IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH AUGUST 2010 / 13TH SRAVANA 1932 WP(C).No. 21166 of 2010(U) ---------------------------------------- PETITIONER(S): ----------------------- SAJI JOSEPH @ SEBASTIAN M.J., S/O. JOSEPH, MOOLACHALIL HOUSE, PLASSANAL.P.O, KOTTAYAM DISTRICT. BY ADV. SRI.P.V.BABY, SRI.R.KIRAN. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPLE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT(EM) DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM-1. 2. STATE DE-LIMITATION COMMISSION, REPRESENTED BY ITS CHAIRMAN, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-1. *ADDL. R3 & R4 IMPLEADED ADDL. R3: THALAPPALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, PLASSANAD P.O., KOOTTAYAM DISTRICT, PIN-686 579. ADDL. R4: ERATTUPETTAH BLOCK PANCHAYATH, REPRESENTED BY ITS SECRETARY, ERATTUPETTAH P.O., KOTTAYAM DISTRICT. * ADDL. R3 AND R4 IS IMPLEADED AS PER ORDER DATED 27/07/2010 IN WP(C) NO. 21166/2010. R1 BY GOVT. PLEADER MR.C.M. SURESH BABU. R2 BY ADV. SRI.MURALI PURUSHOTHAMAN,SC,DELIMITATION. ADDL. R3 BY ADV. SRI.P.MARTIN JOSE. ADDL. R4 BY ADV. SRI.P.BABU KUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2010, ALONG WITH WPC NO. 21382 OF 2010 AND CONNECTED CASES,THE COURT ON 04/08/2010 DELIVERED THE FOLLOWING: WP(C) NO. 21166/2010-U APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE NOTIFICATION DATED 05/06/2010 ISSUED BY THE 1ST RESPONDENT ALONG WITH ANNEXURE CONTAINED AT PAGE 7 AND 8 OF THE NOTIFICATION. EXT.P2: COPY OF THE DECISION DATED 14/06/2010 OF THE ERATTUPETTAH BLOCK PANCHAYAT ALONG WITH FORWARDING LETTER DATED 24/06/2010 OF THE THALAPPALAM GRAMA PANCHAYAT. EXT.P3: COPY OF THE RESOLUTION NO.1 DATED 14/06/2010 OF THE THALAPPALAM AGRAMA PANCHAYAT. EXT.P4: COPY OF THE REPRESENTATION DATED 24/06/2010 SUBMITTED BY THE THALAPPALAM GRAMA PANCHAYAT TO THE 1ST RESPONDENT. EXT.P5: COPY OF THE NOTIFICATION DATED 02/07/2010 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R4(a): COPY OF THE RESOLUTION PASSED BY THE 3RD RESPONDENT DATED 14/06/2010. EXT.R4(b): COPY OF THE INTIMATION ISSUED BY THE 4TH RESPONDENT DATED 09/06/2010. //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) Nos.21166/2010-U, 21254/2010-F, 21382/2010-W & 21437/2010-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of August, 2010. JUDGMENT In these writ petitions, the challenge is against the preliminary and final notifications dated 5.6.2010 2.7.2010, whereby certain Village Panchayats forming the area of Block Panchayats have been excluded and added to other Block Panchayats. 2. In W.P.(C) No.21166/2010, the challenge is against the exclusion of Thalappalam Grama Panchayat from the existing Erattupetta Block Panchayat, in W.P.(C) No.21382/2010 the exclusion of Thidanadu Grama Panchayt from the existing Erattupetta Block Panchayat, is under challenge. The above two Grama Panchayats are sought to be included in Lalam Block Panchayat. W.P.(C) No.21254/2010 concerns the challenge against the delinking of Kottappady Grama Panchayat from Kothamangalam Block Panchayat and inclusion of the same in Koovappady Block Panchayat and W.P.(C) No.21437/2010 concerns the challenge against deletion of Thirunavaya Grama Panchayat from Thirur Block Panchayat and the inclusion of the same in Kuttippuram Block Panchayat. wpc 21166/2010, etc. 2 2. The preliminary notification issued by the Government is common to all Districts, which is produced as Ext.P1 in W.P.(C) No.21166/2010. The same is dated 5.6.2010. The notification concerns reorganisation of certain Block Panchayats in different districts. The objections of individuals, Local Self Government Institutions, etc. have been sought for, which had to be submitted within 15 days from the date of notification. The final notification is produced as Ext.P5 therein, which is dated 2.7.2010 which is also common one. The reconstitution of the Block Panchayats will be effective from 1.10.2010. 3. Heard Shri K. Ramakumar, learned Senior Counsel, Shri P.V. Baby, Shri Shaji Thomas and Shri Kaleeswaram Raj, learned counsel appearing for the petitioners, Shri C.M. Suresh Babu, learned Govt. Pleader, Shri Murali Purushothaman, learned Standing Counsel for the Election Commission and Shri K. Jaju Babu, Shri M.R. Nandakumar and Shri P. Babu Kumar, learned Counsel appearing for the respective Panchayats. 