ATC Telecom Infrastructure Private Limited v Kadukutty Grama Panchayat and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 04TH DAY OF NOVEMBER 2019 / 13TH KARTHIKA, 1941** ## **WP(C).No.42249 OF 2018(E)** ## **PETITIONER:** **ATC TELECOM INFRASTRUCTURE PRIVATE LIMITED REPRESENTED BY ITS SENIOR MANAGER (LEGAL), MR.BABU PATTAHANAM, 36/2624, 2ND FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, KALOOR, ERNAKULAM** **- 682 017.** **BY ADVS.** **SRI.PHILIP T.VARGHESE THOMAS.T. VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA** ## **RESPONDENTS:** - **1 KADUKUTTY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KADUKUTTY, THRISSUR - 680 309.** - **2 THE SECRETARY KADUKUTTY GRAMA PANCHAYAT, KADUKUTTY, THRISSUR - 680 309.** - **3 THE DISTRICT TELECOM COMMITTEE THRISSUR, REPRESENTED BY ITS CHAIRMAN, THE DISTRICT COLLECTOR, THRISSUR - 680 003.** - **4 JERRY ANTONY** - **S/O.LATE ANTONY, THEKKEKARA, KORATH HOUSE,** - **ANNANAD P.O., KALLUR VADAKKEMURI VILLAGE, CHALAKKUDY, THRISSUR - 680 308.** - **R1 BY ADV. SRI.SHEEJO CHACKO-SC R1 BY ADV. SMT.LAYA SIMON** **SR.MANURAJ K.J- G.P** - **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON** - **04.11.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.42249 OF 2018(E)** **2** ## **JUDGMENT** The petitioner, which is stated to be a Private Limited Company incorporated under the provisions of the Companies Act, asserts that they are engaged in the business of providing infrastructural requirements to Telecom Companies. 2. According to them, for the purpose of putting up a telecommunication tower, they had obtained Ext.P1 permit from the 1[st] respondent-Kadukutty Grama Panchayat, on 26.10.2015, but that before they could continue with the construction, Ext.P2 was issued, less than a month later on 21.11.2015, asking them to stop the construction apparantly on the reason that certain neighboring property owners and residents of the locality had raised objections. 2. The petitioner says that this stop memo was challenged through an Appeal before the Tribunal for Local Self Government Institutions and that it was stayed through Ext.P3 order, but that in spite of this, the Grama Panchayat issued Ext.P4 stopping the construction and therefore, that they **WP(C).No.42249 OF 2018(E)** **3** approached the Tribunal again and obtained Ext.P5 order. They say that, even though they have obtained the above two orders, the Panchayat issued Ext.P6, saying that merely on account of the said stay orders of the Tribunal the construction cannot be taken forward and that they, therefore, had to approach the Tribunal once again and to obtain Ext.P7 order. They say that finally through Ext.P8, the Appeal referred to in Ext.P7 interim order, was allowed, directing the Panchayat not to obstruct the construction of the telecom tower by the appellant. 3. The petitioner says that, as is clear from the earlier stop memos and decisions of the Panchayat, they were relying upon a suit that was filed by the 4[th] respondent herein and another person before the Munisiff's Court, Chalakudy, namely O.S.No.921/2015, but that through Ext.P9, the said Court dismissed their application for interim injunction and consequently, that no action could have thereafter been taken by the Panchayat to stop the construction. They say that, since, in spite of this they were obstructed from continuing **WP(C).No.42249 OF 2018(E)** **4** with the construction, they approached this Court seeking police protection, by filing W.P.(C).No.26079/2016, which was disposed of through Ext.P10 judgment allowing such plea. They further say that the Tribunal has also issued final orders in Appeal Nos.1057/2015 and 49/2016 filed by them earlier before the Tribunal, but that for some inexplicable reason, the Panchayat issued another order cancelling Ext.P1 permit and that they were constrained to thus challenge the same by filing W.P.(C).No.2942/2017, which was finally heard by this Courtalong with W.P.(C).No.12159/2017 and that Ext.P13 judgment has been delivered, finding that the Panchayat has no power to cancel the building permit. 4. The petitioner says that, however, since by now, the terms of the original permit had expired, they were constrained to approach the Panchayat for its extension, which had also been directed to be considered by Ext.P13 judgment; but that instead of considering the matter in its proper perspective, the Secretary has now issued Ext.P15 merely following an earlier decision of the Panchayat Committee, a copy which is on **WP(C).No.42249 OF 2018(E)** **5** record as Ext.P16, and they impugn this order as being illegal and unlawful in this writ petition. They contend that the reason stated in Ext.P15 are not merely untenable, but are in gross disrespect to the various directions of this Court and that of the Tribunal for Local Self Government Institutions. They thus pray that Ext.P15 be struck down and that the Secretary of the Panchayat be directed to take a fresh decision on their application for extension of permit, adverting to the Full Bench judgments of this Court in _**Tommy Thomas v. State of Kerala**_ [2019 (3) KLT 987]. 5. The learned Standing Counsel appearing for the respondent-Panchayat, Sri.Sheejo Chacko, submits that a counter affidavit has been placed on record, wherein they have contented very specifically that Ext.P15 is an appealable order; and therefore, that this writ petition is not maintainable. He says that after this Court, directed the Panchayat to take a decision, through Ext.P13 judgment, its Committee held a meeting on 24.03.2018 and decided unanimously not to renew the building permit. He says that after this decision was taken, **WP(C).No.42249 OF 2018(E)** **6** the Secretary heard both sides and Ext.P15 was issued only thereafter. He, therefore, prays that this writ petition be dismissed. 