Benny M.D. v. Tribunal for Local Self Government Institutions, Trivandrum; Indus Towers Limited; Shibu Mathew; Malayattoor Neeleeswaram Grama Panchayath

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936 WP(C).No. 1127 of 2012 (M) --------------------------- PETITIONER(S): - ----------------- BENNY M.D., AGED 40 YEARS S/O.DEVASSY XIAN, MOOKADEPALLAN SANTHIPURAM, NEELEESWARAM, ERNAKULAM DISTRICT. BY ADV. SRI.BABU S. NAIR RESPONDENT(S): - ------------------ - *1.THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS TRIVANDRUM, REPRESENTED BY ITS SECRETARY, PIN-695 001. - *(R1 DELETED FROM THE PARTY ARRAY AS PER ORDER DATED 30.1.2012 IN I.A.NO.1427/12) 2. INDUS TOWERS LIMITED VENGARATH TOWERS, N.H.BYE-PASS, PALARIVATTOM COCHIN, PIN-682 025. REPRESENTED BY ITS DEPUTY GENERAL MANAGER BIJU T.NAIR. - 3.SHIBU MATHEW, S/O.MATHEW PARTNER, PALATHARA CONSTRUCTIONS, CHANGANASSERY THURUTHY P.O., KOTTAYAM DISTRICT, PIN-686 535. - 4.MALAYATTOOR NEELEESWARAM GRAMA PANCHAYATH REPRESENTED BY ITS SECRETARY, NEELEESWARAM ERNAKULAM DISTRICT, PIN-683 584. R4 BY ADV. DR.K.P.SATHEESAN R4 BY ADV. SRI.M.R.JAYAPRASAD R4 BY ADV. SRI.P.MOHANDAS (ERNAKULAM) R4 BY ADV. SRI.ANOOP.V.NAIR R2,R3 BY ADV. SRI.V.PHILIP MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).1127/12 ## APPENDIX PETITIONER'S EXHIBITS: - P1:TRUE COPY OF THE ORDER OF THE FIRST RESPONDENT DATED 26.7.2010 IN APPEAL NO.546/2010. - P2:TRUE COPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 10.6.2011. - P3:TRUE COPY OF THE ORDER DATED 29.7.2011 ISSUED BY THE 4TH RESPONDENT AS NO.A3/5062/11. - P4:TRUE COPY OF THE ORDER PASSED BY THE FIRST RESPONDENT-TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS DATED 8.12.2011 IN APPEAL NO.652/2011. - P5:TRUE COPY OF THE EXTRACT OF THE BASIC TAX REGISTER OF THE KALADY VILLAGE IN RESPECT OF THE PROPERTIES ISSUED BY THE VILLAGE OFFICER, KALADY. - P6:TRUE COPY OF THE CIRCULAR ISSUED BY THE DEPARTMENT OF LOCAL SELF GOVERNMENT DATED 10.5.2011 AS NO.25070/R.D.2/2011/LSGD. ## RESPONDENTS' EXHIBITS: R2(A):COPY OF THE REPORT DATED 5.9.2012 FILED BY THE VILLAGE OFFICER. //TRUE COPY// P.A.TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.1127 OF 2012 ==========================** Dated this the 21[st ] day of July, 2014 ## **JUDGMENT** The petitioner is a resident of Malayattoor Neeleeswaram **.** Grama Panchayat The petitioner is aggrieved by Ext.P4 order passed passed by the Tribunal for Local Self Government Institutions whereby the Secretary of the fourth respondent panchayat was directed to renew the building permit granted to the second respondent. The second respondent had earlier applied for building permit for construction of a mobile telecommunication tower in survey No.223/15 of Kalady village. The fourth respondent granted building permit on 21.11.2009. Subsequently, the said permit was cancelled as per order dated 22.12.2009. Aggrieved by the order of cancellation, the second respondent took up the matter in appeal as Appeal No.546 of 2010 before the Tribunal for Local Self **W.P.(C).1127/12** 2 Government Institutions. As per Ext.P1 order dated 26.7.2010, the Tribunal set aside the order cancelling the building permit. Subsequently, the second respondent submitted application for renewal of building permit. That application was rejected as per Ext.P3 assigning the reason that the land in question is described in the basic tax receipt as 'Nilam (wet land)'. Thereupon, the second respondent took up the matter in appeal by filing appeal No.652 of 2011 before the Tribunal which culminated in Ext.P4 order. The petitioner got himself impleaded in the said appeal as additional third respondent. As per Ext.P4, the Tribunal allowed the appeal and a direction was given to the fourth respondent to comply with the directions contained in paragraph 15 thereunder. It is on being aggrieved by Ext.P4 that the captioned writ petition has been filed. 2. I have heard the learned counsel for the petitioner, the learned counsel appearing for respondents 2 and 3 and the learned standing counsel appearing for the fourth respondent. **W.P.(C).1127/12** 3 3. Mainly three contentions have been raised by the petitioner to challenge Ext.P4. Firstly, it is contended that the Tribunal had failed to take into consideration the fact that in terms of the provisions under Rule 141(10) of the Kerala Municipality Building Rules (for short 'the Rules'), building permit should have been granted only for a period of one year and if an application is submitted for renewal beyond the said period, extension of the permit could not be granted. It is contended that in this case, application for renewal was submitted by the second respondent after the period of validity of the permit. It is the further contention of the petitioner that the Tribunal ought not to have entertained appeal No.652 of 2011 filed against Ext.P3 order dated 29.7.2011 as the remedy of the second respondent was to prefer an appeal before the panchayat. Lastly, it is contended that the land in question is still remaining as wet land. The learned counsel for respondents 2 and 3 contended that the petitioner cannot be heard to raise the aforesaid contentions as he had failed to **W.P.(C).1127/12** 4 take up any challenge against the original permit granted by the fourth respondent. It is further contended by the learned counsel that in terms of the provisions under Rules 130(7) and 130(8) of the Kerala Panchayat Building Rules, 2011, once an application for renewal is filed, the authority concerned is bound to consider the same if it is filed within the validity period. 