M/S ATC Telecom Infrastructure Pvt Ltd v. State of Kerala and Others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE N.NAGARESH** **THURSDAY, THE 6[TH] DAY OF OCTOBER 2022 / 14TH ASWINA, 1944** **WP(C) NO. 28386 OF 2022** ## **PETITIONER:** **M/S.ATC TELECOM INFRASTRUCTURE PVT LTD 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE, SHENOYROAD, COCHIN-682017, REPRESENTED BY ITS SENIOR MANAGER (LEGAL), MR.BABU PATTATHANAM. BY ADVS. SANTHOSH MATHEW ARUN THOMAS KARTHIKA MARIA ANIL SEBASTIAN PULICKEL ABI BENNY AREECKAL MATHEW NEVIN THOMAS KURIAN ANTONY MATHEW** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 THE DISTRICT TELECOM COMMITTEE REPRESENTED BY ITS CHAIRMAN-DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, KAKKANAD, ERNAKULAM-682030.** - **3 THE DISTRICT COLLECTOR, ERNAKULAM DISTRICT, COLLECTORATE, KAKKANAD,ERNAKULAM-682030.** - **4 SREEMOOLANAGARAM GRAMA PANCHAYAT SREEMOLANAGARAM GRAMA PANCHAYAT OFFICE, KALADY-ALUVA ROAD, SREEMOOLANAGARAM, ERNAKULAM DISTRICT-683580, REPRESENTED BY ITS THE SECRETARY.** **WP(C) NO.28386 OF 2022** **2** - **5 THE SECRETARY, SREEMOLANAGARAM GRAM PANCHAYAT OFFICE, KALADY-ALUVA ROAD, SREEMOOLANGARAM, ERNAKULAM DISTRICT-683580.** - **6 SREEMOOLANAGARAM GRAMA PANCHAYAT COMMITTEE SREEMOLANAGARAM GRAMA PANCHAYATH, KALADY-ALUVA ROAD, SREEMOLANAGARAM, ERNAKULAM DISTRICT-683580, REPRESENTED BY ITS SECRETARY.** - **7 BIJU PAPPACHAN, PUTHEN PURACKAL HOUSE, SOUTH VELLARAPILLY.P.O, THEKKUMBHAGAM, VELLARAPILLY, ERNAKULAM-682580.** - **8 BENNY DEVASSY, THECHAPPARAMBIL HOUSE, SOUTH VELLARAPILLY.P.O, THEKKUMBHAGAM,VELLARAPILLY, ERNAKULAM-682580. BY ADVS. VAISAKHI V BABU KARUKAPADATH-R4 TO R6** - **SRI.ASWIN SETHUMADHAVAN SR.GP** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C) NO.28386 OF 2022** **3** ## **JUDGMENT** Dated this the 6[th] day of October, 2022 The petitioner is a Telecom Infrastructure Provider. The petitioner is before this Court aggrieved by the non-grant of Building Permit for construction of a Telecom Tower. 2. The petitioner states that the petitioner proposed to construct a Telecommunication Tower in Re-Survey No.191/10-2 of Thekkumbhagom Village, Aluva Taluk in Ernakulam District. The petitioner submitted Ext.P1 application for Building Permit. Certain local residents raised objections against erection of a Telecom Tower in the property. 3. The petitioner submits that respondents 4 and 5 had pointed out certain defects in the Building Permit application submitted by the petitioner. The petitioner has cured all the defects. Still, Building Permit is not being issued to the petitioner on the basis of objections raised from certain quarters. **WP(C) NO.28386 OF 2022** **4** 4. The petitioner came to know that the Grama Panchayat has taken a decision as per Ext.P9 that since the proposed Telecom Tower is coming up in a populated area, Building Permit need be granted only if the petitioner proposes to construct a Building Tower in an uninhabited area. As per Ext.P9, the Grama Panchayat decided to communicate this decision to the Secretary to the Panchayat. 5. The petitioner states that the Secretary had referred the matter to the Government and the Government as per Ext.P10 stayed the decision of the Grama Panchayat taken on 30.05.2022. In the circumstances, the 5[th] respondent cannot abstain from processing and granting Building Permit to the petitioner for construction of the Mobile Tower. The petitioner further submitted that the issue agitated in the writ petition is covered by the judgment of this Court in _**Antony K.P and another v. Chellanam Grama Panchayat and others** [2009 (3) KLT 334]._ **WP(C) NO.28386 OF 2022** **5** 6. Standing Counsel entered appearance on behalf of the Grama Panchayat and resisted the writ petition. The Standing Counsel pointed out that the Grama Panchayat Committee has taken the decision taking into account larger public interest and it is on that ground that the Panchayat decided not to permit the petitioner to erect a Telecom Tower in a populated area. If the Secretary is of the opinion that Ext.P9 decision of the Grama Panchayat is erroneous, the matter can be referred to the Government under Section 182 of the Kerala Panchayat Raj Act, 1994. The Secretary has already referred the matter to the Government and the Government in turn has placed the issue before the Tribunal for Local Self Government Institutions. 