Kerala High Court
P.P. Lonappan vs Annamanada Grama Panchayath on 15 January, 2019
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY ,THE 15TH DAY OF JANUARY 2019 / 25TH POUSHA, 1940
WP(C).No. 25838 of 2018
PETITIONER/S:
1 P.P. LONAPPAN,
AGED 80 YEARS, S/O. PAULOSE, PARAKKA NARLERI,
KADUKUTTY VILLAGE, CHALAKKUDI TALUK,
ANNAMANADA P.O., THRISSUR.
2 GEORGE V.J.,
AGED 49 YEARS, S/O. JOHN, VETTIYADAN HOUSE,
ANNAMANADA P.O., THRISSUR.
3 SIRAJUDDEEN,
AGED 47 YEARS, S/O. ABDUL KHADER,
PULIKKAL HOUSE, MAMBRA, THRISSUR - 680 308.
4 GIRISH E.A.,
AGED 39 YEARS, S/O. ARAVINDAKSHAN,
EDATHIPARAMBIL HOUSE, ERAVATHOOR P.O., THRISSUR.
5 TENNY ANTONY,
AGED 43 YEARS, S/O. ANTONY, ATTOKKARAN HOUSE,
VYNTHALA, PALAYAMPARAMBU P.O., THRISSUR - 680 741.
6 JOMON JOHNY,
AGED 34 YEARS, S/O. JOHNY, KUDILINGAL HOUSE,
ANNAMANADA P.O., THRISSUR.
7 V.M. NOUSHAD,
AGED 54 YEARS, VATTATHAMURI HOUSE,
ANNAMANADA P.O., THRISSUR.
8 GEORGE M.P.,
AGED 62 YEARS, S/O. A.T.PAULOSE, ACHANDY,
ANNALLOOR P.O., THRISSUR - 680 731.
9 SAJINI P.K.,
AGED 36 YEARS, W/O. SIRAJUDDEEN P.A.,
PULIKKAL, MAMBRA, THRISSUR - 680 308.
10 PRAKASAN M.G.
AGED 54 YEARS, S/O. GOVINDAN, MULANGIL HOUSE,
MELADOOR P.O., KEEZHADOOR, THRISSUR - 680 741.
W.P.(C) No.25838 of 2018 2
11 THOMAS K.V.
AGED 47 YEARS, S/O. K.T. VARKEY, KOZHIPATTU HOUSE,
KUZHOOR P.O., KAKKULISSERY, THRISSUR.
12 PRIJU,
AGED 40 YEARS, S/O. ANTONY, EDATHIPARAMBIL,
CHERUVALOOR, KALLUR, PIN - 680 308.
13 WILSON,
AGED 47 YEARS, S/O. LONAPPAN, PARAKKAL HOUSE,
ANNAMANADA P.O., THRISSUR - 680 741.
14 SIVADASAN,
AGED 57 YEARS, MANGADATH HOUSE,
ANNAMANADA P.O., THRISSUR - 680 741.
15 BABU V.P.,
AGED 39 YEARS, S/O. PAPPACHAN, VETTIYADAN HOUSE,
ANNAMANADA P.O., THRISSUR.
BY ADVS.
SRI.BABU KARUKAPADATH
SMT.AMRIN FATHIMA
SMT.M.A.VAHEEDA BABU
SMT.V.R.LAKSHMI
SRI.E.M.ABDUL KHADER
SRI.K.M.FAISAL (KALAMASSERY)
SRI.MITHUN BABY JOHN
SRI.P.U.VINOD KUMAR
SRI.RAHUL ROY
RESPONDENT/S:
1 ANNAMANADA GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY, ANNAMANADA GRAMA
PANCHAYATH OFFICE, ANNAMANADA P.O.,
THRISSUR DISTRICT, PIN - 680 741.
2 THE SECRETARY,
ANNAMANADA GRAMA PANCHAYAT, ANNAMANADA GRAMA
PANCHAYATH OFFICE, ANNAMANADA P.O., THRISSUR
DISTRICT, PIN - 680 741.
