IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 10TH NOVEMBER 2010 / 19TH KARTHIKA 1932 WP(C).No. 14863 of 2010(G) ----------------------- PETITIONER : -------------------- PUZHAKKATTIRI GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PUZHAKKATTIRI, MALAPPURAM DISTRICT. BY ADV. SRI.K.K.MOHAMMED RAVUF RESPONDENT : ---------------------- WIRELESS T.T. INFO SERVICES LTD., J & CO. CHAMBERS, MANIMALA ROAD, EDAPPALLY, REPRESENTED BY POWER OF HOLDER, THE SENIOR PROJECT MANAGER, SUDEVAN M.D. BY ADV. SRI.A.MOHAMED MUSTAQUE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 14863 of 2010(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPLICATION FILED BY THE RESPONDENT. EXT.P2 : COPY OF THE G.O.(G) NO. 3540/04. EXT.P3 : COPY OF THE COMPLAINT TO THE PETITIONER. EXT.P4 : COPY OF THE STOP MEMO. EXT.P5 : COPY OF THE CIRCULAR DATED 10.8.2009. EXT.P6 : COPY OF THE NOTICE ISSUED TO THE RESPONDENT. EXT.P7 : COPY OF THE ORDER OF THE PANCHAYATH. EXT.P8 : COPY OF THE WRITTEN STATEMENT. EXT.P9 : COPY OF THE ORDER OF THE TRIBUNAL. RESPONDENT'S EXHIBITS: EXT.R1(a) : COPY OF THE EXEMPTION ORDER ISSUED BY THE GOVERNMENT DATED 11.10.04. EXT.R1(b) : COPY OF THE MEMBERSHIP CERTIFICATE OF INSTITUTE OF ENGINEERS (INDIA). //TRUE COPY// P.A. TO JUDGE Mn P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 14863 OF 2010 -------------------------- Dated this the 8th day of November, 2010 J U D G M E N T Ext.P9 order passed by the Tribunal for Local Self Government Institutions, Thiruvananthapuram on 12.4.2010 allowing the appeal filed by the respondent from Ext.P7 order passed by the petitioner grama panchayat is under challenge in this writ petition. The brief facts of the case are as follows: 2. The respondent submitted the original of Ext.P1 application dated 15.10.2009 to the petitioner grama panchayat for the issuance of a building permit to put up a mobile base transceiver station. The said application was rejected by Ext.P7 order dated 23.2.2010 on the ground that a large number of residents have filed complaints expressing danger to their health in the event of the mobile base transceiver station being constructed and commissioned. Aggrieved thereby, the respondent filed Appeal No.199 of 2010 before the Tribunal for Local Self Government Institutions, Thiruvananthapuram. By Ext.P9 order, the Tribunal allowed the appeal, set aside Ext.P7 order and declared that the respondent is entitled to the benefit WPC No.14863/2010 2 of the last proviso to rule 143 of the Kerala Municipality Building Rules, 1999 (hereinafter referred to as “the rules” for short) as no order was passed by the Secretary of the petitioner Grama Panchayat within the period specified in sub rule (8) of rule 141 of the rules. The petitioner contends that sub rule (8) of rule 141 of the rules does not stipulate that on the expiry of 30 days from the date on which the application for building permit is submitted, a permit will be deemed to have been issued. It is also contended that the last proviso to rule 143 has no application as the construction of the mobile base transceiver station had not commenced even after the expiry of the period of 30 days mentioned in sub rule (8) of rule 141. 3. The respondent has filed a counter affidavit wherein it is stated that pursuant to Ext.P9 order passed by the Tribunal, the mobile base transceiver station has been constructed and commissioned. It is also stated that the mobile base transceiver station has been constructed after complying with all the statutory norms. WPC No.14863/2010 3 4. I heard Sri. K.K.Mohammed Ravuf, learned counsel appearing for the petitioner and Sri. A.Mohamed Mustaque, learned counsel appearing for the respondent. I have also gone through the pleadings and the materials on record. Sub rule (8) of rule 141 of the rules, which applies to Grama Panchayats also, reads thus: “(8) The Secretary shall, if convinced of the boundaries and ownership of the plot, plans and drawings and genuineness of the certificates, issue permit not later than 30 days from the date of receipt of the application.” 5. Sub rule (8) of rule 141 of the rules does not in express terms stipulate that after the expiry of 30 days from the date of the application, if the Secretary does not either grant or reject the application, a permit will be deemed to have been issued. Section 235G of the Kerala Panchayat Raj Act, 1994, (hereinafter referred to as the “Act” for short) stipulates that the Secretary shall not grant permission to construct or re-construct a building unless and until he has approved the site on an application made under section 235F. Section 235-I of the Act WPC No.14863/2010 4 stipulates that within thirty days after the receipt of an application made under section 235F for approval of a site or of any information, or further information required under any rules or bye-laws, the Secretary shall by an order in writing either approve or refuse to approve the site and shall intimate the fact to the applicant. The respondent has no case that it had got the site approval for commencement of the construction or that such approval obtained was in force on the date on which the original of Ext.P1 application for issuance of permit was submitted. Section 235J of the Act stipulates that within thirty days after the date of receipt of an application made under section 235F for permission to execute any work or of any information or of document or further information or documents required under any rules or bye-laws, made under the Act, the Secretary shall by an order in writing either grant or refuse to grant such permission on any of the grounds mentioned in section 235L and shall intimate the fact to the applicant in writing. Section 235K of the Act stipulates that where, within the WPC No.14863/2010 5 period specified in section 235I or 235J, as the case may be, the Secretary has neither given nor refused approval of a building site, or permission to execute any work, as the case may be, the Village Panchayat shall be bound on the written request of the applicant, to determine whether such approval or permission should be given or not. Sub section (2) of section 235K of the Act stipulates that whether the Village Panchayat does not, within one month from the date of receipt of such written request, determine whether such approval or permission should be given or not, such approval or permission shall be deemed to have been given, and the applicant may proceed to execute the work, but it shall not be so as to contravene any of the provision of the Act or any rules or bye-laws made thereunder. 