This High Court rejected a writ petition filed by a school manager opposing the ban on asbestos sheet roofings. The court held that as the interim order directing removal of asbestos roofs had been acted upon by the Government, the petition was not maintainable for quashing subsequent compliance orders or reopening the issue.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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 2ND DAY OF NOVEMBER 2021 / 11TH KARTHIKA, 1943
WP(C)NO.23846 OF 2021
PETITIONER:
FATHER VARGHESE MANAVALAN, AGED 70 YEARS, S/O. ANTHAPPAN, MANAGER, ST. THOMAS HIGHER SECONDARY SCHOOL, MALAYATTOOR, ERNAKULAM DISTRICT-683587.
BY ADVS. M.A.ABDUL HAKHIM
JOSEPH GEORGE
RESPONDENTS:
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
Dated this the 2nd day of November 2021
S.MANIKUMAR, C.J.
Writ petition is filed by the Manager of St.Thomas Higher Secondary School, Malayattoor seeking direction to the respondents, the Government of Kerala, represented by Secretary; Director of General Education; Deputy Director of Education; District Educational Officer, Aluva; Assistant Educational Officer, Angamaly; Malayattoor Neleeswaram Grama Panchayat; Secretary, Local Self Government Department; Mukesh Jain, Mattanchery, to permit continuance of the existing asbestos roofing in the school buildings with sufficient false ceiling, pending consideration of the study on the subject.
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3. Reliefs sought for in this writ petition are as follows:
(a) Issue a writ of mandamus or such other writ order or direction compelling the respondents to complete the study initiated as per Ext.P6 with reference to different types of roofings and false ceilings of school buildings after hearing all stake holders including the petitioner and to maintain status quo with respect to the roofings in the school buildings till then,
(b) Issue a writ of mandamus such other writ order or direction compelling the respondents to permit asbestos roofings with sufficient false ceilings, in the school buildings of the petitioner in his school [St. Thomas Higher Secondary School],
(c) Issue a writ of certiorari or such other writ order or direction setting aside Exts.P1, P2, P3 and P4 to the extent to which it is applicable to the petitioner.
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more than 20000 Sq.Ft. and the petitioner is in the process of making false ceiling made with fibre sheet below the asbestos sheet roofing as part of converting the class rooms to smart class rooms and the petitioner has completed false ceiling in a substantial area. The class rooms are provided with ceiling fans.
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“1. The State Government will replace asbestos roofs of all school buildings under its control with country tiles in a phased manner.
circular dated 19.6.2017 on the basis of the order of the Kerala State Commission for Protection of Child Rights, directing to take steps to remove aluminium sheets causing serious health hazards to the students and to provide heat free class rooms for the students.
of Public Instructions, (General) to all Deputy Directors of Education is reproduced:
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No.W1/39792/17/DPI Office of the Director of Public Instructions, Thiruvananthapuram Date:19/6/2017
CIRCULAR
Sub: General Education - Substitution of roof of the School Buildings having Asbestos sheet with tile/concrete in the last year on the ground of serious health issues of the School children-regarding
Ref: C.R.M.P No.4231/14/L.A.2/2017/K.E.S.C.P.C.R. Kerala State Commission for Protection of Child Rights
On examining the petition submitted by Muhammed kunhi.P.A before the Kerala State Commission for Protection of Child Rights in detail, you are directed to implement the following directions by giving necessary instructions to all the School Headmasters within the area of your control.
Sd/
Jessy Josseph, Additional Director of Public Instructions, (General)
dated 9.10.2019 directing to remove asbestos sheet roofings from all the schools functioning under the education department within a period of
two years from the date of the said Government Order, which reads as under:
File No.GEDN-M1/188/2019-G.EDN
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Administration Language - Mother Tongue Government of Kerala Summary
General Education Department-Interim Order of the Hon'ble High Court in W.P. (C) 22457/2019 - Order is issued prohibiting Asbestos Sheet Roofing and fixing time limit for removal of the same in Schools in the State under General Education Department.
General Education (M) Department
G.O.(MS)No.162/2019/GEDN Date 9/10/2019 Thiruvananthapuram
Ref: Interim Order dated 3/9/2019 of the Hon'ble High Court of Kerala in W.P. (C) 22457/2019.
