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Indus Towers Limited, Palarivattom, Represented by Its Authorized Signatory, Rajkumar Pavothil v/s The Secretary, Kalamassery Municipality

    WP(C). No. 11807 of 2021

    Decided On, 28 July 2021

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE N. NAGARESH

    For the Petitioner: A. Kumar, P.J. Anilkumar, G. Mini (1748), P.S. Sree Prasad, Advocates. For the Respondent: M.K. Aboobacker, SC.



Judgment Text


1. The petitioner, a Company incorporated under the Companies Act and licenced by the Government of India under Section 4 of the Indian Telegraph Act to establish and maintain infrastructure for telecommunication services, is before this Court seeking to quash Exts.P4 and P6 orders and direct the respondent to issue building permit in terms of Ext.P1 application.

2. The petitioner states that it has taken out on lease land in Ward No.34 of Thrikkakara Village, Kanayannoor Taluk. The petitioner submitted an application for building permit for installation of Telecommunication Tower. Though the application submitted to the respondent–Secretary to Municipality was supported by all requisite documents, the respondent issued Ext.P4 letter stating that since the land where Telecommunication Tower is proposed to be erected is in the residential zone under the Kochi City Structural Plan, permission for construction cannot be granted and in view of Rule 3(3) of the Kerala Municipality Building Rules, 2019, the application cannot be entertained.

3. The petitioner pursued the matter further and pointed out to the respondent that in Ext.P5 judgment in WP(C) No.7006/2021, this Court has held that Rule 86(2) will prevail in the matter of grant of building permit for Telecommunication Towers. Thereupon, the Secretary to the Municipality issued Ext.P6 communication stating that Ext.P5 judgment is not related to the application submitted by the petitioner and hence it cannot be applied to the petitioner.

4. The petitioner challenges Exts.P4 and P6 communications of the respondent.

5. The petitioner would submit that as per 86(2) of KMBR, 2019, Telecommunication Tower shall be permitted in any zone of Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016. Rule 3(3) is only a general rule. As Rule 86(2) specifically relates to telecommunication towers, the said rule will prevail over Rule 3(3) of KMBR, contended the learned counsel for the petitioner.

6. The learned Standing Counsel for the respondent pointed out that G.O.No.143/07/LSGD dated 31.05.2007 relating to the Kochi City Structural Plan, in Table 4.13 (VI) at paragraph 5.13 (VI) provided that Telecommunication Towers shall be treated as permitted uses in all zones 'except residential zone'. In view of the said G.O., the respondent cannot issue the permit as sought by the petitioner since the Telecommunication Tower proposed to be installed would come within a residential zone.

7. As regards Ext.P5 judgment, the respondent contended that it relates to another property wherein this Court allowed to install Telecommunication Tower on the top of a building on an unconditional undertaking to remove the Tower being installed in the event of acquisition of land, whereon the building is situated, for widening the road. The said judgment cannot be of any avail to the petitioner.

8. I have heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent.

9. Rule 3(3) of the KMBR, 2019 reads as follows:

'Provisions in the Master Plan, Detailed Town Planning Scheme etc. shall prevail:- Notwithstanding anything contained in these rules, provisions or regulations in any Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 (9 of 2016) shall prevail over the respective provisions of these rules wherever such Plan/Scheme/Order exist.'

A perusal of the rule would show that it is a general rule relating to Master Plan/Detailed Town Planning Scheme/ Interim Development Order in force etc. Chapter XVIII of KMBR, 2019 contains Rule 86. Rule 86 reads as follows:

'86. 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 of Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 (9 of 2016), if any, or over any building irrespective of its occupancy.'

The sub rule (2) of Rule 86 would indicate that the sub rule is specifically made applicable for Telecommunication Towers and it is laid down therein that Telecommunication Towers shall be permitted in Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016 (9 of 2016), if any, or over any building irrespective of its occupancy. Therefore it is obvious that Rule 86(2) would prevail over Rule 3(3).

10. Rule 140A(2) of the KMBR, 1999 provided that Telecommunication Towers shall be permitted in any zone or over any building irrespective of its occupancy. Rule 140A of the KMBR 1999 read as follows:

'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.'

It is to be noted that by the changes brought about by KMBR, 2019, it has been made further clear that Telecommunication Towers shall be permitted in any zone irrespective of Master Plan/ Detailed Town Planning Scheme/Interim Development Order in force etc. Rule 86(2) specifically makes it clear that the permissibility of Telecommunication Tower in any zone of Master Plan/ Detailed Town Planning Scheme/Interim Development Order in force is inspite of the provisions contained in the Kerala Town and Country Planning Act, 2016.

10. This Court had occasion to consider this issue in WP(C) No. 7006/20 wherein this Court has held as follows:

'Sub-rule (2) of Rule 86 of the Kerala Municipality Building Rules, 2019 provides that telecommunication towers shall be permitted in any zone of Master Plan/Detailed Town Planning Scheme/Interim Development Order in force under the Kerala Town and Country Planning Act, 2016, or over any building irrespective of its occupancy. In the light of the said provision, the stand of the Municipality in Ext.P5 communication that the building permit sought by the petitioner cannot be granted in a residential zone is unsustainable'

Therefore it is evident that the Rule 86(2) of the Kerala Municipal Buil

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ding Rules, 2019 permitting installation of Telecommunication Towers, pole structures or accessory rooms in any zone of Master Plan/Detailed Town Planning Scheme/Interim Development Order would prevail over the general rule contained in Rule 3(3). The G.O. dated 31.05.2007 issued much earlier to the introduction of KMBR, 2019 cannot be a reason to decline permit. For all the reasons stated above, the stand of the respondent–Secretary to Kalamassery Municipality cannot stand the scrutiny of law. In the circumstances, the writ petition is disposed of setting aside Exts.P4 and P6 orders and directing the respondent to issue building permit to the petitioner in terms of Ext.P1 application, if they are otherwise eligible.
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