Atc Telecom Infrastructure Pvt. ... vs Kallikadu Grama Panchayath
2021 Latest Caselaw 17450 Ker

      IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 26TH DAY OF AUGUST 2021/4TH BHADRA, 1943
                 W.P.(C)NO.28218 OF 2020
  PETITIONER:

       M/S.ATC TELECOM INFRASTRUCTURE PVT. LTD.,
       36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE,
       SHENOY ROAD, COCHIN-682017,
       REPRESENTED BY ITS SENIOR MANAGER (LEGAL)
       MR.BABU PATTATHANAM.
       BY ADVS.
       SANTHOSH MATHEW
       SRI.ARUN THOMAS
       SRI.JENNIS STEPHEN
       SRI.VIJAY V. PAUL
       SMT.KARTHIKA MARIA
       SRI.ANIL SEBASTIAN PULICKEL
       SMT.DIVYA SARA GEORGE
       SMT.JAISY ELZA JOE
       SHRI.ABI BENNY AREECKAL
       SMT.LEAH RACHEL NINAN
       SMT.NANDA SANAL


  RESPONDENTS:

 1     KALLIKADU GRAMA PANCHAYATH, THIRUVANANTHAPURAM,
       THIRUVANANTHAPURAM DISTRICT-695 001,
       REPRESENTED BY ITS THE SECRETARY.
 2     THE SECRETARY,
       KALLIKADU GRAMA PANCHAYATH, THIRUVANANTHAPURAM,
       THIRUVANANTHAPURAM DISTRICT-695 001.
       BY ADVS.
       SRI.VINOD SINGH CHERIYAN
       SRI.T.M.KHALID
       SMT.K.P.SUSMITHA

       THIS WRIT PETITION (CIVIL) HAVING COME UP
  FOR ADMISSION ON 26.08.2021, THE COURT ON THE
  SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.28218/2020
                                   :2 :




                           JUDGMENT

~~~~~~~~~

Dated this the 26th day of August, 2021

The petitioner, a Telecom Infrastructure Company,

has approached this Court seeking to set aside Ext.P11 and

P13 and to direct the respondent Panchayat to renew Ext.P1

building permit for a further period of one year from the date of

issuance of renewed permit.

2. The petitioner submitted an application for

constructing a Telecommunication Tower in Kallikadu Village,

Kattakada Taluk of Thiruvananthapuram District. After

inspection of the site, the Panchayat issued Ext.P1 building

permit on 28.03.2018. Some residents of the locality made

complaints to the District Telecom Committee against

construction of the Telecom Tower. By Ext.P2 proceedings

dated 14.11.2018, the District Telecom Committee dismissed

the complaint.

WP(C) No.28218/2020

3. While the construction was being proceeded with,

the 1st respondent Panchayat issued Ext.P3 stop memo dated

01.12.2018. Ext.P3 proposed to constitute a Technical Expert

Committee under Rule 12 (9) of the Kerala Panchayat Building

Rules, 2011. The petitioner would submit that the Rule 12

would not apply to the construction being carried out by the

petitioner for the reason that it is applicable only in cases

where depth of the excavation made is more than the

horizontal distance from the plot boundary to the said

excavation cutting.

4. The petitioner therefore filed Appeal No.810/2019

before the Tribunal for Local Self Government Institutions. The

Tribunal however, without considering the specific contentions

raised in the appeal, dismissed the appeal as per Ext.P5

order. On 12.03.2019, the petitioner made an online

application before the respondent for renewing the building

permit as per Rule 130(7) of the Kerala Panchayat Building

Rules, 2011. The application was necessitated since Ext.P1

permit was to expire on 27.03.2019. The Panchayat did not WP(C) No.28218/2020

consider the application and therefore the petitioner was

forced to file WP(C) No.10935/2019. This Court set aside

Ext.P5 order of the Tribunal and directed the Tribunal to

reconsider Appeal No.810/2018.

