Varghese Thomas vs State Of Kerala
2023 Latest Caselaw 5212 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
 THURSDAY, THE 20TH DAY OF APRIL 2023 / 30TH CHAITHRA, 1945
                      WP(C) NO. 7112 OF 2023
PETITIONER:

    1    VARGHESE THOMAS
         AGED 50 YEARS
         S/O.P.V.THOMAS, KOCHAKARA THEKKETHIL, OOTTUPARA,
         KALLELI, PATHANAMTHITTA DISTRICT, PIN - 689691
    2    JOSEPH ANIKKATTIL
         AGED 54 YEARS
         S/O.EASOW JOSEPH, ANIKKATIL HOUSE, KALLELI P.O,
         KONNI, PATHANAMTHITTA DISTRICT, PIN - 689691
         BY ADVS.
         V.PHILIP MATHEWS
         GIBI.C.GEORGE

RESPONDENTS:

    1     STATE OF KERALA
          R REPRESENTED BY ITS PRINCIPAL SECRETARY,
          DEPARTMENT OF LOCAL SELF GOVERNMENT, KERALA
          GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001,
          PIN - 682031
    2     .ARUVAPPULAM GRAMA PANCHAYAT
          PANCHAYAT OFFICE, ARUVAPPULAM P.O, KONNI TALUK,
          PATHANAMTHITTA DISTRICT REPRESENTED BY ITS
          SECRETARY, PIN - 689699
    3     THE SECRETARY, ARUVAPPULAM GRAMA PANCHAYAT
          PANCHAYAT OFFICE, ARUVAPPULAM P.O, KONNI TALUK,
          PATHANAMTHITTA DISTRICT-689699, PIN - 689699
    4     THE PRESIDENT, ARUVAPPULAM GRAMA PANCHAYAT,
          PANCHAYAT OFFICE, ARUVAPPULAM P.O, KONNI TALUK,
          PATHANAMTHITTA DISTRICT-, PIN - 689699
    5     THE DISTRICT PLANNING OFFICER
          DISTRICT PLANNING OFFICE, COLLECTORATE,
          PATHANAMTHITTA, PIN - 689645
    6     THE CHAIRMAN
          DISTRICT PLANNING COMMITTEE COLLECTORATE,
          PATHANAMTHITTA, PIN - 689645
 W.P.(C). No.7112 of 2023   :2:



      7      THE ASSISTANT ENGINEER, LID & E SECTION,
             ARUVAPPULAM GRAMA PANCHAYAT, PANCHAYAT OFFICE,
             ARUVAPPULAM P.O, KONNI TALUK, PATHANAMTHITTA
             DISTRICT, PIN - 689699
      8      P.K.MOHANAN,
             PADINHARE KUNNATH HOUSE KARANTHUR P.O,KUNNAMANGALAM
             KOZHIKODE, PIN - 673571
             BY ADV V.SETHUNATH

OTHER PRESENT:

             SC,SRI.C.B SREEKUMAR


    THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 20.04.2023, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.7112 of 2023    :3:



                          VIJU ABRAHAM, J.
         --    -- -- -- -- -- -- -- -- -- -- -- --
                      W.P.(C). No.7112 of 2023
         --    -- -- -- -- -- -- -- -- -- -- -- --
                  Dated this the 20th day of April, 2023

                            JUDGMENT

Petitioners have approached this court seeking to quash Exts.

