Kattakambal Grama Panchayath v. Kerala State Human Rights Commission and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 28TH DAY OF JANUARY 2020 / 8TH MAGHA, 1941** ## **WP(C).NO.29013 OF 2012(B)** ## **PETITIONER :** **KATTAKAMBAL GRAMA PANCHAYATH KATTAKAMBAL P.O., THRISSUR DISTRICT, REPRESENTED BY THE SECRETARY.** **BY ADV. SRI.RAJIT** ## **RESPONDENTS:** - **1 KERALA STATE HUMAN RIGHTS COMMISSION, M.P. APPAN ROAD, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014, REPRESENTED BY THE REGISTRAR.** - **2 OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS SAFALYAM COMPLEX, CRIDA BUILDING, UNIVERSITY P.O., PALAYAM, THIRUVANANTHAPURAM-34** - **3 SIVAN, VALIYAVALAPPIL HOUSE, KATTAKAMBAL GRAMA PANCHAYATH, AYYANOOR, PAZHANJI P.O., KATTAKAMBAL, THRISSUR DISTRICT – 680542.** - **4 DEPUTY DIRECTOR OF PANCHAYAT, THRISSUR DISTRICT. 680542 R1 AND R3 BY ADV. SRI.M.R.JAYAPRASAD** **SMT POOJA SURENDRAN GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).NO.29013 OF 2012(B)** **2** ## **J U D G M E N T** The State Human Rights Commission, by Ext.P4 order, gave directions to the Deputy Director of Panchayath, Thrissur to assess compensation sustained by the 3[rd] respondent consequent to the death of 4 goats supplied to him and his wife by the Kattakambal Panchayat through a program called “Aadum Koodum”. Being aggrieved by the above order, the Panchayat is before this Court impugning the order. 2. It was the case of the 3[rd] respondent before the Commission that he and his wife were eking out a livelihood by rearing goats. As part of a program, the Panchayat took a decision to supply goats to the poor and downtrodden to uplift them. The wife of the 3[rd] respondent was one among the forty families in the area who was given two goats as part of the program. According to the 3[rd] respondent, the goats developed some sickness and it swiftly spread to the 11 other goats which were being reared by him and his wife. The goats were taken to the veterinary Doctor who suggested that the goats be returned. It is contended that by that time, the disease had spread to the other goats and five of them succumbed to the disease. His wife accordingly approached the Panchayat and demanded compensation and when they refused, he **WP(C).NO.29013 OF 2012(B)** **3** approached the Human Rights Commission. 3. Before the Commission the Panchayat took a stand that the goats supplied to the wife of the 3[rd] respondent had died of pneumonia and this fact was seconded by the veterinary doctor who had issued the Certificate. Pneumonia not being contagious, the death of the goats was on account of some other cause and Panchayat could not be held responsible was their stand. 4. The Commission took note of the Postmortem Certificate which revealed that the goats had indeed died of pneumonia. However taking note of the admitted fact that four goats had died, came to the conclusion that the wife of the 3[rd] respondent was entitled to compensation. Holding so, the impugned order was passed directing the Deputy Director of Panchayath, Thrissur to award appropriate compensation to the 3[rd] respondent. 5. Sri. Rajit, the learned counsel appearing for the petitioner submitted that the wife of the 3[rd] respondent, had filed Exhibit P5 complaint before the Ombudsman for Local Self-Government Institutions alleging maladministration and claiming compensation. The petitioner herein had appeared and had filed detailed objections. Simultaneously, **WP(C).NO.29013 OF 2012(B)** **4** the 3[rd] respondent approached the Human Rights Commission alleging that human rights were violated. According to the learned counsel, since the matter was pending before the Ombudsman, in view of Section 36 of the Protection of Human Rights Act, the Commission ought not have intervened. 6. Sri. M.R. Jayaprasad, the learned counsel appearing for the 3[rd] respondent has refuted the submissions. According to the learned counsel though the wife of the 3[rd] respondent had approached the 2[nd] respondent seeking the very same relief, the petition was closed taking note of the fact that the order of the Human Rights Commission ordering compensation was stayed by this Court. The Ombudsman while closing the proceedings observed that if this Court ultimately holds that the jurisdiction to entertain the case is only with the Ombudsman, he could approach the Ombudsman and pursue the matter. 7. I have considered the submissions advanced and have perused the records. 8. In the case on hand, positive directions have been issued by the Commission to grant compensation to the 3[rd] respondent for the loss that they had sustained due to the death of the goats supplied to them **WP(C).NO.29013 OF 2012(B)** **5** by the Panchayat. The only question is whether the said order can be sustained. 9. Human Rights has been defined under S.2(d) of the Act of 1993 as the rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India. In **Ramdeo** **Chauhan @ Rajnath Chauhan v. Bani Kanta Das and others[1] ,** it was held by the Apex Court that human rights consists of rights of human relating to their life, liberty, equality and dignity as against the rights with regard to their properties. Human rights are the basic, inherent, immutable and inalienable rights to which a person is entitled simply by virtue of his being born a human. They are such rights which are to be made available as a matter of right. The Constitution and legislation of a civilised country recognize them since they are so quintessentially part of every human being. That is why every democratic country committed to the rule of law put into force mechanisms for their enforcement and protection. 