High Court of KeralaSingle Judge2021-10-13Writ petition dismissed

P. Radhakrishnan v. State of Kerala and Others (WP(C) No.19685/2020)

Case / Petition Number:WP(C) No.19685/2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: N. Nagareesh
Judgment Date: 2021-10-13
Court Decision / Holding: The writ petition is dismissed. The court notes that the tower complies with the post-Ext.R4(2) guidelines and that Ext.P5 guidelines have been superseded. The petitioner is left free to approach the District Telecom Authority to address grievances arising after energisation of the tower.
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

P. Radhakrishnan

Respondents

State of Kerala represented by its Secretary to Government, Information Technology Department, Thiruvananthapuram-695001
Tripunithura Municipality represented by its Secretary, Municipal Office, Tripunithura-682306
M/S. Idea Cellular Ltd., represented by its Assistant General Manager (Legal) V.J. Towers, Vyttila P.O., Ernakulam-682019
M/S. ATC Infrastructure Service Private Ltd., 36/2624, First Floor, Chermangalalam House, Shenoy Road, Kochi-682012
Bhanumathi V.N., W/o Sudarsanan, VadakkevenmeliL House, Eravoor P.O., Tripunithura-682306

Legal Representation & Advocates

Counsels for Petitioners

• P.K. Babu

Counsels for Respondents

• SRI. SYAMANTHAK B.S.
• SRI.C.V.MANUVILSAN
• SRI.P.SATHISAN
• SMT.KRISHNA.G.NATH
• SMT.DONA AUGUSTINE
• SRI.SANTHOSH MATHEW
• SRI.ARUN THOMAS
• SRI.JENNIS STEPHEN
• SRI.VIJAY V. PAUL
• SMT.KARTHIKA MARIA
• SMT.VEENA RAVEENDRAN
• SRI.ANIL SEBASTIAN PULICKEL
• SMT.DIVYA SARA GEORGE

Case Synopsis & Summary

This writ petition challenges Exts.P1, P2 and P4—namely Building Permit, its extension and the Tribunal’s order—in relation to the construction and energisation of a Telecommunication Tower at Thekkumbhagam, Tripunithura. The petitioner asserts that more than 100 families reside in the area near Vaikom-Tripunithura Road, with sensitive institutions such as an Ayurveda Medical College Hospital, a government UP school, and a high-rise residential complex within 150–200 metres. The 3rd respondent, originally Idea Cellular Ltd., obtained permission from the District Collector to erect the tower on land leased from the 5th respondent. The petitioner contends that Ext.P6 Site Plan shows 6 cents, while Ext.P8 and Ext.P9 establish that only 4.5–6 cents are actually available, with evidence of earlier disposals; records allegedly manipulated. The Petitioner relies on Ext.P5 Guidelines issued by the IT Department, arguing they require verification of property details and compliance with a 500-metre clearance from schools and hospitals and a minimum 5-metre lane width, which the tower reportedly violates. The petitioner also points to the absence of a Fire and Safety Certificate, the Building Permit’s expiry in 2017, and renewal only in 2018, allegedly violating Kerala Municipal Building Rules, 1999 (Rules 11(1), 12, 56(3)(j)). Respondents contend that post-Ext.R4(2) advisory guidelines supersede Ext.P5, that there is no Building Rule violation, and that the District Telecom Committee has approved the project. The Tribunal’s decision and subsequent government advisories are invoked to reject the writ petition, and the court ultimately dismisses it while leaving the petitioner free to approach the District Telecom Authority for grievances arising after energisation.

Provisions of Law Cited

Kerala Municipal Building Rules, 1999 (Rules 11(1), 12, 56(3)(j))

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that Exts.P1, P2 and P4 are liable to be quashed because the building permit and its renewal were obtained and issued in contravention of statutory safety norms and building regulations. He submits that the proposed tower’s proximity to sensitive institutions and the alleged manipulation of land-area records (6 cents claimed, only 4.5 cents available; Exts. P8, P9) undermine compliance with statutory and guideline provisions. The petitioner contends that Ext.P5 Guidelines cannot override statutory rules and that lack of a Fire and Safety Certificate, expiry of the original permit in 2017 and renewal only in 2018 without timely renewal constitute violations of Kerala Municipal Building Rules, 1999. He also asserts that the 3rd respondent has undergone corporate name changes (Idea Cellular Ltd. to ATC Infrastructure) affecting accountability, and that the District Telecom Committee route should be pursued as per Indus Towers (2014 (4) KLT 296). The petitioner seeks quashing of Exts.P1, P2 and P4 and cancellation of energisation plans.”,

