PANKAJAKSHAN v. STATE OF KERALA — 1986 DIGILAW 164 (KER)

Judgment :- 1. Has it come to this-that a citizen of this State has to meet a Minister to get some potable water? And to be left high and dry, literally and otherwise, even after that'Special Order.' 2. The failure of the officiate in attending to their routine functions within a reasonable time, generates frustration and lure them to improper and even corrupt means, 'in getting things done'. Those who occupy high positions of responsibility either acquiesce in such unwholesome practices or abuse their power, to pass orders on matters which are beyond their competence or the legally permissible area. The cumulative effect is to drive people to incorrect methods and thereby open up fertile fields of corruption. That is the impression left behind, after dealing with this writ petition. 3. Petitioner, residing in the Anad Panchayat, decided to have a water connection from the pipe laid through his property, by the Water and Waste Water Authority. The Panchayat certified that it had no objection to the petitioner's taking water connection to the building. Thereafter he made an application to the 2nd respondent, Nedumangad Municipality to grant the water connection. As directed by the Municipality, he remitted the scrutinising charge. Any civilised local authority would have intimated a person who had made an application to it, a reply thereto, within a reasonable time. For reasons not easy to understand, no further action was taken by the Municipality for about eight months. It is apparently this distressing inaction on the part of the Municipality that virtually made the petitioner to resort to a strange procedure, one prima facie improper. He filed a petition dated 26-11-1985 directly to the Hon'ble Minister for Irrigation. The photostat copy of the petition and the order passed thereon (made available by the petitioner), would indicate that the Minister passed the following order: "E. E., W & W. W. A. will permit connection." There is no indication that the order had been passed after due processing at the various administrative levels. That is also evident from the fact that despite such an'order', Assistant Executive Engineer had to direct the petitioner to forward a formal application to the Municipality with a letter of consent from the Panchayat. The Assistant Executive Engineer, too, had apparently been groping in the dark. That is also evident from the fact that despite such an'order', Assistant Executive Engineer had to direct the petitioner to forward a formal application to the Municipality with a letter of consent from the Panchayat. The Assistant Executive Engineer, too, had apparently been groping in the dark. The fact that an application had already been filed before the Municipality and that the Panchayat had virtually consented for the pipe connection, would have been known to him if only the representation to the Government bad been routed through him or if all relevant matters had been furnished to him in the due and proper form. On receipt of the communication of the Assistant Executive Engineer dated 20-12-1985, the petitioner again knocked at the doors of the Municipality for a certificate confirming the submission of an application by him before the Municipality and about his having furnished a no objection certificate from the Panchayat. This representation also, went unheeded to by the Municipality. It is the deep frustration generated by the resultant situation that prompted the petitioner to approach this Court for reliefs. 4. There cannot be any doubt that the Municipality is guilty of a serious dereliction of its duty in not responding to the representations of the petitioner. It is difficult to issue a writ to the Municipality directing it to issue the certificate as prayed for by the petitioner without being sure of the factual correctness of the averments in the original petition. At the same time interests of justice would demand grant of reliefs to the petitioner to the extent he is entitled to in law without this litigation pending in this Court for a very long period. I would, therefore, direct the 2nd respondent to furnish to the petitioner a reply to his representation Ext. P5 within 10 days of the receipt of a copy of the judgment. If the factual statements are correct, it will certainly be open to the 2nd respondent to issue a certificate confirming the application made for the pipe connection and the receipt of no objection certificate from the Anad Panchayat. 5. The conduct of the 2nd respondent. Municipality should not go unnoticed A copy of the judgment will be forwarded to the Director of Municipalities, to consider seriously about the reported inaction on the part of the 2nd respondent for a duration of eight months on his application Ext. 5. The conduct of the 2nd respondent. Municipality should not go unnoticed A copy of the judgment will be forwarded to the Director of Municipalities, to consider seriously about the reported inaction on the part of the 2nd respondent for a duration of eight months on his application Ext. P2, and the further indifference after the submission of the representation Ext. P5 dated 26-12-1985. I direct that this shall be done within a period of one month from today. 