Vanaraj Vs. the Santhanpara Grama Panchayath - Court Judgment

SooperKanoon Citationsooperkanoon.com/1142062
CourtKerala High Court
Decided OnMay-22-2014
JudgeHON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR
AppellantVanaraj
RespondentThe Santhanpara Grama Panchayath
Excerpt:
in the high court of kerala at ernakulam present: the hon'ble the chief justice dr. manjula chellur & the honourable smt. justice p.v.asha thursday, the22d day of may20141st jyaishta, 1936 wa.no. 386 of 2014 () ---------------------------------- (against the judgment in wp(c).no.24840/2013 dated0801-2014) ---------------------------- appellant/petitioner: ------------------------------------------- vanaraj,aged52years, s/o. sundaran chettiyar, santhi bhavan, kanalmukkappu,peethotti p.o., santhanpara, idukki district. by advs.sri.george sebastian sri.byju kuriakose respondent(s)/respondents: ---------------------------------------------------- 1. the santhanpara grama panchayath, represented by its secretary, santhanpara, idukki district-685 619.2. the secretary, santhanpara grama panchayath, santhanpara, idukki district-685 619.3. the santhanpara service co-operative bank, represented by its secretary, santhanpara, idukki district-685 619. r1 & r2 by adv. smt.molly jacob smt.aysha youseff r3 by adv. sri.ajith prakash this writ appeal having been finally heard on2205-2014, the court on the same day delivered the following: sts manjula chellur, c.j.& p.v.asha,j.- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - w.a.no.386of2014- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - dated this the 22nd day of may, 2014 judgment manjula chellur, c.j.present appeal is directed against judgment of learned single judge dated 8.1.2014. appellant is none other than writ petitioner who approached learned single judge challenging exts.p2(a), p3(a) and p4(a). it is not in dispute that appellant petitioner is also an elected member of first respondent grama panchayat. first respondent grama panchayat apparently has constructed first floor of poopara shopping complex belonging to first respondent panchayat by putting up four rooms. various institutions approached first respondent with a request to let out the said rooms on lease basis to them. ultimately, by virtue of a resolution, respondents 1 and 2 decided to hand over all the four rooms to third respondent co-operative bank. however,admittedly petitioner was a descending member so far as the above said resolution concerned. according to petitioner, this decision of first and second respondents to lease w.a.no.386 of2014:2. : property to third respondent co-operative bank is without adhering to procedure contemplated under rule 11 of kerala panchayat raj (acquisition and disposal of property) rules, 2005. when petitioner approached learned single judge, respondents raised objections contending that writ petition itself is not maintainable as petitioner also took part in decision making process. therefore, he is not entitled to challenge resolution in question. they also refer to section 191(1) of act to contend that remedy open to petitioner was to approach government challenging the decision of the local body, i.e. panchayat in question. learned judge, after considering merits of both the parties, ultimately opined that rule 7(1) provides that panchayat is authorized to construct buildings and to give them on rent to public in accordance with the provisions of act and rules and therefore third respondent not being a public, there is no lapse on the part of first and second respondents. so far as maintainability, he opined that writ petition is not maintainable and accordingly writ petition was dismissed. aggrieved by the said judgment of learned single judge, appellant is before us. w.a.no.386 of2014:3. :2. learned counsel for appellant has brought to notice of bench original rules which are in malayalam and also pointed out defect crept in so far as english translation of above said rules. on reading english version and malayalam version of rules, there is apparently mistake so far as translation into english. rule 11 as per english version reads as under: rule 11: transfers to be either in public auction or through tenders:- the transfers of the property of the panchayat through sale, except renewal of licences, rehabilitation of licensees, granting of lease, letting out on rent, shall either be in public auction or by inviting tenders.3. the above rule clearly indicates that except sale, panchayat has no obligation to follow transfer of property either in public auction or by inviting tenders. in other words, it says so far as renewal of licenses, rehabilitation of licensees and granting of lease, there is no need to follow the procedure of transfer by public auction or by inviting tenders. when we go through malayalam version it reads as follows:11. eh5n^xbz ixxcg\\gn^ f?xagy^ na6^l_x" &o_x_acfnkm _ h\xxxa5{af? iadaaw, h\xxx_5f{ iahxg_ux_m_aw .k_u2_f5oau u_wih, i^gj_ha hw5w, u^?5omam f5^?aaw .k_u nag6h if^oja5{af? uxqa h5n^xbz ixxcg\\" u]_go^ f?xav nag6hgo^ &o_x_gaid^cm. w.a.no.386 of2014:4. :4. it clearly indicates that only for renewal of licenses and for rehabilitation of licensees, there is no need to follow the procedure of transfer by public auction or by inviting tenders. but transfers of property of panchayat through sale, granting of lease and letting out on rent shall either be in public auction or by inviting tenders. learned government advocate also accepts said mistake crept in english version of rules in the gazette. by reading malayalam version, it is very clear if property is transferred by way of lease for first time it has to be either by public auction or by inviting tenders. apparently said procedure is not followed by respondent panchayat as they have fixed rent by following rates adopted by public works department. apparently, it is not the case of respondents 1 and 2 that they are not bound by the procedure to be followed as contemplated under rule 11, that is either by auction or by inviting tenders. by going through the facts and material on record, a case is clearly made out that procedure contemplated under rule 11 is not at all followed by respondent panchayat. there is no other provision which indicates that only in case of transfer to a public such procedure is contemplated. rule 11 says w.a.no.386 of2014:5. : transfers to be either in public auction or through tenders whenever property of panchayat is let out either on lease or letting on rent or by sale. therefore, we are of the opinion that opinion of learned single judge that third respondent not being a public no such procedure is applicable is erroneous.5. coming to maintainability of writ petition, section 191(1) of the act reads as under: "191. power of cancellation and suspension of resolutions etc.-- (1) government may either suo motu or, on a reference by president, secretary or a member, or on a petition received from a citizen, cancel or vary a resolution passed or decision taken by the panchayat if in their opinion such decision or resolution -- a) is not legally passed or taken; or b) is in excess of the powers conferred by this act or any other law or its abuse; or c) is likely to endanger human life, health, public safety, communal harmony or may lead to riot or quarrel; or d) is in violation of the directions or provisions of grant issued by government in the matter of implementing the plans, schemes or programmes." w.a.no.386 of2014:6. :6. reading of above section makes it clear that even a member of panchayat can challenge decision of panchayat or seek modification or cancellation of decision. as a matter of fact, any citizen aggrieved by such decision of panchayat can approach government seeking remedy as contemplated under section 191(1) of the act. accordingly, petitioner taking part in decision making process will not disentitle him to challenge said decision when a third party can challenge such a decision. in the present case, challenge is not on the ground that there was no proper decision making process. challenge is based on statutory provisions i.e., violation of rule 11 of above said rules. in the light of above observation, we are of the opinion, writ petition was not maintainable and petitioner ought to have approached government as provided under section 191(1) of act. accordingly, appeal is dismissed observing that petitioner appellant can approach government seeking cancellation of resolution in question. learned counsel for appellant undertakes to approach authorities concerned as contemplated under section 191(1) of act within two weeks from the date of receipt of a copy of judgment. respondent state shall dispose of w.a.no.386 of2014:7. : representation or application, if any made by appellant, within two months from the date of receipt of application. till a decision is taken by government, first and second respondents shall not hand over premises to third respondent. manjula chellur, chief justice p.v.asha, judge jes
Judgment:

