Dismissed

Thrikkakara Municipality v. Atc Telecommunication Infrastructure Pvt. Ltd.

Kerala HC25 Oct 2021WA/1361/2021

Case brief

AI extract

What is this about?

The High Court dismissed the appeal against the Single Judge's order quashing orders revoking a building permit for a telecom tower. The Court held that the Secretary's invocation of Rule 16 for misrepresentation was illegal as no such misrepresentation regarding the building plan existed, rendering the action arbitrary.

What did the court decide?

The appellate order by the learned Single Judge dismissing the revocation of the building permit was upheld; the appeal is dismissed.

Thrikkakara Municipality Vs Atc Telecommunication… — Property and Title | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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MONDAY, THE 25^TH DAY OF OCTOBER 2021 / 3RD KARTHIKA, 1943

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WA NO. 1361 OF 2021

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AGAINST THE JUDGMENT IN WP(C) 27654/2020 OF HIGH COURT OF KERALA, ERNAKULAM

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APPELLANTS:

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1 THRIKKAKARA MUNICIPALITY KAKKANAD P.O., ERNAKULAM, PIN-682 030 REPRESENTED BY ITS SECRETARY, KRISHNAKUMAR.

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2 THE SECRETARY

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THRIKKAKARA MUNICIPALITY, KAKKANAD P.O., ERNAKULAM-682 030. BY ADV S.JAMAL

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RESPONDENTS:

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1 ATC TELECOMMUNICATION INFRASTRUCTURE PVT LTD. [FORMERLY KNOWN AS VIOM NETWORKS LTD] ATC HOUSE, 65/1826-28, CHERAMANGALATH, SHENOY ROAD, KALOOR, ERNAKULAM, KOCHI-17 REPRESENTED BY HEAD LEGAL, BABU PATTATHANAM AGED 40 YEARS, S/O. CHANDRAN, RESIDING AT DEVARAGAM, MANALUDI, RAMANATTUKARRA P.O., PIN-673633.

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2 SUBIAR U.K. ULLAMPILLY HOUSE, KAKKANAD P.O., KOCHI-682 030. 3 DEPARTMENT OF TELECOMMUNICATION O/O. SR. DEPUTY DIRECTOR GENERAL, DEPARTMENT OF TELECOMMUNICATION, CTO BUILDING, 39/575 [A] KARAKKAT ROAD, ERNAKULAM P.O., PIN-682 016 (REPRESENTED BY ADDL. DIRECTOR GENERAL (TECHNOLOGY) KERALA LSA.

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4 PRINCIPAL SECRETARY LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM P.O., PIN-695 001.

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SRI.P.SATHISAN FOR R1, SRI.S.BIJU, STANDING COUNSEL FOR R3, AND SRI.TEK CHAND, SENIOR GOPVERNMENT PLEADER FOR R4.

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 25.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.No.1361 of 2021

JUDGMENT

Dated this the 25^th day of October, 2021

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SHAJI P.CHALY, J.

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This appeal is preferred by respondents 1 & 2 in the writ petition viz., Thrikkakara Municipality and its Secretary, challenging the judgment of the learned Single Judge dated 25.8.2021 in W.P.(C) No.27654 of 2020, whereby the learned Single Judge found that the notice to stop construction issued by the Secretary of the Municipality under rule 16 of the Kerala Municipality Building Rules, 2019, is unsustainable, and further held that, Exhibit P9 stop memo, and Exhibit P12 order passed by the Secretary of the Municipality, cancelling the permit issued to the writ petitioner/1^st respondent viz.,ATC Telecom Infrastructure Pvt. Ltd., a company engaged in the business of providing telecom infrastructure, cannot be sustained under law, and accordingly the said orders were set aside. The legality and correctness of the said findings are challenged in the appeal. Brief material facts for the disposal of the writ appeal are as follows;

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The first respondent company, for construction of a telecom tower within the limits of the 1^st appellant Municipality submitted an application before the Secretary of

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the Municipality and has secured Exhibit P2 Site approval and permit after due site inspection and perusal of the relevant documents to construct the tower on the roof of

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W.A.No.1361 of 2021

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a building owned by on Akbar. According to the 1^st respondent / writ petitioner, the owner of the property in which the construction was sought to be put up is paying property tax to the building in question in accordance with the provisions of the Kerala Municipality Act, 1994 and the Rules for the purpose. It is also submitted that No Objection Certificate from the owners of the property abutting the property, where the tower is proposed to be constructed, is also secured, which is produced as Exhibit P8(a) along with the writ petition.

