John George vs State Of Kerala
2022 Latest Caselaw 1335 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
  TUESDAY, THE 1ST DAY OF FEBRUARY 2022 / 12TH MAGHA, 1943

                       WA NO. 61 OF 2022

 AGAINST THE JUDGMENT IN WP(C) 16612/2021 OF HIGH COURT OF
                   KERALA DATED 26.11.2021
APPELLANT/PETITIONER:

           JOHN GEORGE
           AGED 37 YEARS, S/O.GEORGE,
           RESIDING IN THE ADDRESS KIZHAKOODAN HOUSE,
           ELINJIPRA VILLAGE DESOM, CHALAKUDY TALUK,
           THRISSUR DISTRICT, PINCODE - 680 712.
           BY ADV G.SREEKUMAR (CHELUR)

RESPONDENTS/RESPONDENTS:

    1      STATE OF KERALA,
           REPRESENTED BY THE SECRETARY TO THE GOVERNMENT,
           LOCAL SELF GOVERNMENT DEPARTMENT,
           GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM
           DISTRICT, PINCODE - 695 001.
    2      KODASSERY GRAMA PANCHAYATH
           REPRESENTED BY ITS SECRETARY, KODASSERY P.O.,
           CHALAKUDY TALUK, THRISSUR DISTRICT,
           PINCODDE - 680 684.


           BY ADVS.
           SRI. V. TEKCHAND SR. GOVERNMENT PLEADER FOR R1
           SMT. DAISY A. PHILIPOSE FOR R2
           JAI GEORGE



     THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
01.02.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 W.A.61/2022
                                           2




                                JUDGMENT

Dated this the 1st day of February, 2022

Shaji P. Chaly, J

Captioned writ appeal is preferred by the petitioner in

W.P(C).16612 of 2021 challenging the judgment of learned Single Judge

dated 26.11.2021, whereby the following reliefs sought for were declined

and the writ petition was dismissed.

"i) Issue a writ of Mandamus or any other appropriate writ, order or direction commanding 2nd respondent not to construct toilet in front of the petitioners property obstructing his high way right,

ii) Direct the 2nd respondent to consider the objection raised by the petitioner in Ext-P3 representation and pass orders on the same, meantime there may be direction not to proceed with the construction of toilet in front of the property of the petitioner."

2. Brief Material facts for the disposal of the appeal are as follows:

Petitioner is aggrieved by the proposal of the Kodassery Grama

Panchayat for construction of a comfort station by the side of a State

Highway and within its limits, since according to the appellant, it is

proposed to be constructed on the front side of the property of the W.A.61/2022

appellant; where he is intending to construct a commercial complex.

According to the appellant, the said proposal is illegal and will seriously

affect the rights over the property of the appellant and his right to have

access to the Highway. It is also submitted that the value of his property

would be diminished, apart from contending that if the comfort station is

constructed in the particular location, it would cause nuisance and water

and air pollution. It is also said that though the appellant has submitted a

representation, it was not considered, which according to the appellant,

persuaded him to prefer the writ petition.

3. In the writ petition, the Secretary of the Kodassery Grama

Panchayat-2nd respondent has filed a counter affidavit disputing the

allegations, claims and demands of the appellant. Among other

contentions, it is submitted that the property of the petitioner is a paddy

land and even in the basic tax register, the status of the property is

shown as "Nilam" (paddy field) and therefore, it cannot be used for

constructing a commercial building.

4. That apart, it is submitted that appellant is not residing in the

property and the area where the toilet complex is proposed to be put up

is a parking ground and therefore, according to the Grama Panchayat, no

manner of prejudice will be caused to the appellant if a comfort station is W.A.61/2022

constructed in the property. It is also stated that since there are no toilet

facilities in the area, travelling public, including women are facing

inconvenience; therefore, the contention advanced in the writ petition

that there is no necessity to construct a toilet complex at the location, is

not true or correct. It is further submitted that the toilet complex for the

use of the public is available only 35Kms away from the proposed site.

Therefore, it is an urgent requirement to put up a comfort station in the

place in question. That apart, it is said that the building will be

completed in accordance with the provisions of the Kerala Panchayat

Building Rules, 2019 and by providing sufficient set back as required

under the Rules, 2019.

