Panchayat:Repo18/Law Manual Page0333
SC 1471 1976 (3) SCC 37: 1976 (3) SCR 775; (Paras 17, 20); State of M.P. 1. Tikamdas, 1975 KHC 555 : 1975 (2) SCC 100 : AIR 1975 SC 1429 : 1975 Supp. SCR 234; (Paras 17, 19); Universal Imports Agency v. Chief Controller, 1961 KHC 468 : AIR 1961 SC 41: 1961 (1) SCR 305; (Paras 17, 29) Referred to].
- Erection of telecommunication tower - No permit can be granted under Rule 141(8) of KMBR unless there is prior site approval. Once permit is granted as per law, under the Rules, there is no requirement that there must be again permission granted under Chapter XVIII of the Kerala Municipality Act which corresponds to Chapter XXI of the Kerala Panchayat Raj Act.- Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala - 2011(2) KHC 171 (DB): 2011 (2) KLT 516: 2011 (2) KLJ 335.
- We would think that having regard to the definition of the word "building" in the Municipality Act and the definition of the words "building" and "structure" in the Municipality Building Rules, while a telecommunication tower may be of a special nature, non-the-less, it is a building. – Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala - 2011(2) KHC 171 (DB): 2011 (2) KLT 516: 2011 (2) KLJ 335.
- If a person were to apply for permission for construction or reconstruction of a building without having obtained the site approval, the permission cannot be granted. Requirement of site approval as is mandated as per Section 235G of the Panchayat Raj Act or Section 388 of the Municipality Act, is to be complied with. – Essar Telecom Infrastructure (P) Ltd. (M/s.) v. State of Kerala – 2011(2) KHC 171 (DB): 2011 (2) KLT 516 : 2011 (2) KLJ 335.
- Issuance of building permit is not a ministerial Act and receipt of No Objection Certificates from various departments may not automatically lead to issuance of building permit. Grant of NOCs coupled with completion of other formalities under Rule 11(3) alone would lead to issuance of building permit - M/s. Asset Homes Private Ltd. and Another v. State of Kerala and Another - 2011 (1) KHC 276 : 2011 (1) KLT 257 : ILR 2011 (1) Ker. 310: 2011 (1) KLJ 351.
- In M/s. Asset Homes Private Ltd. and Another v. State of Kerala and Another, the No Objection Certificate from various departments was required and 30 days prescribed for respective departments to respond, expired. The court held that in that context the effect will be that, there cannot be any deemed sanction or deemed refusal on expiry of statutory period. - M/s. Asset Homes Private Ltd. and Another v. State of Kerala and Another - 2011 (1) KHC 276: 2011 (1) KLT 257 : ILR 2011 (1) Ker. 310: 2011 (1) KLJ 351.
ition can be disposed of only on the basis of Law prevailing on the date of consideration of the application; and not according to the Law that prevailed on the date of submission of application/petition. The Apex Court has considered various decisions on this point. The first one of the same is Howrah Municipal Corporation's case. Therein the question whether there is a vested right on the basis of the unamended rules, arose for consideration and it was found that the regulations existing on the date of sanction would govern the matter and not those existing on the date of application. The Apex Court considered a case where the construction of a building complex upto the fourth floor level was completed. An application was submitted for sanction of additional floors and in an earlier occasion the High Court had directed the corporation to sanction the plan upto the fourth floor level making it clear that this will not prevent the petitioner from applying for further sanction if the same is permissible at a later date. While the second application was pending, the building rules were amended restricting the height of the buildings in specified ward and areas. On the basis of this, the application was rejected by the Corporation. It was argued that there is a vested right for sanction and construction. Reliance was placed by the Apex Court while negativing these contentions, on the decisions of the Apex Court in Usman Gani J. Khatri v. Cantonment Board and State of W.B. v. Terra Firma Investment and Trading (P) Ltd. In para 21 it was held thus:
- "The provisions of the Act, therefore, contemplate and express sanction to be granted by the Corporation before any person can be allowed to construct or erect a building. Thus, in ordinary course, merely by submission of application for sanction for construction, no vested right is created in favour of any party by statutory operation of the provisions." In para 29, the view taken in Usman Gani's Case was considered and it was held thus in para 30: "This Court, thus, has taken a view that the Building Rules or Regulations prevailing at the time of sanction would govern the subject of sanction and not the Rules and Regulations existing on the date of application for sanction. This court has envisaged a reverse situation that if subsequent to the making of the application for sanction, the Building Rules, on the date of sanction, have been amended more favourably in favour of the person or party seeking sanction, would it then be possible for the Corporation to say that because the more favourable Rules containing conditions came into force subsequent to the submission of application for sanction, it would not be available to the person or party applying." The decision in Usman Gani's Case was followed in Terra