E. Koyan v. Nellikuzhi Grama Panchayath Committee and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC FRIDAY, THE 15TH DAY OF JUNE 2012/25TH JYAISHTA 1934S WP(C).No. 9966 of 2012 (U) --------------------------------------- PETITIONER(S): ------------- MR.E.KOYAN, AGED 46 YEARS S/O.MOHAMMADALY, ERAMTHURUTHY HOUSE, KUTTILANJI KARA IRAMALLORE VILLAGE, KOTHAMANGALAM TALUK ERNAKULAM DISTRICT. BY ADVS.SRI.DEVAN RAMACHANDRAN SRI.K.M.ANEESH RESPONDENT(S): -------------- 1. NELLIKUZHI GRAMA PANCHAYATH COMMITTEE REPRESENTED BY ITS PRESIDENT, P.O.NELLIKKUZHY KOTHAMANGALAM TALUK-686 691. 2. NELLIKUZHI GRAMA PANCHAYATH REP. BY ITS SECRETARY, P.O.NELLIKKUZHY KOTHAMANGALAM TALUK-686 691. 3. THE VILLAGE OFFICER IRAMALLORE VILLAGE, P.O.NELLIKKUZHY KOTHAMANGALAM TALUK-686 691. 4. THE REVENUE DIVISIONAL OFFICER MUVATTUPUZHA, REVENUE DIVISIONAL OFFICE MUVATTUPUZHA PO, PIN-686 661. 5. NAUSHAD S/O.ALI, PALAKKATTU PARAMBIL, KUTILANJIKKARA IRAMALLORE VILLAGE, P.O.NELLIKKUZHY KOTHAMANGALAM TALUK-686 661. 6. MANMADAN NAIR - S/O.VELAYUDHAN, KUTILANJI, KIZHAKUMMEL HOUSE IRAMALLORE P.O., KOTHAMANGALAM TALUK-686 691. BY ADV. SRI.P.M.HABEEB BY ADV. SRI.G.KRISHNAKUMAR BY ADV. SRI.BASIL KURIAKOSE BY ADV. SRI.TITTO THOMAS BY ADV. SRI.K.A.ANI JOSEPH BY GOVERNMENT PLEADER SRI.M.A.ABDUL SHUKOOR THIS WRIT PETITION (CIVIL) ALONG WITH W.P.(C).NO.13986 OF 2012 HAVING BEEN FINALLY HEARD ON 15-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pm ## APPENDIX PETITIONER(S) EXHIBITS: EXHIBIT P1- TRUE COPY OF THE SALE DEED DOCUMENT NO.1123/2008/I DATED 11.2.2008. EXHIBIT P2- TRUE COPY OF THE POSSESSION CERTIFICATE ISSUED BY THE VILLAGE OFFICER, ERAMALLOOR. EXHIBIT P3- TRUE COPY OF THE BUILDING PERMIT DATED 13.2.2009. EXHIBIT P4- TRUE COPY OF THE RECEIPT SHOWING PAYMENT OF FEE FOR BUILDING PERMIT. EXHIBIT P5- TRUE COPY OF THE PERMISSION GIVEN BY THE 2ND RESPONDENT TO CONSTRUCT AND ERECT MACHINERY FOR THE PURPOSE OF STARTING PLYWOOD MANUFACTURING UNIT. - EXHIBIT P6- TRUE COPY OF THE LAY OUT PERMIT ISSUED BY THE SENIOR TOWN PLANNER, ERNAKULAM. - EXHIBIT P7- TRUE COPY OF THE APPROVAL OF SITE BY THE DISTRICT MEDICAL OFFICER, ERNAKULAM. - EXHIBIT P8- TRUE COPY OF THE NO OBJECTION CERTIFICATE ISSUED BY THE FIRE AND RESCUE STATION ERNAKULAM. - EXHIBIT P9- TRUE COPY OF THE CONSENT TO OPERATE ISSUED BY THE POLLUTION CONTROL BOARD. EXHIBIT P10- TRUE COPY OF THE STOP MEMO ISSUED BY THE 3RD RESPONDENT. - EXHIBIT P11- TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN WPC NO.36892/2010. EXHIBIT P12- TRUE COPY OF THE ORDER OF THE 3RD RESPONDENT DATED 1.1.2011. EXHIBIT P13- TRUE COPY OF THE JUDGEMENT WPC NO.1395/2011 DATED 3.6.2011. EXHIBIT P14- TRUE COPY OF THE ORDER OF THE 4TH RESPONDENT DATED 20.7.2011. - EXHIBIT P15- TRUE COPY OF THE OWNERSHIP CERTIFICATE ISSUED BY THE 2ND RESPONDENT. EXHIBIT P16- TRUE COPY OF THE DECISION OF THE IST RESPONDENT DATED 8.8.2011. - EXHIBIT P17- TRUE COPY OF THE ORDER DATED 29.11.2011 OF THE MUNSIFF COURT, MUVATTUPUZHA IN OS NO.523/2011. - EXHIBIT P18- TRUE COPY OF THE ORDER DATED 24.3.2012 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS IN APPEAL NO.901/2011. RESPONDENTS' EXHIBITS : NIL // TRUE COPY // PA TO JUDGE ## **ANTONY DOMINIC, J. ================ W.P.(C) NOs. 9966 & 13986 OF 2012 ==========================** ## **Dated this the 15[th] day of June, 2012** ## **J U D G M E N T** What is under challenge in WP(C) No. 13986/12 are Exts.P16 and P17. Briefly stated, the facts of the case are that Exts.P3 and P4 are the permit for installation of a factory and a building permit issued by the Secretary of the respondent Panchayat in favour of the 2[nd] respondent herein, who is the petitioner in WP(C) No. 9966/12. That was cancelled by the Panchayat in its meeting held on 8/8/11 and Ext.P5 is the resolution. The 2[nd] respondent challenged Ext.P5 before the Tribunal for Local Self Government Institutions by filing Appeal No.901/11. That appeal was disposed of by Ext.P16 order invalidating Ext.P5 and issuing directions to the Secretary to conduct an enquiry into the nature of the land in the manner as directed therein. Accordingly, Secretary conducted an enquiry with notice to the parties concerned and Ext.P17 is the proceedings issued which states that the land with reference to which Exts.P3 and P4 were issued is not one to which provisions of Act 28 