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While the construction work was going on, Exhibit P9 stop memo dated 28.10.2020 was served on the writ petitioner and according to the writ petitioner, the said stop memo issued under rule 16 of the Kerala Municipality Building Rules, 2019, cannot be sustained because none of the parameters provided under rule 16 were available so as to enable the Secretary of the Municipality to issue stop memo and consequential proceedings.

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Apparently the issue was adjudicated by the Secretary of the Municipality after providing an opportunity hearing, and Exhibit P12 order was passed, by which, the permit granted to the petitioner was revoked. The sum and substance of the contention before the writ court was that the entire action of the Secretary of the Municipality is arbitrary and illegal, liable to be interfered with under Article 226 of the Constitution of India.

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A counter affidavit was filed by the appellants before the writ court, wherein

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it was contended that rule 16 of the Kerala Municipality Building Rules, 2019 permits the Secretary of the Municipality to revoke the building permit, if the same happened to be issued on misrepresentation of facts or law.

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The sum and substance of the contention advanced by the appellants was that Exhibit P2 permit was granted for construction of a tower in the property in Sy.No.728/5-2 of Kakkanad Village owned by one K.S.Akbar. But later complainants were received against Exhibit P2 permit and an enquiry was conducted by the Municipal officials in that regard. On enquiry it was found that two buildings were constructed by two property owners after securing two permits and unauthorisedly clubbed into a single building by providing a common staircase in the middle of the said two buildings, and the construction of the mobile tower is being carried on the roof of the said building.

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Case put forth by the appellants is that the said facts have been suppressed by the writ petitioner while obtaining Exhibit P2 building permit. In the said circumstances alone, the Secretary was constrained to issue Exhibit P9 stop memo . It was also submitted that Exhibit P12 final order was passed after providing an opportunity of hearing to the writ petitioner also and therefore, there is no illegality or arbitrariness, justifiable to be interfered in a proceeding under Article 226 of the Constitution of India.

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According to the appellants, the Kerala Municipality Building Rules, 2019

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W.A.No.1361 of 2021

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clearly provides a remedy of appeal to the Tribunal for Local Self Government Institutions, if the writ petitioner was aggrieved by the impugned order passed by the Secretary of the Municipality. In fact an Advocate Commissioner was appointed by the learned Single Judge in order to ascertain the pros and cons of the matter and after conducting due inspection, the Advocate Commissioner has submitted a report in the writ petition. The learned Single Judge after considering the rival submissions made, and the report of the Advocate Commissioner, allowed the writ petition quashing Exhibits P9 and P12 orders passed by the Secretary, basically holding that the Secretary was not entitled to invoke rule 16 since the circumstances contemplated thereunder was not available for invoking the said rule.

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We have heard learned counsel for the appellants Sri.S.Jamal, learned counsel for writ petitioner/1^st respondent Sri.P.Satheesan, Sri.S.Biju, Central Government Counsel for the Department of Telecommunications - 3^rd respondent, Sri.Tek Chand, learned Senior Government Pleader for the Principal Secretary, Local Administration Department, Secretariat, Thiruvananthapuram - 4^th respondent and perused the pleadings and materials on record.

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The paramount contention advanced by the appellants in the appeal is that the writ petitioner obtained the permit for construction of the telecom tower by suppressing the material fact that it is being constructed over two buildings owned by two persons having two separate building numbers and constructed on two plots

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W.A.No.1361 of 2021

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having two separate survey numbers, and therefore, Exhibits P9 and P12 orders issued invoking the powers under rule 16 of the Kerala Municipality Building Rules, 2019, is valid in law and there is no illegality in invoking the said provision.

