IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR THURSDAY, THE 10TH DAY OF FEBRUARY 2011/21ST MAGHA 1932 WP(C).No. 1539 of 2011 (N) --------------------------- PETITIONER(S): ----------------- CHEMANCHERRY GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, N.K.SANKARAN S/O.RAMAN NAIR, RESIDING AT THAYIL HOUSE, KILUR P.O. KOZHIKODE DISTRICT. BY ADV. SRI.SAJITH KUMAR V. RESPONDENT(S): ------------------- 1. GTL INFRASTRUCTURE LIMITED (GIL), PRABU TOWER, DOOR NO.409643, 1ST FLOOR OPPOSITE CHENNAI SILKS, M.G.ROAD, NORTH ERNAKULAM KOCHI-682035. 2. THE DISTRICT COLLECTOR, KOZHIKODE DISTRICT-675001. R1 BY ADV. SRI.SATHISH NINAN R1 BY ADV. SRI.SANTHOSH MATHEW R2 BY GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10-02-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).1539/11 APPENDIX PETITIONER'S EXHIBITS: P1:A TRUE COPY OF THE ORDER DATED 8.12.2010 IN APPEAL NO.944/2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, TRIVANDRUM. P2:A TRUE COPY OF THE ORDER DATED 11.10.2010 WRITTEN BY THE DISTRICT COLLECTOR IN THE MASS PETITION MADE BEFORE HIM BY THE GENERAL PUBLIC. P3:A TRUE COPY OF THE ORDER DATED 11.10.2010 ISSUED BY THE SECRETARY OF THE PETITIONER. P4:A TRUE COPY OF THE APPEAL MEMORANDUM BY THE 1ST RESPONDENT BEFORE THE HONOURABLE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P5:A TRUE COPY OF THE OBJECTION DATED 23.11.2010 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE TRIBUNAL. RESPONDENTS' EXHIBITS: R1(A):PHOTOCOPY OF THE RECEIPTS ISSUED BY THE PANCHAYATH DATED 18.08.2010 FOR PAYMENT OF APPLICATION FEE OF BUILDING PERMIT. R1(B):PHOTOCOPY OF LETTER DATED 8.10.2010 SENT TO THE 9TH RESPONDENT. R1(C):PHOTOCOPY OF THE CHEQUE DATED 8.10.2010 SENT TO THE 9TH RESPONDENT. R1(D):PHOTOCOPY OF THE CIRCULAR NO.2750/RD2/09/LSGD DATED 13.03.2009 ISSUED BY THE GOVERNMENT. R1(E):PHOTOCOPY OF THE JUDGMENT DATED 4.7.2008 IN W.P.(C).15605/2008. R1(F):PHOTOCOPY OF THE INTERIM ORDER GRANTED TO THE PETITIONER BY THE TRIBUNAL DATED 27.10.2010. R1(G):PHOTOCOPY OF THE STABILITY CERTIFICATE ISSUED BY THE STRUCTURAL ENGINEER DATED 28.7.2010. //TRUE COPY// P.A.TO JUDGE C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.1539 OF 2011 -------------------------------------------- Dated this the 10th day of February, 2011 JUDGMENT This Writ Petition has been filed by the Chemancherry Grama Panchayat challenging Ext.P8 order passed by the Tribunal for Local Self Government Institutions in Appeal No. 944/2010. The facts, in succinct, for the purpose of deciding the issue involved in this case read thus:- The first respondent herein submitted Ext.R1(a) application dated 18.8.2010 for permit to construct a telecommunication tower. Admittedly, no order was passed thereon. Thereupon, presumably claiming the benefit of the deeming provision under last proviso to Rule 143 of the Kerala Municipality Building Rules, 1999 (for short 'the Rules') and seeking grant of permit in writing, the first respondent sent Ext.R1(c) cheque towards the permit fee on 8.10.2010. Indisputably, the said cheque was received by the petitioner and the petitioner has not returned the same to the first respondent. Even W.P.(C) NO.1539/2011 2 thereafter, no decision was taken on Ext.R1(a) application and no action was taken despite the receipt of Ext.R1(c). In the said circumstances, the first respondent started construction of the telecommunication tower. 2. Subsequently, on receipt of Ext.P2 mass complaint, the second respondent issued a direction to the petitioner to demolish the tower so constructed by the first respondent holding the construction as illegal and unauthorised. Thereupon, Ext.P3 order dated 11.10.2010 was passed under Rule 235 W of the Panchayt Raj Act (for short 'the Act'). As per the same, the first respondent was directed to demolish the constructions effected without obtaining permit. It also carried a caution that on failure on the part of the first respondent to carry out the said instructions, the construction effected would be demolished and the cost would be recovered from the first respondent. Challenging the said order, the first respondent approached the Tribunal for Local Self Government Institutions and it led to the issuance of Ext.P1. A perusal of Ext.P1 would reveal that the Tribunal W.P.(C) NO.1539/2011 3 interfered with Ext.P3 mainly for the reason that prior to the passing of Ext.P3, no provisional order was issued as contemplated under the said provision. Non-issuance of notice under Section 235 W (1) and (2) was also taken into account. Based on the said reasons, it was held that the impugned order directing to demolish the construction effected was issued in total disregard to the procedures prescribed under Section 235 W of the Act. Ext.P1 also carried further finding that the first respondent was entitled to the benefit of the deeming provision under the last proviso to Rule 143 of the Rules. Accordingly, it was held in the facts and circumstances of the case that the construction effected by the first respondent could not be treated as unauthorised. On the aforesaid reasons, Ext.P3 order was found unsustainable and accordingly, it was set aside. 