are applicable. It is challenging Exts.P16 and P17, the writ petition has been filed. **WPC.Nos.9966 & 13986/12** **:2 :** 2. In WP(C) No. 9966/12, 2[nd] respondent in WP(C) No. 13986/12 is challenging Ext.P16 referred to above to the extent in para 14, 15 and 16 therein, the Tribunal has directed the Secretary of the Panchayat to conduct an enquiry regarding the nature of the land and also into the question whether provisions of Act 28 of 2008 are applicable to the land in question. A reading of these paragraphs show that the Tribunal thought it necessary to order such an enquiry to find out as to whether the permit happened to be issued ignoring the provisions of Act 28 of 2008. Tribunal has also made reference to various documents to support the necessity of such an enquiry. 3. In the nature of the issues arising, I shall first consider WP(C) No. 9966/12. It is seen that on an earlier occasion, when the Village Officer issued a prohibitory order against the petitioner in WP(C) No. 9966/12, he approached this Court by filing WP(C) No. 36892/10. That writ petition was disposed of by judgment dated 21[st] of December, 2010, where it was noticed that the prohibitory order was issued on the basis that the land is one to which Act 28 of 2008 applies and that on the materials, prima facie, the land was a dry land. On that basis, this Court **WPC.Nos.9966 & 13986/12** **:3 :** directed the Village Officer to inspect the land and to recall the prohibitory order if the land is a dry land. Despite the order, the Village Officer issued proceedings dated 1/1/11 holding that the land is a paddy land which proceedings was again challenged before this Court in WP(C) No. 1395/11. A Division Bench of this Court disposed of the writ petition by judgment dated 3[rd] of June, 2011. In that judgment, it was held thus:- “In view of the controversy raised, we feel the matter could be referred to the R.D.O. for inspection and decision. Accordingly we dispose of the WP(C) with direction to the R.D.O. i.e. third respondent, to conduct an inspection and if satisfied that the land is not paddy land or land unfit for paddy cultivation, he will direct the Village Officer to issue identity of the land as garden land for the petitioner to construct building or to set up saw mill. We make it clear that what is important is not the description of the property in the Village records, but the actual state of affairs i.e. whether the land is paddy land fit for cultivation and if it is not so, to authorise construction in the land. The R.D.O. is directed to take a decision within a period of six weeks from date of production of copy of this judgment. The petitioner will produce copy of this judgment and make himself available on the date fixed for inspection by the R.D.O”. 4. Accordingly, the Revenue Divisional Officer conducted an enquiry and issued proceedings dated 20/7/11, the relevant portion of which reads as under:- **WPC.Nos.9966 & 13986/12** **:4 :** “റവന�� ഡ�വ�ഷണല ആഫ�സര നനര�ട� 23.06.2011-ന� നടത�യ സല പര�ന"#ധനയ�ല ബ� .ട�.ആര പപക#ര( ന�ലമ#യ� ക�ടക�ന സല( ഇന-#ള നനലക0ഷ� ന1യ �വ#ന അന�നയ#ജ�മ#യ ര�ത�യ�ലല ക#ണന-ട�നത�. ഇടയ�ക�നട ക#ന ക�റ� 1�റ പ�ട�-�ച� റബര ക0ഷ� ന1യ�ത�ര�ക�നത#യ�( ട� റബറ�ന� ഏകന;"( 4 വരഷ( പപ#യമ�ളത#യ�(, ട� സലത�ന> മ?ന� വ"വ�( ന�കത� പ�രയ�ടങള�( അത�ല ഒര� വ"ത� വ�ട� പണ�ത� ത#മസ�ക�നത�(, മറ� രണ? വ"ങള�ല നതങ�, റബര എന�വ ക0ഷ� ന1യ�ത�ര�ക�നത#യ�( ക#ണ�ന�. ട� സലത� ഫ#കറ� പണ�യ�നത�ന� പഞ#യത�ല ന�ന�( മറ� സ#പനങള�ല . ന�ന�( അന�വ#;വ�( ലഭ�ച�ട�ളത#ണ� 5. Exts.P11 and P13 judgments and also Ext.P14, the proceedings of the Revenue Divisional Officer have not been interfered in any proceedings. If that be so, the conclusions of the RDO regarding the nature of the land and that the land in question is unsuitable for paddy cultivation, are binding on all concerned. In such a situation, the enquiry ordered by the Tribunal in para 14, 15 and 16 of the order in Appeal No.907/11, is plainly untenable and unnecessary and therefore those directions deserve to be vacated and I do so. Ext.P17, the order passed by the Secretary of the Panchayat, being a dependent order, also cannot survive. 