Amballoore Grama Panchayat Represented By Its Secretary v. Tribunal for Local Self Government Institutions
2019-02-04
SHAJI P.CHALY
body2019
DigiLaw.ai
JUDGMENT : 1. The captioned writ petitions are materially connected and filed by the Grama Panchayat, challenging the orders passed by the Tribunal for Local Self Government Institutions, directing the Secretary of the Grama Panchayat to re-consider the applications for building permit submitted by the 2nd respondent in the writ petitions, for construction of Telecom Tower, within a period of 30 days from the date of receipt of the order. Therefore, I heard them together and propose to deliver this common judgment. The contentions raised are common in nature, and therefore, I am relying upon the pleadings and documents contained in W.P.(C) No.38438 of 2018. 2. An application for building permit was submitted by the Telecom Infrastructure company, which was rejected as per Ext.P4 order by the Secretary of the Grama Panchayat, assigning the reason that the committee of the Grama Panchayat has taken a decision not to grant any building permit for telecom towers within the Grama Panchayat, and therefore, the licence application submitted by the 2nd respondent cannot be considered. It was thus challenging the said order, appeals were preferred before the Tribunal by the infrastructure provider and the Tribunal has set aside the orders and directed the Secretary to re-consider the application for building permit, by taking into account the observations made by the Tribunal. 3. I have considered the rival submissions made across the Bar and perused the pleadings and the documents on record. 4. The paramount contention advanced by learned counsel for the petitioners is that, since a decision is taken by the Grama Panchayat as per Sec.235C of the Kerala Panchayat Raj Act, 1994, the Secretary was duty bound to follow the decision taken by the Grama Panchayat, and it was accordingly that the building permit applications were rejected by the Secretary. However, the Tribunal considered the said submission and relying upon Sec.185B of Act, 1994, held that, the committee did not enjoy any powers to interfere with the power enjoyed by the Secretary of the Grama Panchayat. Learned counsel for the 2nd respondent fully supported the order passed by the Tribunal. 5. The question to be considered is, whether any manner of interference is required to the order passed by the Tribunal in the appeals.
Learned counsel for the 2nd respondent fully supported the order passed by the Tribunal. 5. The question to be considered is, whether any manner of interference is required to the order passed by the Tribunal in the appeals. Section 235C of Act, 1994 deals with the power of Village Panchayat to regulate further construction of certain classes of buildings in particular streets or localities, which read thus: “235C. Power of Village Panchayat to regulate further construction of certain classes of buildings in particular streets or localities.--(1) (a) The Village Panchayat may issue public notice of intention to declare in any area or areas mentioned in the notice, that,-- (i) continuous building shall be allowed; (ii) the elevation and construction of the frontage of all buildings thereafter constructed or reconstructed shall in respect of their architectural features, be such as the Village Panchayat may consider suitable to the locality; or (b) that in any locality specified in the notice, the construction of only detached building shall be allowed; or (c) that in any road, portion of road or localities specified in the notice, the construction of shops, warehouses, factories, huts or buildings of a specified architectural character of buildings destined for particular use shall not be allowed without the special permission of the Village Panchayat. (2) No objection to any such declaration shall be received after a period of three months from the publication of such notice. (3) The Village Panchayat shall consider all objections received within the said period and may modify or confirm the declaration and the modification shall not be so as to extend its effect. (4) The Secretary shall publish any declaration so confirmed which shall take effect from the date of its publication. (5) No person shall, after the date of publication of the declaration under sub-section (4), construct or reconstruct any building in contravention of such declaration.” 6. In my considered opinion, the provisions contained under Sec.235C of Act, 1994, deal with the power of the Grama Panchayat to regulate the nature of construction confining to different areas i.e., industrial, residential, mixed zone, commercial etc. etc., and the same has got nothing to do with the powers conferred on the Secretary of the Grama Panchayat to consider a building permit application. Here is a case where the Grama Panchayat has taken a decision not to grant any permit for construction of telecom towers. 7.
etc., and the same has got nothing to do with the powers conferred on the Secretary of the Grama Panchayat to consider a building permit application. Here is a case where the Grama Panchayat has taken a decision not to grant any permit for construction of telecom towers. 7. Section 185B of Act, 1994, dealing with exercise of statutory functions by the officers, is relevant to the context, which read thus: “Where any officer of the Panchayat is conferred with any statutory powers and functions to be exercised independently and solely, the Panchayat, the Panchayat President, Chairman of the Standing Committee or any member shall not interfere or influence in the exercise of such powers and functions by that officer.” Therefore, the said provision makes it amply clear that, whenever a power is conferred on an officer of the Panchayat to consider a building permit application, the other authorities are not vested with any powers to interfere with the powers enjoyed by that officer. So far as a construction is concerned, it is guided by the provisions of Kerala Panchayat Building Rules, 2011, and under the said Rules, the Secretary alone is vested with powers to consider a building permit application. So far as the construction of a telecom tower is concerned, it is guided by Rule 118 of Rules, 2011, which read thus: “118. Essentiality of permit.--No person shall erect or re-erect any non-governmental telecommunication tower or telecommunication pole structures or accessory rooms or make alteration or cause the same to be done without first obtaining a separate permit for each such tower or telecommunication pole structure from the Secretary.” Therefore, it is categoric and evident that the power to consider a building permit application for installation of a telecommunication tower is absolutely vested with the Secretary. 8. Taking into account the afore-quoted provisions, I am of the considered opinion that, overlooking the powers conferred with the Secretary, the Panchayat committee did not have any power to take an omnibus decision not to grant any permit to any telecom tower. So also, the issue was considered by the Tribunal, and taking into account the provisions of law alone, the Secretary of the Grama Panchayat was directed to re-consider the permit application in accordance with law.
So also, the issue was considered by the Tribunal, and taking into account the provisions of law alone, the Secretary of the Grama Panchayat was directed to re-consider the permit application in accordance with law. Assimilating the factual and legal situations, I am of the considered opinion that, there is no illegality, arbitrariness or any other legal infirmities, justifying interference of this Court in the orders passed by the Tribunal in the appeals. Therefore, the writ petitions fail, accordingly they are dismissed. Consequently, there will be a direction to the Secretary of the Grama Panchayat to take a decision in the building permit applications within 30 days from the date of receipt of a copy of this judgment.