S. Siri Jagan, J.
1. The subject matter of these two writ petitions are the same and therefore both were heard together and are disposed of by mis common judgment. For convenience, I shall refer to the rank of parties and Exhibits as referred to in W.P.(C) No. 7127 of 2009, which is the main case.
2. The 4th respondent is a Company conducting business as a service provider for mobile phone users. The Secretary of the 2nd respondent-Panchayat issued Ext. P1 building permit to the 4threspondent for constructing a telecommunication tower for installation of a Mobile Base Station. The Panchayat committee adopted a resolution dated 29-11-2008 to cancel Ext. P1 permit By Ext P3 communication dated 20-12-2008, the 3rd respondent- President of the Panchayat informed the 4th respondent about the said resolution and directed them to stop the construction of the tower with a caution that if they do not, the 4th respondent alone would be responsible for the law and order situation that may arise if the construction is continued.
3. It appears that on 31-12-2008, the Panchayat Committee discussed the same issue again in view of the request of the Secretary to review the decision dated 20-11-2008 and again adopted Ext P2 resolution to confirm the decision to cancel Ext PI building permit issued to the 4th respondent. However, that resolution was not communicated to the 4th respondent
4. The 4th respondent challenged Ext P3 communication of the 3rd respondent before the Tribunal for Local self Government Institutions, in Appeal No. 24 of 2009. While that appeal was pending, on 9-2-2009, one Sri. KJ Antony, styling himself as the Chairman of an action council formed by the people of the 2nd respondent-Panchayat, to protest against the grant of the permit, filed W.P(C) No. 4282 of 2009 seeking a mandamus to the Panchayat to implement Ext. P2 resolution of the Panchayat. While that writ petition was pending, the 1st respondent -Tribunal passed Ext. P7 order dated 17-2-2009 in Appeal No. 24 of 2009, setting aside the resolution dated 29-11-2008 of the Panchayat and Ext. P3 consequential order of the 3rd respondent One Sri Bharathan, a resident of the 2nd respondent Panchayat who had impleaded himself as additional 3rd respondent in the appeal, has filed W.P(C) No. 7127 of 2009 challenging Ext. P7 order of the Tribunal seeking the following reliefs:
(i) call for the records leading Ext.P7 and quash Ext. P7 issuing a writ of certiorari or any other appropriate writ;
(ii) direct the 2nd respondent to take action against 4th respondent in the event of undertaking any construction violating Ext. P2 order canceling the permit issued to him as Ext. P7 has no effect of annulling Ext. P2.
5. The petitioner does not challenge Ext. P7 order on its merits, but only on technical contentions. According to him, Ext. P3 is not an appealable order under Section 276 of the Kerala Panchayat Raj Act, 1994 and therefore the appeal itself is not maintainable. Secondly, he would contend that the 4th respondent had challenged only Ext P3 communication and not the resolution dated 29-11-2008 and therefore the Tribunal exceeded its jurisdiction in quashing that resolution/which was not under challenge in the appeal Thirdly, he would submit that since the further resolution of the Panchayat, Ext. P2, of which the 4th respondent had knowledge was not challenged by them, the challenge against Ext. P3 alone is of no consequence and therefore the Tribunal went wrong in allowing the appeal. Lastly, it is contended that since the resolution dated 29-11-2008 was not under challenge in the appeal, the action of the Tribunal in setting aside that resolution is violative of the principles of natural justice insofar as before setting aside the said resolution, the respondents in the appeal were not put on notice regarding the challenge against the same.