6. In so far as Ext.P16 order of the Tribunal to the extent Ext.P5 is invalidated, which is challenged in WP(C) No. 13986/12 **WPC.Nos.9966 & 13986/12** **:5 :** is concerned, the reason for interfering with Ext.P5 is that the permits having been issued by the Secretary, the power of cancellation thereof is vested with the Secretary and that Ext.P5, by which the Panchayat has cancelled it, was without jurisdiction. According to the learned counsel for the petitioners, Sections 166 and 239 of the Kerala Panchayat Raj Act conferred power on the Panchayat to interfere with the orders of the Secretary. He also relied on the judgment of this Court in _**Antony v. Chellanam Grama Panchayat**_ (2009(3) KLT 334) in support of this contention. 7. Having considered this contention of the learned counsel, I should confess my inability to accept the same. As can be seen from the provisions contained in Sections 232 and 233, issuance of a permit is entirely within the powers of the Secretary. Section 185B of the Act also provides that where statutory powers are conferred on the Secretary, there shall not be any interference either by the President, Standing Committee or any member. Therefore, if the permit issued by the Secretary is to be cancelled, such cancellation can only be by the Secretary and the other option which an aggrieved person may have is to challenge **WPC.Nos.9966 & 13986/12** **:6 :** the permit in an appeal, which is maintainable only before the Tribunal. 8. In so far as the judgment in _**Antony v. Chellanam Grama Panchayat**_ **(** 2009(3) KLT 334) is concerned, the findings relied on by the learned Judge are those in para 26 and 27, which reads as under:- 26. The Secretary of the Panchayat is the executive head. Of course, he is a Government servant. Ultimate disciplinary control over him vests with the Government, although the Panchayat Committee has powers to impose minor penalties on him as provided under S.179(5) of the Act. But as far as the affairs of the Panchayat are concerned, the actions of the Secretary are not beyond the control of the Panchayat altogether. Of course, when the Secretary acts within jurisdiction, the Panchayat shall not interfere with his functions, as provided in S.185B of the Act. 27. It is true that in respect of certain matters, the action of the Secretary is appealable only to the Tribunal. That does not take his actions completely out of the supervisory powers of the Panchayat Committee. As the elected body of the Panchayat, at least in matters affecting the welfare of the Panchayat and the people, the Panchayat Committee should have control over the actions of the Secretary and the Secretary cannot have unbridled powers even beyond the reach of the Panchayat Committee. When the Panchayat Committee is the one vested with the ultimate power of administration of the Panchayat, the Panchayat Committee should have powers to annul actions of the Secretary which are without jurisdiction or are against the welfare of the Panchayat itself. To that extent, the decision of the Tribunal cannot be upheld. **WPC.Nos.9966 & 13986/12** **:7 :** 9. A reading of these paragraphs itself show that while this Court held that in certain exceptional cases it may be open to the Panchayat to invalidate decisions taken by the Secretary, this Court was cautious to qualify such an interference only in areas where the decision of the Secretary are outside his jurisdiction or which are against the welfare of the Panchayat itself. In Ext.P5 resolution, the grounds on which Exts.P3 and P4 were cancelled are the existence of the suspicious circumstances and the non compliance with the provisions of Act 28 of 2008. In other words, even Ext.P5 decision of the Panchayat does not disclose a case that the Secretary lacked jurisdiction or that the permits were issued against the interest of the Panchayat, which alone are the two grounds recognised by this Court in the judgment referred to above. Therefore, that judgment of this Court does not help the petitioner to justify Ext.P5. Therefore, the conclusion of the Tribunal to the effect that the Panchayat Committee acted illegally in interfering with Exts.P3 and P4 cannot be said to be illegal. In the light of the above, WP(C) No. 13986/12 is dismissed and WP(C) No. 9966/12 is disposed of directing the Secretary of ## **WPC.Nos.9966 & 13986/12** **:8 :** the Panchayat to consider the application made by the petitioner therein for licence in accordance with law and in the light of the findings herein. **ANTONY DOMINIC, JUDGE** Rp