Sudevan C.C vs Mundur Grama Panchayath on 12 August, 2013

[Cites 3, Cited by 5]

Kerala High Court

Sudevan C.C vs Mundur Grama Panchayath on 12 August, 2013

The appellants are the writ petitioners. They approached this Court seeking to quash Exts.P1, P2 and P6. Exts.P1 and P2 are building permits granted by the Secretary of the Mundur Grama Panchayat to construct two mobile towers, in favour of the second respondent. Ext.P3 purports to be a report of the Sub Committee tending to take the view that there is threat to residents due to the operation of the Mobile Towers. Ext.P4 purports to be the decision taken by the Grama Panchayat accepting Ext.P3 report, wherein relying upon the decision of the Sub Committee, a decision was taken by the Grama Panchayat to cancel the permits granted in favour of the second respondent. Ext.P5 is the proceedings of the Secretary by which the Secretary purported to cancel the permits granted in favour of the second respondent. The second respondent challenged the decision before the Tribunal. By Ext.P6, the Tribunal allowed the appeal filed by the second respondent and; the decision of the Sub Committee of the Panchayat and consequential order of the Secretary were set aside. In doing so, the W.A.No.1652/2013 -:2:- Tribunal arrived at two conclusions. Firstly, refering to Rule 18 of the Kerala Panchayat Building Rules, 2011 (for short, the 'Rules'), it was found that a permit could be suspended or revoked only if four reasons mentioned therein were present. It was found that the impugned order does not show any of the four grounds and it is not covered by Rule 18 of the Rules. Secondly, it was found that the Secretary alone is the competent authority to pass an order of revocation of the permit. Reference is made to Section 185 B of the Kerala Panchayat Raj Act, (for short, the 'Act'), which interdicts the Panchayat, the Panchayat President, the Chairman of the Standing Committee or any other member from interfering with or influencing in exercising the powers and functions to be performed independently by any officer of the Panchayat. It was found that the impugned decision of the Panchayat and the consequential order of the Secretary are patently illegal as the order of revocation was passed by the Panchayat and the Secretary had only followed the direction of the Panchayat.

2. The learned Single Judge dismissed the writ petition finding that, "a reading of Ext.P5 shows that there was no application of mind by the Secretary as contemplated under Rule 18 of the Building Rules". It was W.A.No.1652/2013 -:3:- found that Ext.P4 entrusted the Secretary with the duty of taking necessary steps to revoke permits and on the same day, an order was passed by the Secretary relying upon the resolution of the Panchayat, Ext.P5. Learned Single Judge also took the view that there was no reliable material or evidence to warrant a conclusion that the tower, if permitted to be established, would be a health hazard to the local residents. It is found that the Sub Committee is constituted by members of the Panchayat Committee, who are not scientific experts or persons possessed of specialised knowledge in the matter of assessing the scientific data that is necessary to be considered or to give an opinion as to whether the proposed tower would be a health hazard or not. Therefore, it was found that Ext.P3 report does not justify a conclusion that mobile towers are causes of health hazard to the local residents.

3. We heard the learned counsel for the appellants, the learned counsel for the second respondent and also the learned counsel appearing on behalf of the Panchayat.

4. The learned counsel for the Panchayat would submit that it is not correct to say that the Secretary took the decision only on the basis of W.A.No.1652/2013 -:4:- the decision of the Panchayat. There were scientific materials which were looked into by the Sub Committee. The Sub Committee gave a report. There is nothing wrong in the Secretary relying on that report to come to a conclusion that there is threat to residents and to proceed to revoke the permit under Rule 18 of the Rules. The learned counsel for the Panchayat also supported the stand of the appellants. It was submitted that the Secretary has taken independent decision.

