Quashed

Aswathy.P., v. State of Kerala

Kerala HC6 Jun 2024WP(C)/20382/2022

Case brief

AI extract

What is this about?

The Court quashed an order passed by the State and Municipal Corporation challenging a water supply bye-law. The Court held the impugned order was inadequate as it failed to address the core competency challenge raised by the petitioners in earlier judgments, deeming it teetering on contempt of court.

What did the court decide?

Quashed the impugned order; directed the First Respondent to pass a fresh reasoned order within three months after affording a hearing to all parties.

Aswathy.P., Vs State of Kerala — Public Procurement and Tenders | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.

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THURSDAY, THE 6^TH DAY OF JUNE 2024 / 16TH JYAISHTA, 1946

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WP(C) NO. 20382 OF 2022

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PETITIONERS:

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1 ASWATHY.P., AGED 37 YEARS W/O GINI RAJENDRAN, RAJENDRA VIHAR, MERA-78, KULAPPARAKONAM ROAD, MANNANTHALA, THIRUVANANTHAPURAM-695015.

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2 GINI RAJENDRAN, AGED 41 YEARS, S/O P.G.RAJENDRAN, RAJENDRA VIHAR, MERA-78, MANNANTHALA, THIRUVANANTHAPURAM-695015.

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3 SUDARSHANAN.L, AGED 48 YEARS, S/O LAMBODHARAN.A, T.C. 6/2021, SUNITHA BHAVAN, THURUVIKKAL, THIRUVANANTHAPURAM-695011.

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4 VIJAYAN.L, AGED 52 YEARS, S/O ISAAC, PANANVILA HOUSE, USHAS NAGAR, PANGAPPARA.P.O., THIRUVANANTHAPURAM-695561.

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5 RAJESH.S, AGED 46 YEARS, S/O SUKUMARAN NAIR, T.C. 6/568-2, VELLETTIL VEEDU, THURUVIKKAL.P.O., THIRUVANANTHAPURAM-695011.

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BY ADVS. AYYAPPAN SANKAR S.HRIDYA

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RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001.

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2 THIRUVANANTHAPURAM MUNICIPAL CORPORATION, REPRESENTED BY ITS SECRETARY, CORPORATION BUILDINGS, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM-695 033.

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WP(C)No.20382 of 2022

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3 THE SECRETARY,, HIRUVANANTHAPURAM MUNICIPAL CORPORATION, CORPORATION BUILDINGS, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695 033.

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4 KERALA WATER AUTHORITY, REPRESENTED BY THE MANAGING DIRECTOR, JALA BHAVAN, VIKAS BHAVAN.P.O., THIRUVANANTHAPURAM-695 033.

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5 THE SPECIAL SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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BY ADVS. N.NANDAKUMARA MENON (SR.) SHRI.P.K.MANOJKUMAR,SC,TVPM CORPORATION SUMAN CHAKRAVARTHY, SC, THIRUVANANTHAPURAM CORPORATION

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OTHER PRESENT:

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SMT.K.R.DEEPA, SPL.GP, SRI.P.M.JOHNY, SC

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C)No.20382 of 2022

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MOHAMMED NIAS C.P., J.

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WP(C)No.20382 of 2022

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Dated this the 6^th day of June, 2024

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JUDGMENT

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This is the fourth round of litigation at the instance of the petitioner who had challenged Ext.P4 bye-law issued by the Thiruvananthapuram Corporation regarding water supply, within the Corporation. This Court had earlier in the judgment dated 19.8.2020 in WP(C) No.15771/2020 directed the Government to consider the contentions raised by the petitioner on the power of the Corporation to control the private business of the petitioner for supply of water through private tanker lorries. The Government had passed orders purportedly in compliance with the directions in the aforementioned judgment on 21.5.2021, which was challenged again in WP(C) No.6150/2022, wherein, it was found that the said order did not comply with the directions of this Court in the judgments in WP(C) No.15771/2020 or WA No.1441/2020, and accordingly quashed the said order and directed the Government pass a proper reasoned order considering the contentions of the petitioner and quashed Ext.P31 order in that case dated 21.5.2021.

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WP(C)No.20382 of 2022

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The present writ petition challenges the order passed after the directions in the above judgment dated 25.4.2022. Though the argument of the petitioner that the Corporation had no authority to issue such a bye-law and most of their contentions are noticed in the order, without any reasoned order dealing with the same, the present impugned order is seen passed. One paragraph of the impugned order is extracted hereunder.

