IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 27TH FEBRUARY 2009 / 8TH PHALGUNA 1930 WP(C).No. 6379 of 2009(N) ------------------------- PETITIONER(S): --------------- 1. OACHIRA GRAMA PANCHAYATH, REP. BY ITS SECRETARY, OACHIRA P.O., KOLLAM. 2. OACHIRA GRAMA PANCHAYATH, REPRESENTED BY ITS PRESIDENT, OACHIRA P.O., KOLLAM. BY ADV. SRI.B.HARISH KUMAR RESPONDENT(S): --------------- 1. RELIANCE TELECOM INFRATEL LIMITED, A & P ARCADE, SAHODARAN AYYAPPAN, ROAD, KADAVANTHARA, KOCHI, REP. BY ITS DULY CONSTITUTE POWER OF ATTORNEY HOLDER, THE PRESENT LEGAL MANAGER, SRI. RAJA RAJA VARMA. 2. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTION, THIRUVANANTHAPURAM. 3. SECRETARY TO GOVERNEMTN, LOCAL SELF GOVERNMENT DEPARTMENT (PANCHAYATH), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. G.P. SHRI.K.V.MANOJ KUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.6379 of 2009 ================== Dated this the 27th day of February, 2009 J U D G M E N T The petitioners are, the Secretary and the President of the Oachira Grama Panchayat. They are challenging Ext.P7 order of the Tribunal for Local Self Government Institutions, whereby the order of the Secretary rejecting the application for building permit applied for by the 1st respondent in accordance with Ext.P4 resolution of the Panchayat, whereby the Panchayat had directed the Secretary not to issue such permit. The Tribunal entered the finding that the Panchayat does not have original jurisdiction to decide an application for permit submitted under the Kerala Building Rules and therefore, the Secretary has to consider the application uninfluenced by the resolution adopted by the Panchayat. 2. The contention of the petitioners is that in view of the duties and functions enumerated in Section 166 of the Kerala Panchayat Raj Act, it is the duty of the Panchayat to safeguard the welfare of the people of the Panchayat and, in order to perform that statutory duty, they have adopted Ext.P4 resolution, since the functioning of the telecommunication tower, for which building permit has been applied for by the 1st respondent, would be hazardous to the health of the people of the Panchayat. They would also contend that 2 Rule 130 of Chapter XIX of the Kerala Municipality Building Rules, which confers jurisdiction on the Secretary to grant permits in respect of telecommunication towers itself is ultra vires the Constitution of India in so far as the definition of “building” does not take in a telecommunication tower. The counsel for the petitioners also refers to the decision in Essar Telecom (P) Ltd. v. C.I. Of Police [2008 (4) KLT 713] to show that this Court had occasion to consider the impact of a telecommunication tower on the health of the people. 3. I have considered the contentions of the counsel for the petitioners. 4. The petitioners could not bring to my attention any provision in the Kerala Panchayat Raj Act which gives original jurisdiction to the Panchayat Committee to direct the Secretary not to issue any building permit. The original jurisdiction vests with the Secretary only and the Panchayat's power is only to set aside that order either in appeal or in suo motu proceedings. As regards the challenge against Rule 130 of the Kerala Municipality Buildings Rules, I am of opinion that that contention is inconsistent in so far as if the telecommunication tower is not a building, the question of obtaining building permit for construction of the same and rejection of application for permit even by the Panchayat does not arise. That being so, I am not inclined to countenance that contention of the 3 petitioners. Even if the Panchayat has a duty to ensure welfare of the people of the Panchayat, that can only be in accordance with the provisions of the Kerala Panchayat Raj Act. In so far as the Panchayat Raj Act does not confer any original jurisdiction on the Panchayat committee to decide an application for building permit in advance, before the Secretary considers the same independently and passes orders, I do not find any infirmity in Ext.P7 order of the Tribunal. Accordingly, the writ petition is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge