IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 4TH DAY OF JULY 2011 / 13TH ASHADAH 1933 WP(C).No. 5888 of 2006 --------------------------- PETITIONER(S) ---------------- 1 M. HASHIM, THEJAS, VALIYAVAZHY, KAITHOD P.O., NILAMEL, KOTTARAKARA, KOLLAM. 2 N. SURENDRAN NAIR, S.V. SADANAM, KAITHOD P.O., NILAMEL, KOTTARAKARA, KOLLAM. BY ADVS.SRI.N.NANDAKUMARA MENON (SR.) SRI.K.VINODKUMAR RESPONDENT(S): -------------------- 1. THE NILAMEL GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, NILAMEL, KOTTARAKARA, KOLLAM. 2. P.R. SANJEEV, MANAGING DIRECTOR, MILMA, PATTOM, THIRUVANANTHAPURAM. 3. THE MILMA, REPRESENTED BY ITS MANAGING DIRECTOR, PATTOM P.O., THIRUVANANTHAPURAM. 4. V. SYAMALA KUMARI AMMA, PRESIDENT, NILAMEL GRAMA PANCHAYAT, NILAMEL, KOTTARAKARA, KOLLAM. 5. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. R3 BY ADV. SRI.K.ANAND (A.201) R,R1 & 6 BY ADV. SRI.ELVIN PETER P.J. R5 BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR R, BY ADV. SMT.LATHA KRISHNAN R, BY ADV. SRI.C.P.SUDHAKARA PRASAD (SR.) R3, BY SRI.B.S.KRISHNAN, SC, MILMA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-07-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).5888/2006 APPENDIX PETITIONERS' EXHIBITS: P1:THE PHOTOSTAT COPY OF THE RESOLUTION DATED 23.3.2004 ISSUED BY THE PRESIDENT, NILAMEL GRAMA PANCHAYAT. P2:THE PHOTOSTAT COPY OF THE PROJECT REPORT DATED 2002-2003 SUBMITTED BY THE NILAMEL GRAMA PANCHAYAT. P3: THE PHOTOSTAT COPY OF THE RESOLUTION OF THE NILAMEL PANCHAYAT ISSUED BY THE PRESIDENT DATED 30.3.2004. P4:THE PHOTOSTAT COPY OF THE SALE DEED NO.1384 DATED 30.3.2004. P5:THE PHOTOSTAT COPY OF THE RECEIPT ISSUED BY THE VILLAGE OFFICER, NILAMEL TO THE PANCHAYAT SHOWING THE PAYMENT OF TAX. P6:THE PHOTOSTAT COPY OF THE ROUGH SKETCH BLOCK NO.40 SURVEY NO.232/3-2. P7: THE PHOTOSTAT COPY OF THE RESOLUTION NO.2 DATED 18.11.2005 PASSED BY THE NILAMEL PANCHAYAT. P8:THE TRUE COPY OF THE GOVERNMENT ORDER NO.266/06/L.S.D ISSUED BY THE GOVERNMENT DT.1.2.06. P9:THE PHOTOSTAT COPY OF THE REPRESENTATION DATED 9.1.2005 SUBMITTED BY THE PRESIDENT, NILAMEL GRAMA PANCHAYAT BEFORE THE HON'BLE CHIEF MINISTER, THIRUVANANTHAPURAM. P10:THE PHOTOSTAT COPY OF THE NEWS ITEM DATED 24.2.2006 PUBLISHED BY THE MATHRUBHUMI MALAYALAM DAILY. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). No.5888 OF 2006 -------------------------------------------- Dated this the 4th day of July, 2011 JUDGMENT The petitioners were respectively the erstwhile President and Vice President of Nilamel Grama Panchayat. They filed this Writ Petition seeking quashment of Exts.P7 and P8 and for issuance of a writ of mandamus restraining the first respondent panchayat from transferring, alienating or handing over possession of 60 cents of property comprised in Re.Sy.No.232/3-2 of Nilamel Village of Kottarakara Taluk in Block No.40 in favour of the third respondent. 2. A succinct narration of facts is required for deciding whether the petitioners are entitled to the reliefs sought for in this Writ Petition. Pursuant to Ext.P1 resolution dated 23.3.2004 passed by the Nilamel panchayat, they got prepared Ext.P2 project report and the same was duly approved by the District Planning Committee for the year 2002-'03. Since it could not be implemented during the year 2002-'03, due to certain technical reasons, such sanction was extended for the period 2003-'04. Later, based on the approval granted by the W.P.(C) No.5888/2006 2 District Planning Committee, the panchayat passed Ext.P3 resolution deciding to purchase an extent of 72 cents of land for a value of Rs.6,55,200/- from one Rasheeda Beevi and consequently, purchased the said extent of land comprised in Re.Sy.No.232/3-2 of Nilamel Village as per Ext.P4 sale deed. Ext.P5 is the property tax receipt. Subsequently, Ext.P7 resolution was passed, on 18.11.2005 whereby it was decided to surrender 60 cents of land out of the total extent of 72 cents purchased as per Ext.P4 in favour of MILMA for establishing a chilling plant. Ext.P7 would reveal that 5 of the members of the panchayat committee expressed their strong dissent to the resolution adopted as per Ext.P7. The decision in Ext.P7 is to surrender 60 cents of land purchased by the panchayat as per Ext.P4 sale deed in favour of MILMA free of cost. Subsequently, in terms of the decision in Ext.P7, governmental sanction was sought for. Based on the requisition made by the panchayat, the Government considered the issue and passed Ext.P8 granting permission to the panchayat to surrender 60 cents of land free of cost to MILMA for the W.P.(C) No.5888/2006 3 alleged purpose of establishing a chilling plant. The panchayat has further proceeded with the said resolution and later, a news item appeared in Mathrubhumi daily. The said clippings is produced as Ext.P10. It is in the said circumstances that this Writ Petition has been filed mainly with the aforesaid prayers. 