5. That apart, it is pointed out that Exhibit R2(a) guidelines are

issued by the Department of Local Self Government dated 27.7.2020 in

order to keep the comfort stations neat, clean and safe. That apart, it is

submitted that on the basis of the said Government guidelines, the public

restrooms and "take a break" rest houses are constructed by the

Panchayat.

6. The learned Single Judge, after taking into consideration the

rival submissions and other legal aspects, has arrived at the conclusion

that the petitioner has not made out any legal right so as to interfere W.A.61/2022

with the proposal of the Grama Panchayat to put up a comfort station.

The question is whether any manner of interference is required to the

Judgment of the learned Single Judge.

7. Heard learned counsel for the appellant Sri. G. Sreekumar

Chelur, Sri. V. Tekchand, learned Senior Government Pleader for 1 st

respondent-State, and Smt. Daisy A. Philipose appearing for the 2 nd

respondent-Grama Panchayat.

8. In our considered opinion the issues raised by the appellant

have to be dealt with by resorting to some of the relevant provisions of

the Kerala Panchayat Raj Act 1994. Before that, we wish to say that by

virtue of Article 243 and the consequential provisions contained in Part IX

of the Constitution of India, the Panchayat is duty bound to provide

facilities to the public. Schedule III of the Kerala Panchayat Raj Act

constituted as per Section 166(1) of Act 1994 deals with mandatory

functions of the Panchayat. Entry 8 thereto makes it clear that the

Panchayat is duty bound to maintain environmental hygiene. Entry 25

deals with the provisions of toilet facility and bathing-ghats at public

places, apart from other mandatory functions to be discharged by the

Grama Panchayat. Section 166 of Act 1994 makes it clear that it shall

be the duty of the Village Panchayat to meet the requirements of the W.A.61/2022

village Panchayat area in respect of the matters enumerated in the III rd

Schedule. Proviso thereto also specifies that it shall be the duty of the

Village Panchayat to render services to the inhabitants of the village

panchayat area in respect of the matters enumerated as mandatory

function in the IIIrd Schedule.

9. That apart, Sub-section (2) clearly states that subject to the

other provisions of the Act and the guidelines and assistance, financial,

technical or otherwise of the Government, the Village Panchayat shall

have exclusive power to administer the matters enumerated in the III rd

Schedule and to prepare and implement schemes relating thereto for

economic development and social justice.

10. Sub-section (6) to Section 166 is very significant which

stipulates that the Government shall, as soon as may be, after the

commencement of the Act, 1994, transfer all institutions, schemes,

buildings and other properties, assets and liabilities connected with the

matter, referred to in the III rd schedule to the village Panchayats and

every institution so transferred shall be in the name of the said Village

Panchayat and shall be known accordingly. Other enabling provisions are

included thereunder.

11. It is also clear from Kerala Panchayat Building Rules, 2019 W.A.61/2022

that in order to carry out any construction, even by the Panchayat, a

building permit is required as is contemplated under the said rules.

Therefore, the Panchayat is also duty bound to adhere to the Rules,

2019, which in fact is admitted by the Panchayat in the counter affidavit

filed before the writ court.

12. Even though learned counsel for the appellant has a

contention that the property in question belongs to the Public Works

Department and that too a small area, it cannot be utilised by the Grama

Panchayat for construction of a comfort station, we are unable to agree

with the said contention especially due to the fact that it is not a subject

matter affecting the fundamental rights of the appellant.

13. We also do not find any force in the contention of the

appellant that he is entitled to have access to the highway through the

property in question since he has not established any sort of right over

the property. Being so, we are of the undoubted opinion that the learned

Single Judge was right in declining the reliefs sought for in the writ

petition.

14. Taking into account the factual and legal circumstances as

above, we are of the considered opinion that the appellant has not made

out any case of jurisdictional error or other legal infirmities justifying our W.A.61/2022

interference in an intra court appeal filed under Section 5 of the Kerala

High Court Act, 1958. Needless to say, appeal fails and accordingly it is

dismissed.

Sd/-

S. Manikumar, Chief Justice

Sd/-

Shaji P. Chaly, Judge

sou.