Nigil G. v Eloor Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **TUESDAY, THE 27TH DAY OF OCTOBER 2020 / 5TH KARTHIKA, 1942** ## **WP(C).No.3229 OF 2020(C)** ## **PETITIONER/S:** **NIGIL.G AGED 50 YEARS S/O. LATE GOPALAKRISHNAN, SARASWATHY VILASAM, MANJUMMEL P.O, ELOOR VILLAGE, PARUR TALUK IN ERNAKULAM DISTRICT, PIN 683501** **BY ADVS. SRI.JOHN JOSEPH(ROY) SRI.JEFRIN MANUEL** ## **RESPONDENT/S:** - **1 THE ELOOR MUNICIPALITY REPRESENTED BY THE SECRETARY, ELOOR MUNICIPAL OFFICE, ELOOR, UDYOGAMANDAL P.O, ERNAKULAM PIN 683501** - **2 THE SECRETARY, ELOOR MUNICIPALITY, OFFICE OF THE ELOOR MUNICIPALITY, ELOOR, UDYOGAMANDAL P.O, ERNAKULAM, PIN 683501** - **3 TOWER VISION INDIA PRIVATE LIMITED, 32/1663, B-2 2ND FLOOR, BCG ESTATE, N.H BYPASS ROAD, PALARIVATTOM P.O, KOCHI 682 025** - **4 THE SENIOR TOWN PLANNER, REGIONAL TOWN PLANNING OFFICE, CIVIL STATION, KAKKANADU 682 030** **R1-2 BY SRI.K.S.ARUNKUMAR, SC, ELOOR MUNICIPALITY R1-2 BY ADV. SRI.JUSTINE JACOB R3 BY ADV. SRI.T.R.HARIKUMAR R3 BY ADV. SRI.ARJUN RAGHAVAN R4 BY GOVERNMENT PLEADER SHRI M.R.DHANIL** ## **OTHER PRESENT:** ## **JESTIN MATHEW GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **=======================** ## **W.P.(C).No.3229/2020** ======================= J U D G M E N T Dated this the 27[th] day of October, 2020 This writ petition was filed by a resident of Ward No.22 of Eloor Municipality challenging Ext.P12 decision of Senior Town Planner, Ernakulam. The matter is related to establishing a telecommunication pole within a residential zone under the Town Planning Scheme in Eloor Municipality. 2. The telecom infrastructure company, the third respondent herein obtained a building permit to erect a telecommunication pole. This was on 18/11/2015. Ext.P1 is the copy of the building permit. Thereafter, complaints have been raised before the Municipality. The Municipality, acting upon the complaint, proposed to cancel the building permit. This resulted in the telecom infrastructure company in approaching this Court by various writ petitions. 3. One of the grounds on which cancellation was ordered was due to the fact that the building permit was obtained to construct a telecommunication pole in a [ **W.P.(C).No.3229/2020** ] -:2:- residential zone. This Court in **Maradu Municipality v. ATC Telecom Tower Corporation Pvt. Ltd. [2016 (2)KLT 899]** held that the telecommunication tower cannot be erected in a residential zone based on an approved structural plan. 4. This Court in a writ petition filed by the third respondent, judgment of which is produced as Ext.P7, adverted to this contention. Therein, this Court directed the Municipality to pass a reasoned order indicating whether or not the telecommunication pole constructed by the infrastructure company falls within the residential zone as contemplated under the Structural Plan (General Town Planning Scheme) for Central City of Kochi. 5. The Municipality thereafter passed Ext.P8 order on 26/3/2018 holding that telecommunication pole constructed by the company falls under the residential zone as contemplated under the structural plan. 6. Challenging the decision of the Municipality, the infrastructure company approached this Court again. It was contended by the telecommunication company that the decision [ **W.P.(C).No.3229/2020** ] -:3:- was taken by the Municipality without obtaining any inputs or views from the Senior Town Planner. Taking note of the contentions as above, this Court disposed the writ petition quashing the decision of the Municipality and directed the Town Planner to give necessary inputs to the Municipality. Ext.P11 is the said judgment. Acting upon the judgment of this Court, the Chief Town Planner by Ext.P12 communicated to the Municipality that construction of the telecommunication tower was within the permitted activity of the residential zone. 7. There is no dispute to the fact that the location of the telecommunication pole is within the residential zone. It is noted in the statement filed by the Senior Town Planner that the construction of the telecommunication tower can be considered as permitted use on the either side of the roads having existing or proposed width of 12 meters or more to a depth of 75 meter from the boundary of the road. What is discernible from the above statement is that if the road is having 12 meters or proposed to be widened as [ **W.P.(C).No.3229/2020** ] ## -:4:- 12 meters, such construction of telecommunication tower can be permitted on such road sides. It can also be permitted if such a telecommunication tower is located beyond 75 meters from the road. 8. It is also seen from the statement filed by the Town Planner that the distance between the plot in question to the Muttar-Manjummel PWD road is only 25 meters. The road appears to have a width of only 8 meters. There appears to be a proposal to widen the existing road to 12 meters. It is further seen from the Town Planner's statement that as per the Structural Plan (General Town Planning Scheme) for Central City of Kochi there is a widening proposal for the Muttar-Manjummel-Eloor road to a width of 15 meters. 