IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 17363 of 2010(U) -------------------------- PETITIONER: ------------- WIRELESS-TT INFO SERVICES LIMITED, REGISTERED OFFICE AT 5TH FLOOR, GOWRA TRINITY, CHIRAN FORT LANE, BEGUMPET, SECUNDERABAD-500003 AND CIRCLE OFFICE AT J & CO.CHAMBERS, MANIMALA ROAD, EDAPALLY, COCHIN-24, THROUGH ITS AUTHORIZED SIGNATORY MR.SUDEVAN V.D. BY ADV. SRI.A.MOHAMED MUSTAQUE SMT.LAKSHMI RAJAN RESPONDENT(S): --------------- 1. THE SECRETARY, CHERTHALA MUNICIPALITY, CHERTHALA, ALAPPUZHA. 2. B.VINOD KUMAR, S/O.M.K.BALABADRAN, KRISHNA VILASAM, C.M.C.-18, CHERTHALA, ALAPPUZHA DISTRICT. 3. A.K.APPUKUTTAN, S/O.V.R.KUMARAN, ASARIVELIYIL, C.M.C.-18 CHERTHALA, ALAPPUZHA DISTRICT. 4. THE OMBUDSMAN FOR LOCAL-SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. ADV.SRI J.OM PRAKASH FOR R1 SRI.SATHISH NINAN FOR R2 SRI.SANTHOSH MATHEW FOR R2 SRI.K.RAMANATHAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.17363/10 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE PERMIT ISSUED BY THE 1ST RESPONDENT DATED 20.11.08. EXT.P2: TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 1ST RESPONDENT DATED 28.12.09. EXT.P3: TRUE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE 4TH RESPONDENT DATED 15.9.09. EXT.P4: TRUE COPY OF THE ORDER DATED 3.3.10 ISSUED BY THE 1ST RESPONDENT. EXT.P5: TRUE COY OF THE REPLY GIVEN BY THE PETITIONER TO THE 1ST RESPONDENT DATED 21.4.10. EXT.P6: TRUE COPY OF THE PLAN SUBMITTED BY THE PETITIONER. EXT.P7: TRUE COPY OF THE ACKNOWLEDGEMENT OF EXT.P6 DT.21.4.10. EXT.P8: TRUE COPY OF SHOW CAUSE NOTICE ISSUED BY THE 1ST RESPONDENT DT.10.5.10. EXT.P9: TRUE COPY OF THE REPLY NOTICE GIVEN BY THE PETITIONER DT.20.5.10. EXT.P10: TRUE COPY OF THE ORDER PASSED BY THE 4TH RESPONDENT DT.22.4.10. RESPONDENTS' EXTS: EXT.R3(1): TRUE COPY OF THE SETTLEMENT DEED NO.4911/03 OF CHERTHALA SUB REGISTRY ISSUED FROM THE 2ND RESPONDENT. EXT.R3(2): TRUE COPY OF THE POSSESSION CERTIFICATE NO.5065/08 ISSUED FROM THE CHERTHALA SOUTH VILLAGE DATED 18.11.08. TRUE COPY T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.17363 of 2010 ----------------------------------------------------- DATED THIS THE 6th DAY OF AUGUST, 2010 JUDGMENT The petitioner is a mobile tower infrastructure company. The Writ Petition is filed challenging Exhibit P10 order. The petitioner also seeks for a direction to the 1st respondent to consider the application submitted by the petitioner for regularisation of the erection of the tower in re-survey No.39/2 of Cherthala South Village. Herein, going by the averments in the Writ Petition, it is seen that a building permit was granted by the Municipality for erecting the tower in Re-survey No.39/19 of Cherthala Village. The petitioner completed the construction and submitted application for occupancy certificate. 2. In the meanwhile, the 3rd respondent filed a complaint before the learned Ombudsman alleging that the tower was erected in re-survey No.39/2. After receipt of the notice, the petitioner also appeared in the matter. After conducting proper survey, it was found that the tower is erected in Re-survey No.39/2 instead of 39/19. The properties are lying side by side. W.P.(C)No.17363/10 -2- 3. Thereafter, the learned Ombudsman passed an order, Exhibit P10 whereby the Secretary of the Municipality was directed to initiate action under Section 406 of the Kerala Municipality Act to remove the unauthorised construction. It was also directed that till further orders are passed, the steps for regularisation also may be stopped. 4. Heard the learned counsel appearing for either side. It is submitted by the learned counsel for the petitioner that the petitioner has already filed an application for regularisation before the Municipality and the Municipality may be directed to consider the same. The operative portion of the order passed as per Exhibit P10 really restrains the power of the Municipality to consider the application for regularisation. The learned counsel appearing for the 3rd respondent submitted that the application for regularisation can be considered after hearing the 3rd respondent also. The 2nd respondent is also having no objection regarding the same. 5. In that view of the matter, Exhibit P10 order so far as it restricts the power of the Municipality to consider the application for regularisation is vacated. The Municipality will W.P.(C)No.17363/10 -3- consider the matter after hearing all the parties including respondents 2 and 3, within a period of one month from the date of receipt of a copy of this judgment. Till orders are passed on the applications for regularisation, the order passed under Section 406 of the Kerala Municipality Act will be kept in abeyance. It is clarified that the proceedings before the learned Ombudsman can be continued. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn