High Court of KeralaSingle Judge2019-10-16Writ petition allowed; renewal to be considered...

Biju.K.T and Peter T.M v State of Kerala and Others

Case / Petition Number:WP(C).No.14557 OF 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Devan Ramachandran
Judgment Date: 2019-10-16
Court Decision / Holding: Writ petition allowed; directed Panchayath to consider renewal of the building permit and plan, if any, after affording necessary opportunity of hearing to the petitioners and all other objectors, and after addressing the contentions and citations in law; to issue an appropriate order in terms of law; merits left open for future consideration.
Final Disposition: Writ petition allowed; renewal to be considered after hearing with due process and compliance with statutory procedures; merits reserved for later consideration.

Parties to the Case

Appellants / Petitioners

BIJU.K.T
PETER T.M

Respondents

State of Kerala represented by its Secretary to Government, Local Self Government Department, Government Secretariat, Thiruvananthapuram
District Collector, Kakkanad Civil Station, Ernakulam District
The District Telecom Committee, Ernakulam, represented by its Chairman, Collectorate, Ernakulam District
District Town Planning Officer, Town Planning Office, Collectorate, Ernakulam District
Elankunnapuzha Grama Panchayath, Malipuram P.O, Ernakulam
Ascend Telecom Infrastructures Pvt Ltd, Door No.32/2987D, Salomiya Building, Aysha Road, Vyttila, Ernakulam
Jerome Chee ku, S/o. Chackalackal Chee ku, aged about 71 years, Chackalackal House, Ochanthuruth, Puthuvypu Village, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• Sri G. Krishnakumar
• Smt. M.L. Remya

Counsels for Respondents

• Sri P.M. Benzir
• Sri P. Sathisan
• Smt. K. Amminkkutty

Case Synopsis & Summary

Petitioners challenge a building permit granted to Ascend Telecom Infrastructure Pvt Ltd by Elankunnapuzha Grama Panchayath for telecom infrastructure at Oachanthuruth. They contend the Panchayath ignored nearby residents' objections and safety concerns and failed to apply zoning and regulatory requirements, rendering the permit invalid. The petition also notes that the original permit and plan had expired, and argues renewal should be conditioned on a fresh appraisal and a hearing of all objectors. During arguments, counsel for the Panchayath submitted that though the original term had lapsed, renewal could be sought, and if the court was inclined, a hearing could be held to consider objections. Petitioners' counsel relied on Kerala High Court precedents (Regional Town Planner v. Rasheed; Secretary, Maradu Municipality v. ATC Telecom Tower Corp.; Philip George C. v. State of Kerala) to contend that the permit should not have been issued initially, or at least that due process must govern renewal. The Judge, however, acceded to the Panchayath's request to hear petitioners and others before renewal and directed the Panchayath to consider renewal in compliance with applicable statutes, leaving merits open for subsequent consideration. The order thus effectively suspends final resolution on the merits and requires due process in the renewal decision.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contend that the Panchayath’s grant of the building permit was invalid because it did not take into account objections from residents or address safety and zoning concerns. They assert that due process requires considering objections, reviewing the site’s categorization zones, and following statutory procedures and regulations. They point to prior High Court decisions (Regional Town Planner v. Rasheed, Secretary, Maradu Municipality v. ATC Telecom Tower Corp., and Philip George C. v. State of Kerala) to argue that a building permit in such a context should not have been issued, and that renewal should be conditioned on hearing the petitioners and all objectors. They emphasize that the original permit term had expired and argue renewal should be examined only after a proper hearing and a fresh determination, including consideration of the contentions raised and legal citations, so as not to circumvent legal safeguards. They request the court to direct the Panchayath to grant renewal only after affording opportunity of hearing and after due consideration of law and regulations. They also seek to reserve rights to challenge the renewal decision if necessary.

