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2022 Supreme(Online)(KER) 28129
HIGH COURT OF KERALA
Murali Purushothaman, J
DR. V.V. HARIDAS MD – Appellant
Versus
STATE OF KERALA – Respondent
WP(C) NO. 4367 OF 2022 | WP(C) NO. 24389 OF 2021
For the Appellants/Petitioners: ANIL S. RAJ, K.N. RAJANI, RADHIKA RAJASEKHARAN P., ANILA PETER, MUHAMMED HARIS K.K., SIMI S. ALI
For the Respondents: SMT. SURYA BINOY, SRI. J. OMPRAKASH, SRI. DARSAN SOMANATH, SRI. T. NAVEEN KUMAR
Existing statutory remedies under the Kerala Panchayat Raj Act limit the court's jurisdiction in writ petitions against Panchayat resolutions.
Headnote:(A) Kerala Panchayat Raj Act, 1994 - Section 191 - Writ petitions challenging a Panchayat resolution for setting up a Fecal Sludge Treatment Plant (FSTP) - Petitioners claimed rights under community property laws and pollution control norms - The court recognized the existence of an effective statutory remedy and declined jurisdiction to entertain the petitions. (Paras 10, 11, 14)
(B) Writ Jurisdiction - The court reiterated that where an alternative statutory remedy exists, the exercise of writ jurisdiction is generally discouraged unless exceptional circumstances are demonstrated. (Paras 11, 12)
Facts of the case:
Petitioners challenged the establishment of an FSTP adjacent to their properties, claiming violations of community property rights and pollution norms, alongside concerns of public safety.
Findings of Court:
The existence of a statutory remedy under Section 191 of the KPR Act was acknowledged, leading to the dismissal of the writ petitions while allowing the petitioners to seek recourse under the statutory framework.
Issues: Primarily concerned the maintability of the writ petitions in light of statutory remedies available under the KPR Act.
Ratio Decidendi: The court maintained that the existence of a statutory remedy under Section 191 of the KPR Act prevents the writ petitions from being maintainable in the current form.
Result: Writ petitions dismissed with provisions for a deferral of implementation pending alternate resolution.
| Table of Content |
|---|
| 1. resolution's legality and vicinity to existing hospitals. (Para 2 , 3) |
| 2. arguments regarding alternate remedies available. (Para 8 , 9) |
| 3. court's determination of maintainability of writ jurisdiction. (Para 10 , 11 , 14) |
JUDGMENT
Since Common issues arise for consideration in these writ petitions, they were heard together and are disposed of by this common judgment. The respondents and the status in which they are arrayed in both writ petitions are the same and the exhibits referred to hereinbelow shall be as obtaining in W.P.(C) No.4367/2022.
2.The petitioner in W.P. (C). No. 24389 of 2021 is a Company which is engaged in the business of running hospitals and has a 63 bed hospital at Thaneermukkam Grama Panchayat, the 3rd respondent (hereinafter referred to as the 'Panchayat'). The petitioner is aggrieved by Ext. P3 resolution dated 28.09.2021 of the Panchayat permitting the setting up of a Fecal Sludge Treatment Plant (FSTP) by the 2nd respondent, the Cherthala Municipality ('Municipality' for short), in the puramboke property vested in the Panchayat and lying adjacent to the premises of the petitioner. According to the petitioner, the land where the FSTP is proposed to be set up is a community property vested in the Panchayat and can be used only for the benefit of the villagers as specified in Section 171 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'K P R Act' for short), and not for the use of the residents of the Municipality. The petitioner contends that, the decision of the Panchayat to set up the FSTP is vitiated by political reasons and is against the norms of the Kerala State Pollution Control Board, the 4th respondent.
3. The petitioner in W.P. (C). No. 4367 of 2022 is the Director and Chief Medical OfÏcer of K.V.M. Hospital, Cherthala and is aggrieved by the proposal to set up the aforesaid FSTP in the community property vested in the Panchayat and lying adjacent to his premises. According to the petitioner, the distance between the proposed FSTP and his hospital is only 34 meters and the same violates the conditions prescribed by the Pollution Control Board in Ext. P3 'consent to establish' the plant and that there is no proper and scientific procedure for handling the treated water and slurry. The petitioner, therefore, seeks for a direction to quash Ext. P1 resolution of the Panchayat (Ext. P3 in W.P. (C). No. 24389 of 2021) and Ext. P3 'consent to establish' the plant issued by the Pollution Control Board.
4. On 07.04.2022, this Court passed a common order in the writ petitions as hereunder:-
“The grievance in both these writ petitions is with respect to the proposal to install a FSTP of point 0.25 MLD capacity adjacent to the property of the petitioner. The learned standing counsel for the Municipality submits that the process of tendering the work is going on and technical bid alone has been opened. Since the petitioners are not challenging the tender process, this Court will not be justified in interfering with the same. However, no work shall be started with regard to the said project without obtaining orders from this Court. Respondents may place their counter afÏdavits on record.”
The respondents 1 to 3 have, accordingly, placed their counter afÏdavits on record and the Kerala State Pollution Control Board has filed a report in W.P. (C). No. 24389 of 2021. The respondents 1 to 3 have taken a contention that the writ petitions are not maintainable in view of the alternate remedy available to the petitioners under Section 191 of the K P R Act.
5. The petitioners have also filed their reply afÏdavits.
6.Heard Smt. Radhika Rajasekharan, the learned counsel for the petitioners, Smt. Surya Binoy, the learned Senior Government Pleader, Sri. J. Omprakash, the learned counsel for the Municipality, Sri. Darsan Somanath, the learned counsel for the Panchayat and Sri. T. Naveen, the learned standing counsel for the Kerala State Pollution Control Board.
7.It is trite that when the q
