M/S. Indus Towers Ltd Ch v. The Commissioner Of Police

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 17.08.2020

CORAM

THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN CRL.O.P.No.12351 of 2020 M/s.Indus Towers Limited, having its circle office at 5 (NP), ESPEE, IT Park, 5th Floor, Jawaharlal Nehru Road, Ekkatuthangal, Chennai 600 097, represented by its Assistant Legal Manager, S.Prasanna.

...Petitioner

-Vs1. The Commissioner of Police, Commissioner of Police Office, Coimbatore City. 2.The Assistant Commissioner of Police, Coimbatore East, Coimbatore City.

3.The Inspector of Police, B5, Singanallur Police Station, Coimbatore.

4.The District Collector, District Collector Office, Coimbatore.

5.The Municipal Commissioner, Municipal Corporation, Coimbatore City. ....Respondents Prayer: Criminal Original petition filed under Section 482 of Code of Criminal Procedure, to direct the respondents 1 to 3 to provide the effective police protection to the petitioner company to erect transmission cell phone tower and to install all the telecommunication electrical & electronics equipments, OFC Cable and its maintenance work on the said BTS transmission Tower at Coimbatore Taluk & District, Uppilipalayam Village, Natham S.F.No.517/2 in Site No.127 in Kamaraj Nagar, Kallimadai, Singanallur in Coimbatore Corporation limit, since the deemed permission to install the BTS transmission Tower was granted by the 4th respondent as per the G.O(Ms)No.1 dated 21.02.2018 by implementing the Indian Telegraph Right of Way Rules, 2016, notified by the Government of India, Ministry of Communications, Department of Telecommunications vide No.GSR.1070(E) dated 15.11.2016 and as per the letter dated 26.03.2020 issued by the

Additional Chief Secretary to the Government of Tamil Nadu vide Letter No.45324/IT (E)/2020 and a letter dated 20.04.2020 issued by the Government of India, Ministry of Communications, Department of Telecommunications vide Letter No. Lr.No.DDG (Technology)TN-LSA/DM/COVID-19/20-21/02.

For Petitioner : Mr.R.Vivekananthan For Respondents: Mr.S.Karthikeyan, Additional Public Prosecutor

O R D E R

This Criminal Original petition has been filed seeking for a direction to direct the respondents 1 to 3 to provide the effective police protection to the petitioner company to erect transmission cell phone tower and to install all the telecommunication electrical & electronics equipments, OFC Cable and its maintenance work on the said BTS transmission Tower at Coimbatore Taluk & District, Uppilipalayam Village, Natham S.F.No.517/2 in Site No.127 in Kamaraj Nagar, Kallimadai, Singanallur in Coimbatore Corporation limit, since the deemed permission to install the BTS transmission Tower was granted by the 4th respondent as per the G.O(Ms)No.1 dated 21.02.2018 by implementing the Indian Telegraph Right of Way Rules, 2016, notified by the Government of India, Ministry of Communications, Department of Telecommunications vide No.GSR.

1070(E) dated 15.11.2016 and as per the letter dated 26.03.2020 issued by the Additional Chief Secretary to the Government of Tamil Nadu vide Letter No.45324/IT (E)/2020 and a letter dated 20.04.2020 issued by the Government of India, Ministry of Communications, Department of Telecommunications vide Letter No. Lr.No.DDG (Technology)TN-LSA/DM/COVID-19/2021/02.

2. The case of the petitioner is that the petitioner is carrying on the business of Operation and Maintenance of Mobile phone towers across India for all the mobile phone operators/service providers. For the said purpose, cell phone towers are going to be erected. The petitioner had also entered into a lease agreement with the owner of the property and had taken steps to install the cell phone tower. Already, the Government of Tamil Nadu has granted exemption to all the Telecom companies to install the cell phone towers by virtue of Government Order passed in G.O.Ms.No.2, dated 01.04.2002. 3.When the petitioner attempted to erect the cell phone tower, the residents of the area came to the spot and started

causing hindrance to the company officials from carrying out the construction work. The petitioner's company has staff sent a complaint dated 19.03.2020 to the respondents 1 to 3 by post to provide them protection. However, the respondents 1 to 3/Police had not acted upon the said complaint and therefore, the present Criminal Original Petition has been filed.

4.The learned counsel appearing for the petitioner would submit that the issue involved in this petition is covered by the earlier Judgments of this Court. He has also brought to the notice of this Court the order passed by this Court in Crl.O.P.No.16618 of 2018, wherein the very same petitioner was a party.

5.It will be appropriate to extract the relevant portions of the order in Crl.O.P.No.16618 of 2018, which is extracted hereunder:- "2.The learned counsel for the petitioner would submit that the petitioner's company had the contract agreement for installation of cell phone tower with M/s.Indus Towers Limited, a company registered under the provisions of Indian Companies Act, 1956. It is further submitted by the learned counsel for the petitioner that whenever the petitioner's company attempted to erect transmission cell phone tower, publics are causing interference. The learned counsel for the petitioner also submitted that by order dated 05.03.2015, the Honourable First Bench of this Court, in W.P.Nos.24976 of 2008 and etc., batch, held that because of the advancement in the science, no one has prevented to erect cell phone towers.

It is also submitted that the petitioner has given a complaint dated 24.02.2016 to the first respondent police seeking police protection, for which C.S.R.No.42 of 2016 and since the same has not been considered so far, he has come up with the present petition for the relief stated supra.

3.Heard the learned Additional Public Prosecutor appearing for the respondent.

4.Considering the facts and circumstances of the case, the petitioner is directed to send a fresh representation to the respondent and on receipt of the same, the respondent is directed to consider the representation to be submitted by the petitioner and pass appropriate orders on merits and in accordance with law, within a period of one week from the date of receipt of copy of this order.

5.With the above directions, this Criminal Original Petition is disposed of."

6.This Court has consistently taken the view that no one can be prevented from erecting the cell phone towers on a mere apprehension about the effect of radiation from the cell phone tower. The apprehension does not have a scientific backing. Till a positive finding is given in this regard, cell phone towers cannot be prevented to be installed on mere apprehensions.

7. For the reasons stated above, there shall be a direction to the third respondent police to provide police protection to the petitioner for erection of the cell phone tower. The second respondent police shall ensure that the entire process goes on in a smooth manner, without giving raise to any law and order problem and the petitioner shall pay a cost of Rs.10,000/- (Rupees Ten thousand only) to the third respondent police towards police protection.

8.The Criminal Original Petition is disposed of with the above direction.

Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar gv To

1. The Commissioner of Police, Commissioner of Police Office, Coimbatore City. 2.The Assistant Commissioner of Police, Coimbatore East, Coimbatore City.

3.The Inspector of Police, B5, Singanallur Police Station, Coimbatore.

4.The District Collector, District Collector Office, Coimbatore.

5.The Municipal Commissioner, Municipal Corporation, Coimbatore City.

CRL.O.P.No.12351 of 2020 ev(co) aa29/09/2020