Atc Telecom Infrastructure Pvt ... vs Pothencode Grama Panchayat
2021 Latest Caselaw 7715 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

         THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

FRIDAY, THE 05TH DAY OF MARCH 2021 / 14TH PHALGUNA, 1942

                   WP(C).No.1795 OF 2021(Y)


PETITIONER:

              ATC TELECOM INFRASTRUCTURE PVT LTD.
              36/2624, FIRST FLOOR, CHERAMANGALATH HOUSE,
              SHENOY ROAD, COCHIN-682 017 REPRESENTED BY
              ITS SENIOR MANAGER (LEGAL), MR. BABU
              PATTATHANAM.

              BY ADVS.
              SRI.SANTHOSH MATHEW
              SRI.ARUN THOMAS
              SRI.JENNIS STEPHEN
              SRI.VIJAY V. PAUL
              SMT.KARTHIKA MARIA
              SMT.VEENA RAVEENDRAN
              SRI.ANIL SEBASTIAN PULICKEL
              SMT.DIVYA SARA GEORGE

RESPONDENTS:

     1        POTHENCODE GRAMA PANCHAYAT
              POTHENCODE AYIROOPARA VILLAGE,
              THIRUVANANTHAPURAM-695 584, REPRESENTED BY
              ITS SECRETARY.

     2        THE SECRETARY
              POTHENCODE GRAMA PANCHAYAT, POTHENCODE,
              AYIROOPARA VILLAGE, THIRUVANANTHAPURAM-695
              584.

     3        THE PANCHAYAT COMMITTEE
              POTHENCODE GRAMA PANCHAYAT, POTHENCODE,
              AYIROOPARA VILLAGE, THIRUVANANTHAPURAM-695
              584, REPRESENTED BY ITS SECRETARY.

     4        KAROOR RESIDENTS WELFARE ASSOCIATION
              KAROOR, POTHENCODE PO, AYIROOPARA VILLAGE,
              THIRUVANANTHAPURAM-695 584, REPRESENTED BY
              ITS SECRETARY.
 W.P.(C) No.1795 of 2021

                             ..2..



       5      PANIMOOLA RESIDENTS ASSOCIATION
              MADHAVAM, PANIMOOLA, ANDOORKONAM P.O.,
              ANDORKONAM VILLAGE, THIRUVANANTHAPURAM-695
              584, REPRESENTED BY ITS SECRETARY.

              R1 BY ADV. SRI.J.JAYAKUMAR
              R5 BY ADV. SRI.A.S.SHAMMY RAJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 25-02-2021, THE COURT ON 05-03-2021 DELIVERED THE
FOLLOWING:
 W.P.(C) No.1795 of 2021

                                    ..3..




                       P.B.SURESH KUMAR, J.

                    -------------------------------------
                      W.P.(C) No.1795 of 2021
                   --------------------------------------
              Dated this the 5th day of March, 2021



                               JUDGMENT

Petitioner is a Telecommunication Infrastructure Provider.

On 27.08.2019, the second respondent, the Secretary of the first

respondent panchayat, issued Ext.P6 building permit to the

petitioner for erection of a telecommunication tower. Ext.P6 building

permit was challenged by respondents 4 and 5 before the Tribunal

for Local Self Government Institutions (the Tribunal). Ext.P7 is the

appeal preferred by respondents 4 and 5 before the Tribunal in this

regard. Ext.P7 appeal has been disposed of by the Tribunal in terms

of Ext.P10 order directing the second respondent to consider the

representations preferred by respondents 4 and 5 against the grant

of permit for the telecommunication tower and directing the second

respondent to consider the application for building permit afresh

thereafter. It was also directed in Ext.P10 order that the building

permit will be inoperative till the directions aforesaid are complied

with. Ext.P10 order is under challenge in the writ petition. W.P.(C) No.1795 of 2021

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2. Heard the learned counsel for the petitioner, the

learned counsel for respondents 1 to 3 as also the learned counsel

for respondents 4 and 5.

3. The learned counsel for the petitioner pointed out

that in terms of Rule 8 of the Tribunal for Kerala Local Self

Government Institutions Rules, 1999 (the Rules), appeal against

Ext.P6 building permit ought to have been filed within sixty days

from the date of the building permit and that the appeal which was

filed almost after an year from the date of the building permit is

hopelessly barred by limitation. It was contended by the learned

counsel that though the petitioner raised the said plea of limitation

in the appeal, the same has not been considered by the Tribunal. It

was also contended by the learned counsel that the building permit

has been issued to the petitioner in accordance with the Kerala

Panchayat Building Rules, 2011 and the Tribunal was, therefore, not

justified in interfering with the same.

