Judgment:
Kurian Joseph, J.
1. These writ petitions are filed at the instance of service providers/infra-structure service providers, who have been issued license by the Department of Telecommunications for the erection of mobile towers and for their operation. It is also seen that the local authority concerned had issued building permit for the construction of the tower. In some of the cases, it appears, after the issuance of the building permit, the local authority concerned itself had issued a stop memo. Some of the people at the locality entertained an apprehension with regard to the hazards to their health and they physically obstructed the petitioners from taking up the construction of the tower though the same was permitted by the local authority concerned and though they had the license. When the writ petitions came up before this Court, it is seen that this Court had issued a direction to the Police to render necessary police protection for the construction of the tower, in case there is no prohibitory order issued by any statutory authority or any court of law. It was also made clear that the commissioning of the tower will be done only after obtaining further orders from this Court. The order regarding commissioning as above was issued in view of the reference order dated 24-3-2009 in W.P(C) No. 6433/2009 and connected cases, to the Larger Bench. The following are the two questions referred to the Larger 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 license 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 to act and whether in the absence, this Court could issue necessary directions to the Police. The Larger Bench is yet to consider the reference.
2. We find that none of the members of the public or for that matter any local authority has challenged either the license granted to the petitioners by the Department of Telecommunications or the permit granted to the applicants, as the case may be, before this Court. Apparently such challenges could not have been taken up before this Court in the ordinary course since any person aggrieved by an order passed by the local authority is to pursue his grievance before the Tribunal for Local Self Government Institutions. Similarly any person aggrieved by the license granted by the Department of Telecommunications is to pursue the matter before the TDSAT. If there is any other issue, the same is to be sorted out before the civil court.
3. Be that as it may, it is reported that pursuant to the interim orders granted by this Court, the applicants have either completed the construction of the base tower or the same is in the process of construction/completion. In that view of the matter since the issue referred to the Larger Bench has nothing to do with the construction of the base station, we do not think that there is any point in keeping these writ petitions before this Court. The construction is undertaken only on a license issued by the Department of Telecommunications and a permit issued by the local authority concerned. If the local authority concerned has issued a stop memo for any valid reason and in case the same is in force, it is for the service provider/infra-structure service provider to pursue the matter in appropriate proceedings before the Tribunal for Local Self Government Institutions. Similarly, if any of the respondents or for that matter any person is aggrieved by the permit granted by the local authority for the construction of the base station or by the license issued to the service provider/infra- structure service provider, it is for that person to pursue the matter before the TDSAT. If there is still any other dispute, it is for the party concerned to approach the civil court. Unless interdicted by any such forum or a competent authority, petitioners are free to act according to the permit/permit granted to them.
4. Therefore, these writ petitions are disposed of making it clear that in the event of any person/party approaching the Tribunal or TDSAT. referred to above or the civil court, such forums shall consider the issues taken up before them ignoring the factual position that pursuant to the interim order granted by this Court for police protection, the construction of the mobile tower has been either constructed or started construction. We make it clear that the construction thus made will be subject to the orders, if any, passed by the forums as referred to above. Still further it is made clear that the petitioners cannot claim any equity on the only ground of the construction. We make it further clear that if any such forum is approached by any of the parties, that forum is free to consider the matter on all available grounds and that the construction had been made as permitted by the High Court shall not be taken as an objection for dealing with those aspects. However, it is made clear that in case there is no interdiction from any competent forum, and in case the construction is made in accordance with the permit/license from the local authority/competent authority, there cannot be any physical obstruction in doing a lawful activity. In the unlikely event of any obstruction in such circumstances, the police shall render necessary assistance.