6. Ordinarily, this Court could have issued a further direction to the Authority to deal with the petitioner's request for pipe connection within a short but reasonable period, if the order of the Minister had legal efficacy. If, on the other hand, the order of the Minister in the form as it is given, does not have effect of a legal and binding order, this Court cannot compel officials of an autonomous authority to implement such an order. This necessitates a detailed consideration of the question about the nature and legal force of the order passed by the Minister. Counsel for the petitioner submitted that the order was passed by the Minister in his capacity as the Chairman of the Water and Waste Water Authority. This submission is based on a vague understanding, and an imprecise appreciation, of the status and powers of a Minister. It is time that a widely prevalent and deep rooted wrong impression that the Minister in charge of a Department could pass whatever order he pleases, is corrected. The Minister is a constitutional functionary, and has to exercise his powers subject to the provisions of the Constitution and the laws. Even in relation to matters which are within his portfolio, he cannot pass any orders on his whims and fancies. Procedural formalities and legal provisions have all to be complied with before an order is passed by the Minister. A Minister may feel, and even say, that he has authority or power to pass any order as he feels. Regarding such Ministers, Lord Atkin said long time back in Liversidge v. Anderson: "A Minister given only a limited authority cannot make for himself a valid return by merely saying I acted as though I had authority. His ipse dixit avails nothing." (See Liversidge v. Anderson, 1946 AC. 206(247)) Lord Denning analysed the legal position of authorities having limited powers, in Bromley's case. (See Bromley LBC. His ipse dixit avails nothing." (See Liversidge v. Anderson, 1946 AC. 206(247)) Lord Denning analysed the legal position of authorities having limited powers, in Bromley's case. (See Bromley LBC. v. GLC.1982.1. All ER. 129). observations of The Watkins Q. in that case, occurring at page 149 of that report, made particular mention of those who newly come by power, and the pitfalls in which they may take themselves to, when they overlook the statutory limitations: He observed: "Those who come newly to govern people and who act in baste in wielding power to which they are unaccustomed would do well to heed the words of Gladstone. He knew a great deal of power, and in 1890 he said of it: 'The true test of a man, the test of a class, the true test of a people is power. It is when power is given into their hands that the trial comes." It is, therefore, no slur on his status nor a dig at his dignity, to reiterate that a Minister cannot pass any order de hors the Constitution, the statutory provisions and enabling administrative instructions. Even when power exists, the mode of exercise of power can also be regulated by law. In such a situation, the power has necessarily to be exercised only in the manner prescribed. The Supreme Court emphasised that aspect in Ramachandran. Govind, ATR.1975 SC 915 (918), when it recalled: "A century ago, in Taylor v. Taylor (1875) Ch. p. 426 Jessel M. R. adopted the rule that when a power is given to do a certain thing in a certain way, the thing should be done in that way or not at all and that other methods of performance are necessarily forbidden This rule has stood the test of time." 7. A survey of the Statute may now be attempted with the above background. The law (still holding the field only as an Ordinance, the predecessor Ordinances being Nos 39/84, 60/84,102/84,17/85, 66/85 and 97/85) is dealt with in the current Kerala Water and Waste Water Authority Ordinance, 1986, Ordinance No. 27/86. It is deemed to have come into effect on 1-3-1984. S.3 creates an autonomous authority called the Kerala Water and Waste Water Authority. The law (still holding the field only as an Ordinance, the predecessor Ordinances being Nos 39/84, 60/84,102/84,17/85, 66/85 and 97/85) is dealt with in the current Kerala Water and Waste Water Authority Ordinance, 1986, Ordinance No. 27/86. It is deemed to have come into effect on 1-3-1984. S.3 creates an autonomous authority called the Kerala Water and Waste Water Authority. The constitution is dealt with in S.4, with the Minister in charge of Public Health Engineering Department as the Chairman, and a person with expert qualifications to be appointed by the Government as