IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 WP(C).No. 28570 of 2010(U) -------------------------------------- PETITIONER(S): ----------------------- 1. P.VASUDEVAN NAMBOODIRI, AGED 59 YEARS, S/O. VASUDEVAN NAMBOODIRI, PARAKKOT ILLAM, P.O.NAYARKUZHI, VIA NIT, KOZHIKODE DISTRICT. 2. PRABHAKARAN.V., AGED 61 YEARS, S/O. NARAYANAN NAIR, THAROL HOUSE, P.O.NAYARKUZHI, VIA NIT, KOZHIKODE DISTRICT. BY ADVS. SRI.P.R.SREEJITH SRI.M.PROMODH KUMAR RESPONDENT(S): ------------------------- 1. WIRELESS-TT INFO SERVICE LTD., CIRCLE OFFICE-J AND CO CHAMBERS, MANIMALA ROAD, EDAPALLI, KOCHI-24, REPRESENTED BY SUDEVAN.V.D. MANAGER, CIRCLE OFFICE J AND CO. CHAMBERS, MANIMALA ROAD, EDAPALLI, KOCHI-24. 2. SREEDHARAN NAIR, AGED 56 YEARS, S/O. SANKUNNI NAIR, 'SRUTHI', P.O.NAYARKUZHI, VIA NIT KOZHIKODE DISTRICT- 675 001. 3. THE CHATHAMANGALAM GRAMA PANCHAYAT, KOZHIKODE DIST. REP. BY ITS SECRETARY. 685 101. 4. SI OF POLICE, MAVOOR POLICE STATION, KOZHIKODE DIST. 675 001. R1 BY ADV. SRI.A.MOHAMED MUSTAQUE, SRI.U.P.BALAKRISHNAN. R3 BY ADVS. SRI.E.NARAYANAN, SRI.K.MURALEEDHARAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.28570/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE PERMIT DTD. 5.3.2010 ISSUED TO THE IST RESPONDENT BY THE 3RD RESPONDENT. P2:- COPY OF THE INTERIM ORDER DT.D 30.4.2010 IN WPC. 14040/2010 OF THIS HONOURABLE COURT. P3:- COPY OF THE ORDER OF THE 3RD RESPONDENT DTD. 21.6.2010 CANCELLING EXT.P1 PERMIT. P4:- COPY OF THE STAY ORDER DTD. 24.6.2010 IN APPEAL NO.549/2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P5:- COPY OF THE INTERIM INJUNCTION ORDER IN IA.2752/2010 DTD. 3.7.2010 IN OS. NO.489/2010 OF THE MUNSIFF COURT II-P, KOZHIKODE OBTAINED BY MR.MOHANDAS. P6:- COPY OF THE ORDER OF STAY OF EXT.P3 IN APEAL NO.585/2010 DTD. 8.7.2010 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P7:- COPY OF THE JUDGMENT DTD. 20.7.2010 IN WPC. 22509/2010 OF THIS HONOURABLE COURT. P8:- COPY OF THE PETITIONER'S OBJECTION DTD 25.7.2010 IN APPEAL NO.585/2010 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. P9:- COPY OF THE ORDER OF THE TRIBUNAL DTD. 26.7.2010 IN APPEAL NO.549/2010. P10:- COPY OF THE ORDER DTD. 11.8.2010 OF THE TRIBUNAL IN APPEAL NO.585/2010. P11:- COPY OF THE PETITIONER'S COMPLAINT UNDER 235 X OF THE KERALA PANCHAYATH RAJ ACT BEFORE 3RD RESPONDENT DT.D 15.7.2010. P12:- COPY OF THE VILLAGE OFFICERS SKETCH DTD. 13.5.2010 PRODUCED BY THE IST RESPONDENT BEFORE THE PANCHAYATH. P13:- COPY OF THE ROUGH SKETCH SHOWING THE LIE OF THE PROPERTY PREPARED BY THE PETITIONERS. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.28570 OF 2011 ------------------------------- DATED THIS THE 14TH DAY OF JULY, 2011 JUDGMENT This writ petition is filed mainly seeking to quash Ext.P9 order and for a declaration that Exts.P6 and P10 orders are arbitrary, ultravires of the appellate powers conferred to the Trbunal for Local Self Government Institutions under Section 276 (4) of the Kerala Panchayat Raj Act and contravenes the appellate powers conferred on the Panchayat under Section 276(1) of the Act. 2. Petitioners are residents of Ward No.7 of the Chathamangalam Grama Panchayat. The lst respondent is a company by name Wireless-TT Info Service Ltd. engaged in installation of passive telecommunication infrastructure service, the telecommunication tower, in which the active infrastructure for reception and transmission along with power and safety equipments of the telecommunication service providers/operators would be installed. The lst respondent obtained permit dated 5/3/2010 from the 3rd respondent for erecting telecommunication tower in the property belonging to the 2nd respondent. Copy of the said permit is marked as Ext.P1. Petitioners and other residents preferred a complaint dated 24/2/2010 against the installation of tower based on Ext.P1 inter alia on the ground that Ext.P1 was obtained on misrepresentation of the width of access to the plot. According to the petitioners, the width of access to the plot should be a minimum of 1.20 meters in case of non-residential building/structures as per Rule 33 of the Kerala Municipal Building Rules. According to them, the width of access to the plot is having only 80 cms. 3. Acting upon the complaint, the Secretary of the Grama Panchayat issued Ext.P3 order dated 21/6/2010 revoking Ext.P1 permit. The lst respondent preferred an appeal No.549/2010 -2- W.P.