IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 37211 of 2009(V) ---------------------------------------- PETITIONER(S): ------------------------- 1. BINU, AGED 39 YEARS, S/O.PATHROSE, NELLIKKAMURIYIL, THAMMANIMATTOM KARA, AIKARANADU SOUTH VILLAGE, ERNAKULAM. 2. JIJO CHACKO, AGED 25 YEARS, S/O.CHACKO, THOTTAPPILLY MOLAYIL, THAMMANIMATTOM KARA, AIKARANADU SOUTH VILLAGE, ERNAKULAM. BY ADVS.MR.PAUL MATHEW (PERUMPILLIL), MR.P.V.SREENIJIN, SMT.K.B.SONY, MR.PRASUN.S, MR.SANU.S.PANICKER, MR.K.T.BOSCO. RESPONDENT(S): ---------------------------- 1. INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, N.H.47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS PARTNER SHIBU MATHEW, S/O.MATHEW, PALATHRA HOUSE, THURUTHY.P.O, CHANGANASSERY, KOTTAYAM DISTRICT. 2. POOTHRIKKA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, POOTHRIKKA GRAMA PANCHAYAT. 3. BINOY, AGED 30 YEARS, S/O.KURIAKOSE, OLIKUZHY VEEDU, THAMMANIMATTOM KARA, AIKARANADU SOUTH VILLAGE. 4. GOVERNMENT OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF TELECOMMUNICATION AND INFORMATION TECHNOLOGY, DEPARTMENT OF TELECOMMUNICATION, SANCHAR BHAVAN, 20, ASHOKA ROAD, NEW DELHI-110001. R1 BY ADV.MR.V.PHILIP MATHEW R2 BY ADVS. MR.SAJEEV KUMAR K.GOPAL, SMT.AMBIKA RADHAKRISHNAN. R4 BY ADV. MR.T.P.M.IBRAHIM KHAN,ASST.SOLICITOR GENERAL OF INDIA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.37211/2009 V APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND THE NEARBY RESIDENTS OF THE PROPERTY. P2: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS AND THE NEARBY RESIDENTS OF THE PROPERTY. P3: COPY OF THE ORDER DTD. 4/12/2009 IS ISSUED BY THE 2ND RESPONDENT PANCHAYAT. P4: COPY OF ORDER DTD. 6/10/2009 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVT. INSTITUTION. P5: COPY OF THE STUDY REPORT PUBLISHED IN ELECTRONIC MEDIA REGARDING THE CELL TOWER RADIATION. P6: COPY OF THE ORDER DTD. 24/08/09 PASSED BY THE 2ND RESPONDENT. P7: COPY OF THE DECISION DTD. 27/07/09 TAKEN BY THE PANCHAYAT COMMITTEE OF 2ND RESPONDENT PANCHAYAT. RESPONDENT'S EXHIBITS: R1(A): COPY OF THE INTERIM ORDER DTD. 12/08/09 PASSED BY THIS HON'BLE COURT IN WPC.NO.23020/09. R1(B): COPY OF THE JUDGMENT DTD. 25/08/09 PASSED BY THIS HON'BLE COURT IN WP.NO.23020/09. R1(C): COPY OF THE INTERIM ORDER DTD. 27/08/09 PASSED BY THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.734/09. R1(D): COPY OF THE ORDER DTD. 16/10/09 PASSED BY THE MUNSIFF COURT, KOLENCHERRY N I.A.NO.289/09 IN O.S.NO.35/09. R1(E): COPY OF THE LETTER DTD.11/09/06 ISSUED BY THE REGIONAL CANCER CENTRE, THIRUVANANTHAPURAM TO THE KUDAPPANAKUNNU GRAMA PANCHAYAT. /TRUE COPY/ P.S.TO JUDGE Kss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.37211 OF 2009 (V) -------------------------------------------------- Dated this the 3rd day of February, 2010 J U D G M E N T Challenge in this writ petition is against Ext.P4, an order passed by the Tribunal for Local Self Government Institutions in Appeal No.734/2009. 2. Briefly stated the facts are that the 2nd respondent Panchayat issued licence to the first respondent for installing a Mobile Telecommunication Tower in the property belonging to one Pathrose Pailey. Petitioners and certain others submitted Ext.P2 complaint against the said licence. This lead to Exts.P6 and P7. Ext.P7 is the resolution passed by the Panchayat, on 27.7.2009 requiring the first respondent to stop installation of the tower for one month. Referring to Ext.P7 and also the complaint made by the petitioners, the Secretary of the Panchayat issued Ext.P6 to the first respondent requiring them to stop future works. 3. Against Exts.P6 and P7, the first respondent filed Appeal No.734/09 before the Tribunal for Local Self Government Institutions. By Ext.P4 order the Tribunal set aside the impugned orders and allowed the appeal. It is aggrieved by Ext.P4 that this WPC.No.37211 /09 :2 : writ petition is filed. 4. A reading of Ext.P4 shows that the Tribunal interfered with the impugned orders mainly because power under Rule 158 of the Kerala Municipality Building Rules has been conferred on the Secretary of the Panchayat whereas, in this case the matter was decided by the Panchayat itself and the Secretary only communicated the decision of the Panchayat to the first respondent by Ext.P7. Therefore the Tribunal held that the decision by the Panchayat was without jurisdiction. It was also held that Rule 158 enables the Secretary to exercise the power only when he is of opinion that the work in progress dangerous to human life. On appreciation of the case the Tribunal held that the impugned orders were issued merely on the apprehension expressed by the neighboring residents and therefore there was no circumstances for exercise of such power. 