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According to the appellants, the writ petitioner obtained the mobile tower permit by submitting the building plan of two buildings showing it as a single building owned by Sri.K.S.Akbar alone. But in fact it was two separate buildings clubbed together into a single building, of which, one portion is owned by Sri.Ramla Beevi and other by Sri.K.S.Akbar. It is the case of the appellants that the writ petitioner intentionally concealed those facts from the appellants, and had not even mentioned the name of Smt.Ramla Beevi in the permit application, which alone necessitated issuance of stop memo under rule 16 of the Kerala Municipality Building Rules, 2019, which according to the appellants, is in accordance with law.

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We have evaluated the rival submissions made across the Bar. The subject issue revolves round rule 16 of the Kerala Municipality Building Rules, 2019, which read thus:

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“16. Suspension and Revocation of permit.-- The Secretary shall suspend or revoke any permit issued under these rules if it is satisfied that the applicant has violated any provisions of the Act or rules or any conditions stipulated in the permit or that the construction is carried out in deviation of the approved plan or Town Planning scheme or that the permit was happened to be issued on misrepresentation of fact or law or that the construction, if carried on, will be a threat to life or property:”

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W.A.No.1361 of 2021

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On a reading of rule 16, it is clear that the Secretary is vested with powers to suspend or revoke any permit issued under the Kerala Municipality Building Rules, 2019, if the Secretary is satisfied that the applicant has violated any of the provisions of the Act or Rules or any conditions stipulated in the permit or that the construction is carried out in deviation of the approved plan or Town Planning Scheme, or that the permit was happened to be issued on misrepresentation of fact or law or that the construction, if carried on, will be a threat to life or property.

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In the instant case what is stated in Exhibit P9 stop memo is that the permit happened to be issued on the misrepresentation that the building, where the telecommunication tower was sought to be put up, is a building owned by a single person, whereas it is a building constructed on two distinct plots belonging to two different persons and therefore, there is material suppression of facts, which enabled the Secretary to invoke the said provision. In fact in Exhibit P9 notice/stop memo, there is not even a whisper that the construction of the building in which the telecommunication tower was sought to be put up is illegal or violative of the erstwhile Building Rules prior to the introduction of Kerala Municipality Building Rules, 2019, nor the appellants have a case that the building is constructed after the coming into force of Rules 2019 . The sole aspect that is pointed out in Exhibit P9 is that the tower is sought to be put up in a building constructed on two different plots belonging to two different persons. There is no case at all for the Secretary of the Municipality that the

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W.A.No.1361 of 2021

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construction of the building in question was in any manner illegal. Merely because the construction of a building was carried out by two different persons in the plots owned by them it cannot be said to be an illegal construction.

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When posed with a question as to whether any document is available in respect of the construction of the building in order to identify as to whether the constructions were put up by two different owners in two different plots after securing two different permits, learned counsel for the Municipality submitted that the building was put up when the area in question was a Panchayat and prior to the introduction of the Panchayat Building Rules, 2011, and the Municipality Building Rules were made applicable to the Panchayat areas. Therefore, it is clear from the said submission made by learned counsel for the appellants that there was no requirement for securing a building permit when the construction was put up by the owners of the building in question, the same being then a Panchayat area. Anyhow the plan was submitted by the writ petitioner for seeking approval and grant of permission showing the entire structure as such. But according to the writ petitioner, the construction is carried out in the area earmarked to one of the owners viz., Sri.K.S.Akbar. The learned Single Judge has relied upon the report of the Advocate Commissioner in order to arrive at the conclusion that there is a clear separation by and between the buildings owned by the two owners. It is also an admitted fact that property tax is being paid by the respective owners to the buildings separately and

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W.A.No.1361 of 2021

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division of the buildings was made in accordance with the agreement executed by and between the plot owners. In this regard, report of the Advocate Commissioner would explain the situation in a better manner:

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“MATTERS SOUGHT TO BE ASCERTAINED

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(I) Identification of the property.

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The building in question is situated on the southern side of the Kakkanad NGO Quarters Road, near Ambadimoola Junction, within the limits of Thrikkakara Municipality. The building by name K.M. Square comprises of Ground + 3 floors. Photograph showing the K.M. Square building is produced and marked as Annexure A5. There exists a staircase in the middle of the building which runs up to the terrace. Photograph showing the entrance of the staircase at the ground floor is produced and marked as Annexure A6.