Contentions of Respondents

The respondents contend that Ext.R4(2) advisory guidelines, issued after Ext.P5, supersede prior guidelines and align with safety norms, and that the Telecommunication Tower satisfies Safe Distance criteria; they assert there was no Building Rule violation as the Occupancy Certificate (Ext.R4(4)) was issued with no violations and the Building Permit renewal was timely; they argue that the District Telecom Committee has approved the tower and that redressal through that route is appropriate. They further contend that the Tribunal’s order upheld the permit extension and that relying on Ext.P5 would undermine statutory and evolving regulatory norms; the respondents emphasize that the petitioner’s objections were adjudicated by the Tribunal and that the court should not interfere with a matter already addressed by competent authorities.”},

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Indus Towers Ltd. v. The Sub Inspector of Police and others	2014 (4) KLT 296	Mentioned Only	Cited to indicate the procedural route for redressal via the District Telecom Committee, not as a binding ruling on the substantive issues of the case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021/21ST ASWINA, 1943** **WP(C) NO. 19685 OF 2020** ## **PETITIONER:** **P.RADHAKRISHNAN, AGED 61 YEARS, S/O C.P. KUMARA MENON, GOPIKA, 251A, P.K.R.A NO.4, THEKKUMBHAGAM, TRIPUNITHURA, ERNAKULAM DISTRICT.** **BY ADV P.K.BABU** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, INFORMATION TECHNOLOGY DEPARTMENT, THIRUVANANTHAPURAM-695 001.** - **2 TRIPUNITHURA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, TRIPUNITHURA-682 306.** - **3 M/S. IDEA CELLULAR LTD., REPRESENTED BY ITS ASSISTANT GENERAL MANAGER (LEGAL) V.J. TOWERS, VYTTILA P.O., ERNAKULAM-682 019.** - **4 M/S.ATC INFRASTRUCTURE SERVICE PRIVATE LTD., 36/2624, FIRST FLOOR, CHERMANGALAM HOUSE, SHENOY ROAD, KOCHI-682 012 REPRESENTED BY ITS SENIOR MANAGER (LEGAL)** - **5 BHANUMATHI V.N., W/O SUDARSANAN, VADAKKEVENMELIL HOUSE, EROOR P.O., TRIPUNITHURA-682 306.** WP(C) No.19685/2020 : 2 : **BY ADVS.** **R1 GOVT.PLEADER SRI.SYAMANTHAK B.S.** - **R2 SRI.C.V.MANUVILSAN, SC** - **R3 SRI.P.SATHISAN** - **R3 SMT.KRISHNA.G.NATH** - **R3 SMT.DONA AUGUSTINE** - **R4 SRI.SANTHOSH MATHEW** - **R4 SRI.ARUN THOMAS** - **R4 SRI.JENNIS STEPHEN** - **R4 SRI.VIJAY V. PAUL** - **R4 SMT.KARTHIKA MARIA** - **R4 SMT.VEENA RAVEENDRAN** - **R4 SRI.ANIL SEBASTIAN PULICKEL** - **R4 SMT.DIVYA SARA GEORGE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.19685/2020 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ _**Dated this the 13[th] day of October, 2021**_ The petitioner, a resident of Choorakkad, Thekkumbhagam in Tripunithura, has filed this writ petition praying to quash Exts.P1, P2 and P4 and to direct the 2[nd] respondent not to implement any action pursuant to Exts.P1 and P2. 2. The petitioner states that more than 100 families are residing in the area at Thekkumbhagam where the petitioner resides, which is along the western side of VaikomTripunithura Road. The 3[rd] respondent obtained permission from the District Collector to erect a Telecommunication Tower in the Area. The property where the Telecommunication Tower is proposed is owned by the 5[th] respondent and leased out to the 3[rd] respondent. The Ayurveda Medical College Hospital, Choorakkad Government UP School and an Eight storied Residential Complex are within 150 to 200 metres WP(C) No.19685/2020 : 4 : distance from the proposed Tower location. Against the grant of Building Permit for the Tower, the petitioner filed Appeal before the Tribunal for Local Self Government Institutions. The appeal was dismissed as per Ext.P4 Order. 