Kerala High Court
Maradu Grama Panchayat vs Reliance Communiation Ltd on 29 October, 2021
W. P. (C) Nos. 19629 of 2009
and connected cases -1-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 19629 OF 2009
PETITIONER/S:
MARADU GRAMA PANCHAYAT
SECRETARY (SPL.GRADE),MARADU,ERNAKULAM.
BY ADV SRI.S.CHANDRASENAN
RESPONDENT/S:
RELIANCE COMMUNIATION LTD, A&P ARCADE,
SAHODARAN AYYAPPAN ROAD,KADAVANTHRA,KOCHI REP;
BY, ITS DULY CONSTITUTED POWER OF ATTORNEY
HOLDER,, THE LEGAL MANAGER,SRI RAJA RAJA VARMA.
BY ADVS.
SRI.T.R.HARIKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, ALONG WITH WP(C).3800/2010,
14837/2010 AND CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W. P. (C) Nos. 19629 of 2009
and connected cases -2-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 3800 OF 2010
PETITIONER/S:
DISHNET WIRELESS LTD.
R.R.ARCADE, GEETHANJALI BUS STOP,, NH BYPASS,
THAMMANAM P.O., VYTTILA, KOCHI-32,, REPRESENTED
BY ITS AUTHORISED SIGNATORY AND, CIRCLE MANAGER
LEGAL V.K.SAJITH.
BY ADVS.
SRI.T.R.HARIKUMAR
RESPONDENT/S:
1 STATE OF KERALA AND OTHERS
PRINCIPAL SECRETARY TO GOVERNMENT,, LOCAL SELF
GOVERNMENT DEPARTMENT, SECRETARIAT, ANNEXE, FIFTH
FLOOR, THIRUVANANTHAPURAM-695 001.
2 THE CHIEF TOWN PLANNER
O/O. CHIEF TOWN PLANNER,, KGA COMPLEX, PALAYAM,
THIRUVANANTHAPURAM-695 033.
3 THE CORPORATION OF KOCHI
REPRESENTED BY ITS SECRETARY.
4 UNION OF INDIA REPRESENTED
BY THE SECRETARY, DEPARTMENT OF
TELECOMMUNICATIONS, SANCHAR BHAVAN, 20, ASHOKA
ROAD,, NEW DELHI-110 001.
BY SRI. P. VIJAYAKUMAR, ASSISTANT SOLICITOR
GENERAL FOR R4
SRI. JACOB E. SIMON, GOVERNMENT PLEADER FOR R1
AND R2
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, ALONG WITH WP(C).19629/2009 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. P. (C) Nos. 19629 of 2009
and connected cases -3-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 14837 OF 2010
PETITIONER/S:
N.J.JOHNSON
AGED 50 YEARS, PRESIDENT,, AMALA NAGAR RESIDENT'S
ASSOCIATION,, KADAVANTHARA, KOCHI-20.
BY ADV SRI.M.RAMESH CHANDER
K. A. SANJEETHA
ANEESH JOSEPH
RESPONDENT/S:
1 THE TRIBUNAL FOR LOCAL SELF GOVT.
GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.
2 COCHIN CORPORATION REPRESENTED
BY ITS SECRETARY.
3 TOWER VISION INDIA PVT.LTD.
IST FLOOR-MUSCAT TOWERS, SAHODARAN AYYAPPAN,
ROAD, KADAVANTHARA, KOCHI REPRESENTED, BY ITS
DULY CONSTITUTED POWER OF ATTORNEY, HOLDER, THE
ASSISTANT LEGAL MANAGER,, SRI.RASHY S.INDRAN.
BY ADVS.
SRI.ARUN THOMAS FOR R3
SRI.JENNIS STEPHEN
SRI.SANTHOSH MATHEW
OTHER PRESENT:
SRI.JACOB E SIMON,GOVERNMENT PLEADER FOR R1
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, ALONG WITH WP(C).19629/2009 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. P. (C) Nos. 19629 of 2009
and connected cases -4-
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
WP(C) NO. 22715 OF 2009
PETITIONER/S:
MARADU GRAMA PANCHAYAT,REP.BY ITS SECY.