4. Per contra, the learned counsel for respondents 4

and 5 contended that the appeal was instituted by respondents 4

and 5 within 60 days from the date of knowledge of the issuance of

building permit and it cannot, therefore, be contended that the

appeal was barred by limitation. As regards the merits of the matter,

the learned counsel for respondents 4 and 5 contended that the W.P.(C) No.1795 of 2021

..5..

building permit was granted without conducting a site inspection as

required by the Building Rules and the Tribunal cannot, therefore, be

found fault with for having interfered with the building permit. It

was also pointed out by the learned counsel that there exists an

Anganwadi near to the telecommunication tower proposed by the

petitioner and the second respondent, in the circumstances, ought

not have granted the building permit.

5. I have considered the contentions raised by the

learned counsel for the parties on either side.

6. As noted, the main contention of the learned

counsel for the petitioner is that Ext.P7 appeal was barred by

limitation. The building permit which was impugned in the writ

petition was one issued on 27.08.2019 and the same was

challenged in appeal only on 16.09.2020, after about an year. Rule

8 of the Rules reads thus:

"8. Petitions to the Tribunal.--(1) A petition submitted to the Tribunal shall be an appeal or revision against a notice, order or proceedings of the Village Panchayat, or Municipality or its Standing Committee for Finance or the Secretary in respect of any matter specified in the schedule appended to these rules or added to the said schedule by the Government from time to time by notification.

(2) If the concerned Village Panchayat or the Municipality or the Standing Committee for Finance or the Secretary has not taken decision within the prescribed time limit in cases where time limit has been prescribed in the Panchayat Act or the W.P.(C) No.1795 of 2021

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Municipality Act or in the Rules, the affected party may, in this respect, file appeal before the Tribunal.

(3) Petitions under sub-rules (1) and (2) shall be in form 'C' and the same shall be submitted before the Tribunal within thirty days from the date of the notice or order or proceedings against which the petition is filed or within ninety days in cases where decision has not been taken within sixty days of filing appeal before the Local Self Government Institutions:

Provided that the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal is satisfied that there is sufficient reason for not submitting the petition within the time limit."

Going by the plain meaning of the words used in the extracted rule,

it would appear that the appeals before the Tribunal are to be filed

within 30 days from the date of the order and if the appeals are not

filed within 30 days, the Tribunal can entertain the same only if it is

filed within 30 days thereafter and that too, if it finds that the

appellant has shown sufficient cause for not filing the appeal within

30 days from the date of the order. In other words, it is evident from

the rule that an appeal which is filed beyond 60 days cannot be

entertained by the Tribunal.

7. The provision enabling the aggrieved person to

prefer an appeal against the building permit is Rule 151 of the

Kerala Panchayat Building Rules, 2011. The said Rule provides that

any person aggrieved by an order passed by the Secretary granting W.P.(C) No.1795 of 2021

..7..

building permit to execute work may submit an appeal to the

Tribunal. The Rule aforesaid indicates that the statute contemplated

situations where third parties to the proceedings for grant of

building permit would be affected by such grant and intended to

confer a right of appeal not only to the parties to the proceedings in

which the impugned order is issued, but also to third parties who are

affected by the same. How to reckon the period of limitation

provided for such an appeal is the question arising for consideration.

It is trite that where the rights of a person are affected by any order

and limitation is prescribed for the enforcement of the remedy by

the person aggrieved against the said order by reference to the

making of the said order, the making of the order must mean either

actual or constructive communication of the said order to the party

concerned. The proposition aforesaid has been quoted with approval

by the Apex Court in Raja Harish Chandra Raj Singh v. Deputy

Land Acquisition Officer, AIR 1961 SC 1500. Paragraph 11 of the

said judgment reads thus:

11. A similar question arose before the Madras High Court in Annamalai Chetti v. Col. J. G. Cloete, ILR 6 Mad 189, Section 25 of the Madras Boundary Act XXVIII of 1860 limited the time within which a suit may be brought to set side the decision of the settlement officer to two months from the date of the award, and so the question arose as to when the time would begin to run. The High Court held that the time W.P.(C) No.1795 of 2021

..8..