3. The petitioner submits that though Ext.P6 Site Plan of the Tower shows 6 Cents plot area, the extent available is only 4.5 Cents, as would be disclosed by Ext.P8 Lease Deed. The petitioner produced another Ext.P10 Lease Deed for 6 Cents area along with the application. When the said Lease Deed was produced, an extent of 1.5 cents out of 6 Cents was already sold to one Mr. Francis as per Ext.P9. The 3[rd] respondent-Company has manipulated the records. 4. As per Ext.P5 Guidelines issued by the IT Department of the Government of Kerala, a Local Self Government Institution should confirm the property and ownership details. It should be ensured that the proposed Tower is not coming within 500 metres of Schools and Hospitals and that the Base Station Antenna is not in narrow lanes of width less than or equal to 5 metres. Safe Distance WP(C) No.19685/2020 : 5 : norms are also prescribed. The proposed Tower violates all these requirements and the Tribunal failed to appreciate the same in Ext.P4 order. 5. The learned counsel for the petitioner urged that the 3[rd] respondent has not obtained Fire and Safety Certificate for the Tower. The original Building Permit issued to the 3[rd] respondent expired on 21.10.2017. The Permit was thereafter renewed only in 2018. There was no application for renewal before 21.10 2018. Rules 11(1), 12 and 56(3)(j) of the Kerala Municipal Building Rules, 1999 are violated. In the circumstances, Ext.P4 order of the Tribunal cannot stand legal scrutiny, urged the learned counsel for the petitioner. 6. The learned counsel for the 4[th] respondent submitted that the name of the 3[rd] respondent-Idea Cellular Ltd. has been changed to ATC Infrastructure Services Private Ltd., who is the 4[th] respondent. Ext.P1 Permit was valid till 21.10.2017. Before the expiry of the Permit, the 4[th] respondent submitted application for renewal on 04.10.2017. The validity of the permit was actually extended only on WP(C) No.19685/2020 : 6 : 13.04.2018, for a period up to 21.10.2018. As the 4[th] respondent has applied for renewal before the expiry of the period and as the Municipality did not reject the application, the 4[th] respondent is entitled to the benefit of Deemed Licence also. At any rate, the 4[th] respondent cannot be blamed for the delay in renewal. Ext.R4(a) Occupancy Certificate was issued by the Municipality on 20.10.2018 finding that there is no Building Rules violation or violation of Permit conditions. The Government has issued Ext.R4(2) advisory guidelines which are in supersession of Ext.P5 Guidelines. The Telecommunication Tower satisfies the Safe Distance criteria laid down in Annexure-II to Ext.R4(2). Hence, the arguments of the petitioner based on Ext.P5 are without any force. The Antenna of the Tower is at a height of 40 metres and there is no building in front of the Antenna. Therefore, the writ petition is devoid of any merit and the same is liable to be dismissed, contended the counsel for the 4[th] respondent. 7. The learned counsel for the 3[rd] respondent pointed out that for redressal of grievances relating to WP(C) No.19685/2020 : 7 : Telecommunication Towers, in view of the judgment of the Division Bench of this Court in _**Indus Towers Ltd. v. The Sub Inspector of Police and others**_ [2014 (4) KLT 296], the petitioner has to approach the District Telecom Committee. The learned Standing Counsel for the 2[nd] respondentMunicipality stated that the District Telecom Committee has already given its assent to the Telecom Tower in issue. 8. Heard the learned counsel for the petitioner, the learned Government Pleader for the 1[st] respondent and the respective Standing Counsel representing respondents 2, 3 and 4. 