2. A counter affidavit has been filed in this Writ Petition by respondents 1 and 4. Separate counter affidavits have been filed by respondents 3 and 5. 3. The contention of the petitioners is that the panchayat committee has no authority to surrender the immovable property purchased by the panchayat as per Ext.P4 sale deed free of cost to MILMA as resolved in Ext.P7. To support their contention, the petitioners relied on the provisions under Section 166 of the Kerala Panchayat Raj Act (for short 'the Act'), very particularly, sub-section 8 thereunder. Sub-section 8 of Section 166 of the Act reads thus:- “The Village Panchayat shall not have any power to sell, transfer, alienate or pledge the properties transferred to it.” W.P.(C) No.5888/2006 4 4. In terms of sub-section 8 of Section 166, it is contended that the panchayat got no power to sell, transfer, alienate and pledge the properties transferred to it by the Government. In the counter affidavit filed on behalf of respondents 1 and 4, it is stated that this Writ Petition is premature as the petitioners could have approached the Government seeking cancellation of Ext.P7 resolution, in terms of Section 191 of the Act. I may deal with the said contention at the outset as it pertains to the maintainability of the Writ Petition itself. True that the petitioners could have been resorted to the remedy available under Section 191 of the Act for redressal of the grievances. It is the settled position of law that existence of an alternative remedy is no bar for entertaining a Writ Petition under Article 226 of the Constitution of India. True that it is a rule of discretion. When this Court exercised that discretion and admitted the Writ Petition into file, I am of the view that the respondents cannot be permitted to raise that contention at the time of disposal of the Writ Petition unless such a right was reserved at the time of admitting the Writ Petition. W.P.(C) No.5888/2006 5 Therefore, I am inclined to proceed with and decide the Writ Petition on merits. Being members of the committee, in fact, the then President and Vice President of the Panchayat which passed Ext.R1(a) resolution, are justified in raising objections against Ext.P7 resolution. A perusal of Ext.R1(a) would reveal that the committee presided over by the 1st petitioner decided only to purchase a property for starting a chilling plant and entrusting the same to TRCMPU (MILMA). There is nothing in the counter affidavit which would suggest that the 1st petitioner was a party to Ext.P7 resolution. Thus, it is obvious that the committee presided over by the 1st petitioner took only a decision to purchase another property for starting chilling plant and the decision by the said committee was not one for surrendering 60 cents of land out of the 72 cents purchased as per Ext.P4. Therefore, there is absolutely no reason to contend that the 1st petitioner cannot be heard to raise objections against Ext.P7. Being the erstwhile President and Vice President of the panchayat, the petitioners are perfectly justified in approaching this Court and I am of the view that W.P.(C) No.5888/2006 6 the decision in Ext.R1(a) cannot and will not be put against the 1st petitioner. In paragraph 7 of the counter affidavit, it is stated that the contention of the petitioners regarding the incompetency of the panchayat to transfer the property relying on Section 166(8) of the Act is absolutely bereft of any basis. It is contended therein that the prohibition under Section 166(8) of the Act is only for transfer, sale, alienation or pledging of properties transferred to it by the Government. The property concerned is the property purchased as per Ext.P4 sale deed. Therefore, the respondents are right in contending that the property covered by Ext.P4 is not one falling under the purview of Section 166(8) of the Act. However, I am of the view that, such contentions cannot save the situation for the respondents. They are bound to explain the source of power for the decision in Ext.P7. It is because of the provisions under the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 (for short 'the Rules 2005'). In this context, it is relevant to refer to Section 254 of the Act. Section 254 of the Act deals with the power of the W.P.(C) No.5888/2006 7 Government to make rules. Clause xxxvii of sub-section 2 of Section 254 is relied on by the learned counsel for respondents 1 and 4. 