BY ADVS.
SRI.O.D.SIVADAS, SC, ANNAMANADA GRAMA PANCHAYATH
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
15.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.25838 of 2018 3
JUDGMENT
This writ petition is filed by the petitioners seeking to declare that the decision of the 1st respondent Panchayat to enhance the rent by 20% for the financial year 2018-19, from the rent existing for the year 2017-18 is illegal, arbitrary and unreasonable, and to quash Exts.P11 and P2 notices directing the petitioners to remit the rent, failing which, steps will be taken to auction the building occupied by the petitioners. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioners are the lessees under the 1st respondent Panchayat with regard to the rooms occupied by them in a double storied building belonging to the 1st respondent Panchayat. They are conducting small trades like photo framing, cycle work, vegetable vending shop, stationery shops etc. etc. in order to eke out their livelihood. Petitioners are aggrieved by the enhancement of rent by 20% for the year 2018-19 without any justification. According to the petitioners, the area of the shop rooms are only 110 sq.ft. to 200 sq.ft. The rooms were let out to the petitioners on public auction. Ext.P1 bye-law provides for enhancement of rent on renewal only by a maximum of W.P.(C) No.25838 of 2018 4 5% every year. The rooms were let out proposing to start Panchayat Bus Stand in the adjacent property.
But the Bus Stand is now constructed in a far away place. In the last two years, Government Offices like Sub Treasury, KSEB office etc. situated in the building in question were also shifted to Mala. In all respects, the business is substantially reduced in the area. Therefore, according to the petitioners, the action of respondents enhancing the rent by 20% have put the petitioners into various prejudices and inconveniences.
3. The respondents have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioners. Among other contentions, it is stated that, the rent fixed is far below the PWD tariff rates. However, it is admitted that, as per Ext.P1 bye-law, enhancement only at the rate of 5% is permissible for renewing the lease every year. But, it is submitted, the provisions of the bye- law make it clear that, it is the discretion of the Panchayat Committee to decide about the renewal or to conduct fresh auction, which thus means, the tenants have no right to get renewal of lease as a matter of right. Therefore, it is submitted that, if the W.P.(C) No.25838 of 2018 5 petitioners are not prepared to pay the rent, the Panchayat is at liberty to auction the shop rooms in question, since as per the present market rate, the rent applicable to similar rooms in the same locality is Rs.10,000/- to Rs.20,000/-. It was with the intention of helping the existing tenants, the Panchayat committee had decided to enhance the rent by 20% for the period 2018-19. Therefore, the sum and substance of the contention advanced by the respondents is that, the rent presently paid by the petitioners is far below the rates fixed by the Government.
4. A tabular statement showing the details of rent for the period 2017-18 and enhanced rate is provided in the counter affidavit, which is as follows:
Rent for the Rent as per
Sl. Room Name period 2017- Enhanced Area of each Government
No. No. 18 Rent. room (in m2) rate.
Rs. Rs. Rs.
1 4/554 Sajini 1,021/- 1,225/- 11 7883
Sirajudheen
2 4/551 Babu 1,021/- 1,225/- 11 7883
Vettiyadan
3 4/549 Prakasan 1,278/- 1,534/- 12 8599
4 4/548 George M.P. 1,405/- 1,686/- 12 8599
5 4/547 Thomas 1,405/- 1,686/- 12 8599
6 4/546 Priju E.A. 1,523/- 1,828/- 11 7883
7 4/545 Wilson 1,405/- 1,686/- 12 8599
8 4/543 Noushad 1,788/- 2,146/- 12 8599
9 4/543 Lonappan 2,382/- 2,858/- 11 7883
10 4/542 Sivadasan 2,809/- 3,371/- 12 8599
11 4/541 Jomon K.J. 7,020/- 8,424/- 12 8599
12 4/536 Tenny Antony 3,320/- 3,984/- 14 10032
W.P.(C) No.25838 of 2018 6
13 4/535 Tenny Antony 3,320/- 3,984/- 12 8599
14 4/534 Gireesh 3,064/- 3,677/- 11 7883
15 4/533 V.J. George 3,310/- 3,792/- 12 8599
16 4/532 Sirajudheen 3,064/- 3,677/- 11 7883
17 4/531 Sirajudheen 3,320/- 3,984/- 12 8599
Therefore, it is submitted that the decision taken by the Panchayat committee to enhance the rent by 20% can never be said to be illegal or arbitrary.
