G.K. Granties Ltd. v. Vellavoor Grama Panchayath and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE ANTONY DOMINIC** ## **WEDNESDAY, THE 22ND DAY OF AUGUST 2012/31ST SRAVANA 1934** ## **WP(C).No. 20111 of 2011 (L)** **---------------------------------------** **PETITIONER:** **-------------------** **G.K.GRANTIES LTD., HAVING ITS REGISTERED OFFICE AT KUREEKKAL, KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT, REPRESENTED BY ITS MANAGING DIRECTOR SRI.GEORGE ANTONY, RESIDING AT KUREEKKAL HOUSE, KIZHAKKAMBALAM.P.O, ERNAKULAM DISTRICT.** **BY SRI.P.JACOB VARGHESE, SENIOR ADVOCATE, ADVS. SRI.JOSE ABRAHAM, SRI.VIVEK VARGHESE P.J, SRI.VARUGHESE M EASO.** **RESPONDENTS:** **------------------------** **1. VELLAVOOR GRAMA PANCHAYATH, VELLAVOOR.P.O., MANIMALA, REPRESENTED BY ITS SECRETARY - 686 541.** **2. VELLAVOOR GRAMA PANCHAYATH, VELLAVOOR.P.O., MANIMALA, REPRESENTED BY ITS PRESIDENT - 686 541.** **3. GOVERNMENT OF KERALA, REPRESENTED BY THE SECRETARY TO THE LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM-695 001.** **4. SHIBULAL, S/O.MADHAVAN, AGED 45 YEARS, CONVENER, KOTTAMBRA METAL UNIT VIRUDHA ACTION COUNCIL, RESIDING AT PARAMBUKATTIL, VELLAVOOR.P.O., KOTTAYAM. PIN-686 541.** ## **W.P.(C).NO.20111/2011-L:** **5. T.R.VISWANATHAN NAIR, CHAIRMAN, KOTTAMBRA METRAL UNIT VIRUDHA ACTION COUNCIL, RESIDING AT KANNANTHANAM HOUSE, THAZHATH VADAKARA.P.O., VELLAVOOR.P.O, KOTTAYAM DISTRICT. PIN-686 541.** **R1 & R2 BY ADV. SRI.BABU CHERUKARA, R3 BY GOVERNMENT PLEADER SMT. SUNITHA VINOD, R4 & R5 BY ADV. SRI.S.RAJEEV.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-08-2012, THE COURT ON 22/08/2012 DELIVERED THE FOLLOWING:** ## **W.P.(C).NO.20111/2011-L:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE NOTICE NO.A4-35/2010-AA DTD 10/03/2011 PASSED BY THE R.1.** - **EXT.P.2: COPY OF THE APPEAL NO.193/2011 PENDING BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS.** - **EXT.P.3: COPY OF THE JUDGMENT DTD. 22/02/2011 IN W.P.(C).NO.3154/2011 PASSED BY THIS HON'BLE COURT.** - **EXT.P.4: COPY OF THE STATEMENT FILED BY THE STATE IN W.P.(C). NO.143031/2011.** - **EXT.P.5: COPY OF THE ORDER NO.N-1053/21 DTD. 10/03/2011 PASSED BY THE R.D.O., KOTTAYAM.** - **EXT.P.6: COPY OF THE ORDER PASSED BY THE HON'BLE TRIBUNAL DTD. 14/03/2011 IN I.A. NO. 266/2011.** - **EXT.P.7: COPY OF THE APPLICATION FOR IMPLEADMENT FILED BY THE 4TH AND 5TH RESPONDENTS (I.A. NO.481/2011).** - **EXT.P.8: COPY OF THE OBJECTION FILED BY THE PETITIONER.** - **EXT.P.9: ORDER DTD. 05/07/2011 PASSED BY THE TRIBUNAL IN .A. NO. 481/2011 IN APPEAL NO.193/2011.** ## **RESPONDENTS' EXHIBITS: NIL.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **ANTONY DOMINIC, J.** ## **==================== W.P.(C) NO. 20111 OF 2011-L ====================** ## **Dated this the 22[nd] day of August, 2012** ## **J U D G M E N T** The question that arises for consideration is whether the Tribunal for Local Self Government Institutions (hereinafter referred to as the ‘Tribunal’ for short), constituted under Section 271S of the Kerala Panchayat Raj Act (hereinafter referred to as the ‘Act’ for short) has the power to allow impleadment of third parties in an appeal or revision pending before it. 2. Petitioner is a company incorporated under the Companies Act, 1956. Ext.P1 is a notice issued by the Panchayat calling upon the petitioner to stop its activities. On receipt of the notice, petitioner filed Appeal No.193/2011 before the Tribunal, a copy of which is Ext.P2. The Tribunal by Ext.P6 order stayed all further proceedings pursuant to Ext.P1. While so, respondents 4 and 5 filed I.A.No.481 of 2011, a copy of which is Ext.P7, seeking to be impleaded as additional respondents in the appeal. Petitioner objected to Ext.P7 by filing Ext.P8 objections. However, the Tribunal passed Ext.P9 order, holding that respondents 4 and 5 are proper parties and accordingly they were ordered to be - WPC.No.20111/11 **L** : 2 : impleaded as additional respondents 3 and 4 in Appeal No.193/2011. It is challenging Ext.P9 order this writ petition is filed contending that in the absence of any power conferred on it, the Tribunal could not have allowed impleadment. 