The petitioner has filed this writ petition seeking the following reliefs:- i) Issue a writ in the nature of mandamus commanding the 1st and 2nd respondents to ensure that no mobile telephone tower is maintaining on the terrace portion of Sree Lalitha Heights Apartment without the permit under Rule 139 of Kerala Municipality Building Rules and without consent from all the apartment owners of the above said apartment.
ii) Issue a writ in the nature of mandamus commanding respondents 1 and 2 to remove the telephone tower erected on the terrace portion of Shree Lalitha Heights Apartment complex, within such time as may be fixed by this Hon'ble Court.
iii. Issue such other orders, writs or directions as are deemed fit by this Hon'ble Court.
iv. award cost of this proceedings to the petitioner.
2. The petitioner is a society of residents or association comprising of apartment owners in Sree Lalitha Heights Apartments situate at Chembukkavu within the W.P.(C) No.29995 of 2014-Y -:2:-
Thrissur Corporation. According to the petitioners, the developers, respondents 3 and 4 have permitted the erection of a mobile telephone tower of the second respondent, on the premises of the apartment owners. It is contended that, the tower has been erected without obtaining any permission from the owners of the building or Municipal Corporation. The petitioner has therefore sought for removal of the telephone tower.
3. Advocate C.S.Ramanathan appears for the second respondent. The learned Counsel has placed reliance on the judgment of this Court dated 22.05.2013 in W.P.(C) No.183 of 2011. In the said writ petition, the petitioner therein had challenged a similar action of putting up a tower for mobile connectivity. Having considered the rival contentions, this Court has held in paragraphs 5 and 6 of the judgment as follows:-
It is not is dispute that the 4th respondent is a Government Company wholly owned by Government of India. It is designated as a telegraph authority as defined under Section 3(6) of the Indian Telegraph Act. Licence W.P.(C) No.29995 of 2014-Y -:3:-
had been issued by the Central Government in favour of the 4th respondent under Section 4 of the Telegraph Act and necessary notification in that regard had been issued. When the 4th respondent is a telegraph authority, it is entitled to exercise the power under Section 10 of the Indian Telegraph Act. The Indian Telegraph Act gives absolute power on the telegraph authority to place and maintain a telegraph line under, over, along and across any immovable property. This power can be exercised even without any restriction imposed under the Rules.
6. Such being the position, I do not think that it is incumbent on the 4th respondent to seek permission from the local authority to put up any structure to enable telecommunication including putting up of mobile tower in any immovable property. If at all any person has an objection he has to submit his objection before the District Magistrate in terms of Section 10(d) of the Telegraph Act.
In view of the above finding, with which I am in respectful agreement, I am not satisfied that the petitioner is entitled to any of the reliefs sought. This writ petition fails and is therefore dismissed.
Sd/- K.SURENDRA MOHAN, JUDGE kkj