IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 WP(C).No. 14513 of 2009(H) ---------------------------------------- PETITIONER(S): ----------------------- M/S. INDIA TELECOM INFRA LTD., SECOND FLOOR, CHACKACHERIL TOWER, SEA PORT AIR PORT ROAD, KAKKANAD, COCHIN 682 030. REPRESENTED BY ITS CIRCLE HEAD, SUNIL MENON. BY ADVS. MR.SANTHOSH MATHEW, MR.SATHISH NINAN. RESPONDENT(S): ---------------------------- 1. MALAPPURAM MUNICIPALITY COUNCIL, MALAPURAM PO, MALAPPURAM DISTRICT REPRESENTED BY ITS CHAIRMAN. 2. MALAPURAM MUNICIPALITY, MALAPURAM PO, MALAPPURAM DISTRICT, REPRESENTED BY ITS SECRETARY. 3. T.P.MADHAVAN T.P.HOUSE, NEAR GUST HOUSE, GUST HOUSE ROAD, MALAPURAM PO, MALAPPURAM DISTRICT. R1 & R2 BYADV. MR.N.ABDUL MAJEED,SC,MALAPPURAM MUNCIPALITY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.14513/2009 H APPENDIX PETITIONER'S EXHIBITS: P1: BUILDING PERMIT ISSUED BY 1ST RESPONDENT THROUGH ORDER NO.BA-379/08-09 DTD. 29/10/2008. P2: CANCELLATION ORDER TP – 8862/08 DTD. 31/01/2009 OF BUILDING PERMIT ISSUED BY 1ST RESPONDENT. P3: JUDGMENT OF THIS HONOURABLE COURT DTD. 9/01/2006 IN WPC.NO.179 OF 2006. P4: JUDGMENT DTD. 3/07/2007 IN W.A.NO.1596 OF 2007 IN APPEAL AGAINST EXHIBIT P3. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL B.RADHAKRISHNAN, J. ------------------------------------------- W.P(C).No.14513 OF 2009 ------------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT 1. The petitioner is the provider of certain mobile phone facilities. By Ext.P1, the secretary of the first respondent Municipality granted permit to the petitioner to put up a building for its purposes. Thereafter, stated to be acting on a mass petition, the Council of the Municipality set aside that permit. This is under challenge. 2. Learned counsel for the petitioner argued that a permit once granted under the Kerala Municipality Building Rules, 1999, hereinafter, the KMB Rules, for short, is appealable only to the Tribunal for Local Self Government Institutions in terms of Rule 160 and the Council has no power to pass the impugned order. It is pithily contended that no representation could have been treated by the Council as an appeal against a decision of the Secretary granting building permit. It was also contended that the appellate authority of the Council has WPC.14513/09 Page numbers passed the impugned order without notice and pre-decisional hearing and the same is, therefore, bad. 3. Learned counsel appearing for the Municipality, on the other hand, contended that under the provisions of the Kerala Municipality Act, 1994, hereinafter, 'the Act', for short, the Council has the power to sit in appeal on any decision of the Chairperson or the Secretary and therefore, Ext.P1 building permit being the result of a decision of the Secretary, the Council is well within power to consider an appeal against that. It was also contended that the appellate power is not curbed by the provision for an appeal directly to the Tribunal. 4. The question whether a particular authority has the jurisdiction to act upon a representation or an appeal is itself a matter that could be raised before that authority. However, it needs to be said that no decision granting a building permit could have been upturned without giving an opportunity of WPC.14513/09 Page numbers pre-decisional hearing to the grantee of the permit. For that short reason, the impugned decision has to go. 5. In the result, leaving open the question as to the maintainability of any appeal before the Council and preserving the right of parties to raise such question before the Counsel, this writ petition is allowed setting aside Ext.P2 and the decision of the Council on the basis of which it was issued. The Council will give the petitioner and the third respondent opportunity of hearing and will take a decision de novo. To enable the Council to conclude such proceedings, the petitioner and the third respondent are directed to mark their appearance before the Secretary of the Municipality on 29.6.2009 so that the date on which the Council would hear them could be fixed. Pending such consideration, the petitioner is permitted to complete the construction provisionally and will be liable to pull down that structure in the event of the matter ultimately going against it. The installation will not be energised until the Council takes a final WPC.14513/09 Page numbers decision as directed above. Having regard to the urgency of the matter, the Council will decide on the aforesaid matter within a period of one month. The writ petition is ordered accordingly. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.22/6.