The main legal point established in the judgment is the necessity of police protection in certain cases involving mobile tower construction and operation, emphasizing the duty of the Police to prevent cognizable offences and maintain law and order.

1. Is the “Police protection jurisdiction” being exercised by this Court for more than two decades, alien to the scope and scheme of Art.226 of the Constitution of India and whether the aggrieved party should be relegated to avail the remedy before the Civil Court, notwithstanding the ‘failure of duty’ on the part of Police; form the crucial question to be considered in all these cases. The answer to the said question will almost provide necessary answers to the points of reference as well.

2. The physical obstruction caused by the people of the locality against the erection of ‘Base Transceiver Stations’ (‘BTS’ or Mobile Towers in short) for facilitating easy access to the mobile phones to the customers, referring to ‘health hazards’ to the nearby inhabitants, gave rise to the cause of action for almost all the petitioners, who are either the mobile operators/licensees or the service providers, except in one case, i.e., WP(C) 36730/2009, which is styled as a ‘Public Interest Litigation’ filed by a person of the locality, seeking to shift the mobile tower already erected at the instance of the 6th respondent therein, referring to the various health hazards and also inadequacy of safety measures.

3. Reference has been made by different Division Benches of this Court in view of the different views expressed at different points of time. As per the decision in Reliance Infocom Ltd. V. Chemanchery Grama Panchayat (2006 (4) KLT 695), it was held that the ‘Radio Frequency’ exposures from Mobile BTS are much less than from Radio, FM radio, Television transmissions and that the consensus of scientific community was that the radiation from Mobile Phone Base Station was far too low, to produce health hazards, if the people were kept away from direct access to the antenna and the over all evidence indicated that they were unlikely to pose a risk to health. Accordingly, the order passed by the concerned Grama Panchayat cancelling the ‘permit’ already given to erect the mobile tower because of the objection/apprehension as to the health problems raised by a group of people of the locality was set side, simultaneously granting Police protection.

4. In Essar Telecom Infrastructure (P) Ltd. V. C.I. of Police (2008 (4) KLT 713) another Division Bench took a different view and held that the view expressed by the Bench in ‘Reliance case’ regarding radiation etc. was in the context of cancellation of the Permit granted by the Panchayat and that the intricacies of health hazards cannot be decided by the Police or by this Court; thus denying the relief of Plice protection, making it clear that the petitioners were to approach the Civil Court for appropriate relief. Subsequently, yet another Division Bench as per the decision in Dishnet Wireless Ltd. V. Circle Inspector of Police (2009 (1) KHC 781) held that, if the petitioner had obtained all necessary licence from the statutory authority for construction of the mobile tower, nobody else was entitled to cause any physical obstruction referring to the health grounds or otherwise, and accordingly, ‘Police protection’ was ordered for construction of the tower so long as the construction was being done with valid permit and in the absence of any statutory bar/prohibitory order.

5. The divergent views as above were brought to the notice of the Bench of this Court when W.P.(C) No. 6433/2009 and connected cases were being considered, which led to the reference order dated 24.03.2009 (by Hon’ble Mr,. Justice P.R. Raman and Hon’ble Mr. Justice P.S. Gopinathan seeking to clarify the following points:

(1) Whether the construction of a Mobile Base Station by itself will give rise 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 hazards could be decided in a petition filed under Art 226 of the Constitution of India.

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