Kerala High Court
Vinod Kumar M vs The Panchayath Director on 24 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
THURSDAY ,THE 24TH DAY OF JANUARY 2019 / 4TH MAGHA, 1940
WP(C).No. 14334 of 2018
PETITIONER/S:
VINOD KUMAR M., AGED 34,
S/O MANOHARAN, KUNNILPUTHEN VEEDU,
PAPPALA, KILIMANOOR PO-695 601,
THIRUVANANTHAPURAM DIST.
BY ADV. SRI.A.SHAJEEL
RESPONDENT/S:
1 THE PANCHAYATH DIRECTOR,
MUSEUM JUNCTION,
THIRUVANANTHAPURAM-695 023.
2 PAZHAYAKUNNUMMEL GRAMA PANCHAYATH,
REPRESENTED BY ITS SECRETARY,
KILIMANOOR, KILIMANOOR PO-695 601.
3 THE POLICE CIRCLE INSPECTOR,
POLICE STATION, KILIMANOOR,
KILIMANOOR P.O.-695 601.
4 SUGUNAN,
KEDARAM, CHEMMARATHUMUKKU,
NAGAROOR PO-695 601.
*ADDL. PAZHAYA KUNNUMEL GRAMA PANCHAYATH COMMITTEE
R5 REPRESENTED BY ITS PRESIDENT, KILIMANOOR P.O.,
KILIMANOOR-695 601.
*IS IMPLEADED AS PER ORDER DATED 28/6/2018 IN
I.A.NO.11525/2018
BY ADVS.
R1 & R3 BY SMT.RAJI T.BHASKAR, GOVERNMENT PLEADER
R2 & ADDL.R5 BY SRI.G.P.SHINOD
SRI.AJIT G.ANJARLEKAR
SRI.GOVIND PADMANAABHAN
SRI.RAM MOHAN.G.
R4 BY SRI.A.RAJASIMHAN
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.01.2019, ALONG WITH WP(C).19826/2018, THE COURT ON 24.01.2019
DELIVERED THE FOLLOWING:
W.P.(C) Nos.14334 & 19826 of 2018 2
JUDGMENT
The captioned writ petitions are materially connected in respect of the market fee fixed by the 2nd respondent Grama Panchayat in Kilimanoor Public Market on account of the decision taken by the Grama Panchayat committee. Therefore, I heard them together and propose to deliver this common judgment. The facts and documents contained in W.P.(C) No.19826 of 2018 are relied upon and the decision rendered thereunder will decide the fate of the other writ petition also.
2. The grievance highlighted by the petitioner therein is that, the hike in the levy of fees in Kilimanoor Public Market by the Panchayat is without jurisdiction and contrary to the rates fixed by the Government under Rule 8 of the Kerala Panchayat Raj (Issuance of Licence and Control of Public and Private Markets) Rules, 1996, (hereinafter called, 'the Rules, 1996'). According to the petitioner, the levy of fees of public markets are governed by the Rules, and the Schedule attached to Rule 8 of the Rules stipulates the minimum and maximum fees to be levied in Public Markets under a Panchayat.
W.P.(C) Nos.14334 & 19826 of 2018 3
3. The decision No.1 in Agenda Item No.3 in Ext.P4 is regarding the hike in the rates of the market fees at Kilimanoor Market, wherein it was decided to enhance the fees as proposed and decided to approach the 1st respondent Government. Therefore, the sum and substance of the contention advanced by the petitioner is that, there was no decision to hike the market fees and on account of the decision taken by the Panchayat committee, the Panchayat has decided to approach the Government seeking enhancement of fees. Therefore, the reliefs sought for by the petitioner initially in the writ petition was to quash the decision No.1 in Agenda Item No.3 in Ext.P4. However, when the counter affidavit was filed, Ext.R2(b) decision of the Panchayat committee was produced dated 28.03.2018, that the hike made as per Ext.P4 decision is made effective as per Rule 14 of the Rules. Thereupon, the writ petition was amended by the petitioner challenging the said decision also.
