IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 20TH NOVEMBER 2009 / 29TH KARTHIKA 1931 WP(C).No. 36902 of 2008(R) -------------------------- IOP.6/2007 of PRL.SUB COURT, KOZHIKODE .................... PETITIONER: --------------- CHELANNUR GRAMA PANCHAYATH, REP. BY ITS SECRETARY, CHELANNUR, CHELANNUR VILLAGE, KOZHIKODE TALUK, KOZHIKODE DIST. BY ADV. SRI.P.V.KUNHIKRISHNAN SMT.BINDU GEORGE RESPONDENT: --------------- C.P. SUDHEESH, S/O. CHARAPARAMBIL VELAYUDHAN, KOTHAKULANGARA, PALATH VILLAGE IN PALATH AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DIST. ADV. SRI.R.BINDU (SASTHAMANGALAM) FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX(WPC 36902/08) PETITIONER'S EXTS.: EXT.P1: A COPY OF THE PLAINT IN I.O.P.6/07 ON THE FILE OF THE SUB COURT, KOZHIKODE. EXT.P2: A COPY OF THE COUNTER FILED BY THE PETITIONER DATED 8.1.2008. EXT.P3: A COPY OF THE ORDER DATED 30.8.2008 IN O.P.NO.6/07 ON THE FILE OF THE SUB JUDGE, KOZHIKODE. S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.36902 of 2008 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 20th November, 2009 JUDGMENT The Writ Petition is filed seeking mainly the following reliefs: 1. To call for the entire records which lead to Ext.P3 and issue a writ of certiorari quashing the same. 2. To issue a writ order or direction, rejecting the plaint filed by the respondent as evident by Ext.P1 in the light of Order XXXIII Rule 5(f) of C.P.C. 2. Petitioner, a local authority, is the respondent in I.O.P.No.6 of 2007 on the file of the Sub Court, Kozhikode. That O.P. was filed by the respondent in the writ petition claiming compensation from the local authority towards the injury sustained by him by the collapsing of a concrete bridge constructed and maintained by the local authority over a stream when he stepped upon the slab to cross over the stream. When slab collapsed, he fell into the stream and sustained grievous injuries all over his person including multiple refractures was the basis of the claim for compensation. After issuing a notice to the local authority for claiming compensation, application filed by the respondent seeking permission to sue as an indigent W.P.C.No.36902/08 - 2 - person, after enquiry, was allowed by the court below negativing the objections raised by the local authority. P1 is the copy of that order. Propriety and correctness of P1 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. P1 order is challenged by the learned counsel for the petitioner/local authority contending that permission to sue as an indigent person could not have been granted to the respondent since the suit claim was barred by limitation. Permission to sue for compensation as indigent person was sought for six months after the issue of the notice, the upper limit fixed under Section 249(1)(b) of the Kerala Panchayat Raj Act, 1994 is highlighted by the counsel to contend that suit itself was barred by limitation, and that being so, the application for seeking permission to prosecute the claim as an indigent person is barred under Order 33 Rule 5 of the Code of Civil Procedure. On the other hand, learned counsel for the respondent relying on K.S.E.B. v. Bhaskaran Nair (2002(3) KLT 324) contended that since the claim is based on tortious liability, the suit claim presented within three years from the date of arising of the cause of action is within time and there is no W.P.C.No.36902/08 - 3 - merit in the objection raised by the local authority and it had been rightly and correctly negatived by the court below granting permission to the respondent to sue as an indigent person. 4. The question posed for consideration is whether, in the given facts of the case, the period of limitation prescribed for instituting the suit against the local authority under Section 249(1)(b) of the Kerala Panchayat Raj Act has any application or not. Section 249 of the Panchayat Raj Act contemplates of issuing a notice to the local authority before instituting a suit in respect of any act done or purported to be done by any authority, its President or Vice President or member/members or any officer. A time limit of six months is prescribed for instituting the suit after the issue of such notice if the relief canvassed has not been redressed. Section 249(1)(a) and (b) alone are relevant which reads thus: “249.Institution of suits against authorities of Panchayats, their officers, etc.- (1) No suit, or other civil proceedings against a Panchayat or against the President, the Vice-President or any other member, or employee thereof or against any other person acting under the direction of the Panchayat or any member or employee thereof for anything done or purporting to be done under this Act in W.P.C.No.36902/08 - 4 - its or his official capacity,- (a) shall be instituted until the expiration of one month after notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the nature of the relief which he claims, has been, in the case of a Panchayat delivered or left at the office of the Panchayat and in the case of a member, employee or person as aforesaid delivered to him or left at his office or at his usual place of abode and the plaint shall in each such case contain a statement that such notice has been so delivered or left; or (b) shall be instituted, unless it is a suit for the recovery of immovable property or for the declaration of title thereto, otherwise than within six months next after the accrual of the alleged cause of action.” Admittedly, a notice was issued by the respondent in respect of the compensation claimed on account of the injury sustained allegedly due to the negligence arising in the construction and nonmaintaining of the slab put up over a stream, and it was not responded to by the local authority. Application seeking permission to sue as an indigent person was filed beyond the time of six months after the issue of the notice is also not under dispute. When a period of limitation as W.P.C.No.36902/08 - 5 - different from general rule of limitation is prescribed by the provision under the statute, that provision alone is applicable in determining the question whether a claim has been presented within time is the case advanced by the learned counsel for the local authority. On the facts presented in the case where claim is based on the tortious liability imputed against the local authority, its negligence in the construction of a slab and also in maintaining it, which is stated to have collapsed when the respondent stepped over to cross the stream causing him grievous injuries, it has to be examined the claim to be prosecuted fall under sub-section (1)(a) of Section 249 of the Kerala Panchayat Raj Act, 1994. Notice need be given to the local authority only where a suit claim is based in respect of an act done or purported to be done by the local authority, its President or Vice President, any member or any officer of that authority. When the claim is based on tortious liability imputed against the local authority and not strictly with reference to any act to be done or purported to be done under the Panchayat Raj Act, a statutory notice is also quite unnecessary before instituting the suit for such a claim. To prosecute the local authority in respect of a claim arising against it on a tortious liability, the challenge raised with respect to the period of limitation W.P.C.No.36902/08 - 6 - prescribed under Section 249(1)(b) of the Kerala Panchayat Raj Act has no relevance. So much so, the challenge canvassed by the local authority under Order 33 Rule 5 (f) of the Code of Civil Procedure to resist the permission sought for by the respondent to sue as an indigent person is unworthy of any merit. No interference with the order passed by the learned Sub Judge in granting permission to the respondent to sue as an indigent person negativing the objections raised by the petitioner/local authority is called for. Writ Petition lacks merit, and it is dismissed. srd S.S. SATHEESACHANDRAN, JUDGE