can begin to run only from the date on which the decision is communicated to the parties. "If there was any decision at all in the sense of the Act", says the judgment, "it could not date earlier than the date of the communication of it to the parties; otherwise they might be barred of their right of appeal without any knowledge of the having been passed". Adopting the same principle a similar construction has been placed by the Madras High Court in Swaminathan v. Lakshmanan Chettiar, ILR 53 Mad 491 : (AIR 1930 Mad. 490) on the limitation provisions contained in S. 73(1) and 77(1) of the Indian Registration Act XVI of 1908. It was held that in a case where an order was not passed in the presence of the parties or after notice to them of the date when the order would be passed the expression "within thirty days after the making of the order" used in the said sections means within thirty days after the date on which the communication of the order reached the parties affected by it. These decisions show that where the rights of a person are affected by any order and limitation is prescribed for the enforcement of the remedy by the person aggrieved against the said order by reference to the making of the said order, the making of the order must mean either actual or constructive communication of the said order to the party concerned. Therefore, we are satisfied that the High Court of Allahabad was in error in coming to the conclusion that the application made by the appellant in the present proceedings was barred under the proviso to S. 18 of the Act."

The proposition has been elucidated and reiterated later by the

Apex Court in Saibaba v. Bar Council of India, 2003 KHC 472.

Paragraphs 9, 13 and 14 of the judgment read thus: W.P.(C) No.1795 of 2021

..9..

"9. So far as the commencement of period of limitation for filing the review petition is concerned we are clearly of the opinion that the expression the date of that order as occurring in Section 48AA has to be construed as meaning the date of communication or knowledge of the order to the review- petitioner. Where the law provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of the remedy practical and the exercise of power conferred on the authority meaningful and effective. A construction which would render the provision nugatory ought to be avoided. True, the process of interpretation cannot be utilized for implanting a heart into a dead provision; however, the power to construe a provision of law can always be so exercised as to give throb to sinking heart.

xxxxxxx

13. In Raj Kumar Dey & Ors. Vs. Tarapada Dey & Ors (JT 1987 (3) SC 555) this Court pressed into service two legal maxims guiding and assisting the Court while resolving an issue as to calculation of the period of limitation prescribed, namely, (i) the law does not compel a man to do that which he could not possibly perform, and (ii) an act of the court shall prejudice no man. These principles support the view taken by us hereinabove. Any view to the contrary would lead to an absurdity and anomaly. An order may be passed without the knowledge of anyone except its author, may be kept in the file and consigned to record room or the file may lie unattended, unwittingly or by carelessness. In either case, the remedy against the order would be lost by limitation though the person aggrieved or affected does not even know what order has been passed. Such an interpretation cannot be W.P.(C) No.1795 of 2021

..10..

countenanced.

14. How can a person concerned or a person aggrieved by expected to exercise the right of review conferred by the provision unless the order is communicated to or is known to him either actually or constructively? The words the date of that order, therefore, mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed."

In the light of the decisions aforesaid, there is no doubt in my mind

that the expression "the date of the notice or order or proceedings"

in Rule 8 of the Rules is to be construed as the date of knowledge of

the order. It is stated in Ext.P7 appeal that respondents 4 and 5

came to know of Ext.P6 building permit only on 12.08.2020. As

noted, there is no dispute to the fact that the appeal was filed within

sixty days thereafter on 16.09.2020. In other words, the appeal is

one that could be entertained by the Tribunal, provided the Tribunal

chose to condone the delay of four days in filing the appeal. The

petitioner has no case that the Tribunal was not justified in ignoring

the said delay, which was well within its power to condone, in the

matter of disposing of the appeal. In the circumstances, the plea of

limitation raised by the counsel for the petitioner is only to be

rejected and I do so.

8. I shall now deal with the issue relating to the

correctness of the decision of the Tribunal. The relevant discussion W.P.(C) No.1795 of 2021

..11..

in Ext.P10 order reads thus:

"Another aspect to be taken into account is about the representations submitted by various associations before the Secretary respondent. It is evident from annexure P8 to P16 submitted at various occasions. From the file produced by the side of the respondents 1 & 2 also does not reveal that whether those representations as well as objections were considered by the Secretary/2nd respondent herein. If any objections or grievances raised by any person it should be considered by the Secretary before granting permission for the construction of a tower. Such procedure is not followed by the 2nd respondent/Secretary in this case, as per the file. In page No.1 & 2 shows that Secretary has addressed to the DTC to take a decision, who had inturn made a reply stated that it is for the Secretary to take a decision in the case of granting licence. Which is evident from page No.55 and 73 of the file produced. Annexure A17 is rough sketch shows the distance between the proposed site wherein tower is to be erected and various important buildings of that locality. From this sketch, it is evident that one Anganawadi is only at about 50m from the proposed site. If that be so, the 2 nd respondent Secretary is to be appreciated this aspect and take appropriate remedies and directions should be given to the 3 rd respondent at the time of issuing impugned annexure A1 building permit. Such an attitude has not taken by the Secretary in this case. Various representations and objections given by the association as well as the persons are evident from the file also. Whether those representations were considered by the Secretary is not evident from the file. So in such a situation I am of the view that appellants must be heard by the 2 nd respondent W.P.(C) No.1795 of 2021