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“(9) The cardinal contention in this dispute is the competency of the corporation to enact such a Bye-law regulating the water supply business of the petitioners. The Bye-law is questioned on the grounds of section 567,571,572,315,315 A and 315 B Of the Kerala Muncipalities Act, 19994. Even in a plain reading it can see that these sections never discourage the corporations, as alleged by the petitioners from making by laws in matters allocated to them as far as the by-law are not inconsistent with the Kerala Muncipalities Act 1994. Section 571 stipulates the publication of Draft By law for public opinion before it being notified. Section 572 stipulated the approval and confirmation of the Government for it to be effected. Here in this case both Section 571 and 572 are complied. Hence the above said sections confer effective competency to the Municipal Corporation to enact such a Bye-law.

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(10) Section 315,315A,315 B vest the subject of water supply and sewerage services to the Muncipalities and empowers it to make plans and scheme for water supply and sanitation with administrative powers. Hence the contention that the Bye-law is

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WP(C)No.20382 of 2022

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made in contrary to these sections will not sustain. Section 30(2) of the Act confer muncipalities such powers, authority and responsibilities of the Government , to enable it to function as an institution of self Government, in respect of the matters in entrusted to it. Water supply is a matter entrusted to the Muncipality through the 74th amendment of the constitution as item 5 in the XIIth schedule . Hence the Bye-law issued by the Thiruvananthapuram corporation is well with in law and it is competent make such a Bye-law to regulated the business of water supply in its jurisdiction.”

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I am afraid, this is not the consideration that was directed by this Court in the judgments referred to above. The competency of the Municipality to issue the impugned byelaws challenged by the petitioner is not answered at all in the impugned order. On the short ground that the contentions urged by the petitioners and noticed in the impugned order itself have not been answered as directed in the earlier judgments of this Court, which is teetering on the edge of contempt of Court, I quash the same and direct a fresh consideration by the first respondent with notice to the petitioner and respondents 2 and 3 or other affected parties, if any and pass a fresh order strictly in terms of the directions in the judgment of this Court in WP(C) No.15771/2020 dated 19.8.2020. A decision shall be taken as directed above, after affording reasonable opportunity of hearing to the

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WP(C)No.20382 of 2022

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parties and adverting to their contentions, within three months of receipt of a copy of this judgment.

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The writ petition is allowed as above.

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Sd/-

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MOHAMMED NIAS C.P.

JUDGE

dlk/06.06.2024

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PETITIONERS EXHIBITS

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EXHIBIT P1	TRUE COPY OF THE PHOTOGRAPHS (7 NOS).
EXHIBIT P2	TRUE COPY OF THE PHOTOGRAPHS (3 NUMBER) OF THE WATER TANKER VEHICLE BEARING REG. NO. KL-01-CD-9633.
EXHIBIT P3	TRUE COPY OF THE JUDGMENT IN W.P.(C) IN 2273/2020 BEFORE THE HON'BLE HIGH COURT OF KERALA AT ERNAKULAM DATED 27-01-2020
EXHIBIT P4	TRUE COPY OF THE BYE-LAW REGARDING REGULATION AND MANAGEMENT OF DISTRIBUTION OF WATER (INCLUDING DRINKING WATER) USING TANKERS, UNILATERALLY OF THIRUVANANTHAPURAM MUNICIPAL CORPORATION IN THE MONTH OF FEBRUARY, 2020.
EXHIBIT P5	TRUE COPY OF THE ORDER DATED 10-2-2020 ISSUED BY THE ASSISTANT ENGINEER OF KERALA WATER AUTHORITY, GENERAL SECTION, ARUVIKKARA.
EXHIBIT P6	TRUE COPY OF THE LICENCE CONDITIONS PUBLISHED IN THE OFFICIAL SITE OF 3RD RESPONDENT.
EXHIBIT P7	TRUE COPY OF THE PRINTOUT OF THE COMMUNICATION IN THE WHATSAPP GROUP CREATED BY THE 5TH RESPONDENT.
EXHIBIT P8	TRUE COPY OF THE PHOTOGRAPHS SHOWING TANKER LORRIES TO REMOVE NAMES AND PARTICULARS OF THE OWNER OF THE VEHICLE AND TO EXHIBIT THE NAME OF THE MUNICIPAL CORPORATION.
EXHIBIT P9	TRUE COPY OF THE PAYMENT ACKNOWLEDGEMENT LICENCE FEES IN RESPECT OF THE 10 TANKER
	LORRIES ENGAGED IN 1ST PETITIONERS PARTNERSHIP BUSINESS.