5. The learned counsel on behalf of the second respondent however addressed the following arguments:

He would first of all contend that there is no authority for the Panchayat to constitute a Committee except for any circumstances falling under Section 164 of the Act. The constitution of the Panchayat Sub Committee is itself bad as it is unauthorised. Therefore, he would submit that when constitution of this Sub Committee itself is bad, reliance placed on its report cannot be justified. Still further, he would contend that it is a case where the order is issued on the basis of the decision of the Panchayat Committee and he would reiterate what is stated in the order of the Tribunal and also by the learned Single Judge, that it is hit by Section 185 B of the W.A.No.1652/2013 -:5:- Act. Secondly, he would submit that there are a number of decisions of this Court wherein it has been categorically held that as things stand, there is no material to come to a conclusion that operation of Mobile Tower will result in health hazard. He relies on the decision of the Apex Court in G.Sundarrajan v. Union of India [(2013) 6 SCC 620]. He would therefore, submit that there is no threat to life at all and it is not for the Panchayat Committee to come to a different conclusion. He submits that if the Panchayat members are given the power to decide the issue in this manner, then there will be injustice, as the matter is already the subject matter of decision of the Apex Court. Exts.P1 and P2 are the permits granted by the Secretary. Once the permit is granted, there is a power lodged with the Secretary to revoke the permit. However, that power is limited by the requirement that one or more of the conditions mentioned in Rule 18 of the Rules must be present. Section 185 B of the Act was specifically incorporated to prohibit the statutory authority concerned acting under the influence or dictation or interference by the Panchayat, Panchayat Committee, President etc.. In fact, even without Section 185 B of the Act, it is trite that when statutory discretion is to be exercised by a statutory W.A.No.1652/2013 -:6:- authority, he cannot act under dictation and that he must exercise discretion all by himself and he must act after considering relevant materials and he must avoid considering irrelevant material. But in view of Section 185 B of the Act, which is essentially declaratory of the law relating to exercise of discretion by statutory authority who is clothed with independent power, the matter is clear that the Secretary of the Panchayat cannot take a decision which is dictated to him by a Panchayat Committee. In this case, there were complaints apparently. On the basis of the complaints it appears that a Sub Committee was constituted. The Sub Committee which is constituted does not appear to be constituted with experts as such. At least there is no such case for the appellants or the Panchayat that members of the Sub Committee are experts in the field of electromagnetic radiation. Of course, they have a case that they were acting on a report of the expert body and what is more is that the report of the expert body was not considered by any of the courts. Whatever that be, it is clear that in Ext.P4, the Panchayat Committee relied upon Ext.P3 report of the Sub Committee and decided to cancel the permits and, in this regard the Secretary of the Panchayat was entrusted with the task of cancelling the permits. It is after referring to all those, the Secretary W.A.No.1652/2013 -:7:- proceeds to revoke it. To our mind this appears to be a case where the Secretary was substantially acting only on the basis of the decision taken by the Committee. No doubt there is reference to the Central Government guidelines which were allegedly flouted. Going by the tenor of the impugned order of the Secretary, it appears that the Secretary was acting at the behest of the Panchayat Committee which is also involved in violation of Section 185 B of the Act. Therefore, we do not think there is anything in this case made out for interference with the decision of the Tribunal.

6. Here, we must consider one of the arguments of the learned counsel for the second respondent. The argument of the second respondent is that the Sub Committee cannot be constituted and the only circumstance, under which the Sub Committee can be constituted, is indicated in Section 164 of the Act. Learned counsel for the Panchayat has a case that the Sub Committee needs to be constituted only because of the absence of the Technical Expert Committee as contemplated under Rule 12 of the Rules. Section 164 of the Act reads as follows:

"Every Panchayat may constitute sub-committees to assist the Standing Committee or Functional Committees for W.A.No.1652/2013 -:8:- the execution of any work, scheme, project or plan, which may consist of members of the Panchayat and others interested in public welfare who may be nominated by the Panchayat."

7. We are of the view that while it is true that Section 164 of the Act specifically deals with the powers to constitute a Sub Committee in respect of execution of any work, scheme, project or plan, it may not mean that in any other circumstances the Panchayat cannot constitute a Sub Committee for gathering information in respect of any matter. We would think that to deny the power to Panchayat Committee to constitute a small group out of the Panchayat Committee for the purpose of gathering information or studying a matter and to act or to refuse to act on the basis of the said report, would be to deny the power which should be made available otherwise. But that will not however advance the case of the appellant in this case, in view of what we have found.

8. However, this is not to say that even now the Secretary cannot take a decision within the meaning of Rule 18 of the Rules if circumstances provided under Rule 18 are present. In this regard it is true that the Tribunal has found that in the order of Secretary of the Panchayat there is no mention W.A.No.1652/2013 -:9:- of any circumstances covered by Rule 18 of the Rules. What is pressed before us is that there is threat to life, which according to the learned counsel for the appellant is not confined to human life. As pointed out by us earlier, neither the appellant nor the Panchayat has a case that the members of the Sub Committee were as such experts in the concerned field. At any rate, it is the fact that it has engaged the attention of this Court as well as the Apex Court also. It is a vexed issue. There may be cases where the construction may, according to the Secretary cause a perceptible threat to life. But in a case where the threat to life is perceived from the operation of the mobile tower, which appears to be a debatable issue, at any rate, the Secretary cannot act unless there is cogent material. Therefore, we would only say that while we uphold the Judgment of the learned Single Judge refusing to interfere with the Order of the Tribunal that it is still open to the Secretary to consider the matter independently and necessarily with notice to the second respondent and take a decision under Rule 18 of the Rules if so advised. We would only hasten to add that, as aforesaid, if he is advised to so act, there must be material and there should be basis for acting under Rule 18 of the Rules and he cannot act either because the Panchayat W.A.No.1652/2013 -:10:- Committee has taken a decision or the Sub Committee has taken a decision. But he must be satisfied independently that any of the conditions in Rule 18 is satisfied. In this regard, we will also say that the Secretary necessarily will have to also consider the Judgments of the Apex Court and this Court also if any, and any other scientific materials also in arriving at the conclusion as to whether any of the conditions have been satisfied. The writ appeal is disposed of as above.

Sd/-

K.M.JOSEPH, JUDGE Sd/-

A.MUHAMED MUSTAQUE, JUDGE ms

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Kerala High Court