6. The 4th respondent has filed a counter affidavit. According to them, the only order issued by the Panchayat to them cancelling Ext. P1 permit is Ext. P3 communication from the 3rd respondent, which is the formal communication by the Panchayat of the resolution dated 29-11-2008 directing the 4th respondent to stop construction against which an appeal is maintainable under Section 276. Regarding the second contention of the petitioner, it is submitted that the 4th respondent can challenge only what has been communicated to them, which is Ext. P3 and when Ext. P3 is challenged, the Tribunal can, by virtue or the powers conferred on him under Rules 16, 18, 20 and 22 of the Kerala Tribunal for Local Self Government Institutions Rules, 1999. examine the correctness of the entire action of the Panchayat including the correctness of the resolution, on the basis of which the impugned action had been taken. Regarding the 3rd contention, the defence of the 4th respondent is mat Ext P2 resolution dated 31-12-2008 was never communicated to them and they cannot challenge an uncommunicated order. Even otherwise, according to them, the resolution dated 31-12-2008 cannot have a separate existence from the resolution dated 29-11-2008 and Ext. P3, as it is a dependent decision and once the resolution dated 29-11-2008 and Ext P3 are set aside, Ext. P2 loses its validity, automatically. Against the last ground, the 4th respondent would contend that since Ext. P3 is issued solely on the basis of the resolution dated 20-11-2008, the petitioner cannot feign ignorance about the challenge against that resolution, and when the Tribunal has powers to call for and examine the correctness of that resolution also, no separate notice regarding the 4 same is necessary to comply with the principles of natural justice. In their counter affidavit, the 4th respondent would also take the contention that the reason for cancellation of the permit that the tower is a health hazard to the public has already been found unsustainable by this Court in Reliance Infocom Ltd. v. Chemanchery Grama Panchayat : 2006(4) KLT 695.
7. Respondents 1 and 2 have filed a common counter affidavit taking the contention that the appeal filed by the 4th respondent without challenging the two resolutions of the Panchayat is not maintainable.
8. Elaborate arguments were advanced by both sides in support of their pleadings, which I have examined in detail.
9. At the outset, I must notice that the Panchayat has not chosen to challenge the order of the Tribunal, by which their action has been set aside. It is the additional 3rd respondent who got himself impleaded in the appeal, who has challenged the order. All though for that reason, the writ petition is not incompetent, the effectiveness of the challenge diminishes considerably, insofar as the Panchayat has chosen to accept the decision of the Tribunal.
10. The first question is whether Ext. P3 is an appealable order under Section 276(5) of the Kerala Panchayat Raj Act. The said subsection reads thus:
276. Appeal and Revision:
xx xx xx
(5) An appeal on any notice issued, order passed, or action taken by the Panchayat or a revision an a decision taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal Constituted under Section 271 S, provided that such appeal or revision shall be confined only on the following subjects and relating to other subjects as may be prescribed for the purpose,
(a) Assessment demand and collection of taxes or fees or cess;
(b) Grant of permission and licences for trades, factories, markets and other establishments.
Ext. P3 is issued by the President of the Panchayat. It specifically communicates to the 4th respondent that by resolution dated 29-11-2009. the Panchayat has decided to cancel Ext. PI permit issued for construction of the tower and therefore the 4th respondent shall stop the construction of the tower. Regarding Ext. P2 resolution dated 31-12-2008, no communication has been issued by the Panchayat to the respondent although in. their counter affidavit, they claim that the 4th respondent had knowledge about the same. Section 156(1) of the Kerala Panchayat Raj Act defines the functions of the President thus:
156. Functions of President and Vice-President:- (1) Save as otherwise expressly provided by or under this Act, the executive power for the purpose of carrying out the provisions of this Act and the resolution passed by a Panchayat shall vest in the President thereof who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under this Act.
Sub-section (5) of Section 156 further lays down thus:
(5) The President may, in case of an emergency direct the execution of any work or the doing of any act which requires the sanction of the Panchayat and the immediate execution or doing of which is, in his opinion, necessary for the safety of the public ad may direct mat the expenses of executing such work or doing such act shall be paid from the funds of the Panchayat;
Provided that:
(a) he shall not act under this sub-section in contravention of any decision of the Panchayat prohibiting the execution of any particular work or the doing of an particular act.
