IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 15TH DECEMBER 2011 / 24TH AGRAHAYANA 1933 WP(C).No. 29469 of 2011(G) ------------------------------------- PETITIONER(S): ---------------------- 1. INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24, REPRESENTED BY ITS HEAD-LEGAL, PREMAKRISHNAN NAIR. 2. BIJU T.NAIR, HEAD-SITE ACQUISITION/DEPUTY GENERAL MANAGER, INDUS TOWERS LTD., CIRCLE OFFICE AT VANKARATH TOWERS, 8TH FLOOR, NH-47, PALARIVATTOM, KOCHI-24. BY ADV. SRI.V.PHILIP MATHEWS RESPONDENT(S): ------------------------- 1. IRIMBILIYAM GRAMA PANCHAYATH, VALIYAKUNNU.P.O., MALAPPURAM DISTRICT-676 552, REPRESENTED BY ITS SECRETARY. 2. THE SECRETARY, IRIMBILIYAM GRAMA PANCHAYATH, VALIYAKUNNU.P.O., MALAPPURAM DISTRICT-676 552. R1 & R2 BY ADV. SRI.S.MOHAMMED AL RAFI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/12/2011, THE COURT ON 15/12/2011 DELIVERED THE FOLLOWING: DG WP(C).No. 29469 of 2011(G) APPENDIX PETITIONER(S) EXHIBITS : EXT. P1 - COPY OF THE CERTIFICATE OF INCORPORATION ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT. P2 - COPY OF THE CERTIFICATE OF COMMENCEMENT OF BUSINESS ISSUED BY THE ASSISTANT REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT. P3 - COPY OF THE REGISTRATION CERTIFICATE NO.177/2008 DATED 10-01-2008 ISSUED BY THE MINISTRY OF COMMUNICATION & IT, DEPARTMENT OF TELECOMMUNICATIONS. EXT. P4 - COPY OF THE FRESH CERTIFICATE OF INCORPORATION CONSEQUENT UPON CHANGE OF NAME ISSUED BY THE DEPUTY REGISTRAR OF COMPANIES, NATIONAL CAPITAL TERRITORY OF DELHI AND HARYANA. EXT. P4(A )- TYPED COPY OF EXHIBIT P4. EXT. P5 - COPY OF THE COMMUNICATION SEND BY THE DIRECTOR (CS-III) OF THE MINISTRY OF COMMUNICATIONS & IT, DEPARTMENT OF TELECOMMUNIATIONS, NEW DELHI. EXT. P6 - COPY OF BUILDING PERMIT DATED 19-01-2010 ISSUED BY THE 2ND RESPONDENT. EXT. P7 - COPY OF THE NOTICE/ORDER DATED 15-06-2011. EXT. P8 - COPY OF THE APPEAL NO.474/2011 FILED BY THE PETITIONER BEFORE THE TRIBUNAL. EXT. P9 - COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS IN APPEAL NO.474/11. EXT. P10 - COPY OF THE ORDER DATED 14/09/2011 PASSED BY THE TRIBUNALFOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.474/11. --2-- DG --2-- WP(C).No. 29469 of 2011(G) RESPONDENTS' EXHIBITS: EXT.R1(a) - COPY OF THE BUILDING PERMIT APPLICATION SUBMITTED BY THE 2ND PETITIONER. EXT.R1(b) - COPY OF THE LETTER NO.A6 2130/09 DATED 19.02.2010 ISSUED BY 1ST RESPONDENT ALONG WITH THE MINUTES OF THE MEETING ON 18.02.2010. EXT.R1(c) - COPY OF THE GOVERNMENT ORDER G.O.NO.2750/2/RD 2/09/LSGD DATED 10.08.2009 /TRUE COPY/ P.A.TO JUDGE DG HARUN-UL-RASHID, J. ------------------------ W.P.(C).No.29469 Of 2011 ---------------------- Dated this the 15th day of December, 2011. J U D G M E N T Writ petition is filed seeking to quash Exts.P7 & P10 and for a direction commanding the respondents to permit the petitioners to carry out the construction of mobile telecommunication tower based on Ext.P6 building permit. 2. The 1st petitioner is a registered infrastructure provider. Ext.P6 is the building permit issued by the 2nd respondent to the petitioners for the construction of a mobile telecommunication tower in the property situated in survey No.195/3 of Irinbliyam Village, Tirur Taluk. Taking into consideration the apprehension of the people in the locality that the mobile tower will cause health hazards, the Panchayath Committee directed the petitioners to shift the construction of the mobile tower to another place. The petitioners submit that the said decision was taken by the Panchayath without hearing the petitioners and that there was no communication directing the petitioners to shift the mobile tower. Based on the decision taken by the Panchayath, the 2nd respondent issued Ext.P7 notice/order ::2:: W.P.(C).No.29469 Of 2011 dated 15.6.2011 cancelling the building permit. In Ext.P7, the Secretary of the Panchayath informed the petitioners that since the mobile tower was not shifted to another place as decided by the Panchayath, on the basis of the consent given by the petitioners, and, since the mobile tower was not shifted as agreed, Ext.P7 order was passed cancelling Ext.P6 permit. 3. The petitioners submit that the facts stated in Ext.P7 order are incorrect. Neither the petitioners nor its representatives had given undertaking or consent to the Panchayath for shifting the mobile telecommunication tower as alleged in Ext.P7. It is also stated that the decision of the Panchayath Committee to shift the construction of the tower was not communicated to the petitioners and that no order was issued to them to shift the location of the mobile telecommunication tower. Ext.R1(b) is the copy of the minutes of the meeting. It is stated in Ext.R1(b) at page 2 that the Panchayath has decided to shift the construction of the telecommunication tower to a place where density of population is low. Nothing has been produced to show that the said decision was taken by the Panchayath Committee with the consent of the ::3:: W.P.(C).No.29469 Of 2011 petitioners. Ext.R1(b) minutes would show that the decision was taken by the Panchayath Committee. Nothing indicates that the said decision was taken with the approval, nod or consent of the petitioners. 