5. A reply affidavit is filed by the petitioners, reiterating the stand adopted in the writ petition and also stating that the Panchayat is not expected to function as a profit making body and they will have to adhere to the stipulations contained under Article 243G of the Constitution of India, and therefore, the Panchayat or its committee cannot arbitrarily fix or enhance the existing rate of rent. Ext.P13 is also produced along with the reply affidavit, directing the occupants of the rooms to pay GST at the rate of 18% also.
6. I have heard learned counsel for the petitioners and the learned Standing Counsel appearing for the respondents and perused the pleadings and the documents on record.
7. The basic contention advanced by learned counsel for the petitioner is relying upon Ext.P1 bye- W.P.(C) No.25838 of 2018 7 law constituted by the Panchayat dated 04.02.2016, and specifically to Clause 5, which deals with renewal of rent, in which it is stipulated that, the Panchayat committee is at liberty to renew the lease without conducting auction by enhancement of rent. However, it is peremptorily stipulated thereunder that the rent cannot be enhanced exceeding 5% from the existing rent. This is the paramount contention put forth by the petitioners to canvass the point that the enhancement of rent made by the Panchayat committee by 20% is illegal and arbitrary.
8. Learned counsel for the petitioners has also invited my attention to Article 243G of the Constitution of India, dealing with powers, authority and responsibilities of Panchayat. The contention put forth relying upon Article 243G is that, the Legislature of a State may, by law, endow the Panchayats with such powers and authority 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 W.P.(C) No.25838 of 2018 8 and social justice; and (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. Learned counsel has invited my attention to the Eleventh Schedule and submitted that, the Panchayat is not expected to make huge profits, but it is duty bound to take into account the welfare and well-being of the people within its territorial limits, and therefore, the Panchayat cannot merely function as a body to make profit out of its activities.
9. On the other hand, learned Standing Counsel for the Panchayat submitted that, the rate fixed against the rooms occupied by the petitioners are very less and the Panchayat is expected to generate funds so as to carry on with its welfare and developmental activities, and there is nothing wrong or illegal in the Panchayat committee taking a decision to enhance the rent by 20%, and even then, according to the chart provided, it is much less than the PWD rates fixed by the State Government.
10. I have evaluated the rival submissions made across the Bar. As I have pointed out earlier, the predominant contention is on the basis of Ext.P1 bye- W.P.(C) No.25838 of 2018 9 law, wherein it is specifically stipulated that the Panchayat committee is at liberty to renew the lease rents without conducting any auction, however, subject to enhancement of rent. But, it is equally important to note that, as per Clause 5, it is specifically stipulated that the enhancement shall not exceed 5%. Therefore, the contention advanced by learned Standing Counsel for the Panchayat that overlooking the said provision, the Panchayat committee is at liberty to take a decision, in my considered opinion, cannot be sustained under law. If the Panchayat is of the opinion that the rent fixed against the petitioners is meagre and less than the rent prevailing in the locality and also in accordance with the PWD rates, the Panchayat ought to have taken necessary steps to amend the bye-laws formulated by the Panchayat for managing its affairs.