(b) he shall report the action taken under this sub-section and the reason thereof to the Panchayat at its next meeting and obtain its approval therefore.
Ext. P3 can certainly be construed as an action of the President referable to Sub-sections (1) and (5) of Section 156 of the Kerala Panchayat Raj Act. It is an admitted fact that there is no procedure of communicating the resolution of the Panchayat to the affected party. Based on the same, an order is communicated to the party ordinarily by the Secretary. In this case, the President has chosen to communicate the decision of the Panchayat by issuing Ext. P3. By Ext. P3, the 3rd respondent informed the 4th respondent about the resolution of the Panchayat dated 29-11-2008 and directed the 4th respondent to stop construction of the tower. That would amount to an action of the Panchayat, which has been specifically made appealable under Section 276(5) of the Act before the Tribunal. Therefore, I hold that Ext. P3 is appealable before the Tribunal under Section 276(5).
11. The next question is whether the Tribunal had exceeded his jurisdiction in setting aside the resolution dated 29-11-2008 in an appeal against Ext. P3. I am of opinion that Ext. P3 has no separate existence from the resolution dated 29-11-2008. Ext. P3 is the formal communication of the decision of the Panchayat taken by the resolution dated 29-11 -2008, directing the 4th respondent to stop construction in accordance with the decision of the Panchayat. Admittedly, there is no procedure of issuing the resolution itself to the affected party. Therefore., the affected party can challenge only the formal communication of the decision of the Panchayat to him, which in this case is Ext P3, Hence, by challenging Ext P3, the 4th respondent is challenging the decision taken by the Panchayat by resolution dated 29-11-2008 itself, which has been communicated to them by Ext. P3. Therefore, even without a formal challenge to the resolution, the Tribunal can look into the validity of the resolution itself, on the basis of which only Ext P3 has been issued.
12. Further, under Rule 16 of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999, on the filing of an appeal the Tribunal issues a notice in Form E to the counter petitioner. Form E requires that, if the counter petitioner is a Village Panchayat or Municipality, the files and documents in respect of the appeal shall be produced along with their statement If there is any reasonable objection in producing the same, it shall be explained and the true copies of the document shall be produced. The said Form is in conformity with Rule 17, which provides thus;
17. Examination of Witnesses and production of documents:- (1) The Tribunal may suo moto summon any person as witness and may direct any person including the petitioner or the counter-petitioner to produce or cause to be produced any document or record before the Tribunal.
(2) The Village the petitioner or Municipality or its Secretary who has being made the counter -petitioner in a petition shall produce the connected files and other documents of the Village tide petitioner or Municipality s as the case may be, along with the statement submitted before the Tribunal;'
Provided that in case, the record cannot be produced for sufficient reasons an attested copy of the same shall be produced along with the statement.
(3) All records and documents produced before the Tribunal in connection with disposing any petition shaft be collected back from the Tribunal by the person who have produced such documents, within two months from the date of disposal of the petition.
Rule 18 prescribes the powers of the Tribunal to issue directions to the Local Self Government Institutions and reads thus:
18. Directions to the Local Self Government Institution.- If the Tribunal on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat municipality or its Secretary as the case may be, is not issued or taken in accordance with the procedure under, the Panchayat Act or the Municipality Act or the rules made there under it may direct such Village Panchayat or Municipality or the Secretary to issue notice or order or to take action afresh complying the procedure under law.
Rule 20 prescribes the mode of passing orders in an appeal petition thus:
20. Order of the Tribunal.-(1) The Tribunal shall, after considering the petition and connected records or, if there is trial of the parties, after the completion of such trial, issue an order recording its decision on the petition:
Provided that if the Tribunal thinks it necessary so to do, it may declare in advance a date to issue suck order and shall issue the order on that date.
(2) An order of the Tribunal shall be in writing and shall bear the signature and sea) of the Tribunal on it.