P3, P6 and P9 to the extent it relates to the construction of a turf

court in the existing mini-stadium within the jurisdiction of 2 nd

respondent Panchayat. The petitioners are residents of Ward No. 2

of the 2nd respondent Panchayat. Petitioners are highly aggrieved

by the steps taken by respondents 2 to 4 to construct a football turf

court. There is a mini-stadium in existence and the petitioners

submit that there is no proper document conferring title or

ownership over the property on the 2nd respondent. The contention

of the petitioners is that the public including children who are

residing within the limits of the 2nd respondent Panchayat is using

the open space/mini-stadium for their sports activities and that the

public is also using the same for various religious, political

functions etc. No other play ground is available in the locality. It is

an open space/park coming within the purview of The Kerala Parks,

Play-fields and Open Spaces (Preservation and Regulation) Act,

1969 and the present steps taken by the 2 nd respondent is

arbitrary and illegal and is in violation of the provisions of the said

Act, 1969. Ext.P1 is the guidelines issued by the Government for

preparing annual plan by the local authority and that the

procedure prescribed in Ext.P1 is not followed by the 2nd

respondent before including the project of construction of turf

court in the annual plan. The proposed turf is being constructed

only for the purpose of football and therefore no other games could

be possible after it is converted into a football turf. The turf

construction is proposed and proceeded without even providing

houses to the various applicants under the Life project, which is

more important. Many of the members of the various wards have

objected to the said project. Construction of the synthetic turf is an

environmental hazard affecting the flora and fauna. Petitioners

apprehend that since the maintenance of the turf court is

expensive, the Panchayat may fix a user fee whereby the public will

not be able to enjoy the benefit of the said turf. No proper

discussions were done in the Gramasabha with regard to the

project and there was protest against the construction of the turf in

the Grama Sabhas also.

2. A counter affidavit has been filed by respondents nos. 2 to

4 mainly contending that it is a policy decision of the Panchayat

and it is settled law that the policy matters cannot be subjected to

judicial review. Even though a member of the Panchayat has

approached this court in the same subject matter by filing WPC No.

1904/2023, after approaching the Ombudsman for Local Self

Government Institutions, the court as per Ext.R3(a) judgment did

not interfere in the matter but relegated the party to raise all

contentions before the Ombudsman. The objections have been

raised due to political rivalry. The deputy director of Panchayat has

reported to the District Planning Committee that all legal

formalities have been complied by the Panchayat and thereupon

the District Planning Committee sanctioned the project as per Ext

R3 (d). The petitioner in WPC No. 1904/2023, as stated above, has

approached the Ombudsman for LSGD raising the very same

complaint and the Ombudsman after considering all the aspects in

detail, dismissed the same as per Ext R3(g) order. The challenge

regarding ownership of the land in question is absolutely without

any basis in as much as, as per Ext R3(h) communication of the

Village Officer, the property is in the ownership of the respondent

Panchayat and the same is reflected in the BTR also. There are 15

wards and only one Grama Sabha decided against the decision of

the Panchayat and all other Grama Sabhas decided in support of

construction of a turf court as is evident from Ext.R3(i) to R3(o)

decisions of the Grama Sabhas. Ext P1 guidelines have been fully

complied with and the decision of the District Planning Committee

is not challenged by the petitioners. The contention that no

development seminar was conducted is also incorrect and as is

evident from Ext R3(b), development seminar was also conducted.

Respondents 2 to 4 also filed an additional counter affidavit and

relying on Ext R3(q) to Ext R3 (z) (iv) submitted that the procedure

contemplated as per Ext P1 and as per rules has been fully

compiled with. As regard the apprehension raised by the

petitioners that since the maintenance of the turf will incur huge

expenses and therefore the Panchayat will insist for a user fee,

which would disentitle the majority of people living in the

Panchayat from getting the benefit of the turf, two affidavits have

been filed by the respondent Panchayat and on the basis of the

same, the learned counsel would submit that the turf court could

be used for multipurpose games such as football and volleyball and

in future for any other games suitable for the area and that the turf

could be used by the people of the Panchayat free of cost and

further that they could also use the same for any other public

events and functions free of cost, provided they give an application

before the Panchayat in writing, which will be considered on first

come first serve basis.

3. The petitioners also filed a reply affidavit in answer to the

counter affidavit filed by respondents no. 2 to 4.

4. I have considered the rival contentions on both sides.

Ext.P6 is the decision of the District Planning Committee which

considered the project submitted by the Panchayat and granted

sanction for the same. It is pertinent to note that the same is

challenged in this writ petition and the contentions taken in the

counter affidavit to the contrary is not correct. A perusal of Ext R3

(h) document would show that the respondent panchayat has

ownership of the land where the construction is undertaken. A

perusal of the counter affidavit filed by respondents 2 to 4 would

further show that out of the 15 wards, only one Grama Sabha

decided against the decision of the Panchayat and that a

development seminar was also conducted as is evident from Ext R3

(p). Similar contentions were raised before the Ombudsman for

LSGD and as per Ext R3(g), the same was rejected after elaborately

considering all the issues and holding that the construction of a

turf is a policy matter of the respondent Panchayat. The petitioner

relying on The Kerala Parks, Play-fields and Open Spaces

(Preservation and Regulation) Act, 1969 submits that the property

in which the construction is undertaken will come under the

definition of open space as per Rule 2(b) of the Act and as per

Section 6 there is prohibition to use such open space for any other

purpose except with the previous sanction of the executive

authority. The Executive Authority is defined in Section 2(a) of the

Act which includes the executive officer of the Panchayat. Even

going by the case of the petitioner the property has been used as

an open space/mini-stadium and what has now been decided by the

Panchayat is to construct a turf court, which is an activity to modify

the said open space for the beneficial use of the people of the

Panchayat and the prohibition in Section 6 of the Act will not come

into play in as much as the prohibition therein is only that it shall

not be put to any other use without the sanction of the executive

authority. In the present case, it is the decision of the Panchayat to

construct a turf court in place of the open space/mini-stadium and

therefore there is no violation of The Kerala Parks, Play-fields and

Open Spaces (Preservation and Regulation) Act, 1969 as contended

by the petitioner. The construction of the turf court is a policy

decision of the Panchayat which is duly approved by the District

Planning Committee as is evident from Ext.P6. The Ombudsman for

LSGD considered the objection against construction and rejected

the same as per Ext.R3(g) order, after elaborately considering the

issues involved. It is settled law that the court cannot interfere in

policy matters unless such policy is found to be palpably arbitrary

and irrational. In the present case, the respondent Panchayat has

taken a decision to construct a turf court for the benefit of the

people of the Panchayat. It is also seen from Ext.R3(z)(vi)

photographs that the construction has already started. One of the

apprehensions raised by the petitioners that the public in general

will not be able to enjoy the benefit of the turf court as the

panchayat will impose user fees is also without any basis. Though

initially, the Panchayat has taken a stand that a nominal user fee

would be charged but by way of further two affidavits dated

03.04.2023 and 04.04.2023 it is specifically undertaken by

respondent Pancyayat that the turf court can be used by the people

of the Panchayat free of cost for sports activities and also for any

other public events and function. The respondent Panchayat is

bound by this undertaking given in the above-stated two affidavits.

Taking all these aspects into consideration and further that

the decision for construction of a turf court is a policy matter of the

panchayat I am not inclined to grant any relief sought for by the

petitioners and the writ petition is accordingly dismissed.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 7112/2023

PETITIONER EXHIBITS Exhibit P 1 COPY OF THE RELEVANT PAGES OF G.O( M.S ) NO.84/2022/LSGD DATED 19-04-2022 Exhibit P 2 COPY OF DECISION NO. 1(1) TAKEN IN THE URGENT MEETING OF THE ARUVAPPULAM GRAMA PANCHAYAT CONVENED ON 16-07-2022 Exhibit P 3 COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE MEETING OF THE SECOND RESPONDENT PANCHAYAT CONVENED ON 22-07-2022 Exhibit P 4 COPY OF DISSENTING NOTE DATED 23-07-2022 SUBMITTED BY MEMBER OF WARD NO.14 (G.SREEKUMAR) BEFORE THE THIRD RESPONDENT Exhibit P 5 COPY OF REPRESENTATION DATED 26-07-2022 SUBMITTED BY THE MEMBER OF WARD NO.14 (G.SREEKUMAR) BEFORE THE 5TH RESPONDENT Exhibit6 COPY OF RELEVANT PAGE OF PROCEEDINGS NO.R.01- 601/2022/DPC/DPO /PTA OF THE DISTRICT PLANNING COMMITTEE, PATHANAMTHITTA IN ITS MEETING CONVENED ON 01-08-2022 Exhibit P 7 COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE GRAMA SABHA OF WARD NO.6 CONVENED ON 04-08-2022 Exhibit P 8 COPY OF THE RELEVANT PAGES OF THE MINUTES OF THE GRAMA SABHA OF WARD NO.14 CONVENED ON 05-02-2023 Exhibit P 9 COPY OF TENDER/E TENDER/ RE-QUOTATION ADVERTISEMENT DATED 05-01-2023 ISSUED BY THE 7TH RESPONDENT RESPONDENT EXHIBITS Exhibit-R3(h) The true copy of the letter issued by the Village officer, Aruvapulam dated 17-2-

