Abhijith P.M. vs State Of Kerala
2021 Latest Caselaw 4079 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                 &

              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

   THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                     WP(C).No.23295 OF 2015(S)

PETITIONER:

               ABHIJITH P.M., S/O BALAN, AGED 32 YEARS,
               DWARAKA P O, MINI INDUSTRIAL ESTATE
               KUNNAMKULAM, KOZHIKODE DISTRICT.

               BY ADV. SHRI.V.N.RAMESAN NAMBISAN

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE SECRETARY,
               DEPARTMENT OF SELF GOVERNMENT (RC), SECRETARIAT,
               THIRUVANANTHAPURAM, PIN 695 001.

      2        THE PRINCIPAL ACCOUNTANT GENERAL, (GENERAL AND
               SOCIAL SECTOR UNIT), INDIAN AUDIT AND ACCOUNTS
               DEPARTMENT, KERALA, THIRUVANANTHAPURAM - 695 001.

      3        THE SENIOR DEPUTY DIRECTOR LOCAL FUND AUDIT
               DISTRICT OFFICE, CIVIL STATION,
               KOZHIKODE - 673 020.

      4        BLOCK PANCHAYAT, KUNNAMANGALAM,
               REPRESENTED BY ITS SECRETARY
               KUNNAMANGALAM, KOZHIKODE - 673 571.

      5        A.B.BALAKRISHNAN, PRESIDENT,
               KUNNAMANGALAM BLOCK PANCHAYAT
               KUNNAMANGALAM, KOZHIKODE - 695 001.

               R1-3 BY SR.GOVERNMENT PLEADER SRI.V.TEKCHAND


     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
04-02-2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C).No.23295 OF 2015(S)
                                     :: 2 ::




                                 JUDGMENT

Dated this the 4th day of February 2021

SHAJI P. CHALY, J.

This is a public interest litigation filed by the petitioner, who was

the President of the Mandalam Congress Committee, Kunnamangalam

seeking the following reliefs:

"(i) to issue a writ of certiorari or any other appropriate writ or order or direction and to quash Exhibits P5 and P7;

(ii) to declare that going by the provisions of Kerala Panchayat Raj Act and the Rules thereunder, the 4th respondent Block Panchayat cannot legally undertake construction of a shop complex and therefore, action of the 4th respondent in the case on hand is liable to be interfered with;

(iii) to declare that, as evident from Exhibit P2, sanction was initially refused by the Commissioner of Rural Development, Thiruvananthapuram for the new project and also the same was objected in Exhibits P8 and P9 audit objections and therefore, the construction of the shopping complex by the 4th respondent pursuant to Exhibit P7 permit is to be set aside forthwith;

(iv) to issue a writ of mandamus or any other appropriate writ, order direction commanding the respondents to proceed with Exhibit P1 project of Rural Self Employment Training Institute sponsored by Canara Bank and a Central Government Scheme in the building constructed by the 4 th respondent Block Panchayat"

W.P.(C).No.23295 OF 2015(S) :: 3 ::

2. The writ petition was pending before this court from 31.7.2015 .

The basic challenge made in the writ petition is to Ext.P5 Government

Order dated 12.3.2014 and Ext.P7 permit, dated 20.10.2014, issued by

the Secretary of the Kunnamangalam Grama Panchayat, they read thus:

Ext.P5:

Government of Kerala Abstract

Local Self Government-No objection Certificate granted with respect to construction of shopping complex by Kunnamangalam Block Panchayat - Orders issued.

--------------------------------------------------------------------------------------------

Local Self Government Department (DB) Ord.Letter No.748/14LSGD Thiruvananthapuram, dated 12.3.2014

-------------------------------------------------------------------------------------------- Ref: 1. Decision No.1(3) dated 27.3.2014 of the Kunnamangalam Block Panchayat.

