IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 31ST AUGUST 2010 / 9TH BHADRA 1932 WP(C).No. 19835 of 2010(D) -------------------------- PETITIONER: ------------- T.A.JOLLY, S/O. AUGUSTINE, THAIKKOOTTATHIL VEEDU, KADAMMAKUDY VILLAGE, KOTHAD.P.O., ERNAKULAM DISTRICT. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): --------------- 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 2. KADAMAKUDY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, PIZHALA, ERNAKULAM, COCHIN-27. 3. THE SECRETARY, KADAMAKKUDY GRAMA PANCHAYAT, PIZHALA, ERNAKULAM, COCHIN-27. 4. M/S. INDIA TELECOM INFRA LIMITED, 2ND FLOOR, CHALLARCHERY TOWER, SEA PORT AIRPORT ROAD, KAKKANAD, KOCHI, REPRESENTED BY ITS AUTHORIZED PERSON, MR. BOBY SEBASTIAN, CIRCLE HEAD. 5. M.F.RANJAN, MUZHANGUMTHARA HOUSE, KOTHAD.P.O., KOCHI-27. 6. M.S.PRASAD, VICE PRESIDENT, KADAMAKUDY GRAMA PANCHAYAT, PIZHALA, ERNAKULAM COCHIN-27. ADV. SRI.K.M.VARGHESE FOR R2,3 & 6 SRI.P.SATHISAN FOR R4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN W.P.(C)No.19835/10 PETITIONER'S EXTS: EXT.P1: TRUE COPY OF ORDER DATED 2.2.10 ISSUED BY THE 3RD RESPONDENT. EXT.P2: TRUE COPY OF COMPLAINT DATED 22.1.10 FILED BY THE PETITIONER BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVT.INSTITUTIONS. EXT.P3: TRUE COPY OF ORDER DATED 21.4.10 ISSUED BY THE OMBUDSMAN FOR LOCAL SELF GOVT.INSTITUTIONS. EXT.P4: TRUE COPY OF ORDER DATED 30.4.10 ISSUED BY THE 1ST RESPONDENT IN APPEAL NO.232/10. EXT.P5: TRUE COPY OF ORDER DATED 11.6.10 ISSUED BY THE 3RD RESPONDENT. RESPONDENTS' EXTS: EXT.R4(A): COPY OF GAZETTE NOTIFICATION DATED 24.5.1999. TRUE COPY T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.19835 Of 2010 ----------------------------------------------------- DATED THIS THE 31st DAY OF AUGUST, 2010 JUDGMENT This Writ Petition is filed by the petitioner challenging Exhibit P4 order passed by the Tribunal for Local Self Government Institutions. The petitioner is a resident in Ward No.7 of Kadamakudy Grama Panchayat. The objection is regarding the erection of a tower by the 4th respondent in the property owned by the 5th respondent. Mainly it is contended that the erection of the tower will cause health hazard and the petitioner will be under the threat posed due to the erection of the tower. It is pointed out that the local residents objected to the erection of the tower and ultimately the matter was considered by the Panchayat and the Panchayat passed Exhibit P1 order refusing to grant permit. Some allegations have been raised against the 6th respondent also. It is unnecessary for me to adjudicate such disputes in this Writ Petition. 2. Presently, the Tribunal's order is under challenge by the petitioner in the light of the fact that the Tribunal has wrongly interpreted the relevant provision, namely, Rule 143 of the Kerala W.P.(C)No.19835/10 -2- Municipality Building Rules. A reading of the order shows that the Tribunal was of the view that as per Rule 141(8) of the Kerala Municipality Building rules, it is for the Secretary to pass appropriate orders on the application for permit for construction of the telecommunication tower within 30 days from the date of receipt of the application. The impugned order was passed on unsustainable grounds, going by the view taken by the Tribunal. According to the Tribunal, as no order was passed within the period prescribed under Rule 141(8) of the Kerala Municipality Building Rules, the appellant before the Tribunal has become entitled to the benefit of the last proviso to Rule 143 of the Kerala Municipality Building Rules. 3. The learned counsel appearing for the petitioner submitted that if at all the Tribunal was of the view that the communication rejecting the permit was not sustainable, the mater should have been directed to be looked into by the authorities of the Panchayat itself by way of reconsideration. It is further pointed out that the 3rd proviso to Rule 143 will not apply to the facts of the case also. Rule 143 of the Kerala Municipality Building Rules reads thus: W.P.(C)No.19835/10 -3- “143. Power of Secretary to regularise certain constructions.- The Secretary shall have the power to regularise construction or reconstruction or addition or alteration of any building or digging of any well (or telecommunication tower or any structure or land development or any work for which permission of the Secretary is necessary under this rule) commenced, being carried on or completed without obtaining approved plan or in deviation of the approved plan: Provided that such construction or reconstruction or addition or alteration of any building or digging of any well shall not be in violation of any of the provisions of the Act or these Rules. Provided further that such power shall not relieve the Secretary of his responsibility in detecting and preventing such work and in taking other actions as per these rules: Provided also that where the construction or work was commenced, being carried on or completed after the statutory period specified in Rules 15, 97, 126 or 141 and as per rules, such construction or work shall be considered as duly permitted and not one requiring regularisation.” Therefore the proviso will be attracted in a case where the construction of work was commenced or being carried on or completed after the statutory period specified in Rules 15, 97, 126 or 141. The benefit can be granted only in a case where the W.P.(C)No.19835/10 -4- Tribunal or the authorities concerned are satisfied that the construction has actually commenced or being carried on or completed after the statutory period. Herein the learned counsel for the petitioner pointed out that there was no material before the Tribunal to conclude that the construction had commenced or being carried on at any time before the passing of Exhibit P4 order. 4. The learned counsel for the 4th respondent supported the order passed by the Tribunal. It is pointed out that the files were perused by the Tribunal also. 5. Evidently, the Tribunal has only technically applied the provisions of the 3rd proviso to Rule 143 of the Rules without discussing the relevant facts to be proved in support of the said statutory provision. Unless the basic facts are established and the Tribunal is satisfied that the basic facts thus established are sufficient to invoke the 3rd proviso, it cannot be said that the Tribunal was right in concluding straightaway that the last proviso to Rule 143 is attracted to the facts of this case. In the absence of such a finding, I am of the view that the view taken by the Tribunal cannot be supported. W.P.(C)No.19835/10 -5- 6. Arguments were raised by both sides on various aspects of the matter. It is unnecessary for me to go into the question whether the application for permit is liable to be granted or not, since it is upto the Panchayat to take a decision in the matter. 7. Heard the learned counsel appearing for the Panchayat. It is submitted that the Panchayat will take a decision in the matter within one month. 8. In that view of the matter, Exhibit P4 order is quashed. The Writ Petition is allowed. There will be a direction to the competent authority of the Panchayat to reconsider the application already submitted by the 4th respondent after hearing the petitioner and the 4th respondent or any other complainants before the Panchayat in accordance with law. Appropriate decision will be taken within a period of one month from today. The Writ Petition is disposed of as above. T.R.RAMACHANDRAN NAIR, JUDGE. dsn