(C).No.28570/2010 before the Tribunal for Local Self Government Institutions (for short 'the Tribunal') challenging Ext.P3 order. Exts.P4 and P6 are interim orders passed by the Tribunal. Petitioner preferred WP(C). No.22509/2010 before this Court challenging Ext.P6 interim order. This Court by Ext.P7 judgment dated 20/7/2010 disposed of the writ petition at the admission stage observing that if the petitioners preferred an application before the Tribunal for getting themselves impleded in the appeal, the Tribunal will consider the application and hear the petitioners in the appeal. Consequent to Ext.P7 the petitioners were impleaded in Appeal No.585/2010 before the Tribunal and preferred Ext.P8 objection. Exts.P9 and P10 are the final orders passed by the Tribunal in Appeal Nos.549/2010 and 585/2010. The Tribunal referred to Rule 18 of the Tribunal Rules; and Rule 16 of the Kerala Municipality Building Rules. Rule 16 of the Kerala Municipality Building Rules provides that “the Secretary shall suspend or revoke any permit issued under these rules, if it is satisfied that the permit was issued by mistake or that a patent error has crept in it or that the permit was happened to be issued on misrepresentation of fact or law or that the construction if carried on will be a threat to life or property”. Proviso to Rule 16 mandates that before revoking permit, the owner of the permit shall be given sufficient opportunity to explain and the explanation shall be duly considered by the Secretary. In the order impugned before the Tribunal it is stated that as per the complaint received the permit was obtained by showing more width than actual width as to the road and that the permit was issued by misrepresentation of fact. Therefore, the lst respondent-company was called upon to show cause within 15 days as to why permit shall not be revoked. The report obtained by the Secretary before granting permit would show that when the site was inspected on 2/3/2010 there was road having width of 3 metres in existence and that on subsequent inspection on 29/4/2010 the width of the road was seen -3- W.P.(C).No.28570/2010 reduced to 3 feet. The permit was granted on 8/3/2010. The Tribunal after perusing the report and held that the report do not reveal any misrepresentation by the appellant and that instead the report is only to the effect that there was actual width as shown in the plan and that it is a case of subsequent reduction of the width of the road. The Tribunal also on facts held that in the impugned order it is only stated in vague terms that the permit was obtained by misrepresentation showing more width for the road than actual width of the same, that no proper reasons as specified in Rule 16 of the Kerala Municipality Building Rules are stated in the notice and that the allegation of misrepresentation stated in the notice is not correct. For the aforesaid reasons, the Tribunal allowed the appeal and set aside the notice issued by the Gama Panchayat. Ext.P9 and P10 are the orders passed by the Tribunal holding that the notice issued by the Secretary of the Pachayat is not sustainable. The Tribunal also observed that the Secretary may initiate proper proceedings if any, as per law, without any unnecessary delay, if there are any reasons for doing so. The Panchayat revoked the permit for the reason that the lst respondent has misrepresented regarding the width of the road. The Tribunal held that the finding of misrepresentation by the Secretary of the Panchayat is without any basis. The Tribunal after perusing the records and the inspection report, came to the conclusion that the lst respondent has not misrepresented regarding the width of the road. The finding arrived at by the Tribunal is based on facts. Thus the challenge against Ext.P9 and P10 fails. Writ Petition is dismissed. HARUN-UL-RASHID, Judge. kcv. -4- W.P.(C).No.28570/2010