Allowed

Indus Towers Limited and Another v. Ranjith Lal N.K. & Anor

Kerala HC22 Feb 2012WP(C)/26864/2011

Case brief

AI extract

What is this about?

Petitioners challenged a Tribunal order quashing their Building Permit for erecting a Telecom Tower, contending the earlier Tribunal decision granting eligibility validated the permit despite procedural objections regarding the applicant's name and application discrepancies.

What did the court decide?

Writ petition allowed; Ext.P4 order of the Tribunal quashed. Declaration that 1st petitioner is the holder of the Building Permit and is entitled to construct the Telecom Tower.

Indus Towers Limited and Another Vs Ranjith Lal N.K. & Anor — Property and Title | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM

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WEDNESDAY, THE 22ND DAY OF FEBRUARY 2012/3RD PHALGUNA 1933

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WP(C).No. 26864 of 2011 (G)

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PETITIONER(S):

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1. INDUS TOWERS LIMITED (INFRASTRUCTURE SERVICE PROVIDER OF BHARTI AIRTEL LIMITED), VODAFONE ESSAR CELLULAR LIMITED (FORMERLY KNOWN AS HUTCHISON ESSAR CELLULAR LTD.) 8TH FLOOR, VANKARATH TOWERS, NH BYPASS, PALARIVATTOM, KOCHI - 24 REPRESENTED BY ITS DEPUTY GENERAL MANAGER SRI.PREMAKRISHNAN NAIR.M.N.

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2. M.N.PREMA KRISHNAN NAIR, INDUS TOWER, 8TH FLOOR, VANKARATH TOWER, BYE-PASS ROAD, PALARIVATTOM, KOCHI

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BY ADV. SRI.P.SATHISAN

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RESPONDENT(S):

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1. RANJITH LAL N.K., S/O.SREEDHARAN, NELLIKKUNNUMMEL HOUSE, PANMILKOTTOOR.P.O., KODUVALLY, KOZHIKODE - 673 572

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2. UNNIKULAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, UNNIKULAM, KOZHIKODE DISTRICT, PIN - 673 574

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3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS,

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REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM - 695 001

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R1 BY ADVS.SRI.P.R.SREEJITH

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SRI.M.PROMODH KUMAR

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R3 BY SRI.MUHAMMED SHAFI.M., GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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RKM

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-2-

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WP(C).No. 26864 of 2011

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APPENDIX

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PETITIONER(S) EXHIBITS :

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P1 : COPY OF THE LICENSE ISSUED BY CENTRAL GOVERNMENT.

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P2 : COPY OF ORDER ISSUED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT IN APPEAL NO.658/2010.

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P3 : COPY OF THE BUILDING PERMIT DATED 04.10.2010.

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P4 : COPY OF ORDER ISSUED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT IN APPEAL NO.632/2011 DATED 30.09.2011.

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RESPONDENTS' EXHIBITS : NIL

/TRUE COPY/

PA TO JUDGE

RKM

C.K.ABDUL REHIM, J ...................................... W.P.C.NO.26864/2011

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.......................................

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Dated this the 22^nd Day of February 2012

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JUDGMENT

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Petitioner applied for Building Permit for erection of a Telecommunication Tower within the limits of the 2^nd respondent Grama Panchayath. The application was rejected through proceedings of the Secretary, dated 13.07.2010, which was challenged in appeal filed by the 1^st petitioner before the 3^rd respondent Tribunal. In Ext.P2 order, the Tribunal found that the decision to reject the application was taken by the Committee of the Grama Panchayath in violation of Section 185 (B) of the Kerala Panchayath Raj Act, 1994. It was observed that the question regarding grant or refusal of permit is a matter which has to be dealt with independently by the Secretary, uninfluenced by any decision which will be taken by the Committee. In Ext.P2 the Tribunal also found that, since no decision was taken on the application submitted on 09.06.2010 within the time limit prescribed under Rule 141(8) of the Kerala Municipal Building Rules, the appellant is entitled to the benefit to the proviso to Rule 143, dealing with the deeming provision.

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W.P.C.NO.26864/2011

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Hence the appeal is allowed and the impugned order of the Secretary was set aside.