ORDER
In the interim order cited above in W.P.(C).22457/2019 filed by the School Manager of Thrissur, Koorikuzhi AMUP School before the Hon'ble High Court it is directed to remove Asbestos sheet roofing from the class rooms in the Schools of the State in a time bound manner by fixing suitable materials.
Government has examined the matter in detail. On the basis of the Interim order of the Hon'ble High Court cited above, Order is passed prohibiting usage of asbestos sheet, which may cause health issues to the school children, for constructing the roof in all the schools in the State under General Education Department and issuing the following instructions.
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The interim order of the Hon'ble High Court cited above is complied in the above manner.
(Under Order of Government) P.S.Krishna Kumar, Additional Secretary
respondent/Secretary, Local Self Government Department issued Ext.P4 order to the Director of Panchayats, Director of Urban Affairs and Commissioner for Rural Development informing that issuance of Fitness Certificate for the schools and other educational institutions shall be made only after ensuring that the class rooms are constructed not using asbestos sheets, tin sheets and aluminium sheets.
File No.EPA4/302/2019-LSGD Administration Language - Mother Tongue Government of Kerala
No EPA4/302/19/LSGD
Local Self Goverment(EPA) Department, 17/10/2019
Thiruvananthapuram
Secretary
Director of Panchayats, Thiruvananthapuram Director of Urban Affairs, Thiruvananthapuram Commissioner for Rural Development, Thiruvananthapuram.
Sir,
Sub: Kerala State Commission for Protection of Child Rights-Prohibiting usage of asbestos sheet roofing to school buildings -regarding.
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Ref: Proceedings C.R.M.P No 4231/14/LA2/217/KeSCPCR submitted by Sri. Muhammed Kunhi. P.A before the Kerala State Commission for Human Rights.
Your attention is invited to the recommendation (B) in the above cited order of Kerala State Commission for Protection of Child Rights in the Petition submitted by Sr. Muhammed Kunhi.P.A. It is ordered that while granting Building Fitness Certificates to crèches, Anganwadis, Nurseries, Schools and other Educational & Technical Institutions, the same have to be given only after ensuring that the class rooms in the said institutions are constructed not by asbestos tin sheets and aluminium sheets. Emergent action in this regard has to be taken under information to the Government.
Yours faithfully, Sheeba.B, Deputy Secretary For Secretary
PAN/15733/2019-J3(DP) Office of the Director of Panchayat Public Office P.O.-695033 Thiruvananthapuram [email protected] 0471-2786305 Date 5/3/2020 Director of Panchayats All Deputy Director of Panchayats
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Sir,
Sub:- Department of Panchayat-Kerala State Commission for Protection of Child Rights-Prohibition of using asbestos sheets for roofing of school buildings - regarding
Ref: Letter No EPA/4302/19/LSGD dated 17/10/2019 of the Government.
Attention is invited to the letter cited above.
The copy of the Letter cited above is enclosed herewith for directing all the Grama Panchayats to ensure that while granting Building Fitness Certificates to crèches, Anganwadis, Nurseries, Schools and other Educational &Technical Institutions, the same have to be given only after ensuring that the class rooms in the said institutions are constructed not by asbestos, tin sheets and aluminium sheets.
Yours faithfully For Director of Panchayat Meenakumari Amma. O
Chief Registrar
Office of the Chief Engineer, Phone:0471-2324951 LSG-Local Infrastructure Development and 0471-2325071 Engineering Wing, Revenue Complex, Tele Fax:0471-2324951 3rd Floor, Public Office [email protected]. Building, Thiruvananthapuram-33
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No.DB.1/DB.5/9495/09/CE/L.I.D&E.W
Date : 16.8.2021
CIRCULAR
Sub:Local Infrastructure Development & Engineering Wing-Granting of Fitness to School Buildings-Regarding
Ref: 1. Letter No.E.W.A.3/261/2021-LSGD dated 11/8/2021 from the Government.
