B.M. Bava Haji v. Mogral Puthur Grama Panchayat & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **THURSDAY, THE 18[TH] DAY OF NOVEMBER 2021 / 27TH KARTHIKA, 1943** ## **WP(C) NO. 12012 OF 2021** ## **PETITIONER:** B.M.BAVA HAJI AGED 52 YEARS S/O.MOIDEENKUTTY, RESIDING AT BARIKKAD HOUSE, KUNNIL, MOGRAL PUTHUR P.O., KASARAGOD DISTRICT. BY ADVS. SRI THOMAS JOHN P. SRI A.SAIN PAUL SRI P.R.SHIBU ## **RESPONDENTS:** 1 THE MOGRAL PUTHUR GRAMA PANCHAYAT MOGRAL PUTHUR P.O., KASARAGOD DISTRICT-671 124, REPRESENTED BY ITS SECRETARY. 2 THE DEPUTY DIRECTOR OF PANCHAYAT, KASARAGOD-671 123. 3 THE DIRECTOR OF PANCHAYAT, PALAYAM, THIRUVANANTHAPURAM-695 033. 4 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. R1 BY SRI M.MUHAMMED SHAFI R2 TO R4 BY GOVERNMENT PLEADER SRI VIPIN NARAYAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.11.2021, THE COURT ON 18.11.2021 DELIVERED THE FOLLOWING: W.P.(C)No.12012 of 2021 2 ## **T.R. RAVI, J.** ## **--------------------------------------------** W.P.(C)No.12012 of 2021 -------------------------------------------Dated this the 18[th] day of November, 2021 ## **JUDGMENT** The petitioner is an elected member of the 1[st] respondent Panchayat. In the meeting held on 5.2.2021, the petitioner was elected as the Vice Chairman of the Planning Committee of the Panchayat. The copy of the resolution has been produced as Exhibit P1 in the writ petition. On 24.5.2021, the Panchayat passed Ext.P3 resolution, whereby it was decided to remove the petitioner from the post of Vice Chairman of the Planning Committee. The decision was informed to the petitioner by Ext.P2 notice dated 25.5.2021. The petitioner has challenged the above resolution in this writ petition. 2. Heard. 3. The Counsel for the petitioner relies on Rule 11 and Rule 13 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995 (hereinafter referred to as Rules). Rule 11 and relevant portions of Rule 13 are extracted below. “ **Rule 11** . Cancellation or modification of resolutions. - No resolution of a Panchayat shall be modified or cancelled except through a resolution passed in a meeting specially W.P.(C)No.12012 of 2021 3 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. Provided that where the Panchayat is satisfied that a decision or resolution passed by the Panchayat has not been passed in accordance with law or it has been passed in violation of any of the powers conferred on the Panchayat by the Act or abuse thereof 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." **Rule 13.** Procedure for moving resolutions at Panchayat meeting. - (1) A member who intends to move a resolution shall give seven clear days notice of such intention in writing to the President along with a copy of the resolution: Provided that the President may include a resolution in the list of business with a shorter notice than seven days. (2) No member shall move more than one resolution. (3) The President shall examine all the resolutions and shall have power to disallow any resolution which in his opinion does not comply with the conditions laid down in sub rule (4). (4) A resolution in order to be admissible shall comply with the following condition namely: - - (a) It shall relate to matters coming within the administrative power of the Panchayat; - (b) It shall be clearly and precisely worded; - (c) It shall relate to a single matter; W.P.(C)No.12012 of 2021 4 - (d) It shall not contain arguments, hypothetical inferences, ironical expressions or defamatory statements; - (e) It shall not refer to the conduct or character of a person except that in his official or public capacity; - (f) It shall not refer or relate to a matter which is under adjudication by a Court of law. - xxxxxxxx xxxxxxxx xxxxxxxx xxxxxxxx 4. The contention is that, the resolution which is already passed can be modified or cancelled only in a meeting specifically convened for the said purpose within three months of passing such resolution, supported by not less than half of the total sanctioned number of members of the Panchayat. It is further submitted that as per Rule 13, a member who intends to move a resolution shall give 7 clear days notice of such intention. According to the Counsel, the above procedure was not followed while removing the petitioner from the post of Vice Chairman of Planning Committee. 5. The respondents rely on the decision of this Court in **Thrissur Municipal Corporation v. E.G.Jecco @ Jecco George** **& Ors.** reported in **[2018(5)KHC 114]** . In the said decision, this Court considered a similar provision contained in Rule 13 of the Municipality (Procedure for Meeting of Council) Rules, 1995, and held that the power to modify or cancel a resolution already W.P.