High Court of KeralaSingle Judge2022-05-10Writ petition dismissed

Church Nagar Residents' Association v. Angamaly Municipality and Ors.

Case / Petition Number:WP(C) No. 30295 of 2016

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: T. R. Ravi
Judgment Date: 2022-05-10
Court Decision / Holding: Writ petition dismissed. Ext. P2 regularising the construction and the mobile tower stands; health-hazard objections rejected; Tribunal order not deemed to bar reconsideration; no specific Building Rule violation found.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Church Nagar Residents' Association
K.M. Varghese
Reliance Jio Infocomm Ltd.

Respondents

The Secretary Angamaly Municipality
The Angamaly Municipality

Legal Representation & Advocates

Counsels for Petitioners

• N.N. Sugunapalan (Sr.)
• S. Sujin

Counsels for Respondents

• P. Benny Thomas
• P.P. Thajudeen, SC
• Anil K. Muhamed
• M. Gopikrishnan Nambiar
• P. Gopinath
• K. John Mathai
• Joson Manaval
• Kuryan Thomas
• P.P. Thajudeen, SC
• E.K. Nandakumara Menon (Sr.), SC

Case Synopsis & Summary

This writ petition challenges Ext. P2, a regularisation order by the Angamaly Municipality for the construction of a building and the erection of a mobile telecom tower on it. The petitioners, Church Nagar Residents' Association and residents represented by counsel, contended that the 2nd and 3rd respondents could not grant a licence to erect and operate the tower because the initial telecommunications application did not comply with statutory requirements, and that relying on a deemed licence provision was improper. They asserted that the proposed tower would cause serious health hazards and urged that the matter should be examined by the appropriate authority with due process. The sequence of proceedings began with Reliance Jio Infocomm Ltd. submitting an application in 2014; the Tribunal directed licensing, and this Court later considered W.P.(C) No. 29002 of 2014, holding in Ext.P1 that since the application was not in order, the deeming provision cannot be applied; however, the Court left open the possibility of a fresh licence application. The building and tower were completed, and Ext.P2 regularised the construction after a Municipal Engineer report confirming compliance with Rule 131 of the Kerala Municipality Building Rules, 1999. The court found no specific Building Rules violation and noted that the earlier Tribunal order did not bar reconsideration of regularisation. The reliance on Reliance Infocom (supra) convinced the court to reject the health-hazard challenge, and the petition was dismissed.

Provisions of Law Cited

Kerala Municipality Building Rules, 1999, Rule 131

Legal Doctrines & Maxims

Deemed licence doctrine
Regularisation of construction doctrine

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners challenge Ext. P2 on grounds of health hazards and non-compliance with statutory procedures, contending that the 'deemed licence' provision cannot validate the construction without fresh licence. They argue that the initial application did not meet statutory requirements and that the project would cause serious health hazards; they rely on the earlier judgment Ext.P1 (in W.P. No. 29002/2014) which held that deeming cannot be applied when the application is not in order, while leaving open a fresh application. They urge removal or regularisation only after due process, and contend no valid grounds exist to approve regularisation of the tower.

Contentions of Respondents

The respondents contend that there is no challenge to the grant of permit before the appropriate authority, health-hazard grounds have been settled by Reliance Infocom (supra) and others, and the Municipal Engineer’s report showing compliance with Rule 131 supports Ext. P2. They note that the Tribunal’s order was not final to bar reconsideration of regularisation, and that no Building Rules violations were shown. Therefore, the writ petition should be dismissed.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Reliance Infocom Ltd. v. Chemanchery Grama Panchayat & Ors.	2006 (4) KLT 695	Positive	Cited as authority that the health-hazard ground cannot be used to defeat regulatory permissions for telecom towers; supports sustaining Ext. P2 and rejecting petition.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against Church Nagar Residents' Association v. Angamaly Municipality and Ors. and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