7. The Standing Counsel further urged that since the issue is pending consideration before the Tribunal for Local Self Government Institutions on a reference made by the Government, the petitioner has to await the outcome of the decision of the Tribunal. The petitioner cannot proceed under **WP(C) NO.28386 OF 2022** **6** Article 226 of the Constitution of India. Therefore, the writ petition is liable to be dismissed, contended the Standing Counsel. 8. I have heard the learned counsel for the petitioner, the learned Standing Counsel representing respondents 4 to 6 and the learned Government Pleader representing respondents 1 to 3. Notice to respondents 7 and 8 is dispensed with in view of the nature of the relief to be granted in the writ petition. 9. The petitioner has applied for a Building Permit for construction of a Telecommunication Tower. The Panchayat Committee has taken Ext.P9 decision that since the Telecom Tower is coming in a populated area, the Secretary should be directed to reject the Building Permit application. 10. While considering an application for Building Permit, the Secretary of Grama Panchayat is exercising a statutory power under the Kerala Panchayat Raj Act and the Kerala Panchayat Building Rules. Exercise of the said **WP(C) NO.28386 OF 2022** **7** statutory power should be in an independent manner and uninfluenced by any directions from any quarters including the Grama Panchayat. It is to be noted that the Grama Panchayat is the appellate authority against any decision on Building Permit taken by the Secretary to the Grama Panchayat. 11. In this case, it is further evident that on a reference made to the Government, the Department of Local Self Government Institutions, Government of Kerala has taken a decision to stay Ext.P9 decision of the Grama Panchayat. The matter has been referred to the Tribunal for Local Self Government Institutions. 12. In view of the above and taking into consideration the fact that the Government has already stayed Ext.P9 decision of the Grama Panchayat, the petitioner's application for Building Permit is liable to be considered in accordance with law. **WP(C) NO.28386 OF 2022** **8** The writ petition is therefore disposed of directing the 5[th] respondent-Secretary to the Grama Panchayat to process the Building Permit application submitted by the petitioner, in accordance with law and take appropriate decision/pass appropriate orders thereon, within a period of one month. **Sd/-** **N.NAGARESH JUDGE** spk **WP(C) NO.28386 OF 2022** **9** ## **APPENDIX OF WP(C) 28386/2022** - **PETITIONER EXHIBITS Exhibit P1** **TRUE COPY OF THE BUILDING PERMIT APPLICATION FOR CONSTRUCTION OF TELECOMMUNICATION TOWER DATED 9-122021 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT PANCHAYATH.** - **Exhibit P2 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE RESINDENTS OF THE LOCALITY DATED 21-3-2022** - **Exhibit P3 TRUE COPY OF THE COMPLAINT SUBMITTED BY THE RESIDENTS OF THE LOCALITY DATED 22-3-2022** - **Exhibit P4 TRUE COPY OF THE NOTICE DATED 12-42022 ALONG WITH NOTE ISSUED BY THE RESPONDENT PANCHAYAT TO THE PETITIONER.** - **Exhibit P5 TRUE COPY OF THE REPLY/APPLICATION DATED 6-5-2022 SUBMTTED BY THE PETITIONER AFTER CURING THE DEFECTS BEFORE THE RESPONDENT PANCHAYAT.** - **Exhibit P6 TRUE COPY OF THE APPLICATION FILED UNDER RTI ACT BEFORE THE PUBLIC INFORMATION OFFICER, SREEMOOLANAGARAM PANCHAYAT DATED 19-7-22 AND THE RECEIPT DATED 21-7-2022 BY THE PETITIONER** - **Exhibit P7 TRUE COPY OF THE REPLY RECEIVED BY THE PETITIONER UNDER RTI ACT, DATED 6-82022 FROM THE PUBLIC INFORMATION OFFICER OF THE RESPONDENT PANCHAYAT.** **WP(C) NO.28386 OF 2022** **10** **Exhibit P8 TRUE COPY OF THE LETTER FORWARDED BY THE SECRETARY TO THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT.** **Exhibit P9 TRUE COPY OF THE MINUTES OF THE RESPONDENT PANCHAYAT COMMITTEE DATED 30.05.2022.** **Exhibit P10 TRUE COPY OF THE GOVERNMENT ORDER NO.G.O.(RT) NO.1583/2022/LSGD DATED 03.07.2022.** ## **RESPONDENT'S/S EXHIBITS : NIL**