2. Request letter dated 2.4.2013 of the President, Kunnamangalam Block Panchayat

3. Order No.27328/JRY-2/2012/CRD of the Rural Development Commissioner.

ORDER Based on the decision under ref. (1) above, as per request under ref. (2) above the President of Kunnamangalam Block Panchayat requested to grant no objection for the purpose of construction of shopping complex in the property admeasuring 90 cents situated in Kunnamangalam Block Panchayat by including that project in the annual plan for the year 2012-13 and for the estimate of Rs.90 lakhs and included in Project No.141 of the District Planning Committee and thereby to tender the shop rooms for the purpose of collecting funds for the construction of the same. As per recommendation under ref. (3) above, the Rural Development Commissioner has recommended that permission can be granted to the Block Panchayat to undertake the construction of the shopping complex.

2. Government has considered the above issue in detail. No objection certificate for the project of construction of the shopping complex which has got approval of the District Planning Committee and included as 141 is hereby issued.

As per order of the Governor

(C.Valsala) Joint Secretary W.P.(C).No.23295 OF 2015(S) :: 4 ::

Ext.P7:

APPENDIX C (See Rules 11(3) G.O.(MS)No.41/11/LSGD - Dated 14-2-2011 PERMIT Kunnamangalam Grama Panchayat

No.BL:404/14-15 Dated 20.10.2014

Ref: Application dated 15.10.14 from Sri/Smt - The Secretary, Block Panchayat, Kunnamangalam

Permission is granted for the New shop building (specify the construction) in building .................in Re-Survey 496/1A, 2B village Kunnamangalam Taluk, Kozhikode District Kozhikode for Commercial (specify the occupancy) purpose, subject to the conditions stated below:

1. Permit shall be valid upto 19.10.2017

Plinth area of the building is as follows:

                         Basement
                 Ground floor                  181.41M2
                 First floor                   219.21M2
                 Stair room                      24.3M2

............................. ................

                 Total                         : 428.98M2
        Place: Kunnamangalam
        Date : 20.1.2014

3. The paramount contention advanced by the petitioner is that

Exhibit P5 order issued by the State Government granting permission to

construct a shopping complex by the Block Panchayat - 4 th respondent W.P.(C).No.23295 OF 2015(S) :: 5 ::

is totally illegal and cannot be supported by the provisions of the Kerala

Panchayat Raj Act and the Rules thereto and therefore, Exhibit P5

Government Order is liable to be interfered with. It is also the case of

the petitioner that consequent to Exhibit P5 Government Order, the

Kunnamangalam Panchayat has issued Exhibit P7 building permit for

the construction of a commercial shopping complex. Eventhough other

grounds are raised, we do not find any legality in such grounds so as to

interfere with Exhibit P5 order passed by the Government and Exhibit

P7 permit issued by the Secretary of Kunnamangalam Grama Panchayat.

Moreover, writ petition was pending before this court without any

interim orders and at this distance of time of seven years, it cannot be

believed that anything survives for consideration in the impugned

order of the Government and the permit issued by the Secretary of the

Grama Panchayat.

4. We have heard learned counsel for the petitioner

Sri.V.N.Ramesan Nambisan and learned Senior Government Pleader

Sri.Tekchand and perused the materials and pleadings on record.

5. On an analysis of the pleadings put forth by the petitioner, it

cannot be said that there is any element of public interest involved in W.P.(C).No.23295 OF 2015(S) :: 6 ::

the issues raised by the petitioner. The State Government has issued

Ext.P5 order dated 12.3.2014 permitting the Block Panchayat to include

the construction of the shopping complex in an extent of 90 cents of

property situated within the limits of the Kunnamangalam Block

Panchayat for an estimate of Rs.90 lakhs which was included as a project

of the District Planning Committee.