6. It is evident from the pleadings and the materials placed on record that the respondent had not obtained approval of the site and without the same, applied for a building permit. The explanation offered by the respondent is that in view of rule WPC No.14863/2010 6 140A of the Kerala Municipality Building Rules, 1999 no site approval is necessary for the construction of telecommunication towers, telecommunication pole structures or accessory rooms essential for such service. Even assuming that rule 140 A of the Kerala Municipality Building Rules can have over riding effect over section 235G of the Act, it is evident from the materials on record that the respondent had not requested the grama panchayat in writing in terms of section 235K of the Act to determine whether the building permit applied for should be issued. In the absence of any such pleading or proof to that effect, it has to be necessarily held that the stipulation in sub section (2) of section 235K of the Act does not operate and the respondent cannot rely on any deemed permission or approval in terms of the said provision. I am therefore of the considered opinion that the decision taken by the Tribunal on the appeal filed by the respondent from Ext.P7 order cannot be sustained. The Tribunal has relied on rule 143 of the rules to allow the appeal. Rule 143 of the rules deals with regularisation of un- WPC No.14863/2010 7 permitted constructions and deviations. In view of the clear stipulation in section 235J of the Act, the respondent could not have commenced the construction of the mobile base transceiver station. Therefore reliance placed by the Tribunal on rule 143 of the rules is also misconceived. In such circumstances it has to be necessary to be held that Ext.P9 order passed by the Tribunal for Local Self Government Institutions cannot be sustained. In the result, I allow the writ petition, quash Ext.P9 order and dismiss Appeal No.199 of 2010 filed by the respondent from Ext.P7 order. It will be open to the Secretary of the petitioner Grama Panchayat to take necessary follow up steps in accordance with law. P.N.RAVINDRAN, (JUDGE) vps 10.11.2010 After the judgment was delivered dismissing the writ petition, Sri. Mohammed Mustaque, learned counsel for the WPC No.14863/2010 8 respondent submitted that he may be given another opportunity to address arguments. The writ petition was accordingly posted to 10.11.2010. Relying on the unreported decision of a learned single Judge of this Court in W.P.(C) No.15605 of 2008 and government circular dated 13.3.2009, the learned counsel contended that on the expiry of 30 days from the date of submission of the application for building permit, if orders have not been passed on the application, the applicant is entitled to a deemed permit. I am afraid the said contention cannot be accepted. The Government circular dated 13.3.2009 does not state that on the expiry of 30 days from the date of receipt of the application if a permit is not issued it will be deemed to have been issued. In any case, the circular cannot over ride the provisions contained in the law enacted by the State legislature. Sub section (2) of section 235K of the Act stipulates that where the Village Panchayat does not, within one month from the date of receipt of a written request, determine whether the approval or permission should be given or not, the approval or permission WPC No.14863/2010 9 shall be deemed to have been given, and the applicant may proceed to execute the work, but it shall not be so as to contravene any of the provisions of the Act or any rules or bye- laws made thereunder. In the light of the statutory provisions contained in section 235-I and 235K of the Act, the circular cannot have any efficacy. As noticed earlier, the committee of the panchayat is bound to exercise the power under section 235 K only after a written request is made by the applicant for building permit in cases where the Secretary of the local authority has not given or refused approval of the site or permission to execute the work within 30 days of receipt of the application. In the instant case, the petitioner has not made any such application to the committee of the panchayat. I am therefore not persuaded to agree with the submission of the learned counsel for the respondent that on the expiry of 30 days from the date of submission of the application for building permit, as orders had not been passed on the respondent's application for building permit, the respondent was entitled to a WPC No.14863/2010 10 deemed permit. A permit can be deemed to have been issued only after the applicant makes a written request to the committee of the panchayat in terms of section 235K of the Act and the committee of the panchayat does not within one month from the date of receipt of such a written request determine whether the building permit should be given or not. I therefore find no grounds to take a view different from the one already taken by me. P.N.RAVINDRAN, (JUDGE) vps WPC No.14863/2010 11 WPC No.14863/2010 12 WPC No.14863/2010 13 WPC No.14863/2010 14