Dismissed

Maradu Municipality v. Indus Towers Ltd.

Kerala HC3 Aug 2012WP(C)/452/2012

Case brief

AI extract

What is this about?

The High Court dismissed the Municipality's writ petitions challenging the Tribunal's order allowing respondent appeals and setting aside the cancellation of a building permit. The Court held that Rule 140A(2) permits towers in any zone, making the original permit valid.

What did the court decide?

Dismissing the writ petitions and upholding the Tribunal's order allowing the respondent appeals and setting aside the cancellation order.

Maradu Municipality Vs Indus Towers Ltd. — Service and Employment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE ANTONY DOMINIC

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FRIDAY, THE 3RD DAY OF AUGUST 2012/12TH SRAVANA 1934

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WP(C).No. 452 of 2012 (F)

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PETITIONER(S):

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MARADU MUNICIPALITY, MARADU, ERNAKULAM DISTRICT REPRESENTED BY ITS SECRETARY

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THE SECRETARY,

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MARADU MUNCIPALITY MARADU, ERAKULAM DISTRICT.

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BY ADVS.SRI.M.P.ASHOK KUMAR

SRI.M.R.DHANIL

SMT.J.HRUDYA

RESPONDENT(S):

INDUS TOWERS LTD VANKARATH TOWERS, 8TH FLOOR, N.H. BYEPASS PALARIVATTOM, KOCHI-24 BYITS HEAD LEGAL

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PREMKRISHNAN NAIR M.N.

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SHIBU MATHEW

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S/O MATHEW, PARTNER, PALATHARA CONSTRUCTIONS CHANGANACHERRY, THURUTHY P.O. PIN: 671 351.

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BY ADV. SRI.V.PHILIP MATHEW

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03-08-2012, ALONG WITH WPC. 1019/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C).452/12

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXHIBIT P1 PHOTOCOPY OF THE BUILDING PERMIT NO. A3-12330/10 DATED 08.12.2010 ISSUED TO THE 1ST RESPONDENT.

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EXHIBIT P2 PHOTOCOPY OF THE MASS PETITION DATED 01.01.2011 SUBMITTED BEFORE THE 1ST PETITIONER.

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EXHIBIT P3 PHOTOCOPY OF THE STOP MEMO ISSUED BY THE PETITIONER DATED 03.01.2011.

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EXHIBIT P4 PHOTOCOPY OF THE SHOW CAUSE NOTICE DATED 25.02.2011 ISSUED TO THE 1ST RESPONDENT.

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EXHIBIT P5 PHOTOCOPY OF THE FINAL ORDER PASSED BY the MUNCIPALITY DATED 24.05.2011.

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EXHIBIT P6 PHOTOCOPY OF THE COMMON ORDER PASSED BY THE 3RD RESPONDENT IN APPEAL 260/2010 AND APPEAL 389/2010 DATED 29.07.2011.

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/true copy/ PA To Judge

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ANTONY DOMINIC, J

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W.P.(C)s.452 & 1019/2012

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Dated this the 3^rd day of August, 2012

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JUDGMENT

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Heard the learned counsel for the petitioners and the learned counsel appearing for the respondents.

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The issue raised in these writ petitions are connected and therefore they are heard together and are disposed of by this common judgment.

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The first respondent in these cases applied for a building permit for the installation of a Telecommunication tower in the property in Sy.120/12 and 121/12 of Maradu Village. Accordingly, Ext.P1 permit was issued by the Municipality on 8.12.2010. It appears that the Residents' Association filed Ext.P2 complaint objecting to the permit granted and there upon, Municipality issued Ext.P3 stop memo on 3.1.2011. Respondents in these writ petitions challenged the stop memo in Appeal No.35/2011 filed before the Tribunal for Local Self Government Institutions and the Tribunal, by its order dated 23.2.2011, set aside the stop memo. Following the liberty that was given, the

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W.P.(C)s.452 & 1019/12

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Secretary of the Municipality issued Ext.P4 show cause notice in which it was alleged that, as per the Town Planning Scheme the area in question is a residential zone and that in a residential zone, the permit for installation of a tower could not have been granted. Therefore, according to the Secretary, permit was granted by way of a mistake and hence, petitioner was called upon to show cause under Rule 16 of the Kerala Municipality Building Rules, 1999 (in short 'the Rules'), why the building permit shall not be cancelled.

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This show cause notice was challenged in Appeal No.260/11 filed by the respondents before the Tribunal and in I.A.385/11 Tribunal passed order dated 5.4.2011 staying Ext.P4. However, without taking note of the order passed by the Tribunal, the Secretary passed Ext.P5 order dated 24.5.2011 cancelling the permit for the reasons mentioned in Ext.P4. Against Ext.P5, Appeal No.389/11 was filed by the respondents. Tribunal considered both Appeal Nos.260/11 and 389/11 and passed Ext.P6 order allowing the Appeals and setting aside Exts.P4 and P5. It is in these

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W.P.(C)s.452 & 1019/12

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circumstances, these writ petitions have been filed by the Municipality seeking to set aside the aforesaid order passed by the Tribunal.

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Ext.P4 is the show cause notice which led to Ext.P5 final order passed by the Municipality. The only reason stated in the show cause notice is that the permit has been granted in respect of an area which falls within the residential zone as per the Town Planning Scheme which is in force. According to the Secretary, a building permit for the installation of a Telecommunication tower could not have been granted in a residential zone and therefore, the permit was granted by way of a mistake attracting cancellation of the permit as per Rule 16 of the Rules. This was the only contention that was reiterated before the Tribunal also. The Tribunal considered this contention and rejected the same in view of Rule 140A(2) of the Rules which reads as under:-

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Telecommunication towers or pole structures or accessory rooms shall be permitted in any zone or over any building irrespective of its occupancy.

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W.P.(C)s.452 & 1019/12

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In my view, Rule 140A(2) of the Rules relied on by the Tribunal is a complete answer to the contention of the Municipality which was urged before the Tribunal and the Tribunal has rightly held that in view of the provision, there is no substance in the plea of the Municipality that the permit was granted by way of a mistake. For the aforesaid reasons, I do not find anything illegal in the view taken by the Tribunal warranting interference of this Court.

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Therefore, these writ petitions deserve only dismissal and I do so.

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Sd/- ANTONY DOMINIC, JUDGE

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mrcs

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/true copy/ PA To Judge

Maradu Municipality v. Indus Towers Ltd.

Case brief

What is this about?

What did the court decide?

Maradu Municipality v. Indus Towers Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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