SECRETARY (SPL.GRADE), MARADU P.O., ERNAKULAM.
BY ADV SRI.S.CHANDRASENAN
RESPONDENT/S:
RELIANCE INFRATEL LTD. A&P ARCADE,
SAHODARAN AYYAPPAN ROAD, KADAVANTHRA,, KOCHI,
REPRESENTED BY ITS DULY CONSTITUTED POWER, OF
ATTORNEY HOLDER, THE LEGAL MANAGER,, SRI.RAJA
RAJA VARMA.
BY ADVS.
SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 29.10.2021, ALONG WITH WP(C).19629/2009 AND
CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W. P. (C) Nos. 19629 of 2009
and connected cases -5-
JUDGMENT
The captioned writ petitions are materially connected in respect
of construction of mobile towers. While W. P. (C) Nos. 19629 of 2009,
22715 of 2009 and 14837 of 2010 are challenging the orders passed
by the tribunal for Local Self Government Institutions directing the
respective local body to grant permission to the telecom infrastructure
operators to construct telecom towers, W. P. (C) No. 3800 of 2010 is
filed by a telecom infrastructure company challenging Ext. P4 order
issued by the Government of Kerala dated 31.05.2007 bearing No.
G. O. (Ms) 143/07/LSGD in exercise of the powers conferred by sub-
section (2)(a) of Section 13 of the Town Planning Act 1108ME and
sub-section (2)(a) of Section 15 of the Madras Town Planning Act,
1920, varying the said Town Planning Scheme to the extent required,
after incorporating modifications, considering objections and
suggestions received on the draft of the notification published vide
G. O. (Ms) No. 10/07/LSGD dated 08.01.2007 in the Kerala Gazette
No. 36 dated 08.01.2007, in compliance with the requirements of the
Town Planning Act and the Rules thereto.
W. P. (C) Nos. 19629 of 2009
and connected cases -6-
2. In fact, the tribunal for Local Self Government Institutions
has considered the question of putting up telecom towers irrespective
of zoning done taking into account Rule 140A, Rule 141 and 142 of
the Kerala Municipality Building Rules, 1999, and Rules 118 to 127
of the Kerala Panchayat Building Rules, 2011. The relevant rules of
Rules 1999 read thus:-
"140A. Site approval etc.- (1) No site approval shall be
necessary for the construction of telecommunication towers,
telecommunication pole structures or accessory rooms essential
for such service.
(2) Telecommunication towers or pole structures or
accessory rooms shall be permitted in any zone or over any
building irrespective of its occupancy.
141. Submission of application and its disposal.- (1)
Application for permit shall be submitted to the Secretary in the
form in Appendix A along with two copies of site plan, location,
elevation, sections, [ x x ], structural stability certificate, copy of
agreement executed with department of Telecommunications or
license or permit issued by an authority approved by Government
of India from time to time and document to prove ownership.
Note. - (1) Ownership document may be a sale deed or
mortgage deed or deed of agreement or license or consent
document, etc.
(2) No structural stability certificate shall be necessary in
the case of telecommunication pole structures and accessory
W. P. (C) Nos. 19629 of 2009
and connected cases -7-
rooms.
[(2) Omitted]
(3) In case the telecommunication tower is proposed
above any building, structural stability certificate shall be
submitted in respect of that building also.
(4) The site plan shall show plot dimensions, access street
width, details of existing structures within the plot with their
uses, height, number of floors, set back from the plot boundaries
and between them; proposed tower and ancillary structures.
(5) The structural stability certificate shall be one issued
by an Engineer having post graduate degree in Civil Engineering
or Structural Engineering, registered or employed in Central or
State Government Service or Quasi- Government Organisation.
(6) Application fee shall be rupees one thousand and
permit fee shall be,-
(a) for towers of any height, rupees ten thousand;
(b) for pole structures (one unit with any number of
poles) rupees two thousand and five hundred.
(c) no separate application fee shall be necessary for the
accessory rooms essential for the use of telecommunication
tower or pole structures but permit fee shall be remitted
corresponding to their area as in the case of a pucca
building.
