Partly allowed

Thiruvananthapuram Municipal Corporation v. Aswathy P.

Kerala HC19 Nov 2020WA/1441/2020

Case brief

AI extract

What is this about?

The High Court allowed a writ appeal and set aside the interim stay on Thiruvananthapuram Municipal Corporation bye-laws regarding water supply. The court held that bye-laws are presumed valid until cancelled by the Government under Section 573 of the Kerala Municipalities Act, and the stay granted by the Single Judge was unsustainable.

What did the court decide?

The appeal is allowed in part; the interim stay on Exhibit-P4 by-law is set aside to the extent it affects the appellants, upholding the validity of the by-law pending Government cancellation.

Thiruvananthapuram Municipal… — Constitutional and Fundamental Rights | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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THURSDAY, THE 19TH DAY OF NOVEMBER 2020 / 28TH KARTHIKA, 1942

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WA.No.1441 OF 2020

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[AGAINST THE JUDGMENT DATED 19.08.2020 PASSED IN WP(C) NO.15771/2020(V) OF HIGH COURT OF KERALA]

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APPELLANTS/RESPONDENTS 2 AND 3:

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1 THIRUVANANTHAPURAM MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDING, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695033.

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2 SECRETARY, THIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION BUILDING, VIKAS BHAVAN PO, THIRUVANANTHAPURAM - 695033.

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BY ADVS. SRI. N. NANDAKUMARA MENON (SR.) SRI. P. K.MANOJKUMAR, SC, TVPM. CORPORATION

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RESPONDENTS/PETITIONERS 1 TO 4 AND RESPONDENTS, 1, 4 AND 5:

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1 ASWATHY P., AGED 36 YEARS, W/O. GINI RAJENDRA, MANAGING PARTNER, M/S. ALAIN WATER SUPPLY, KULAPPARAKONAM ROAD, MANNANTHALA, THIRUVANANTHAPURAM - 695015.

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2 SUDARSHANAN L., AGED 47 YEARS, S/O. LAMBODHARAN A., T.C. 6/2021, SUNITHA BHAVAN, THURUVIKKAL, THIRUVANANTHAPURAM - 695011.

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3 VIJAYAN I., AGED 51 YEARS, S/O. ISAAC, PANAVILA HOUSE, USHAS NAGAR, PANGAPPARA P O, THIRUVANANTHAPURAM - 695561.

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4 RAJESH S., AGED 45 YEARS, S/O. SUKUMARAN NAIR, TC 6/568-2 VELLATTIL VEEDU, THURUVKKAL P O, THIRUVANANTHAPURAM - 695011.

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W.A.1441/2020

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5 STATE OF KERALA REPRESENTED BY PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001.

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6 KERALA WATER AUTHORITY REPRESENTED BY THE MANAGING DIRECTOR, JALA BHAVAN, VIKAS BHAVAN P O, THIRUVANANTHAPURAM - 695033.

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7 M/S. ORIGAMI TECHNOLOGIES LLP., REPRESENTED BY ITS MANAGING PARTNER, ALTHARA NAGAR, SASTHAMANGALAM PO , THIRUVANANTHAPURAM – 695010.

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R1 TO R4 BY ADV. SRI. AYYAPPAN SHANKAR, FOR R1 TO R4 R5 BY ADV. SRI. V. TEK CHAND SR. GOVERNMENT PLEADER R6 BY SHRI P. BENJAMIN PAUL, SC, KWA

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

W.A.1441/2020

JUDGMENT

Dated this the 19^th day of November, 2020

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S. Manikumar, CJ

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This intra court appeal is preferred by respondents 2 and 3 in W.P.(C) No. 15771/2020, challenging the judgment dated 19.08.2020 whereby, a learned Single Judge of this Court disposed of the said writ petition by ordering thus:

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“10. Taking note of the facts and circumstances of this case, it is ordered that the competent authority of the 1^st respondent Government in the Local Self Government Department will immediately take up the matters in Ext.P21 petition dated 2906-2020 for consideration without any further delay and after affording reasonable opportunity of being heard to the petitioners as well as the 3^rd respondent Secretary of the Municipal Corporation through their authorised representative or counsel if any, so as to pass orders on Ext.P21, in accordance with law, without much delay preferably within four weeks and at any rate, within the outer time limit of six weeks from the date of production of a certified copy of this judgment. While taking a decision the 1^st respondent will take into consideration the specific contentions of the petitioners that the respondent Municipal Corporation has no power or authority under the provisions of the Kerala Municipality Act and the rules framed thereunder to control the private business of the petitioners for supply of water through private Tanker lorries, having due regard to the submissions of the

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W.A.1441/2020

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petitioners noted hereinabove and each of the said submissions should be specifically adverted to and considered while passing orders on Ext.P21.

