M/S Indus Towers Limited vs State Of Kerala
2021 Latest Caselaw 17837 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
           THE HONOURABLE MR.JUSTICE N.NAGARESH
  WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021/10TH BHADRA, 1943
                  WP(C) NO. 14824 OF 2021
PETITIONER:

         M/S INDUS TOWERS LIMITED,
         8TH FLOOR, VANKARATH TOWERS, NH BYPASS,
         PALARIVATTOM, COCHIN-682 024,
         KERALA, INDIA,
         REPRESENTED BY ITS POWER OF ATTORNEY HOLDER,
         MR. RAJKUMAR PAVOTHIL-HEAD LEGAL,
         KERALA CIRCLE COMPRISING OF STATE OF KERALA
         BY ADVS.
         RENJITH B.MARAR
         LAKSHMI.N.KAIMAL
         ARUN POOMULLI
         BIJU VIGNESWAR
         SURABHI SANTHOSH


RESPONDENTS:
    1    STATE OF KERALA,
         REPRESENTED BY THE CHIEF SECRETARY,
         SECRETARIAT, THIRUVANANTHAPURAM-695 001.
    2    DEPARTMENT OF LOCAL SELF GOVERNMENT,
         REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY,
         SECRETARIAT, THIRUVANANTHAPURAM-695 001.
    3    DIRECTOR PANCHAYAT,
         PUBLIC OFFICE BUILDING, MUSEUM (PO)
         THIRUVANANTHAPURAM-695 033.
    4    THE SECRETARY,
         KALADY GRAMA PANCHAYAT,
         KALADY P.O., ERNAKULAM-683 574
    5    KALADY GRAMA PANCHAYAT,
         REPRESENTED BY THE SECRETARY, KALADY
         P.O.ERNAKULAM-683 574.

         BY ADV SREEPRAKASH K.NAIR, SC
         SRI.SYAMANTHAK B.S, GOVERNMENT PLEADER
     THIS WRIT PETITION (CIVIL) HAVING COME UP             FOR
ADMISSION ON 01.09.2021, THE COURT ON THE SAME             DAY
DELIVERED THE FOLLOWING:
 WP(C) No.14824/2021
                                   :2 :




                            JUDGMENT

Dated this the 01st day of September, 2021

The petitioner is a Company providing passive

infrastructure support for Telecommunication service

providers. With an intention to erect a telecommunication

tower in Kalady Grama Panchayat, the petitioner submitted

an application dated 27.02.2021 seeking permit from the

Grama Panchayat. The petitioner states that the Grama

Panchayat issued Ext.P5 letter rejecting the permit

application submitted by the petitioner.

2. In Ext.P5, the Secretary to the Grama Panchayat

has stated that the petitioner has to produce NOC clearance

from Standing Advisory Committee for Frequency Allocation

(SACFA). The Secretary to the Panchayat further stated that

certain neighbouring residents have preferred a complaint

against the Telecommunication tower which has been WP(C) No.14824/2021

referred to the District Telecommunication Committee. The

Secretary further informed the petitioner that since there are

complaints filed by the local residents, the Panchayat

Committee has unanimously decided not to issue Building

Permit for construction of telecommunication tower.

3. The petitioner challenges Ext.P5 communication.

The learned counsel for the petitioner urged that as per Rule

6(17) of the Kerala Panchayat Building Rules, 2019, the

Secretary is bound to issue a Building Permit. The Secretary

should not be influenced by any decision of the Panchayat

Committee while exercising his licencing powers. Therefore,

the Secretary is not justified in rejecting the application based

on a so called unanimous resolution of the Panchayat

Committee. The learned counsel further urged that the

Secretary was not justified in taking umbrage under the

pendency of complaints made by the local residents. When

an application for Building Permit is made, the Secretary has

to consider the application in accordance with the Rules laid WP(C) No.14824/2021

down for granting Building Permit, uninhibited by any

complaints made by the 3rd parties.

4. The learned counsel for the petitioner further

pointed out that the petitioner has already applied for SACFA

NOC clearance which they will be receiving soon, but the

Secretary cannot deny Building Permit on that ground.

5. The learned Standing Counsel representing the

respondents 4 and 5 entered appearance and contested the

writ petition, filing a statement. Respondents 4 and 5

submitted that the Panchayat, where the Telecommunication

tower is to come will fall within the Red Zone of the

International Airport, Nedumbasseri and a clearance

certificate is necessary. The permission from Airport

Authority of India is mandatory under the Building Rules.

