IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR TUESDAY, THE 7TH OCTOBER 2008 / 15TH ASWINA 1930 WP(C).No. 2526 of 2004(A) ------------------------- PETITIONER(S): --------------- SEKKENA, W/O. BEERAN HAJI, PARAVUR VALAPPIL, THINAPURAM, POST MEPPADY, WAYANAD DIST. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): --------------- 1. MUPPAINAD GRAMA PANCHAYAT, REPRESENTED BY THE SECRETARY (SPECIAL GRADE), MUPPAINAD GRAMA PANCHAYAT, VEDUVANCHAL-673 581, WAYANAD DIST. 2. SECRETARY, MUPPAINAD GRAMA PANCHAYAT, VEDUVANCHAL-673 581, WAYANAD DIST. 3. SRI.PURUSHOTHAMAN NAMBIAR, SECRETARY IN-CHARGE (AS ON 19.1.04), MUPPAINAD GRAMA PANCHAYAT, VEDUVANCHAL-673 581, WAYANAD DIST. 4. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 5. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LOCAL SELF GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. ADV. SMT.T.D.RAJALAKSHMI FOR R1&3 SR. GOVERNMENT PLEADER SRI.SHYSON P.MANGUZHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 2526/2004 APPENDIX PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE PARTITION DEED DATED 10.10.2000. EXT.P2 - TRUE COPY OF THE NOTICE NO.A1 208/03 DATED 2.1.2004 ISSUED BY THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE NOTICE DATED 14.1.2004 ISSUED BY THE 2ND RESPONDENT. EXT.P4 - TRUE COPY OF THE COMPLAINT DATED 30.1.2001. EXT.P5 - TRUE COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT WHICH WAS RECEIVED BY THE PETITIONER ON 19.1.2004. EXT.P6 - TRUE COPY OF THE LETTER DATED 21.1.2004 ISSUED BY THE PETITIONER'S COUNSEL. EXT.P7 - TRUE COPY OF THE RECEIPT DATED 21.1.2004 ISSUED FROM THE PUBLIC TELEPHONE OFFICE, KOCHI-31. EXT.P8 TRUE COPY OF THE LAWYER'S NOTICE DATED 27.1.2004. EXT.P9 - TRUE COPY OF THE REPRESENTATION DATED 23.1.2004 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P10 - TRUE COPY OF THE SHOW CAUSE NOTICE DATED 27.1.2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. EXT.P11 - TRUE COPY OF THE REPLY DATED 10.2.2004 TO THE 2ND RESPONDENT. EXT.P12 - TRUE COPY OF THE LETTER DATED 25.2.2004 TO THE PETITIONER'S COUNSEL BY THE STATION HOUSE OFFICER. RESPONDENTS' EXTS. EXT.R1(a) – PHOTO COPY OF THE ATTACHMENT WARRANT DT. 20.01.2004 ISSUED BY THE PANCHAYAT. /TRUE COPY/ K.BALAKRISHNAN NAIR, J. ----------------------------------------- W.P.(C) NO. 2526 OF 2004-A ----------------------------------------- JUDGMENT The petitioner is the owner of a property covered by Ext.P1 title deed. She constructed a compound wall for the same. One side of the property is bounded by a Panchayat road. Alleging that while constructing the compound wall, encroachment was made into the Panchayat road, Ext.P2 notice was served on her, directing her to demolish the compound wall within three days or face action for demolition by the Panchayat at her risk and cost. The petitioner submits, she was given only three days' time to demolish the compound wall, as per Ext.P2. Immediately thereafter, the wall was demolished and she was served with Ext.P3 notice, demanding an amount of Rs.10,101/- towards costs, fine etc. Ext.P3 was followed by Ext.P5 communication from the Panchayat, informing the petitioner about the visit of Panchayat officials to her house, to complete the recovery proceedings. The petitioner submits, in fact, Ext.P3 is a notice issued under sub-rules (2) and (3) of Rule 3 of the Kerala WPC 2526/04 2 Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996. Sub- rule (4) of Rule 3 of the said Rules mandates that the unauthorised occupant should be given 15 days' notice to file objections, if any. Sub-rule (5) thereof provides detailed consideration of the objection by the Panchayat. Thereafter a fresh demand notice should be given with a minimum time of 15 days for remitting the amount. In this case, the procedure prescribed as per sub-rules (4) and (5) of Rule 3 of the said Rules was not followed. The petitioner further points out that though she moved this Court and obtained a stay of Exts.P3 and P5 on 21.1.2005, recovery was made on the very same day, by taking coercive steps against her. In the above background, the petitioner prays, all the actions of the Panchayat may be declared as ultra vires and the Panchayat may be directed to refund the amount collected from her. The petitioner also submits, sub-rules (2) and (3) of Rule 3 of the said Rules are ultra vires and unauthorised. 