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2021 Supreme(Online)(KER) 47948
HIGH COURT OF KERALA
INDUS TOWERS LIMITED – Appellant
Versus
THE SECRETARY, TRIPUNITHURA MUNICIPALITY – Respondent
WP(C)/28981/2020
A lawful existing building permits additional constructions on classified land without restrictions imposed by land use classifications.
Headnote:
Telecommunication - Permit Approval - Act Section List - The decision involved the interpretation of the Kerala Conservation of Paddy Land and Wetland Act, 2008 as amended by Act 29 of 2018, impacting the issuance of building permits for telecommunication infrastructure on 'Nilam' lands.
Fact of the Case:
The petitioner, a telecommunication service provider, sought a building permit to erect a tower on a lawful building in Thripunithura Municipality. The application was denied by the Secretary, citing land classification as 'Nilam'. Subsequent responses limited permits based on land use.
Finding of the Court:
The court found that since the existing building was lawfully constructed and assessed for tax, the Municipality could not deny the permit for installing a telecommunication tower. The earlier communications were disrupted based on the restrictive interpretation of the amended Act.
Issues: Whether the Municipality could deny a building permit for a telecommunication tower based on land classified as 'Nilam', despite the lawful existence of a building.
Ratio Decidendi: The court established that the lawful existence of a building allows for additional permits under the provisions of the applicable Act, overriding objections based on land classification as ‘Nilam’.
Final Decision: The writ petition was allowed, and the Municipality was directed to reconsider the permit application within two weeks.
JUDGMENT
Petitioner is a Telecommunication infrastructure service provider. They have applied to the respondent for a building permit to erect a telecommunication tower over an existing building situated within the limits of Thripunithura Municipality. The application preferred by the petitioner has been rejected by the respondent, the Secretary of the Municipality as per Ext.P5 communication stating that the land, where the building, on the top of which the petitioner proposes to erect the telecommunication tower, exists is one shown in the revenue records as 'Nilam' and therefore, the permit sought for cannot be granted. The petitioner sought review of Ext.P5 communication and in response to the same, they have been issued Ext.P7 communication stating that in the light of Act 29 of 2018, in terms of which the Kerala Conservation of Paddy Land and Wetland Act, 2008 has been amended, permission can be granted to lands shown as 'Nilam' in the revenue records only for residential buildings having plinth area less than 120 square meters and commercial buildings having plinth area less than 40 square meters. Exts.P5 and P7 are under challenge in the writ petition.
2. Heard the learned counsel for the petitioner as also the learned Standing Counsel for the respondent.
3. As noted, the petitioner proposes to put up the telecommunication tower over an existing building. The materials on record indicate that the building on the top of which the petitioner proposes to put up the telecommunication tower is one lawfully constructed and assessed to property tax by the Municipality. If a building which is lawfully constructed exists on a land, in the light of the decisions of this Court inMahin v. Keezhmad Grama Panchayat, 2020(2) KLT 478 and Leela Santu v. Secretary, Kothamangalam Municipality , 2020(4) KLT 1011 , the Municipality cannot raise any objection for grant of another building permit in respect of the same land, be it for an additional floor or for erecting a telecommunication tower on the top of the existing building on the basis of the provisions contained in Act 29 of 2018. In the said view of the matter, Exts.P5 and P7 are liable to be interfered with.
In the result, the writ petition is allowed. Exts.P5 and P7 are quashed and the respondent is directed to consider the application of the petitioner for building permit referred to in Ext.P5 afresh, and grant the building permit sought by the petitioner, if the application is otherwise in order. This shall be done within two weeks from the date of receipt of a copy of this judgment.
Sd/-
P.B.SURESH KUMAR JUDGE rkj APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROPERTY TAX RECEIPT DATED 16.03.2020.
EXHIBIT P2 TRUE COPY OF THE OCCUPANCY CERTIFICATE ISSUED TO THE OWNERS DATED 18.03.2020.
EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED
27.04.2020 ALONG WITH THE COVERING LETTER (WITHOUT ANNEXURES).
EXHIBIT P4 TRUE COPY OF THE STRUCTURAL STABILITY CERTIFICATE DATED 18.2.2020.
EXHIBIT P5 TRUE COPY OF THE COMMUNICATION DATED
21.05.2020.
EXHIBIT P6 TRUE COPY OF THE REPLY FURNISHED ON
07.10.2020.
EXHIBIT P7 TRUE COPY OF THE COMMUNICATION REJECTING THE APPLICATION DATED 31.11.2020.