4. One of the main grounds of attack about the proposal is want of consultation and its sufficiency with the Panchayats concerned, as provided under Section 4(2) of the Kerala Panchayat Raj Act, 1994 (for short 'the Act'). Further, it is pointed out that the opportunity given to submit wpc 21166/2010, etc. 3 objections was not at all a sufficient one and none of the objections have been considered by the Government while issuing the final notification, in their correct perspective. It is also pointed out that in directing exclusion of certain Village Panchayats from the existing Block Panchayats and including them in other Block Panchayats, the Government has not adopted any rational basis and the geographical as well as other relevant criteria including lack of transport facility to reach the headquarters of the new Block Panchayats and the difficulties of the people to avail the benefits, have not at all been considered. It is also pointed out that no scientific study has been conducted by the Government in the whole exercise especially with regard to the geographical factors, the facilities available for the existing Block Panchayats and the administrative difficulties. It is also pointed out that the blatant disregard has been shown to the opinions of the respective Village Panchayats and Block Panchayats in taking such a drastic step and the objections have not been considered on its merits. It is further pointed out that the resultant actions are unreasonable, arbitrary and illegal and without any application of mind to the relevant aspects including population, geographical criteria and other important aspects. 5. Before going into the respective contentions of the parties, it is necessary to consider the provisions of the Constitution and the statutory wpc 21166/2010, etc. 4 provisions. In Part IX of the Constitution, Article 243(c) defines 'intermediate level'. It means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purpose of that Part. Section 4 of the Act gives power to the Government to constitute and specify the name and headquarters of Panchayats which is reproduced below: “4. Power of the Government to constitute and specify the name and headquarters of Panchayat.-- (1) The Government shall, by notification in the Gazette, constitute with effect from such date as may be specified in the notification,-- (a) a Village Panchayat for each village or for group of villages; (b) a Block Panchayat at intermediate level; and © a District Panchayat for each District Panchayat area and specify the names and headquarters of such Panchayats.” (2) The Government may, at the request of the Panchayat concerned, or after consultation with the Panchayat and after previous publication of the proposal by notification,-- (a) increase the area of any village Panchayat or Block Panchayat by including within such Panchayat area any village or group of villages; (b) diminish the area of any village panchayat or Block Panchayat by excluding from such Panchayat area any village or group of villages; wpc 21166/2010, etc. 5 © alter the headquarters of a Panchayat at any level; or (d) alter the name of a panchayat at any level; Provided that any alteration extending or reducing the area of a Village Panchayat or Block Panchayat under clause (a) or clause (b) shall not be brought into force before the expiry of the term of the existing committee of that Panchayat. (3) The Government may, after consultation with the Panchayat pass such orders as they deem fit as tot he disposal of any part of the property vested in a Village Panchayat or Block Panchayat which has ceased to exercise jurisdiction over any village or group of villages and the discharge of the liabilities of the Village Panchayat or Block Panchayat relating to such property or arising from such village including all matters connected therewith or incidental thereto.” There was no enabling provision to increase the area of a Block Panchayat or diminish its area and the like and an amendment was introduced as per the Kerala Panchayat Raj (Amendment) Ordinance 2010 which was published in the Kerala Gazette Extra-ordinary dated 17.5.2010. The words 'or Block Panchayat' are thus introduced in Sections 4(2)(a) and 4(2) (b), its proviso and in Section 3 of the Act. 6. The first question that is to be considered is whether, for lack of consultation, the notifications Exts.P1 and P5 are invalid in law. Learned counsel for the petitioners argued that Section 4(2) is mandatory and the wpc 21166/2010, etc. 6 proposal itself can be made by the Government only after consultation with the Panchayats. It is submitted that the exercises under sub-sections (2)(a) and (2)(b) can be made by the Government at the request of the Panchayats concerned and in that case consultation and previous publication are not envisaged. When the Government initiates the proposal itself, it can be only after consultation with the Panchayats and after previous publication of the proposal by a notification and herein, even without consulting any of the Panchayats, the Government issued Ext.P1 notification proposing to alter the areas and to amend the earlier notification of the year 1994 constituting the existing Block Panchayats. The decision of a learned Single Judge of this Court in Anil Kumar v. State of Kerala (2005 (3) KLT 355), with regard to the requirement of mandatory nature of the consultation, is relied upon in this context. It is submitted that for consultation to be meaningful the views of the Panchayats and Block Panchayats are relevant. 