3. I heard the learned Senior Counsel appearing for the petitioner and the counsels appearing for respondents 1 & 2 and 4 & 5. The contention of the petitioner was that in the absence of any power, the Tribunal could not have allowed the impleadment sought for. 4. The Tribunal had been constituted under Section 271S of the Act to consider and dispose of appeals or revisions filed against the decisions of the Local Self Government Institutions, under Section 279 of the Act and Section 509 of the Kerala Municipality Act 1994. Sub Section (3) provides that the Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure when trying a suit in respect of the matters enumerated therein. This subsection reads as under: _“(3) A Tribunal shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (Central Act V of 1998) when trying a suit in respect of the following matters, namely—_ _(a) summoning and enforcing the attendance of any_ - WPC.No.20111/11 **L** : 3 : _person and examining him on oath;_ - _(b) demanding the discovery and production of any document or other material object producible as evidence;_ - _(c) receiving evidence on affidavits;_ - _(d) requisitioning any public document or a copy of thereof from any court or office;_ - _(e) appointing commissions for the examination of witnesses or in respect of documents.”_ 5. Section 271U confers power on the Government to prescribe the conditions of service of the Tribunals, the manner of filing appeal petition or revision petition, the procedure to be followed in hearing the appeal or revision, the effects of the orders of the Tribunals and any other matter which the Government may consider it necessary to prescribe. Accordingly, the Government have framed the Tribunals for the Kerala Local Self Government Institutions Rules 1999. In so far as this case is concerned, Rule 25 dealing with the power of the Tribunal in certain cases, reads as under: - “ _25._ _**Power of the Tribunal in certain cases.—** In matters which are not provided in the Panchayat Act, the Municipality Act and these rules, the Tribunal shall have power to regulate the procedure in connection with the disposal of a petition in the manner it thinks proper”_ 6. The above provisions of the Act and the Rules show that there is no express provision in the Act or the Rules enabling - WPC.No.20111/11 **L** : 4 : the Tribunal to implead third parties to a proceedings pending before it and specific provisions of the CPC alone have been made applicable. However, the issue to be considered is whether the Tribunal could have allowed such an application even in the absence of such an express conferment of power. 7. In the judgment in _Dharmadas v. State Transport Appellate Tribunal_ ( **1962 KLT 505 (FB)** ) question arose was whether the State Transport Appellate Authority created under the Motor Vehicles Act 1939 had the power to pass remand orders. In that case upholding the power of the Tribunal this court held thus: _“16. An appeal is a complaint to a superior body of an injustice done or error committed by an inferior one with a view to its correction or reversal. It is a creature of statute, not a constitutional or inherent right. But, as pointed out by Maxwell, where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution (11th Edition, Page 350)._ _17. A remand by an appellate court is usually made when the record before it is in such shape that the appellate court cannot in justice determine what final judgment should be rendered and the power to do so cannot but be an essential requisite of the very jurisdiction to entertain the appeal. It is an old maxim of the law that to whomsoever a jurisdiction is given, those things also are supposed to be granted, without which the jurisdiction cannot be exercised: Cui jurisdictio data est, ea quoque concessa essee videntur, sine quibus jurisdictio explicari non potest._ - WPC.No.20111/11 **L** : 5 : _18. Kent says that the grant of a jurisdiction implies the grant of all the powers necessary to its exercise (1 Kent, Comm. 339). And Sutherland that where a statute confers powers or duties in general terms, all powers and duties incidental and necessary to make such legislation effective are included by implication (3rd Edition, Vol. 3, Page 19).”_ 8. Subsequently, in _Income-Tax Officer, Cannanore v. M.K. Mohammed Kunhi_ ( **AIR 1969 SC 430** ) the Apex Court had to consider whether the Appellate Tribunal constituted under the Income Tax Act had the power to grant stay even in the absence of any provision to that effect in the Act. Here again upholding that power of the Tribunal, the Court held thus: _"It is a firmly established rule that an express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective (Southland Statutory Construction, Third Edition, Articles 5401 and 5402). The powers which have been conferred by Section 254 on the Appellate Tribunal with widest possible amplitude must carry with them by necessary implication all powers and duties incidental and necessary to make the exercise of those powers fully effective. In Domat's Civil Law, Cushing's Edition, Vol. 1 at page 88 it has been stated:_ _It is the duty of the Judges to apply the laws, not only to what appears to be regulated by their express dispositions but to all the cases where a just application of them may be made, and which appear to be comprehended either within the consequences that may be gathered from it."