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EXHIBIT P10	TRUE COPY OF THE INVOICES SHOWING COLLECTION OF UNNECESSARY CHARGES UNDER THE HEAD VEHICLE SERVICE CHARGES BY THE 2ND RESPONDENT CORPORATION.
EXHIBIT P11	TRUE COPY OF THE SHOW APPLICATION DATED 09- 12-2020 SUBMITTED BY THE 5TH PETITIONER BEFORE THE 3RD RESPONDENT.
EXHIBIT P12	TRUE COPY OF THE REPLAY DATED 01-01-2021 TO EXHIBIT-P11.
EXHIBIT P13	TRUE COPY OF THE APPEAL PETITION DATED 03- 06-2021 AGGRIEVED BY THE VAGUE REPLY AS PER EXHIBIT-P11 TO EXHIBIT-P12.
EXHIBIT P14	TRUE COPY OF THE APPLICATION DATED 03- 0602021 SUBMITTED BY THE 2ND PETITIONER UNDER RIGHT TO INFORMATION ACT.
EXHIBIT P15	TRUE COPY OF THE REPLAY DATED 29-06-2021 TO EXHIBIT-P14.
EXHIBIT P16	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10-06-2020 ISSUED BY THE HEALTH SUPERVISOR OF THE 2ND RESPONDENT THIRUVANANTHAPURAM MUNICIPAL CORPORATION TO THE OF THE 1ST PETITIONER.
EXHIBIT P17	TRUE COPY OF THE REPLAY DATED 16-6-2020 SUBMITTED BY THE 1ST PETITIONER TO THE EXHIBIT-P16 SHOW CAUSE NOTICE.
EXHIBIT P18	TRUE COPY OF THE TRUE COPY OF THE RECEIPT DATED 22-06-2020 FOR PAYMENT OF FINE IMPOSED ON THE OF 1ST PETITIONER.
EXHIBIT P19	TRUE COPY OF THE SHOW CAUSE NOTICE DATED 10-06-2020 ISSUED BY THE HEALTH SUPERVISOR OF THE 2ND RESPONDENT THIRUVANANTHAPURAM MUNICIPAL CORPORATION TO THE HUSBAND OF THE 1ST PETITIONER.

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EXHIBIT P20	TRUE COPY OF THE REPLAY DATED 16-6-2020 SUBMITTED TO EXHIBIT-P19 SHOW CAUSE NOTICE.
EXHIBIT P21	TRUE COPY OF THE RECEIPT DATED 22-06-2020 FOR PAYMENT OF FINE IMPOSED ON THE HUSBAND OF 1ST PETITIONER.
EXHIBIT P22	TRUE COPY OF THE CAUSE NOTICE DATED 10-06- 2020 ISSUED BY THE HEALTH SUPERVISOR OF THE 2ND RESPONDENT THIRUVANANTHAPURAM MUNICIPAL CORPORATION TO THE HUSBAND OF THE 3RD PETITIONER.
EXHIBIT P23	TRUE COPY OF THE REPLAY SUBMITTED TO EXHIBIT-P22.
EXHIBIT P24	TRUE COPY OF THE RECEIPT DATED 23-06-2020 FOR PAYMENT OF FINE IMPOSED ON THE HUSBAND OF 3RD PETITIONER.
EXHIBIT P25	TRUE COPY OF THE NOTIFICATION DATED 27-4- 2020 ISSUED UNDER THE DIRECTIONS OF THE 3RD RESPONDENT.
EXHIBIT P26	TRUE COPY OF THE PETITION DATED 29-06-2020 FILED BY THE PETITIONERS BEFORE THE 1ST RESPONDENT.
EXHIBIT P27	TRUE COPY OF THE JUDGMENT DATED 19-08-2020 IN W.P.(C).NO.15771/2020 BEFORE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM.
EXHIBIT P28	TRUE COPY OF THE JUDGMENT DATED 19-11-2020 IN W.A.NO.1441/2020 BEFORE THE HON'BLE HIGH COURT OF KERALA, AT ERNAKULAM.
EXHIBIT P29	TRUE COPY OF THE ORDER DATED 21-5-2021 ISSUED BY THE 5TH RESPONDENT.
EXHIBIT P30	TRUE COPY OF THE JUDGMENT DATED 9-3-2022 IN
	W.P.(C).NO.6150/2020 BEFORE THE HON'BLE
	HIGH COURT OF KERALA, AT ERNAKULAM.

