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Judgment
T.R. Ravi, J
The petitioner, a local resident, is challenging the installation of a mobile tower by the 11th respondent, on top of a building. According to the petitioner, the building on which the tower is sought to be constructed has not been constructed in compliance with the provisions of the Kerala Municipality Building Rules. There is also a contention that the mobile tower has been constructed without complying with the provisions of law. By Ext.R11(a), the 2nd respondent Corporation had issued building permit to the 11th respondent on an application submitted on 31.03.2015. The permit was issued on 05.05.2015. On 08.01.2016, the Assistant Executive Engineer attached to the 2nd respondent Corporation issued a notice to the 7th respondent owner of the building on which the tower was being constructed, directing him to dismantle the tower citing the reason that the construction was without necessary permission, and stating that on failure to comply, actions stipulated in the Kerala Municipality Building Rules will be initiated. This was followed by another notice dated 03.03.2017 wherein the building owner was informed that permission was granted for a “ground plus two-floor residential occupancy” and that on inspection it was found that the ground floor was being used as a shop and first floor and second floor were being used as a special residence. It is further stated that the nature of occupancy has been changed after obtaining the permit and that the side and rear setback are also not in accordance with Rules 24(4) and (5) of the Kerala Municipality Building Rules. The 7th respondent was asked to show cause why action should not be taken. The petitioner submits that the Resident’s Association had submitted request before the District Telecom Committee regarding the violation in construction of the mobile tower. It is further stated that the mobile tower operator had in connivance with the 4th respondent, who is the Assistant Engineer LSGD Kochi Municipal Corporation, issued the building permit without referring to the earlier order. A copy of the application dated 18.01.2016 submitted by the mobile tower operator for the construction of the tower is produced as Ext.P4. Ext.P4 would show that the site was inspected, and the construction was found to be in accordance with the plan. The endorsements would show that they have been made in December 2016. The District Telecom Committee (DTC) by Ext.P5 order dated 31.12.2017 considered the grievance put forward by the Resident’s Association and rejected the same and permitted the installation of the mobile tower. On 17.01.2018, the Secretary of the Resident’s Association submitted Ext.P6 before the Collector, wherein it is stated that the Edappally Zonal Office of the 2nd respondent had cancelled the permit and rejected the permission for installation of the tower and this aspect has not been considered while issuing Ext.P4. It is further stated that they were not put on notice regarding the hearing before the District Collector. By Ext.P8 the District Collector had addressed the Resident’s Association stating that the DTC had considered the documents which have been produced by the 11th respondent and had issued Ext.P5 order after being convinced about the documents. It is further stated that the Resident’s Association may take up the issue before the appropriate authority. Petitioner submits that there is a difference in the views taken by the different zonal offices of the 2nd respondent on the issue and the DTC cannot overlook those aspects. The Secretary of the Resident’s Association had approached the State Telecom Committee, challenging the order of the District Telecom Committee on 10.04.2018 as evidenced by Ext.P9. The Secretary had also approached this Court by filing WPC No.14337/2018, which was disposed of by judgment Ext.P11 directing the State Level Telecom Committee to consider the appeal and pass final orders. On 18.09.2019, the District Telecom Committee issued Ext.P12 rejecting the complaint filed by the Resident’s Association and granting Police protection for the construction of the mobile tower. The writ petition has been filed praying to quash Ext.P12 and for other reliefs including the conduct of an investigation into the issuance of the permit by the Vytilla Zonal Office of the Corporation when the Edappally Zonal Office had issued notice to remove the tower.