9. It is to be noted that the Structural Plan (General Town Planning Scheme) for Central City of Kochi was sanctioned in the year 1991. The construction of the pole was in the year 2015. The proposal to widen the road never happened for the last more than 24 years. The proposal never [ **W.P.(C).No.3229/2020** ] ## -:5:- materialised for the last more than 30 years. Therefore, mere proposal cannot cloth any activity as legal if such activity is otherwise prohibited. There should be some proximity to construction and happening of an event that would justify such construction. The Town Planner, therefore, could not have approved an activity which is located in an offending area merely taking note of a proposal in 1991 for widening. Merely citing a proposal for widening a road 15 meters in the year 1991, a permit could not have been granted in the year 2015. 10. In such circumstances, I am of the considered view that the permission granted to the company in the year 2015 was overlooking the statutory provisions and is liable to be revoked. The Municipality has not taken a decision as directed by this Court in Ext.P11 judgment. The Municipality on the other hand, acting upon the Town Planner's communication issued Ext.P13 occupancy certificate on 20/1/2020. [ **W.P.(C).No.3229/2020** ] ## -:6:- 11. However, this issue has another dimension. The Government of Kerala amended the Kerala Municipality Building Rules, 1999 with effect from 8/11/2019. By virtue of the amended Rule 86(2), telecommunication towers or pole structures can be permitted in any zone of Master Plan/Detailed Town Planning Scheme etc. That means, any stipulation contrary to the master plan/DTP Scheme has been superseded by the aforesaid Rule. Therefore, there may not be any difficulty to the telecommunication infrastructure company in approaching the Municipality for regularisation of the construction in terms of Rule 92 of the Building Rules. 12. In the light of the above, the writ petition is disposed of with the following directions: i. The impugned proceedings of Town Planner is set aside. ii. The infrastructure company is given liberty to approach the Municipality to regularise their construction. That shall be done within a period of three weeks. [ **W.P.(C).No.3229/2020** ] ## -:7:- iii. If any application is submitted for regularisation, that shall be considered in accordance with law after hearing the petitioner and the infrastructure company within a further period of one month. iv. The occupancy certificate issued will be subject to the outcome of the decision to be taken by the Municipality. v. No coercive steps shall be taken by the Municipality against the infrastructure company pending consideration of such application. No costs. Sd/- ## A.MUHAMED MUSTAQUE, JUDGE ms ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT ISSUED TO THE 3RD RESPONDENT DATED 18-11-2015** - **EXHIBIT P2 TRUE COPY OF THE PHOTO OF THE PRESENT CONDITION OF THE DISPUTED TELECOMMUNICATION POLE.** - **EXHIBIT P3 TRUE COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT DATED 09-12-2015 TO THE 3RD RESPONDENT** - **EXHIBIT P3 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-3 EXHIBIT P4 TRUE COPY OF THE MINUTES OF THE 1ST RESPONDENTS COUNCIL DATED 30-12-2015.** - **EXHIBIT P4 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-4 EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 25-10-2011 ISSUED TO THE 3RD RESPONDENT** - **EXHIBIT P5 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-5 EXHIBIT P6 TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 05-12-2016 TO THE 3RD RESPONDENT.** - **EXHIBIT P6 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-6 EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATD 09-02-2018 IN W.P(C) NO. 39667/2016 OF THIS HON'BLE COURT** - **EXHIBIT P8 TRUE COPY OF THE ORDER DATED 26-03-2018 ISSUED BY THE 1ST RESPONDENT, CANCELLING THE BUILDING PERMIT** - **EXHIBIT P9 TRUE COPY OF THE STRUCTURAL PLAN OF ELOOR MUNICIPAL AREA ISSUED FROM THE 4TH RESPONDENT** - **EXHIBIT P10 TRUE COPY OF THE LETTER DATED 16-06-2016 OF ISSUED BY THE RESPONDENT TO K.B AJAYAKUMAR** - **EXHIBIT P10 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-10 EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 28-10-2019 IN WP(C) NO. 28905 OF 2018 OF THIS HON'BLE COURT** - **EXHIBIT P12 TRUE COPY OF THE LETTER DATED 02-12-2019** ## **ISSUED BY THE SENIOR TOWN PLANNER TO THE 1ST RESPONDENT** **EXHIBIT P12 (A) TRUE ENGLISH TRANSLATION OF EXHIBIT P-12** **EXHIBIT P13 TRUE COPY OF THE OCCUPANCY CERTIFICATE DATED 20-01-2020 ISSUED BY THE 1ST RESPONDENT** **EXHIBIT P14 TRUE COPY OF THE OFFICE NOTE ISSUED BY THE ISSUED BY THE 2ND RESPONDENT IN THE PROCEEDINGS.** RESPONDENTS EXTS: **EXHIBIT R3(a) TRUE COPY OF THE JUDGMENT DT 17/8/2016 IN APPEAL NO 1073/2015 OF THE TRIBUNAL FOR LSGI** **EXHIBIT R3(b) TRUE COPY OF INTERIM ORDER DT 21/3/2016 IN WPC 27023/2015**