4. Subsequently, the rates for some of the items were reduced as per decision No.8 of the meeting of the Panchayat on 23.04.2018. Therefore, according to the petitioner, now the Panchayat is relying upon Rule 14 of the Rules to justify its actions. So much so, it is W.P.(C) Nos.14334 & 19826 of 2018 4 contended that, no enhancement is possible by amending the Rules for the 2nd respondent Panchayat alone. Therefore, according to learned counsel for the petitioner, the decision taken as per Ext.R2(b) minutes of the meeting of the Panchayat dated 28.03.2018, enhancing the rate, overlooking the provisions of the Rules specified above, is arbitrary and illegal, liable to be interfered with by this Court.
5. On an earlier occasion, when the writ petition was taken up for hearing, the locus standi of the petitioner to approach this Court was questioned, since there was no prima facie material before this Court to show that petitioner was conducting any trading activity within the Panchayat market. Originally, in order to show the collection of the fees, Ext.P3 receipts were produced, however, petitioner did not have a case at all that the fee receipts were issued to the petitioner. Therefore, after the said hearing date, again the writ petition was amended and produced Ext.P7 receipts dated 20.05.2018 and 22.04.2018, and submitted that, the said fees were collected from the petitioner.
6. So far as W.P.(C) No.14334 of 2018 is concerned, therein, the petitioner is stated to be an W.P.(C) Nos.14334 & 19826 of 2018 5 agriculturist and he is rearing sheep and for the purpose of selling the sheep, he went to the market premises, and thereupon, fees at the enhanced rate were collected from him, evident from Ext.P1 receipts. In my considered view, the said petitioner is not having a case that he is conducting the business in the market regularly, and his case is that, whenever he went to the market previously for selling sheep, he could carry out the trade without payment of any fee.
7. It is an admitted fact that, petitioner in W.P.(C) No.19826 of 2018 was a participant in the contract. It is also clear and evident that the contract was invited on the basis of the decision taken by the Panchayat Committee, however, petitioner was not successful in the bid. A writ petition challenging the award of the contract is also pending before this Court.
8. The Panchayat has filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. The main contention advanced by learned counsel for the Panchayat is that, petitioner is not entitled to challenge the decision taken by the Panchayat committee before this Court, invoking the writ jurisdiction, since the petitioner is W.P.(C) Nos.14334 & 19826 of 2018 6 left with a clear remedy under Sec.191 of the Kerala Panchayat Raj Act, 1994 (hereinafter called, 'the Act, 1994'), to approach the Government to cancel or vary the resolution passed or decision taken by the Panchayat, if in his opinion, such decision is not taken in accordance with law. It is also pointed out that, due to the loss during the financial year 2017-18 on account of non-renewal of the gate fees, the Panchayat decided to request the Government under Rule 8 of the Rules, 1996, to renew the existing gate fees, as per the decision taken on 07.03.2018.
9. In furtherance of the said decision, the Panchayat authorities held deliberations with the appropriate Government, whereupon it was intimated that the Panchayat is empowered under Sec.166(2) of the Kerala Panchayat Raj Act and Rule 14 of the Rules, 1996, to maintain and augment its assets. It is also submitted that, as per Rule 14, the Panchayat is at liberty to fix the fees for using the market premises, and it was thereupon that, Ext.R2(b) decision was taken by the committee on 28.03.2018. It was thereafter that Ext.R2(c) representation was submitted to the Government to pass appropriate orders with regard to the enhanced licence fee. Anyhow, on the basis of the W.P.(C) Nos.14334 & 19826 of 2018 7 complaints received from various quarters with regard to the enhanced rates of fees, the Panchayat committee decided to alter the fees with regard to certain items and to display the altered fee structure in the notice board put up in the market, evident from Ext.R2(d).
10. I have heard learned counsel appearing on either side, and perused the pleadings and the documents on record.
11. The paramount contention advanced by learned counsel for the petitioner is relying upon Rule 8 and the Schedule thereto, of the Rules, 1996, which read thus:
"8. Levy of fees in Public Markets.--The fees that may be collected in public markets under clauses (a) to (d) of sub-section (2) of Section 22 shall be not less than the rates mentioned in column (2) or not more than the rates mentioned in column (3) of the schedule below.
