IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 23747 of 2011(P) --------------------------------------- PETITIONER(S): ----------------------- RAMACHANDRAN, AGED 48 YEARS, VACHAL PATENIYIL HOUSE, KARANTHADU P.O., VIA RAMANTHALI, KANNUR DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT(S): -------------------------- 1. M/S.ESSAR TELECOM INFRASTRUCTURE (P) LTD. 36/2624, FIRST FLOOR, CHARAMANGALATH HOUSE, SHENOY ROAD, COCHIN-682 017, REPRESENTED BY DEPUTY MANAGSER (LEGAL AND SITE ACQUISITION). MR.BABU PATTATHANAM. 2. RAMANTHALI GRAMA PANCHAYATH, RAMANTHALI P.O., PIN-670 307, KANNUR DISTRICT REPRESENTED BY ITS SECRETARY. 3. THE DEPUTY SUPERINTENDENT OF POLICE, DEPUTY SUPERINTENDENT OF POLICE OFFICE, TALIPPARAMBA, KANNUR DISTRICT, PIN-670 104. 4. THE SUB INSPECTOR OF POLICE, PAYYANNUR, KANNUR DISTRICT, PIN-670 307. 5. PADMANABHAN. P.V., S/O.KUNHAMBU, PAYYAM VALAPPIL HOUSE, VENGARA (VIA) PALAKKAD P.O., KANNUR DISTRICT, PIN-670 305. R1 & R5 BY ADV. SRI.PHILIP T.VARGHESE, SRI.THOMAS T.VARGHESE, SMT.ACHU SUBHA ABRAHAM. R2 BY ADV. SRI.O.V.MANIPRASAD. R3 & R4 BY GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C).No. 23747 of 2011(P) APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF BUILDING PERMIT DATED 24/2/2009 OBTAINED FROM THE 2ND RESPONDENT TO THE 1ST RESPONDENT. EXHIBIT P2: TRUE COPY OF RELEVANT PAGES OF DOCUMENT OF OWNERSHIP DATED 20/11/2008. EXHIBIT P3: TRUE COPY OF ORDER PASSED BY THE TRIBUNAL IN APPEAL NO.466/2011 DATED 28/7/2011. EXHIBIT P4: TRUE COPY OF SUMMONS ISSUED TO THE PETITIONER DATED 25/6/2010 ISSUED BY THE HON'BLE COURT. EXHIBIT P5: TRUE COPY OF JUDGMENT IN WPC.19189/2010 DATED 27/5/2011 PASSED BY THIS HON'BLE COURT. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE rs HARUN-UL-RASHID, J. --------------------------------------- W.P.(C) No. 23747 of 2011 --------------------------------------- Dated this the 15th day of November 2011. JUDGMENT The writ petition is filed seeking to quash Ext.P1 permit and Ext.P3 order passed by the Tribunal and for a declaration that the 2nd respondent has granted Ext.P1 permit without satisfying the mandatory provisions of law applicable to grant of permit and to declare that 2nd extension of building permit is not permissible under law and that there was no reason for 2nd extension of Ext.P1 permit. 2. Petitioner is a resident of the locality. First respondent is M/s. Essar Telecom Infrastructure (P)Ltd. Ext.P1 is the building permit granted to first respondent on 24.2.2009. Ext.P1 permit is granted for erection of a tower in Ramanthali Panchayat in Thalappally Taluk. Ext.P1 permit is issued for the period 24.2.09 to 23.2.2010. Before the expiry of Ext.P1 permit, first respondent applied for renewal of the building permit . The permit was renewed till 23.2.2011 and extended period expires on 23.2.2011. The first respondent could not complete W.P.(C) No.23747/2011 2 the work of Telecommunication tower within the extended period. Therefore, the first respondent approached the Panchayat for the extension of further period. The request was rejected by the first respondent. The first respondent preferred an appeal before the Tribunal for Local Self Government Institutions, Trivandrum. It is contended that the Kerala Panchayat Raj Act Rules 2011 does not permit second extension and therefore, Ext.P3 order passed by the Tribunal is liable to be interfered. The first respondent contended before the Tribunal that since the construction could not be completed within one year as per Ext.P1, extension for permit for a further period of one year was sought. Since the Panchayat refused to grant extension, Appeal No. 382/2010 was filed before the Tribunal. The appeal was allowed and permit was extended for a period of one year up to 23.2.2011. The work could not not be completed within the extended period due to illegal obstruction caused by the people of the locality. Therefore, the first respondent applied for extension. The order rejecting the request for extension is challenged before the Tribunal in appeal No. 466/2011. Ext.P3 is the copy of the order dated 28th July, 2011, in Appeal No. 466/2011. The Tribunal after W.P.(C) No.23747/2011 3 considering Rule 141(10) of the Kerala Municipality Building Rules and Rule 130(7)of the of the Kerala Panchayat Building Rules held that extension is possible only once. The Tribunal observed that such restriction is being imposed to see that construction is not unduly prolonged and the builder has to complete construction within a time fame. Further the Tribunal observed that there may arise unforeseen events, because of which, despite earnest attempts, construction could not be completed within the extended time. The Tribunal found that in the present case, the appellant met with such events. The Panchayat, though, is empowered to grant extension of time as per Rule 130(7) of the Kerala Panchayat Building Rules, rejected the request of the first respondent. Therefore, the order rejecting the application for extension of time is challenged in Appeal No. 382/2010. It was allowed on 4.6.2010 and extended time till 23.2.2011. The Tribunal found that the work started on the basis of the order dated 4.6.2010 in appeal No. 382/2010, the people of the locality raised objections and the first respondent had to move Hon'ble High Court seeking police protection in W.P.(C) No. 19189/2010. The Tribunal found that during the extended period no W.P.(C) No.23747/2011 4 work would be done by the first respondent . It was protested by the people of the locality. In the aforesaid facts and circumstances, the Tribunal held that there were situation beyond the control of the first respondent which prevented it from completing the construction. The Tribunal also found that the Panchayat itself had its own contribution to prevent the construction by referring to the order passed by the Panchayat rejecting the application for extension of time. 3. In the aforesaid circumstances, the Tribunal concluded that Rule 140 (10) of the Municipality Building Rules/Rule 137 of the Kerala Panchayat Building Rules cannot be pressed into service by the Panchayat to deny extension. The Tribunal held that if there was no impediment or hurdle before the first respondent, the non completion of construction would have been treated as a serious lapse and omission on the part of the first respondent. In the present case, the Tribunal held that there was no lapse on the part of the first respondent. The Tribunal also found that the extended period could not be profitably used by the first respondent. In the said circumstances the Tribunal held that the first respondent is entitled to exclude the time in the extended period and held that there is no W.P.(C) No.23747/2011 5 legal bar in extending the period of time. The Tribunal's order is challenged in this writ petition by the residents of the locality. No interim order has been passed by this Court staying the operation of the Tribunal. Learned counsel for the first respondent submits that based on the order passed by the Tribunal work of the tower has almost been completed. 4. In the aforesaid facts and circumstances, this Court is of the view that the decision taken by the Tribunal are based on the facts and circumstances of the case. This Court after hearing the case do not find it necessary to exercise its jurisdiction under Article 226 of the Constitution to enter into a different conclusion. The conclusion and findings arrived by the Tribunal, which is the appellate authority, cannot be interfered with and the writ petition filed by the residents of the locality is dismissed. HARUN-UL-RASHID JUDGE al