5. The Tribunal reconsidered the appeal and set aside

the stop memo as per Ext.P8 Order. The Panchayat was

directed to consider the matter afresh in accordance with law.

On 22.09.2020, Ext.P11 communication was issued by the

Panchayat stating that the Government has already

sanctioned Technical Committee and as and when nomination

is received for the same, the petitioner will be intimated. In

Ext.P11, it was further stated that the petitioner has failed to

produce soil test report. The petitioner would state that

Ext.P11 has been passed without complying with the

directions of the Tribunal.

6. On 27.10.2020, the Panchayat issued Ext.P13

communication along with a report of the Technical Expert

Committee and directed the petitioner to take steps in

accordance with the Report. The report required that the WP(C) No.28218/2020

Structural Design of the tower and its foundation submitted by

the petitioner has to be checked for structural stability, by a

Government Agency.

7. The petitioner argues that in Ext.P8 order, the

Tribunal for Local Self Government Institutions had held that

Rule 12 warranting report by Technical Expert Committee

would apply only in cases where the depth of the excavation

made is more than the horizontal distance from the plot

boundary to the excavation cutting. This finding has been

ignored by the Panchayat.

8. As regards checking of plan for Structural Stability

by Government Agency, the petitioner would argue that as per

Rule 130(3) of KPBR, the Structural Stability Certificate shall

be one issued by an Engineer registered under the Rules

having Post Graduate Degree in Structural Engineering or

Head of the Department concerned of any Government or

Quasi Government institutions offering Post Graduate Degree

in Structural Engineering. Therefore, the requirement made in

Ext.P13 in that regard is illegal. Ext.P13 therefore cannot WP(C) No.28218/2020

stand the scrutiny of law.

9. The 1st and 2nd respondents filed a counter affidavit

in opposition. Rule 12(6) will not dis-empower the Panchayat

from acting upon public complaints and the Panchayat can

insist for checking plan for structural stability through a

Government Agency. The issue was placed before a

Technical Expert Committee. The suggestions of the

Committee have to be respected. The attempt of the

petitioner is to circumvent the report of a duly engaged

Technical Committee, which shall not be permitted, contended

the learned Standing Counsel appearing for the respondents.

10. Heard the learned counsel for the petitioner and the

learned Standing Counsel for the respondents.

11. The petitioner is challenging Ext.P11 which

proposes to appoint a Technical Committee. The petitioner is

aggrieved by the recommendations of the Technical

Committee which requires further deepening of foundation

and which forces the petitioner to obtain approval of structural

design by a Government/ Quasi-Government agency. WP(C) No.28218/2020

12. It may be noted that the issue of applicability or

otherwise of applicability of Rule 12 was agitated before the

Tribunal in Appeal No.810/19 and the Tribunal in Ext.P8 Order,

held as follows:

"It is pertinent to note that the same matter was agitated before the DTC and final decision was taken by the District Collector through its order dated 20.10.2018. On going through rule 12 of KPBR, it is seen that it is applicable only in cases where the depth of excavation made is more than the horizontal distance from the plot boundary to the said excavation cutting. On perusal of the building permit and plan (annexure P3) it is seen that in this case the construction is being carried in 20.3 cents of property. So in such a situation rule 12 does not apply. On the basis of an apprehension through a complaint, the Secretary proceeded and initiated u/r 12 and 6 of KPBR. Without ascertaining the real material facts how the secretary arrived such a finding. It is also not evident from the file. If there is any chance for soil erosion and the site contain loose earth are the matters to be considered in detail. Without ascertaining all these aspects Secretary arrived a finding under rule 12."

Exts.P11 and P13 have been passed without adverting to the

findings of the Tribunal on the applicability of Rule 12 of the

KPBR.