5. A perusal of Section 254 of the Act would reveal that it empowers the Government to make rules in respect of matters provided thereunder. It is true that clause xxxvii empowers the Government to make rules with respect to transfer of property belonging to the panchayat by sale, mortgaging, leasing, exchange or otherwise. The learned counsel placed much reliance on the word 'otherwise' employed in clause xxxvii. Evidently, it is in exercise of the powers conferred by Section 78 of the Act r/w sub-section 2 of Section 254 that the Rules, 2005 was made. Therefore, even going by the contentions of respondents 1 and 4 what is relevant for the purpose of deciding the issue involved in this case is the Rules, 2005 framed by the Government by invoking the power under clause xxxvii of sub-section 2 of Section 254 of the Act. Chapter II deals with the disposal of property. Rule 6 of the Rules, 2005 reads thus:- 6.Transfer of Panchayat's own property through sale--Panchayat may transfer any of its W.P.(C) No.5888/2006 8 own property by sale with the prior permission of the Government and such transfer shall be in accordance with Form II appended to these rules. Since the respondents did not have a case that the property in question was sought to be given only on rent or lease, licence, there is no need to look into the provisions under Rule 7. The other relevant provision apart from Rules 6 and 7 that empowers the panchayat to dispose of its property are Rules 8, 9 and 11 thereof. There is no case for the petitioners that it is by invoking such powers available under any of these provisions that decision in Ext.P7 was taken. Rule 6 of the Rules, 2005 enables the panchayat to dispose of its property by sale with prior permission of the Government. Thus, it is obvious that the panchayat is empowered to transfer its property relying on the power under Rule 6. 6. I have carefully considered the provisions under Rules, 2005. But, I could not find any provision thereunder that enables the panchayat to surrender the property acquired by it free of cost. Neither the counsel for respondents 1 and 4 nor the third respondent W.P.(C) No.5888/2006 9 could bring to my attention any provision under Rules, 2005 that enables the panchayat to take a decision as has been taken in Ext.P7 to surrender the land free of cost. The learned counsel for respondents 1 and 4 attempted to justify the action in Ext.P7 by relying on the word 'otherwise' employed in clause xxxvii of sub-section 2 of Section 254 of the Act. It is contended that it permits the Government to make rules to enable the panchayat to transfer its property otherwise than the methods prescribed under clause xxxvii. In that context, it is to be noted that the attempt of the petitioners is to canvass the position is that it is invoking provision under clause xxxvii of sub-section 2 of Section 254 and Section 178 of the Act that the Rules, 2005 have been made. Therefore, it is contended that the Government could have made a rule otherwise than the methods prescribed under clause xxxvii of sub-section 2 of section 254 of the Act. But, it is the admitted fact that the Government framed Rules, 2005 by invoking the said power and only prescribed methods for disposal of properties under Chapter II thereunder. The question is whether Government W.P.(C) No.5888/2006 10 could have made a rule otherwise than the methods under clause xxxvii of sub-section 2 of section 254 of the Act, but whether Government had in fact, made such provisions prior to Ext.P7. There is no case for the respondents that rules were framed in that manner. When that be the position, disposal of properties by a panchayat could be effected only in accordance with the methods prescribed under Chapter II of the Rules, 2005. As already noticed hereinbefore, the question is whether surrendering land free of cost that too, of a property purchased by diverting other funds can be effected by the panchayat especially when such a method is not prescribed under Chapter II. 7. As already noticed, Ext.P2 would reveal that a resolution was passed on 23.3.2004 to utilise all plan funds granted by the Government for the purpose of establishing public market. In furtherance of the said decision, a project report was also prepared as is obvious from Ext.P2. It is thereafter that the property in question was purchased as per Ext.P4. The said facts would reveal that the W.P.(C) No.5888/2006 11 respondent Panchayat has acquired the property covered as per Ext.P4. Once such a property is acquired, it can be disposed only in the manner permitted in terms of the rules framed by invoking the provisions under sub-section 2 of Section 254 of the Act. The Rules, 2005 is evidently, framed by invoking the powers conferred by Section 178 of the Act read with clause xxxvii of sub-section 2. Admittedly, Chapter II under Rules, 2005 deals with subject of disposal of property. The property belonging to the Panchayat could be disposed only in the manner specifically dealt with thereunder. When that be the position, the Panchayat can dispose of its property only in accordance with the provisions thereunder and not otherwise. 