Kerala High Court
Cherpulassery Grama Panchayat vs State Of Kerala
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
TUESDAY, THE 31ST DAY OF MAY 2016/10TH JYAISHTA, 1938
OP.No. 5675 of 2003 (A)
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PETITIONER(S):
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CHERPULASSERY GRAMA PANCHAYAT,
CHERPULASSERY P.O., PALAKKAD,
REPRESENTED BY ITS PRESIDENT.
BY ADV. SRI.K.P.DANDAPANI (SR.)
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY SECRETARY TO GOVERNMENT,
LOCAL SELF GOVERNMENT (C) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2. SHRI T.MUHAMMEDKUTTY ALIAS MANI,
THENAMMOCHICKAL, KARALMANNA, PALAKKAD DISTRICT.
3. SHRI E.MOHAMMED KUTTY,
EARIPURATHU HOUSE, P.O. NELLAIYA, PALAKKAD DISTRICT.
4. NARAYANAN,
S/O. RAMAN, R.S.BAKERY, KALLIKKUNNATHU,
CHERPULASSERY P.O., OTTAPPALAM TALUK,
PALAKKAD DISTRICT.
R1 BY ADV. SRI.V.K.BEERAN, ADDL.ADVOCATE GENERAL
R2 BY ADV. SRI.G.SREEKUMAR (CHELUR)
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD
ON 31-05-2016, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
msv/
OP.No. 5675 of 2003 (A)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1 TRUE COPY OF ORDER DATED 25-11-1998 IN M.P.NO.10/1998
PASSED BY THE SUB DIVISIONAL MAGISTRATE, OTTAPALAM.
P2 TRUE COPY OF JUDGMENT DATED 15-10-99 IN O.S.NO. 95/1999 ON
THE FILE OF MUNSIFF COURT, OTTAPALAM.
P3 TRUE COPY OF THE COMPLAINT PREFERRED BY THE PETITIONER
BEFORE THE PETITIONER BEFORE THE SUB INSPECTOR OF POLICE,
CHERPULASSERY ON 31-1-1999 ALONG WITH FIRST INFORMATION
STATEMENT.
P4 TRUE COPY OF CRIMINAL CASE NO. 17/2001 DT. 1-10-2002 ON THE
FILE OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT,
OTTAPALAM.
P5 TRUE COPY OF JUDGMENT OF THIS HONOURABLE COURT
DATED 5-4-2002 IN O.P.NO. 953/2002.
P6 TRUE COPY OF ORDER NO. G.O.(RT)NO. 1874/2002/L&GO
DATED 4-7-2002 OF THE 1ST RESPONDENT ISSUED TO THE
PETITIONER.
P7 TRUE COPY OF COMMON JUDGMENT DATED 9-9-2002 IN
O.P.NO. 19454/2002(N) OF THIS HONOURABLE COURT.
P8 TRUE COPY OF RESOLUTION DATED 17-10-2002 OF THE PETITIONER
PANCHAYAT.
P9 TRUE COPY OF ORDER NO. 46941/C1/02 DT. 1-2-2003 ISSUED BY
THE 1ST RESPONDENT.
P10 TRUE COPY OF ORDER NO. 434/03 DT. 1-2-2003 ISSUED BY THE
1ST RESPONDENT.
RESPONDENT(S)' EXHIBITS:
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NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
A. MUHAMED MUSTAQUE, J.
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O.P.No.5675 of 2003
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Dated this the 31st day of May, 2016
JUDGMENT
The resolution of the Panchayat not to allow a way leading to a shopping complex room of the 2nd respondent, has been interfered by the Government by Exts.P9 and P10. This is under challenge in this writ petition.
2. The Government by invoking power under Section 191 (2) of the Kerala Panchayat Raj Act, 1994 suspended the resolution by referring the matter for consideration by the Ombudsman under Section 271G of the Act. It appears that the matter is now pending before the Ombudsman.
3. The learned counsel for the Panchayat/ the writ petitioner would submit that, since the claim of the writ petitioner has been turned down in a civil case, he cannot approach the Government for cancellation of the resolution. Ext.P2 is the judgment in O.S.No.95/1999. However, the 2nd respondent submits that there is no 2 O.P.No.5675 of 2003 procedural infirmity with the decision of the Government. The ultimate issue as against the resolution can be decided by the Ombudsman. Therefore, this Court need not interfere with such a decision.
4. In this context, it is appropriate to refer to Section 191 of Kerala Panchayat Raj Act, 1994.
"Power of cancellation and suspension of resolutions etc.--(1) Government may either suo mottu 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.
(2) Before cancelling or amending a resolution or decision as per sub-section (1), the Government may refer the matter for consideration either of the Ombudsman constituted under Section 271G or the Tribunal constituted under Section 271 and the Ombudsman or the Tribunal, as the case may be, 3 O.P.No.5675 of 2003 after giving the Panchayat an opportunity of being heard, send a report to the Government with its conclusions and the Government may, on its basis cancel, amend or confirm the resolution or decision.
(3) If another remedy is available to the petitioner through the Tribunal under Section 276, the Government shall not consider any petition for cancelling or amending any resolution or decision of the Panchayat.
(4) If Government, consider that a resolution or decision of the Panchayat has to be cancelled or amended as per sub-section (7) it may suspend such resolution or decision temporarily and may direct the Panchayat to defer its implementation till the final disposal after the completion of the procedure under sub-section (2)].
5. Going by sub-section 3 of Section 191, the only embargo for the Government for suspending resolution, is if 2nd respondent is having a remedy before the Tribunal under Section 276 of the Panjayat Raj Act. In this case, the resolution is not an order or such decision which could be challenged before the Tribunal. In that view of the matter, this Court is of the view that the Government is justified in suspending resolution pending reference to Ombudsman.
4 O.P.No.5675 of 2003
6. In such circumstances, the following directions are issued:
If the reference is pending before the Ombudsman, the Ombudsman shall dispose the reference within a period of three months after hearing the petitioner as well as the 2nd respondent. Certainly, the Ombudsman shall advert to Ext.P2 judgment of the civil court while taking a decision.
Sd/-
A. MUHAMED MUSTAQUE JUDGE rsr