Kerala High Court
Mallappally Grama Panchayath vs Zeenath Beevi on 31 December, 2007
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI
FRIDAY, THE 20TH DAY OF JUNE 2014/30TH JYAISHTA, 1936
WP(C). No.32033 of 2008 (L)
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PETITIONER(S):
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MALLAPPALLY GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, MALLAPPALLY P.O.,
PATHANAMTHITTA DISTRICT.
BY ADVS.DR.K.P.SATHEESAN
SRI.K.K.GOPINATHAN NAIR
SRI.M.R.JAYAPRASAD
SRI.P.MOHANDAS (ERNAKULAM)
RESPONDENT(S):
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1. ZEENATH BEEVI, VANCHIPUZHA VEEDU,
PADUMON P.O., KODUMUDISSERY,KOTTANGAL,
MALLAPPALLY,PATHANAMTHITTA DISTRICT.
2. RACHEL K.VARGHESE, KEECHERIL VEEDU,
PARIYARAM MURI, MALLAPPALLY,
PATHANAMTHITTA DISTRICT.
R1 BY ADVS. SRI.G.P.SHINOD
SRI.RAM MOHAN.G.
SRI.MANU V.
R2 BY ADV. SRI.S.SUBHASH CHAND
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20-06-2014,
ALONG WITH WPC. NOS. 32935/2008 & 597/2011, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
WP(C). No.32033 of 2008 (L)
APPENDIX
PETITIONER'S EXHIBITS:-
P1:- TRUE COPY OF THE DECISION TAKEN BY THE PANCHAYAT COMMITTEE AT ITS
MEETING HELD ON 28.12.2007.
P2:- TRUE COPY OF THE NOTICE NO.C8-1748/07 DATED 31.12.2007 ISSUED BY THE
PETITIONER.
P3:- TRUE COPY OF THE APPLICATION FOR LICENCE FILED BY V. A. SIDDIQUE
MUSALIAR DATED 5.8.2005.
P4:- TRUE COPY OF THE REPLY GIVEN BY THE PETITIONER FOR THE FIRST
RESPONDENT'S HUSBAND DATED 9.8.2005.
P5:- TRUE COPY OF THE REPLY GIVEN BY THE FIRST RESPONDENT'S HUSBAND
DATED 14.8.2005.
P6:- TRUE COPY OF THE REPLY GIVEN BY THE FIRST RESPONDENT'S HUSBAND
DATED 31.8.2005.
P7:- TRUE COPY OF THE JUDGMENT DATED 31.7.2006 IN W.P(C) NO.28950/2005.
P8:- TRUE COPY OF THE ORDER NO.C1-11/2005 DATED 26.10.2006 PASSED BY THE
PETITIONER.
P9:- TRUE COPY OF THE ORDER OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT
INSTITUTIONS, THIRUVANANTHAPURAM DATED 11.8.2008 IN APPEAL NO.16/2008.
RESPONDENT'S EXHIBITS:- NIL
KRJ
/True Copy/
P.A to Judge
'C.R'
=W.P=A.V.RAMAKRISHNA= = = = = = =
PILLAI, J.
= (C)=Nos.32033 & 32935 of 2008 &
= = = = = = =
W.P(C) No.597 of 2011
= =Dated= = = = = = = = = = = = = = =
= =
this the 20th day of June, 2014
JUDGMENT
These writ petitions relate to the orders passed by the Tribunal for Local Self Government Institutions against the decision taken by the Mallappally Grama Panchayat.
2. W.P(C) No.32033/2008 is filed by the aforesaid Panchayat. W.P(C) No.32935/2008 is filed by the owner of the building in Sy. No.382/8 of Mallappally village. W.P(C) No.597/ 2011 is also filed by the same petitioner, against the order in a revision by the Tribunal for Local Self Government Institutions.
