Kerala High Court
Atc Telecom Infrastructure ... vs Thrikkakara Municipality on 25 August, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
WEDNESDAY, THE 25TH DAY OF AUGUST 2021 / 3RD BHADRA, 1943
WP(C) NO. 27654 OF 2020
PETITIONER:
ATC TELECOM INFRASTRUCTURE PVT.LTD.,
(FORMERLY KNOWN AS VIOM NETWORKS LTD.),
ATC HOUSE, 65/1826-28,
CHERAMANGALATH, SHENOY ROAD,
KALOOR, ERNAKULAM, KOCHI-17.
REP. BY HEAD LEGAL,
BABU PATTATHANAM,
AGED 40 YEARS,
S/O CHANDRAN,
RESIDING AT DEVARAGAM,
MANALUDI, RAMANATTUKARA P.O., PIN-673633
BY ADV P.SATHISAN
RESPONDENTS:
1 THRIKKAKARA MUNICIPALITY,
KAKKANAD P.O., ERNAKULAM-682 030,
REPRESENTED BY SECRETARY.
2 THE SECRETARY,
THRIKKAKARA MUNICIPALITY, KAKKANAD P.O.,
ERNAKULAM-682 030.
3 SUBAIR U.K.,
ULLAMPILLI HOUSE,
KAKKANAD P.O., KOCHI-682 020.
4 DEPARTMENT OF TELECOMMUNICATION,
O/O SR. DEPUTY DIRECTOR GENERAL,
DEPARTMENT OF TELECOMMUNICATIONS,
CTO BUILDING, 39/575(A),
KARAKKAT ROAD, ERNAKULAM P.O.,
PIN-682 016,
REPRESENTED BY ADDITIONAL DIRECTOR GENERAL
(TECHNOLOGY), KERALA LSA.
5 PRINCIPAL SECRETARY,
LOCAL ADMINISTRATION DEPARTMENT,
SECRETARIAT,
THIRUVANANTHAPURAM P.O., PIN-695 001.
WP(C) No.27654/2020
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BY ADVS.
SHRI.G.G.MANOJ, SC, THRIKKAKARA MUNICIPALITY
SRI.S.BIJU, CGC
SMT. SURYA BINOY, GOVERNMENT PLEADER
SRI.S.SARATH PRASAD
SRI.ENOCH DAVID SIMON JOEL, ADVOCATE
COMMISSIONER
SRI.P.VIJAYAKUMAR, ASGI
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 25.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C) No.27654/2020
:3 :
JUDGMENT
~~~~~~~~~
Dated this the 25th day of August, 2021
The petitioner, a Telecom Infrastructure Provider,
has filed this writ petition seeking to quash Ext.P9 and Ext.P12
and to declare that the action of respondents 1 and 2 in
interdicting a validly issued Site Approval and Building Permit
as against the mandates under the Disaster Management Act,
2005 delaying the essential service of Telecom as arbitrary
and illegal.
2. The petitioner is a Company providing passive
telecom infrastructure to the telecom service providers. For
construction of a Telecom Tower in 1st respondent
Municipality, the petitioner applied for Building Permit which
was granted after site inspection. Ext.P2 is the Site Approval
and Building Permit. Ext.P6 is the consent letter of the owner
and Ext.P7 is Stability Certificate. The owners of the abutting
WP(C) No.27654/2020
property have given Ext.P8 No Objection Certificate. The
Standing Advisory Committee for Frequency Allocation
(SACFA) has issued Ext.P8(a) Certification for Radiation
Compliance.
3. While so, the Municipal Secretary issued Ext.P9
Stop Memo alleging that the petitioner has obtained Building
Permit suppressing material facts. The allegation in Ext.P9 is
that the petitioner is erecting a Tower on a building owned by
two persons on two plots. To Ext.P9, the petitioner submitted
Ext.P10 reply pointing out that the Building Permit was issued
to construct a Telecom Tower over an existing building after
site inspection and since the petitioner has not violated any of
the conditions of Building Permit, the stop Memo should be
withdrawn. The 2nd respondent, however, issued Ext.P12
order directing the petitioner to remove the construction and
deciding to seek explanation from the Officers who granted
Building Permit.
