M/S ATC Telecom Tower Corporation (P) Ltd. v Velukkara Grama Panchayat, Velukkara Grama Panchayat Committee, and Johny A.K.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN TUESDAY, THE 2ND DAY OF DECEMBER 2014/11TH AGRAHAYANA, 1936 WP(C).No. 28900 of 2013 (J) ---------------------------- PETITIONER: -------------M/S ATC TELECOM TOWER CORPORATION (P) LTD. 36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE SHENOY ROAD, COCHIN 682 017 REPRESENTD BY MANAGER(LEWGAL), MR.BABU PATTATHANAM BY ADVS.SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN RESPONDENTS: ------------ 1. VELUKKARA GRAMA PANCHAYAT REP. BY ITS SECRETARY KOTTANELLOOR PO, MUKUNDAPURAM TALUK, THRISSUR DISTRICT PIN 680 672, REPRESENTED BY ITS SECRETARY 2. VELUKKARA GRAMA PANCHAYATH COMMITTEE VELUKKARA GRAMA PANCHAYAT KOTTANELLOOR PO MUKUNDAPURAM TALUK, THRISSUR DISTRICT, PIN 680 672 3. JOHNY.A.K S/O.A.L.KUNJUVAREED, ALAPPAT HOUSE, THUMBOOR PO THRISSUR 680 662. R1 BY ADV. SRI.RAJESH CHAKYAT R3 BY ADV. SRI.K.B.PRADEEP R2 BY ADV. SRI.K.G.BALASUBRAMANIAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28900 of 2013 (J) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ----------------------EXHIBIT P1 COPY OF THE FINAL ORDER IN APPEAL 796/2012 DATED 22/2/2012 BEFORE THE TRIBUNAL FOR LOCAL SELF GHOVERNMENT INSTITUTIONS THIRUVANANTHAPURAM EXHIBIT P2 COPY OF THE JUDGMENT IN WPC NO. 5564/2013 OF THIS HONOURABLE COURT EXHIBIT P3 COPY OF THE BUILDING PERMIT APPLICATYIONSUBMITTED BY THE PETITIONER DATED 7/10/2013 EXHIBIT P4 COPY OF THE NOTICE DATED 231/10/201`3 ISSUED BY THE IST RESPONDENT EXHIBIT P5 COPY OF THE RECEIPT ISSUED BY THE IST RESPONDENT DATED 31/10/2013 EXHIBIT P6 COPY OF THE REJECTION ORDER ISSUED BY THE IST RESPONDENT DATED 11/11/2013 EXHIBIT P6(A) COPY OF THE MINUTES OF THE PANCHAYAT COMMITTEE MEETING DATED 5/11/2013 EXHIBIT P7 COPY OF THE CIRCULAR NO.25070/RD/2011 ISSUED BY THE PRINCIPAL SECRETARY, LSGD DEPARTMENT DATED 16/5/2011 RESPONDENT(S)' EXHIBITS NIL ------------------------ JJ /TRUE COPY/ P.S.TO JUDGE ## K. SURENDRA MOHAN,J. ------------------------------- W.P(C) NO.28900 OF 2013 ---------------------------------Dated this the 2[nd] December, 2014. ## JUDGMENT The petitioner, a mobile tower infrastructure company has filed this writ petition challenging Exts.P6 and P6(a) issued by the first respondent. The petitioner had earlier approached this Court by filing WPC 5564/2013 seeking a direction to the Panchayat to consider a fresh application to be submitted by him. The said writ petition was disposed of by Ext.P2 judgment with the following directions:- “This writ petition is therefore disposed of permitting the petitioner to submit a fresh application for building permit in terms of the direction contained in Ext.P16 order, within ten days from today. If such application is submitted, the same shall be considered by the 1[st] respondent, in accordance with law, after affording an opportunity of being heard to the WPC 28900/2013 2 petitioner as well as the additional 2[nd] respondent and appropriate orders shall be passed thereon, as expeditiously as possible, at any rate, within a period of 30 days from the day of submission of the said application.” 2. Accordingly, the petitioner submitted a fresh application on 10.9.2013. On 31.10.2013 the petitioner remitted an amount of Rs.10,000/- as building permit fee to the first respondent. The application was considered by the second respondent Panchayat Committee along with complaints received from the local residents against construction of the mobile tower. Thereafter, the second respondent unanimously resolved to reject the application of the petitioner. Accordingly, the Secretary of the first respondent was directed not to consider the petitioner's application. 3. According to the counsel for the petitioner, the Secretary being the authority statutorily empowered to WPC 28900/2013 3 consider an application for building permit, the Panchayat Committee had no authority to consider the same or to direct the Secretary not to consider the application submitted by him. According to the counsel for the petitioner Section 185B of the Kerala Panchayat Raj Act, 1994 (the 'Act' for short) mandates that when a particular authority is conferred with the power to perform a particular act such act shall be performed by the said authority and by no one else. In the present case, the Secretary being the authority empowered by the statute to consider an application for building permit was dutybound to consider the same and to pass necessary orders thereon, on the merits. Ext.P6(a) resolution of the Panchayat Committee has therefore usurped the powers of the statutory authority and has interdicted the said authority from performing his statutory function. In view of the above it is contended that Exts.P6 and P6(a) are unsustainable and liable to be set aside. Reliance is placed on the decision reported WPC 28900/2013 4 in Antony v. Chellanam Grama Panchayat [2009(3)KLT 334]. It has been held therein that, since the Secretary's action is within the limits of the authority conferred by the statute, no interference with the said function is permissible at the hands of the Panchayat Committee in view of Section 185B of the Act. 4. In the present case, admittedly the Panchayat Committee has considered the fresh application submitted by the petitioner and as per the resolution Ext.P6(a), has rejected the same. The the Panchayat Committee has also directed the Secretary not to consider the application submitted by the petitioner. The procedure adopted is absolutely without jurisdiction and unsustainable. 5. The Secretary of the Panchayat has filed a counter affidavit in this case. It is stated in paragraph 6 of the counter affidavit, as follows:- “It is most respectfully submitted that in accordance with Ext.P2 judgment passed by this WPC 28900/2013 5 Hon'ble Court and the subsequent order issued by this Hon'ble Court in I.A.13236/2013 in WPC No: 5564/2013 (Ext.P2), the 1[st] respondent perused the Ext.P3 application submitted by the petitioner and thereby passed an order on 3.11.2013, allowing the above application, on the condition of the deposit of requisite fees from the part of the petitioner herein. The true copy of the above order passed by the 1[st] respondent, dated 3.11.2013, and bearing No: 6069/13, is produced herewith and the same may be marked as Ext.R1(a). Thus it is evidently clear that the 1[st] respondent has complied with the directions contained in the Ext.P2 judgment of this Hon'ble Court. The above Ext.R1(a) is passed by the 1[st] respondent before the 2[nd] respondent has passed the Ext.P6(a).” 6. In view of the above statement the decision of the Secretary as per Ext.R1(a) cannot be affected in any manner by Exts.P6 and P6(a) resolutions, the same being one taken by the statutorily empowered authority. In the above facts and circumstances it is sufficient that WPC 28900/2013 6 Exts.P6 and P6(a) are set aside and the ground cleared for Ext.R1(a) to be operative. In the result, this writ petition is allowed. Exts.P6 and P6(a) are set aside. The Secretary of the first respondent shall issue a building permit to the petitioner in accordance with Ext.R1(a) without further delay. Sd/K. SURENDRA MOHAN Judge jj /True copy/ WPC 28900/2013 7