10. In **Dhoundial v Union of India[2]** , the Apex Court had 1 [2010 (14) SCC 209] - 2 [AIR 2004 SC 1272] **WP(C).NO.29013 OF 2012(B)** **6** occasion to delineate the powers of the Commission. It was held that the Commission which is an 'unique expert body' is, no doubt, entrusted with a very important function of protecting the human rights, but, it is needless to point out that the Commission has no unlimited jurisdiction nor does it exercise plenary powers in derogation of the statutory limitations. The Commission, which is the creature of statute, is bound by its provisions. Its duties and functions are defined and circumscribed by the Act. Of course, as any other statutory functionary, it undoubtedly has incidental or ancillary powers to effectively exercise its jurisdiction in respect of the powers confined to it but the Commission should necessarily act within the parameters prescribed by the Act creating it and the confines of jurisdiction vested in it by the Act. The Commission is one of the fora which can redress the grievances arising out of the violations of human rights. Even if it is not in a position to take up the enquiry and to afford redressal on account of certain statutory fetters or handicaps, the aggrieved persons are not without other remedies. The assumption underlying the observation in the concluding passage extracted above proceeds on an incorrect premise that the person wronged by violation of human rights would be left without remedy if the Commission does not take up the matter. **WP(C).NO.29013 OF 2012(B)** **7** 11. In this context, it would be relevant to note that Section 36 of the Protection of Human Rights Act provides that the Commission shall not inquire into any matter which is pending before a State Commission or any other commission duly constituted under any law for the time being in force. 12. Admittedly in the instant case, the wife of the 3[rd] respondent had approached the Ombudsman for Local Self Government Institutions constituted under Chapter 25B of the Panchayath Raj Act seeking remedies alleging maladministration. The functions of the Ombudsman under Section 271J includes investigation and enquiry into any allegation contained in a complaint or on a reference from the Government; or something that has come to the notice of the Ombudsman. Looking at the scheme of the constitution of the Ombudsman, it is one constituted to enquire or investigate into complaints of corruption or maladministration. The Ombudsman also has the power to pass an order compensating loss or inconvenience to a citizen from an individual or from the Local Self Government Institutions (LSGI) and if any irregularity is due to the omission or inaction. 13. In view of the above, it is my considered opinion that the Human Rights Commission had no jurisdiction to entertain and order **WP(C).NO.29013 OF 2012(B)** **8** compensation for loss sustained to the 3[rd] respondent and his wife consequent to the death of goats supplied to them by the Panchayath. Furthermore, there were no material before the Commission to come to a conclusion that the goats had died due to infectious disease or that the Panchayath was responsible for the same. 14. However, the 3[rd] respondent and his wife is not left with any remedies. As observed above, the wife of the 3[rd] respondent had approached the Ombudsman for LSGI in the year 2012 much after the order was passed by the Human Rights Commission seeking the very same relief. However taking note of the fact that this Court had stayed the proceedings, the proceedings were closed reserving her right to move before the Ombudsman at a later stage, if the same is found warranted. I am of the view that interest of justice would be served if necessary directions are issued to the 3[rd] respondent/his wife to move the 2[nd] respondent for appropriate orders. 15. The following order is passed.:- - a) Exhibit P4 order will stand set aside. b) If the wife of the 3[rd] respondent approaches the Ombudsman for LSGI, Thiruvananthapuram within a period of three **WP(C).NO.29013 OF 2012(B)** **9** weeks from today and files an application to re-open O.P. No.190 of 2012, in the light of the observations in order dated 22.1.2013 of the learned Ombudsman, the proceedings shall be reopened and appropriate orders shall be passed in an expeditious manner. c) Taking note of the long pendency of the matter, the learned Ombudsman may expedite the proceedings. This petition is disposed of with the above directions. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** NS **WP(C).NO.29013 OF 2012(B)** **10** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:** **EXHIBIT P1** **A TRUE COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT.** **EXHIBIT P2 A TRUE COPY OF THE REPLY SUBMITTED BY THE VETERINARY SURGEON ATTACHED BY THE PETITIONER PANCHAYATH.** **EXHIBIT P3 A TRUE COPY OF THE REPLY DTD 27-3-2012 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT.** **EXHIBIT P4 A TRUE COPY OF THE ORDER DTD 21-5-2012 IN HRMP NO.5485/2011.** - **EXHIBIT P5 A TRUE COPY OF THE COMPLAINT FILED BY THE WIFE OF THE 3RD RESPONDENT BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P6 A TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN THE PROCEEDINGS BEFORE THE 2ND RESPONDENT.** ## **RESPONDENT(S) EXHIBITS:** - **EXHIBIT R3(a) COPY OF THE REQUEST DATED 06-08-2012. EXHIBIT R3(b) COPY OF REMINDER DATED 06-11-2012. EXHIBIT R3(c) COPY OF ORDER DATED 22-01-2013.**