11. So also, Sec.254 of the Kerala Panchayat Raj Act deals with power of the Government to make Rules, Bye-laws and penalties for their breach. Therefore, the Panchayat has framed the bye-laws, in accordance with the empowerment provided as per Sec.254 of Act, 1994. Thus, in effect, the bye-law is a creation of the statute itself and it has got all the statutory W.P.(C) No.25838 of 2018 10 characteristics and features. Therefore, in my considered view, the enhancement of rent made by the Panchayat by 20%, overlooking the stipulations contained under the bye-laws cannot be sustained under law. So much so, as discussed above, Article 243G of the Constitution makes it clear that the laws are to be framed bearing in mind the social and economic justice to be provided to the citizens within the territorial limits of the Panchayat.
12. Taking into account all these aspects and assimilating the legal situations, I am of the considered opinion that, the enhancement of rent made by the Panchayat by 20% cannot be sustained under law, in view of the peremptory condition provided under Ext.P1 bye-laws, empowering the Panchayat to enhance the rent only by 5%. Moreover, it is not dependent upon any option provided to the Panchayat committee either to renew the lease or to conduct the auction. In that view of the matter, petitioners are entitled to succeed in this writ petition, accordingly, the demands raised so and under challenge are quashed, and there will be a direction to the Panchayat to collect the rent for the period 2018-19 at the enhanced rate of 5% alone.
W.P.(C) No.25838 of 2018 11The writ petition is allowed to the above extent.
Sd/-
SHAJI P.CHALY JUDGE St/-
17.01.2019 W.P.(C) No.25838 of 2018 12 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 A TRUE COPY OF THE BYE-LAW FRAMED BY THE 1ST RESPONDENT PANCHAYATH FOR THE PURPOSE OF LEASING OUT ITS ROOMS.
EXHIBIT P2 A TRUE COPY OF THE DEMAND NOTICE DATED 26.03.2018 ISSUED BY THE 2ND RESPONDENT TO THE 2ND PETITIONER.
EXHIBIT P3 A TRUE COPY OF THE AGREEMENT DATED 31.03.2018 SIGNED BY THE 1ST PETITIONER IN RESPECT OF ROOM NO.IV/543 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P4 A TRUE COPY OF THE AGREEMENT DATED 31.03.2018 SIGNED BY THE 2ND PETITIONER IN RESPECT OF ROOM NO.IV/533 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P5 A TRUE COPY OF THE AGREEMENT DATED 28.03.2018 SIGNED BY THE 3RD PETITIONER IN RESPECT OF ROOM NO.IV/531 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P6 A TRUE COPY OF THE AGREEMENT DATED 28.03.2018 SIGNED BY THE 3RD PETITIONER IN RESPECT OF ROOM NO.IV/532 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P7 A TRUE COPY OF THE AGREEMENT DATED 28.03.2018 SIGNED BY THE 4TH PETITIONER IN RESPECT OF ROOM NO. IV/534 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P8 A TRUE COPY OF THE AGREEMENT DATED 31.03.2018 SIGNED BY THE 5TH PETITIONER IN RESPECT OF ROOM NO.IV/535 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P9 A TRUE COPY OF THE AGREEMENT DATED 31.03.2018 SIGNED BY THE 5TH PETITIONER IN RESPECT OF ROOM NO.IV/536 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.
EXHIBIT P10 A TRUE COPY OF THE AGREEMENT DATED 31.03.2018 SIGNED BY THE 6TH PETITIONER IN RESPECT OF ROOM NO. IV/541 FOR RENEWING THE LEASE LEAVING THE SPACE FOR RENT BLANK.W.P.(C) No.25838 of 2018 13
EXHIBIT P11 A TRUE COPY OF THE RESOLUTION DATED 17.03.2018 OF THE 1ST RESPONDENT TO ENHANCE THE RENT BY 20%.
EXHIBIT P12 A TRUE COPY OF THE NOTICE DATED 02.07.2018 ISSUED BY THE PANCHAYATH TO THE 4TH PETITIONER.
EXHIBIT P13 A TRUE COPY OF THE NOTICE DATED 28.11.2018 ISSUED BY THE 2ND RESPONDENT TO THE 3RD PETITIONER.
RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-