the Managing Director and with a Secretary and other members. The functions and powers of the Authority are dealt with in S.14 and 15. Delegation of powers is visualised under S.11. The extent and nature of such a delegation is to be provided in the order issued in that behalf. Taxes, fees and charges to be levied are provided in Chapter V. The cost of water has to be fixed by the Authority, by a notification. Fees for connection, disconnection and re-connection of water supply or for services rendered or work executed, has to be provided in the Regulations. S.39 deals with the details of supply of water by the authority. Under that Section, the authority grants supply of water, on an application made in that behalf by the owner or occupier of the premises. Supply of water is subject to such terms and conditions as may be provided by Regulations. Provision of water meters is also regulated by the Regulations contemplated under the Act. The Regulations visualised above, are dealt with under S.66. They have to be not inconsistent with the provisions of the Ordinance and the Rules made under S.65. The Regulations provide, among other things, the procedure for carrying out the functions of the Authority, besides the terms and conditions for supply of water, and the installation of meters, as already noted above. Under S.55, the authority is, in the discharge of its functions, to be giuded by such directions on questions of policy as given to it by the Government. 8. It is abundantly clear from the scheme of the Ordinance that the Minister acting as such, has no power or competence to sanction a water connection or grant supply of water. Under S.55, the authority is, in the discharge of its functions, to be giuded by such directions on questions of policy as given to it by the Government. 8. It is abundantly clear from the scheme of the Ordinance that the Minister acting as such, has no power or competence to sanction a water connection or grant supply of water. Even the powers and discretion of the Authority are subjected to the Rules that may be framed and the Regulations that may be made. The power to issue directions under S.55 is confined to policy matters. The limitations of such directions have been explained by judicial decisions (See A. M. Mani v. Kerala State Electricity Board, 1967 KLT 885). A direction to give a connection to one applicant for supply of water cannot be termed as a direction of the Government on the policy matter. 9. Permitting a private connection from the pipes laid by and belonging to the Authority, is ordinarily the function of the officials at the lower level. It has necessarily to be so. Technical aspects may have to be considered where a connection is granted. Pendency of prior applications, and assessment of priorities among the prior applicants and other relevant factors have to be considered by the officials having direct contact with the functional problems. In routine matters relating to such applications, the consideration thereof and the grant or refusal of the requests, ordinarily even the superior officials do not have any direct and immediate part to play. No doubt, a citizen aggrieved by an unjustified action or inaction of a subordinate official would be justified in bringing his grievance to the notice of the superior officials or other higher and appellate bodies. It would, therefore, be open to such a person to move even the supreme body, the Authority itself-for necessary reliefs. Here again, the matter is considered by the Authority which is an autonomous body, and not by the Government. The Minister in charge of the Public Health Engineering Department is the Chairman of the Authority. He has, however, only limited and delineated functions as Chairman. He, does not have power straight away to grant permission for a pipe connection. 10. Here again, the matter is considered by the Authority which is an autonomous body, and not by the Government. The Minister in charge of the Public Health Engineering Department is the Chairman of the Authority. He has, however, only limited and delineated functions as Chairman. He, does not have power straight away to grant permission for a pipe connection. 10. In the light of the above discussion, I hold that the order passed by the Minister on 9-12-1985 cannot be treated as a proper, legal and efficacious order passed by a legally competent authority to issue an order relating to grant of pipe connection. In that view of the matter, the petitioner cannot seek directions compelling obedience to such an order, directly or indirectly. 11. The petitioner may, if he so chooses, make an application, direct to the Assistant Executive Engineer with the necessary and requisite documents. He will deal with such an application, with especial expedition, having regard to the antecedents of his earlier attempts. The writ petition is disposed of with the above direction.