(7) For the purpose of levying fee, the height of the tower
shall be taken from the base of the tower and not from the base of
the building.
(8) The secretary shall, if convinced of the boundaries
and ownership of the plot, plan and drawings and genuineness of
W. P. (C) Nos. 19629 of 2009
and connected cases -8-
the certificates, issue permit, not later than 30 days from the date
of receipt of application.
(9) The permit issued under sub-rule (8) shall be a work
permit and the construction or erection of telecommunication
tower or telecommunication pole structures or accessory rooms
essential for the use of such tower or pole structures shall be
completed within one year from the date of issue of permit.
(10) The period of the permit shall be extended for a
further period of one year if an application for the same is
submitted to the secretary, within the valid period of the permit.
(11) The application for extension of the period of permit
shall be submitted in white paper, typed or written in ink, affixed
with necessary court fee stamp; original permit shall also be
attached.
(12) No application fee shall be necessary for extension
of period of permit but fee for extension shall be equal to fifty
per cent of the fee for original permit in force at the time of
extension.
142. Completion Certificate.- (1) After completion of
the work of the telecommunication tower or pole structure and
accessory rooms as per permit, the applicant and the engineer
shall submit to the Secretary completion certificate as in Form E
and Form F respectively, along with a certificate of structural
safety/stability of the tower and the building, if the tower or pole
is constructed over a building.
(2) The secretary shall, if satisfied that the work has been
completed as per permit, issue use certificate as in Appendix H
not later than fifteen days from the date of receipt of the
W. P. (C) Nos. 19629 of 2009
and connected cases -9-
completion certificate allotting a number, included in a different
series from that allotted to buildings, on the basis of which the
authorities concerned may allow power connection, etc. for use
of the service.
Provided that if no such use certificate is issued within
the said fifteen days, the applicant/owner may proceed as if such
use certificate has been duly issued to him."
The relevant provisions of the Kerala Panchayat Building
Rules 2011 read thus:-
"118. Essentiality of permit.- No person shall erect or
re-erect any non-governmental telecommunication tower or
telecommunication pole structures or accessory rooms or make
alteration or cause the same to be done without first obtaining a
separate permit for each such tower or telecommunication pole
structure from the Secretary.
119. Distance from road and boundaries.- (1) The base
of the tower or poles shall have minimum 3 metres horizontal
distance from the plot boundary abutting the road, whether it is
proposed on land or over a building, even if the building is
having less than 3 metres distance:
Provided that the minimum distance from road boundary
of the accessory rooms such as equipment rooms, shelters, or
generator rooms proposed shall be that applicable for a
commercial building.
(2) In addition to the distance specified under sub-rule
(1), set back required for road widening proposed in any Town
W. P. (C) Nos. 19629 of 2009
and connected cases -10-
Planning Scheme shall also be provided.
(3) Minimum horizontal distance from other boundaries
of the plot to the base of the telecommunication tower or pole
structure or accessory rooms shall be minimum 3 m.
Provided that, if the telecommunication tower or pole
structures or accessory rooms are proposed over a building, the
distance from the boundaries other than that abutting a road to
the base of the tower shall be that applicable for a commercial
building.
Provided also that no portion of the telecommunication
tower pole structure or accessory room shall project or over hang
in to the neighbouring plots.
120. Provisions regarding F.A.R. and height.- The
provisions regarding F.A.R., coverage, height restriction with
regard to width of road and distance from the boundary abutting
road, distance from the central line of road and dimensions of
parts of building shall not apply to telecommunication towers or
pole structures or accessory rooms such as equipment rooms,
shelters or generator rooms;
Provided that the height of the telecommunication towers
or pole structure or accessory rooms, including the height of the
building if they are proposed over a building, shall be restricted
as stipulated in sub-rule (2) of rule 36.
Provided further that additional distance from the
boundary abutting the road and other boundaries of the plot
proportionate to increase in height shall not be necessary for the
telecommunication tower or pole structure or accessory rooms or
for the building over which they are proposed.