3. In W.P(C) No.32033/2008 by the Panchayat, they would allege that they have issued notice to the first respondent and her children to stop the business conducted in the rooms belonging to the second respondent which according to them, was being conducted without any licence from the Panchayat. The occupant was also directed to pay penalty for carrying on WP(C)s.32033&32935/08& 597/11 -:2:- the business without licence as provided under the Kerala Panchayat Raj Act. However, on appeal before the Tribunal for Local Self Government Institutions, it was found that the Panchayat cannot recover penalty and directed the Panchayat to issue licence to the occupant. Therefore, the Panchayat has challenged the said order which is produced as Ext.P9 in that writ petition.
4. As already stated, W.P(C) No.32935/2008 is by the owner of shop room. She was arrayed as the second respondent in the writ petition filed by the Panchayat. In this writ petition, she would allege that one Siddique Musaliar, the late husband of the second respondent (first respondent in W.P(C) 32033/08) was conducting business in three shop rooms belonging to the petitioner without obtaining licence from the Panchayat. However, pursuant to Ext.P5 judgment of this Court, the first respondent reconsidered the matter and Ext.P6 resolution was passed by the Panchayat and decided to issue notice to the second respondent and other legal heirs of late Siddique WP(C)s.32033&32935/08& 597/11 -:3:- Musaliar and the said business was being conducted unauthorisedly. This was followed by Ext.P7 notice to the second respondent.
5. The petitioner alleges that, however, the second respondent alone challenged the validity of Exts.P6 and P7 proceedings by way of Ext.P8 appeal before the Tribunal for Local Self Government Institutions which resulted in the order under challenge in W.P(C) No.32033/2008. This petitioner also alleges that the said decision is erroneous and, therefore, she has sought to quash the same which is produced as Ext.P11.
6. The same petitioner has filed W.P(C) No.597/2011 challenging the order passed by the Tribunal for Local Self Government Institutions in R.P No.5 of 2010 (Ext.P16) filed by her before the said Tribunal. In the said revision, the revision petitioner challenged Ext.P14 communication received from the respondent Panchayat informing her that the Panchayat has rejected her appeal by Ext.P13 resolution. She alleges that Ext.P13 resolution was not served and accordingly, she WP(C)s.32033&32935/08& 597/11 -:4:- committed a bona fide mistake and submitted an appeal against Ext.14 order dated 9.11.2009 under Section 276 of the Kerala Panchayat Raj act, 1994 which was returned to her for re- presentation as revision petition. In the meantime, there occurred a delay of more than one month. The said delay was computed taking into account the service of Ext.P14 communication of the petitioner on 13.11.2009. The petitioner alleges that a revision petition ought to have been filed against Ext.P13 resolution as the same was the decision taken by the Panchayat on her appeal. According to her, as the same was not served, there was no delay in the matter of submitting the revision and the Tribunal did not consider the said fact and the same has resulted in the impugned order dismissing the revision.
7. In that writ petition, the Panchayat has filed a counter stating that the Tribunal has no power to condone the delay beyond 30 days. They would contend that the appeal filed by the writ petitioner was against the application for licence filed by WP(C)s.32033&32935/08& 597/11 -:5:- the second respondent. It was contended that the committee rejected the appeal in view of the directions in Ext.P11 judgment wherein the Tribunal was directed to consider the application for licence without insisting for production of consent from the landlord.
8. It is also pointed out that the petition which was filed as an appeal and was later converted into revision, was not supported by any application to condone the delay. They would contend that so long as the Appellate Oder passed by the Tribunal for Local Self Government Institutions is not annulled, the petitioner was bound to issue licence without insisting for a consent from the petitioner.
9. Arguments have been heard.
10. One Siddique Musaliar was conducting business in three shop rooms in Sy. No.382/8 of Mallappally village belonging to the petitioner in W.P(C) No.32935/2008 who is hereinafter referred to as party petitioner. The Mallappally Panchayat, the petitioner in W.P(C) No.32033/2008 which is WP(C)s.32033&32935/08& 597/11 -:6:- hereinafter referred to as the local authority, after hearing the legal heirs of the occupants of the room in question decided to issue notice to them to stop functioning of the shops. This was pursuant to the judgment of this Court in W.P(C) No.36304/ 2007. Thereafter, the local authority issued Exts.P6 and P7 notices to the legal heirs of Siddique Musaliar which were challenged by the widow before the Tribunal for Local Self Government in appeal which resulted in the order impugned in the first two writ petitions.
