Kerala High Court
M/S.Essar Telecom Infrastructure (P) ... vs The Circle Inspector Of Police on 11 March, 2011
Bench: K.M.Joseph, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24384 of 2009(P)
1. M/S.ESSAR TELECOM INFRASTRUCTURE (P) LTD
... Petitioner
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. THE SUB INSPECTOR OF POLICE,
3. MR.THAZIM, S/O.ABU, VALLINALIL HOUSE,
4. MR.HAMSA, S/O.KOCHALI, KALLINAL HOUSE,
5. MR.KHALID, S/O.NETHIN PILLA,
6. MR.KARIM, S/O.HYDROSE, ABU,
7. CHENGAMANAD GRAMA PANCHAYAT,
For Petitioner :SRI.SANTHOSH MATHEW
For Respondent :SRI.P.CHANDRASEKHAR
The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :11/03/2011
O R D E R
K. BALAKRISHNAN NAIR & P.Q.BARKATH ALI, JJ.
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W.P.(C) NOS.24384 & 25157/2009
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Dated this, the 2nd day of November, 2009 Reference Order Balakrishnan Nair, J.
These Writ Petitions are filed for police protection, for constructing telecommunication towers in different localities, for transmission of mobile phone signals. The local people took up cudgels, apprehending that the towers, when they become operational, will be a perpetual health hazard to them. They apprehend, the signals emanating from those towers will affect their physical well-being. This Court, while admitting the Writ Petitions, granted interim order of protection for the construction of the towers, provided there were no prohibitory orders passed by any civil court or statutory authorities, subject to the condition that the petitioners shall not commission the towers without obtaining orders from this Court.
2. It is brought to our notice that W.P.(C) No.6433/2009 and connected cases have already been referred by a Division Bench of this Court for hearing and disposal by the Full Bench, WPC NOS.24384 & 25157/09
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in view of the apparent conflict between the Division Bench decisions of this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat [2006(4) KLT 695], Essar Telecom Infrastructure (P) Ltd. v. C.I. Of Police [2008(4) KLT 713] and Dishnet Wireless Ltd. v. Circle Inspector of Police and Others [2009(1) KHC 781]. The Division Bench formulated the following points for the consideration of the Full 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 WPC NOS.24384 & 25157/09
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to act and whether in the absence, this Court could issue necessary directions to the Police".
3. We think, yet another point also requires to be resolved by the Full Bench. That is regarding the power of this Court under Article 226 of the Constitution of India to issue directions to the police. The said point was not addressed by the Division Benches in Reliance Infocom Ltd. (supra) or Dishnet Wireless Ltd. (supra). We notice that the Writ Petitions filed before this Court for police protection are similar to civil suits for mandatory injunction against the police. Petitioner A approaches this Court, claiming that his right to carry on a legitimate activity is being obstructed by B and others. B and others have no right to do that. Though, police have been alerted, they have not come to the aid of A. So, a Writ Petition is filed by A. This Court adjudicates on the dispute between A and B, enters a finding that A is entitled to carry on the disputed activity and direct the police to render protection. In a suit, the civil court will normally restrain B and others from interfering with the activities of A. If that injunction is violated, coercive WPC NOS.24384 & 25157/09
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measures will be taken against B and others and in appropriate cases, police will be addressed by the civil court to render assistance to A. In Writ Petitions, this Court straightaway ask the police to render assistance, based on this Court's findings in favour of A. We think, the power of this Court while issuing a writ of mandamus is co-terminous with the failure of duty of the police. Do the police have a duty to adjudicate on the dispute between A and B, enter a finding in favour of A and thereafter render protection to him? If the answer is 'No', how this Court, in exercise of the power to issue a writ of mandamus, can do that? A Division Bench of this Court in Sadananda Bai v. Ravi [2008(3) KLT 542] considered the above point in the following manner:
"8. Recently, the 'police protection jurisdiction' is being converted into a special original jurisdiction, not conferred by the Constitution. Under the guise of seeking police protection, civil disputes are raised before this Court, calling upon it to make a prima facie adjudication and based on that finding, ask the police to render assistance to the party, whose right has been, prima facie, found by this Court to be WPC NOS.24384 & 25157/09
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infringed. This Court has no such power to follow the above procedure under the Constitution. The High Court has no power to adjudicate the disputes between private parties, while exercising its power of judicial review. The powers of this Court to issue writs under Art.226 of the Constitution of India are well settled. This Court can issue a mandamus to the police to perform their duty enjoined upon them by the statutes."