Since the time period for removing asbestos roofing in school classes is fixed upto 8.10.2021 as per letter 1st cited above, the Government has ordered to grant Partial Fitness Certificate till the said date and to grant Fitness Certificate for the period thereafter, after removal of asbestos sheet On the basis of the Order 2nd cited above, instead of removing GI/Aluminium sheet roofing fixation of ceiling providing sufficient number of fans is made mandatory. The letter 3rd cited was submitted to the Government requesting to pass order permitting to issue fitness certificate on the basis of it. As per letter 1st cited above it is required to submit a detailed report in this regard. Suggestions and opinions are invited for submitting detailed instructions to the Government for passing order compelling fixation of ceiling with sufficient ceiling fans after electrification instead of changing G.I.&Aluminium sheet roofings in the classes in school buildings and to give fitness certificate thereafter. The officers of the Engineering Department are requested to submit their suggestions and opinions in the official blog of Chief Engineer of Local Self Government Department. Celsgdofficial.blogspot.com.on or before 2.9.2021.
Sd/-
Chief Engineer
Government have complied with the directions issued by this court dated 3.9.2019 in W.P.(C)No.22457/2019 to remove asbestos sheet roofings from
all the schools functioning under the education department within a period of two years from the date of the Government Order.
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“Petitioner, who is the manager of an aided school challenges Ext.P6 and P8 order rejecting his request for 3 years' time for replacing the asbestos roof of 5 class rooms of his school. Pointing out the large number of schools, as given in Ext.P9 to P10 lists, having asbestos roof petitioner alleges discrimination.
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of Human Rights Commission, Child Rights Commission, World Health Organisation, etc. In order to protect the children from the possible health hazards. At the same time, it appears that respondents are not taking any effective action to see that such roof is replaced in all the schools and the children therein also are protected.
There shall be a direction to the respondents to see that the asbestos roof of the class rooms of all the schools are replaced in a time bound manner.”
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“2. Having heard learned counsel for the parties, we are of the view that in view of the subsequent events that had taken place consequent upon the judgment of the Division Bench, the review petition filed by respondent No. 1 was not maintainable. In fact the judgment of Letters Patent Bench was acted upon and it stood exhausted and the review petition was futile. Under such circumstances, the review petition ought not to have been entertained and decided on merits.
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on the afore-stated ground, it is not necessary, to deal with the other contentions of the learned senior counsel for the petitioner since a court of law does not decide more than what is necessary.”
“7...........................Therefore, I am also of the view that, since the directions contained in the common judgment rendered by this Court was acted upon, a review is not maintainable under law. The said issue was considered by the Apex Court in State of Nagaland and Ors. v. Toulvi Kibami and Ors. [(2003) 8 SCC 671] and held that when a judgment is acted upon a review petition cannot be sustained under law. …........”
“12. ................Yet another reason that would weigh with us is that, already the judgment is acted upon and the committee constituted by the National Headquarters headed by a retired Judge of this Court has proceeded with the enquiry, and the enquiry is complete and the report is awaited.
implementation of judgments, the principle can be applied to implementation of interim orders, as well.
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for in the writ petitions cannot be granted. Accordingly, writ petition is dismissed.
the writ petition, we are not expressing any opinion on the above.
Writ petition is dismissed.
sd/-
S.MANIKUMAR CHIEF JUSTICE
sd/SHAJI P. CHALY JUDGE
jes
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APPENDIX
PETITIONER'S EXHIBITS:
// True Copy //
P.S. to Judge
3 issues framed by the court
Whether a writ petition seeking quashing of orders directing removal of asbestos roofings and seeking leave to reopen matters after such orders have been acted upon is maintainable under Article 226 o
Whether the principle that appeals or reviews are not maintainable when a judgment is acted upon applies to the implementation of interim orders.
Whether the petitioners are entitled to reliefs including quashing of government orders and continuation of asbestos sheet roofings with false ceilings.
Colour shows how this judgement treated each authority
State of Nagaland and Another v. Toulvi Kibami and Another (2003) 8 SCC 671Referred¶149
Sh. C. Lawmzuala v. Mizoram University and Anr. (2015) SCC Online Gau 803Referred¶152
Plakkattu Granites (P) Limited v. State of Kerala [Judgment dated 14.08.2020]Referred¶157
P. Anil Kumar and Others v. Indian Red Cross Society, 2020 SCC Online Ker 3376Referred¶159
1 provisions across 1 enactments
FATHER VARGHESE MANAVALAN
GOVERNMENT OF KERALA
THE DIRECTOR OF GENERAL EDUCATION
THE DEPUTY DIRECTOR OF EDUCATION
THE DISTRICT EDUCATIONAL OFFICER
ASSISTANT EDUCATIONAL OFFICER
S.MANIKUMAR
SHAJI P. CHALY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