Contentions of Respondents

The respondents contended that even though the original permit may have expired, renewal is permissible since the Panchayath had already found that the area is not within a prohibited zone. They urged that if the court is inclined to intervene, it should at least permit a hearing of petitioners and other objectors before renewal. They argued that the petition is not entirely devoid of merit but insisted that the renewal process could be validated through lawful procedures and appropriate statutory compliance, referencing statutory regulations and GO provisions. They requested the petition be disposed of by allowing the Panchayath to proceed with renewal after hearing. Counsel for the Panchayath maintained that renewal is a permissible course after due process and emphasized compliance with statutory requirements, arguing for a measured, lawful renewal rather than a meritorious adjudication on the merits at this stage.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Regional Town Planner and Another v. Muhammed Rasheed and Others	2019(3)KHC 987	Positive	Cited as authority supporting that initial building permit could not have been issued and that due process is required; used to justify renewal after hearing.
Secretary, Maradu Municipality v. M/s.ATC Telecom Tower Corporation Pvt. Ltd. and Others	2015 (5)KHC 901	Positive	Cited to reinforce the need for due process and to frame the renewal approach with hearings.
Philip George C. v. State of Kerala and Others	2014 (2)KHC 220	Positive	Cited to align with the approach of reviewing permit issuance with due process and allowing hearing before renewal.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 16TH DAY OF OCTOBER 2019 / 24TH ASWINA, 1941** ## **WP(C).No.14557 OF 2019(T)** ## **PETITIONERS:** **1 BIJU.K.T AGED 46 YEARS S/O. LATE THILAKAN, CONVENOR, OCHANTHURUTH MOBILE TOWER NIRMANA, VIRUTHA SAMITHY, KANNANGATTU HOUSE, OACHANTHURUTH P.O, PUTHUVYPPU VILLAGE, ELAMKUNNAPUZHA PANCHAYATH, KOCHI TALUK, ERNAKULAM-682508.** - **2 PETER T.M, AGED 63 YEARS S/O. MATHEW,THACHUTHARAYIL HOUSE, OCHANTHURUTHU P.O, 682508.** **BY ADVS. SRI.G.KRISHNAKUMAR SMT.M.L.REMYA** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PINCODE-695001.** - **2 DISTRICT COLLECTOR, COLLECTORATE, KAKKANAD CIVIL STATION, ERNAKULAM DISTRICT, PINCODE-682030.** - **3 THE DISTRICT TELECOM COMMITTEE, ERNAKULAM, REPRESENTED BY ITS CHAIRMAN, COLLECTORATE, ERNAKULAM DISTRICT, PINCODE-682030.** - **4 DISTRICT TOWN PLANNING OFFICER, TOWN PLANNING OFFICE, COLLECTORATE, ERNAKULAM DISTRICT, PINCODE-682030.** - **5 ELANKUNNAPUZHA GRAMA PANCHAYATH, MALIPURAM P.O, ERNAKULAM, PIN-682511, REPRESENTED BY ITS SECRETARY.** - **6 ASCEND TELECOM INFRASTRUCTURES PVT LTD, DOOR NO.32/2987D, SALOMIYA BUILDING, AYSHA ROAD, VYTTILA, ERNAKULAM-682019.** **WP(C).No.14557 OF 2019 2** **7 JEROME CHEEKKU, S/O. CHACKALACKAL CHEEKKU, AGED ABOUT 71 YARS, CHACKALACKAL HOUSE, OCHANTHURUTH, PUTHUVYPPU VILLAGE, ERNAKULAM-682508.** **R5 BY ADV. SRI.P.M.BENZIR R6 BY ADV. SRI.P.SATHISAN** ## **SMT.K.AMMINIKKUTTY, SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No.14557 OF 2019 3** ## **JUDGMENT** The petitioners have approached this Court challenging the grant of a building permit to the 6[th] respondent-Company, which is stated to be a Telecom Infrastructure Facilitator Company, on the ground that the objections of the residents of the neighbourhood had not been taken into account by the Panchayath and that their concerns and safety requirements were not adverted to. 2. Even though there are various allegations and averments in this writ petition, when this matter was taken up today, Shri.P.M.Benzir-learned Standing Counsel for the 5[th] respondent- Panchayath,submitted that approval for the impugned building permit and plan has now expired and that the 6[th] respondent has made an application for renewal of the **WP(C).No.14557 OF 2019 4** same. He says that, if this Court is so inclined, the Panchayath is willing to hear the petitioners and all other objectors also and take note of their concerns when the application of the 6[th] respondent for renewal is considered; and thus prays that no further orders may be issued in this writ petition. **==> picture [324 x 11] intentionally omitted <==** respondent, submits that even though the original period of the building permit may have expired, they are