5. The counsel for the petitioners impugn the aforesaid conclusion of the Tribunal. According to the learned Counsel, Rule 158 confers power on the Secretary and Ext.P6 is the order issued by the Secretary. It is stated that therefore the conclusion of the Tribunal is erroneous. It is also his case that Ext.P6 reflects the WPC.No.37211 /09 :3 : decision of the Secretary that the work in question is dangerous to human life. 6. Rule 158(1) of the Municipality Building Rules reads as under. “Notwithstanding anything contained in these rules, the Secretary may, at any time stop the construction or reconstruction or alteration of any building, if in his opinion, the work in progress ( is danger to ) human life.” 7. Evidently, therefore the power is conferred on the Secretary only and the Secretary alone can exercise the power, if the work in question, in his opinion is dangerous to human life. 8. In this case, Ext.P2 is the complaint made by the petitioners and others. The complaint was considered by the Committee of the Panchayat and the Committee passed Ext.P7 resolution. Ext.P7 resolution shows that the Committee had resolved that in order to remove the apprehension expressed by the neighboring residents it is necessary that work should be stopped for a period of one month. Referring to Ext.P7 the Secretary issued Ext.P6 informing the first respondent about Ext.P7 resolution and requesting that the work is to be stopped WPC.No.37211 /09 :4 : till 15.9.2009. Evidently, therefore the power under Rule 158 (1) has been exercised by the Committee and not by the Secretary and all that the Secretary has done was that he conveyed the decision of the Committee to the first respondent. In such a situation, the conclusion of the Tribunal that the power has been exercised wrongly by the Committee and the Secretary did not exercise the power cannot be said to be erroneous for any reasons. This is all the more so for the further reason that in terms of Section 185-H of the Panchayat Raj Act, when power is conferred on the Secretary, nobody else, be it the President or the Committee, is competent to interfere with such power. Therefore, the conclusion of the Tribunal regarding the incompetence of the Committee and the invalidity of Exts.P6 and P7, cannot be faulted. 9. The other finding of the Tribunal as reflected in Ext.P4 is that power under Rule 158 has been exercised on the mere apprehension expressed by the people in the neighborhood. This conclusion of the Tribunal is fully justified in view of the contents of Exts.P6 and P7. As already stated the power under Rule 158 could be exercised only when the Secretary is of “opinion” that WPC.No.37211 /09 :5 : the work in question dangerous to human life. The mere “apprehension” expressed by the neighboring residents is not substitute for the satisfaction that is required to be arrived at by the Secretary. Therefore, there has not been proper exercise of power. For that reason also the impugned order deserves to be upheld. 10. Counsel for the first respondent submits that the writ petition is misconceived and material facts have been suppressed. He refers to me the manner in which the first respondent is impleaded in the writ petition and submits that after impleading the company the contractor engaged by the company is shown to the company. It is stated that it has been deliberately done, to avoid service of notice on the company. It is also stated that though it is well known to the petitioners that the land lord of the property where the tower is to be installed is one Pathrose Pailey, deliberately the 3rd respondent has been arrayed as the landlord. It is also pointed out that the petitioners have suppressed Ext.R1(a) interim order and Ext.R1(b) judgment rendered by this court in WP(c).No. 20320/09 filed by the first respondent to which the petitioners are also parties. It is also WPC.No.37211 /09 :6 : pointed out that two of the petitioners had filed O.S.No.35.2009 before the Munsiff Court, Kolenchery, seeking to restrain the first respondent from proceeding with the construction. It is stated tat by Ext.R1(d) order dated 10th October, 2009, the court rejected the prayer and permitted the first respondent to proceed with the construction. The facts thus noticed above are not disputed. Therefore the irresistible conclusion is that there has been deliberate suppression of facts in the writ petition. True this situation calls for at least imposition of heavy costs. However, expressing my displeasure on the conduct of the petitioner, I refrain from passing any such order. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.37211 /09 :7 :