Vasantha Kumari vs Thenmala Grama Panchayath
2022 Latest Caselaw 1060 Ker

W.P.(C) No. 20050/2015             :1:



                IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                 PRESENT

                THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         THURSDAY, THE 27TH DAY OF JANUARY 2022 / 7TH MAGHA, 1943

                         WP(C) NO. 20050 OF 2015

PETITIONER/S:
            VASANTHA KUMARI
            AGED 56 YEARS
            W/O SREE VALSAN, PLAVIAVADAKKETHIL, COMPANYKADA, EDAMON
            PO, PUNALUR, KOLLAM DISTRICT.

            BY ADVS.
            SRI.MANOJ RAMASWAMY
            SMT.SANJANA R.NAIR

RESPONDENT/S:
     1    THENMALA GRAMA PANCHAYATH
          THENMALA PO, KOLLAM DISTRICT -691 508, REPRESENTED BY ITS
          SECRETARY,

     2      THE CHIEF CO-ORIDNATOR
            AKSHAYA & THE DISTRICT COLLECTOR, KOLLAM DISTRICT , CIVIL
            STATION, KOLLAM 691 013

     3      THE DIRECTOR & APPOELLATE AUTHORITY
            AKSHAYA PROJECT & KERALA STATE IT MISSION, AKSHAYA STATE
            PROJECT OFFICE, KOCHUMADATHIL BUILDING, T.C.
            25/2241.MAJALIKULAM ROAD, THAMPANOOR, TRIVANDRUM-695 001.

     4      PRINCIPAL SECRETARY TO GOVERNMENT
            DEPARTMENT OF INFORMATION & TECHNOLOGY, 1ST FLOOR, MAIN
            BLOCK, GOVERNMENT SECRETARIAT, STATUE,
            THRIUVANANTHAPURAM 695 001.

            BY ADV SRI.N.UNNIKRISHNAN

            R1- SRI.N.UNNIKRISHNAN
            R2 TO 4 -SRI.RIYAL DEVASSY, GOVERNMENT PLEADER




      THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27.01.2022,

     THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 20050/2015                :2:


              Dated this the 27th day of January, 2022.

                                 JUDGMENT

This writ petition is filed by the petitioner seeking the following

reliefs:

1. A writ of certiorari or other appropriate writ or order to call for the records leading to the issue of Ext. P3 and set aside the same.

2. A writ of mandamus or other appropriate writ, order or direction directing the third respondent to keep in abeyance all further proceedings pursuant to Ext. P3 and Ext. P6 till Ext. P5 is considered.

3. A writ of mandamus or other appropriate writ, order or direction directing the third respondent to consider and pass orders on Ext. P5 within a time frame, after affording an opportunity of being heard to the petitioner.

2. The petitioner, who is conducting an Akshaya Centre in the

precincts of the Thenmala Grama Panchayat, is aggrieved by Exts.P3

order dated 25.06.2015 passed by the Chief Coordinator, Akshaya &

the District Collector, Kollam and Ext. P6 notice dated 27.06.2015

issued by the first respondent directing the petitioner to stop

functioning of the Akshaya Help Desk and also to provide Akshaya

services only through her main Akshaya e-kendra located at Edamon.

3. The contention of the petitioner is that as per Ext. P4

Government Order dated 20.07.2013, the Government has passed an

order making certain modifications to the agreement format entered

into by and between the Government and the Akshaya Centre

Entrepreneur (ACE), in which a clause is contained that the minimum

distance between the two Akshaya Centres shall ordinarily be 2 kms.

Subsequent to Ext. P4 Government Order, a new Akshaya Centre

started functioning within the limits of the Thenmala Grama Panchayat

and it is situated within 2 kms. of the Help Desk of the petitioner.

4. It is also submitted that the Thenmala Grama Panchayat has

passed a resolution for terminating the Akshaya Help Desk of the

petitioner, since the same is allegedly within 2 kms. of the newly

started Akshaya e- center. That apart, it is submitted that, against Ext.

P3 order, the petitioner has filed Ext. P5 appeal before the Director and

Appellate Authority, Akshaya Project & Kerala State IT Mission,

Thiruvananthapuram, the third respondent, and the same is pending

consideration.

