Partly allowed

Indus Towers Limited v. Chavara Grama Panchayath

Kerala HC22 Feb 2012WP(C)/29915/2011

Case brief

AI extract

What is this about?

The court dismissed the challenge against the Tribunal's order staying the stay order but directed the local Panchayat to take a final decision on the building permit complaint within one month, adhering to statutory procedures including notice if revocation is proposed.

What did the court decide?

Direction to the 2nd Respondent to take a final decision on the permit within one month, complying with Rule 18 and issuing notice if revocation is proposed.

Indus Towers Limited Vs Chavara Grama Panchayath — Municipal and Town Planning | 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. 29915 of 2011 (L)

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PETITIONER(S):

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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 PREMAKRISHNAN NAIR M.N.

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BY ADV. SRI.P.SATHISAN

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RESPONDENT(S):

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1. CHAVARA GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, CHAVARA, KOLLAM -691 583.

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2. THE SECRETARY,CHAVARA GRAMA PANCHAYATH, CHAVARA, KOLLAM- 691 583.

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3. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT

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INSTITUTIONS, REPRESENTED BY ITS SECRETARY, THIRUVANANTHAPURAM- 695 001.

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R1 & R2 BY ADV. SRI.C.RAJENDRAN

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SMT.R.S.SREEVIDYA R3 BY GOVERNMENT PLEADER SRI.M.MUHAMMED SHAFI

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-02-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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sts

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WP(C)NO.29915/2011

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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 THE BUILDING PERMIT DATED 23/2/2011

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P3 COPY OF THE STOP MEMO DATED 2/5/2011 ISSUED BY 1ST RESPONDENT

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P4 COPY OF THE APPEAL NO.348/2011 BEFORE TRIBUNAL

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P5 COPY OF THE ORDER ISSUED BY TRIBUNAL FOR LOCAL SELF GOVERNMENT IN APPEAL NO.348/2011 DATED 18/8/2011

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P6 COPY OF THE ORDER OF THIS HON'BLE COURT IN WP(C)26864/2011

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RESPONDENT'S EXHIBITS: NIL

/TRUE COPY/

P.A.TO.JUDGE

sts

C.K. ABDUL REHIM, J.

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W.P.(c) No. 29915 OF 2011-L

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DATED THIS THE 22^nd DAY OF FEBRUARY, 2012

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J U D G M E N T

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Challenge in this writ petition is against Ext.P5 order passed by the 3^rd respondent Tribunal. The petitioner company was granted permit for establishing a Telecommunication Tower. Subsequently through Ext.P3 notice the 2^nd respondent had directed the petitioner to stop the work until further orders, on the basis that a mass petition was received from neighbouring residents. The petitioner company had challenged Ext.P3 notice issued by the 2^nd respondent before the Tribunal in appeal. Through Ext.P5 the appeal was disposed of observing that, when a complaint is received by the 2^nd respondent it is only fair on the part of the Secretary to decide the same and till a resolution is reached in the light of the conditions mentioned in the permit the appellant has to stop the construction. Finding that there is no illegality with respect

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W.P.(c) No. 29915/2011 -2-

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to Ext.P3, the appeal was dismissed. However, the 2^nd respondent was directed to decide the complaint raised by the people of the locality within a period of one month.

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Sri. P. Sathisan, learned counsel appearing on behalf of the petitioner assailed Ext.P5 on the ground that Ext.P3 is violative of Rule 18 of the Kerala Panchayat Building Rules, 2011 (which corresponds to Rule 19 of the Kerala Municipality Building Rules). It is contended that, before issuing Ext.P3 notice the Secretary ought to have issued a notice to the petitioner in view of the proviso to Rule 18 and should have afforded an opportunity to submit objections against such proposal.

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On consideration of Rule 18 it is evident that Secretary of the Grama panchayat is vested with power to stay, suspend or revoke any permit on various reasons including the reason that the construction will be a threat to life or property. Proviso to Rule 18 proscribes that before revoking such permit the holder of the permit should be given 7 days notice and an opportunity for submitting

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W.P.(c) No. 29915/2011 -3-

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explanation and also an opportunity of hearing. Contention of learned counsel is to the effect that Ext.P3 was issued without affording any such opportunity and that Ext.P3 is lacking from any details regarding the reason on which such a notice was issued.

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While considering the above contention I take note of the fact that, through Ext.P3 the petitioner company was directed only to stop the construction activities on the basis of a mass complaint received. The action in this regard cannot be considered as a revocation of the permit. On the other hand it is only having the effect stay or suspension of permit. The notice contemplated under proviso to Rule 18 is a step which need be taken before revocation of the permit. The contention of the petitioner that even for ordering stay of the permit or for suspending the permit pending any steps for revocation shall also be preceded by such notice, cannot be countenanced. It is obligatory on the part of the 2^nd respondent to issue such notice as contemplated under the proviso, before proceeding with further steps for

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W.P.(c) No. 29915/2011

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-4-

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revocation or cancellation of the permit. Since Ext.P3 is an order staying the construction, I find there is no violation of Rule 18 of the Building Rules or the proviso thereof. Hence I find no illegality or irregularity with respect to the conclusion arrived by the 3^rd respondent.

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Learned counsel for the petitioner further raised a complaint that, inspite of the specific direction issued by the Tribunal to take a decision on the matter within a period of one month, no action has been taken by the 2^nd respondent. Sri. C. Rajendran, learned counsel appearing for respondents 1 and 2 contended that, immediately after Ext.P3 the petitioner had taken up the matter in appeal and Ext.P5 order of the Tribunal was passed only on 18-08-2011. Further, the petitioner had assailed the order of the Tribunal in this writ petition and obtained an interim stay as early as on 10-11-2011. Therefore, the Secretary cannot be blamed for non-completion of the directions issued by the Tribunal. Considering the circumstances as mentioned above, I am of the view that since the matter was being

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W.P.(c) No. 29915/2011 -5-

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prosecuted at different levels there cannot be attributed any latches on the part of the 2^nd respondent.

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However, while declining to entertain challenges raised against Ext.P5, I am of the view that the respondents 1 and 2 had an obligation to take a final decision in the matter at the earliest. The building permit granted in favour of the petitioner company cannot be put to suspension indefinitely assigning the reason that a mass complaint was received. If the 2^nd respondent is proposing any action to revoke the permit, a notice as contemplated under the proviso to Rule 18 shall be issued to the petitioner forthwith. It is further obligatory to take final decision on the matter after affording reasonable opportunity as contemplated under Rule 18.

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A final decision in this regard shall be taken by the 2^nd respondent after complying with the statutory procedure, within a period of one month from today.

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Sd/-

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C.K. ABDUL REHIM, JUDGE.

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AMG

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True copy

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P.A to Judge

Indus Towers Limited v. Chavara Grama Panchayath

Case brief

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Indus Towers Limited v. Chavara Grama Panchayath

Case brief

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