7. Learned Govt. Pleader submitted that there is no mandatory requirement to consult the Panchayats and the provision is only directory. Herein, the proposals have been communicated to the respective Panchayats to inform their objections, if any, and therefore there was a proper consultation also. 8. The argument of the learned counsel for the petitioners were wpc 21166/2010, etc. 7 supported by Shri K. Jaju Babu and Shri P. Babu Kumar, learned counsel appearing for the Panchayats in W.P.(C) No.21382/2010 and Shri M.R. Nandakumar appearing for the fourth respondent in W.P.(C) 21437/2010. 9. In Anil Kumar's case (2005 (3) KLT 355), the scope of the very same provision was considered. Therein, the communications of the Government to bifurcate the Panchayats were addressed to the Presidents of different Panchayats and the final notification was under challenge, whereby the proposals were finalised. It was held that the Section insists for consultation with the Panchayats and the communications addressed to the Presidents of the Panchayats will not satisfy the method provided under Section 4(2)(b). It was held thus in para 6: “S.4(2)(b) of the Act provides, inter alia, that the Government may, after consultation with the Panchayat and after previous publication of the proposal by notification, diminish the area of any village panchayat or Block Panchayat by excluding from such Panchayat area any village or group of villages. This means that the Panchayat has to be consulted before the area of the Village Panchayat is diminished. Panchayat, in so far as it is relevant in this case, means a Village Panchayat as defined in S.2(xxv) of the Act and it shall have perpetual succession and a common seal and has the other necessary incidents. This is the effect of S.5 of the Act. S.7 provides for composition of a Village Panchayat. Having regard to the concept of wpc 21166/2010, etc. 8 'Panchayat' and the nature of its composition, the consultation that is required under S.4 of the Act is a consultation with the Panchayat, thereby meaning that any proposal in the form of Ext.P1 ought to have been placed before the Panchayat, in its Committee, for consideration.” Further, in para 7 it was also laid down that “the use of the conjunction 'and' in S.4(2) of the Act, makes it abundantly clear that consultation with the Panchayat and previous publication of the proposal are necessary before a decision to diminish the area of a Panchayat is taken by the Government, on its proposal.” In the light of the above, the argument of the learned counsel for the petitioners will now be considered. 10. It is clear from sub-sections (2)(a) to 2(d) of Section 4(2) that those indicate the final decision to be taken by the Government by increasing the area, diminishing the area, altering the headquarters of a Panchayat or altering the name of a Panchayat. The Block Panchayats have already been constituted under Section 4 (1) at intermediate level by a notification dated 22.4.1994, which is now sought to be amended by the present notification dated 5.6.2010. Therefore, the same (Ext.P1) is the proposal. Does Section 4(2) of the Act requires a previous consultation for making the proposal itself? Since Section 4(2) evidently refers to the steps to be taken by the Government before taking a final decision and issuing a wpc 21166/2010, etc. 9 consequential notification, the argument that even before a proposal is made, there should be consultation, is beyond the scope of the section itself. What is mentioned in Section 4(2) is that in a case where action is not being taken at the request of the Panchayat, the Government may, after consultation with the Panchayat and after previous publication of the proposal, issue the final notification. Therefore, two elements are to be satisfied, ie. “consultation with the Panchayat and previous publication of the proposal.” Herein, Ext.P1 is the proposal. Consultation and previous publication being two elements of the statutory mode to be complied with, before a final notification is issued, it cannot be said that consultation should precede even the publication of the proposal. 11. Even though learned counsel for the petitioners relied upon paragraphs 6 and 7 of the judgment in Anil Kumar's case (2005 (3) KLT 355), in support of the plea, I am afraid, a close reading of the dictum shows that it is not to the effect that even before a proposal is published, there should be consultation. This is clear from the finding in para 7 that “the use of the conjunction 'and' in S.4(2) of the Act, makes it abundantly clear that consultation with the Panchayat and previous publication of the proposal are necessary before a decision to diminish the area of a Panchayat is taken by the Government, on its proposal.” The word 'decision' therein wpc 21166/2010, etc. 10 indicates the final decision leading to the notification and not the notification indicating the proposal. The ultimate decision to be taken by the Government is on its proposal, before which consultation has to be made with the Panchayats. 