Indus Towers Limited v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **FRIDAY ,THE 26TH DAY OF OCTOBER 2018 / 4TH KARTHIKA, 1940** ## **WP(C).No. 8037 of 2015** ## **PETITIONER/S:** **INDUS TOWERS LIMITED AGED 52 YEARS** **CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH 47 , PALARIVATTOM, KOCHI 24 REPRESENTTED BY HEAD LEGAL MR. MN.PREMKRISHNAN NAIR** ## **BY ADV. SRI.V.PHILIP MATHEW** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF LOCLA SELF GOVERNMENT, KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **2 THE SECRETARY DEPARTMENT OF LOCAL SELF GOVERNMENT (RB) KERALA GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001** - **3 CORPORATIN OF COCHIN REPRESENTED BY ITS SECRETARY, CORPORATION OFFICE, NEAR BOAT JETTY, ERNAKULAM 682025** - **4 THE SECRETARY CORPORTION OF COCHIN, CORPORTION OFFICE, NEAR BOAT JETTY, ERNAKULAM 682025** - **5 ASSISTANT EXECUTIVE ENGINEER CORPORATION OF COCHIN, ZONAL OFFICE, FORT KOCHI, ERNAKULAM DISTRICT 682001** - **6 CHIEF TOWN PLANNER VIGILANCE OFFICE OF THE CHIEF TOWN PLANER, DEPARTMENT OF TOWN AND COUNTRY PLANNING KOTTARATHIL BUILDINGS, PALAYAM, THIRUVANANTHAPURAM 695033** **7 THE PRESIDENT** **THAMARAPARAMBU RESIDENTS ASSOCIATION, AMARAVATHY, KOCHI 682001** **BY ADVS. SMT.MARY BEENA JOSEPH,SR.GP SRI.BABU KARUKAPADATH,SC,COCHIN CORPORATION SRI.BABU KARUKAPADATHSCCOCHIN CORPORATION** ## **OTHER PRESENT:** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## _**P.V.ASHA, J.**_ -------------------------W.P(C) No.8037 of 2015-D ------------------------------------------- _Dated this the 26[th] day of October, 2018_ ## _**JUDGMENT**_ The petitioner, who was granted a building permit as per Ext.P6 for construction of Telecommunication tower (Pole) near building No.X(28) in Survey No.1000 in Fortkochi Village, Kochi Taluk, is aggrieved by Ext.P7 letter issued by the Government addressed to the Secretary of the Cochin Corporation directing that building permit for construction of mobile tower shall not be granted since the proposed structure was going to be constructed in a residential zone. Ext.P7 letter was issued after considering the complaint preferred by Thamaraparambu Residence Association and also the report of the Chief Town Planner (Vigilance) submitted on 29.08.2014. Eventhough, the petitioner had submitted a Review Petition pointing out Ext.P8 order passed by the Tribunal for Local Self Government Institutions in a similar case in Appeal No.76/2010, allowing construction as per the permit issued to the appellant therein, the Government rejected the same as per Ext.P10 letter dated 07.02.2015 stating that the order of the Tribunal with respect to another construction covered by that appeal, cannot be applied to the case of the petitioner. 2. The contention of the petitioner is that the Government does not have any power to direct the Secretary not to issue permit, that too, at a time when the permit was already issued. Ext.P6 building permit was issued on 20.09.2014. Ext.P7 letter was issued on 04.10.2014. 3. The learned counsel for the petitioner relies on the judgment in _**Mukundan Menon M. & Ors. v. State of Kerala & Ors.**_ :2012 (4) KHC 489, in which this Court held that the Government does not have any authority to direct the Secretary to revoke the building permit. Eventhough in Ext.P7 the direction to the Secretary was not to grant permit, while rejecting the Review Petition filed by the petitioner the Government directed the Secretary to revoke the building permit under Rule 16 of the Municipality Building Rules. 4. In the judgment in _**Mukundan Menon M. & Ors. v. State of Kerala & Ors.** (supra_ ) after considering the provisions contained in the Building Rules, this Court found that the Government is not an appellate authority or Superior authority exercising any power over the Corporation to invoke its power under Rule 16 to revoke the permit. 5. The learned Government Pleader pointed out that under Section 56(2)(B) of the Municipality Act, the Government is bound to control the Municipalities including the power to record in writing any observation of the Council, Chair person or Secretary in regard to the proceedings or functions of the councils, Chair Persons or Secretaries. Therefore, it is pointed out that while issuing Ext.P7 as well as Ext.P10 orders, the Government was exercising its power under Section 56(2)(B) of the Municipality Act. The learned Government Pleader also relied on the judgment in _**Maradu Municipality v. ATC Telecom Tower Corporation Pvt. Ltd.