Full Judgment
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:
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 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 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 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 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
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 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.