12. Evidently, consultation under Section 4(2) is a procedural requirement which is a pre condition for the validity of the subsequent decision. It is well settled that if the statute requires a particular thing to be done in a particular manner, then it shall be done in that manner or not at all. This also indicates that the provision is mandatory. 13. Even though learned Govt. Pleader submitted that the consultation with the Panchayat is not mandatory, evidently, the said contention cannot be accepted in the light of the dictum laid down in the above decision itself. It was specifically held in para 6 that “the Panchayat has to be consulted before the area of the Village Panchayat is diminished.” When the words 'or Block Panchayat' are introduced in the amendment, the same yardstick will apply to a Block Panchayat also. Further, the said aspect is covered by a decision of the Apex Court in State of Maharashtra and others v. Jalgaon Municipal Council and others {(2003) 9 SCC 731), wherein, considering a similar provision of Section 6 wpc 21166/2010, etc. 11 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Township Act, 1965, it was held in para 38 that “consultation with the Municipal Council is mandatory.” Therein, the conversion was of a Municipal Council to a Municipal Corporation. It was held in para 39 further that, “however, no provision of law has been brought to our notice which requires that even a proposal for constitution of a Municipal Corporation cannot be published without consultation. Consultation must take place at any one stage before finalisation of the proposal.” Therefore, consultation with the Panchayat is mandatory. 14. Herein, a dispute was also raised whether actually the Panchayats were consulted. What is communicated to the respective Village Panchayats and Block Panchayats is the copy of Ext.P1. The averments in the additional counter affidavit show that Ext.P1 was published in the Kerala Gazette Extra-ordinary No.1282 dated 5.6.2010. The Government gave directions to the Commissioner for Rural Development to take immediate steps to make available the copies of the Government Notification to all Block Panchayats wherein a change is proposed in the constituent Grama Panchayats in their jurisdiction and to all Grama Panchayats concerned and get the decisions of the concerned local bodies conveyed to the Government within the stipulated time. By letter wpc 21166/2010, etc. 12 No.5060/DP4/09/CRD dated 9.6.2010 of the Commissioner for Rural Development, copies of the notification were e-mailed to the Secretaries of all Block Panchayats and instructed to bring the notification to the notice of the Block Panchayats and the Grama Panchayats in the Block Panchayat area where change is proposed in the constituent Grama Panchayat of the Block Panchayat and to give the objections/suggestions of the Panchayat to Local Self Government (EM) Department by 15.6.2010. Copy of the letter dated 9.6.2010 and the notification were also sent by post to all Block Panchayat Secretaries on 10.6.2010 and the same were published in the website also. It is further contended that for the last 3 - 4 years communications are being made by the Government/Head of the Departments and the Local Self Government Institutions through e-mail which is effective. It is further pointed out that all decisions/opinions conveyed by the Local Self Government Institutions concerned upto the date of hearing (25.6.2010) were taken into consideration by the Government also. The objections were disposed of as per G.O.(Ms) No.1382010/LSGD dated 1.7.2010 and the final notification was issued on 2.7.2010 which was notified as S.R.O.No.659/2010. It is evident from the same that the Government has forwarded the proposal to the Panchayats concerned for their opinions and suggestions and many of the Panchayats wpc 21166/2010, etc. 13 have forwarded their resolutions, of course, objecting to the same. Personal hearing was also extended, not individually but collectively on 25.6.2010. 15. In the light of the above steps taken by the Government, the argument that there was no consultation cannot be accepted. Of course, the further question is whether there was a meaningful or effective consultation, since the term 'consultation' in Section 4(2) is a pre requirement for a final notification. It is well settled that the Court can examine whether there was sufficient consultation. 16. The ambit and scope of the word 'consultation' has been the subject matter of interpretation by the Apex Court in various decisions. My attention was also invited to a decision of this Court in Ajith v. State of Kerala (2007 (2) KLT 1044). 