4. The learned counsel for the petitioner argued that
the Building Permit was issued and the Site Plan was
WP(C) No.27654/2020
approved after perusing all relevant documents and the
petitioner has not violated any conditions of Building Permit.
Therefore, the petitioner cannot be forced to remove the
construction. Ext.P9 has been passed for a trivial reason.
5. Respondents 1 and 2 filed counter affidavit.
Respondents 1 and 2 stated that after issuing Building Permit
to the petitioner, based on complaints, an enquiry was
conducted in which it was revealed that two buildings
constructed as per two building permits, owned by two
different owners, were unauthorisedly clubbed together by
providing a single staircase and the mobile tower is being
constructed on the said building.
6. The learned Standing Counsel representing
respondents 1 and 2 argued that in view of Rule 16 of the
Kerala Municipal Building Rules, they have the right to revoke
a Building Permit already issued and the order impugned has
been issued exercising that power.
7. Heard Sri. P. Sathisan, the learned counsel for the
petitioner, Sri. G.G. Manoj, the learned Standing Counsel for
WP(C) No.27654/2020
respondents 1 and 2, Sri. S. Biju, the learned Central
Government Counsel for the 4th respondent, Smt. Surya Binoy,
the learned Senior Government Pleader representing the 5 th
respondent and Sri. Enoch David Simon Joel, the Advocate
Commissioner.
8. The petitioner applied for Building Permit which was
granted by respondents 1 and 2 after inspection of the site.
Site approval was also given as per Ext.P2. After obtaining all
requisite licences and permits from various statutory
authorities, the petitioner started construction of the Telecom
Tower. It was at this stage that Ext.P9 Stop Memo was
issued. The reason for issuing Stop Memo is that the building
has been constructed on two plots owned by two different
persons.
9. It has to be noted that there is no proceeding
initiated against the construction of the building. Neither of the
owners of the buildings have filed any complaint regarding
construction of the Telecom Tower by the petitioner. There is
no allegation that the petitioner has violated the Site Approval
WP(C) No.27654/2020
or any of the conditions of building permit issued to the
petitioner.
10. The Advocate Commissioner has reported that as
per the report of the registered Surveyor, Ext.P2 Building
Permit, Ext.P3 Possession Certificate, Ext.P4 Tax Receipts
and Ext.P5 Location Sketch, all relate to 0.81 Ares of property
in Re-survey No.728/5 covered by Sale deed No.197/2003.
Hence, it cannot be said that the petitioner has made any
misrepresentation while obtaining Building permit. Therefore,
respondents 1 and 2 are not justified in issuing a Stop Memo
against the construction of the Telecom Tower.
11. The learned Standing Counsel for respondents 1
and 2 relied on Rule 16 of the KMBR, 2019 to contend that the
Municipal authorities have a right to suspend or revoke
Building Permit. But, a reading of Rule 16 would show that
such revocation or cancellation can be made only when the
applicant has violated any provisions of the Act or Rules or
permit conditions or when the permit was issued on a
misrepresentation of law or fact or when the construction is a
WP(C) No.27654/2020
threat to life or property. None of the circumstances
contemplated in Rule 16 is available as against the petitioner,
to invoke Rule 16.
In the circumstances of the case, the impugned
orders cannot stand the scrutiny of law. Exts.P9 and P12 are
therefore set aside. The writ petition is allowed as above.
Sd/-
N. NAGARESH, JUDGE
aks/24.08.2021
WP(C) No.27654/2020
APPENDIX OF WP(C) 27654/2020
PETITIONER'S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE CERTIFICATE OF
INCORPORATION OF PETITIONER COMPANY.
EXHIBIT P2 TRUE COPY OF THE BUILDING PERMIT ISSUED
BY THE IST RESPONDENT DATED 13.8.2020.
EXHIBIT P3 TRUE COPY OF THE POSSESSION CERTIFICATE
DATED 14.1.2020.
