Panchayat:Repo18/Law Manual Page0330

MUNICIPALITY BUILDING RULES, 1999 (KERALA) -- R. 16 -- Revocation of the building permit - - Grounds for -- Held, even where the Secretary is satisfied that the ingredients of R. 16 exist necessitating

of a permit, such suspension or revocation can be done only after giving an opportunity to the owner to explain and after considering his explanation -- Government cannot direct Secretary to revoke building permit. - Mukundan Menon M. (Deceased) and Others v. State of Kerala and Others – 2012 (4) KHC 489 : 2012 (4) KLT 640 : 2012 (4) KLJ 647 : ILR 2012 (4) Ker. 661.

MUNICIPALITY BUILDING RULES, 1999 (KERALA) --R.110,R.2(1)(aq), R.2(1)(0) - Definitions of the terms 'floor', 'ground floor and basement floor when harmoniously construed will indicate 'basement floor' cannot normally be considered as a floor of the building as observed in the decision in Tripunithura Municipality (cited supra). The term 'High Rise Building' connotes the idea of a building raised from the level of a ground or street. This concept when construed along with the provisions in R.110, which permits building having height up to 15 meters from the ground level need not be included in the category of 'High Rise Buildings', will only indicate that the restriction with respect to number of floors need to be confined only with respect to ground floor and other floors above the ground floor. Therefore it is held that while categorising 'High Rise Building' the basement floor of any building which situate fully below the average ground level need not be reckoned. It is declared that for the purpose of R.110 while reckoning the number of floors the authorities concerned should exempt 'basement floor' if it is a floor intended at a level below the average level of the ground contiguous to the building. - Dorphy P.D. (Dr.) v. State of Kerala and Others - 2012 (4) KHC 193 : 2012 (4) KLT 264 : 2012 (4) KLJ 390 : ILR 2012 (4) Ker. 440.

In Posidon Infrastructure Pvt. Ltd. v. Sub Inspector of Police and Others, an application for permit to construct mobile tower was submitted. It was held that based on the consent letter of the owner of the property, permit for erection of mobile tower can be granted. The formalities like registration of lease deed for leasing out the premises can be done after construction of tower. It was also held that a third party cannot obstruct the erection of mobile tower for the reason that lease deed is not registered, hence Municipality could not have issued permit. In such cases, Police protection can be granted. – 2012 (3) KHC 455 DB. [Essar Telecom Infrastructure (P) Ltd. v. State of Kerala, 2011 (2) KHC 171 : [2011 (2) KLT 516: 2011 (2) KLJ 335; (Paras 9, 12); Essar Telecom Infrastructure v. C./. of Police, Angamaly, 2010 (2) KHC 445: 2010 (2) KLT 762 : ILR 2010 (2) Ker, 592; (Para 16); Vodafone Essar Mobile Services Ltd. v. State of UP and Others, 2011 (89) ALR 752; (Para 10) Referred to:).

In Essar Telecom Infrastructure (P) Ltd. v. State of Kerala, with regard to the issue of erection of mobile tower, the Court held as follows: "The instance of any health hazards has to be established with reference to tangible materials and evidence has to be let in; for which, it could be said that the matter may require to be adjudicated before the Civil Court. But then, it is for the concerned party to plead and prove as to the specific threat to the health hazards with reference to reliable materials and also as to the alleged infringement of any statutory prescription or violation of the norms prescribed. It is not for the petitioners to prove a 'negative aspect' that there is no health hazard. When the petitioners have prima facie established their right to construct and operate the mobile transmission tower by obtaining all the required licences, it is for the objectors, if any, to prove infraction of their right, if any, and to show the disentitlement of the petitioners to establish a mobile tower, by resorting to the remedy of approaching the licensing authorities or to approach the Civil Court or by establishing their right in the writ petition for police protection. If any such objection is found prima facie established, this Court can certainly decline to grant police protection or in case the respondent fails to prove their right by documentary evidence, could still reserve his right to approach the Civil Court, as the burden to prove any such infraction is on the objector who asserts any such right." - Posidon Infrastructure Pvt. Ltd. v. Sub Inspector of Police and Others - 2012 (3) KHC 455 DB.

In the case of construction of buildings in small plots it was held that only one building of maximum three floors shall be permitted to be constructed and total plinth area shall not exceed 150 Sq.metres. - Premajan K. v. Corporation of Kozhikode and Others – 2012 (1) KHC 684.

In Karamby's case another learned judge of this Court observed that even though the word "action" under Section 563 of the Kerala Municipality Act includes an omission as well, in order for the omission to qualify to be an act such omission must certainly be an illegal or culpable omission and that every omission cannot be reckoned to be an action. The learned judge further observed that inaction on the part of the Municipality in not taking action against the relevant portion cannot be reckoned to be culpable or illegal omission so as to attract the bar under the Section. We are in respectful agreement with the above interpretation placed on the section. Going by the plaint averments as well as averments. in the application for temporary injunction the Court below was not justified in holding that it was debarred by Section 563 of the Kerala Municipality Act from going into the said question. If as a matter of

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