Kerala High Court
The Citizens Right Protection Council vs State Of Kerala on 9 July, 2020
Author: S.Manikumar
Bench: S.Manikumar, Shaji P.Chaly
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 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942
WP(C).No.8025 OF 2020 (S)
PETITIONER:
THE CITIZENS RIGHT PROTECTION COUNCIL
REGD.NO.KLM/TC/277/204,ADINADU SOUTH, KATTILKADAVU P.O.,
KOLLAM DISTRICT, PIN-690 542, REPRESENTED BY ITS STATE GENERAL
SECRETARY. A.SHAJAHAN ALIAS ADINADU SHAJI, S/O. ALIKUNJU,
AGED 52 YEARS, KOCHUKANJICKAL, ADINADU SOUTH,
KATTILKADAVU P.O., KOLLAM, PIN-690 542
BY ADV. SHRI.ABDUL SALIM M.
RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001
2 THE DEPUTY DIRECTOR OF PANCHAYATH,
OFFICE OF THE DEPUTY DIRECTOR OF PANCHAYATH,
CIVIL STATION, KOLLAM, PIN-691013
3 KULASEKHARAPURAM GRAMA PANCHAYATH
REPRESENTED BY THE SECRETARY, OFFICE OF THE GRAMA
PANCHAYATH, ADINADU NORTH, P.O., KARUNAGAPPALLY,
KOLLAM DISTRICT, PIN-690 542.
Addl.R4 THE PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
GOVT. SECRETARIAT, THIRUVANANTHAPURAM - 695 001.
(Addl. R4 is impleaded as per order dated 9.7.20 in I.A.No.1 of 2020)
SR.GP SRI.SURIN GEORGE IPE FOR R1, R2 AND ADDL.R4
R3 BY ADV. DR.K.P.SATHEESAN (SR.)
R3 BY ADV. SRI.P.MOHANDAS (ERNAKULAM)
R3 BY ADV. SRI.K.SUDHINKUMAR
R3 BY ADV. SRI.S.K.ADHITHYAN
R3 BY ADV. SRI.SABU PULLAN
R3 BY ADV. SRI.GOKUL D SUDHAKARAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.07.2020, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.8025 OF 2020(S)
: 2 :
JUDGMENT
Dated this the 9th day of July 2020 S.MANIKUMAR, C.J.
This is a public interest litigation filed by a registered body having registration No.KLM/TC/277/2014 as per the provisions of the Travancore- Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. The issue raised by the petitioner is in relation to non utilization of a building constructed in Ward No.VIII of Kulasekharapuram Grama Panchayat, Kollam District, the third respondent herein. According to the petitioner, the building is constructed spending approximately an amount of Rs.24 lakhs from the funds allotted under the Member of Parliament Local Area Development Scheme (MPLAD), for the purpose of running an Anganvadi and also a Lab attached to Primary Health Centre. The case projected by the petitioner is that the foundation stone for the said building was laid on 20.1.2018 and the construction was completed on 20.6.2018. The inauguration of the building was done on 14.8.2018 by the Member of Parliament in presence of MLA of the respective constituency and other dignitaries. While half of the building that is about 600 sq.ft. is occupied by the Anganvadi, the remaining about 600 sq.ft. still remain unutilized, though all the furniture and other equipments for running the Primary Health Centre WP(C).No.8025 OF 2020(S) : 3 :
and the Lab have been purchased and kept in the building. It is the case of the petitioner that after the construction of the above building, in another ward i.e. Ward No.IX, hardly few hundred meters away, the Grama Panchayat had taken a small house on rent and the Primary Health Sub Centre is being operated there. Therefore, it is contended that no action is being taken by the Panchayat to utilise the building either as the Primary Health Centre or as lab causing serious prejudice to the people of the Panchayat and there is damage to the public property since it is remaining unutilised. That apart, it is submitted that a new building is being constructed for running the Primary Health Centre spending substantial public funds unnecessarily and more over, running of a Primary Health Centre in a small rented house having an area of 400 sq.ft. without utilising the building in question is with malafide intentions. Therefore, the following reliefs are sought for by the petitioner:
"i. issue a writ of mandamus or other appropriate writ, order or direction commanding the respondents particularly the 3rd respondent to make use of the vacant part of Ext.P2 building (about 600 Sq.Ft. Area) for the purpose for which it was constructed, i.e. Lab attached to the Primary Health Centre or at least as a Primary Health Centre.
ii. To issue a writ of prohibition or other appropriate writ, order or direction commanding the respondents, particularly the 3rd respondent to refrain from wasting public money by constructing another building for the alleged purpose of the Primary Health Centre."
WP(C).No.8025 OF 2020(S) : 4 :
2. The third respondent Grama Panchayat has filed a detailed counter affidavit refuting the allegations and claims and demands raised by the petitioner and inter alia, it is contended that the building in question is constructed using the MP fund for the purpose of conducting an Anganvadi and also a Laboratory attached to a Primary Health Centre in Ward No.VIII.