13. Rule 12 of the Kerala Panchayat Building Rules

reads as follows:

WP(C) No.28218/2020

"12. Approval of site and plans and issue of permit where excavations to a depth of more than 1.5 metres is involved.- (1) In the case of constructions/land developments which involve any earthwork excavation to a depth of more than 1.5 metres, if the depth of cutting is more than the horizontal distance of such cutting from the plot boundary, the following provisions shall apply: Provided that, such provisions are not necessary in cases where such excavation is carried out for construction of structures such as wells, septic tank, recharge pits, drainage works, compound walls and the like.

(2) The application for Development and/or building permit shall be submitted by the applicant as per the provisions of these rules, along with a certificate of the Architect, Building Designer, Engineer, Town Planner, Supervisor as the case may be, who has prepared and signed the plans, drawings, statements etc as to whether permit as envisaged under rule 12 is required. (3) The application for permit shall also include sufficient copies of.-

(i) dimensioned plan(s) and sectional drawing(s) showing the levels and depths of cutting at all places in respect of excavations for building construction and land development works;

(ii) drawings, specifications and details of temporary and permanent protective measures proposed; and

(iii) drawings, specifications and details of slabs, beams, columns, retaining walls etc. proposed at the ground floor level and below;

(iv)details of piles if any, including their drawings, specifications, erection methods and the like.

(4) The Secretary shall issue permit as laid down in these rules. Provided that, if any changes or deviations are to be made, it shall satisfy the provisions of these rules and the same shall be intimated to the Secretary with revised drawings, specifications and details as the case may be.

(5) The Secretary shall supply copies of the details specified in sub rule (3) above and the permit to the adjoining land owners.

WP(C) No.28218/2020

(6) Any written complaint received after the date of issue of the permit(s) from owners or occupants in the adjoining properties on the actual or possible damages to their life and property shall be acted upon by the Secretary as per the provisions in this rule. (7) Once the earthworks and/or constructions upto the ground level are completed as per the approved plans, the applicant may in writing intimate the same to the Secretary and request for concurrence for carrying out rest of the works. No construction shall be carried out above the ground level until the Secretary issues such concurrence as in Appendix C1. (8) The Secretary shall, if convinced that the works are carried out satisfactorily as per the permit(s) and provisions of this rule and no written complaint is received as in sub rule (6), issue concurrence as in Appendix C1 for carrying out the remaining works above the ground level as per approved plans within 7 days .

(9) If any complaint is received as in sub rule (6), the Secretary shall,- (i) refer the matter within 5 days to the Technical Expert Committee constituted as per sub rule (13) and convene a meeting of the Committee, (ii) intimate the nature of complaints to the applicant and call for details and explanation if so desired by the Committee, (iii) arrange for site inspections, hearing of the applicants and/or petitioners, verification of records and arrange for tests if so required by the Committee and (iv) take up further action as per the recommendations of the Committee. (10) The applicant(s) and/or the petitioner(s) shall attend the hearing and shall also produce any details called for within the time specified, if so required by the Committee or the Secretary on its behalf. (11) The Committee shall evaluate the damages and fix the compensation and/or suggest further protective measures, if any, to be taken by the applicant to solve the issues raised by the petitioner(s). The amount of compensation shall include the actual cost of restoration as decided by the Committee and an additional 30% as solatium.

(12) Concurrence shall be issued by the Secretary, after ensuring that the protective measures are carried out to the satisfaction of the Committee and the WP(C) No.28218/2020

compensation is paid by the applicant as per the decision of the Committee. The actual expenses of the Committee as intimated by the Secretary shall be paid by the applicant."

14. Sub-rule (1) of Rule 12 would indicate that it is

intended to apply for approval of site and plans and issue of

permits where excavations are to a depth of 1.5 meters, if the

depth of cutting is more than the horizontal distance of such

cutting from the plot boundary. To apply Rule 12, not only the

depth of earth work excavation should be more than 1.5

meters but the depth cutting should also be more than the

horizontal distance of such cutting from the plot boundary. In

this case, the depth cutting does not appear to be more than

the horizontal distance of such cutting from the plot boundary.