Again, in Essar Telecom Infrastructure (P) Ltd. v. C.I of Police [2008(4) KLT 713], this Court observed as follows:
"8. Police protection jurisdiction is a 'special' original jurisdiction, which, it appears, is exercised by the Kerala High Court only. Disputes between the parties are raised before the High Court, as if they are raised in an original suit. This Court adjudicates the rights and based on its findings, issues directions to the police. We find that this Court has no such power under the Constitution or under any other statute. The Writ Petitions are filed for issuing a writ of mandamus to the police under Art.226 of the Constitution of India, on the ground that the police have failed to discharge their statutory duty. It means, the powers of this Court, WPC NOS.24384 & 25157/09
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while exercising this jurisdiction, are co-terminous 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. The police have no right, power or authority to decide the dispute regarding the ill- effects of radiation or whether a mobile phone tower will cause radiation, which is injurious to the health of the people residing in the locality. So, in this jurisdiction, this Court also cannot adjudicate that dispute. One of the cases in which this Court exercised the 'special' original jurisdiction of adjudicating the civil rights of parties, which was later reversed by the Apex Court, was in W.P.(C) No.16047 of 2004. It was a case where a Sanyasin claimed that he is the Sthiradhyakshan (permanent Chairman) of Vadayampadi Ashramam and the rival group claimed that the bye-laws of the Trust were amended, deleting the provision concerning Sthiradhyakshan. The Sanyasin's suit to continue as Sthiradhyakshan was dismissed by the civil court for default. Undaunted, he approached the High Court for police protection to continue as Sthiradhyakshan. Another suit filed by a founder member of the Trust, challenging the validity of the above said amendment was pending before the civil court. This WPC NOS.24384 & 25157/09
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Court under Art.226 adjudicated the above civil dispute and granted police protection. The Apex Court reversed that judgment by the decision in P.R.Muralidharan v. Swami Dharmananda Theertha Padar [2006(2) KLT 119 (SC) = [(2006)4 SCC 501]."
4. The ill-effects of radiation from mobile towers and its extent are yet to be established by scientific studies. The mobile service providers paint a rosy picture. But, the environmentalists seriously dispute the above campaign of the corporate giants. They say, the precautionary principle should be followed and until it is conclusively proved to be harmless, the establishment of mobile towers in thickly populated areas should not be allowed. They say, in areas where the intensity of signals from mobile towers is high, the birds do not even nest. Singing and chirping of birds are absent there, the environmentalists assert, based on studies conducted by them. It is settled law from the days of Ryland v. Fetcher [1868 (LR) 3 HL 330] that a property owner cannot carry on an unnatural activity in his property which causes harm to the neighbouring property owners. So, in this dispute, the police WPC NOS.24384 & 25157/09
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have no power or authority to enter a finding that mobile phone towers are harmless and this Court's power being co-terminous with the failure of duty of the police, this Court also cannot venture to enter such a finding. 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. So, we think, the Full Bench should consider the point whether this Court can issue a writ of mandamus to the police, as if this Court is hearing a suit for mandatory injunction against a private party.
5. Yet another point which requires the attention of the Full Bench is concerning the alternative remedy available to the writ petitioners. We think, the decision in George v. Circle Inspector of Police [1990(1) KLT 741] lays down the correct legal position on this point. The statement of law made on this aspect in para 10 of the said decision has been followed in Essar Telecom Infrastructure (P) Ltd. (supra). This Court is grappling with the problem of mounting arrears. One of the reasons for the same is identified as entertaining matters, which WPC NOS.24384 & 25157/09
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other forums can also entertain and grant relief. Normally, when alternative remedy is available, the petitioner should be turned away to invoke that remedy. Going by the pleadings in the Writ Petitions, what is alleged is only causing obstruction to the construction of the tower. A suit for injunction is an effective remedy to remove the obstruction. But, in Dishnet Wireless Ltd. (supra), this Court has directed the respondents to invoke the alternative remedy available to them. Going by the well-settled principles governing the invocation of the jurisdiction of this Court under Article 226, the petitioners should be turned away to invoke the alternative remedy available to them and not the respondents.
6. In view of the above position, apart from the points formulated by the Division Bench for decision by the Full Bench in W.P.(C) No.6433/2009 & connected cases, the following points also require to be settled by an authoritative pronouncement of the Full Bench:-
(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 WPC NOS.24384 & 25157/09
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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?
We refer these Writ Petitions for consideration by the Full Bench along with W.P.(C) No.6433/2009 and connected cases. Place the papers before the Hon'ble Chief Justice for appropriate orders.
K. Balakrishnan Nair, Judge.
P.Q. Barkath Ali, Judge.
nm.