3. I have heard the learned counsel for the petitioner, the learned standing counsel appearing for the first respondent and also the learned Government Pleader . W.P.(C) NO.1539/2011 4 4. In the light of Section 274 of the Act, admittedly, the provisions under the Rules have been made applicable to all the panchayats. In fact, in the case of the petitioner panchayat, even prior to the same, they have adopted the provisions under the Rules in the year 1980. In view of Section 274 of the Act, indisputably, the provisions under the Rules are applicable in this case. Firstly, it is contended that even though the provisions under the Rules are applicable, the provisions thereunder to the extent they are inconsistent with the provisions under Section 235 J and K of the Act, the provisions under Section 235 J and K would prevail. This position is canvassed to contend that the decision of the Tribunal for Local Self Government Institutions in finding that the first respondent is entitled to get the benefit of the deeming provision under last proviso to Rule 143 is unsustainable. Chapter 19 of the Rules deals with telecommunication towers. The relevant provisions applicable in this case is Rule 133. In the light of Rule 133(2) of the Rules, the learned counsel for the petitioner brought to my attention the provisions under 134 which mandates that construction or installation W.P.(C) NO.1539/2011 5 accessory or necessary for the telecommunication system shall conform to the relevant rules applicable to such construction or installation and licence or permit required under such rules shall also be obtained. The learned counsel for the petitioner had given stress to the words 'construction' and 'installation'. It is contended that the area of the cabin in question exceeds 50 square meters. Therefore, such construction could have been carried out only after obtaining necessary licence or permit and after complying with all the formalities under the relevant rules applicable to such construction. 5. Having regard to the contentions made as aforesaid, I am of the view that those contentions pales into insignificance in view of the provisions under Rule 143(2) of the Rules. In fact, a perusal of the impugned order would reveal that the Tribunal has considered the question whether in the light of the provisions under Rule 143(2) of the Rules, the first respondent was justified in proceeding with the construction.. The indisputable position obtained in this case would reveal that the first respondent submitted Ext.R1(a) application dated W.P.(C) NO.1539/2011 6 18.8.2010 for permit to construct telecommunication tower. No order was passed thereon and thereafter, the first respondent issued Ext.R1 (c) cheque dated 8.10.2010 towards the permit fee. The cheque in question was received by the petitioner and it is not the case of the petitioner that it was returned to the first respondent at any point of time. In other words, the permit fee remitted by the first respondent was duly accepted by the petitioner. Evidently, the Tribunal perused the file produced by the Secretary of the petitioner Panchayat and found that the Secretary of the Panchayat failed to pass orders on the application for permit submitted on 18.8.2010 within the period specified by Rule 141(8) of the Rules. It is taking into account the relevant provisions and on a perusal of the records that the Tribunal set aside the impugned order dated 11.10.2010 and held that the first respondent is entitled to the benefits of the last proviso to Rule 143 of the Rules, with respect to the construction made consistent with the application for permit submitted on 18.8.2010. It is thus obvious that the finding of the Tribunal is only to the effect that the first respondent is entitled to the benefits of the last proviso to Rule 143 of the Rules W.P.(C) NO.1539/2011 7 and therefore, the construction cannot be said to be unauthorised merely because the construction was actually commenced before the issuance of the licence/permit. The impugned order itself would make it very clear that the first respondent is entitled to such benefits only with respect to the construction effected consistent with the application for permit submitted on 18.8.2010. In other words, if there is any violation of the provisions under the Kerala Municipality Building Rules it will be open to the petitioner to take appropriate action in accordance with law and the construction cannot be said to be unauthorised solely for the purpose that it commenced before the actual issuance of the licence/permit. When that be the tenor of the impugned order I do not find any reason to interfere with the same. Subject to the above clarification, this writ petition is dismissed. Sd/- (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.1539/2011 8 C.T. RAVIKUMAR, J. W.P.(C) NO.1539/2011 9 JUDGMENT September, 2010