IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 4282 of 2009(I) ------------------------------------ PETITIONER: ------------------- K.P.ANTONY, AGED 39 YEARS, S/O.K.A.PETER, CHAIRMAN, ACTION COUNCIL, CHELLANAM GRAMA PANCHAYATH, RESIDING AT KANAKKAPPALLY HOUSE, SOUTH CHELLANAM P.O., KOCHI –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rv. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) Nos. 4282 & 7127 of 2009 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 9th July, 2009. J U D G M E N T The subject matter of these two writ petitions are the same and therefore both were heard together and are disposed of by this common judgment. For convenience, I shall refer to the rank of parties and Exhibits as referred to in W.P(C) No. 7127 of 2009, which is the main case. 2. The 4th respondent is a Company conducting business as a service provider for mobile phone users. The Secretary of the 2nd respondent-Panchayat issued Ext. P1 building permit to the 4th respondent for constructing a telecommunication tower for installation of a Mobile Base Station. The Panchayat committee adopted a resolution dated 29-11-2008 to cancel Ext. P1 permit. By Ext. P3 communication dated 20-12-2008, the 3rd respondent- President of the Panchayat informed the 4th respondent about the said resolution and directed them to stop the construction of the tower with a caution that if they do not, the 4th respondent alone would be responsible for the law and order situation that may arise if the construction is continued. 3. It appears that on 31-12-2008, the Panchayat Committee discussed the same issue again in view of the request of the Secretary to review the decision dated 20-11-2008 and again adopted Ext. P2 resolution to confirm the decision to cancel Ext. P1 building permit issued to the 4th respondent. However, that resolution was not communicated to the 4th respondent. 4. The 4th respondent challenged Ext. P3 communication of the 3rd respondent, before the Tribunal for Local self Government Institutions, in Appeal No. 24 of 2009. While that appeal was pending, on 9-2-2009, one Sri. K.P. Antony, styling himself as the Chairman of an action council formed by the people of the 2nd W.P.C. Nos.4282 & 7127/2009 -: 2 :- respondent-Panchayat, to protest against the grant of the permit, filed W.P(C) No. 4282 of 2009 seeking a mandamus to the Panchayat to implement Ext. P2 resolution of the Panchayat. While that writ petition was pending, the 1st respondent -Tribunal passed Ext. P7 order dated 17-2-2009 in Appeal No. 24 of 2009, setting aside the resolution dated 29-11-2008 of the Panchayat and Ext. P3 consequential order of the 3rd respondent. One Sri. Bharathan, a resident of the 2nd respondent Panchayat, who had impleaded himself as additional 3rd respondent in the appeal, has filed W.P(C) No. 7127 of 2009 challenging Ext. P7 order of the Tribunal seeking the following reliefs: “(i) call for the records leading Ext. P7 and quash Ext. P7 issuing a writ of certiorari or any other appropriate writ; (ii) direct the 2nd respondent to take action against 4th respondent in the event of undertaking any construction violating Ext. P2 order canceling the permit issued to him as Ext. P7 has no effect of annulling Ext. P 2.” 5. The petitioner does not challenge Ext. P7 order on its merits, but only on technical contentions. According to him, Ext. P3 is not an appealable order under Section 276 of the Kerala Panchayat Raj Act, 1994 and therefore the appeal itself is not maintainable. Secondly, he would contend that the 4th respondent had challenged only Ext. P3 communication and not the resolution dated 29-11-2008 and therefore the Tribunal exceeded its jurisdiction in quashing that resolution, which was not under challenge in the appeal. Thirdly, he would submit that since the further resolution of the Panchayat, Ext. P2, of which the 4th respondent had knowledge, was not challenged by them, the challenge against Ext. P3 alone is of no consequence and therefore the Tribunal went wrong in allowing the appeal. Lastly, it is contended that since the resolution dated 29-11-2008 was not under W.P.C. Nos.4282 & 7127/2009 -: 3 :- challenge in the appeal, the action of the Tribunal in setting aside that resolution is violative of the principles of natural justice insofar as before setting aside the said resolution, the respondents in the appeal were not put on notice regarding the challenge against the same. 6. The 4th respondent has filed a counter affidavit. According to them, the only order issued by the Panchayat to them cancelling Ext. P1 permit is Ext. P3 communication from the 3rd respondent, which is the formal communication by the Panchayat of the resolution dated 29-11-2008 directing the 4th respondent to stop construction, against which an appeal is maintainable under Section 276. Regarding the second contention of the petitioner, it is submitted that the 4th respondent can challenge only what has been communicated to them, which is Ext. P3 and when Ext. P3 is challenged, the Tribunal can, by virtue or the powers conferred on him under Rules 16, 18, 20 and 22 of the Kerala Tribunal for Local Self Government Institutions Rules, 1999, examine the correctness of the entire action of the Panchayat, including the correctness of the resolution, on the basis of which the impugned action had been taken. Regarding the 3rd contention, the defence of the 4th respondent is that Ext. P2 resolution dated 31-12- 2008 was never communicated to them and they cannot challenge an uncommunicated order. Even otherwise, according to them, the resolution dated 31-12-2008 