6. In our considered opinion, the construction of the commercial

shopping complex would only enure to the benefit of the Grama

Panchayat. Moreover, by the decision of the Government and the

permit issued by the Secretary of the Grama Panchayat, no manner of

prejudice would be caused to anyone nor any such prejudice is narrated

by the petitioner in the writ petition. It is also clear from the pleadings

put forth that there are no allegations of malafaides or illegality made

in the writ petition other than saying that the Block Panchayat is not

vested with any powers to permit construction of a shopping complex

by spending its money so as to make it advantageous to a Grama

Panchayat. We do not find any force in the contentions advanced by the

petitioner nor we do not find any public interest so as to interfere with

the order passed by the Government and the permit granted by the W.P.(C).No.23295 OF 2015(S) :: 7 ::

Secretary of the Grama Panchayat. Needless to say, writ petition fails

and it is accordingly dismissed.

sd/-

S.MANIKUMAR CHIEF JUSTICE

sd/-

SHAJI P. CHALY JUDGE jes W.P.(C).No.23295 OF 2015(S) :: 8 ::

APPENDIX

PETITIONER'S EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE SANCTION ORDER NO.GO(RT)3006/2009/LSGD DATED 13/11/2009 ACCORDED BY THE GOVERNMENT FOR SETTING UP OF THE RURAL SELF EMPLOYMENT INSTITUTE.

EXHIBIT P2 TRUE COPY OF ORDER NO.8654/RC4/11/LS DATED 23/02/2011 ISSUED BY THE ADDITIONAL CHIEF SECRETARY, LSGD, THIRUVANANTHAPURAM.

EXHIBIT P3 TRUE COPY OF THE ORDER NO,31863/RC4/11/LS DATED 26/08/2011 ISSUED BY THE PRINCIPAL SECRETARY, LSGD, THIRUVANANTHAPURAM.

EXHIBIT P4 TRUE COPY OF GOVERNMENT ORDER G.O.(RT)2561/11/LSGD DATED 04/11/2011.

EXHIBIT P5 TRUE COPY OF ORDER NO.748/A4/LSGD DATED 12/03/2014 ISSUED BY THE COMMISSIONER OF RURAL DEVELOPMENT.

EXHIBIT P6 TRUE COPY OF ORDER NO.27328/JRY.2/2012/CRD DATED 22/01/2013 COMMISSIONER OF RURAL DEVELOPMENT.

EXHIBIT P7 TRUE COPY OF PERMIT GRANTED BY THE KUNNAMANGALAM GRAMA PANCHAYAT AS ER ORDER NO.BL404/2014/2015 DATED 20/10/2014.

EXHIBIT P8 TRUE COPY OF AUDIT OBJECTION OF THE 3RD RESPONDENT ADDRESSED TO THE DIRECTOR OF LOCAL FUND AUDIT, THIRUVANANTHAPURAM FORWARDED VIDE ORDER LFKKDP7/64/15 DATED 06/11/2014.

EXHIBIT P9 TRUE COPY OF THE AUDIT OBJECTION ISSUED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT BLOCK PANCHAYAT AS PER ORDER NO.LBH(HQ)VI/8A- 2268/157 DATED 23/04/2015.

EXHIBIT P10 TRUE COPY OF THE LETTER DATED 07/04/2015 OF THE SECRETARY OF THE BLOCK PANCHAYAT OBTAINED BY THE PETITIONER UNDER THE RIGHT TO INFORMATION ACT.

EXHIBIT P11 TRUE COPY OF COMPLAINTS DATED 06/04/2015 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT BLOCK PANCHAYAT.

EXHIBIT P12 TRUE COPY OF THE LETTER NO.LF 11133/SPL.CELL G/15 DATED 19-5-2015 OF THE 3RD RESPONDENT.

EXHIBIT P13 TRUE COPY OF THE LETTER LF 2772/PT3/15 DATED 21-2-2015 OF THE DIRECTOR OF LOCAL FUND AUDIT.

EXHIBIT P14 TRUE COPY OF THE LETTER NO.22999/DP4/13/CRD DATED 1-2-2016 OF THE RURAL DEVELOPMENT COMMISSIONER.

// TRUE COPY // P.S. TO JUDGE