IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 17TH MARCH 2008 / 27TH PHALGUNA 1929 WP(C).No. 8221 of 2008(D) ------------------------- PETITIONER: ------------ BHARTI AIRTEL LTD FORMERLY KNOWN AS BHARTI TELE-VENTURES LIMITED, S.L.AVENUE, N.H.BYPASS, KUNDANNUR, KOCHI REPRESENTED BY ITS HEAD-LEGAL, SRI.P.JAYABAL MENON. BY ADV. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PANCHAYATS, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF MUNICIPALITIES, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI.K.J.MOHAMMED ANZAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 8221 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17th day of March, 2008 JUDGMENT In this writ petition the petitioner seeks a general direction against the respondents namely the State, Director of Panchayats and the Director of Municipalities to issue appropriate directions to the local authorities coming within their domain to issue use certificate to the petitioner, a company who are providers of Mobile telephone services all over Kerala, under Rule 142(2) of the Kerala Municipalities Building Rules once it is seen that the construction of the towers is in accordance with the building permit and the provisions of the Kerala Municipalities Building Rules 1999. The grievance of the petitioner who applied to various local authorities for use certificates under Rule 142(2) is that though the constructions made by the petitioner was strictly in conformity with the Building permits and did not violate the relevant building Rules, the local authorities are insisting that petitioner should produce consent from the Pollution Control Board also as a condition precedent for issuing use certificates. Ext.P1 series WPC.No.8221/08 2 produced by the petitioner will show that the petitioner's complaint is correct. The question therefore is whether the insistence of the local authorities that the petitioner should produce consent letter from the Pollution Control Board before issuing use certificates under Rule 142 (2) is justified. In fact it is seen that the petitioner made a request to the Public Information Officer in the Directorate of Panchayats for a clarification as to whether clearance from the Pollution Control Board is required for getting ownership certificate or use certificate for telephone communication tower site as per the Rules. The Information officer informed the petitioner under Ext.P12 that such a clearance is not necessary. A perusal of the Rules will also show that clearance from the Pollution Control Board is not necessary for issuance of a use certificate in terms of Rule 142(2). Rule 142(2) clearly says that if the Secretary of the Municipality is satisfied that the work has been completed as per permit use certificate in Appendix-H, use certificate shall be issued. According to the petitioner, for want of use certificate petitioner is unable to commission large number of towers in various parts of the State and that electricity connection also is not being WPC.No.8221/08 3 granted by the authorities. 2. Learned Government Pleader on instructions would submit that the only issue which is currently pending before the Government is the impact of energisation of mobile telephone towers on the health of the public inhabiting the neighbourhood of the towers. He has been instructed to submit also that an expert committee has been constituted by the Government under the chairmanship of the Chief Town Planner. According to me, the constitution of the committee under the chairmanship of the Chief Town Planner to have a study of the impact of the energisation of the towers on the health of people living in proximate areas has nothing directly to do with the issue raised by the petitioner in this case. 3. Having considered the materials placed on record and gone through the statutory provisions, I am of the view that the petitioner is entitled to the relief sought for. Writ Petition is allowed issuing the following directions: The respondents are directed to issue appropriate instructions to the local authorities such as Panchayats, Municipalities and WPC.No.8221/08 4 Corporations coming within their domains to issue use certificate to the petitioner under Rule 142(2)of the Kerala Municipalities Building Rules once it is seen that the claims in the completion certificates submitted in Form E and F contemplated by Rule 142(1) that the construction has been strictly in accordance with the permit and Rules and that there is a structural stability certificate issued by a competent structural engineer in respect of the constructions ( in cases where towers are constructed upon the buildings), that local authorities shall issue use certificates under Rule 142(2) of the KMBR without insisting on no objection certificate from the Pollution Control Board. The petitioner is permitted to produce copies of this judgment before the local authorities to whom they have applied for use certificates and the local authorities will consider the applications for use certificate in the light of what is stated herein above. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.8221/08 5