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It is also ordered that the operation and enforcement of the impugned Ext.P4 Bye-Laws to the extent it concerns the petitioners herein shall be kept in abeyance, till orders are passed by the 1^st respondent on Ext.P21 petition. The respondent more particularly the respondents 1 to 3 shall ensure strict observance of the above said order passed by this Court regarding keeping in abeyance of the impugned Ext.P4 Bye-laws to the extend it affects the petitioners herein, until orders are passed by the 1^st respondent on Ext.P21 petition.

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The petitioners will produce certified copies of this judgment along with copies of the memorandum of the W.P(C) with all the Exhibits before the respondents 1 & 3, for necessary information and further action.”

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The subject issue relates to Exhibit-P4 bye-laws framed by the Thiruvananthapuram Municipal Corporation, appellant No.1, introducing a scheme for supply of pure drinking water to the general public in Thiruvananthapuram city, to regulate the agencies and other stakeholders from collecting unconscionable amounts from the public by the sale of drinking water, and also for the uninterrupted supply of drinking water to the general public at all times, irrespective of various social conditions. According to the writ petitioners, who are owners of

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W.A.1441/2020

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tanker lorries supplying drinking water, Exhibit-P4 bye-laws framed by the Thiruvananthapuram Municipal Corporation is illegal, since it does not satisfy the statutory requirement of securing approval from the State Government.

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The sum and substance of the contention advanced by the respondents/writ petitioners, therefore, was that the appellant Corporation cannot rely upon the provisions of Exhibit-P4 bye-laws implemented from 15.02.2020 and supply water, in terms of the provisions of the bye-laws.

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The paramount contention advanced by the appellants in this appeal is that the appellant Corporation intended to frame Exhibit-P4 bye-laws in the best interest of protecting the health and welfare of general public, and to prevent the misuse of drinking water for other commercial purposes. It was pointed out that when the writ petition was posted for admission before the learned Single Judge, on 19.08.2020, though time was sought to get instructions and to file a counter affidavit, time was not granted and in the alternative, the learned Single Judge directed to dispose of Exhibit-P21 representation dated 29.06.2020 filed by the writ petitioners before the 1^st respondent under Section 573 of the Kerala Municipalities Act, 1994, requesting for cancellation of the bye-laws, within a time frame. While ordering

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W.A.1441/2020

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thus, the learned Single Judge has stayed the operation of Exhibit-P4 bye-laws, which according to the appellants, is causing serious prejudice in the matter of supply of drinking water.

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That apart, it was contended that Exhibit-P21 representation has been submitted by the writ petitioners after 29.06.2020, whereas, the scheme formulated by the Corporation to streamline the supply of drinking water in the city of Thiruvananthapuram has been implemented by the Corporation on 15.02.2020, with full support of the general public. It was also contended that the Corporation has implemented the bye-laws strictly in accordance with Section 567 of the Kerala Municipalities Act, 1994 and the Municipal Corporation is vested with ample powers under Sections 315 and 315(D) of Act, 1994. It was further contended that the stay granted by the learned Single Judge in the intervening circumstances of disposal of ExhibitP21 representation would seriously prejudice the right of the general public to secure drinking water. Therefore, it was submitted that appellants have made out sufficient grounds justifying interference with the judgment of the learned Single Judge dated 19.08.2020.

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We have heard Mr. N. Nandakumara Menon, learned Senior Counsel assisted by Adv. Mr. P.K. Manoj Kumar for the appellants, Mr. Ayyappan Sankar, learned counsel for respondents 1 to 4, Mr. V.

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W.A.1441/2020

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Tek Chand, learned Senior Government Pleader appearing for respondent No.5, and Mr. P. Benjamin Paul, learned counsel for the Kerala Water Authority - 6^th respondent, and perused the pleadings and materials available on record. It is made clear that our endeavour is only to find out as to whether, the stay of the operation of the byelaws granted by the learned Single Judge pending adjudication of the statutory representation can be sustained or not.

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Learned Senior Counsel for the appellants has addressed arguments based on the submissions recorded above. The issue to be considered centres around the power of the Corporation to frame byelaws. Section 567 of Act, 1994 deals with the power of the Municipal Council to make bye-laws, not inconsistent with the provisions of the Act and the rules made thereunder. It is clear from sub-section (5) of Section 567 of the Act that the Municipal Corporation has the power to make bye-laws for the maintenance and protection of the water supply and drainage system entrusted to a Municipality.