Rule 21 lays down the consequences of the order of the Tribunal thus:
21. Consequences of the order of the tribunal - (1) The notice or order issued or action taken by the Local Self Government institution or its Secretary, as the case may be, shall stand as such or be modified or annulled in accordance with the final order of the Tribunal on the petition from the date of issue of such final order.
(2) Copy of the order of the Tribunal shall be issued to each party to the petition within one week from the date of the order.
These rules read together makes it abundantly clear that the Tribunal's powers are not limited to examining the correctness and setting aside the order impugned in the appeal alone, but are wide enough to examine the correctness of and to annul any order or ^ decision or action of the Local Self Government Institution based on which the impugned order has been passed. Therefore, I am of opinion that the Tribunal did have powers to set aside the resolution on the basis of which Ext. P3 was issued and therefore the Tribunal has not exceeded his powers as contended by the petitioner and the Panchayat.
13. The next issue is whether failure to challenge Ext. P2 is fatal to the appeal of the 4th respondent and by reason of the same, the Tribunal's order becomes vitiated or unenforceable. As I have already observed, although the petitioner and the Panchayat claim that the 4th respondent had knowledge of Ext, P2, they have no case that Ext. P2 has been communicated by the Panchayat to the 4th respondent at any time. An order becomes an order and enforceable only when the same is communicated to the affected party. It has been so held by the Supreme Court in State of W.B. v. M.R. Mondal and Anr. : (2001) 8 SCC 443 in the following words:
16 ...An order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the eye of the law or claim to have come into operation and effect. No reliance can be placed on the same to even assert a claim based on its contents. If its utility depended upon a decision to be taken on the performance of the plaintiff by the competent authority, neither the authority could be compelled to lake a decision nor any concrete rights could be said to have been acquired by the plaintiff, to warrant the grant of the type of directions given in this case.
In view of the principles laid down in that decision, the mere passing of Ext P2 resolution is not of any consequence as far as the 4th respondent is concerned, since the same has not been communicated to them. The 4th respondent cannot also be expected to challenge a resolution which has not been communicated to them. The Supreme Court has again held in Municipal Corporation of Delhi v. Quimat Rai Gupta and Ors. : (2007) 7 SCC 309 thus:
27. An order passed by a competent authority dismissing a Government Order servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika : AIR 1966 SC 1313 but an order placing a Government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram (1969) 1 SCC 28) what is therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would he presumed to have. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot he chafed or altered. It, sublet to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient to bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby. The order is required to be communicated.
(Underlining supplied)
Therefore, an aggrieved party can be expected to take recourse to law, against an order against him., only when the same is formally communicated to him. Until it is communicated to him formally, it would not attain the character of an order binding on him.
14. Apart from that Ext. P2 is the reiteration of the resolution dated 29-11-2008 under sub section (iii) of Section 182, which reads thus:
182. Powers and functions of the Secretary:- Subject to the provisions of This Act and the rules made thereunder, Secretary as officer of the Panchayath shall-
XX XX XX
(iii) carry into effect the resolutions of the Panchayat:
Provided that where the Secretary is of opinion that any resolution passed by the Panchayat has not been legally passed is in excess of the powers conferred by this Act or any other Act or is likely to endanger human life, health or public safety, if implemented, he shall request in writing to the Panchayat to review the resolution and express his views at the time of its review by the Panchayat if the Panchayat upholds its previous decision, the matter shall be referred to the Government after intimation to the President and if no decision of the Government is received within fifteen days, the said resolution shall be implemented and information thereof shall he given to the Government.
Therefore, Ext. P2 is not a fresh action of the Panchayat, which requires to be challenged separately. It is only a statutory reiteration of the earlier resolution in view of the request of the Secretary to Review the same as provided under the proviso to Section 182(iii) of the Act/Since, the Panchayat refused to review the earlier decision and upheld the previous decision, in effect what is in force is the original resolution itself and no new decision comes into effect. Further, Ext. P2 is dependent on the earlier decision, having no separate existence. Therefore, a challenge against the original decision independently is maintainable and once that decision is set aside by the Tribunal, the latter decision automatically ceases to be operative even without a separate challenge to it.