6. Even when I hear Sri.Sheejo Chacko as afore, when one examines Ext.P15 it becomes obvious that five reasons have been stated therein to decline grant of permit to the petitioner. The first three among them relates to the provisions of Sections 232 and 233 of the Kerala Panchayat Raj Act, as per which it is alleged that before the permit has been obtained by them they were not given permission under these two sections. As regards reason No.4 in Ext.P15 is concerned, they say that the building permit cannot be renewed for more than once and the fifth reason stated is that the building permit has already been cancelled. 6. It is needless to say, even on an _e_ x f _acie_ reading of Ext.P15, that it has been issued under the dictation of the Panchayat Committee, since the reasons recorded therein are the same as have been recorded in Ext.P16; and in any event of the matter, the reasons in Ext.P15 cannot find favour in law. **WP(C).No.42249 OF 2018(E)** **7** This is particularly because, the provisions of Sections 232 and 233 of the Kerala Panchayat Raj Act will not be applicable at the stage when the permit was granted or at the stage of its renewal, since at this time, the only question is regarding the technical aspects of the erection of the Telecom Tower. The other issues will have to be dealt with by the appropriate Authorities, including the District Telecom Authority; and if any resident or any objector has grievance against the tower or its operation, then it could be up to them to approach the said Authority appropriately. As regards reason Nos. 4 and 5 in Ext.P15 are concerned, it is obvious that even though the Panchayat had earlier renewed the licence until 24.10.2017, Ext.P10 decision had been taken even during the currency of that period to stop the construction and that thereafter, the petitioner has not been able to continue with the same. As regards condition No.5 is concerned, it is clearly an affront of the directions of this Court, as rightly stated by Sri.Philip.T.Varghese-learned counsel for the petitioner, since through Ext.P13 judgment, the decision of the Panchayat cancelling the building permit had already been set aside. **WP(C).No.42249 OF 2018(E)** **8** 7. I am, therefore, certainly of the view that this is a matter that requires to be reconsidered by the Secretary without adverting to Ext.P16 and that he will have to issue orders, in the manner as has been declared by the Full Bench judgment in _**Tommy Thomas**_ (supra). In the afore circumstances, I order this writ petition and direct the 2[nd] respondent-Secretary of the Panchayat to immediately reconsider the application of the petitioner for renewal of the building permit and take a decision thereon, adverting to _**Tommy Thomas**_ (supra), and after affording an opportunity of being heard to the petitioner as also the objectors, as expeditiously as is possible, but not later than one month from the date of receipt of a copy of this judgment. I make it clear that, while doing so, the Secretary shall keep in mind the directions of this Court in Ext.P13 judgment and that of the Tribunal in Exts.P7, P11 and P12 orders. I further clarify that since renewal of the permit had earlier been granted until 24.10.2017, but had been interdicted, through Ext.P10 order dated 18.01.2017 cancelling **WP(C).No.42249 OF 2018(E)** **9** the same (which order has been set aside through Ext.P13 judgment), the petitioner will only be entitled to a renewal for the period which they could have obtained had the afore mentioned Ext.P10 order cancelling the renewal had not been issued, which is approximately about nine months. **Sd/-** nak **DEVAN RAMACHANDRAN JUDGE** **WP(C).No.42249 OF 2018(E)** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF BUILDING PERMIT NO.J80/1516 ISSUED BY THE 2ND RESPONDENT DATED 26/10/2015.** - **EXHIBIT P2 TRUE COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 21/11/2015.** - **EXHIBIT P3 TRUE COPY OF ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A.NO.2351/2015 IN APPEAL NO.1057/2015 DATED 08/12/2015.** - **EXHIBIT P4 TRUE COPY OF THE DECISION NO.4(2) OF THE 1ST RESPONDENT DATED 30/11/2015.** - **EXHIBIT P5 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A.NO.101/2016 IN APPEAL NO.49/2016 DATED 21/01/2016.** - **EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DATED 04/02/2016.** - **EXHIBIT P7 TRUE COPY OF ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN I.A.NO.355/2016 IN APPEAL NO.180/2016 DATED 11/03/2016.** - **EXHIBIT P8 TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.180/2016 DATED 13/04/2016.** - **EXHIBIT P9 TRUE COPY OF THE ORDER OF THE MUNSIFF COURT, CHALAKKUDY IN I.A.NO.2384/2015 IN O.S.NO.921/2015 DATED 10/06/2016.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.26079/2016 DATED 05/08/2016.** - **EXHIBIT P11 TRUE COPY OF ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.1057/2015 DATED 29/11/2017.** **WP(C).No.42249 OF 2018(E)** **11** **EXHIBIT P12** **TRUE COPY OF ORDER OF THE TRIBUNAL LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM IN APPEAL NO.49/2016 DATED 29/11/2017.** **EXHIBIT P13 TRUE COPY OF JUDGMENT IN W.P(C) NOS.2942/2017 AND 12159/2017 DATED 14/02/2018.** **EXHIBIT P14 TRUE COPY OF NOTICE ISSUED BY THE 2ND RESPONDENT DATED 05/03/2018.** **EXHIBIT P15 TRUE COPY OF ORDER NO.E-6593/2016 ISSUED BY THE 2ND RESPONDENT DATED 26/03/2018.** **EXHIBIT P16 TRUE COPY OF DECISION NO.IV OF THE PANCHAYAT COMMITTEE OF THE 1ST RESPONDENT DATED 24/03/2018.** **EXHIBIT P17 TRUE COPY OF ORDER OF THE MUNSIFF'S COURT, CHALAKKUDY IN I.A.NO.653/2018 IN O.S.NO.187/2018 DATED 04/06/2018.** //TRUE COPY// P.A TO JUDGE