The respondents have not adverted to this aspect, in spite of

the findings in that regard contained in Ext.P8 Order.

Exts.P11 and P13 orders are therefore unsustainable.

15. As regards the requirement of checking of plan for

Structural Stability by a Government Agency, as per Rule

130(3) of KPBR, the Structural Stability Certificate shall be

one issued by an Engineer registered under the Rules having WP(C) No.28218/2020

Post Graduate Degree in Structural Engineering or Head of

the Department concerned of any Government or Quasi

Government institutions offering Post Graduate Degree in

Structural Engineering. The petitioner would submit that they

have submitted Ext.P4 Structural Stability Certificate issued by

a Chartered Engineer who satisfy the requirements under

Rule 130(3). In that event, the requirement of the Panchayat,

of approval by a Government Agency also cannot be justified.

16. For the afore reasons, Exts.P11 and P13

communications are unsustainable. They are accordingly set

aside. The respondents are directed to renew Ext.P1 Building

Permit for a further period of one year from the date of issue

of renewed permit.

The writ petition is allowed as above.

Sd/-

N. NAGARESH, JUDGE

aks/24.08.2021 WP(C) No.28218/2020

APPENDIX OF WP(C) 28218/2020

PETITIONER EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT BEARING NO.A6-BA(62699)/2018 DATED 28.03.2018 ISSUED BY THE 1ST RESPONDENT IN FAVOUR OF THE PETITIONER.

EXHIBIT P2 TRUE COPY OF THE ORDER PASSED BY THE DTC DATED 14.11.2018.

EXHIBIT P3 TRUE COPY OF THE STOP MEMO ISSUED BY THE 1ST RESPONDENT PANCHAYATH BEARING NO.A6-931/18 DATED 01.12.2018 TO THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE STABILITY CERTIFICATE ISSUED BY THE CHARTERED ENGINEER DATED 19.02.2018 SUBMITTED ALONG WITH THE BUILDING PERMIT.

EXHIBIT P5 TRUE COPY OF THE ORDER DATED 05.02.2019 IN APPEAL NO. 810/2019 OF THE LSGI TRIBUNAL , THIRUVANANTHAPURAM.

EXHIBIT P6 TRUE COPY OF THE APPLICATION DATED 8.3.2019 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT AND T HE RECEIPT ISSUED BY THE PANCHAYATH DATED 28/03/2019.

EXHIBIT P7 TRUE COPY OF THE JUDGMENT DATED 26.10.2019 IN WPC NO.10935/2019 OF THIS HON'BLE COURT.

EXHIBIT P8 TRUE COPY OF THE TRUE COPY OF THE ORDER DARTED 30.06.2020 IN APPEAL NO.810/2019 OF THE LSGI TRIBUNAL, THIRUVANANTHAPURAM.

EXHIBIT P9 TRUE COPY OF THE REPRESENTATION DATED 21.08.2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENT PANCHAYATH.

EXHIBIT P10 TRUE COPY OF THE REPRESENTATION DATED 04.09.2020 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT PANCHAYATH ALONG WITH SOIL TEST REPORT.

EXHIBIT P11 TRUE COPY OF THE COMMUNICATION ISSUED BY THE RESPONDENT PANCHAYATH DATED 22.09.2020 TO THE PETITIONER.

EXHIBIT P12 TRUE COPY OF THE REPRESENTATION DATED 30.09.2020 SUBMITTED BY THE PETITIONER TO THE RESPONDENT PANCHAYATH.

WP(C) No.28218/2020

EXHIBIT P13 TRUE COPY OF THE COMMUNICATION DATED 27.10.2020 ISSUED BY THE RESPONDENT PANCHAYATH ALONG WITH THE REPORT OF THE TECHNICAL COMMITTEE TO THE PETITIONER.