15. The last contention is that since the petitioner was not put on notice regarding the challenge against the resolution dated 29-11-2008, the action of the Tribunal in setting aside that resolution is violative of the principles of natural justice. The answer to the same is the same as that to the second contention. Ext. P3 is the formal communication of the decision of the Panchayat taken by the resolution dated 29-11-2008. Therefore, when Ext. P3 is challenged what is under challenge is the decision of the Panchayat Which was communicated to the 4th respondent by Ext P3, Further, the petitioner who was not a party to the appeal got himself impleaded in the appeal by his own application. The appeal is maintainable and the order passed in the same would be valid, even without the Junction of the petitioner as a party thereof The Panchayat whose action was challenged has not chosen to challenge that order on that ground or any other ground. Therefore, the petitioner cannot be heard to contend that a decision has been taken by the Tribunal without putting him on notice regarding the same, and therefore that decision is vitiated. That is so especially since the Panchayat whose action was subjected to challenge in the appeal has not come forward to challenge the order of the Tribunal on that ground.
16. The petitioner raises another contention that the 4th respondent ought to have invoked the powers of the Government under Section 191 of the Act for cancellation of the resolution instead of filing the appeal. But, in making that submission the counsel for the petitioner lost sight of the fact that under Sub-section (3) of Section 191, the Government is barred from considering a petition under that section, if another remedy is available to the petitioner through the Tribunal under Section 276. Since I have held that an appeal under Section 276 is maintainable against Ext. P3, no petition is maintainable under Section 191.
17. Therefore, I have no hesitation to hold that Ext. P7 order of the Tribunal is not liable to be interfered with on any of the grounds mentioned in the writ petition.
18. In view of my above findings, none of the grounds raised by the Petitioner in the writ petition to challenge Ext.P7 order of the Tribunal are sustainable.
19. The reason stated in Ext. P3, which does mot find a place in Ext. P2 resolution, is that the telecommunication tower is a health hazard for the people of the locality. The 4th respondent relies on Ext. R4(c) report submitted by the Chairman of the Atomic Energy Regulatory Board of the Government of India before the Bombay High Court in W.P. No. 2112 of 2004, to disprove the same. They also rely on the Division Bench decision of this Court in Reliance Infocom Ltd.'s case (supra), wherein relying on a report of the Committee constituted by the Ministry of health and Family Welfare of the Government of India submitted before the Bombay High Court in the above said writ petition, the Division Bench held that in the absence of any scientific data, the apprehension that installation of Mobile Base Station may cause health hazard cannot be sustained. In that decision, the Division Bench held as follows in paragraph 5:
We have already found that RF exposures from Mobile Base Stations are much less than from radio, FM radio and television transmissions and that the consensus of scientific community is that the radiation from Mobile Phone Base Stations is far too low to produce health hazards if people are kept away from direct access to the antennae and the overall evidence indicates that they are unlikely to pose a risk to health. The strength of radio frequency fields in front of the antennae varies with the distance. Persons standing directly in front of the antennae in these high density zones will get higher exposures. We have also found that the height of mobile base station antennae is normally 36 meters and the effect of radio waves depends on the distance from the base stations since the antennae are directed horizontally with a 5 degree downwards tilt. Human studies pertaining to base stations conducted by Santini R et al (2002), Bortkiewics et al (2004) & Hutter & kundi et al (2006) do not report any quantitative parameters related to health hazards. Therefore it can safely be concluded that the permission granted for installation of mobile base station by the panchayat would not cause as such any health hazards nor will it affect the fundamental rights guaranteed to citizens under Article 21 of the Constitution. Right to life enshrined under Article 21 includes all those aspects of life which make life meaningful, complex and worth living. Development of technology has its won ill-effects on human beings, but, at times people will have to put up with that at the cost of their advantages. Petitioner and others for installing towards will have necessarily to comply with the statutory provisions contained in Chapter XIX of the Kerala Municipal Building Rules, 1999 which permits construction of telecommunication towers over buildings. Petitioner has submitted that it has already satisfied all those conditions and in such circumstance Panchayat has granted the licence.