Schedule
----------------------------------------------------------------------
Minimum Maximum
Details of items amount to be amount
collected that may be
per day. Collected
per day.
----------------------------------------------------------------------
(1) (2) (3)
----------------------------------------------------------------------
1. For using space in the market or for the right to expose goods for sale:
(a) For using space of 1 sq.metre or less 2 3
(b) For using space of more than 1 sq. metre and up to 5 sq.mtr 3 8
(c) For using space of more than 5 W.P.(C) Nos.14334 & 19826 of 2018 8 sq.mtrs. and up to 10 sq.metres 3 15
(d) For using space of more than 10 sq.mtrs. and up to 20 sq.mtrs. 5 25
(e) For using each sq. metre exceeding 20 sq.metres 1 2
2. For using shops, stalls, pens and stands (excluding the space allotted on lease) on market day:
(a) Having a plinth area up to 10 sq. metres 2 10
(b) Having plinth area of above 10 sq. mtrs and up to 20 sq. metres. 10 15
(c) Having plinth area of above 20 sq.metres and up to 30 sq.metres 15 30
(d) For each sq. metre exceeding 30 sq. metres 1 1.50
3. Fees on goods brought to market by vehicle or animals or otherwise, for sale:
(a) Handload No fee ...(b) Headload 3 4 (c) Cycle load 5 6 (d) Cart load 10 15 (e) Motor vehicle load 15 40
(f) Load of goods brought in country craft of 1 metre or less of depth 7 15
(g) Load of goods brought in country crafts of more than 1 metre of depth10 20 (h) Cattle load, horse load or ass load 2 5
4. Fees on each animal brought for sale into or sold in the market:(a) Goat, sheep 2 3 (b) Ass, pig 2.50 3
(c) Cow, bull, he-buffaloes and she-buffaloes (No separate fees shall be charged on calves that are brought along with their mother) 5 6
(d) Poultry (grown up fowls) 1 1.50
-------------------------------------------------------------------------------------
12. Therefore, going by Rule 8 of the Rules 1996, and the Schedule thereto, it is quite clear and evident that the Panchayat is bound by the Rules framed by the W.P.(C) Nos.14334 & 19826 of 2018 9 Government in accordance with the powers conferred under Section 254 of the Kerala Panchayat Raj Act, 1994. Therefore, in my considered view, the Panchayat is duty bound to follow the Rules provided by the Government to carry on its activities. Even though Rule 14 of the Rules, 1996 is relied upon by the learned counsel for the Panchayat, that Rule deals with the facilities used by the traders for grading the articles, which read thus:
"14. Providing facilities for grading of commodities.--A Panchayat, in the case of public markets and a licensee, in the case of private markets, may provide, inside the market or at any convenient place near the market, facilities for grading of commodities brought for sale and for marking of commodities so graded and may also levy fee at the rates fixed by the Panchayat for that purpose."
Therefore, it can never be said that the said rule is any way a substitute to Rule 8, enabling the Panchayat to fix the market fees as is contended. Further, Section 161 of Act, 1994, has no bearing to the fact in issue, and it only deals with the manner in which meetings are to be conducted and the management of resolutions. Accordingly, those cluster of provisions of law will not come to rescue the Panchayat.
13. Be that as it may, fact remains, Sec.191 of the Kerala Panchayat Raj Act provides a clear remedy to W.P.(C) Nos.14334 & 19826 of 2018 10 any person aggrieved by any decision taken by the Panchayat committee to approach the State Government by filing a petition. Section 191 of Act, 1994, read thus:
"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.
(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, 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.W.P.(C) Nos.14334 & 19826 of 2018 11
(4) If Government, consider that a resolution or decision of the Panchayat has to be cancelled or amended as per sub-section (1) 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)."
