IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 9TH FEBRUARY 2010 / 20TH MAGHA 1931 WP(C).No. 36451 of 2009(B) -------------------------------------- PETITIONER: ------------------- THRIKKAKKARA GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY (SPECIAL GRADE), KAKKANAD, ERNAKULAM. BY ADV. MR.S.SHANAVAS KHAN. RESPONDENTS: ------------------------ 1. THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS ,THIRUVANANTHAPURAM. 2. M/S MIR REALTORS PVT LTD., IST FLOOR M.M. BUILDING, NEAR NORTH TOWN HALL, ERNAKULAM, REPRESENTED BY ITS MANAGING DIRECTOR. R1 BY GOVT. PLEADER MR. P.V. MANU, R2 BY ADV. MR.ABRAHAM MATHEW (VETTOOR). THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36451/2009-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE BUILDING PERMIT ISSUED IN FAVOUR OF THE R.2. DTD. 27/12/07. EXT.P.2: COPY OF THE LETTER OF UNDERTAKING DTD. 06/03/05 ISSUED BY THE R.2. IN FAVOUR OF THE PANCHAYATH. EXT.P.3: COPY OF THE DECISION NO. IV(9) DTD. 10/11/08 OF THE PANCHAYATH COMMITTEE. EXT.P.4: COPY OF THE REPORT DTD. 11/05/09 PREPARED BY ASSISTANT ENGINEER, PERIYAR VALLEY, IRRIGATION DIVISION, PERUMBAVOOR. EXT.P.5: COPY OF THE NOTICE DTD. 27/05/09 OF THE PETITIONER. EXT.P.6: COPY OF THE REPLY NOTICE DTD. 10/06/09 ISSUED BY THE R.2. EXT.P.7: COPY OF THE NOTICE NO.A2-320/09 DTD. 17/07/09 OF THE PETITION. EXT.P.8: COPY OF THE JUDGMENT DTD. 01/07/09 IN W.P.(C).NO.16748/09 OF THIS HONOURABLE COURT. EXT.P.9: COPY OF THE ORDER NO. A2 320/09 DTD. 10/08/09 OF THE PETITIONER. EXT.P.10: COPY OF THE ORDER DTD. 12/10/09 IN APPEAL NO. 759/09 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS. EXT.P.11: COPY OF THE LETTER NO.A2-29786/09 DTD. 20/06/09 OF THE DISTRICT COLLECTOR, ERNAKULAM. EXT.P.12: COPY OF THE REPORT DTD. 03/06/09 OF THE VILLAGE OFFICER, KAKKANAD. EXT.P.13: COPY OF THE LETTER DTD. 30/04/09 OF THE SENIOR TOWN PLANNER, ERNAKULAM, WHICH CONCRETES THE FACT THAT THE ACCESS TO THE 2ND RESPONDENT'S BUILDING IS ONLY 4.5. METRES. EXT.P.14: COPY OF THE ORDER DTD. 28/08/09 IN APPEAL NO.647/2009 OF THE R.1. EXT.P.15: COPY OF THE ORDER DTD. 09/11/09 IN APPEAL NO.812/09 OF THE R.1. RESPONDENTS' EXHIBITS: EXT.R2.A: COPY OF THE SHOW CAUSE NOTICE ISSUED BY THE R.2. TO THIS RESPONDENT DTD. 27/05/09. EXT.R2.B: COPY OF THE DETAILED REPLY SUBMITTED BY THE RESPONDENT TO THE SHOW CAUSE NOTICE DTD. 10/06/09. W.P.(C). NO.36451/2009-B: EXT.R2.C: COPY OF THE REPORT SUBMITTED BY ENGR. K.A. MUHAMMEDKUNJU DTD. 27/06/2009. EXT.R2.D: COPY OF THE DRAFT DECISION COMMUNICATED BY THE R.2. DTD. NIL. EXT.R2.E: COPY OF THE ALLEGED MINUTES OF THE MEETING HELD ON 08/07/2009. EXT.R2.F: COPY OF THE STOP MEMO ISSUED BY THE R.2. TO THE RESPONDENT DTD. 17/07/2009. EXT.R2.G: COPY OF THE STATEMENT OF OBJECTION DTD. NIL. FILED BY THE PANCHAYAT IN APPEAL NO. 647/2009 BEFORE THE LSGI TRIBUNAL. EXT.R2.H: COPY OF THE JUDGMENT PASSED BY THE LSGI TRIBUNAL, TRIVANDRUM IN APPEAL NO. 647/2009 DTD. 28/08/2009. EXT.R2.I: COPY OF THE ORDER NO. A2 320/2009 ISSUED BY THE PANCHAYAT SECRETARY SUSPENDING THE BUILDING PERMIT DTD. 18/09/2009. EXT.R2.J: COPY OF THE NOTICE OF INSPECTION ISSUED BY THE PANCHAYAT SECRETARY TO THE PETITIONER DTD. 14/12/2009. EXT.R2.K: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECRETARY OF THE PANCHAYAT DTD. 23/12/2009. EXT.R2.L: COPY OF THE NOTICE NO.A2.320/09 ISSUED BY THE PANCHAYAT SECRETARY SUSPENDING THE PERMIT DTD. 04/01/2010 AND RECEIVED BY THIS RESPONDENT ON 12/01/2010. EXT.R2.M: COPY OF THE NOTICE ISSUED BY THE ASST: ENGINEER, KSEB, ELECTRICAL SECTION, THRIKKARA DTD. 01/01/2010. //TRUE COPY// P.S. TO JUDGE. Prv. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.36451 OF 2009 (B) -------------------------------------------------- Dated this the 9th day of February, 2010 J U D G M E N T The challenge in this writ petition is against Ext.P10, an order passed by the Tribunal for Local Self Government Institutions in Appeal No. 759/2009. That appeal was filed by the 2nd respondent, against Ext.P9 notice dated 10.8.2009 issued by the Panchayat based on its resolution dated 7.8.2009 cancelling Ext.P3 resolution dated 10.11.2008. 2. The 2nd respondent is a builder who commenced development of a township on the strength of a Non objection Certificate issued by the Panchayat as early as in 2005, when the Kerala Municipality Building Rules were not applicable to the Panchayat. After the Building Rules became applicable, application was made by the 2nd respondent and Ext.P1 building permit was issued. 