The learned Standing Counsel further pointed out that there

are widespread complaints against the erection of

Telecommunication tower from various corners including one

from Kerala Vyapara Ekopana Samithi. In such WP(C) No.14824/2021

circumstances, the Panchayat Committee unanimously

decided not to grant permit for such construction.

6. The learned Standing Counsel further pointed out

that on 03.05.2021, the Secretary to the Panchayat has

issued a communication to the petitioner pointing out certain

defects which have not been cured so far. For the said

reason also, the permit cannot be granted.

7. Heard the learned counsel for the petitioner, the

learned Government Pleader representing respondents 1 to

3 and the learned Standing Counsel representing the

respondents 4 and 5.

8. The petitioner has made an application for

Building Permit under Kerala Panchayat Building Rules,

2019. When such an application is made, the respondents 4

and 5 are bound to consider the application based on the

provisions contained in the Kerala Panchayat Building Rules,

2019. However, the application submitted by the petitioner

has been rejected as per Ext.P5 on the ground that there are WP(C) No.14824/2021

complaints from certain quarters which have been referred to

the District Telecommunication Committee. The further

reason given is that on the basis of complaints from various

quarters, the Panchayat Committee has taken a unanimous

decision not to issue Building Permit for the

Telecommunication Tower.

9. This Court is of the definite opinion that the

pendency of complaints before the District

Telecommunication Committee cannot be a reason for non-

exercise of licencing powers by the respondents 4 and 5 so

long as the District Telecommunication Committee has not

passed any orders adverse to the petitioner. Respondents 4

and 5 are bound to consider the application submitted by the

petitioner for Building Permit in accordance with law.

10. The further reason advanced by the respondents 4

and 5 is that the Panchayat Committee has passed a

resolution unanimously against grant of permit for

Telecommunication tower. The grant of Building Permit for WP(C) No.14824/2021

any construction is a statutory exercise of powers vested with

the licensing authorities under the Kerala Panchayat Building

Rules, 2019. Such statutory exercise of power cannot be

inhibited by any resolution passed by the Panchayat

Committee. Therefore, the said reason advanced by the

respondents 4 and 5 also cannot stand the scrutiny of law.

11. As regards NOC clearance from Standing

Advisory Committee for Frequency Allocation, the petitioner

has already made application before the competent

authorities. The Building Permit therefore can indeed be

issued, if the petitioner is otherwise eligible on condition that

the petitioner will be obtaining SACFA NOC clearance.

12. For all the afore reasons, Ext.P5 communication

cannot stand the scrutiny of law. Ext.P5 is therefore set

aside. The 4th respondent is directed to consider the

application for permit submitted by the petitioner in

accordance with law. The petitioner shall be issued with the

permit, if the petitioner is otherwise eligible for permit. A WP(C) No.14824/2021

decision in this regard shall be taken within a period of one

month.

The writ petition is disposed of as above.

Sd/-

N. NAGARESH JUDGE SR WP(C) No.14824/2021

APPENDIX OF WP(C) 14824/2021

PETITIONER'S EXHIBITS:

Exhibit P1            TRUE COPY OF THE CERTIFICATE OF
                      REGISTRATION     FOR     INFRASTRUCTURE

PROVIDER CATEGORY-1 (IP-1) GRANTED TO THE PETITIONER DATED 25.1.2007 BY THE MINISTRY OF COMMUNICATIONS AND IT, GOVERNMENT OF INDIA Exhibit P2 TRUE COPY CERTIFICATE OF INCORPORATION PURSUANT TO NAME CHANGE ISSUED BY REGISTRAR OF COMPANIES DATED 10.12.2020 Exhibit P3 TRUE COPY OF THE POWER OF ATTORNEY DATED 5.1.2021 ISSUED IN FAVOUR OF THE PETITIONER Exhibit P4 TRUE COPY OF THE APPLICATION FOR BUILDING PERMIT DATED 26.2.2021 PREFERRED BY THE PETITIONER BEFORE THE 4TH RESPONDENT Exhibit P5 TRUE COPY OF THE ORDER DATED 18.6.2021 PASSED BY 4TH RESPONDENT Exhibit P6 TRUE COPY OF THE ORDER DATED 15.3.2014 ISSUED BY THE 1ST RESPONDENT ALONG WITH THE ANNEXURE Exhibit P7 TRUE COPY OF THE SCREENSHOT OF THE WEBSIDE "SANKETHAM"

Exhibit P8 TRUE COPY OF THE SCREENSHOT TAKEN FROM THE SITE OF NOCAS Exhibit P9 TRUE COPY OF THE CIRCULAR DATED 5.11.2014 NUMBERED G.O.MS.31/2014/ITD