Eventhough the Anganvadi started functioning in the said building, the Laboratory has not so far started for want of sufficient equipments and arrangements to be made by the Health Department apart from non appointment of staff for managing the lab. It is pointed out that the Primary Health Sub Centre, which is functioning in Ward No.IX, is an independent establishment which has no co-relation with the Primary Health Centre and the laboratory envisioned by the Panchayat in Ward No.VIII. In fact on an enquiry made by the petitioner, it was informed by the Panchayat by Ext.P7 letter that the purpose of building constructed, evident from Ext.P2 photograph, is not for functioning Primary Health Sub Centre and that the Panchayat Committee has not taken any decision to shift the Primary Health Sub Centre to the building constructed by the Panchayat. The Panchayat Committee has also taken a decision to continue the functioning of the Primary Health Sub Centre in Ward No.IX itself evident from Ext.R3(b) WP(C).No.8025 OF 2020(S) : 5 :
decision taken by the Panchayat on 24.8.2019. It is also stated that the Panchayat is not aware whether the building in which the Primary Health Sub Centre in Ward No.IX is paid with rent since the same is not owned by the Panchayat, but on the other hand, sponsored by a Member of the Panchayat Committee. That apart, it is submitted that the contentions put forth by the petitioner that the Panchayat commenced construction of the building in Ward No.IX for shifting the Primary Health Sub Centre is not correct and it cannot be done also since the portion of the building constructed by the Panchayat in Ward No.VIII is set apart for functioning of the laboratory. Anyhow, it is pointed out that the Primary Health Sub Centre which was functioning in a private building is now shifted to a new building constructed in Ward No.IX itself for the said purpose. Therefore, according to the Panchayat petitioner has not made out any case against the Panchayat since the building of the Panchayat was constructed with a specific intention to start the Anganvadi and Primary Health Centre and a Laboratory.
3. A reply affidavit is filed by the petitioner reiterating the stand adopted in the writ petition and also producing certain documents.
4. We have heard learned counsel for the petitioner, learned Senior Government Pleader and the counsel appearing for the third respondent Panchayat and perused the pleadings and documents on record.
WP(C).No.8025 OF 2020(S) : 6 :
5. The facts and circumstances discussed above would make it clear that the building constructed by the third respondent Panchayat in ward No.VIII was for the purpose of conducting an Anganvadi and to start a Laboratory. With the said intention, the Panchayat has utilized the funds of the Member of Parliament, representing the Panchayat area and thus the building also was inaugurated. It is an admitted fact that the Anganvadi has started. However, the Laboratory could not be started for want of sufficient equipments and staff. According to the Panchayat, eventhough action was taken from the side of the Panchayat to get the equipments and appoint staff at the Government level, no action was initiated by the Government, which prevented the Panchayat from starting the Laboratory. However, it is evident from the pleadings and the documents that the Panchayat is making all efforts for securing equipments and appointment of the staff. We also find that what is functioning in ward No.IX is only a Public Health Sub Centre and it is clear from the contentions put forth by Kulasekharapuram Grama Panchayat that the said Primary Health Sub Centre is not conducted by the said Panchayat but it is running on the basis of the sponsorship provided by a Member of the Panchayat Committee. The predominant contention advanced by the petitioner in the writ petition is that when a vacant building is available in Ward No.VIII, there is no need for taking a rented building for WP(C).No.8025 OF 2020(S) : 7 :
the purpose of conducting the Primary Health Centre in Ward No.IX. From the contentions put forth by the Panchayat, it is clear that what is conducted in Ward No.IX is not a Primary Health Centre but only a Primary Health Sub Centre which has got the substantial difference in the matter of conduct of the same. Moreover, it is a decision taken by the Panchayat in accordance with the powers conferred on it under the Panchayat Raj Act and Rules and as per the powers enjoyed by the Panchayat in accordance with the provisions of the Constitution of India. Apart from repeating the words malafides from the pleading put forth by the petitioner in the writ petition, we could not locate any malafides worth considering. So also, we are informed that in ward No.IX, a building was constructed for the purpose of accommodating the Primary Health Sub Centre and therefore, the allegation that rent was being paid unnecessarily for running the Sub Centre also does not worth consideration. Taking into account all these aspects, we do not find that the petitioner has made out a case so as to issue the writ as is sought for in the writ petition.
6. From the materials on record, it is deduced that construction of the building was for the purpose of establishing an Anganvadi and also a Laboratory attached to Primary Health Centre in Ward No.VIII of Kulasekharapuram Grama Panchayat. The said work was completed in WP(C).No.8025 OF 2020(S) : 8 :
2018. The Anganvadi is stated to be functioning, but the functioning of the Lab has not been commenced for want of sufficient equipments and staff. Above are the reasons stated in the counter affidavit filed by the Secretary, Kulasekharapuram Grama Panchayat, respondent No.3.
7. The Laboratory attached to the Primary Health Centre is essential to the public and mere construction of building alone is not sufficient. It should be functional. Therefore, Deputy Director of Panchayat, Kollam, respondent No.2, and Health Department of the 1 st respondent State are directed to take appropriate steps for supply of the essential equipments and installation thereof and to appoint sufficient staff for managing the Lab. The said exercise should be completed within two months from the date of receipt of a copy of this judgment.
8. Writ petition is disposed of accordingly.
Pending interlocutory applications, if any, shall stand closed.
sd/-
S.MANIKUMAR CHIEF JUSTICE sd/-
SHAJI P. CHALY JUDGE WP(C).No.8025 OF 2020(S) : 9 :
APPENDIX PETITIONER'S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE RESOLUTION DATED 06.05.20-19 PASSED BY THE DISTRICT COMMITTEE 'CITIZENS RIGHT PROTECTION COUNCIL' WITH ENGLISH TRANSLATION.
EXHIBIT P2 A TRUE PHOTO OF THE NEWLY CONSTRUCTED BUILDING BY THE 3RD RESPONDENT PANCHAYATH BY UTILIZING THE FUNDS ALLOTTED UNDER MEMBER OF PARLIAMENT LOCAL AREA DEVELOPMENT SCHEME.
EXHIBIT P3 A TRUE PHOTO OF SLATE STONE WITH ENCRYPTION SHOWING THE DATE OF FOUNDATION STONE LAID DOWN AND DATE OF INAUGURATION OF THE SAID BUILDING CONDUCTED BY THE 3RD RESPONDENT PANCHAYATH WITH ENGLISH TRANSLATION.
EXHIBIT P4 A TRUE PHOTO OF THE SMALL HOUSE TAKEN ON RENT FOR RUNNING THE PRIMARY HEALTH SUB CENTRE BY THE 3RD RESPONDENT PANCHAYATH.
EXHIBIT P5 TRUE COPY OF AN APPLICATION SUBMITTED BY THE PETITIONER BEARING NO.KSPSC/6605/2019 DATED 12.05.2019, ADDRESSED TO THE FIRST RESPONDENT CHIEF SECRETARY WITH ENGLISH TRANSLATION.
EXHIBIT P6 TRUE COPY OF THE REPLY FROM STATE PUBIC INFORMATION OFFICER AND DEPUTY SECRETARY OF GENERAL ADMINISTRATION DEPARTMENT BY LETTER NO.374/SC1/2019 GA(SC) DATED 03.06.2019 WITH ENGLISH TRANSLATION.
EXHIBIT P7 A TRUE COPY OF THE COMMUNICATION FROM 3RD RESPONDENT PANCHAYATH BEARING LETTER NO.K5/4718/19 DATED 26.06.2019 WITH ENGLISH TRANSLATION.
EXHIBIT P8 TRUE COPY OF THE COMPLAINT DATED 18.08.2019 BY THE PETITIONER FILED BEFORE THE HON'BLE CHIEF MINISTER OF KERALA FOR SHIFTING THE SUB CENTRE FUNCTIONING IN WARD NO.IX IN EXHIBIT P4 BUILDING TO NEWLY CONSTRUCTED EXHIBIT P2 BUILDING IN WARD NO.VIII WITH ENGLISH TRANSLATION.
EXHIBIT P9 TRUE COPY OF THE COMMUNICATION FROM 3RD RESPONDENT PANCHAYATH BY LETTER NO.K1/8379/2019 DATED 16.11.2019 WITH ENGLISH TRANSLATION EXHIBIT P10 TRUE PHOTO OF THE BUILDING NOW UNDER CONSTRUCTION FOR SHIFTING THE SUB CENTRE RUNNING IN EXT. P4 RENTAL HOUSE IN WARD NO.IX WP(C).No.8025 OF 2020(S) : 10 :
EXHIBIT P11 A TRUE PHOTO OF THE SLATE STONE WITH ENCRYPTION INDICATING THE NAME OF THE PERSON S WHO HAD DONATED THE PROPERTY WITH ENGLISH TRANSLATION.
EXHIBIT P12 A TRUE COPY OF THE LETTER DATED 06.03.2020 WITH ENGLISH TRANSLATION ISSUED BY THE 2ND RESPONDENT. (PAGE NO.6) EXHIBIT P13 A TRUE COPY OF THE LETTER DATED 18.03.2020 WITH ENGLISH TRANSLATION ISSUED BY THE 2ND RESPONDENT. (PAGE NO.9,10) EXHIBIT P14(a) A TRUE PHOTO OF THE NEWLY CONSTRUCTED BUILDING IN WARD NO.9.
EXHIBIT P14(b) A TRUE PHOTO OF CONDUCTING INAUGURAL FUNCTION OF NEWLY CONSTRUCTED BUILDING IN WARD NO.9.
RESPONDENT'S EXHIBITS:
EXHIBIT R3(a) TRUE COPY OF THE DECISION NO. 12/2 TAKEN BY THE KULASEKHARAPURAM GRAMA PANCHAYAT COMMITTEE AT ITS MEETING HELD ON 13.08.2018.
EXHIBIT R3(b) TRUE COPY OF THE DECISION TAKEN BY THE KULASEKHARAPURAM GRAMA PANCHAYAT COMMITTEE AT ITS MEETING HELD ON 24-08-2019. AS DECISION NO. 15/1.
//True Copy // P.S. to Judge Jes