruvananthapuram issued Ext.P4 proceedings regularising the

construction of the Telecome Tower. The petitioners obtained EMF

Certification for Radiation Compliance as early in the year 2017.

Thereafter, though the petitioners attempted to complete the W.P.(C) No.4242 of 2023

Telecome Tower, there were obstructions from certain quarters.

3. The petitioners, therefore approached the District

Telecom Committee, who is the competent authority in the matter.

The District Telecom Committee enquired into the matter and

passed Ext.P8 proceedings on 28.11.2022. By Ext.P8 proceedings

the District Telecom Committee granted police protection for

construction of the Tower. The grievance of the petitioners is that

in spite of the decision of the District Telecom Committee headed

by the District Collector, the police has not granted sufficient

protection and therefore the petitioners are not in a position to

complete the construction work.

4. Counsel for the petitioners submitted that the

petitioners have a right to erect Telecom Tower after obtaining all

licences and permits. If any person has any grievance regarding

Telecom Tower, they have to approach the competent statutory

authority or Courts of law. They cannot take law into their hands. W.P.(C) No.4242 of 2023

5. In this case, the District Telecom Committee headed by

the District Collector has cleared the petitioners' project and also

has given direction to the police to give protection. In spite of the

said direction contained in Ext.P8, the police is not assisting the

petitioners for completing the construction of the Tower. Therefore,

this Court is bound to issue necessary directions to the

respondents.

6. Standing Counsel for Thrivananthapuram Corporation

entered appearance and denied all the allegations made by the

petitioners against the Thrivananthapuram Corporation. On behalf

of the Thrivananthapuram Corporation, it is submitted that the

petitioners initially started the construction of the Telecom Tower

without obtaining a Building Permit. Subsequently, the petitioners

submitted application for regularisation of the building

construction. The said application was duly considered by the

Corporation and Ext.P4 order was passed.

W.P.(C) No.4242 of 2023

7. Thereafter, on the basis of complaints, the Corporation

authorities looked into the matter and found that proper fencing is

not made around the Telecom Tower of the petitioners. Therefore,

the Corporation authorities have issued a show cause notice on

25.01.2016, pointing out that the petitioners have not made proper

fencing around the petitioners' Telecom Tower. The petitioners

have not constructed the fencing and therefore the petitioners

need not be granted any police protection, contended the

Corporation.

8. Counsel entered appearance on behalf of respondents

6 and 7 and resisted the writ petition. On behalf of respondents 6

and 7, it is stated that the petitioners are trying to erect and

commission a mobile tower in a densely populated area violating

all the rules and the statutory norms. There are Mobile Towers

erected by the petitioners within 1 KM of the disputed structure.

Therefore, a new Mobile Tower is unwarranted. The area comes W.P.(C) No.4242 of 2023

under the Thrivananthapuram Corporation. Construction is in

violation of the relevant Town Planning Scheme applicable.

9. Respondents 6 and 7 urged that the Tower is illegally

constructed in a very low lying area and the transmission antenna

is almost at the height of the houses situated around. The

construction of the Mobile Tower does not comply with the

provisions under Chapter XIX of the Kerala Municipality Building

Rules, 1999. The Tower is being constructed near a Lower

Primary School which is less than 100 meters far. The Tower is

situated in the middle of a densely populated area, having 480

residential houses, contended respondents 6 and 7.

10. Ext.P4 has been obtained in a fraudulent manner,

contended respondents 6 and 7. The local residents have

approached the Secretariat of the Kerala Legislative Assembly.

The Secretariat has issued a communication dated 17.11.2015.

The communication would indicate that the tower construction is in W.P.(C) No.4242 of 2023

violation of the Kerala Municipality Building Rules, 1999. Taking

into consideration the proceedings dated 17.11.2015 of the

Secretariat of Kerala Legislative Assembly, the writ petition is

liable to be dismissed, contended respondents 6 and 7.

11. I have heard the learned counsel for the petitioners, the

learned Government Pleader representing respondents 1, 2 and

5, the learned Standing Counsel representing respondents 3 and

4 and the learned counsel appearing for respondents 6 and 7.