The 11th respondent has filed a counter-affidavit. Along with the counter affidavit a permit dated 05.05.2015 has been produced, which has been issued in favour of the 11th respondent for the installation of the mobile tower over the building number No.32/353 situated in Sy.No.71/3A, 3B of Edappally South Village. The 11th respondent has also produced the order in Appeal No.549/2016 issued by the Tribunal for Local Self Government Institutions, as Ext.R11(c). The said appeal is seen to have been preferred by the 11th respondent against the Corporation for not considering their application for renewal of the building permit. The Tribunal allowed the appeal and directed the Secretary to renew the permit. Ext.R11(d) produced by the 11th respondent is an order of the Government dated 07.12.2018, pursuant to the judgment in WPC No.14337/2018. The order stated that the District Telecom Committee is to act as a public grievance redressal mechanism whereas the State Telecom Committee shall act only as an advisory body on the common issues pertaining to tower installation which has State-wide application and is no longer an appellate authority of the District Telecom Committee. There was a direction issued to the Chairman of the DTC to conduct a fresh hearing of the petitioners and respondents concerned and take an appropriate decision after examining all the facts and evidence in detail. It is also directed that the Secretary of the Cochin Corporation shall submit a report regarding the jurisdictional power of the Zonal Office of the Corporation for issuing the permit for the construction of the mobile tower. It is stated that the building permit was granted on 25.04.2015. It is further stated that the permit was not renewed since the necessary fee had not been remitted. Regarding the contention based on the Zonal Offices, it is stated that the construction of the tower was within Division No.43 of the Edappally Zone and hence the application was being handled by the Edappally Section of the Corporation. To avoid delay in consideration of applications for permits of mobile towers, it is stated that a panel was constituted in the main office of the Corporation including staff from various Zonal Offices. It is stated that the 6th respondent had obtained regularised occupancy certificate by approaching the said panel, by misguiding the panel and that the said certificate was produced before the District Telecom Committee. Along with the counter affidavit, Ext.R2(a) order dated 18.09.2019 of the District Telecom Committee has been produced. The DTC has by the said order rejected the contentions raised by the Resident’s Association and permitted the installation of the tower. The committee also directed the grant of necessary Police protection for effecting the installation. The order will show that the contentions raised by the association have been considered by the committee. The DTC further observed that grievances regarding the building permits have to be raised before the Tribunal for Local Self Government Institutions and that no such complaints have been preferred before the Tribunal while the matter was being considered by the DTC. Ext.R2(a) is the order which has been produced as Ext.P12 along with the writ petition.
Heard Sri Sherry J.Thomas on behalf of the petitioner, Sri C.N.Prabhakaran, Standing Counsel for Cochin Corporation, for respondents 2 to 5, Sri Johnson Abraham for the 7th respondent, Sri B.S.Syamanthak, Government Pleader on behalf of respondents 1, 8 and 9, Sri N.Satheesh, Standing Counsel for the 10th respondent and Sri G.Harikumar, counsel for the additional 11th respondent.
The counsel for the 11th respondent submitted that the contention that the mobile tower operator had misguided the authorities and obtained a permit is without any basis. It is stated that by Ext.R11(e) order, the Superintending Engineer of the 2nd respondent Corporation had ordered that for the purpose of administrative convenience in considering the request for regularisation of the several mobile towers installed by the 11th respondent within the limits of the Cochin Corporation, a committee is being constituted with the Assistant Executive Engineer attached to the Office of the Superintending Engineer, another Assistant Engineer, and second-grade overseer. It is submitted that the permits have been issued only on the said basis and the 11th respondent cannot be said to have committed any wrong. It is also submitted that the Tribunal for Local Self Government Institutions had directed renewal of the building permit in a proceeding in which the Corporation was a party. The counsel further points out that by Ext.P12 order the District Telecom Committee which is the authority to decide such matters has already rejected the contentions raised by the Resident’s Association of the area where the petitioner is also residing and the said proceedings cannot be faulted since the order has been issued after notice to the objectors and after hearing them. The Resident’s Association which had been contesting the issue throughout has not chosen to challenge Ext.P12.
It is trite law that this Court is not sitting in appeal over the decisions taken by an expert body like the District Telecom Committee regarding the construction of a mobile tower. The contention of the petitioner that the construction has been made on top of an unauthorised building cannot be countenanced. Rule 140A of the Kerala Municipality Building Rules which was applicable at the time of the application for a building permit permits the installation of a telecom tower in any zone or over any building irrespective of its occupancy. The Rule also says that no site approval is necessary for the construction of telecommunication towers. As such, the allegation that the building over which the tower is now constructed was granted permission as a residential building and that later it is being used for commercial purposes and as a special residential unit cannot be a reason to say that the construction of the mobile tower is on top of an unauthorised building. As such, the Corporation cannot take a stand that there is a violation of the Building Rules. Rule 143 authorises the Secretary to regularise the construction of a telecommunication tower that had been completed without obtaining an approval plan. In view of the statutory provisions and the fact that the appropriate authority has considered and passed orders after following the procedure prescribed, it will not be proper for this Court to interfere with the same in exercise of its extraordinary jurisdiction under Article 226 of the Constitution of India. No grounds have been made out for interference.
The writ petition fails and is dismissed. The dismissal of the writ petition will not in any way affect the right of the 2nd respondent to initiate action against the building owner if there is a change of occupancy as contended, warranting the taking of action. As far as the construction of the telecommunication tower is concerned, the order Ext.P12 does not warrant any interference and is affirmed.