_ _Maxwell on Interpretation of Statutes, Eleventh Edition contains a statement at p. 350 that "where an Act confers a jurisdiction, it impliedly also grants the power of doing all_ - WPC.No.20111/11 **L** : 6 : _such acts, or employing such means, as are essentially necessary to its execution. Cui jurisdiction data est, ea quoqe concessa esse vindentur, sine quibus jurisdictio explicari non potuit." An instance is given based on Ex Parte, Martin, (1879) 4 QBD 212 at p. 491 that "where an inferior court is empowered to grant an injunction, the power of punishing disobedience to it by commitment is impliedy conveyed by the enactment, for the power would be useless if it could not be enforced."_ 9. Subsequently, in _The Grindlays Bank v. The Central Government Industrial Tribunal and others_ ( **AIR 1981 SC 606** ) the question whether an Industrial Tribunal created under the Industrial Disputes Act had the power to set aside an exparte award was considered and upholding an order passed by the Tribunal, the Apex Court held thus: _“6. We are of the opinion that the Tribunal had the power to pass the impugned order if it thought fit in the interest of justice. It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition. On the other hand, there are indications to the contrary.”_ 10. These judgments have been followed by a Division Bench of this Court in _Aliya v. Pathu_ ( **1988 (2) KLT 446** ) where it - WPC.No.20111/11 **L** : 7 : ## was held thus: _“22. It is a well known rule of statutory construction that a tribunal or body should be considered to be endowed with such ancilliary or incidental powers as are necessary to discharge its functions for the purpose of doing justice between the parties unless there is any indication to the contrary in the statute. See Grindlays Bank Ltd v. Central Govt. Ind. Tribunal and others (AIR 1981 SC 606). An express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. (See Sutherland's Statutory Construction, Third edition, articles 5401 and 5402). Where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary to its' execution. See Maxwell on Interpretation of Statutes, eleventh edition at page 350. This passage is quoted with approval in Income tax Officer, Cannanore v. M. K. Mohammed Kunhi (1969) 71 ITR 815 and Dharmadas v. S. T. A. T. (1962 KLT 505 (FB))”._ Thus, law is well settled that even in the absence of any express provision in the Act, the statutory Tribunals are endowed with such ancillary and incidental powers which are necessary to discharge its functions for the purpose of doing justice between the parties. 11. Undisputedly, the Tribunal has been constituted to adjudicate the validity of orders that are passed by the Local Self Government Institutions, against which appeals and revisions as provided under Section 276 of the Act or Section 509 of the Kerala Municipality Act are filed. As held in the aforesaid - WPC.No.20111/11 **L** : 8 : judgments, the statutory tribunals, such as the Tribunal in question are considered to be endowed with such ancillary and incidental powers as are necessary to discharge its functions effectively. Further Rule 25 of the Rules confer wide powers on the Tribunal to regulate the procedure in connection with the disposal of the petition in the manner it thinks proper. The object of giving such power is to reduce the rigor of technicalities of the law, for achieving the purpose for which the Tribunal is created. When appeals and revisions are dealt with, the Tribunal is required to do justice between the parties as the case demands. In that context, for valid and legally sustainable reasons, if the Tribunal considers it necessary to pass orders in respect of a matter which is not covered by express statutory provisions; such orders are well within the ancillary and incidental powers which the Tribunal possesses. Ext.P9 order shows that, on facts, the Tribunal found that impleadment of respondents 4 and 5 was necessary for the just disposal of the appeal and that they are at least proper parties. There is no material for this Court to conclude that the view taken by the Tribunal is erroneous. In such circumstances, I am of the view that even in the absence of - WPC.No.20111/11 **L** : 9 : an express provision in the Act or the Rules, Tribunal was well within its jurisdiction to have passed Ext.P9 order impleading respondents 4 and 5 as additional respondents in the appeal filed by the petitioner. 12. For these reasons, I do not find any merit in the contention raised by the petitioner. The writ petition is dismissed. **==> picture [26 x 12] intentionally omitted <==** ## **ANTONY DOMINIC, JUDGE** Rp //True Copy// PA to Judge