W. P. (C) Nos. 19629 of 2009
and connected cases -11-
121. Accessory rooms.- (1) Accessory rooms such as
equipment rooms, shelters or generator rooms essential for the
service shall be permitted along with a telecommunication tower
or telecommunication pole structures or separately, if a request is
made in the application and plans/drawings of rooms are attached
either along with the application for permit or separately.
(2) The cabin may be made with any material but the area
of such cabin shall not exceed 15 sq. metres.
(3) Installation of electricity generator may be allowed if
the generator is covered with insulated sound-proof cabin.
(4) Every construction or installation, ancillary or
necessary for the telecommunication system shall conform to the
relevant rules applicable to such construction or installation and
licence or permit required under such rules shall also be obtained.
(5) The telecommunication tower or ancillary structures
shall not prevent or block the access, exit or reduce the width of
such access, exit or entry of building or in no way badly affect
the safety measures or amenities provided in the building in
which it is erected.
122. Electrical line clearance.- Every tower or ancillary
construction shall satisfy the minimum vertical and horizontal
clearance from electrical lines as stipulated in the Indian
Electricity Act, 1910 and Indian Electricity Rules, 1956 as
amended from time to time and also any regulation issued by the
State Electricity Board.
123. Protective Wall.- (1) Every tower erected on the
ground and through which electric power is transmitted or passed
shall be provided with protective wall or grill at a minimum
W. P. (C) Nos. 19629 of 2009
and connected cases -12-
distance of one metre from any point of the base.
(2) The wall or grill shall have a minimum of 1.20 metres
height and shall be kept under lock and key, if provided with
door.
124. Protection from lightning.- Every
telecommunication tower shall be provided with sufficient
protection against lightning, conforming to I.S.2303-1969-Code
of Practice, as amended from time to time.
125. Warning lights and colour specifications.- (1)
Every telecommunication tower shall be provided with two
Aviation Warning Lights (ANL) each at 40 metres and 70 metres
height from the ground level and one at the top, the two lights at
40 metres height shall be fixed in one set of opposite corners and
that at 70 metres height shall be fixed at the other set of opposite
corners.
(2) Every telecommunication tower shall be painted with
international orange and international white colours alternatively
each with 5 metres band, starting with international orange at the
top.
126. Damage and liability.- The applicant/owner shall
be responsible for the structural stability of the
telecommunication tower and the building in which it is erected
and for any damage caused due to inadequate safety measures.
127. Building to be authorised.- Erection of any
telecommunication tower or pole structure or accessory rooms
shall be permitted only over authorised buildings."
3. The rule position in respect of the construction of telecom
W. P. (C) Nos. 19629 of 2009
and connected cases -13-
towers is clear from the provisions extracted above, and it is clear
from the rules that the telecom towers can be constructed in any zone
prescribed under the rules. Therefore there is no force in the
contentions advanced in the writ petitions against the steps taken by
the respective local body for granting permits in any zone in
accordance with the rules. These writ petitions are pending before this
Court from the year 2009 and 2010 respectively, without securing any
interim orders. In fact, at the admission stage itself, it was recorded
that the constructions of the towers are over.
4. I have heard respective counsel appearing for the petitioners
and the respondents and perused the pleadings and material on record.
5. Even though learned counsel appearing for the parties have
addressed arguments on the basis of the contentions advanced in the
writ petitions to the effect that in residential areas no
telecommunication tower can be constructed, it is clear from the
provisions of the Rules quoted above that irrespective of the zoning
done, the telecom infrastructure providers, who are entitled to put up
structures, can construct tower, in accordance with the Kerala
Municipality Building Rules, 1999 and the Kerala Panchayat Building
W. P. (C) Nos. 19629 of 2009
and connected cases -14-
Rules, 2011.
6. Apparently, the said Rules were incorporated in the Rules on
the basis of Rule 3A of the Kerala Municipality Building Rules, 1999
and Rule 3A of the Kerala Panchayat Building Rules, 2011 which are
dealing with the supremacy of the Town Planning Scheme over the
Rules 1999 and Rules 2011.
