Atc Telecom Infrastructure Pvt ... vs The Secretary
2022 Latest Caselaw 9454 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                   THE HONOURABLE MR.JUSTICE N.NAGARESH
         THURSDAY, THE 25TH DAY OF AUGUST 2022 / 3RD BHADRA, 1944
                         WP(C) NO. 25688 OF 2022
PETITIONER:

              ATC TELECOM INFRASTRUCTURE PVT LTD
              (FORMERLY KNOWN AS ATC TELECOM TOWER CORPORATION AND
              ESSAR TELECOM INFRASTRUCTURE PVT. LTD.,
              VIOM NETWORKS LTD AND WIRELESS TT INFO SERVICES LTD.),
              ATC HOUSE, 65/1826-28, CHERAMNAGALATH, SHENOY ROAD,
              KALOOR, KOCHI - 17, REP. BY HEAD - LEGAL, BABU
              PATTATHANAM, AGED 40 YEARS, S/O CHANDRAN,
              RESIDING AT DEVARAGAM, MANALUDI, RAMANATTUKARA P.O.
              PIN-673633.


              BY ADVS.
              P.SATHISAN
              DONA AUGUSTINE


RESPONDENTS:

     1        THE SECRETARY,
              MANJERI MUNICIPALITY, MANJERI P.O., MALAPPURAM- 676121.
     2        MANJERI MUNICIPALITY,
              REP. BY ITS SECRETARY, MANJERI P.O., MALAPPURAM-676121.
     3        STATE OF KERALA
              REPRESENTED BY PRINCIPAL SECRETARY,
              LOCAL ADMINISTRATION DEPARTMENT, GOVT. SECRETARIAT,
              THIRUVANANTHAPURAM P.O., PIN-695001.

              SR.SYAMANTHAK B S, GP
              SRI. RENJITH (MANJERI) (SC) R1 & R2
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO.25688 OF 2022
                                 2


                         JUDGMENT

Dated this the 25th day of August, 2022

The petitioner, a Telecom Infrastructure Company, has

approached this Court seeking to set aside Ext.P9 and to

direct the 3rd respondent to initiate necessary action against

the 1st respondent in relation to demands for property tax

covering periods stayed as per Exts.P6 and P6(a) orders of

this Court.

2. The petitioner has made an application for Building

Permit for construction of a Telecom Tower in Survey

No.264/13 of Eranad Taluk, Payyanad Village, Malappuram

District in Ward No.25 of the 2nd respondent-Municipality. The

application was submitted on 22.10.2021. However,

respondents 1 and 2 are not entertaining the application on

the ground that the petitioner has to pay arrears of property

tax in respect of other Towers of the petitioner located in the

Municipal area. It is aggrieved by the said stand of WP(C) NO.25688 OF 2022

respondents 1 and 2 that the petitioner is before this Court.

3. Counsel for the petitioner argued that the demand

for excessive property tax made by the Municipal authorities in

respect of other Towers was challenged by the petitioner filing

writ petitions before this Court and this Court has granted

interim orders in favour of the petitioner against levying of

excessive building tax, as is evident from Exts. P6 and P6(a)

interim orders. Therefore, the non-consideration of the

application of the petitioner for construction of a Telecom

Tower in a new location cannot be sustained, contends the

counsel for the petitioner.

4. Standing Counsel entered appearance on behalf of

respondents 1 and 2 and resisted the writ petition. The

Standing Counsel submitted that huge arrears of Building Tax

is due from the petitioner-Company. The amount runs into

more than `70 lakhs. The Municipal authorities are facing

grave financial difficulties and therefore unless the petitioner

remits the amount, the Building Permit application cannot be WP(C) NO.25688 OF 2022

considered.

5. I have heard the learned counsel for the petitioner,

the learned Standing Counsel for respondents 1 and 2 and the

learned Government Pleader representing the 3rd respondent.