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As per Section 568 of the Act, 1994, the Municipal Council is vested with the powers to give retrospective effect to certain bye-laws with the previous sanction of the Government and in accordance with the power vested with the Municipality to formulate bye-laws. Section 572 of Act, 1994 is significant in this context and it deals with

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W.A.1441/2020

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confirmation of bye-laws or regulations. Sub-section (1) of Section 572 stipulates that no bye-law or regulation or any cancellation or alteration thereof shall have effect until the same is approved and confirmed by the Government. That apart, sub-section (2) thereto specifies that a bye-law or regulation or cancellation or alteration thereof approved and confirmed under sub-section (1) shall be published in the gazette and shall come into operation on the date of such publications unless a different date is provided therein. Therefore, the contention of the writ petitioners is that the bye-laws framed by the Thiruvananthapuram Municipal Corporation does not conform to the said imperative statutory requirements.

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True, if the situation, as contented by the writ petitioners, is correct, their remedy is to approach the State Government under Section 573 of Act, 1994 dealing with cancellation of bye-laws or regulations, which specify that the Government for reasons to be specified in the order in that behalf cancel any bye-law or regulation and thereafter, such bye-law or regulation shall be of no effect. Therefore, relying on the said provision, it was contended by the learned Senior Counsel for the appellants that unless and until, the bye-law is cancelled by the State Government, in accordance with the powers conferred under Section 573 of Act, 1994, the bye-laws framed

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by the Municipal Council is valid. We find force in the said contention for various reasons, including that in accordance with the terms of the bye-law, drinking water is being supplied by the Municipal Corporation with effect from February, 2020, that the compliance of mandatory requirements as above are surrounded by facts and the legality is to be deciphered in the process of adjudication by the Government, and that the framing of the bye-laws being admitted to be done, till such time it is cancelled it has to be legally presumed that it was constituted in accordance with law being an official act performed by a statutory authority.

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On the other hand, learned counsel for the writ petitioners submitted that since the bye-law is not approved by the State Government, there is nothing wrong in the judgment of the learned Single Judge staying the operation of Exhibit-P4 bye-laws, till such time a decision is taken by the State Government, in accordance with the powers conferred under Section 573 of Act, 1994, especially for the reason that there is no power vested with the Government to grant a stay in the intervening circumstances.

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Having evaluated the rival contentions, we are of the opinion that when a bye-law is framed by the Municipal Council, it is presumed to be in accordance with law. After framing of the bye-laws only,

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approval from the Government is to be sought for. That apart, in accordance with Section 568 of Act, 1994, the council may with the previous sanction of the Government, and subject to the other provisions contained in the chapter, make bye-laws with retrospective effect. Moreover, by operation of stay, there is every likelihood of interruption to the supply of drinking water, and therefore, thinking from the human rights aspect also, the interim stay would cause serious prejudice to all concerned.

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We have no doubt that the learned Single Judge was right in disposing of the writ petition, by directing the State Government to take a decision, within a time frame, since Exhibit-P21 is a statutory representation submitted by the writ petitioners. But, while granting stay of Exhibit-P4 bye-laws during the intervening period, writ court has failed to provide any reasons in the impugned judgment. The approach of the learned Single Judge in that regard cannot be sustained for the reason that it will have to be presumed that bye-laws are framed by the council, in accordance with law, and it has secured necessary approval from the Government, in accordance with the requirements specified above. Therefore, we are of the opinion that the impugned judgment requires interference to the extent of granting stay of Exhibit-P4 bye-laws in the intervening period.

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W.A.1441/2020

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In that view of the matter, we allow this appeal in part and set aside the impugned judgment to the extent of granting stay of Exhibit-P4 bye-laws insofar as it affects the appellants. We also make it clear that when the Government is vested with ultimate powers under Section 573 of the Kerala Municipalities Act, 1994, to cancel a bye-law, necessarily, if and when an application is filed seeking stay of Exhibit-P4 bye-laws, Government is vested with the powers to consider the same, in accordance with the law, and the contention made otherwise by the learned counsel for the writ petitioners cannot be sustained. In all other respects, the judgment of the learned Single Judge would remain intact.

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Sd/- S. MANIKUMAR CHIEF JUSTICE

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Sd/- SHAJI P. CHALY JUDGE

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Krj

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//TRUE COPY//

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P.A. TO C.J.

Thiruvananthapuram Municipal Corporation v. Aswathy P.

Case brief

What is this about?

What did the court decide?

Thiruvananthapuram Municipal Corporation v. Aswathy P.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

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