5. The first respondent has filed a detailed counter affidavit

justifying the impugned order and stating that the steps taken by the

Pancyayat for starting a full fledged Akshaya Centre is in accordance

with law and as per the norms prescribed for granting permission for

running the Akshaya centres. It is also pointed out that in Ext. P4

order passed by the State Government, the general conditions

contained under clause G has a dispute resolution mechanism and

therefore, the petitioner was not entitled to invoke the jurisdiction of

this Court under Article 226 of the Constitution of India.

6. I have heard Smt. Jolima George for the petitioner, Sri. Riyal

Devassy, learned Government Pleader appearing for respondents 2 to

4 and Sri. N. Unnikrishnan for first respondent Grama Panchayat, and

perused the pleadings and materials on record.

7. This Court, on 03.07.2015, while admitting the case, passed

an interim order keeping in abeyance the impugned orders and the

same is in force even now.

8. However, the fact remains, in the event of a dispute, as per

Ext. P4 Government Order dated 20.07.2013, there is a dispute

resolution mechanism under the General Conditions, which reads thus:

"Disputes if any between the AKSHAYA and the ACE will be referred to the Secretary (Department of Information Technology), Government of Kerala, who is the sole Arbitrator as agreed by both parties. The venue of such Arbitration shall be at Thiruvananthapuram."

9. In that view of the matter, I think, it is only appropriate that

the petitioner is relegated to the alternate dispute resolution

mechanism provided under law. This I say because various factual

circumstances are involved in the subject matter, especially with

respect to the averments made by the petitioner in regard to the

distance by and between the Akshaya Help Desk conducted by the

petitioner and the new Akshaya Centre.

10. Accordingly, I dispose of the writ petition directing the

petitioner to invoke the dispute resolution mechanism within one

month from the date of receipt of a copy of this judgment, and if any

such application is received, it shall be considered by the authority

under Ext.P4 Government Order at the earliest, and at any rate within

two months from the date of receipt of application from the petitioner.

Since an interim order is in force, I think, it is only appropriate that the

interim order is extended till a decision is taken by the authority as

directed above, and accordingly I do so.

11. I make it clear that, if by any chance, orders in Ext. P5

appeal is passed by the appellate authority, the said aspect shall also

be taken into consideration by the authority while invoking the dispute

resolution mechanism as directed above.

sd/- SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 20050/2015

PETITIONER EXHIBITS

EXT.P1 EXT.P1: TRUE COPY OF THE CERTIFICATE DT. 27/7/06 ISSUED BY THE ASSISTATNT DISTRICT CO-ORDINATOR, AKSHAYA PROJECT, KOLLAM

EXT.P2 EXT.P2: TRUE COPY OF THE ORDER BY THE 2ND RESPONDENTR DATED 6/3/12

EXT.P3 EXT.P3; TRUE COPY OF THE ORDER NO AKSHAYA/KIM/591/13 DT. 25/6/15 PASSED BY THE 2ND RESPONDENT

EXT.P4 EXT.P4: TRUE COPY OF THE GOVERNMENT ORDER NO.

GO (RT) NO 171/13/TTD DT. 20/7/13 (RELEVANT PORTION)

EXT.P5 EXT/.P5: TRUE COPY OF THE APPEAL DT 27/6/15

EXT.P6 EXT.P6: TRUE COPY OF THE NOTICE NO. T8.2572/15 DT.

27/6/15 ISSUED TO TEH PETITIONER

RESPONDENTS' EXHIBITS:

EXT.R1(A): COPY OF APPLICATION DATED 01.10.2014 SUBMITTED BY SRI. RATHEESH KUMAR,

EXT.R1(B): COPY OF DECISION NO.IV(4) DATED 13.11.2014 OF THE PANCHAYAT COMMITTEE.

EXT.R1(C): TRUE COPY OF ORDER NO.AKSHAYA/KIM/591/2013 DATED 25.06.2015 ISSUED BY THE CHIEF COORDINATOR, AKSHAYA PROJECT, AND DISTICT COLLECTOR, KOLLAM.

EXT.R1(D): TRUE COPY OF ORDER NO.T8.2572/15 DATED 27.06.2015 ISSUED BY TEH SECRETARY, THENMALA GRAMA PANCHAYAT TO THE PETITIONER.

/True Copy/

PS To Judge.

rv