cannot have a separate existence from the resolution dated 29-11-2008 and Ext. P3, as it is a dependent decision and once the resolution dated 29-11-2008 and Ext. P3 are set aside, Ext. P2 loses its validity, automatically. Against the last ground, the 4th respondent would contend that since Ext. P3 is issued solely on the basis of the resolution dated 20-11-2008, the petitioner cannot feign ignorance about the challenge against that resolution, and when the Tribunal has powers to call for and examine the correctness of that resolution also, no separate notice regarding the same is necessary to comply with the principles of natural justice. In W.P.C. Nos.4282 & 7127/2009 -: 4 :- their counter affidavit, the 4th respondent would also take the contention that the reason for cancellation of the permit that the tower is a health hazard to the public has already been found unsustainable by this Court in Reliance Infocom Ltd., v. Chemanchery Grama Panchayat, 2006(4) KLT 695. 7. Respondents 1 and 2 have filed a common counter affidavit taking the contention that the appeal filed by the 4th respondent without challenging the two resolutions of the Panchayat is not maintainable. 8. Elaborate arguments were advanced by both sides in support of their pleadings, which I have examined in detail. 9. At the outset, I must notice that the Panchayat has not chosen to challenge the order of the Tribunal, by which their action has been set aside. It is the additional 3rd respondent who got himself impleaded in the appeal, who has challenged the order. Although for that reason, the writ petition is not incompetent, the effectiveness of the challenge diminishes considerably, insofar as the Panchayat has chosen to accept the decision of the Tribunal. 10. The first question is whether Ext. P3 is an appealable order under Section 276(5) of the Kerala Panchayat Raj Act. The said sub- section reads thus: “276. Appeal and Revision: xx xx xx (5) An appeal on any notice issued, order passed, or action taken by the Panchayat or a revision on a decision taken by the Panchayat or Standing Committee on any appeal shall lie to the Tribunal Constituted under Section 271 S, provided that such appeal or revision shall be confined only on the following subjects and relating to other subjects as may be prescribed for the purpose, namely- (a) Assessment, demand and collection of taxes or fees or cess; W.P.C. Nos.4282 & 7127/2009 -: 5 :- (b) Grant of permission and licences for trades, factories, markets and other establishments.” Ext. P3 is issued by the President of the Panchayat. It specifically communicates to the 4th respondent that by resolution dated 29-11- 2009, the Panchayat has decided to cancel Ext. P1 permit issued for construction of the tower and therefore the 4th respondent shall stop the construction of the tower. Regarding Ext. P2 resolution dated 31-12-2008, no communication has been issued by the Panchayat to the respondent although in their counter affidavit, they claim that the 4th respondent had knowledge about the same. Section 156 (1) of the Kerala Panchayat Raj Act defines the functions of the President thus: “156. Functions of President and Vice-President:- (1) Save as otherwise expressly provided by or under this Act, the executive power for the purpose of carrying out the provisions of this Act and the resolution passed by a Panchayat shall vest in the President thereof who shall be directly responsible for the due fulfillment of the duties imposed upon the Panchayat by or under this Act.” Sub-section (5) of Section 156 further lays down thus: (5) The President may, in case of an emergency direct the execution of any work or the doing of any act which requires the sanction of the Panchayat and the immediate execution or doing of which is, in his opinion, necessary for the safety of the public ad may direct that the expenses of executing such work or doing such act shall be paid from the funds of the Panchayat; Provided that- (a) he shall not act under this sub-section in contravention of any decision of the Panchayat prohibiting the execution of any particular work or the doing of an particular act. (b) he shall report the action taken under this sub-section and the reason thereof to the Panchayat at its next meeting and obtain its approval therefor.” W.P.C. Nos.4282 & 7127/2009 -: 6 :- Ext. P3 can certainly be construed as an action of the President referable to sub-sections (1) and (5) of Section 156 of the Kerala Panchayat Raj Act. It is an admitted fact that there is no procedure of communicating the resolution of the Panchayat to the affected party. Based on the same, an order is communicated to the party ordinarily by the Secretary. In this case, the President has chosen to communicate the decision of the Panchayat by issuing Ext. P3. By Ext. P3, the 3rd respondent informed the 4th respondent about the resolution of the Panchayat dated 29-11-2008 and directed the 4th respondent to stop construction of the tower. That would amount to an action of the Panchayat, which has been specifically made appealable under Section 276(5) of the Act before the Tribunal. Therefore, I hold that Ext. P3 is appealable before the Tribunal under Section 276(5). 