3. According to the Panchayat, by Ext.P3 an application made by the 2nd respondent in November, 2008, seeking permission to dig drainages for laying electric cables was allowed by Panchayat. However, on the allegation that the 2nd respondent did not honor WPC.No. 36451/09 :2 : the commitments undertaken by it in Ext.P2 to construct drainages, proceedings were initiated which ultimately resulted in the resolution dated 7.8.2009 cancelling Ext.P3. In pursuance to the aforesaid resolution, Ext.P9 notice was issued which was challenged by the 2nd respondent in Appeal No.759/2009 filed before the Tribunal. By Ext.P10 order, the Tribunal set aside Ext.P9 and the decision dated 7.8.2009 and directed the Panchayat to act in accordance with Ext.P3. 4. Two reasons are stated in Ext.P10 order. One is that the decision on Ext.P7 and Ext.P9 are not in compliance with Rule 11 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995. The other reason is that, by an order passed by the Tribunal in Appeal No.647/2009, further proceedings pursuant to the stop memo which was already issued was stayed. According to the Tribunal it was during the pendency of the aforesaid appeal that the Panchayat initiated steps resulting in Ext.P9 and therefore the attempt of the Panchayat was to overreach the interim order passed by the Tribunal. WPC.No. 36451/09 :3 : 5. I shall first deal with the finding on Rule 11 of Rules. Rule 11 provides for cancellation or modification of resolutions. As per this Rule, no resolution of a Panchayat shall be modified or cancelled except through a resolution passed in a meting specially convened for the purpose within three months of passing such resolution, by a two third majority of the total number of members of the Panchayat. Proviso to the Rule states that where the Panchayat is satisfied that a decision or resolution passed by the Panchayat has not been passed in accordance with law or that it has been passed in violation of any of the powers conferred on the Panchayat by the Act or abuse there of or that, if implemented, it may endanger human life, health or public safety, the Panchayat may, at any time with the approval of more than one half of the total number of members of the Panchayat, amend or repeal such decision or resolution. 6. Ext.P3 resolution was passed as early as on 10.11.2008 and the subsequent resolution cancelling the same was passed by the Panchayat only on 7.8.2009. This is well beyond the three months provided in the main part of the Rule and therefore only if WPC.No. 36451/09 :4 : the requirements of the proviso are satisfied, then alone could the Panchayat sustain the resolution. As rightly pointed out by the Tribunal, Ext.P9 notice does not even make reference to Ext.P3. Further Ext.P9 does not say that Ext.P3 was not passed in accordance with law, or that it was passed in violation of any of the powers conferred on the Panchayat by the Act or abuse there of or that, if implemented, it may endanger human life, health or public safety. These are the conditions precedent specified in the Rule for invoking the power available to the Panchayat under the Proviso. Therefore Ext.P9 does not satisfy any of the requirement of the Rule and if that be so, the finding of the Tribunal that Ext.P9 is vitiated for violation of Rule 11 has to be upheld. 7. The other ground on which the Tribunal interfered with the matter is that the attempt of the Panchayat was to over reach the interim orders passed by the Tribunal in Appeal No. 647/2009. Appeal No.647/2009 was against Ext.P7 stop memo issued by the Panchayat on 17.7.2009. The stop memo issued was pursuant to a proceeding initiated by the Panchayat under Rule 16 of the Kerala Municipality Building Rules. Therefore, it is evident that the Subject WPC.No. 36451/09 :5 : matter of the stop memo, which was the subject matter of appeal No.647/2009 is different from the subject matter of the resolution dated 7.8.2009 and Ext.P9 notice dated 10.8.2009. If that be so, the stay granted in appeal No.647/2009 could not have stood in the way of Panchayat passing resolution dated 7.8.2009 and for this reason, the resolution cannot be said to be an attempt to over reach the order of the Tribunal. 8. However, irrespective of the validity of the reasoning of the Tribunal relying on the stay order passed by it in appeal No.647/2000, since I have endorsed the reasoning of the Tribunal on the first issue, Ext.P10 order has to be sustained and I do so. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No. 36451/09 :6 :