2. The respondents have filed a counter affidavit, resisting the prayers in the writ petition. WPC 2526/04 3 3. Heard the learned counsel on both sides. Rule 3 of the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 reads as follows: “3. Prohibition of and penalty for unauthorised occupation of lands vested in or belonging to Panchayat:-- (1) No person shall occupy and land belonging to or vested in a Panchayat without the permission of the Panchayat or not in accordance with the Act or the rules made thereunder or except in accordance with the terms and conditions of the licence issued by the Panchayat. (2) Whoever occupies any land belonging to or vested in a Panchayat contrary to the provisions of sub-rule (1) shall be liable to be evicted from such unauthorised occupation and shall, in addition to the expenses thereof, be liable to pay to the Panchayat a fine not exceeding one thousand rupees as may be imposed by the Panchayat. (3) Any person unauthorisedly occupying any land belonging to or vested in a Panchayat and liable to pay a fine under sub-rule (2) shall, in addition, be liable to pay such sum as may be fixed by the Panchayat as compensation for the loss or damage caused to the Panchayat by such unauthorised Occupation. (4) Before making a demand under sub-rule (2) or sub-rule (3) notice shall be issued to the unauthorised occupant and in such notice, it shall be required to file objection, if any, against the recovery of the amount under sub-rule (2) or sub-rule (3) within fifteen days after the WPC 2526/04 4 receipt of the notice. (5) After detailed examination of the objection to the notice mentioned under sub-rule (4) by the Panchayat, if it appears that the objection is not satisfactory, the Secretary shall reject the objections and issue a demand notice to the unauthorised occupant with direction to remit the amount to the Panchayat within fifteen days on receipt of intimation of the rejection. (6) If any amount payable under sub-rule (2) or sub- rule (3) is refused or defaulted to pay within the period specified in the notice under sub-rule (5) such amount may be recovered from the defaulter in the same manner as if it was a tax due to the Panchayat.” Sub-rule (2) quoted above authorises the Panchayat to recover the expenses incurred in evicting unauthorised occupation. It also authorises the Panchayat to recover a fine, which may not exceed Rs.1000/-. Sub-rule (3) authorises the Panchayat to recover compensation for the loss or damage caused to the Panchayat by the unauthorised occupation. The petitioner submits, the Panchayat is the Prosecutor, Witness and Judge in this case and therefore, the impugned demand is without competence. But, I notice that sub-rules (4) and (5) quoted above provide a fair procedure before fixation of fine and compensation. In this case, only expenses and fine were demanded WPC 2526/04 5 from the petitioner. No compensation was claimed. Therefore, the challenge against sub-rule (3) is only academic and it is unnecessary for this Court to consider the same. But, going by sub-rule (2) read with sub-rules (4) and (5), I am of the view that sub-rule (2) cannot be said to be suffering from any vice, which makes it beyond the rule making power of the Government. As noticed earlier, a fair procedure has been provided. If the petitioner is aggrieved, she has remedies also before the appropriate forums. A subordinate legislation can be challenged only on limited grounds. They have been succinctly stated by a Division Bench of this Court in Pankajaksy v. George Mathew [1987(2) KLT 723]. The relevant portion of the said judgment reads as follows: “12. Thus, the rule made under a statute by an authority delegated for the purpose can be challenged on the ground (1) that it is ultra vires of the Act; (2) it is opposed to the Fundamental rights; (3) it is opposed to other plenary laws. The ascertain whether a rule is ultra vires of the Act, the Court can go into the question (a) whether it contravenes expressly or impliedly any of the provisions of the statute; (b) whether it achieves the intent and object of the Act; and © whether it is 'unreasonable' to be manifestly arbitrary, unjust or partial implying thereby want of authority to make such rules.” WPC 2526/04 6 Going by the principles laid down by the Division Bench in the above quoted decision, I find that no ground has been made out, warranting interference with sub-rule (2) of Rule 3 of the aforementioned Rules. 4. But, I find considerable force in the submission of the petitioner that before issuing the impugned notice Exts.P3, the procedure prescribed under sub-rules (4) and (5) has not been followed. Now, that the recovery is already made, it is ordered that the petitioner may file her objections to Ext.P3 before the Panchayat within one month from today, along with a copy of this judgment. In that event, the 1st respondent will consider that objection, after affording an opportunity of being heard to the petitioner, within one month from the date of receipt of the same. Thereafter, the 2nd respondent shall communicate the order to her, as contemplated under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules. If, as a result, the impugned demand is waived or reduced, the excess amount collected shall be refunded to the petitioner. If any further amounts are found due, the Panchayat will be free to recover the same, subject to WPC 2526/04 7 the right of the petitioner to work out her remedy against the same. 5. The petitioner has made a claim for compensation against the Panchayat. The said claim is kept open, for which she may work out her remedies, if any, before the appropriate forum. The Writ Petition is disposed of as above. 7th October, 2008. K.BALAKRISHNAN NAIR, JUDGE. Nm/