2023 along with B.T.R Exhibit-R3(p) The true copy of the relevant extract from the Development seminar conducted on 29-06-2022 Exhibit-R3(o) The True copy of the decision of the Grama sabha in ward no. 15 dated 17-5-

Exhibit-R3(n) The true copy of the decision of the Grama sabha in ward no. 12 dated 16-5-

Exhibit-R3(m) The True copy of the decision of the Grama sabha in ward no. 11 dated 17-5-

Exhibit-R3(l) The True copy of the decision of the Grama sabha in ward no. 9 dated 15-5-2022 Exhibit-R3(k) The True copy of the decision of the Grama sabha in ward no. 3 dated 18-5-2022 Exhibit-R3(j) The True copy of the decision of the Grama sabha in ward no. 2 dated 19-5-2022 Exhibit-R3(i) The True copy of the decision of the Grama sabha in ward no. 1 dated 15-5-2022 Exhibit-R3(g) true copy of the order of the Hon:

Ombudsman for LSGD dated 2-2-2023 Exhibit-R3(f) true copy of the objection filed by the Panchayath dated 23-01-2023 before the Hon: Ombudsman for LSGD Exhibit-R3(e) true copy of the complaint dated 1-12-

2022 filed by G. Sreekumar, ward member before the Hon: Ombudsman for LSGD Exhibit-R3(d) The true copy of the Minutes of the District Planning Committee dated 1-8-

Exhibit-R3(c) The true copy of the letter written to the District Planning Committee dated 26- 7-2022 Exhibit-R3(b) The true copy of the letter written to the District Planning Committee dated 16- 7-2022 Exhibit-R3(a) The True copy of the Judgment of this Court in W.P(c) No. 1904 / 2023 on the file of this court dated 24-01-2023 PETITIONER EXHIBITS Exhibit P10 COPY RESOLUTION NO.1 DATED 07-02-2023 TAKEN BY THE COMMITTEE OF THE SECOND RESPONDENT PANCHAYAT RESPONDENT EXHIBITS Exhibit R3(q) The true copy of the minutes dated 28-6-

2022 of the 'Asoothrana Samithi' convened and discussed the projects to be implemented for the next year Exhibit R3(r) true copy of the drawing using Total station Exhibit R3(r)(i) The true copy of the cross section prepared by the Asst.Engineer(LSGD) Exhibit R3(r)(ii) The true copy of the plan prepared by the Asst.Engineer (LSGD)

Exhibit R3(r)(iii) The true copy of the Site plan prepared by the Asst. Engineer Exhibit R3(s) The True copy of the Status Report prepared by the Panchayath Exhibit R3(t) true copy of the development plan 2022-

2023 prepared by the Panchayath Exhibit R3(u) The True copy of the minutes of the Working Group meeting dated 4-5-2022 Exhibit R3(v) the true copy of the Draft Project Report prepared by the Panchayath Exhibit R3(w) The True copy of the notice of meeting to members of the Panchayath dated 16-06-

2022 and 20-7-2022 Exhibit R3(x) The true copy of the attendance register of the Panchayath committee meeting dated 20-06-2022 and 22-7-2022 Exhibit R3(y) True copy of the minutes of the Development seminar (Vikasana Seminar) conducted on 29-06-2022 Exhibit R3(z) The true copy of the Final Project report prepared by the Panchayath Exhibit R3(z)(i) true copy of the Abstract Estimate prepared by the Technical division of the Panchayath Exhibit R3(z)(ii) The true copy of the Detailed Estimate prepared by the Technical division of the Panchayath Exhibit R3(z)(iii) true copy of the Technical sanction was given by the Executive Engineer, District Panchayath dated 30-12-2022 Exhibit R3(z)(iv) The true copy of the report of the Asst.

Engineer(LSGD) Exhibit R3(z)(v) The true copy of the photograph of the ground in the original position Exhibit R3(z)(vi) The true copy of the photographs showing the present stage of the work PETITIONER EXHIBITS Exhibit P 11 Copy of the representation dated nil submitted before respondents 3 and 4