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE SMT. JUSTICE P.V.ASHA THURSDAY, THE22D DAY OF MAY20141ST JYAISHTA, 1936 WA.No. 386 of 2014 () ---------------------------------- (AGAINST THE JUDGMENT

IN WP(C).NO.24840/2013 DATED0801-2014) ---------------------------- APPELLANT/PETITIONER: ------------------------------------------- VANARAJ,AGED52YEARS, S/O. SUNDARAN CHETTIYAR, SANTHI BHAVAN, KANALMUKKAPPU,PEETHOTTI P.O., SANTHANPARA, IDUKKI DISTRICT. BY ADVS.SRI.GEORGE SEBASTIAN SRI.BYJU KURIAKOSE RESPONDENT(S)/RESPONDENTS: ---------------------------------------------------- 1. THE SANTHANPARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, SANTHANPARA, IDUKKI DISTRICT-685 619.

2. THE SECRETARY, SANTHANPARA GRAMA PANCHAYATH, SANTHANPARA, IDUKKI DISTRICT-685 619.

3. THE SANTHANPARA SERVICE CO-OPERATIVE BANK, REPRESENTED BY ITS SECRETARY, SANTHANPARA, IDUKKI DISTRICT-685 619. R1 & R2 BY ADV. SMT.MOLLY JACOB SMT.AYSHA YOUSEFF R3 BY ADV. SRI.AJITH PRAKASH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON2205-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: sts MANJULA CHELLUR, C.J.

& P.V.ASHA,J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No.386OF2014- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 22nd day of May, 2014 JUDGMENT

Manjula Chellur, C.J.

Present appeal is directed against judgment of learned Single Judge dated 8.1.2014. Appellant is none other than writ petitioner who approached learned Single Judge challenging Exts.P2(a), P3(a) and P4(a). It is not in dispute that appellant petitioner is also an elected member of first respondent Grama Panchayat. First respondent Grama Panchayat apparently has constructed first floor of Poopara Shopping Complex belonging to first respondent Panchayat by putting up four rooms. Various institutions approached first respondent with a request to let out the said rooms on lease basis to them. Ultimately, by virtue of a resolution, respondents 1 and 2 decided to hand over all the four rooms to third respondent Co-operative Bank. However,admittedly petitioner was a descending member so far as the above said resolution concerned. According to petitioner, this decision of first and second respondents to lease W.A.No.386 OF2014:

2. : property to third respondent Co-operative Bank is without adhering to procedure contemplated under Rule 11 of Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. When petitioner approached learned Single Judge, respondents raised objections contending that writ petition itself is not maintainable as petitioner also took part in decision making process. Therefore, he is not entitled to challenge resolution in question. They also refer to Section 191(1) of Act to contend that remedy open to petitioner was to approach Government challenging the decision of the local body, i.e. Panchayat in question. Learned Judge, after considering merits of both the parties, ultimately opined that Rule 7(1) provides that Panchayat is authorized to construct buildings and to give them on rent to public in accordance with the provisions of Act and Rules and therefore third respondent not being a public, there is no lapse on the part of first and second respondents. So far as maintainability, he opined that writ petition is not maintainable and accordingly writ petition was dismissed. Aggrieved by the said judgment of learned Single Judge, appellant is before us. W.A.No.386 OF2014:

3. :

2. Learned counsel for appellant has brought to notice of bench original Rules which are in Malayalam and also pointed out defect crept in so far as English translation of above said Rules. On reading English version and Malayalam version of Rules, there is apparently mistake so far as translation into English. Rule 11 as per English version reads as under: Rule 11: Transfers to be either in public auction or through tenders:- The transfers of the property of the Panchayat through sale, except renewal of licences, rehabilitation of licensees, granting of lease, letting out on rent, shall either be in public auction or by inviting tenders.

3. The above Rule clearly indicates that except sale, Panchayat has no obligation to follow transfer of property either in public auction or by inviting tenders. In other words, it says so far as renewal of licenses, rehabilitation of licensees and granting of lease, there is no need to follow the procedure of transfer by public auction or by inviting tenders. When we go through Malayalam version it reads as follows:

11. eh5N^xBZ IxXcg\\gN^ f?XAgy^ Na6^L_x" &O_x_ACfNKm _ h\XXXa5{af? IaDaAW, h\XXX_5f{ IaHxG_UX_M_AW .K_U2_f5OaU U_WIH, I^GJ_Ha HW5W, U^?5OmAm f5^?aAW .K_U Nag6H IF^OJa5{af? UXqa h5N^xBZ IxXcg\\" U]_gO^ f?XAV Nag6HgO^ &O_x_gAID^Cm. W.A.No.386 OF2014:

4. :

4. It clearly indicates that only for renewal of licenses and for rehabilitation of licensees, there is no need to follow the procedure of transfer by public auction or by inviting tenders. But transfers of property of Panchayat through sale, granting of lease and letting out on rent shall either be in public auction or by inviting tenders. Learned Government Advocate also accepts said mistake crept in English version of Rules in the gazette. By reading Malayalam version, it is very clear if property is transferred by way of lease for first time it has to be either by public auction or by inviting tenders. Apparently said procedure is not followed by respondent Panchayat as they have fixed rent by following rates adopted by Public Works Department. Apparently, it is not the case of respondents 1 and 2 that they are not bound by the procedure to be followed as contemplated under Rule 11, that is either by auction or by inviting tenders. By going through the facts and material on record, a case is clearly made out that procedure contemplated under Rule 11 is not at all followed by respondent Panchayat. There is no other provision which indicates that only in case of transfer to a public such procedure is contemplated. Rule 11 says W.A.No.386 OF2014:

5. : transfers to be either in public auction or through tenders whenever property of Panchayat is let out either on lease or letting on rent or by sale. Therefore, we are of the opinion that opinion of learned Single Judge that third respondent not being a public no such procedure is applicable is erroneous.

5. Coming to maintainability of writ petition, Section 191(1) of the Act reads as under: "191. Power of cancellation and suspension of resolutions etc.-- (1) Government may either suo motu or, on a reference by President, Secretary or a member, or on a petition received from a citizen, cancel or vary a resolution passed or decision taken by the Panchayat if in their opinion such decision or resolution -- a) is not legally passed or taken; or b) is in excess of the powers conferred by this Act or any other law or its abuse; or c) is likely to endanger human life, health, public safety, communal harmony or may lead to riot or quarrel; or d) is in violation of the directions or provisions of grant issued by Government in the matter of implementing the plans, schemes or programmes." W.A.No.386 OF2014:

6. :

6. Reading of above Section makes it clear that even a member of Panchayat can challenge decision of Panchayat or seek modification or cancellation of decision. As a matter of fact, any citizen aggrieved by such decision of Panchayat can approach Government seeking remedy as contemplated under Section 191(1) of the Act. Accordingly, petitioner taking part in decision making process will not disentitle him to challenge said decision when a third party can challenge such a decision. In the present case, challenge is not on the ground that there was no proper decision making process. Challenge is based on statutory provisions i.e., violation of Rule 11 of above said Rules. In the light of above observation, we are of the opinion, writ petition was not maintainable and petitioner ought to have approached Government as provided under Section 191(1) of Act. Accordingly, appeal is dismissed observing that petitioner appellant can approach Government seeking cancellation of resolution in question. Learned counsel for appellant undertakes to approach authorities concerned as contemplated under Section 191(1) of Act within two weeks from the date of receipt of a copy of judgment. Respondent State shall dispose of W.A.No.386 OF2014:

7. : representation or application, if any made by appellant, within two months from the date of receipt of application. Till a decision is taken by Government, first and second respondents shall not hand over premises to third respondent. MANJULA CHELLUR, Chief Justice P.V.ASHA, Judge jes