17. The question was elaborately considered by the Supreme Court in Supreme Court Advocates-on-Record Association and others v. Union of India {(1993) 4 SCC 441}, while interpreting Articles 124(2), 217(1), and 221(1) of the Constitution of India. The question arose in connection with the various principles governing the appointment of Judges in the Supreme Court and High Court and transfer of Judges/Chief Justices of High Courts. The dictum laid down by the Madras High Court in wpc 21166/2010, etc. 14 R. Pushpam and another v. State of Madras (AIR 1953 Madras 392) while considering the scope of the term “after consulting the Municipal Council” under the Madras District Municipalities Act, 1920, was approvingly referred to in para 124 of the judgment, which is reproduced below: “124. In Madras District Municipalities Act, 1920, Section 3 read that “for the purpose of election of Councillors to a Municipal Council, the Local Government 'after consulting the Municipal Council' may by notification divide the Municipality into wards...” K. Subha Rao, J. (as the learned Chief Justice of this Court then was) who then adorned the Bench of the Madras High Court interpreted the word 'consult' in R. Pushpam v. State of Madras as under: “It is clear from the aforesaid observations that the Court will have to scrutinise in each case whether the requisite consultation has taken place, having regard to the substance of the events. The word 'consult' implies a conference of two or more persons or an impact of two or more minds in respect of a topic in order to enable them to evolve a correct, or at least, a satisfactory solution. Such a consultation may take place at a conference table or through correspondence. The form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions. The wpc 21166/2010, etc. 15 consultation must enable the consulter to consider the pros and cons of the question before coming to a decision. A person consults another to be elucidated on the subject-matter of the consultation. A consultation may be between an uninformed person and an expert or between two experts. A patient consults a doctor; a client consults his lawyer; two lawyers or two doctors may hold consultations between themselves. In either case the final decision is with the consultor, but he will not generally ignore the advice except for good reasons. So too in the case of a public authority. Many instances may be found in statutes when an authority entrusted with a duty is directed to perform the same in consultation with another authority which is qualified to give advice in respect of that duty. It is true that the final order is made and the ultimate responsibility rests with the former authority. But it will not, and cannot be, a performance of duty if no consultation is made, and even if made, is only in formal compliance with the provisions. In either case the order is not made in compliance with the provisions of the Act.” It is evident that a formal compliance of the provision regarding consultation is not that is indicated in the provision. It was held that “ the form is not material but the substance is important. It is necessary that the consultation shall be directed to the essential points and to the core of the subject involved in the discussions.” These are important principles to be wpc 21166/2010, etc. 16 applied while considering the sufficiency of the consultation initiated by the Government herein also. Keeping in mind the above principles, the question whether the Government has properly consulted the Panchayats and has considered the relevant materials projected by them in effecting diminition of the area of certain Block Panchayats, arises for consideration. 18. The facts of the cases point out the following scenario. In W.P.(C) NO.21166/2010, the Grama Panchayat concerned is Thalappalam Grama Panchayat which was included in Erattupetta Block Panchayat from 1994, with its Head Office at Aruvithara. By Ext.P1, Thalappalam Grama Panchayat is sought to be excluded from Erattupetta Block Panchayat and to be included in Lalam Block Panchayat. It is pointed out that the population figure in Erattupetta Block panchayat, will come down to 94632 and the same will increase in Lalam Block Panchayat to 136291. Erattupetta Block Panchayat has passed a resolution as per Ext.P2 opposing the same. Apart from Thalappalam Grama Panchayat, another Panchayat, viz. Thidanadu Grama Panchayat is also sought to be excluded from Erattupetta Block Panchayat, which is the subject matter of W.P.(C) No.21382/2010. Ext.P3 is the resolution passed by the Thalappalam Grama Panchayat opposing the move. The headquarters of Erattupetta Block Panchayat is at Aruvithara and the distance from Thalappalam to Aruvithara is only 4 kms. wpc 21166/2010, etc. 17 The headquarters of Lalam Block Panchayat is Anthinadu which will be more than 15 kms. from Thalappalam. From certain areas, viz. Kalathukadavu, the distance will be 25