8. As already noticed hereinbefore, the learned counsel for respondents 1 and 4 relied on the word 'otherwise' employed under clause xxxvii of sub-section 2 of Section 254. In view of framing of the Rules, 2005, respondents 1 and 4 cannot rely on the said word 'otherwise' employed under clause xxxvii to justify the action taken by the respondents by passing a resolution to surrender the property W.P.(C) No.5888/2006 12 acquired by the Panchayat free of cost. The meaning of the word 'otherwise' pale into insignificance upon framing of Rules, 2005. Once the Rules, 2005 was framed invoking the powers conferred by Section 178 of the Act, acquisition as also disposal of properties can be made only in accordance with the provisions under the said Rules. As already noticed hereinbefore, Chapter II deals with the disposal of properties belonging to the Panchayat. Those provisions have to be strictly followed while disposing of properties belonging to the Panchayat. The inevitable consequence of non-adherence to such provisions would render the decision to do away with the property in total disregard to the provisions as illegal. As already noticed hereinbefore, neither respondents 1 and 4 nor the 3rd respondent bring to my notice any provision that empowers respondents 1 and 4 to surrender the property free of cost, as has been done in this case. 9. In the counter affidavit filed on behalf of the 3rd respondent, it has been stated that there is no establishment by name MILMA. MILMA is a brand name for the products manufactured by W.P.(C) No.5888/2006 13 Trivandrum Regional Co-operative Milk Producer's Union Ltd. It is stated that since the said Union is not impleaded as a party to this writ petition, it is liable to be dismissed for non-jointer of necessary parties. I cannot countenance with the said contention. I do not think that for repelling the said contention a consideration in detail is required. A mere extraction of the very first paragraph of the counter affidavit will serve the purpose. It is stated thereunder:- "I am the Managing Director of the Trivandrum Regional Co-Operative Milk Producer's Union Ltd. (hereinafter referred to as TRCMPU Ltd.). I know the facts of the case as disclosed in the files maintained in the office of M/s.TRCMPU Ltd.” Thus, it is evident that the counter affidavit is filed by the Managing Director of the TRCMPU after perusing the relevant records maintained in the office of the TRCMPU. In the said circumstances, the objection raised on the ground that TRCMPU is not impleaded as a party to this writ petition is absolutely bereft of any basis. The contention raised in this writ petition on the ground of estoppel also cannot be accepted. In fact, to contend that the first W.P.(C) No.5888/2006 14 petitioner is estopped from raising all these contentions, the respondents are relying on Ext.R1. I am of the view that the decision in the resolution in Ext.R1 is only for purchasing a property for the purpose of establishing chilling plant for MILMA. There is nothing in Ext.R1 which would suggest that the decision was to surrender the property acquired as per Ext.P4 free of cost. In view of the provisions under Chapter II of the Rules, 2005, property/properties belonging to a Panchayat could be disposed of only in the manner specifically provided thereunder. The principle, when a matter is directed to be done in a specific manner it should be done in that manner alone, is applicable in this case. I am of the view that such provisions have been incorporated under the Rules, 2005 to ensure that the properties of one Panchayat are not disposed of at the whims and fancies of the members of the committee of the Panchayat concerned at a given point of time. For all these reasons, I am of the view that the respondents have not assigned any reason to support and sustain the decision in Ext.P8. In the light of the provisions under Rules, 2005, I W.P.(C) No.5888/2006 15 have no hesitation to hold that the decision in Ext.P8 cannot be said to be a decision taken in terms of the provisions under the Rules, 2005 framed by invoking the power conferred by Section 178 of the Kerala Panchayat Raj Act read with clause xxxvii of sub-section 2 of Section 254 of the Act. When that be the position, the respondents cannot act upon Ext.P8. Ext.P8 cannot be sustained in law. On 28.2.2006, this Court passed an interim order. As per the said order, this Court granted a stay of implementation of Ext.P8. The said order was subsequently extended until further orders on 20.03.2006. Taking into account the position of law, as aforesaid, I am inclined to set aside Exts.P7 and P8. I do so. Accordingly, the writ petition is allowed. Sd/- C.T. RAVIKUMAR, JUDGE spc/jma W.P.(C) No.5888/2006 16 W.P.(C) No.5888/2006 17