(C)No.12012 of 2021 5 passed by the Municipal Council must be seen as inherent in such Council and that Rule 13 can only be seen as one intended to safeguard against any hasty or arbitrary modification or cancellation of a resolution that is passed. This court further held that rules framed by the State Government under the Municipalities Act cannot have the effect of denuding the Municipality of the very power that was conferred on them for enabling them to function as institutions of self-government. On comparing the Malayalam and English versions of the rules as published, this Court noticed the apparent error that occurred in the English translation and found that in the Malayalam version, the rule clearly suggests that no resolution of a Council shall be modified or cancelled within 3 months of passing of such resolution, other than through a resolution passed in a meeting of the Council specially convened for the purpose, by support of not less than one half of the sanctioned number of members. In contrast, in the English version, the words "within 3 months of passing of such resolution" was held to have been juxtaposed at the wrong place, resulting in changing the meaning entirely. After noticing the difference in the meaning that is conveyed by the Malayalam and English version of Rule 13, this Court directed the W.P.(C)No.12012 of 2021 6 Government to modify the English version, so as to bring it in tune with the Malayalam version. The dictum laid down and the reasoning adopted in the above judgment applies to the facts of this case as well. 6. The contention put forward by the petitioners on the basis of Rule 11, which is in _pari materia_ with Rule 13 of the Municipality Rules, is that Exhibit P3 resolution which is passed after the period of 3 months is bad in law, cannot be sustained since the rigour contained in the Rule is regarding resolutions passed within 3 months. Apart from that, it is contended that the Planning Committee is not a Statutory Committee, which is governed by any of the provisions of the Act and Rules and that it is constituted for the convenience of administration and as long as it is not a Statutory Committee, the petitioner cannot put forward a right based on any statutory provision. The counsel for the respondents points out that the role of the planning committee itself is very limited and the post of Vice Chairman is not a post which is contemplated in the statute of the Rules. Referring to Ext.P1, it is pointed out that the Planning Committee was constituted for the purpose of formulating the Annual plan for the year 2021-22. In the counter affidavit filed on behalf of the 3[rd] W.P.(C)No.12012 of 2021 7 respondent, it is stated that the Planning Committees are constituted on the basis of Government Order No.11/2018/LSGD dated 29.1.2019, for the purpose of yearly plan formulation, execution and monitoring and that it is a non-statutory body which is formed for a particular financial year and that the Grama Panchayat can appoint a Vice Chairman for efficient functioning of the Committee. It is hence contended that there is no requirement of any advance notice before removal from such a post, since it is not a post contemplated in the Statute. 7. The above contention is justified. Section 162 of the Kerala Panchayat Raj Act, 1994 deals with constitution of Standing Committees. A Planning Committee is not contemplated in Section 162. A reading of Section 162 will show that even the election of members to the Standing Committee is done under the guidance, supervision and control of the State Election Commission. The constitution and functioning of the committees are statutorily governed. Section 162A of the Act details the subjects that are to be dealt with by the Standing Committees. Development planning, socio-economic planning, spatial planning, etc., are all matters that are to be dealt with by the Standing Committee for Development. The petitioner also does not have a case that the Planning W.P.(C)No.12012 of 2021 8 Committee is formed on the basis of any statutory provision. As held by this Court in **Jecco (supra)** , the Rules made by the State Government cannot denude the institution of self-government of its powers. Going by the interpretation placed by this Court n **Jecco (supra)** on Rule 13 of the Municipality Rules, which is in pari materia with Rule 11, it can be seen that the rigour of the rule will not apply to this case since the resolution is passed after the passage of 3 months. The power to modify the resolution or to cancel a resolution is a power which is inherent in the Panchayat. This court is not sitting in appeal over the reasoning of the Panchayat in removing the petitioner from the post of Vice Chairman. No fundamental right or statutory right of the petitioner are in any way affected, so as to justify interference by this Court under Article 226 of the Constitution of India. The writ petition fails and is dismissed. Sd/- **T.R. RAVI JUDGE** dsn W.P.(C)No.12012 of 2021 9 ## **APPENDIX OF WP(C) 12012/2021** PETITIONER'S EXHIBITS Exhibit P1 THE TRUE COPY OF THE RESOLUTION NO.2/1 DATED 05.02.2021 OF THE MOGRAL PUTHUR GRAMA PANCHAYAT. Exhibit P2 THE TRUE COPY OF THE LETTER DATED 25.05.2021 ISSUED BY THE SECRETARY OF THE FIRST RESPONDENT GRAMA PANCHAYAT TO THE PETITIONER. Exhibit P3 THE TRUE COPY OF THE RESOLUTION NO.5(1) DATED 24.05.2021 OF THE FIRST RESPONDENT GRAMA PANCHAYAT.