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before issuing sanction in favour of the 3rd respondent. For the proper adjudication of the matter involved in this case such an issue is to be considered by the 2 nd respondent Secretary. For that purpose the matter is to be remitted back before the Secretary to consider annexure A7 to A15 objection as well as the the representations. So I am of the view that all proceedings in pursuance of Annexure A1 impugned building permit is to be kept in abeyance, still a decision on the representations as well as objections taken by the 2nd respondent Secretary. For the aforestated facts, reason, evidence and other circumstances I am of the view that annexure A1 impugned building permit and all the proceedings in furtherance of the issuance of this building permit shall be kept abeyance and the 2 nd respondent shall afford an opportunity of being heard to the appellants. The point is found accordingly."

A perusal of the extracted passage indicates that the existence of

the Anganawadi within 50 meters of the proposed site of the

telecommunication tower and the inaction on the part of the

Secretary in not considering the representations preferred by

respondents 4 and 5 against the grant of building permit are the

causes for the Tribunal to remit the application for reconsideration.

True, it would have been prudent on the part of the Secretary of the

Panchayat to consider representations in the nature referred to in

the order before granting the building permit. But, in a case where

the grant of building permit is strictly in accordance with the

Building Rules, according to me, building permit once granted W.P.(C) No.1795 of 2021

..13..

cannot be set aside on the ground that the objection against the

grant was not considered before such grant. Though it was

contended by the learned counsel for respondents 4 and 5 that the

grant of building permit was contrary to the Rules in as much as

there was no site inspection before the grant, the materials on

record indicate beyond doubt that the building permit has been

granted after conducting site inspection. In other words, the

inaction on the part of the Secretary in not considering the

objections against the grant of building permit, ought not have been

a reason for the Tribunal to interfere with the building permit.

9. The only surviving issue is as to whether the

Tribunal was justified in remitting the application for building permit

for fresh consideration on account of the existence of the

Anganawadi near the proposed site. The existence of the

Anganawadi is highlighted in support of the contention that the

telecommunication tower would cause health hazards to the

inmates of the Anganawadi. In as much as respondents 4 and 5 do

not have a case that the electromagnetic radiation from the

telecommunication tower would be in excess of the standards

prescribed and enforced by the Government of India, there is

absolutely no basis for such an apprehension. I am fortified in this

view by the decision of this Court in Essar Telecom W.P.(C) No.1795 of 2021

..14..

Infrastructure (P) Ltd. v. State of Kerala and Ors., 2011 (2) KLJ

335.

10. It is pointed out by the learned counsel for the

petitioner that the period of validity of the building permit expired

on 19.02.2021 and in order to avoid further complications

concerning the grant of building permit, by way of abundant

caution, the petitioner preferred an application for renewal of the

building permit and the same is pending consideration before the

Secretary of the Panchayat. It is seen that the receipt evidencing

submission of the application for renewal of the building permit has

been produced by the petitioner along with I.A.No.1 of 2021.

In the facts and circumstances of the case, Ext.P10 order

of the Tribunal is set aside and the writ petition is disposed of

directing the second respondent to renew Ext.P6 building permit for

a term for which such permits are usually renewed. This shall be

done within one month from the date of production of a copy of this

judgment.

Sd/-

P.B.SURESH KUMAR JUDGE ds 26.02.2021 W.P.(C) No.1795 of 2021

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APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE BUILDING PERMIT APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT.

EXHIBIT P2 TRUE COPY OF THE EMF CERTIFICATE DATED 13.8.2019 FOR RADIATION COMPLIANCE ISSUED IN FAVOUR OF THE PETITIONER.

EXHIBIT P3 TRUE COPY OF THE STABILITY CERTIFICATE DATED 17.8.2019 ISSUED IN FAVOUR OF THE PETITIONER.

EXHIBIT P4 TRUE COPY OF THE COMMUNICATION DATED 15.10.2019 ISSUED BY THE IST RESPONDENT PANCHAYAT TO THE PETITIONER.