7. The Rules so introduced in the aforesaid Rules can only be
treated as a step taken by the Government to meet up with the felt
requirements of the time, and therefore, it was taking note of the
aforesaid provisions that the tribunal for Local Self Government
Institutions directed the respective local body to grant permit or
consider applications for the same for construction of the
telecommunication towers.
8. That apart, the Rules 1999 and the Rules 2011 are replaced by
the Kerala Municipality Building Rules, 2019 and the Kerala
Panchayat Building Rules, 2019 which also contain typical provisions.
9. A learned Single Judge of this Court had occasion to consider
a similar matter in W. P. (C) No. 11807 of 2021 in Indus Towers Ltd.
v. the Secretary Kalamassery Municipality, and after appreciating the
W. P. (C) Nos. 19629 of 2009
and connected cases -15-
provisions of the Rules under the old Rules and the new Rules, held
that telecom towers can be put up irrespective of the zoning
regulations.
10. Considering the aforesaid aspects, I am of the considered
opinion that the petitioners have not made out any case so as to
interfere with the orders passed by the tribunal. Moreover, the Rules
also make it clear that whatever regulations and modifications made
by the State Government to the Scheme as per Ext.P4 order dated
31.05.2007, by virtue of the Rules discussed above, no manner of
inhibition can be created in order to carry out construction of any
telecom tower irrespective of any zoning regulations.
In that view of the matter, W. P. (C) Nos. 19629 of 2009, 22715
of 2009 and 14837 of 2010 are dismissed and W. P. (C) No. 3800 of
2010 filed by the telecom infrastructure development company is
disposed of, recording the above aspects.
Sd/-
SHAJI P. CHALY
JUDGE
Eb
///TRUE COPY/// P. A. TO JUDGE
W. P. (C) Nos. 19629 of 2009
and connected cases -16-
APPENDIX OF WPC 19629 OF 2009
PETITIONER EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER NO. A1-515/09
DT. 8.4.2009
EXHIBIT P2 TRUE COPY OF THE APPEAL NO. 346/09 DT.
12.6.2009 OF THE COURT OF THE TRIBUNAL
FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
W. P. (C) Nos. 19629 of 2009
and connected cases -17-
APPENDIX OF WPC 3800 OF 2010
PETITIONERS
EXHIBITS
EXHIBIT P1 A COPY OF THE RELEVANT PAGES OF THE
LICENSE AGREEMENT DATED 18-12-2006
EXHIBIT P2 A COPY OF THE NOTIFICATION S.O. 382(E)
DATED 24-05-1999
EXHIBIT P3 COPY OF THE LETTER NO. 842-725/2005-
VAS/88 DATED 26-09-2008
EXHIBIT P4 COPY OF G.O.(MS) NO. 143/07/LSGD DATED
31.5.2007
EXHIBIT P5 COPY OF THE REJECTION ORDER DATED 15-
10-2009
EXHIBIT P6 COPY OF THE GOVERNMENT ORDER ISSUED BY
THE STATE OF UTTAR PRADESH
EXHIBIT P7 COPY OF THE GOVERNMENT ORDER ISSUED BY
THE STE OF TAMIL NADU
EXHIBIT P8 COPY OF THE REPORT DATED 21.08.08
W. P. (C) Nos. 19629 of 2009
and connected cases -18-
APPENDIX OF WPC 14837 OF 2010
PETITIONERS
EXHIBITS
EXHIBIT P1 PHOTOSTAT COPY OF THE COMMUNICATION
DATED 25.1.2010
EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE
FIRST RESPONDENT DATED 22.2.2010 IN
APPEAL NO. 62 OF 2010.
W. P. (C) Nos. 19629 of 2009
and connected cases -19-
APPENDIX OF WPC 22715 OF 2009
PETITIONERS
EXHIBITS
EXHIBIT P1 TRUE COPY OF THE ORDER NO. AL-(2)539/09
DT. 20.4.2009
EXHIBIT P2 TRUE COPY OF THE APPEAL NO. 466/09 DT.
6.7.2009 OF THE COURT OF THE TRIBUNAL
FOR LOCAL SELF GOVERNMENT INSTITUTIONS
