IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 9TH JULY 2008 / 18TH ASHADHA 1930 WP(C).No. 13065 of 2008(E) -------------------------------------- PETITIONER: ------------------- M/S.RELIANCE COMMUNICATIONS LTD. A&P ARCADE, SAHODARAN AYYAPPAN ROAD KADAVANTHARA, REPRESENTED BY ITS CIRCLE MANAGER (LEGAL) AND AUTHORISED SIGNATORY V.K. SAJITH ] BY ADV. SRI.V.G.ARUN SRI.T.R.HARIKUMAR RESPONDENTS: ----------------------- 1. THE PATTANAKKAD GRAMA PANCHAYAT (SPECIAL GRADE) PATTANAKKAD P.O., ALAPPUZHA DISTRICT , REPRESENTED BY ITS SECRETARY 2. T.M. MURALEEDHARAN NAIR, THAIVEEDUMVELI HOUSE PATTANAKKAD P.O., ALAPPUZHA 3. K.S. KABEER, MANNALANGATTU HOUSE PATTANAKKAD P.O., ALAPPUZHA ADV. SRI.J.OM PRAKASH FOR R1 SRI.P.K.IBRAHIM FOR R2-3 SRI.D.B.BINU FOR R2-3 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2008 , ALONG WITH WPC NO. 2552 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J ----------------------------------------------------------------- W.P.(C).NOs.13065/2008 & 2552/2008 ----------------------------------------------------------------- Dated this the 9th day of July, 2008 JUDGMENT In so far as the Writ Petition No.13065/2008 is concerned, that is filed by M/s. Reliance Communications Ltd,. 2. They had made Ext.R3(a) application to the respondent Panchayat for issue of a building permit for setting up a mobile communication tower. The application was considered by the panchayat and by Ext.P5 permit was granted on 29.3.2007. Subsequent to this, Ext.P6 representation was received by the Panchayat from the residents in the locality and in the representation, it was stated that there already is an existing tower installed by M/s. Tata Indicom and on account of the functioning of the said tower, people in the locality are suffering various 13065/2008& anor. 2 ailments and other problems. 3. On receipt of Ext.P6, Panchayat issued Ext.P7 stop memo on 11.7.2007. The reason stated in Ext.P7 stop memo is mainly the apprehensions expressed by the residents in Ext.P6 representation. On receipt of Ext.P7, that was challenged by M/s. Reliance Communications Ltd. in Ext.P8 appeal before the Tribunal. The Tribunal, after considering the matter at length allowed the appeal by Ext.P11 order dated 16.11.2007. The reason given by the Tribunal in Ext.P11 order is that the grounds mentioned by the Panchayat in Ext.P7 are not traceable to any of the grounds mentioned under Section 275(10)(1) of the Panchayat Raj Act. It is stated that the matter is pending consideration of the Tribunal as above, by Ext.P10 order Panchayat revoked Ext.P5 permit. It is in this background, this writ petition has been filed by M/s. Reliance Communications Ltd., praying for quashing of Ext.P10 and other consequential reliefs. 13065/2008& anor. 3 4. WP(c).No.2552/2008 is filed by the person who has filed Ext.P6 representation in WP(c).No.13065/2008, on the basis of which the stop memo was issued. The prayer sought for in WP(c).No.2552/2008 is that the Panchayat should be directed to implement Ext.P10 order revoking Ext.P5 building permit. 5. The Panchayat has filed a counter affidavit in WP(c) No.2552/2008. According to the Panchayat it was on receipt of the representation referred to above that they issued Ext.P7 stop memo and thereafter issued Ext.P10 order revoking the building permit. The counsel appearing for the petitioner in WP(c).No.2552/2008 who is also respondent No.2 in WP(c).No.13065/2008, submits that against Ext.P10 order petitioner has an alternate remedy of appeal and therefore they should be relegated to pursue that remedy. It is also contended that Ext.R3(a) application, on the strength of which the permit was granted, is an incomplete one. It is also submitted that the application itself was submitted on 13065/2008& anor. 4 29.3.2007 and the building permit was also granted on the same day and therefore there is no proper application made before Ext.P5 was issued. These contentions raised by the petitioner in WP(c).No.2552/2008 are supported by the counsel appearing for the respondent Panchayat also. 6. The first objection that requires to be considered is regarding the alternate remedy that is available to the petitioner in WP(c).No.13065/2008. It is true that against Ext.P6 petitioner has a statutory remedy of appeal to the Tribunal for Local Self Government Institution. But then the fact remains that this court has admitted these two writ petitions and pursuant to an interim order that was passed in W.P.(c).No.2552/2008 the company was permitted to continue the construction and was directed not to energies the tower otherwise than on orders of this court. The parties have entered appearance and have filed their counter affidavits and arguments were also raised on the merits of the dispute that is arising for consideration. Having heard 13065/2008& anor. 5 the matter I am also satisfied that their exist no disputed questions of fact. 7. In view of the aforesaid facts I do not think that it will be proper for this court to relegate the petitioner in WP (c).No.13065/2008 to purse the statutory remedy against Ext.P10 order passed by the Panchayat revoking the building permit. Therefore the objection on the ground of alternate remedy is over ruled. 8. On merits, what is seen is that, the reason stated by the Panchayat for revoking the building permit are none other than the apprehension expressed by the local residents. This reason was mentioned by the Panchayat in the stop memo that was issued and the the Tribunal for Local Self Government Institutions in Ext.P11 order in WP (c).No.13065/2008. As has already held this ground can be justified not on any of the grounds mentioned in Section 235(10)(1) of the Panchayat Raj Act. That apart, the party respondents or the Panchayat has not placed anything on 13065/2008& anor. 6 record before this court to conclude that the apprehension expressed by the local residents have any basis. 9. A reading of Ext.P10 order in WP(c). No.13065/2008 shows that the Panchayat also did not have any material to substantiate the apprehension expressed by the respondents. The Panchayat does not appear to have deputed any incumbent to conduct an enquiry before taking Ext.P10 decision. Therefore, Ext.P10, in my view, is vitiated by non-application of mind and it is quashed. WP(c). No.13065/2008 is allowed. The prayer in WP(c).No.2552/2008 is for implementation of Ext.P10 order, which has now been quashed. Therefore, WP(c).No.2552/2008 is to be dismissed and I do so. ANTONY DOMINIC JUDGE vi. 13065/2008& anor. 7