Dr. Thomas Philip vs Secretary
2021 Latest Caselaw 13884 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                        PRESENT
          THE HONOURABLE MR.JUSTICE N.NAGARESH
 TUESDAY, THE 6TH DAY OF JULY 2021 / 15TH ASHADHA, 1943
                WP(C) NO. 11647 OF 2021
PETITIONERS:

    1    DR. THOMAS PHILIP,
         AGED 70 YEARS,
         S/O. LATE K.J. PHILIP,
         RTD. CIVIL SURGEON, ANJALI HOUSE,
         SOWMYATHA NAGAR HOUSE NO.36,
         THANGASSERY, KOLLAM-691007.

    2    JAYATH KUMAR K.V.
         AGED 55,
         S/O. K.K. VISWANATHAN,
         SHANTHI, SOWMYATHA NAGAR,
         THANGASSERY, KOLLAM-691007.

    3    RAJ ANOTONIA FERIAH,
         AGED 45,
         S/O. BERTY FERIAH, OUR PALACE,
         KARUMALI ROAD,
         THANGASSERY, KOLLAM-691007.

         BY ADV ARUN BABU

RESPONDENTS:

    1    SECRETARY,
         KOLLAM MUNICIPAL CORPORATION,
         KOLLAM MUNICIPAL CORPORATION OFFICE,
         NEAR RAILWAY STATION,
         KOLLAM-691001.

    2    KOLLAM MUNICIPAL CORPORATION COUNCIL,
         REPRESENTED BY SECRETARY,
         KOLLAM MUNICIPAL CORPORATION,
         KOLLAM MUNICIPAL CORPORATION OFFICE,
         NEAR RAIWLAY STATION,
         KOLLAM-691001.
 WP(C) No.11647/2021
                            :2 :


     3     M/S. ATC TELECOM INFRASTRUCTURE PRIVATE
           LIMITED,
           ATC HOUSE, CHERAMANGALATH,
           SHENOY ROAD, KALOOR P.O.,
           ERNAKULAM-682017,
           REPRESENTED BY ITS SENIOR MANAGER (LEGAL),
           MR. BABY PATTATHANAM.

           BY ADVS.
           SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT
           SRI. HARIKRISHNAN
           SRI. SANTHOSH MATHEW
           SRI. ARUN THOMAS
           SRI. JENNIS STEPHEN
           SRI. VIJAY V. PAUL
           SRI. KARTHIKA MARIA
           SRI. VEENA RAVEENDRAN
           SRI. ANIL SEBASTIAN PULICKEL
           SRI. DIVYA SARA GEORGE
           SRI. JAISY ELZA JOE

     THIS WRIT PETITION (CIVIL) HAVING COME UP          FOR
ADMISSION ON 06.07.2021, THE COURT ON THE SAME          DAY
DELIVERED THE FOLLOWING:
 WP(C) No.11647/2021
                                  :3 :




                            JUDGMENT

Dated this the 06th day of July, 2021

The petitioners have approached this Court

aggrieved by the dismissal of the appeal filed by them before

the Tribunal for Local Self Government Institutions,

Thiruvananthapuram, challenging the permit given to the 3 rd

respondent for the construction of a Telecommunication

tower, which falls near the residences of the petitioners.

2. Ext.P5 is the memorandum of Appeal No.59/2021

filed by the petitioners before the Tribunal. The petitioners

have raised specific grounds relating to the violation of the

provisions of Rule 84 and 87 of the Kerala Municipal Building

Rules, 2019.

3. The counsel for the petitioners urged that Rule 84

requires provisions for sufficient set back for road widening. WP(C) No.11647/2021

Rule 87 would mandate that a permit should have been

issued only with the concurrence of Chief Town Planner.

These rules are not adhered to while issuing the building

permit. The petitioners further submitted that in view of the

violation of Rules 84 and 87, the respondents ought to have

revoked the building permit invoking Rule 16. But the

Tribunal has not considered the legal points urged by the

petitioners.

4. The 3rd respondent filed a counter affidavit. The

3rd respondent controverted all material allegations made in

the writ petition. The 3rd respondent stated that there is no

specific allegation in appeal that the 3 rd respondent violated

any particular rule or condition in the permit. The petitioners

have no case that the construction of Telecommunication

tower is in violation of any rules in the Kerala Municipal

Building Rules, 2019. The learned Standing Counsel for the

3rd respondent further took the Court elaborately through the

order of the Tribunal from which it is seen that the Tribunal WP(C) No.11647/2021

has perused the files relating to grant of permit and only after

convincing about the legality of the grant of permit that the

Tribunal has dismissed the appeal filed by the petitioners.

5. The 1st and 2nd respondents also opposed the writ

petition filing a statement. The 1 st and 2nd respondents stated

that the property lies within an area described as a

residential zone and there is a proposal for widening the road

in front of the said property, to 12 metres. The respondents 1

and 2 further stated that while the tower construction was in

progress, the residents of Thangassery submitted a

complaint before the Kollam Mayor with regard to the

construction and on inspection it was found that there is no

violation of building Rules.

6. The 3rd respondent further pointed out that there is

no averment in the appeal that the Telecommunication tower

is within any residential zone. Therefore, the argument on

residential zone now taken up by the petitioner is not

maintainable.

WP(C) No.11647/2021

7. I have heard the learned counsel for the

petitioners and the learned Standing Counsel for the

respondents.

8. Going through the Ext.P5 appeal memorandum,

submitted by the petitioners, it is evident that the petitioners

have specifically urged that Rules 84 and 87 of the Kerala

Municipal Building Rules have been violated while granting

permit for construction of Telecommunication tower. Grounds

A,B,F and G in the Appeal memorandum explains the nature

of violation. Though the Tribunal appears to have perused

the files before passing Ext.P8 order, a reading of Ext.P8

appellate order would show that the specific arguments taken

by the petitioners in the Appeal memorandum regarding

violation of Rules 84 and 87 has not been adverted to by the

Tribunal. In the circumstances, Ext.P8 order of the Tribunal

is liable to be set aside.

Accordingly, Ext.P8 order of the Tribunal is set

aside and the appeal is remitted back to the Tribunal for WP(C) No.11647/2021

consideration afresh. The Tribunal shall pass fresh orders on

the appeal filed by the petitioners within a period of 6 weeks.

I make it clear that, this Court has not pronounced any thing

on merits of the claims made by the petitioners, in this

judgment.

Sd/-

N. NAGARESH JUDGE SR WP(C) No.11647/2021

APPENDIX PETITIONER'S EXHIBITS:

EXHIBIT P1 THE TRUE COPY OF THE RELEVANT PAGES OF THE REPRESENTATION DATED 19/01/2021 FILED BY THE 1ST PETITIONER ALONG WITH OTHER RESIDENTS BEFORE THE DISTRICT TELECOM COMMITTEE, KOLLAM.

EXHIBIT P2 THE TRUE COPY OF THE RELEVANT PAGES OF THE NUMBER DIT. DEV.-(IT)2005 (MISC)- 96 DATED 21ST JUNE 2017.

EXHIBIT P3 THE TRUE COPY OF THE RELEVANT PORTIONS OF THE NOTIFICATIONS DATED 29 MAY 2019 BEARING NUMBER UDD 211 2014 GEL.

EXHIBIT P4            THE TRUE COPY OF THE RELEVANT PORTIONS
                      OF    THE     STUDY      PUBLISHED    IN

INTERNATIONAL JOURNAL OF ENGINEERING AND ADVANCED TECHNOLOGY (IJEAT) IN FEBRUARY 2020.

EXHIBIT P5 THE TRUE COPY OF THE APPEAL MEMORANDUM WITHOUT EXHIBITS ALONG SUBMITTED BY THE PETITIONERS BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.59/2021.

EXHIBIT P6 THE TRUE COPY OF THE STATEMENT FILED BY THE 1ST AND 2ND RESPONDENT DATED 19/03/2021 IN APPEAL 59/2021 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P7 THE TRUE COPY OF THE STATEMENT FILED BY THE 3RD RESPONDENT DATED 10/03/2021 IN APPEAL 59/2021 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. WP(C) No.11647/2021

EXHIBIT P8 THE TRUE COPY OF THE ORDER DATED 15/04/2021 IN APPEAL 59/2021 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. EXHIBIT P9 THE TRUE COPY OF THE RELEVANT PAGES DEVELOPMENT PLAN NOTIFIED AS PER GO(MS) NO.69/2010/LSGD IN THE WEBSITE TAKEN FROM HTTPS://TOWNPLANNING.KERALA.GOV.IN. EXHIBIT P10 THE TRUE PHOTOGRAPH SHOWING THE PRESENT LEVEL OF CONSTRUCTIONS AS ON 20/05/2021.

EXHIBIT P11 THE TRUE COPY OF PERMIT BEARING NUMBER TP 7/22442/20 DATED 14/08/2020 TO THE 3RD RESPONDENT.

RESPONDENTS' EXHIBITS:

EXHIBIT R3(A) TRUE COPY OF THE ORDER DATED 15-4-2021 IN APPEAL NO.45/2021 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS EXHIBIT R3(B) TRUE COPY OF THE ORDER ISSUED BY THE DISTRICT TELECOM COMMITTEE, KOLLAM EXHIBIT R3(C) TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(MS)No.14/2014/ITD DATED 15-03- 2014 AND GUIDELINE ATTACHED WITH THE GOVERNMENT ORDER EXHIBIT R3(D) TRUE COPY OF THE PRE-EMF CERTIFICATE FOR RADIATION COMPLIANCE DATED 3-7- 2020 PRODUCED ALONG WITH THE BUILDING PERMIT APPLICATION BY THE 3RD RESPONDENT.