Allowed

Indus Towers Limited v. Maradu Municipality

Kerala HC21 Dec 2021WP(C)/18715/2020

Case brief

AI extract

What is this about?

The Court quashed the order rejecting a telecommunication tower application by the Municipality. Relying on prior precedents holding that the Secretary alone has the authority to decide such permits and that health hazards require specific technical assessment, the Court directed the respondent to reconsider the application within four weeks.

What did the court decide?

Set aside the rejection order; directed second respondent to reconsider the building permit application within four weeks.

Indus Towers Limited Vs Maradu Municipality — 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 MR. JUSTICE P.V.KUNHIKRISHNAN
TUESDAY, THE 21ST DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,

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1943

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WP(C) NO. 18715 OF 2020

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PETITIONER:

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INDUS TOWERS LIMITED

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REPRESENTED BY ITS CIRCLE LEGAL HEAD (KERALA)
RAJKUMAR PAVOTHIL, VANKARATH TOWERS, 8TH FLOOR, N
H BYPASS, PALARIVATTOM, ERNAKULAM – 682024.

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BY ADVS.
PHILIP T.VARGHESE
SRI.THOMAS T.VARGHESE
SMT.ACHU SUBHA ABRAHAM
SMT.V.T.LITHA
SMT.K.R.MONISHA
SMT.SHRUTHI SARA JACOB

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RESPONDENTS:

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1 MARADU MUNICIPALITY REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, MARADU – 682304.

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2THE SECRETARY
MARADU MUNICIPALITY, MUNICIPAL OFFICE, MARADU-
682304.

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BY ADV SRI.T.R.RAJAN

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 21.12.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:

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W.P.(C).No.18715/2020

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P.V.KUNHIKRISHNAN, J.

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W.P.(C).No.18715 of 2020

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---------------------------------------------Dated this the 21^st day of December, 2021

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JUDGMENT

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This writ petition is filed with following prayers:

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i. Issue a writ of certiorari or any other appropriate writ or direction calling for the records resulting in Ext.P1 order, scrutinize and quash the same.

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ii. Issue a writ of mandamus or any other appropriate writ or direction to the 2^nd respondent to grant building permit applied for by the petitioner if their application satisfied the requirements of Rule 87(8) of the Kerala Municipality Building Rules, 2019.

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iii. Pass such other orders, interlocutory or otherwise, which are deemed fit and proper in the interest of justice.

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iv. Allow this writ petition with costs.

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Petitioner is a telecommunication infrastructure

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provider licensed by the Government of India. The petitioner submitted an application for building permit for construction

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W.P.(C).No.18715/2020

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of telecommunication tower before the 2^nd respondent. It is the case of the petitioner that the 2^nd respondent kept the application pending for about 13 months and thereafter as per Ext.P1 order, rejected the application. The 2^nd respondent rejected the application based on Ext.R2(c) resolution of the Municipal Council. Aggrieved by the same, this writ petition is filed.

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Heard the counsel for the petitioner and the Standing Counsel for the respondents.

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The counsel for the petitioner submitted that the authority to consider the application for building permit is the Secretary. This point is covered by this Court in Dharmadam

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Paristhithi Samrakshana Samiti v. Dharmadam Grama Panchayat [2010 (2) KLT 194] in which it is held that the power to consider and pass orders on an application for building permit is exclusively on the Secretary and the decision taken by the Committee of the local body not to grant building permit would be without jurisdiction. The counsel submitted that the second ground to dismiss the application is that there is a general complaint from the local residents apprehending health hazardous. This point is also considered

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W.P.(C).No.18715/2020

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by this Court in Essar Telecom Infrastructure Pvt. Ltd. v. State of Kerala [2011 (2) KLT 516] . The Standing Counsel appearing for the respondents submitted that the respondents acted only in accordance to law and he takes me through paragraph 4 of the counter affidavit filed by the respondents.

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I considered the contentions of the petitioner and the respondents. In the light of the judgment of this Court in Dharmadam’s case (supra), I think it is the duty of the Secretary of the Municipality to decide on the application for building permit. As far as heath hazardous is concerned, this point is considered by Division Bench this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat [2006 (4) KLT 695], Essar Telecom Infrastructure (P) Ltd. v. State of Kerala [2011 (2) KLT 516] and the Full Bench decision of this Court in Essar Telecom Infrastructure (P) Ltd. v. Circle Inspector of Police [2010 (2) KLT 762].

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In the light of the above decisions, according to me, the impugned order will not stand. It is a matter to be reconsidered by the 2^nd respondent afresh. Therefore, Ext.P1 can be set aside and there can be a direction to the 2^nd respondent to consider the application for building permit in

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W.P.(C).No.18715/2020

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accordance to law within a time frame.

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Therefore, this writ petition is allowed in the following

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manner:

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Ext.P1 order is set aside.

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The 2^nd respondent is directed to consider the building permit application submitted by the petitioner, as expeditiously as possible, at any rate, within four weeks from the date of receipt of a copy of this judgment, in the light of the observations in this judgment and in accordance to law.

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sd/-

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P.V.KUNHIKRISHNAN

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JUDGE

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W.P.(C).No.18715/2020

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APPENDIX OF WP(C) 18715/2020

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PETITIONER EXHIBITS

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EXHIBIT P1TRUE COPY OF THE ORDER ISSUED BY THE
2ND RESPONDENT TO THE PETITIONER DATED
17.08.2020.

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RESPONDENT EXHIBITS

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EXHIBIT R2(A)TRUE COPY OF THE NOTICE DATED
24.4.2020 ISSUED BY THE ASSISTANT
ENGINEER, MARADU MUNICIPALITY TO THE
PETITIONER.
EXHIBIT R2(B)TRUE COPY OF THE CIRCULAR NO.2750
(2)/RD2/LSGD DATED 10.8.2009 ISSUED BY
THE GOVERNMENT OF KERALA.
EXHIBIT R2(C)TRUE COPY OF THE RESOLUTION NO.28
DATED 1.7.2020 OF THE MUNICIPAL
COUNCIL.
EXHIBIT R2(D)TRUE COPY OF THE JUDGMENT DATED
14.10.2019 OF THIS HON'BLE COURT IN
WRIT PETITION (C) NO.19020 OF 2010.

Indus Towers Limited v. Maradu Municipality

Case brief

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Indus Towers Limited v. Maradu Municipality

Case brief

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