14. On a reading of the stipulations contained thereunder, it is clear that the State Government is vested with ample powers to deal with the situation and also to suspend the resolution till a final decision is taken. Therefore, the contention advanced by learned counsel for the Panchayat that petitioners are left with a clear remedy to approach the Government, in my considered view, applies well to the facts and circumstances of this case, especially due to the fact that, I am of the opinion that, petitioners have not established before this Court their locus standi to approach, invoking the writ jurisdiction, since there is no established piece of evidence to show that they are traders in the market. So much so, even the receipts produced are not conclusive proof to arrive at a safe conclusion that the petitioners are traders, especially due to the fact that, the receipts are not bearing any name, or for that matter, any identity at all, even to prima facie consider that petitioners are any way aggrieved by the action of the Panchayat W.P.(C) Nos.14334 & 19826 of 2018 12 enhancing the market fees. That apart, petitioner in W.P.(C) No.19826 of 2018 has produced new receipts, as an afterthought, when he was questioned about his locus. Moreover, I am told that the market is substantially big, and no other traders have challenged the action.
15. So also, the case put forth by the petitioners with respect to their grievance is largely and substantially depending upon factual circumstances, and there is a clear remedy available under Sec.191 of Act, 1994. It is well settled, issuance of a writ cannot be as a matter of right and on mere asking, but the court should be satisfied that there is patent arbitrariness and illegality, interfering with the established rights of the petitioners. On the other hand, Sec.191 of the Act, 1994, enables any citizen to approach the Government, on account of a decision taken by the Panchayat. It is also clear and evident that, petitioner in W.P.(C) No.19826 of 2018 was a participant in the tender invited by the Panchayat to conduct the market for the year 2018-19.
16. Above all, the basic pleadings, which I have pointed out in the facts discussion, is not reposing confidence in this Court to think that the petitioners W.P.(C) Nos.14334 & 19826 of 2018 13 have any genuine grievance so as to exercise the power of judicial review. Therefore, I am of the view that, petitioners have not made out any case justifying interference of this Court under Article 226 of the Constitution of India.
Upshot of the discussion is, writ petitions are partly allowed and disposed of, leaving open the liberty of the petitioners to approach the Government, as provided under Sec.191 of the Kerala Panchayat Raj Act, 1994.
Sd/-
SHAJI P.CHALY JUDGE W.P.(C) Nos.14334 & 19826 of 2018 14 APPENDIX OF WP(C) 14334/2018 PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE TRUE COPY OF THE RECEIPTS OF THE MARKET FEES RECEIVED DATED 04.04.2018 BY THE 2ND RESPONDENT PAZHAYAKUNNUMMEL GRAMA PANCHAYATH.
EXHIBIT P2 THE TRUE COPY OF THE NOTICE OF DECISION TAKEN BY THE PANCHAYATH DATED 07.03.2018.
EXHIBIT P3 THE TRUE COPY OF THE NEWS REPORTED IN THE DAILY NEWS PAPER THEJAS DATED 02.04.2018.
EXHIBIT P4 THE TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 1ST RESPONDENT PANCHAYATH DIRECTOR DATED 09.04.2018 BY THE PETITIONER.
EXHIBIT P5 THE TRUE COPY OF THE PETITION SUBMITTED BEFORE THE 3RD RESPONDENT CIRCLE INSPECTOR OF POLICE, DATED 10.04.2018 BY THE PETITIONER.
RESPONDENT'S/S EXHIBITS:
EXHIBIT R2(a) A TRUE COPY OF THE DECISION NO. 3 TAKEN ON 7/3/2018 BY THE PANCHAYAT COMMITTEE.
EXHIBIT R2(b) A TRUE COPY OF THE DECISION NO. 1(1) DATED 28/3/2018 OF THE PANCHAYAT COMMITTEE.
EXHIBIT R2(c) A TRUE COPY OF THE REPRESENTATION DATED 17/4/2018 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE DEPUTY DIRECTOR OF PANCHAYATS.
EXHIBIT R2(c) A TRUE COPY OF THE REPRESENTATION DATED 17/4/2018 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE DEPUTY DIRECTOR OF PANCHAYATS.
EXHIBIT R2(d) A TRUE COPY OF THE DECISION NO. 8 DATED 23/4/2018 OF THE PANCHAYAT COMMITTEE.
//TRUE COPY// P.S. TO JUDGE St/-