4. As noticed hereinbefore, the petitioner assails Ext.P4 order firstly on the ground that the scope of Rule 141(10) of the Rules was not properly considered by the Tribunal. It is contended that in the light of the said Rules, extension of the permit could not have been granted if the application for renewal was filed after the validity period of one year. Per contra, the learned counsel for respondents 2 and 3 submitted that the permit was granted by the Secretary of the fourth respondent for a period of three years from 21.11.2009 and as such, going by the permit, it was valid up to 20.11.2012. The learned standing counsel appearing for the fourth respondent did not dispute **W.P.(C).1127/12** 5 the said facts. In other words, it is not disputed that building permit was granted originally for a period of three years. It is also contented that the building permit was subsequently cancelled. But at the same time, the position that the order of cancellation was interfered with by the Tribunal and it was set aside is not disputed. A perusal of Rule 141(10) of the Rules would reveal that building permit could be granted only for a period of one year. It is also not in dispute that the second respondent had applied for renewal before the expiry of the validity period mentioned in the permit. Evidently, it is taking into account all these facts that the Tribunal passed Ext.P4 order. In the light of the indisputable facts obtained in this case, no one can attribute any flaw or laches or misrepresentation on the part of the second respondent. It cannot be said that the building permit was granted without any satisfaction of the conditions for granting permit. In short, the permit granted to the second respondent was valid up to 20.11.2012 and prior to the expiry of that period, the second respondent applied for its renewal. The Secretary of the fourth **W.P.(C).1127/12** 6 respondent, therefore, could not have taken advantage of his own wrong in rejecting the application for renewal on the ground that the application for renewal of building permit would not lie in the light of Rule 141(10) of the Rules. At the same time, I am of the view that the petitioner or the fourth respondent could not have taken up such a contention before the Tribunal and therefore, the Tribunal ought not have considered such objections in view of the fact that such a reason was not assigned in Ext.P3. The reason assigned in Ext.P3 for rejecting the application for renewal of building permit is that the land in question was described in the basic tax receipt as 'Nilam'. When such a reason alone was cited for rejection, the tenability of that reason alone could have been gone into by the Tribunal. Therefore, the very point to be considered is whether the said reason could have been assigned for rejecting application. In the light of plethora of decisions including the decision in **Praveen v. Land Revenue Commissioner [2010 (2) KLT 617]** I have no hesitation to hold that the mere description of a property in the revenue records or in other **W.P.(C).1127/12** 7 documents as 'Nilam' by itself could not be a reason for rejecting an application for building permit. The question is whether the actual nature of the land was taken into consideration at the time of entertaining the application for building permit. The petitioner as also the fourth respondent could not take up the contention that the application submitted by the second respondent for grant of building permit was originally granted with effect from 21.11.2009 and later, it was cancelled on 22.12.2009. Obviously, the second respondent successfully challenged the order of cancellation and the Tribunal set aside the same. The learned counsel for the second respondent contended that the petitioner cannot feign ignorance of the grant of building permit in favour of the second respondent as on an earlier occasion, the second respondent was constrained to approach this Court by filing W.P.(C).No.25560 of 2010 seeking police protection in the light of the objection raised by the local residents against the reclamation of the land and the attempt to effect construction thereon. The fact that the land in question is partly reclaimed for erecting **W.P.(C).1127/12** 8 mobile tower cannot be disputed. The contention of the second respondent is that the extent required for installing the mobile tower was partly reclaimed and in fact, it was reclaimed earlier by the owner of the land himself and the second respondent had only taken the said extent of the reclaimed land on lease. Obviously, the Secretary of the fourth respondent rejected the application for renewal of permit based on an absolutely unsustainable reason that the land in question is described in the basic tax register as 'Nilam'. The second respondent relies on Ext.R2(a) report submitted by the village officer to contend that the land in question is not presently lying as wet land. It is reported thereunder that the land in question was reclaimed long ago. That apart, a perusal of Ext.R2(a) would reveal that the village officer had noted the availability of mast and mastful trees thereon. There cannot be any dispute with respect to the position that the order passed by the Tribunal is called for intervention by this Court under Article 226 of the Constitution of India only if such an order is passed against the weight of evidence or if it is infected with error of **W.P.(C).1127/12** 9 law. If a plausible view was taken by the Tribunal based on consideration of the evidence adduced before it merely because of the fact that another view is also plausible this Court will not certainly interfere with such an order. No ground has been brought out by the petitioner for the interference by this Court with Ext.P4 order. In such circumstances, this writ petition is liable to fail and accordingly, it is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** **spc/** **W.P.(C).1127/12** 10 **C.T. RAVIKUMAR, J.** **JUDGMENT September, 2010** **W.P.(C).1127/12** 11