4. The petitioners preferred appeal No.474/2011 before the Tribunal challenging Ext.P7 decision. Ext.P8 is the appeal memorandum. The Tribunal by order dated 14.9.2011 dismissed the appeal. Ext.P10 is the copy of the order passed by the Tribunal. The Tribunal considered the appeal and held that the reason for cancelling the permit does not appear to be legal or proper. The Tribunal further held that prior to the cancellation of the permit a show cause notice calling for the explanation of the appellant has not been issued. However, the Tribunal dismissed the appeal stating that building permit is in the name of Sri.Biju.T.Nair, DGM, Indus Towers Ltd., but, when he applies for a building permit in his own name and not in the name of the company and he should have satisfied the Secretary about the availability of the requisite documents in his name. The Tribunal observed that there is no agreement with the Department of Telecommunication nor is there any document to prove ::4:: W.P.(C).No.29469 Of 2011 ownership in the name of Biju T.Nair and therefore, the Secretary was not at all careful while considering the application for building permit and while issuing building permit in the name of Biju T.Nair. For the aforesaid reasons, the Tribunal found that the building permit in the name of Biju T.Nair is illegal and as there is no legal foundation, the same is fundamentally void. The petitioners submits that respondents before the Tribunal did not have such a contention, that though the permit was not under challenge, the Tribunal erroneously interfered with the grant of permit and observed that the 1st petitioners can apply for a fresh permit. The petitioners submits that the building permit was cancelled based on the decision taken by the Panchayath Committee. The decision was taken to shift the location of the mobile telecommunication tower. Therefore, the question which ought to have been decided by the Tribunal is as to whether the cancellation of building permit is legal and valid. It is pointed out that in fact the Tribunal found that the cancellation of the building permit is improper and the Tribunal exceeded its jurisdiction in entering the finding that the application is filed by an incompetent person. ::5:: W.P.(C).No.29469 Of 2011 5. The Tribunal in fact considered the appeal preferred by the petitioners on merits and held that cancellation of permit does not appear to be legal or proper and that the cancellation of the permit was without issuing show cause notice calling explanation of the appellant. Ext.P6 is the building permit issued to the petitioners on 19.1.2010. On the basis of the complaint from people of the locality, the Panchayath Committee decided to direct the petitioners to shift the mobile tower to another place where density of population is low. In Ext.P7 communication it is stated that the decision was taken on getting consent from the petitioners. No materials are produced to show that the petitioners had consented to shift the mobile tower to another place. Ext.R1(b) does not show that the decision was taken based on the consent. The Tribunal rightly held that the cancellation of permit does not appear to be legal or proper. Ext.P7 cancellation order was passed based on the Panchayath decision. Admittedly, the cancellation was done without issuing notice to the petitioners. The appeal was preferred by the petitioners challenging the decision of the Panchayath Committee. If the decision of the Panchayath Committee ::6:: W.P.(C).No.29469 Of 2011 directing the petitioners to shift the mobile tower to another place is without notice and without affording an opportunity of being heard to the petitioners, the decision cannot be upheld. In fact, the basis for cancellation of the building permit is the decision of the Panchayath Committee. Merely for the reason that there is protest from local residents, the Panchayath cannot take decision to cancel the permit, which has been already issued, without hearing the petitioners or without affording an opportunity of being heard to the petitioners. In fact, the Tribunal also held that the decision was taken not in accordance with law. But, the Tribunal dismissed the appeal stating that the applicant is not the 1st petitioner, but, the Deputy General Manager, therefore, the permit issued is bad in law. In fact the respondents or any of the parties did not raise the question of legality of Ext.P6 building permit before the Tribunal. But, the Tribunal perused the file and found out that the applicant is not the 1st petitioner, but, the DGM. In fact, the building permit was cancelled not for the reason that the application for permit is not proper but, for the reason that the tower can be shifted to another place. In fact, the applicant is the company and the ::7:: W.P.(C).No.29469 Of 2011 company was represented by the officer holding the post of DGM, who is competent and authorised by the company. The petitioners pointed out that the DGM was duly authorised to file an application for building permit. For the aforesaid reasons, Ext.P10 order passed by the Tribunal is unsustainable in law. The Tribunal, on the facts and circumstances, ought to have allowed the appeal and set aside Ext.P7 order of the Panchayath cancelling the building permit. In the result, Exts.P7 & P10 are set aside. The writ petition is allowed. The petitioners are entitled to carry out the construction of telecommunication tower in accordance with Ext.P6 building permit. HARUN-UL-RASHID, Judge. bkn/-