M/s ATC Telecom Infrastructure Pvt. Ltd. v. Kerala State Telecom Advisory Committee, District Telecom Committee, Vadanappally Grama Panchayat and Vadanappally Grama Panchayat Committee

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **THURSDAY, THE 5TH DAY OF JULY 2018 / 14TH ASHADHA, 1940** **WP(C).No. 13283 of 2018** ## **PETITIONER** **M/S.ATC TELECOM INFRASTRUCTURE PVT. LTD.** **(FORMERLY KNOWN AS ATC TELECOM TOWER CORPORATION PVT. LTD) 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE, SHENOY ROAD, COCHIN-682 017 REPRESENTED BY SENIOR MANAGER (LEGAL) MR. BABU PATTATHANAM.** **BY ADVS.SRI.SANTHOSH MATHEW** **SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.ALPHIN ANTONY SRI.VIJAY V. PAUL SMT.KARTHIKA MARIA SMT.MARIA ROY SMT.VEENA RAVEENDRAN** ## **RESPONDENTS:** **1. KERALA STATE TELECOM ADVISORY COMMITTEE OF REPRESENTED BY ITS CHAIRMAN, I.T. SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. THE DISTRICT TELECOM COMMITTEE, REPRESENTED BY ITS CHAIRMAN (DISTRICT COLLECTOR), COLLECTORATE, THRISSUR-680 001.** **3. VADANAPPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, P.O. VADANAPPALLY, PIN-680 614, THRISSUR DISTRICT** **4. VADANAPPALLY GRAMA PANCHAYAT COMMITTEE, REPRESENTED BY ITS PRESIDENT, P.O VADANAPPALLY, PIN-680 614, THRISSUR DISTRICT** **R1 & R2 BY GOVERNMENT PLEADER SRI. MANURAJ.K.J. R3,R4 BY ADVS. SRI.S.U.NAZAR** **SRI.K.V.SASIDHARAN** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sdr/-** ## **WP(C).No. 13283 of 2018 (I)** **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 7-2-2017 BEFORE THE 3RD RESPONDENT** **EXHIBIT P2 TRUE COPY OF THE RECEIPT ISSUED BY THE THIRD RESPONDENT ACKNOWLEDGING THE ACCEPTANCE OF EXHIBIT P1 APPLICATION DATED 16-2-2017 EXHIBIT P3 TRUE COPY OF THE COMMUNICATION ISSUED BY THE THIRD RESPONDENT PANCHAYAT TO THE PETITIONER EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF THE ORDER PASSED BY THE DTC DATED 14.7.2017 EXHIBIT P5 TRUE COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE DATED 17-10-2017 RECEIVED BY THE PETITIONER UNDER RTI ACT EXHIBIT P6 TRUE COPY OF THE COVERING LETTER ISSUED BY THE SECRETARY TO THE FIRST RESPONDENT DATED 14.11.2017 EXHIBIT P7 TRUE COPY OF THE LETTER ISSUED BY THE SECRETARY DATED 7.2.2018 EXHIBIT P8 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER TO THE THIRD RESPONDENT DATED 9.3.2018 EXHIBIT P9 PHOTOCOPY OF THE ORDER DATED 5.11.2014 ISSUED BY THE GOVERNMENT** ## **RESPONDENTS EXHIBITS NIL** **/TRUE COPY/** **PA TO JUDGE** **sdr/-** **6.7.18** ## **SHAJI P. CHALY, J.** -------------------------------------------------- ## **W.P.(C) No.13283 of 2018 ----------------------------------------------Dated this the 5[th] day of July, 2018** ## **JUDGMENT** This writ petition is filed by the petitioner seeking a declaration that the petitioner is entitled to get a deemed building permit as per Sec.236(3) of the Kerala Panchayat Raj Act, 1994, and also to issue a direction to the 3[rd] respondent to issue certificate of deemed permit within the time framed fixed by this Court, and further consequential and related reliefs. Material facts for the disposal of the writ petition are as follows: 2. Petitioner herein is a Mobile Tower infrastructure company. For enhancing the coverage in the Vadanappally area, petitioner applied for a building permit before the 3[rd] respondent Panchayat on 16.02.2017, evident from Ext.P1. On 20.04.2017, the 3[rd] respondent Panchayat issued Ext.P3 communication to the petitioner, stating that a mass petition has been received by the Panchayat President against the construction of telecommunication tower, and the same was forwarded to the District Telecom Advisory Committee for 2 **W.P.(C) No.13283 of 2018** consideration. The District Telecom Committee conducted a meeting on 14.07.2017, and after an elaborate consideration of the matter, the Committee decided to consider the matter after orders are passed by the Panchayat Secretary on the application submitted by the petitioner. 3. Thereafter, the Panchayat Secretary informed the petitioner that the Panchayat Committee decided to forward the complaint submitted by the residents of the locality to the 1[st] respondent, i.e. the Kerala State Telecom Advisory Committee of Telecom Towers, and further decided to grant permit only after the decision taken by the 1[st] respondent on the complaint forwarded by the Panchayat, ignoring the objection raised by the 3[rd] respondent. According to the petitioner, the said decision taken by the 2[nd] respondent is illegal and arbitrary in view of the judgment rendered by this Court in ' _**Antony K.P. v. Chellanam Grama Panchayat**_ ' [2009 (3) KLT 334], and also on account of Ext.P9 order passed by the State Government dated 05.11.2014. 