**WP(C) NO. 30295 OF 2016** **1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 10[TH] DAY OF MAY 2022 / 20TH VAISAKHA, 1944** ## **WP(C) NO. 30295 OF 2016** ## **PETITIONERS:** 1 CHURCH NAGAR RESIDENTS' ASSOCIATION REG.NO.ER 813/02, CN 133, 1ST STREET, ANGAMALY-683 572, ERNAKULAM DISTRICT, REPRESENTED BY ITS PRESIDENT K.M.VARGHESE, S/O.K.I.MATHAI, RESIDING AT CN 87 F, CHURCH NAGAR, ANGAMALY-683 572. 2 K.M.VARGHESE S/O.K.I.MATHAI, PRESIDENT, CHURCH NAGAR RESIDENTS' ASSOCIATION, REG.NO.ER 813/02, CN 133, 1ST STREET, ANGAMALY-683 572, RESIDING AT CN 87 F, CHURCH NAGAR, ANGAMALY-683 572. BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN 1 M/S. RELIANCE JIO INFOCOMM LTD. CHANDRIKA CHAMBERS, SA ROAD, VYTILA, KOCHI-682019, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER MR.VINOD GIYAL, THE STATE HEAD, M/S.RELIANCE JIO INFORCOMM LTD., KERALA CIRCLE. 2 THE SECRETARY ANGAMALY MUNICIPALITY, MUNICIPAL OFFICE, ANGAMALY, PIN-683 572. ## **RESPONDENTS:** **WP(C) NO. 30295 OF 2016 2** 3 THE ANGAMALY MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, ANGAMALY, PIN-683572. BY ADVS. SRI.P.BENNY THOMAS SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY SRI ANIL K.MUHAMED SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS SRI. P.P.THAJUDEEN, SC, ANGAMALY MUNICIPALITY SRI. E.K.NANDAKUMARA MENON (SR.), SC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.03.2022, THE COURT ON 10.05.2022 DELIVERED THE FOLLOWING: **WP(C) NO. 30295 OF 2016** **3** ## **T.R. RAVI, J.** **--------------------------------------------** W. P. (C). No. 30295 of 2016 -------------------------------------------Dated this the 10[th] day of May, 2022 ## **JUDGMENT** The writ petition has been filed by a Residents' Association, challenging the order of the 2[nd] and 3[rd] respondents granting licence to the 1[st] respondent to erect and operate a telecommunication tower. Initially, the 1[st] respondent had applied for a permit in 2014, which was not considered by the Municipality within the statutory period. The 1[st] respondent started the construction of the tower based on the provision regarding deemed licence. The 1[st] respondent approached the Tribunal for Local Self Government Institutions (hereinafter referred to as the Tribunal) and the Tribunal directed the Municipality to issue the licence. The petitioners challenged the order of the Tribunal before this Court in W.P. (C)No.29002 of 2014 which was allowed by this Court by judgment Ext.P1 dated 03.07.2015. This Court held that since the application submitted by the 1[st] respondent was not in order, the deeming provision cannot be applied. This Court however observed that the 1[st] respondent is not prevented from approaching the appropriate authority concerned with a fresh application for licence. Since the **WP(C) NO. 30295 OF 2016** **4** construction of the tower was already over, the 1[st] respondent preferred a fresh application requesting for regularisation of the construction. The application was rejected by the Municipality by order dated 17.03.2016 against which the 1[st] respondent preferred an appeal before the Tribunal. The Tribunal dismissed the appeal on the ground of delay and the order of the Tribunal was challenged before this Court in W.P.(C)No.17072 of 2016. The Municipality had in the meanwhile directed the owner of the building on which the tower had been constructed, to demolish the building as the same was unauthorized. The applications were filed for regularisation of the construction as well and for permission to operate the tower. W.P.(C)No.17072 of 2016 was withdrawn since applications for regularisation of the constructions were pending. The Municipality thereafter considered the application for regularisation and passed Ext.P2 order regularising the construction. The writ petition has been filed by the petitioner challenging Ext.P2 order. 2. The 1[st] respondent has filed a counter-affidavit specifically answering the issues regarding the apprehended effect of radiation that may be caused by a mobile tower. Thereafter I.A.No. 1 of 2021 has been filed producing Exts.R1(a) to R1(e) and I.A.No.1 of 2022 has been filed producing Exts.R1(f) to R1(h). **WP(C) NO. 30295 OF 2016** **5** 3. Heard Sri.N.N.Sugunapalan, learned Senior Advocate instructed by Sri.S.Sujin on behalf of the petitioners, Sri.E.K..Nandakumar, learned Senior Advocate instructed by Sri.Kurian Thomas on behalf of the 1[st] respondent and Sri.P.P.Thajudeen, learned Standing Counsel for respondents 2 & 3. 