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As requested, the property covered by Sale Deed No. 197/2003 was identified and measured by the Registered Surveyor. On measurement, it is seen that the left side of the staircase of the K.M. Square building is situated in a plot having an extent of 0.81 Ares, which is described in Sale Deed No. 197/2003 executed in favour of one Sri. K.S. Akbar. Report submitted by the Registered Surveyor is produced and marked as Annexure A7

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On enquiry, I was informed that the entire building by name K.M. Square is constructed in a plot having a total extent of 1.46 Ares comprising of 0.81 Ares in Re.Sy.No. 728/5 of Block 9 in Kakkanad Village in the ownership of one Sri. K.S. Akbar by virtue of Sale Deed No. 197/2003 and 0.65 Ares in Re.Sy.No. 728/4 of Block 9 in the ownership of Smt. Ramla Beevi by virtue of Sale Deed No. 3574/2004 of Thrikkakara SRO. The staircase described above divides the ownership of the building among the parties. The portion of the building on the left side of the

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staircase belongs to Sri.K.S.Akbar and the portion on the right side of the staircase belongs to Smt.Ramla Beevi.

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The portion of the building in the respective properties has been assigned different Building Nos. by the Thrikkakara Municipality. The portion of the building in the property of Sri.K.S.Akbar (Left side of the staircase) have been assigned the following Building, Nos. 7/228, 7/228-D, 7/228-E1, 7/228-E and 7/229. "The portion of the building in the property of Smt. Ramla Beevi (Right side of the staircase) have been assigned the following Building Nos.: 7/226, 7/226-D, 7/226-E, 7/226-F, 7/226-1, 7/226-2 and 7/227.

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9.Sri. K.S. Akbar and Smt. Ramla Beevi have executed agreement among themselves agreeing to keep the staircase and the septic tank in common for usage by all the occupants of the entire building.

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As revealed from the report submitted by the registered surveyor, Ext.P2 building permit, Ext.P3 possession certificate, Ext.P4 tax receipts and Ext.P5 location sketch relate to 0.81 Ares of property in Re. Sy.No. 728/5 covered by Sale Deed No. 197/2003.

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(II) Stage of construction of the telecom tower .

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As stated above, the building by name K.M. Square comprises of Ground + 3 floors. On the terrace, preparatory works for certain construction was visible on the left side portion of the building, in the ownership of Sri. K.S. Akbar. Chipping was seen done on 3 points for constructing the telecom tower. Lap joint fitting was done by attaching iron bars on 2 points at the end of the building. At the third point towards the middle of the building, only initial chipping works are seen done.”

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Taking into account the aforesaid aspects, we are of the clear opinion that

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the appellants have not made out any case for interference with the judgment of the

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learned Single Judge since we also find that the invocation of rule 16 by the Secretary of the Municipality was not in accordance with law. Even though learned counsel for appellants submitted that writ petitioner had an alternative and efficacious remedy to approach the Tribunal under rule 108 of the Rules, 2019, we are of the clear opinion that since rule 16 of the Kerala Municipality Rules, 2019 was invoked by the Secretary of the Municipality outside the scope of powers conferred there under and therefore being arbitrary and illegal, it cannot be said that the writ petitioner was not entitled to invoke the powers of this Court under Article 226 of the Constitution of India. This we say because in the fact scenario of the case on hand there was no misrepresentation of fact as alleged in Exhibit P9 stop memo, and no such finding is discernible from Exhibit P12 order passed by the Secretary. Therefore, there is no basis for the said contention also .

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Needless to say, there is no case made out by the appellants for interference in an intra out appeal. Appeal fails, accordingly it is dismissed.

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Sd/S.MANIKUMAR CHIEF JUSTICE

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Sd/SHAJI P.CHALY JUDGE

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smv

Thrikkakara Municipality v. Atc Telecommunication Infrastructure Pvt. Ltd.

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Thrikkakara Municipality v. Atc Telecommunication Infrastructure Pvt. Ltd.

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