11. It is relevant to note that the other legal heirs have not challenged Ext.P6 resolution and Ext.P7 proceedings. In the order in appeal which is impugned in two writ petitions the Tribunal found that the local authority lacks jurisdiction to impose any fine for violating the provisions contained in the Kerala Panchayat Act (Issue of Licence to Dangerous and Offensive Trades and Factories) Rules, 1996 (hereinafter referred to as the Rules). This finding is seriously challenged by the local authority and the party petitioner. It can be seen from the WP(C)s.32033&32935/08& 597/11 -:7:- schedule appended to the Rules that Entry No.147 deals with the conduct of shops relating to stationary and fancy items and entry 137 relates to the manufacture and sale of plastic items. The conduct of cool bar has been covered by entries 115 & 133.
12. Admittedly, the business run by late Siddique Musaliar as well as his legal heirs would come under the aforesaid category. That being so, the licenses issued by the local authority is an inevitable requirement for the legal conduct of business in the aforesaid items. It is readable from Exts.P1, P4, P6 and P7 produced in W.P(C) No.32935/2008 that late Siddique Musaliar and his widow who is the second respondent in the said writ petition were conducting the business without there being a D&O licence for years. The issue of licence by the local authority is regulated by the provisions contained in the Rules made mention of above. As per Section 255 of the Kerala Panchayat Raj Act, violation of the provisions contained in the said Rules, including conduct of business without valid licence is liable to be visited with imposition of fine. Therefore, the local authority is WP(C)s.32033&32935/08& 597/11 -:8:- competent to impose fine for such violation under Section 255 read with 264 of the Kerala Panchayat Raj Act, 1994. Rule 26 of empowers the Panchayat to levy fine in respect of violation of the provisions of the Rules under Section 255. Rule 26 reads as follows:
"26. Penalties for violation of rules.- The Panchayat shall, for the violators of these rules, impose penalties under Section 255 of the Act."
13. In the impugned order, the learned Tribunal has found that imposition of fine for violation of the provisions contained in the Rules could be done only by a competent criminal court and that too, after initiation of prosecution proceedings. In my view, the said finding is incorrect. It is evident from Section 264 of the Panchayat Raj Act, that fine can be imposed either by the Panchayat directly or by the Court as the case may be under the Act. Section 264 reads as follows;
"264. Fines to be credited to Panchayat.- All fines imposed by the Panchayat or the Court under this Act or any rule or bye-law made thereunder shall on realisation be credited to the fund of the Panchayat WP(C)s.32033&32935/08& 597/11 -:9:- concerned in respect of offences committed within the jurisdiction of such Panchayat."
(emphasis supplied)
14. In the case in hand, Ext.P6 has imposed a fine on the occupants. The finding of the learned Tribunal in the impugned order that neither the Panchayat nor the Secretary was entitled to realise penalty/fine without initiation of prosecution as per law is liable to be quashed.
15. Consequent to the order of the Tribunal in the appeal, the occupants filed an application for licence which was considered and granted by the local authority. Against that, the party petitioner filed an appeal which was rejected by the local authority as there was a direction by the tribunal to grant licence without insisting for consent from the party petitioner. Aggrieved by the same, the party petition again filed an appeal which was returned for re-presentation as revision petition. However, as the same was not supported by a petition for condonation of delay, it was dismissed. It is against this order W.P(C) No.597/2011 is filed.