entitled to obtain renewal of the same since the Panchayath themselves have found that the area where the construction is proposed, has not been classified as a prohibited zone, as has been alleged by the petitioners. He, therefore, prays that this writ petition be allowed. **==> picture [324 x 13] intentionally omitted <==** Shri.G.Krishnakumar-learned counsel for ## **WP(C).No.14557 OF 2019 5** the petitioners, submits that going by the judgments of this Court in _**Regional Town Planner and Another v. Muhammed Rasheed and Others**_ [2019(3)KHC 987] _**; Secretary, Maradu Municipality v. M/s.ATC Telecom**_ _**Tower Corporation Pvt. Ltd. and Others**_ [2015 (5)KHC 901] _and_ _**Philip George C. v. State of Kerala and Others**_ [2014 (2)KHC 220] a building permit could not have been issued by the Panchayath in the first place but that if they are willing to hear his clients before its renewal is considered, he will then be satisfied with the same for the time being; however, praying that, if so warranted in future, liberty may be granted to the petitioners to approach this Court again. In the afore circumstances and since the term of the impugned plan and permit concededly have already expired, I deem it appropriate to order this writ petition ## **WP(C).No.14557 OF 2019 6** acceding to the suggestion made by Shri.P.M.Benzil-learned counsel for the Panchayath. Resultantly, I order this writ petition and direct the 5[th] respondentPanchayath to consider the application of the 6[th] respondent, if any, for renewal of their building permit and plan, only after affording necessary opportunity of being heard to the petitioners and to all other objectors, if any, and also adverting to the contentions and citations in law to be made by the petitioners or any other persons; and thereafter, issue an appropriate order in terms of law and implicitly following the procedure mandated under the applicable Statutes and Regulations. Needless to say, since I have not considered the contentions of the parties on its merits, all of them are left open **WP(C).No.14557 OF 2019 7** to be pursued appropriately when the afore exercise is completed. **Sd/-** **DEVAN RAMACHANDRAN** **JUDGE** **MC/19.10.19** **WP(C).No.14557 OF 2019 8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE REPLY DATED 09.04.2019 ISSUED BY THE VILLAGE OFFICER, PUTHUVYPU UNDER RTI APPLICATION.** **EXHIBIT P2 THE RELEVANT PAGES OF THE STRUCTURE PLAN(GENERAL TOWN PLANNING SCHEME) FOR CENTRAL CITY OF KOCHI, AS VARIED BY GO(MS) NO.143/07/LSGD DATED 31.05.2007.** - **EXHIBIT P3 TRUE COPY OF THE REPLY DATED 05.03.2019 ISSUED UNDER RTI ACT FROM THE TOWN PLANNING OFFICER.** - **EXHIBIT P4 TRUE COPY OF THE SITE PLAN OF CATEGORIZATION ZONES NOTIFIED BY THE TOWN PLANNING OFFICER, ERNAKULAM.** - **EXHIBIT P5 TRUE COPY OF THE APPROVED PLAN FOR ERECTION OF THE TELECOMMUNICATION TOWER ISSUED BY THE 5TH RESPONDENT PANCHAYATH.** **EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT DATED 5.1.2018 ISSUED BY THE 5TH RESPONDENT PANCHAYATH TO THE 6TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THE GO(MS) 31/2014/ITD DATED 05.11.2014.** - **EXHIBIT P8 TRUE COPY OF THE ORDER NO.M2/4810/17 DATED 30.11.2018 ISSUED BY THE 2ND RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE ADDL.3RD RESPONDENT IN APPEAL NO.262/18 BEFORE THE LSGI TRIBUNAL.** - **EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 25.01.2019 OF THE LSGI TRIBUNAL, THIRUVANANTHAPURAM IN APPEAL NO.262/18.** - **EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 14.03.2019 OF THIS HON'BLE COURT IN WPC NO.41875/2018.** - **EXHIBIT P12 TRUE COPY OF THE ASSET REGISTER OF THE 5TH RESPONDENT WHICH CONTAIN THE DETAILS OF GURUDEVAN LANE, OBTAINED UNDER THE RTI ACT.** **WP(C).No.14557 OF 2019 9** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R6(A) TRUE COPY OF THE BUILDING PERMIT DATED 05.01.2018 ISSUED BY THE ELAKUNNAPUZHA GRAMA PANCHAYAT** **EXHIBIT R6(B) TRUE COPY APPLICATION SUBMITTED BEFORE PUBLIC INFORMATION OFFICER AND ITS RECEIPT DATED 27-08-2019.** **EXHIBIT R6(C) TRUE COPY OF INFORMATION OBTYAINED UNDER RIGHT TO INFORMATION ACT.** **EXHIBIT R6(D) TRUE COPY OF INTERIM ORDER PASSED BY HON'BLE HIGH COURT IN WPC NO.27023 OF 2015 DATED 16-02-2016.** **EXHIBIT R6(E) TRUE COPY OF INTERIM ORDER PASSED BY HON'BLE COURT IN WPC NO.15529 OF 2018 DATED 08.05.2018.** **MC** **(TRUE COPY) PA TO JUDGE**