4. It is also submitted that, petitioner has submitted Ext.P1 application for building permit as early as on 16.02.2017, and despite lapse of one year, the 3[rd] respondent 3 **W.P.(C) No.13283 of 2018** has not passed any orders on Ext.P1 application. It is submitted that, as per Rule 130(5) of the Panchayat Building Rules, 2011, the Secretary shall, if convinced of the boundaries and ownership of the plot, plan and drawings and genuineness of the certificates, issue permit not later than 30 days from the date of receipt of the application. Section 236(3) of the Kerala Panchayat Raj Act, 1994 stipulates that, if orders on the application for any such licence or permission are not communicated to the applicant within thirty days or such longer period as may be prescribed, after the receipt of the application by the Secretary, the application shall be deemed to have been allowed for a period, if any, for which it would have been ordinarily allowed and subject to the law, rules and bye-laws and all conditions ordinarily imposed. Therefore, according to the petitioner, petitioner is entitled to get a deemed licence and thereupon, submitted Ext.P8 application for issuance of certificate of deemed permit before the 3[rd] respondent on 09.03.2018. However, no action is initiated, and it is accordingly under the constrained circumstances, this writ petition is filed. 4 **W.P.(C) No.13283 of 2018** 5. I have heard learned counsel for the petitioner, learned Government Pleader and the learned Standing Counsel appearing for the Panchayat and perused the documents on record and the pleadings put forth by the petitioner. 6. The sole question to be considered by this Court is, whether an application submitted by the petitioner before the Panchayat seeking permit in accordance with the Kerala Panchayat Building Rules is required to be referred to the 1[st] respondent. The issue was considered by this Court in the judgment in ' _**Antony K.P.'** (supra),_ and held that the Panchayat committee does not have original or appellate jurisdiction in respect of building permits. Therefore, in my considered opinion, the issue raised by the petitioner is squarely covered by the proposition of law laid down in the afore-quoted judgment. 7. That apart, it is evident from Ext.P9 Government Order dated 05.11.2014, wherein, it is clarified by the Government that no prior clearance from the District Telecom Committee is required for issuance of permit by the concerned Local Self Government Institution for installation of mobile tower. Therefore, it is clear that the reference made by the **W.P.(C) No.13283 of 2018** 5 Panchayat as per Ext.P3 order to the 1[st] respondent is unsustainable, illegal and arbitrary. Therefore, I quash Ext.P3 order. Yet another relief sought for by the petitioner on the basis of deemed licence is that, petitioner is entitled to issuance of a certificate that the petitioner has secured the permit in accordance with Sec.236(3) of the Kerala Panchayat Raj Act, 1994. 8. On a reading of the provisions, it is clear that, if the Panchayat has not taken a decision and communicated to the applicant, within thirty days from the date of receipt of the application, a deemed licence will accrue. In that view of the matter, and taking into account the discussions made above, I am of the considered opinion that, petitioner is entitled to get a licence issued on account of Sec.236(3) of the Kerala Panchayat Raj Act, 1994. 9. Therefore, there will be a direction to the Panchayat to issue a deemed licence to the petitioner in accordance with law, at the earliest possible, and at any rate, within a month from the date of receipt of a copy of this judgment. I also make it clear that, the direction made above will not stand in the way of the Panchayat taking any decision on the basis of 6 ## **W.P.(C) No.13283 of 2018** any violation of the conditions of permit/licence provided to the petitioner in future. If the petitioner is of the opinion that obstructions are created against the construction, petitioner will also be at liberty to move appropriate authority in accordance with law. The writ petition is allowed to the above extent. Sd/- **SHAJI P. CHALY JUDGE** St/05.07.2018