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EXHIBIT P31	TRUE COPY OF THE ORDER DATED 25-4-2022
	ISSUED BY THE 5TH RESPONDENT G.O. (MS).NO.92/2022.
EXHIBIT P32	TRUE COPY OF THE PHOTOGRAPHS (4 NOS).
EXHIBIT P33	TRUE COPY OF THE PRINT OUT OF THE ORDER DATED 12.9.2022 IN SLP (C) NO.128/2021 OF THE HON'BLE SUPREME COURT OF INDIA, OBTAINED FROM THE OFFICIAL WEBSITE
EXHIBIT P34	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 19.1.2022 SUBMITTED BY THE 3RD PETITIONER BEFORE THE IMPLEMENTING OFFICER, THIRUVANANTHAPURAM CORPORATION
EXHIBIT P35	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 20.5.2022 SUBMITTED BY THE 3RD PETITIONER BEFORE THE SECRETARY, THIRUVANANTHAPURAM CORPORATION
EXHIBIT P36	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 19.1.2022 SUBMITTED BY THE 5TH PETITIONER BEFORE THE IMPLEMENTING OFFICER, HEALTH DEPARTMENT, THIRUVANANTHAPURAM CORPORATION
EXHIBIT P37	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 19.1.2022 SUBMITTED BY THE 4TH PETITIONER BEFORE THE IMPLEMENTING OFFICER, HEALTH DEPARTMENT, THIRUVANANTHAPURAM CORPORATION
EXHIBIT P38	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 19.1.2022 SUBMITTED BY 1ST PETITIONER BEFORE THE IMPLEMENTING OFFICER, HEALTH DEPARTMENT, MUNICIPAL CORPORATION, THIRUVANANTHAPURAM
EXHIBIT P39	TRUE PHOTOCOPY OF THE REQUEST LETTER DATED 19.1.2022 SUBMITTED BY 2ND PETITIONER BEFORE THE IMPLEMENTING OFFICER, HEALTH DEPARTMENT, MUNICIPAL CORPORATION, THIRUVANANTHAPURAM

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EXHIBIT P40 TRUE PHOTOCOPY OF THE LETTER DATED 1.7.2022 ISSUED BY THE SENIOR SECTION ENGINEER (WORKS), SOUTHERN RAILWAY TO THE SECRETARY OF THIRUVANANTHAPURAM CORPORATION EXHIBIT P41 TRUE PHOTOCOPY OF THE REPRESENTATION DATED 8.7.2022 ISSUED BY THE SECRETARY OF SREEKRISHNA NAGAR RESIDENTS ASSOCIATION, SREEKARYAM, THIRUVANANTHAPURAM TO THE 1ST RESPONDENT

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RESPONDENTS ANNEXURES

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EXHIBIT R2(A) A TRUE COPY OF THE GAZETTE NOTIFICATION DATED 09.03.2021 EXHIBIT R2(B) A TRUE COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DATED 02.12.2022 EXHIBIT R2(C) A TRUE COPY OF THE ORDER NO.H15/H19/16114/22 DATED 14.02.2024 EXHIBIT-R2(D) A TRUE COPY OF THE PUBLIC NOTICE DATED 04.12.2019 EXHIBIT-R2(E) A TRUE COPY OF THE CORPORATION COUNCIL DECISION NO.3(D)2 ON 24.12.2019 EXHIBIT-R2(F) A TRUE COPY OF THE LETTER NO.H19/64372/2019 DATED 21.01.2020 ADDRESSED TO THE ACS, LSGD EXHIBIT-R2(G) A TRUE COPY OF THE LETTER DATED 15.10.2020 EXHIBIT-R2(H) A TRUE COPY OF THE LETTER DATED 16.10.2020 RESUBMITTING THE BYELAW TO THE PRINCIPAL SECRETARY, LOCAL SELF GOVERNMENT (RD) DEPARTMENT EXHIBIT-R2(I) A TRUE COPY OF THE GOVERNMENT ORDER NO.5/2021/LSGD DATED 12.01.2021

Aswathy.P., v. State of Kerala

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Aswathy.P., v. State of Kerala

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