The court underscored that revocation of permits must align with specific legal provisions and cannot be based on arbitrary interpretations of property ownership.

JUDGMENT

Dated this the 25th day of October, 2021 SHAJI P.CHALY, J.

This appeal is preferred by respondents 1 & 2 in the writ petition viz., Thrikkakara Municipality and its Secretary, challenging the judgment of the learned Single Judge dated 25.8.2021 in W.P.(C) No.27654 of 2020, whereby the learned Single Judge found that the notice to stop construction issued by the Secretary of the Municipality under rule 16 of the Kerala Municipality Building Rules , 2019, is unsustainable, and further held that, Exhibit P9 stop memo, and Exhibit P12 order passed by the Secretary of the Municipality, cancelling the permit issued to the writ petitioner/1st respondent viz.,ATC Telecom Infrastructure Pvt. Ltd., a company engaged in the business of providing telecom infrastructure, cannot be sustained under law, and accordingly the said orders were set aside. The legality and correctness of the said findings are challenged in the appeal. Brief material facts for the disposal of the writ appeal are as follows;

2. The first respondent company, for construction of a telecom tower within the limits of the 1st appellant Municipality submitted an application before the Secretary of the Municipality and has secured Exhibit P2 Site approval and permit after due site inspection and perusal of the relevant documents to construct the tower on the roof of a building owned by on Akbar. According to the 1st respondent / writ petitioner, the owner of the property in which the construction was sought to be put up is paying property tax to the building in question in accordance with the provisions of the Kerala Municipality Act , 1994 and the Rules for the purpose. It is also submitted that No Objection Certificate from the owners of the property abutting the property, where the tower is proposed to be constructed, is also secured, which is produced as Exhibit P8(a) along with the writ petition.

3. While the construction work was going on, Exhibit P9 stop memo dated

28.10.2020 was served on the writ petitioner and according to the writ petitioner, the said stop memo issued under rule 16 of the Kerala Municipality Building Rules , 2019, cannot be sustained because none of the parameters provided under rule 16 were available so as to enable the Secretary of the Municipality to issue stop memo and consequential proceedings.

4. Apparently the issue was adjudicated by the Secretary of the Municipality after providing an opportunity hearing, and Exhibit P12 order was passed, by which, the permit granted to the petitioner was revoked. The sum and substance of the contention before the writ court was that the entire action of the Secretary of the Municipality is arbitrary and illegal, liable to be interfered with under Article 226 of the Constitution of India.

5. A counter affidavit was filed by the appellants before the writ court, wherein it was contended that rule 16 of the Kerala Municipality Building Rules , 2019 permits the Secretary of the Municipality to revoke the building permit, if the same happened to be issued on misrepresentation of facts or law.

6. The sum and substance of the contention advanced by the appellants was that Exhibit P2 permit was granted for construction of a tower in the property in Sy.No.728/5-2 of Kakkanad Village owned by one K.S.Akbar. But later complainants were received against Exhibit P2 permit and an enquiry was conducted by the Municipal officials in that regard. On enquiry it was found that two buildings were constructed by two property owners after securing two permits and unauthorisedly clubbed into a single building by providing a common staircase in the middle of the said two buildings, and the construction of the mobile tower is being carried on the roof of the said building.

7. Case put forth by the appellants is that the said facts have been suppressed by the writ petitioner while obtaining Exhibit P2 building permit. In the said circumstances alone, the Secretary was constrained to issue Exhibit P9 stop memo . It was also s