11. The next question is whether the Tribunal had exceeded his jurisdiction in setting aside the resolution dated 29-11-2008 in an appeal against Ext. P3. I am of opinion that Ext. P3 has no separate existence from the resolution dated 29-11-2008. Ext. P3 is the formal communication of the decision of the Panchayat taken by the resolution dated 29-11-2008, directing the 4th respondent to stop construction in accordance with the decision of the Panchayat. Admittedly, there is no procedure of issuing the resolution itself to the affected party. Therefore, the affected party can challenge only the formal communication of the decision of the Panchayat to him, which in this case is Ext. P3. Hence, by challenging Ext. P3, the 4th respondent is challenging the decision taken by the Panchayat by resolution dated 29-11-2008 itself, which has been communicated to them by Ext. P3. Therefore, even without a formal challenge to the resolution, the Tribunal can look into the validity of the resolution itself, on the basis of which only Ext. P3 has been issued. W.P.C. Nos.4282 & 7127/2009 -: 7 :- 12. Further, under Rule 16 of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999, on the filing of an appeal, the Tribunal issues a notice in Form E to the counter petitioner. Form E requires that, if the counter petitioner is a Village Panchayat or Municipality, the files and documents in respect of the appeal shall be produced along with their statement. If there is any reasonable objection in producing the same, it shall be explained and the true copies of the document shall be produced. The said Form is in conformity with Rule 17, which provides thus: “17. Examination of Witnesses and production of documents:- (1) The Tribunal may suo moto summon any person as witness and may direct any person including the petitioner or the counter-petitioner to produce or cause to be produced any document or record before the Tribunal. (2) The Village the petitioner or Municipality or its Secretary who has been made the counter-petitioner in a petition shall produce the connected files and other documents of the Village the petitioner or Municipality as the case may be, along with the statement submitted before the Tribunal; Provided that in case, the record cannot be produced for sufficient reasons, an attested copy of the same shall be produced along with the statement. (3) All records and documents produced before the Tribunal in connection with disposing any petition shall be collected back from the Tribunal by the person who have produced such documents, within two months from the date of disposal of the petition.” Rule 18 prescribes the powers of the Tribunal to issue directions to the Local Self Government Institutions and reads thus: “18. Directions to the Local Self Government Institution.- If the Tribunal on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat municipality or its Secretary as the case may be, is not issued or taken in accordance with the procedure under, the Panchayat Act or the Municipality Act or the rules made there under it may direct such Village Panchayat or W.P.C. Nos.4282 & 7127/2009 -: 8 :- Municipality or the Secretary to issue notice or order or to take action afresh complying the procedure under law.” Rule 20 prescribes the mode of passing orders in an appeal petition thus: “20. Order of the Tribunal.- (1) The Tribunal shall, after considering the petition and connected records or, if there is trial of the parties, after the completion of such trial, issue an order recording its decision on the petition: Provided that if the Tribunal thinks it necessary so to do, it may declare in advance a date to issue such order and shall issue the order on that date. (2) An order of the Tribunal shall be in writing and shall bear the signature and seal of the Tribunal on it.” Rule 21 lays down the consequences of the order of the Tribunal thus: “21. Consequence of the order of the tribunal.- (1) The notice or order issued or action taken by the Local Self Government Institution or its Secretary, as the case may be, shall stand as such or be modified or annulled in accordance with the final order of the Tribunal on the petition from the date of issue of such final order. (2) Copy of the order of the Tribunal shall be issued to each party to the petition within one week from the date of the order.” These rules read together makes it abundantly clear that the Tribunal's powers are not limited to examining the correctness and setting aside the order impugned in the appeal alone, but are wide enough to examine the correctness of and to annul any order or decision or action of the Local Self Government Institution based on which the impugned order has been passed. Therefore, I am of opinion that the Tribunal did have powers to set aside the resolution on the basis of which Ext. P3 was issued and therefore the Tribunal has not exceeded his powers as contended by the petitioner and the Panchayat. W.P.C. Nos.4282 & 7127/2009 -: 9 :- 13. The next issue is whether failure to challenge Ext. P2 is fatal to the appeal of the 4th respondent and by reason of the same, the Tribunal's order becomes vitiated or unenforceable. As I have already observed, although the petitioner and the Panchayat claim that the 4th respondent had knowledge of Ext. P2, they have no case that Ext. P2 has been communicated by the Panchayat to the 4th respondent at any time. An order becomes an order and enforceable only when the same is communicated to the affected party. It has been so held by the Supreme Court in State of W.B. v. M.R. Mondal and another, (2001) 8 SCC 443 in the following words: “16. . . . . . An order passed but retained in file without being communicated to the plaintiff can have no force or authority whatsoever and the same has no valid existence in the ey of the law or claim to have come into operation and effect. No reliance can be placed on the same to even assert a claim based on its contents. If its utility depended upon a decision