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High Court of Kerala
THE HONOURABLE MR. JUSTICE S. SIRI JAGAN
K.P. Antony
Versus
Chellanam Grama Panchayath, rep by its Secretary & Others
W. P (C) Nos.4282 of 2009 & 7127 of 2009
Decided on : 09-07-2009
Kerala Panchayat Raj Act, 1994 -Sections.156 and 276( 5) - Petitions are the same and therefore both were heard together and are disposed of by this common judgment. For convenience, I shall refer to the rank of parties and Exhibits as referred to in W.P.(C) No.7127 of 2009 - Panchayat Committee adopted a resolution dated 29.11.2008 to cancel Ext. P1 permit. By Ext. P3 communication dated 20.12.2008, the 3rd respondent- President of the Panchayat informed the 4th respondent about the said resolution and directed them to stop the construction of the tower with a caution that if they do not, the 4th respondent alone would be responsible for the law and order situation that may arise if the construction is continued -Held, No doubt that the Panchayat exceeded its powers in annulling the permit on its own, insofar as the Secretary had, in granting the permit, acted within his jurisdiction and as held there is no sustainable ground on which the Panchayat Committee could have interfered with it - Petitions are dismissed.
Certainly. Based on the provided legal document, here are the key points:
The case involves two writ petitions concerning the legality of actions taken by a Panchayat regarding the cancellation of a permit for constructing a telecommunication tower (!) .
The petitioner challenged the Panchayat's resolution to cancel the permit, arguing that the Panchayat exceeded its powers by annulling a permit granted by the Secretary within his jurisdiction (!) (!) .
The permit was originally issued to a company for constructing a mobile base station tower, and subsequent resolutions sought to cancel this permit, which the petitioner contended was beyond the Panchayat’s authority (!) .
The order of the Tribunal set aside the resolution that canceled the permit, holding that the Panchayat exceeded its powers and that the formal communication of the decision (Ext. P3) was appealable under the relevant law (!) (!) (!) .
The Tribunal's jurisdiction included examining the legality of the actions and decisions of the Panchayat and its officials, and it had the authority to set aside resolutions based on the legality of the underlying decisions (!) (!) .
The communication of the resolution (Ext. P3) was deemed an appealable order, and the Tribunal was justified in examining the validity of the resolution itself, even if the resolution was not directly challenged (!) (!) .
The failure to challenge subsequent resolutions (Ext. P2) was not fatal because those resolutions were not communicated to the respondent and were dependent on the initial resolution, which was challenged and set aside (!) (!) (!) .
The decision to cancel the permit on the grounds of health hazard or violation of Coastal Zone Regulations was found to be unsustainable, as the evidence and procedures did not support such reasons (!) (!) .
The Panchayat's action was also scrutinized for adherence to natural justice principles, with the court noting that the affected party was properly notified through the formal communication (Ext. P3), and the petitioner was a party to the proceedings (!) .
The court emphasized that the powers of the Panchayat to annul permits are limited to actions taken within the jurisdiction of the Secretary; beyond that, such actions are unlawful unless challenged through proper legal channels (!) .
The order of the Tribunal was upheld, and the writ petitions were dismissed, confirming that the Panchayat exceeded its powers in canceling the permit and that the Tribunal’s decision was within its jurisdiction (!) (!) .
The court clarified that the Panchayat cannot interfere with or annul permits granted by the Secretary if those actions are within his jurisdiction, and any such interference is unlawful (!) (!) .
These points summarize the core legal findings and reasoning in the case, highlighting the limits of Panchayat powers, the importance of proper communication of decisions, and the Tribunal’s authority to review and set aside unlawful resolutions.
The subject matter of these two writ petitions are the same and therefore both were heard together and are disposed of by this common judgment. For convenience, I shall refer to the rank of parties and Exhibits as referred to in W.P(C) No. 7127 of 2009, which is the main case.
2. The 4th respondent is a Company conducting business as a service provider for mobile phone users. The Secretary of the 2nd respondent-Panchayat issued Ext. P1 building permit to the 4th respondent for constructing a telecommunication tower for installation of a Mobile Base Station. The Panchayat committee adopted a resolution dated 29-11-2008 to cancel Ext. P1 permit. By Ext. P3 communication dated 20-12-2008, the 3rd respondent-President of the Panchayat informed the 4th respondent about the said resolution and directed them to stop the construction of the tower with a caution that if they do not, the 4th respondent alone would be responsible for the law and order situation that may arise if the construction is continued.
3. It appears that on 31-12-2008, the Panchayat Committee discussed the same issue again in view of the request of the Secretary to review the decision dated 20-11-2008 and again adopted Ext. P2 resolution to confirm the decision to cancel Ext. P1 building permit issued to the 4th respondent. However, that resolution was not communicated to the 4th respondent.
4. The 4th respondent challenged Ext. P3 communication of the 3rd respondent, before the Tribunal for Local self Government Institutions, in Appeal No. 24 of 2009. While that appeal was pending, on 9-2-2009, one Sri. K.P. Antony, styling himself as the Chairman of an action council formed by the people of the 2nd respondent-Panchayat, to protest against the grant of the permit, filed W.P(C) No. 4282 of 2009 seeking a mandamus to the Panchayat to implement Ext. P2 resolution of the Panchayat. While that writ petition was pending, the 1st respondent -Tribunal passed Ext. P7 order dated 17-2-2009 in Appeal No. 24 of 2009, setting aside the resolution dated 29-11-2008 of the Panchayat and Ext. P3 consequential order of the 3rd respondent. One Sri. Bharathan, a resident of the 2nd respondent Panchayat, who had impleaded himself as additional 3rd respondent in the appeal, has filed W.P(C) No. 7127 of 2009 challenging Ext. P7 order of the Tribunal seeking the following reliefs:
"(i) call for the records leading Ext. P7 and quash Ext. P7 issuing a writ of certiorari or any other appropriate writ;
(ii) direct the 2nd respondent to take action against 4th respondent in the event of undertaking any construction violating Ext. P2 order canceling the permit issued to him as Ext. P7 has no effect of annulling Ext. P 2."
5. The petitioner does not challenge Ext. P7 order on its merits, but only on technical contentions. According to him, Ext. P3 is not an appealable order under Section 276 of the Kerala Panchayat Raj Act, 1994 and therefore the appeal itself is not maintainable. Secondly, he would contend that the 4th respondent had challenged only Ext. P3 communication and not the resolution dated 29-11-2008 and therefore the Tribunal exceeded its jurisdiction in quashing that resolution, which was not under challenge in the appeal. Thirdly, he would submit that since the further resolution of the Panchayat, Ext. P2, of which the 4th respondent had knowledge, was not challenged by them, the challenge against Ext. P3 alone is of no consequence and therefore the Tribunal went wrong in allowing the appeal. Lastly, it is contended that since the resolution dated 29-11-2008 was not under challenge in the appeal, the action of the Tribunal in setting aside that resolution is violative of the principles of natural justice insofar as before setting aside the said resolution, the respondents in the appeal were not put on notice regarding the challenge against the same.
6. The 4th respondent has filed a counter affidavit. According to them, the only order issued by the Panchayat to them ca
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