In view of that decision, the Panchayat cannot on the ground of health hazard, either refuse licence or cance1 a licence granted for construction of a telecommunication tower. Therefore, the cancellation of the 4th respondent's licence on the ground of health hazard is clearly unsustainable.
20. In the course of arguments, another contention was raised by the counsel for the petitioner that the construction is in violation of the Coastal Zone Regulation Notification applicable. Such a reason is not discernible from Ext. P2 resolution dated 29-11-2008 or Ext. P3 communication dated 20-12-2008 from the 3rd respondent to the 4th respondent or Ext.R1(a) resolution- of the Panchayat dated 31-12-2008. The counsel for the petitioner referred to Ext PS written statement filed by the Panchayat in me appeal before the Tribunal in which violation of CRZ regulations is mentioned. This is what is stated in Ext. P5:
Thereafter, this resolution was again placed before the Panchayath Committee held on 31/12/2008, discussed threadbare and the Committee once again cancelled the permit issued to the appellant on the ground that the construction of the Telecommunication tower is in violation of CRZ regulations and was also causing health problems. Since the question as to interpretation of CRZ regulations was not falling within the jurisdiction of the Secretary, the said resolution has been already forwarded to the Government under Section 182 of the Kerala Panchayath Act for a decision by the Government As per Section 182, if the Government does not communicate any decision to the effect that the resolution of the Panchayath Committee shall not be implemented, then automatically the Secretary is bound to implement the resolution as it is, under the authority of the Panchayath Committee. In the same, what is stated is that the resolution was forwarded to the Government, 182, if the Government does not communicate any decision to the effect that the resolution of the Panchayath Committee shall not be implemented, then automatically the Secretary is bound to implement the resolution as it is, under the authority of the Panchayath Committee.
In the same, what is stated is that the resolution was forwarded to the Government, since the 'question of interpretation of CRZ regulations was not falling within the jurisdiction of the Secretary. Ext. R1(b) is the letter dated 5-1-2009 from the Secretary of the Panchayat to the Government forwarding the resolution under Section 182. There also, there is absolutely no mention of violation of CRZ regulations. Further, in Ext P8 copy of the counter affidavit filed by the Secretary of the Panchayat in WP(C) No. 37581 of 2008 filed by the petitioner, in paragraphs 3 and 4, it is stated thus on this point:
3. It is true that the petitioners had filed another appeal before the Panchayath complaining that there is clear violation of CKL regulations in granting the permit for the disputed Telecom communication tower. Nothing had been mentioned with regard to mis earlier. On perusing the records, it was found that before the permit was given the Overseer had measured the distance from the sea and reported the same to be more than 200 meters. In view of the controversy and filing of Exhibit P3, the Overseer was directed to product site inspection once again and to do a fresh measurement It was found, upon measurement that the distance from the inner boundary of the sea wall to the Mobile tower was only 192 meters, whereas the distance from the outer edge of the sea wall to the mobile tower was more than 200 meters. The overseer has opined that the measurement from the outer edge is to be taken as the relevant criterion.
4. The petitioners and others are agitating on the basis of the contention that the distance should he measured from inner edge of the seawall and not the outer edge of the sea wall as sea wall is constructed on the high tide line. The 3rd respondent claims that the distance can be measured out only from the outer edge. Since this is not a matter, which, can he decided finally by the Secretary, it was suggested that the matter may be referred to the Government for a decision.