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Contention of the petitioners is that, in view of the declaration contained in Ext.P2 they were deemed to have issued with the building Permit. However, the Secretary of the 2^nd respondent Grama Panchayath had subsequently granted Building Permit, as per Ext.P3. The 1^st respondent herein, who claims to be a resident of the locality, had challenged Ext.P3 in appeal before the 3^rd respondent Tribunal. Ext.P4 is the order of the tribunal in the appeal. In Ext.P4, the Tribunal found that, the Building Permit was issued only in the name of the 2^nd petitioner and there is no documentary proof regarding ownership or authority upon the land in the name of the 2^nd petitioner for construction of Telecommunication Tower, based on any license issued by the Telecom Department. It was contended before the Tribunal that the 2^nd petitioner is only the Dy. General Manager of the 1^st petitioner company and that he is the power of attorney holder on behalf of the company. It was contended that the permit was applied for only on behalf of the company and not in the personal capacity of the 2^nd petitioner. But the Tribunal

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W.P.C.NO.26864/2011

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found that, eventhough the power of attorney permits him to file application and to obtain permission on behalf of the company, in the application it was not clearly indicated that the permit was applied for and on behalf of the company. Finding that the permit is not valid because of the above reason, the appeal was allowed. The Tribunal further found that there were discrepancies and short falls in the application for permit submitted. The Tribunal found that eventhough there was a declaration with respect to deeming permit in Ext.P2 order, it cannot validate the permit since it is ab-initio void and fundamentally illegal. The petitioners are challenging Ext.P4 in this writ petition.

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Shri.P. Sathisan, learned counsel for the petitioner contended that the findings of the Tribunal regarding the discrepancy in the name contained in the permit is too technical. According to him it is evident that the 2^nd petitioner is the Dy. General Manager and power of attorney holder of the company and it is well established that the permit in question was applied for and obtained only on behalf of the company. Further he pointed out that the permit contained the name as,

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W.P.C.NO.26864/2011

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Shri.M.N.Prema Krishnan Nair, M/s. Indus Towers Limited, 8^th Floor, Vankarath Towers, NH Bypass, palarivattom, Cochin - 24. This will indicate that the permit is obtained only on behalf of the company, is the contention.

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While considering the above issue, I am of the view that the permit was applied for by the 2^nd petitioner only under his capacity as Dy. General Manager and the power of attorney of the 1^st petitioner only on behalf of the 1^st petitioner. Therefore it can only be presumed that the permit was obtained for and on behalf of the company. Therefore, the findings of the Tribunal in this regard is highly technical. This court in other cases filed by the petitioners have already set aside identical orders passed by the tribunal and declared that the 1^st petitioner company is the holder of the Building Permit. Therefore I am of the view that the findings in Ext.P4 cannot be sustained.

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With respect to validity of the permit, the Tribunal found that there are some discrepancies contained in the application. But it is pertinent to note that the entitlement for Building Permit has already been declared through Ext.P2, earlier order of the 3^rd respondent Tribunal. Unless the said order is set aside

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W.P.C.NO.26864/2011

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by any competent court of law, the Tribunal was not justified in holding that there are discrepancies in the application. Therefore I am of the view that Tribunal went erred in holding that the permit was granted on the basis of an incomplete application. The findings with respect to verification regarding suitability of the site also does not deserve merit because the issue stands concluded through Ext.P2 order of the Tribunal, wherein eligibility of the petitioner for getting the permit was declared.

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Under the above mentioned circumstance, the writ petition is allowed and Ext.P4 order is hereby quashed. It is declared that the 1^st petitioner company is the holder of Ext.P3 building permit and that they are entitled to construct the Telecom Tower as long as the permit is valid.

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It is pointed out by learned counsel for the 1^st respondent that validity of Ext.P3 now stands expired and it is learned that the petitioner company had already applied for renewal of the permit. The above submission is disputed by learned counsel for the petitioner stating that the validity period has not expired. However, I make it clear that the above findings

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W.P.C.NO.26864/2011

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will not stand in the way of the 2^nd respondent Panchayath revoking the license if there is any valid reason as contemplated under the relevant provisions of the Panchayath Raj Act or in the Kerala Panchayath Raj Building Rules. It is also made clear that if the validity of Ext.P3 permit had expired, the 1^st petitioner company will be entitled to get it renewed, subject to eligibility in accordance with the relevant provisions.

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C.K.ABDUL REHIM

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RKM

Indus Towers Limited and Another v. Ranjith Lal N.K. & Anor

Case brief

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Indus Towers Limited and Another v. Ranjith Lal N.K. & Anor

Case brief

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