4. The challenge is against Ext.P2 order whereby the respondents 2 and 3 have regularised the construction of the building as well as the mobile tower over the building. It is seen from Ext.P2 that the decision has been taken after obtaining a report from the Municipal Engineer. The report confirms that the constructions comply with Rule 131 of the Kerala Municipality Building Rules, 1999. The petitioner has not challenged the report of the Municipal Engineer. There is also no specific violation of the Building Rules pointed out in the writ petition. All that is stated is an earlier writ petition filed against the order of the Tribunal as W.P.(C). No.17072 of 2016 which was withdrawn by the first respondent and hence the earlier order of the Tribunal has become final. Admittedly, the Tribunal had rejected the appeal on the ground of delay and the said order does not preclude reconsideration of the application for regularisation. The main challenge of the petitioner, which is raised even though in a veiled manner, is against the very installation of the **WP(C) NO. 30295 OF 2016** **6** mobile tower on the ground that it would cause serious health hazards. The above issue has already been set at rest by the judgment of a Division Bench of this Court in **Reliance Infocom Ltd. v. Chemanchery Grama Panchayat & Ors.** reported in **[2006 (4) KLT 695]** and several other subsequent decisions. The pleadings in the case do not disclose whether the petitioner had approached the District Telecom Committee challenging the permission granted for the construction of the mobile tower. In the absence of a specific challenge to the grant of permit for construction of the mobile tower before the appropriate authority and in the absence of any specific challenge on that issue, this Court is not required to consider the same. Apart from that, even if such a challenge is entertained, the same cannot be sustained in the light of the judgment in **Reliance Infocom (supra)** and other subsequent decisions. No grounds have been made out warranting interference with Ext.P2 order issued by the respondents 2 and 3. The writ petition fails and is dismissed. Sd/- **T.R. RAVI JUDGE** Pn **WP(C) NO. 30295 OF 2016** **7** ## **APPENDIX OF WP(C) 30295/2016** PETITIONERS' EXHIBITS EXHIBIT P1 : TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN WPC.NO.29002/2014 DATED 3-7-2015. EXHIBIT P2 : TRUE COPY OF THE SAID ORDER OF THE MUNICIPALITY ISSUED AS PER PROCEEDINGS OF THE SECRETARY OF THE MUNICIPALITY DATED 10-8-2016. EXHIBIT P3 : TRUE COPY OF THE INTERIM ORDER DATED 21-32016 IN WPC.NO.27023/16 REFERRED TO IN EXT.P2 PROCEEDINGS OF THE PANCHAYATH. EXHIBIT P4: TRUE COPY OF THE RESOLUTION PASSED BY THE MUNICIPALTIY ON 08.05.2015 RESPONDENTS' EXHIBITS EXHIBIT R1(A) TRUE COPY OF THE LETTER DATED 21.03.2020 ISSUED BY THE DEPARTMENT OF TELECOMMUNICATIONS, GOVT. OF INDIA INFORMED ALL THE CHIEF SECRETARIES OF ALL THE STATES AND UNION TERRITORIES. EXHIBIT R1(B) TRUE COPY OF THE LETTER DATED 24.03.2020 ISSUED BY THE CHAIRMAN KERALA STATE TELECOM DISASTER COORDINATION COMMITTEE & DEPUTY DIRECTOR GENERAL - TECHNOLOGY EXHIBIT R1(C) TRUE COPY OF THE LETTER DATED 16.11.2020 ISSUED BY THE UNDER SECRETARY TO THE GOVERNMENT, ELECTRONICS AND IT DEPARTMENT, GOVT. OF KERALA TO THE CEOS OF ALL TELECOM COMPANIES EXHIBIT R1(D) TRUE COPY OF THE COMMUNICATION DATED 14.06.2021 ISSUED FROM THE OFFICE OF THE DEPUTY DIRECTOR OF EDUCTION, ERNAKULAM DATED 14.06.2021 BEARING NO.C3/6005/2020 EXHIBIT R1(E) TRUE COPY OF THE MINUTES OF THE MEETING DATED 11.06.2021 CONVENED BY THE DEPUTY COLLECTOR, ERNAKULAM Exhibit R1(F) TRUE COPY OF THE ORDER DATED 28.3.2016 IN I.A. NO.482 OF 2016 IN APPEAL NO.262 OF 2016 ISSUED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, **WP(C) NO. 30295 OF 2016** **8** THIRUVANANTHAPURAM. Exhibit R1(G) TRUE COPY OF THE RECEIPT ISSUED BY THE 3RD RESPONDENT CORPORATION DATED 22.8.2016 Exhibit R1(H) TRUE COPY OF THE INTERNET PAYMENT RECEIPT OF THE PAYMENT OF PROPERTY TAX BY THE OWNER SH.KT PETER FOR THE YEAR 2021-2022 DATED 18.10.2021