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IN THE HIGH COURT OF KERALA AT ERNAKULAM
ANIL K.NARENDRAN, J.
THE SECRETARY, MARADU MUNCIPALITY, MARADU, ERNAKULAM DISTRICT – Petitioner
Vs.
M/S. ATC TELECOM TOWER CORPORATION PVT. LTD., (FORMERLY KNOWN AS M/S.ESSAR TELECOM INFRASTRUCTURE(P) LIMITED – Respondent
W.P.(C)Nos.22028 of 2013, 27766 & 27791 of 2014
Decided on : 8.9.2015
Kerala Municipality Building Rules 1999 - Rr. 3A & 140A - Town Planning Act 1108 - Building structure - Rules and regulations - Whether provision have an overriding effect - Whether Rule 3A of the Municipality Building Rules of the Structure Plan will prevail over sub-rule (2) of Rule 140A of the Rules By incorporating the non obstante - Held, non obstante clause is incorporated in a provision with a view to give the enacting part of the provision an overriding effect in the case of conflict and that while interpreting a non obstante clause under which the Legislature wants to give overriding effect to a provision, the Court must try to find out the extent to which the Legislature have intended to give one provision overriding effect over another provision. In the case on hand, Rule 3A of the Rules begins with a non obstante clause, namely, 'notwithstanding anything contained in these rules'. Therefore, by incorporating the non obstante clause in Rule 3A of the Rules, the legislature have intended to give the provisions of Rule 3A an overriding effect over all other provisions under the Rules, including sub-rule (2) of Rule 140A of the Rules - R.3A of the Municipality Building Rules, the provision contained in Clause (vi) of Para.4.13 of the Structure Plan will prevail over sub-rule (2) of R.140A of the Rules, which provides that telecommunication towers or pole structures or accessory rooms shall be permitted in any zone or over any building irrespective of its occupancy
These Writ Petitions are filed by Maradu Municipality challenging the order passed by the Tribunal for Local Self Government Institutions (hereinafter referred to as 'the Tribunal') by which the respondent in these Writ Petitions were permitted to construct mobile telecommunication towers in residential zone, relying on sub-rule (2) of Rule 140A of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as 'the Rules'), which provides that, telecommunication towers or pole structures or accessory rooms shall be permitted in any zone or over any building irrespective of its occupancy.
2. W.P.(C)No.22028 of 2013 is filed challenging Ext.P4 order dated 15.4.2013 of the Tribunal in Appeal No.1000 of 2012, an appeal filed by the respondent company challenging Ext.P1 order dated 6.11.2012 of the Secretary of Maradu Municipality. The respondent Company submitted an application dated 28.7.2012 before the Municipality for constructing a telecommunication tower in Survey No.353/1 of Maradu Village. The said application was rejected by Ext.P1 order dated 6.11.2012 of the Municipality for the reason that, as per the Structure Plan (General Town Planning Scheme) for Central City of Kochi, notified by G.O.(Ms.) No.143/07/LSGD dated 31.5.2007 (wrongly typed as 31.5.2012' in Ext.P4 order) telecommunication tower is not a permitted use in residential zone. Challenging Ext.P1 order, the respondent Company filed Ext.P2 appeal before the Tribunal. The petitioner filed Ext.P3 written statement and also produced the connected file before the Tribunal. The Tribunal by Ext.P4 order allowed Ext.P2 appeal. After setting aside Ext.P1 order, the Tribunal directed the petitioner to reconsider the application for permit submitted by the respondent Company and if there are no other legal impediments, grant permit without reference to any sort of DTP Schemes as done in Ext.P1 order. The petitioner was directed to complete the process in this regard within a period of one month from the date of the order.
3. W.P.(C)No.27766 of 2014 is filed challenging Ext.P4 order dated 25.9.2014 of the Tribunal in Appeal No.406 of 2014, an appeal filed by the respondent company challenging Ext.P1 order dated 20.3.2014 of the Secretary of Maradu Municipality. The respondent Company submitted an application dated 1.1.2014 before the Municipality for constructing a telecommunication tower in Survey No.102/9 of Maradu Village. The said application was rejected by Ext.P1 order dated 20.3.2014 of the Municipality for the reason that, as per Para.4.13(vi) of the Structure Plan (General Town Planning Scheme) for Central City of Kochi telecommunication tower is not a permitted use in residential zone. Challenging Ext.P1 order, the respondent Company filed Ext.P2 appeal before the Tribunal. The petitioner filed Ext.P3 written statement and also produced the connected file before the Tribunal. The Tribunal by Ext.P4 order allowed Ext.P2 appeal. After setting aside Ext.P1 order, the Tribunal directed the petitioner to reconsider the application for permit submitted by the respondent Company and to issue building permit, if the application is in order other than for the reason stated in Ext.P1 order, within one month from the date of order.
4. W.P.(C)No.27791 of 2014 is filed challenging Ext.P4 order dated 1.9.2014 of the Tribunal in Appeal No.410 of 2014, an appeal filed by the respondent company challenging Ext.P1 order dated 20.3.2014 of the Secretary of Maradu Municipality. The respondent Company submitted an application dated 7.2.2014 before the Municipality for constructing a telecommunication tower in Survey No.259/35 of Maradu Village. The said application was rejected by Ext.P1 order dated 20.3.2014 of the Municipality for the reason that, as per Para.4.13(vi) of the Structure Plan (General Town Planning Scheme) for Central City of Kochi telecommunication tower is not a permitted use in residential zone. Challenging Ext.P1 order, the respondent Company fil
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