If the issue of violation of coastal zone regulations cannot be decided by the Panchayat. one fails to understand how the permit could have been cancelled by the Panchayat 6n the ground of CRZ violation. The Panchayat had not even bothered to obtain the expert opinion of the Coastal Management Authority, who is the competent authority to decide that issue, for their decision, before relying on that reason for cancelling the permit issued to the 4th respondent
21. In such circumstances, both the reasons cited by the petitioner and the Panchayat for cancellation of Ext. PI building permit issued to the 4th respondent are clearly unsustainable,
22. In Ext. P7 order, the Tribunal had not considered the validity of Exts.P2 or P3 on merits. Exts.P2 and P3 were set aside only on the ground that the Panchayat Committee does not have original or appellate jurisdiction in respect of building permits. Although in view of my decision on merits it is not necessary to consider the validity of that finding for disposal of these writ petitions, I am inclined to consider the validity of that finding in Ext. P7 order of the Tribunal since Ext.P7 itself is under challenge before me.
23. I am not inclined to take the extreme view that the Panchayat Committee has absolutely no jurisdiction to interfere with an order-of the Secretary under any circumstances, which may lead disastrous results in certain cases of acts of the Secretary if the same totally without jurisdiction and which may very prejudicially affect the Panchayat and its effective administration- Take for example a case where the Secretary passes an order in respect of a matter for which he has no jurisdiction at all but causes heavy loss to the Panchayat. If that order is favourable to the person in whose favour it is issued, he would not challenge it in appeal. If it does not affect anybody else, nobody will challenge it in appeal. Should in such a case the Panchayat remain a mute spectator suffering the loss caused by that order? I think not.
24. The present Kerala Panchayat Raj Act, 1994 is enacted under the mandate of part IX of the Constitution of India inserted by the Constitution (Seventy third Amendment) Act, 1992. Article 243G therein lays down the powers, authority and responsibilities of Panchayats thus:
243G. Powers, authority and responsibilities of Panchayats.- Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayat with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers, and responsibilities upon Panchayats at the appropriate level subject to such conditions as may be specified therein, with respect to:
(a) the preparation of plans for economic development and social justice;
(b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule.
The Preamble to the Kerala Panchayat Raj Act 1994 is a reproduction of Article 243G and reads thus:
Preamble.- Whereas it is expedient to replace the present enactments relating to Panchayats and district councils by a comprehensive enactment to establish a three-tier Panchayat Raj System in the State in line with the Constitution (Seventy-third Amendment) Act, 1992, for securing a greater measure of participation of the people in planned development and in local governmental affairs, by constituting village, block and district Panchayats-,
And endow such Panchayats with such powers and authority to enable them to function as institutions of self-Government
And entrusting such Panchayats the preparation of plans and implementation of schemes for economic development and social justice including the implementation of schemes in relation to the matters listed in the Eleventh Schedule to the Constitution.
Section 5 of the Act deals with incorporation and administration of Panchayats thus:
5. Incorporation and administration of Panchayats.-
(1) Every Panchayat shall be a body corporate by the name of the Panchayat specified in the notification issued under Section 4 shall have perpetual succession and a common seal, and shall, subject to any restriction or qualification imposed by or under this Act or any other law, be vested with the capacity of suing or being sued in its corporate name, of acquiring, holding and transferring property, movable or immovable, of entering into contracts, and of doing all things necessary, proper or expedient for the purposes for which it is constituted.
(2) A District Panchayat, a Block Panchayat and a Village Panchayat shall exercise such powers, perform such functions and duties and shall have such responsibilities and authorities as are provided by or under this Act or any other law for the time being in force.
Powers, duties and functions of the Village Panchayat are enumerated in Section 166 thus:
166. Powers, duties and functions of Village Panchayat- (1) [xx] it shall he 38 duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of the matters enumerated in the Third Schedule:
Provided that it shall be the duty of the Village Panchayat to render services to the inhabitants of the Village Panchayat area in respect of the matters enumerated as mandatory functions in the Third Schedule.