EXHIBIT P5 TRUE COPY OF THE COMMUNICATION ISSUED BY THE DISTRICT TELECOM COMMITTEE -

DISTRICT COLLECTOR TO THE 2ND RESPONDENT DATED 5.11.2019.

EXHIBIT P6 TRUE COPY OF THE BUILDING PERMIT DATED 27.8.2019 ISSUED BY THE RESPONDENT PANCHAYAT IN FAVOUR OF THE PETITIONER.

EXHIBIT P7 TRUE COPY OF THE APPEAL NO.393/20 FILED BY THE RESPONDENTS 4 AND 5 DATED 16TH SEPTEMBER, 2020 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM.

EXHIBIT P7(A)             TRUE COPY OF THE ORDER IN
                          I.A.NO.723/2020 IN APPEAL NO.393/20
                          DATED 18.9.2020 INSTITUTIONS,
                          THIRUVANANTHAPURAM.

EXHIBIT P8                TRUE COPY OF THE WRITTEN STATEMENT AND
                          OBJECTION FILED BY THE PETITIONER IN
                          APPEAL NO.393/2020.
 W.P.(C) No.1795 of 2021

                                 ..16..



EXHIBIT P9                TRUE COPY OF THE JUDGMENT IN WPC
                          NO.23613/2020 OF THIS HON'BLE COURT
                          DATED 17.11.2020.

EXHIBIT P10               TRUE COPY OF THE ORDER DATED
                          30.12.2020 IN APPEAL NO.393/2020 OF
                          THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
                          INSTITUTIONS, THIRUVANANTHAPURAM.

EXHIBIT P11               TRUE COPY OF THE RELEVANT PAGES OF
                          RECOMMENDATIONS OF TELECOM
                          INFRASTRUCTURE POLICY DATED 12TH
                          APRIL, 2011 ISSUED BY THE TELECOM
                          REGULATORY AUTHORITY OF INDIA.

EXHIBIT P12               TRUE COPY OF THE GOVERNMENT ORDER-
                          G.O(MS) NO.14/2014/ITD DATED
                          15.3.2014.

EXHIBIT P13               TRUE COPY OF THE RECEIPT DATED 18-02-
                          2021 ISSUED BY THE RESPONDENT
                          PANCHAYAT EVIDENCING THE RECEIPT OF
                          RENEWAL APPLICATION SUBMITTED BY THE
                          PETITIONER.

RESPONDENT'S/S EXHIBITS:

EXHIBIT R1                NIL

EXHIBIT R2                NIL

EXHIBIT R3                NIL

EXHIBIT R4                NIL

EXHIBIT R5                NIL

EXHIBIT R5 A              TRUE COPY OF THE ROUGH SKETCH SHOWING
                          THE LIE OF THE PROPERTIES.

EXHIBIT R5 B              TRUE COPY OF THE REPRESENTATION DATED
                          6-09-2020 SUBMITTED BY THE POTHENCODE
                          TOWN RESIDENTS ASSOCIATION BEFORE THE
                          1ST RESOPONDENT
 W.P.(C) No.1795 of 2021

                                 ..17..



EXHIBIT R5 C              TRUE COPY OF THE REPRESENTATION DATED
                          7-09-2020 SUBMITTED BY THE 4TH
                          RESPONDENT BEFORE THE 1ST RESPONDENT.

EXHIBIT R5 D              TRUE COPY OF THE REPRESENTATION DATED
                          7-09-2020 SUBMITTED BY THE 5TH
                          RESPONDENT, BEFORE THE 1ST RESPONDENT

EXHIBIT R5 E              TRUETRUE COPY OF THE REPRESENTATION
                          DATED 7-09-2020 SUBMITTED BY THE
                          HEADMISTRESS OF THE LEKSHMI VILASOM
                          HIGH SCHOOL BEFORE THE 2ND RESPONDENT

EXHIBIT R5 F              TRUE COPY OF THE UNDATED REPRESENTED
                          SUBMITTED BY THE TEACHER OF ANGANVAADI
                          BEFORE THE 2ND RESPONDENT

EXHIBIT R5 G              TRUE COPY OF THE UNDATED
                          REPRESENTATION SUBMITTED BY THE
                          JANAKEEYA SAMARA SAMITHI BEFORE THE
                          1ST RESPONDENT

EXHIBIT R5 H              TRUE COPY OF THE UNDATED MASS PETITION
                          FILED BY THE RESIDENTS OF KAROOR WARD,
                          BEFORE THE DISTRICT COLLECTOR.