WP(C)s.32033&32935/08& 597/11 -:10:-
16. It is true that the petitioner committed a bona fide mistake and submitted an appeal against Ext.P14 order dated 9.11.2009. But the same was returned and it was re-presented as revision petition. In the meantime, there occurred a delay of more than one month as it was computed taking into account the service of Ext.P14 communication on the petitioner on 13.11.2009. As rightly pointed out by the learned counsel for the party petitioner that the revision petition ought to have been filed against Ext.P13 resolution as the same is the decision taken by the local authority on her appeal. The petitioner's case is that as the same was not served, there was no delay in submitting the same. I see valid force in the said submission. The learned Tribunal did not consider the salient factor of the issue and the same has resulted in the dismissal of the revision petition.
17. In this context, Rule 8(3) of the Tribunal For the Kerala Local Self Government Institutions Rules, 1999 assumes significance. As per the said rule, petitions are to be submitted before the Tribunal within thirty days from the date of notice or WP(C)s.32033&32935/08& 597/11 -:11:- order or proceedings against which the petition is filed or within ninety days in cases where decision has not been taken within sixty days of filing appeal before the Local Self Government Institutions. However, this provision makes it clear that the Tribunal may admit a petition submitted within one month after the said time limit, if the Tribunal was satisfied that there is sufficient reason for not submitting the petitioner within the time limit.
18. In the light of the above, it was submitted by the learned counsel appearing for the party petitioner that there is absolutely no necessity for filing any separate application for condonation of the delay. It was argued that the learned Tribunal has got authority of law to admit a petition within one month after the expiry of 30 days, provided the Tribunal is satisfied that there was sufficient reason for not acceding to the above time limit. Though the rule does not provide for filing of a separate petition for condonation of the delay, it is always advisable to file a petition to condone the delay also so that the WP(C)s.32033&32935/08& 597/11 -:12:- Tribunal can satisfy itself that there was sufficient reason for not submitting the petitioner within the time limit.
19. However, in the instant case, an appeal has been filed and the same was returned to the petitioner stating that a revision ought to have been filed. It is thereafter, the revision was submitted. Rule 11 of the aforesaid Rules deals with defective petitions. As per the said rule, the Tribunal may not entertain a petition that was not in compliance with the provisions of the Act and the Rules made thereunder. However, the Tribunal after recording the defects should return to the petitioner the petition for curing the defects and if the petitioner resubmits the petitioner within 15 days after rectifying the defects, the same should be considered as if it was duly furnished.
20. In this case, apparently the party petitioner due to an inadvertent omission, did not submit her appeal/revision with an application for condonation of delay. Hence, the same was defective in nature and Rule 11 would squarely be applicable to WP(C)s.32033&32935/08& 597/11 -:13:- such a fact situation. Had the revision petition been returned noticing the said defect, the petitioner would have got an opportunity to re-present the same along with an application to condone the delay. Under such circumstances, the learned Tribunal lacks the authority in law to dismiss the revision petition on the ground that no application for condonation of delay was submitted. Therefore, the order in revision in this writ petition calls for an interference.
In the result:
A) W.P(C) 32033/2008 and W.P(C) No.32935/2008 are allowed. B) The order of the Tribunal for Local Self Government Institutions in Appeal No.16/2008 (Ext.P9 in W.P(C) 32033/2008 and Ext.P11 in W.P(C) 32935/2008) are quashed.
C) W.P(C) No.597/2011 is allowed and Ext.P16 is quashed. D) The petitioner in W.P(C) No.597/2011 shall file a petition for condonation of the delay and in the event of filing such a petition, the same shall be considered by the Tribunal in the light of what is stated above.
WP(C)s.32033&32935/08& 597/11 -:14:- E) The matter is remitted back to the Tribunal for Local Self Government Institutions, for reconsideration of the entire issues, after affording the parties an opportunity of being heard. This shall be done within a period of three months from the date of receipt of a copy of this judgment. F) The parties shall mark appearance before the Tribunal on 01.07.2014.
Sd/-
A.V.RAMAKRISHNA PILLAI JUDGE krj /True Copy/ P.A to Judge