**_ :2016(2) KLT 899, in which it is held that whenever there is a scheme, the provisions contained in the Municipality Building Rules will have to prevail over the other. Therefore, it is stated that the permit should not have been granted in a residential zone. It is also pointed out that Ext.P6 permit is issued by the Assistant Executive Engineer and therefore, there is no valid permit and as long as there is no valid permit, no construction is permissible and the question about the authority of the Government does not arise for consideration in these circumstances. 6. In the counter affidavit filed by the 2[nd] respondent it is stated that the construction is permitted in a residential zone and as per Rule 3(A) of the Kerala Municipality Building Rules, 1999, the provisions contained in the Town Planning Scheme in force under the Town Planning Act would prevail over the respective provisions of the Building Rules wherever such scheme exists. 7. The learned counsel for the petitioner as well as the learned counsel for the Corporation pointed out that under Section 50(2) of the Municipality Act, the Secretary is empowered to delegate his functions to any officer in the Municipality and Ext.P6 permit has been issued by the Assistant Executive Engineer in exercise of his power on being delegated by the Secretary of the Municipality under the aforesaid provision. 8. Though the Corporation does not dispute the competence of the Assistant Executive Engineer to issue the permit, it is pointed out that the permit has been issued for construction of mobile tower in a residential zone, which is not permissible as per rules, in an area given in Ext.P6 permit. 9. After considering the contentions raised on either side, I find that because of the interim order passed by this Court on 19.03.2015 itself granting interim suspension of Exts.P7 and P10 orders, the Corporation did not have any occasion to exercise its powers under Rules 16 of the Kerala Municipality Building Rules, if at all it was of the opinion that the permit granted as per Ext.P6 was liable to be revoked in view of the fact that it was given in a residential area. Powers under Rule 16 could have been exercised even in the absence of any direction from the Government. In the above circumstances, I set aside Exts.P7 and P10 orders. Hence the writ petition is disposed of leaving it open to the Corporation to take appropriate action in accordance with law. It is also made clear that it will also be open to the 7[th] respondent or any aggrieved person to take up their grievance against the construction of mobile tower before the District Telecom Committee. Sd/- _**(P.V.ASHA, JUDGE)**_ _rtr/_ ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**EXHIBIT P1**|**P1:COPY OF THE CERTIFICATE OF INCORPORATION**| |---|---| ||**ISSUED BY THE ASSISTANT REGISTRAR OF**| ||**COMPANIES, NATIONAL CAPITAL TERRITORY OF**| ||**DELHI AND HARYANA**| |**EXHIBIT P2**|**P2:COPY OF THE CERTIFICATE FOR COMMENCEMENT**| ||**OF BUSINESS ISSUED BY THE ASSISTANT**| ||**REGISTRAR OF COMPANIES, NATIONAL CAPITAL**| ||**TERRITORY OF DELHI AND HARYANA**| |**EXHIBIT P3**|**P3:COPY OF THE REGISTRATION CERTIFICATE**| ||**NO.177/25008 DATED 10.01.2008 ISSUED BY THE**| ||**MINISTRY OF COMMUNICATIONS AND IT,**| ||**DEPARTMENT OF TELECOMMUNICATIONS IN FAVOUR**| ||**OF PETITIONER**| |**EXHIBIT P4**|**P4:COPY OF THE FRESH CERTIFICATE**| ||**INCORPORATION CONSEQUENT UPON CHANGE OF NAME**| ||**ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES,**| ||**NATIONAL CAPITAL TERRITORY OF DELHI AND**| ||**HARYANA**| |**EXHIBIT P5**|**P5:COPY OF COMMUNICATION SEND BY THE**| ||**DIRECTOR (CS-III) OF THE MINSITRY OF**| ||**COMMUNICATIONS AND IT, DEPARTMENT OF**| ||**TELECOMMUNICATIONS NEW DELHI**| |**EXHIBIT P6**|**P6:COPY OF BUILDING PERMIT NO. FCP/25/14**| ||**DATED 20.09.2014 ISSUED BY CORPORATION OF**| ||**KOCHI**| |**EXHIBIT P7**|**P7:COPY OF COMMUINICATION NO.**| ||**60317/RBI/14/LSG DATGED 04.010.2014 ISSUED**| ||**BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT**| |**EXHIBIT P7(a)**|**P7(a):AN ENGLISH TRANSLATION OF EXHIBIT P7**| |**EXHIBIT P8**|**P8:COPY OF ORDER DATED 05.03.2010 PASSED BY**| ||**THE TRIBUNAL FOR LOCAL SELF GOVENEMENT**| ||**INSTITUTIONS, THIRUVANANTHAPURAM IN APPEL**| ||**NO. 76/2010**| |**EXHIBIT P9**|**P9:COPY OF REPRESENTATION DATED 29.10.2014**| ||**SUBMITTED BY THE PETITIONER TO THE 2ND**| ||**RESPONDENT**| |**EXHIBIT P9(a)**|**P9(a):AN ENGLISH TRANLATIN OF EXHIBIT P7**| **EXHIBIT P10 P10:COPY OF COMMUNICATION DATED 07.02.2015 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER EXHIBIT P10(a) P10(a):ENGLISH TRNASLATION OF EXHIBIT P7** ## **RESPONDENTS' EXHIBITS** **EXHIBIT R3(a) TRUE COPY OF THE RELEVANT PORTION OF THE STRUCTURE PLAN (GENERAL TOWN PLANNING SCHEME) FOR CENTRAL CITY OF KOCHI EXHIBIT R3(b) A TRUE COPY OF THE MAP OF STRUCTURE PLAN SHOWING THAT THE PROPERTY BEARING SY. NO.1000 OF FORT KOCHI VILLAGE, ON WHICH THE CONSTRUCTION IS TO BE CARRIED OUT, FALLS WITHIN THE PURVIEW OF RESIDENTIAL ZONE UNDER R 300.**