6. The application of the petitioner for Building Permit

for construction of a Telecom Tower in Ward No.25 of the

Manjeri Municipality is not being entertained on the ground

that the petitioner has arrears of Building Tax to pay. It is

evident from the pleadings in the writ petition and arguments

of the counsel appearing that the petitioner has approached

this Court filing W.P.(C) Nos.700 of 2021 and 28401 of 2021

challenging the levy of Building Tax and this Court has granted

interim stay on the demand of tax arrears for the years 2018-

2019 to 2021-2022.

7. As the demand for Building Tax for the years

commencing from 2018-2019 ending to 2021-2022 is pending

consideration before this Court, it will not be proper for the

Municipal authorities to insist for payment of the said amounts WP(C) NO.25688 OF 2022

for consideration of Building Permit application, which has no

relation with the levy of Building Tax in question.

In the circumstances, the writ petition is disposed of

directing respondents 1 and 2 to consider Ext.P2 application

for Building Permit submitted by the petitioner invoking Rules

5(1)((b), 75(1), 87(1) and 93(1) of the Kerala Municipality

Building Rules, 2019, and take a decision thereon in

accordance with law, and grant Building Permit to the

petitioner, if the petitioner is otherwise eligible, within a period

of one month.

sd/-

N.NAGARESH JUDGE hmh WP(C) NO.25688 OF 2022

APPENDIX OF WP(C) 25688/2022

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE CERTIFICATE OF INCORPORATION OF THE PETITIONER COMPANY.

Exhibit P2 TRUE COPY OF APPLICATION FOR PERMIT/REGULARIZATION SUBMITTED BY THE PETITIONER DATED 24.09.2021.

Exhibit P2 A TRUE COPY OF ACKNOWLEDGEMENT OF EXT:P2. Exhibit P3 TRUE ACKNOWLEDGED COPY OF REFERENCE DATED 17.06.2022 MADE BY THE PETITIONER TO THE COUNCIL OF 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE DEMAND NOTICE NO.B.A.

179/19-20 DATED 18.12.2021 ISSUED BY THE 1S T RESPONDENT.

Exhibit P5 TRUE COPY OF THE RELEVANT EXTRACT OF WRIT PETITION NO.700/2021 FILED BY THE PETITIONER BEFORE THE HON'BLE HIGH COURT.

Exhibit P5 A TRUE COPY OF THE RELEVANT EXTRACT OF WRIT PETITION NO.28401/2021 FILED BY THE PETITIONER BEFORE THE HON'BLE HIGH COURT.

Exhibit P6 TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA IN W.P(C).NO.700/2021 DATED 11.01.2021. Exhibit P6 A TRUE COPY OF THE INTERIM ORDER PASSED BY THE HON'BLE HIGH COURT OF KERALA IN W.P.(C) NO.28401/2021 DATED 10.12.2021. Exhibit P7 TRUE COPY OF RECEIPT DATED 27.12.2021 ISSUED FOR CHEQUE NO.024756 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P7 A TRUE COPY OF RECEIPT DATED 27.12.2021 ISSUED FOR CHEQUE NO.024757 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P7 B TRUE COPY OF RECEIPT DATED 27.12.2021 ISSUED FOR CHEQUE NO.024758 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P7 C TRUE COPY OF RECEIPT DATED 27.12.2021 WP(C) NO.25688 OF 2022

ISSUED FOR CHEQUE NO.024759 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P7 D TRUE COPY OF RECEIPT DATED 27.12.2021 ISSUED FOR CHEQUE NO.024760 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P7 E TRUE COPY OF RECEIPT DATED 27.12.2021 ISSUED FOR CHEQUE NO.024761 TOWARDS PAYMENT OF PROPERTY TAX.

Exhibit P8 THE COPY OF THE COVERING LETTER DATED 27.12.2021 ISSUED TO THE 1ST RESPONDENT Exhibit P9 TRUE COPY OF THE LATEST COMMUNICATION VIDE NOTICE NO.B.A.421/2122 DATED 11.07.2022 ISSUED BY THE 1ST RESPONDENT Exhibit P10 TRUE COPY OF THE PAYMENT OF RECEIPT NO.

01/121130500396 DATED 01/12/2021 ISSUED BY THE MANJERI MUNICIPALITY Exhibit P10(A) TRUE COPY OF THE COVERING LETTER SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT