PERUMBAVOOR MUNICIPALITY v. Wireless TT Info Services Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 29TH DAY OF AUGUST 2017/7TH BHADRA, 1939** **WP(C).No. 36013 of 2010 (B) ----------------------------** **PETITIONER(S): -------------** **PERUMBAVOOR MUNICIPALITY, PERUMBAVOOR - 683 542, REPRESENTED BY SECRETARY.** **BY ADVS.SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** **RESPONDENT(S):** **--------------** **WIRELESS TT INFO SERVICES LTD,** **J & CO CHAMBERS, MANIMALA ROAD, EDAPPALLY,, KOCHI - 682-024, REPRESENTED BY THE, SENIOR PROJECT MANAGER.** **R,R1 BY ADV. SRI.K.R.AVINASH (KUNNATH) R1 BY ADV. SRI.ABDUL RAOOF PALLIPATH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 36013 of 2010 (B)** ## **APPENDIX** ## **PETITIONERS EXHIBITS:** **EXT.P1 COPY OF THE NOTICE DATED 04.03.2010 ISSUED TO THE RESPONDENT EXT.P2 COPY OF REPLY DATED NIL RECEIVED BY THE MUNICIPALITY ON 11.05.2010 EXT.P3 COPY OF COMPLAINT DATED 10.05.2010 EXT.P4 COPY OF THE PROVISIONAL ORDER DTD,20.05.2010 EXT.P5 COPY OF SHOW CAUSE NOTICE DTD.20.05.2010 EXT.P6 COPY OF APPEAL PETITION DATED 03.05.2010 EXT.P7 COPY OF OBJECTION FILED BY THE PETITIONER EXT.P8 COPY OF THE APPEAL PETITION NO.476/2010 DTD.27.05.2010 EXT.P9 COPY OF THE ORDER DATED 10.06.2010 IN APPEAL NO.399/2010 EXT.P10 COPY OF THE ORDER DATED 21.06.2010 IN APPEAL NO.476/2010. RESPONDENTS EXHIBITS: NIL** ## **// TRUE COPY //** **P.A TO JUDGE** **SB** ## **K. VINOD CHANDRAN, J. ===================== W.P.(C) No.36013 of 2010 - B =========================== Dated this the 29[th] day of August, 2017** ## **Judgment** The writ petition is filed by the Municipality, against the orders of the Tribunal for Local Self Government Institutions; produced at Exts.P9 and P10. The issue raised in the appeals before the Tribunal and this Court is with respect to the construction of a mobile tower by the respondent company. The respondent company has been taken over by one ATC Telecom Infrastructure Pvt. Ltd., whose Senior has filed an numbered as I.A Manager application No.11801/2017, contending that the respondent company's assets have been taken over by ATC Telecom Infrastructure Pvt. Ltd. and the said company is proposing to make a regularisation application before the Municipality. In the nature of the contentions raised in the affidavit filed along with I.A No.11801/2017, the respondent herein is substituted W.P.(C)No.36013/2010 2 with ATC Telecom Infrastructure Pvt. Ltd., J&Co. Chambers, Manimala Road, Edappally, Kochi-682 024, represented by the Senior Project Manager (Legal) {Authorised Signatory} Babu Pattathanam. 2. The petitioner Municipality is aggrieved with Exts.P9 and P10 orders. Ext.P9 was an appeal filed by the respondent, that the for to construct a alleging application permit telecommunication tower was not responded to by the Secretary of the Municipality within 30 days, as stipulated in Rule 141 of the Kerala Municipality Building Rules, 1999 (for brevity 'the Building Rules) and hence they are entitled to the deeming provision under the Building Rules. The Tribunal at Ext.P9 permitted the same and hence the construction was carried on. 3. A reading of the order of the Tribunal indicates that an application was submitted on 24.02.2010 and on 04.03.2010 the Municipality issued a notice to rectify the defects in the application. The Tribunal found that since the Secretary failed to pass orders as required under Rule 141(8) of the Building Rules, W.P.(C)No.36013/2010 3 within the 30 days from the receipt of the application, the appellant before the Tribunal is entitled to the deeming provision. This Court is of the opinion that the said finding is contrary to the statutory provisions. Primarily it is to be noticed that when defects are pointed out then the same is a response as contemplated under the Rules intimating the disability of the Secretary to consider the defective application. 4. Further, Rule 141(8) of the Building Rules mandates that the Secretary has to issue a permit, if satisfied of the boundaries, ownership, plans and drawings and genuineness of the certificates, not later than 30 days from the date of issue of the permit. That alone would not however give the benefit of the deeming provision, which is available under Rule 15 of the Building Rules. Rule 14 again prescribes the period within which the Secretary has to grant or refuse to execute any work. If neither approval or disapproval of a building site is made within the mandatory period, then the applicant has a remedy to go before the Council by way of a reference against the Secretary's inaction. W.P.(C)No.36013/2010 4 Only after a month has expired from the date of application, without the Council also considering the same, could there be a deemed permit as available under Rule 15(2) of the Building Rules. This is also the binding declaration in **Wireless TT Info Services Ltd.** v. **S.I of Police and Other [2011 (2) KHC 536]** . The petitioner does not have a case that they have approached the Council, against the Secretary's alleged inaction. In such circumstance, Ext.P9 would have to be set aside, since the petitioner is not entitled to a deemed permit. 5. Now we come to Ext.P10, wherein the appellant challenged the provisional order and notice issued under Section 406 (1) and (2) of the Kerala Municipality Act, 1994 (for brevity 'the Act'). The Tribunal found the provisional order and notice to be issued without revealing the identity of the person, who issued the said order and hence set it aside. This however, will not impede the Municipality from again initiating proceedings under the Municipality Act. In such circumstance, without causing any interference to Ext.P10, it is made clear that the said order would not impede the Municipality from initiating fresh proceedings under the Act. W.P.(C)No.36013/2010 5 6. However, considering the fact that the respondent filed an affidavit specifically undertaking to file an application for regularisation any further proceedings under the Act will have to wait till the regularisation application itself is considered. The petitioner is directed to file an application for regularisation, within a period of one month from today. The Panchayat shall consider the application under Chapter XX, of the Building Rules, within a period of two months, after verifying the construction carried on and conducting inspection of the premises. The proceedings under Section 406 shall be kept in abeyance, till the regularisation application is finally decided. If the regularisation is granted, nothing more needs to be done. However, if there is any difficulty in granting the regularisation, then the Municipality should issue a written order with reasons and could then take up appropriate proceedings under the Act and the Building Rules. The respondent shall not carry on any transmission or commence the functioning of the tower, unless the Municipality decides the issue. W.P.(C)No.36013/2010 6 Without prejudice to such action and any possible defense by the respondent, the writ petition would stand disposed of; without any observation on the merits of the claim for regularisation. No costs. Sd/- **K . VINOD CHANDRAN, JUDGE** SB/29/08/2017