to be taken on the performance of the plaintiff by the competent authority, neither the authority could be compelled to take a decision nor any concrete rights could be said to have been acquired by the plaintiff, to warrant the grant of the type of directions given in this case. . . . . .” In view of the principles laid down in that decision, the mere passing of Ext. P2 resolution is not of any consequence as far as the 4th respondent is concerned, since the same has not been communicated to them. The 4th respondent cannot also be expected to challenge a resolution which has not been communicated to them. The Supreme Court has again held in Municipal Corporation of Delhi v. Quimat Rai Gupta and others, (2007) 7 SCC 309 thus: “27. An order passed by a competent authority dismissing a Government Order servant from services requires communication thereof as has been held in State of Punjab v. Amar Singh Harika, AIR 1966 SC 1313 but an order placing a Government servant on suspension does not require communication of that order. (See State of Punjab v. Khemi Ram, (1969) 1 SCC 28) What is, W.P.C. Nos.4282 & 7127/2009 -: 10 :- therefore, necessary to be borne in mind is the knowledge leading to the making of the order. An order ordinarily would be presumed to have been made when it is signed. Once it is signed and an entry in that regard is made in the requisite register kept and maintained in terms of the provisions of a statute, the same cannot be changed or altered. It, subject to the other provisions contained in the Act, attains finality. Where, however, communication of an order is a necessary ingredient for bringing an end result to a status or to provide a person an opportunity to take recourse to law if he is aggrieved thereby, the order is required to be communicated.” (Underlining supplied) Therefore, an aggrieved party can be expected to take recourse to law, against an order against him, only when the same is formally communicated to him. Until it is communicated to him formally, it would not attain the character of an order binding on him. 14. Apart from that Ext. P2 is the reiteration of the resolution dated 29-11-2008 under sub-section (iii) of Section 182, which reads thus: “182. Powers and functions of the Secretary:- Subject to the provisions of This Act and the rules made thereunder, Secretary as executive officer of the Panchayat shall-- xx xx xx (iii) carry into effect the resolutions of the Panchayat: Provided that where the Secretary is of opinion that any resolutions passed by the Panchayat has not been legally passed is in excess of the powers conferred by this Act or any other Act or is likely to endanger human life, health or public safety, if implemented, he shall request in writing to the Panchayat to review the resolution and express his views at the time of its review by the Panchayat and if the Panchayat upholds its previous decision, the matter shall be referred to the Government after intimation to the President and if no decision of the Government is received within fifteen days, the said resolution shall be implemented and information thereof shall be given to the Government.” Therefore, Ext. P2 is not a fresh action of the Panchayat, which W.P.C. Nos.4282 & 7127/2009 -: 11 :- requires to be challenged separately. It is only a statutory reiteration of the earlier resolution in view of the request of the Secretary to review the same as provided under the proviso to Section 182(iii) of the Act. Since the Panchayat refused to review the earlier decision and upheld the previous decision, in effect what is in force is the original resolution itself and no new decision comes into effect. Further, Ext. P2 is dependent on the earlier decision, having no separate existence. Therefore, a challenge against the original decision independently is maintainable and once that decision is set aside by the Tribunal, the latter decision automatically ceases to be operative even without a separate challenge to it. 15. The last contention is that since the petitioner was not put on notice regarding the challenge against the resolution dated 29-11- 2008, the action of the Tribunal in setting aside that resolution is violative of the principles of natural justice. The answer to the same is the same as that to the second contention. Ext. P3 is the formal communication of the decision of the Panchayat taken by the resolution dated 29-11-2008. Therefore, when Ext. P3 is challenged what is under challenge is the decision of the Panchayat, which was communicated to the 4th respondent by Ext. P3. Further, the petitioner who was not a party to the appeal got himself impleaded in the appeal by his own application. The appeal is maintainable and the order passed in the same would be valid, even without the junction of the petitioner as a party thereof. The Panchayat whose action was challenged has not chosen to challenge that order on that ground or any other ground. Therefore, the petitioner cannot be heard to contend that a decision has been taken by the Tribunal without putting him on notice regarding the same, and therefore that decision is vitiated. That is so especially since the Panchayat, whose action was subjected to challenge in the appeal, has not come forward to challenge the order of the Tribunal on that ground. W.P.C. Nos.4282 & 7127/2009 -: 12 :- 16. The petitioner raises another contention that the 4th respondent ought to have invoked the powers of the Government under Section 191 of the Act for cancellation of the resolution instead of filing the appeal. But, in making that submission, the counsel for the