EXHIBIT P4 TRUE COPY OF THE PROPERTY TAX RECEIPT
DATED 7.1.2020.
EXHIBIT P5 TRUE COPY OF THE LOCATION SKETCH
NO.84/2020 DATED 14.1.2020.
EXHIBIT P6 TRUE COPY OF THE CONSENT LETTER DATED
12.10.2020.
EXHIBIT P7 TRUE COPY OF THE STABILITY CERTIFICATE
DATED 17.6.2020.
EXHIBIT P8 TRUE COPY OF THE NO OBJECTION/CONSENT
CERTIFICATE DATED 12.10.2020.
EXHIBIT P8(A) TRUE COPY OF THE CERTIFICATE FROM THE
STANDING ADVISORY COMMITTEE FOR
FREQUENCY ALLOCATION DATED 3.7.2020.
EXHIBIT P9 TRUE COPY OF THE STOP MEMO DATED
28.10.2020.
EXHIBIT P10 TRUE COPY OF THE OBJECTION SUBMITTED BY
THE PETITIONER DATED 29.10.2020 AND ITS
RECEIPT.
EXHIBIT P11 TRUE COPY OF THE ORDER ISSUED BY THE
DEPARTMENT OF TELECOMMUNICATION DATED
24.3.2020.
EXHIBIT P12 TRUE COPY OF THE ORDER NO. T.P 1-BA-
280/2020 DATED 04.01.2021 ISSUED BY THE
1ST RESPONDENT.
EXHIBIT P13 TRUE COPY OF THE SALE DEED NO.197/2003
OF THRIKKAKARA SRO.
EXHIBIT P14 TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF BUILDING NO.VII/229 OF THRIKKAKARA
MUNICIPALITY ISSUED IN THE NAME OF
K.S.AKBAR DATED 13.01.2020
WP(C) No.27654/2020
EXHIBIT P14(A) TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF BUILDING NO.VII/228E OF THRIKKAKARA
MUNICIPALITY ISSUED IN THE NAME OF
K.S.AKBAR DATED 13.01.2020
EXHIBIT P14(B) TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF BUILDING NO.VII/228 EI OF
THRIKKAKARA MUNICIPALITY ISSUED IN THE
NAME OF K.S.AKHAR DATED 13.01.2020
EXHIBIT P14(C) TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF BUILDING NO.VII/228D OF THRIKKAKARA
MUNICIPALITY ISSUED IN THE NAME OF
K.S.AKBAR DATED 13.01.2020
EXHIBIT P14(D) TRUE COPY OF THE OWNERSHIP CERTIFICATE
OF BUILDING NO.VII/228 OF THRIKKAKARA
MUNICIPALITY ISSUED IN THE NAME OF
K.S.AKBAR DATED 13.01.2020
EXHIBIT P15 TRUE COPY OF THE APPROVED PLAN.
RESPONDENTS' EXHIBITS:
ANNEXURE A1 ORIGINAL NOTICE ISSUED TO THE
RESPONDENTS.
ANNEXURE A2 ACKNOWLEDGMENT CARD OF THE NOTICE
ISSUED TO THE 3RD RESPONDENT
ANNEXURE A3 TRUE COPY OF THE WORK MEMO DATED
04.03.2021 SUBMITTED BY THE COUNSEL FOR
THE PETITIONER
ANNEXURE A4 NOTICE SERVED ON THE PARTIES PRESENT AT
THE TIME OF INSPECTION
ANNEXURE A5 PHOTOGRAPH SHOWING THE K.M. SQUARE
BUILDING
ANNEXURE A6 PHOTOGRAPH SHOWING THE ENTRANCE OF THE
STAIRCASE AT THE GROUND FLOOR
ANNEXURE A7 REPORT SUBMITTED BY THE REGISTERED
SURVEYOR.
ANNEXURE A8 3 PHOTOGRAPHS SHOWING THE CONSTRUCTION
ON THE TERRACE ON THE LEFT SIDE PORTION
OF THE BUILDING.
SR