(2) Subject to the other provisions of this Act and the guidelines and assistance financial technical or otherwise, of the Government, the Village Panchayat shall have exclusive power to administer the matters enumerated in tie Third Schedule [and to prepare and implement schemes relating thereto for economic development and social justice].
(3) Village Panchayat shall also have powers to enhance employment facilities and to undertake developmental activities and to start manpower banks, under the leadership of the Village Panchayats.
25. As an institution of self-Government, subject, of course, to the restrictions imposed by the Act the Grama Panchayat should be the repository of all original powers in respect of the functions of the Panchayat Like in the case of a democratic Government, the ultimate power should vest with the Panchayat Committee. Therefore, like a legislature the Panchayat Committee should have powers to annul the action of the executive by a legislative process, which in the case of a Panchayat is passing of a resolution by the Committee.
26. The Secretary of the Panchayat is the executive head. Of course, he is a Government servant Ultimate disciplinary control over him vests with the Government, although the Panchayat Committee has powers to impose minor penalties on him as provided under Section 179(5) of the Act. But as far as the affairs of the Panchayat are concerned, the actions of the Secretary are not beyond the control of the Panchayat altogether. Of course, when the Secretary acts within jurisdiction, the Panchayat shall not interfere with his functions, as provided in Section 185B of the Act.
27. It is true that in respect of certain matters, the action of the Secretary is appealable only to the Tribunal. That does not take his actions completely out of the supervisory powers of the Panchayat Committee. As the elected body of the Panchayat, at least in matters affecting the welfare of the Panchayat and the people, the Panchayat Committee should have control over the actions of the Secretary and the Secretary cannot have unbridled powers even beyond the reach of the Panchayat Committee. When the Panchayat Committee is the one vested with the ultimate power of administration of the Panchayat the Panchayat Committee should have powers to annul actions of the Secretary which are without jurisdiction or are against the welfare of the Panchayat itself. To that extent, the decision of the Tribunal cannot be upheld.
28. The Tribunal has entered a sweeping decision that the Panchayat Committee has no jurisdiction to pass any resolution to cancel or revoke a building permit, which cannot be endorsed- Take for example a case where the Secretary in collusion with a party grants a permit for construction of a building on property belonging to the Panchayat. The party obtaining the permit will not challenge it There is nobody else aggrieved by the permit. Then can it be said, that the Panchayat does not have jurisdiction to annul that permit? I think not Therefore, I am of opinion that within that limited sphere the powers to annul orders of the Secretary has to be necessarily conceded to the Panchayat Committee. Section 185B shall not stand in the way of the Panchayat committee exercising such powers and Section 185B shall apply only to actions of the Secretary within the four corners of his jurisdiction and cannot extent to actions without jurisdiction.
29. But, as I said earlier, such powers of the Panchayat Committee is only in a limited sphere and in exercise of such powers the Panchayat Committee cannot, as a superior body, scrutinize every statutory function of the Secretary, other than in exercise of its appellate powers conferred as per statute. If the Secretary exercises his powers within the four comers of the statute; then the Panchayat Committee cannot interfere with it, except in an appeal as provided under the Act.
30. But, in this case, I have no doubt that the Panchayat exceeded its powers in annulling the permit on its mm, insofar as the Secretary had, in granting the permit, acted within his jurisdiction and as I have held there is no sustainable ground on which the Panchayat Committee could have interfered with it Therefore, the annulling of the resolution of the Panchayat and the direction issued by the President to the 4th respondent by the Tribunal cannot be faulted. Therefore, except for clarifying the law on the subject as above., I am not interfering with Ext. P7 order of the Tribunal.
31. Since I have held that the resolutions of the Panchayat are unsustainable, there cannot be any question of directing implementation of the same, which is the prayer in W.P.(C) No. 4282 of 2009.
Accordingly, both the writ petitions are hereby dismissed.