IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE TUESDAY, THE 19TH FEBRUARY 2008 / 30TH MAGHA 1929 WP(C).No. 5797 of 2008(M) ------------------------- PETITIONER: ------------ MRS.SAJEENA PALATHINKAL, PALATHINKAL HOUSE, NEAR Y.M.C.A. MUNDAKAYAM. BY ADV. SRI.KMV.PANDALAI SMTS.HEMALATHA RESPONDENTS: -------------------- 1. STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRESIDENT, MUNDAKKAYAM GRAMA PANCHAYATH, (SPECIAL GRADE), MUNDAKKAYAM. 3. THE SECRETARY, MUNDAKKAYAM GRAMA PANCHAYATH, (SPECIAL GRADE), MUNDAKKAYAM. 4. THE PANCHAYATH COUNCIL, MUNDAKKAYAM GRAMA PANCHAYATH, MUNDAKKAYAM REP. BY ITS CONVENOR. BY GOVT. PLEADER SRI.K.J.MOHAMMED ANZAR ADV.SRI.P.N.PURUSHOTHAMA KAIMAL, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. - - - - - - - - - - - - - - - - - - - - - W.P.(c).No. 5797 OF 2008 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of February, 2008 JUDGMENT In this writ petition, the petitioner challenges Ext.P5 notification issued by the Panchayat for leasing out six shop rooms in shopping complex No.3 mainly on the ground that under Ext.P3 resolution the Panchayat had previously decided to let out these rooms to the petitioner. According to the petitioner, it is in gross violation of Ext.P3 decision and by flouting the legal prov ions that the Panchayat has issued Ext.P6 resolution holding that Ext.P3 resolution is bad and cancelling Ext.P3 on that ground. 2. I have heard the submissions of Sri.M.V.Pandalai and those of Sri.P.N.Purushothama Kaimal, standing counsel for the Panchayat who has taken notice for the Panchayat. I have also heard the submissions of the learned Government Pleader who took notice on behalf of the first respondent. Sri.M.V.Pandalai submitted that Ext.P6 resolution is per se illegal and void abinitio and is liable to be ignored WPC.No.5797/08 2 by this court. Since Ext.P6 is void abinitio, Ext.P5 notification is also to be found void abinitio. According to the learned counsel, the Panchayat has no power to cancel its own resolution passed after the expiry of three months of its passage. In as much as Ext.P6 resolution has been passed several years after Ext.P3, Ext.P6 is liable to be ignored. I cannot agree. May be the learned counsel for the petitioner is right in submitting that it was violating the Rules that Ext.P6 resolution was passed by the Panchayat. At the same time, it cannot be said that Ext.P6 resolution is void abinitio. According to me, petitioner has to move the Government seeking cancellation of Ext.P6 by filing a petition in that regard invoking sub clause 1 of section 191 of the Panchayat Raj Act. I relegate the petitioner to that remedy against Ext.P6 since according to me so long as Ext.P6 stands, the petitioner cannot successfully challenge Ext.P5. 3. Under these circumstances, the writ petition will stand disposed of issuing the following directions: If the petitioner files a petition before the Government under sub clause 1 of Section 191 of the Panchayat Raj Act impugning Ext.P6 WPC.No.5797/08 3 resolution within two weeks from today, the Government will dispose of that petition in accordance with law. In the meanwhile the petitioner is permitted to participate in the tender proceedings which have been initiated as per Ext.P5 without prejudice to his grounds and to the result of the prospective petition before the Government under section 191 (1). Finalisation of the tenders received in response to Ext.P5 will be subject to the final decision to be taken by the Government. The successful tenderer must be informed about the petitioner's petition before the Government under Section 191(1) and also that acceptance of the tender by the Panchayat is subject to the result of the said petition. PIUS.C.KURIAKOSE JUDGE sv. WPC.No.5797/08 4