9. Aggrieved by issuance of Ext.P1 Building Permit and the grant of its extension as per Ext.P2, the petitioner approached the Tribunal for Local Self Government Institutions filing Appeal No.691/18. The Tribunal considered the arguments of the petitioner against grant of Building Permit and its extension. The Tribunal considered the issues raised based on available materials. The Tribunal found that the 3[rd] respondent applied for renewal of Building Permit in WP(C) No.19685/2020 : 8 : time. 10. As regards the argument based on Government guidelines, the Tribunal noted that those Guidelines cannot override statutory rules. On the argument based on the extent of land on which the Tower is proposed, the Tribunal held that there is a clarification with respect to the extent of property made by the 4[th] respondent on production of rent deed, which is acceptable. The Occupancy Certificate was issued as the Municipality found no Building Rules violation. There is no allegation that the 4[th] respondent has violated any Building Rule. The Tribunal therefore concluded that there is no reason to set aside the Building Permit. 11. It is evident from the pleadings that the renewal of Building Permit was granted on the basis of an application submitted by the 4[th] respondent in time. The 4[th] respondent has constructed the Telecommunication Tower satisfying the requirements contained in Ext.R4(2) Advisory Guidelines which are in supersession of Ext.P5 Guidelines. The Telecommunication Tower satisfies the Safe Distance criteria : 9 : WP(C) No.19685/2020 laid down in Annexure-II to Ext.R4(2) Guidelines, which are issued subsequent to Ext.P5. In such circumstances, this Court do not find any illegality in Ext.P4 Order of the Tribunal. The writ petition is therefore without any merit and hence it is dismissed. It is made clear that the petitioner is at liberty to approach the District Telecom Authority to redress any grievance arising subsequent to the energisation of the Telecommunication Tower. Sd/- **N. NAGARESH, JUDGE** aks/08.10.2021 WP(C) No.19685/2020 : 10 : ## **APPENDIX OF WP(C) 19685/2020** **PETITIONER'S EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE PERMIT NO PW4BA 37846/2016 DATED 22.10.2016 EXHIBIT P2 TRUE COPY OF THE EXTENDED BUILDING PERMIT NO P24BA 236/2016-2017 DATED 13.4.2018** **EXHIBIT P3 TRUE COPY OF THE APPEAL MEMORANDUM NO 691/2018 SUBMITTED BY THE PETITIONER BEFORE THE LOCAL SELF GOVERNMENT INSTITUTION** - **EXHIBIT P4 TRUE COPY OF THE ORDER DATED 30.6.2020 OF THE TRIBUNAL** **EXHIBIT P5 TRUE COPY OF THE ORDER PASSED BY THE GOVERNMENT OF KERALA INFORMATION TECHNOLOGY DEPARTMENT NO GO (MS) 21 2013/ITD DATED 21.8.2013 EXHIBIT P6 TRUE COPY OF THE SITE PLAN SUBMITTED BEFORE THE 3RD RESPONDENT EXHIBIT P7 TRUE COPY OF THE SALE DEED NO 1128/19978 DATED 25.4.1997 EXHIBIT P8 TRUE COPY OF THE LEASE DEED EXECUTED BETWEEN 3RD RESPONDENT COMPANY AND 5TH RESPONDENT DATED 2.5.2016** **EXHIBIT P9 TRUE COPY OF THE DOCUMENT NO 367/2001 DATED 5.9.2018 EXHIBIT P10 TRUE COPY OF THE LEASE DEED PERTAINING TO 6 CENTS DATED 26.5.2016 EXHIBIT P11 TRUE COPY OF THE GO (MS) NO 25/2014 ITD DATED 2.8.2014 EXHIBIT P12 TRUE COPY OF THE GO(MS) NO 31/2014 ITD DATED 5.11.2014 EXHIBIT P13 TRUE COPY OF THE AERIAL PHOTOGRAPHS OF THE LOCATION SHOWS THAT THE PRESENT POSITION OF THE LOCALITY EXHIBIT P14 TRUE COPY OF THE APPLICATION DATED 26.11.2020 FILED BY ONE KRISHNAKUMARI. EXHIBIT P15 TRUE COPY OF THE REPLY DATED 29.12.2020 OF THE TRIPUNITHURA MUNICIPALITY.** WP(C) No.19685/2020 : 11 : ## **RESPONDENT EXHIBITS** **EXHIBIT R4(1) TRUE COPY OF THE NAME CHANGE CERTIFICATE ISSUED BY THE MINISTRY OF CORPORATE AFFAIRS IN FAVOUR OF THE 4TH RESPONDENT. EXHIBIT R4(2) TRUE COPY OF THE GOVERNMENT ORDER NUMBERED AS G.O.(MS) NO.14/2014 ITD DATED 15.3.2014. EXHIBIT R4(3) TRUE COPY OF THE RECEIPT ISSUED BY THE 2ND RESPONDENT MUNICIPALITY DATED 4.10.2017 EVIDENCING RECEIPT OF EXTENSION APPLICATION FOR BUILDING PERMIT SUBMITTED BY THE 4TH RESPONDENT BY THE MUNICIPALITY. EXHIBIT R4(4) TRUE COPY OF THE RECEIPT ISSUED BY THE RESPONDENT MUNICIPALITY ON 20.10.2018 CERTIFICATE SUBMITTED BY THE 4TH RESPONDENT BY THE MUNICIPALITY. EXHIBIT R4(5) TRUE COPY OF THE NOTICE DATED 29.07.2021 ISSUED BY THE RESPONDENT MUNICIPALITY TO THE OWNER OF THE PROPERTY.** ncd