12. From the pleadings and arguments, it is disclosed that

an application was submitted by the petitioners to Corporation in

connection with the construction of the Telecom Tower. The

Corporation has issued regularisaton orders as per Ext.P4 order

dated 30.11.2015. Ext.P5 would indicate that the SACFA has

issued EMF certification for radiation compliance.

13. When there are obstructions from the local people, the

petitioners approached the District Telecom Committee. The W.P.(C) No.4242 of 2023

District Telecom Committee is the competent authority in the

matter of assessing legality and suitability of Telecom Towers. The

District Telecom Commiitee has cleared the project of the

petitioners and has issued Ext.P8 order dated 28.11.2022. In fact,

the District Telecom Committee has already ordered the police to

grant necessary protection.

14. Standing Counsel for the Corporation would submit that

the petitioners have not so far complied with the directions given in

the show cause notice dated 25.01.2016 relating to fencing of the

area. The petitioners would submit that even fencing of the area is

not permitted due to local obstructions and that the petitioners will

be fencing the Tower once obstructions cease to exist.

15. When the petitioners have obtained necessary permits

and clearances and are constructing a Telecom Tower, I am of the

view that respondents 6 or 7 or any other person for that matter,

cannot physically obstruct such construction taking law into their W.P.(C) No.4242 of 2023

hands. If respondents 6 and 7 have any grievance against the

erection of the Telecom Tower, they have to approach the

competent authorities raising their grievances and requiring to

cancel the permits or licences granted to the petitioners. In a

country governed by rule of law, taking law into hands for

obstructing an activity permitted by the statutory authorities cannot

be accepted.

In view of the above, the writ petition is disposed of directing

respondents 1 and 2 to give adequate and effective police

protection to the petitioners to complete the construction work of

the Telecommunication Tower including the fencing work.

Sd/-

N. NAGARESH JUDGE ams W.P.(C) No.4242 of 2023

APPENDIX OF WP(C) 4242/2023 PETITIONER'S EXHIBITS Exhibit P1 TRUE COPY OF THE RELEVANT ORDER OF NCLT DATED 20.03.2019 IN RELATION TO THE INFRASTRUCTURE MANAGEMENT OF 1ST PETITIONER Exhibit P2 TRUE COPY OF THE UPDATED CERTIFICATE OF INCORPORATION OF 2ND PETITIONER DATED 22.07.2022 Exhibit P3 TRUE COPY OF G.O.(MS) NO.49/2020/GAD DATED 23.03.2020 Exhibit P4 TRUE COPY OF THE REGULARIZATION ORDER DATED 30.11.2015 Exhibit P5 TRUE COPY OF THE EMF CERTIFICATION DATED 07.08.2014 Exhibit P6 TRUE COPY OF THE ORDER IN I.A.NO.2103 OF 2017 IN O.S.NO.491/2017 DATED 7/2/2022 OF THE PRINCIPAL MUNSIFF'S COURT, THRIUVANANTHAPURAM Exhibit P7 TRUE COPY OF THE ORDER IN CRL M C 4149 OF 2022 DATED 03.08.2022 Exhibit P8 TRUE COPY OF THE RELEVANT EXTRACT OF THE MINUTES OF MEETING OF DTC DATED 28.11.2022 Exhibit P8(a) TRUE COPY OF THE COMMUNICATION NO.DCTVM/8424/2022-S1 DATED 06.01.2023 ISSUED BY THE 5TH RESPONDENT TO 1ST AND 2ND RESPONDENTS Exhibit P9 TRUE COPY OF RECEIPT ISSUED BY R1 ON THE COMPLAINT DATED 19.01.2023 RESPONDENTS' EXHIBITS EXHIBIT R6(A) TRUE COPY OF THE LETTER DATED 17.11.2015 NO.

              5794/ENV3/2014/LS   ISSUED   BY    THE  KERALA
              LEGISLATIVE SECRETARIAT TO ONE ROBINSON