Jafar M.P. and others v State of Kerala and Kanhangad Municipality and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 05TH DAY OF AUGUST 2019 / 14TH SRAVANA, 1941** ## **WA.No.1732 OF 2019** ## **AGAINST THE JUDGMENT DATED 1.7.2019 IN WP(C) 13068/2019(G) OF HIGH COURT OF KERALA** ## **APPELLANTS:** |**1**|**JAFAR.M.P.,**| |---|---| ||**AGED 45 YEARS**| ||**S/O.HASSAINAR, BALLA KADAPPURAM, KANHANGAD P.O,**| ||**CHAIRMAN HEALTH STANDING COMMITTEE,**| ||**COUNCILOR REPRESENTING WARD NO.2,**| ||**BALLA KADAPPURA-EAST WARD,**| ||**KANAHANGAD MUNICIPALITY, PIN 671 315**| |**2**|**K.MUHAMMED KUNHI,**| ||**AGED 61 YEARS**| ||**S/O.KUNHABDULLA MUSALIAR, COUNCILOR,**| ||**REPRESENTING WARD NO.40, HOSDURG KADAPURAM,**| ||**KANHANGAD P.O., KANHANGAD MUNICIPALITY 671 315**| |**3**|**K.VELAYUDHAN,**| ||**AGED 76 YEARS, S/O.KUNJIRAMAN,**| ||**COUNCILOR, REPRESENTING WARD NO. 1,**| ||**KANHANGAD SOUTH, AVIKARA P.O, KANHANGAD,**| ||**KANHANGAD MUNICIPALITY 671 315**| |**4**|**HASSAINAR KALLURAVI,**| ||**AGED 57 YEARS, S/O.HASSAN,**| ||**COUNCILOR, REPRESENTING WARD NO.35,**| ||**KANHANGAD SOUTH, KANHANGAD P.O,**| ||**KANHANGAD MUNICIPALITY 671 315**| |**5**|**SAKEENA YOUSUFF,**| ||**AGED 55 YEARS, W/O.YOUSUFF,**| ||**COUNCIL REPRESENTING WARD NO.36, KANHANGAD SOUTH,**| ||**KALLURAVI P.O, KANHANGAD MUNICIPALITY 671 315**| W.A.No.1732/2019 2 **6 KHADEEJA P, AGED 35 YEARS, W/O.HASSAINAR, COUNCILOR, REPRESENTING WARD NO.37, PAZHAYA KADAPURAM, POKANANHAD SOUTH, KANHANGAD MUNICIPALITY 671 315** - **7 ABOOBACKER P, AGED 48 YEARS, S/O.HASSAINAR, COUNCILOR, REPRESENTING WARD NO.33, NJANHI KADAVU P.O, OZHINJAVALAPPU, KANHANGAD MUNICIPALITY 671 315** - **8 RAMSHEED AGED 29 YEARS S/O.MUHAMMED, COUNCILOR, REPRESENTING WARD NO.14, HOSDURG P.O, KANHANGAD, KANHANGAD MUNICIPALITY 671 315** - **9 RAZAK THAIKANDY, AGED 55 YEARS, S/O.KUNJUMOHAMMED HAJI, COUNCILOR, REPRESENTING WARD NO.27, PADNEKKAD P.O, KANHANGAD MUNICIPALITY 676 521** - **10 NARAYANAN M.M, AGED 57 YEARS, S/O.KUNJAMAN, COUNCILOR, REPRESENTING WARD NO.28, PADNEKKAD P.O., KANHANGAD MUNICIPALITY 671 351** - **11 SHAIJA ANANDHAMPALLA, AGED 37 YEARS,W/O.SAIDAS, COUNCILOR, REPRESENTING WARD NO.29, OZHINJAVALAPPU P.O, KANHANGAD MUNICIPALITY 671 314** - **12 SUMATHI MARAKKAPP, AGED 52 YEARS W/O.SURESAN.V , COUNCILOR, REPRESENTING WARD NO. 30, KADAPPURAM P.O, OZHINJAVALAPPU, KANHANGAD MUNICIPALITY 671 314** - **13 KHADEEJA HAMEED, AGED 55 YEARS W/O.HAMEED, COUNCILOR, REPRESENTING WARD NO.43, AVIYIL P.O, KANHANGAD, KANHANGAD MUNICIPALITY 671 314** W.A.No.1732/2019 3 **14 SUMAYYA T.K, AGED 28 YEARS D/O.RAZAK T.K, COUNCILOR, REPRESENTING WARD NO. 16, PADINHAR P.O, KANHANGAD, KANHANGAD MUNICIPALITY 676 521** **BY ADVS. SRI.P.A.MOHAMMED SHAH SRI.SOORAJ T.ELENJICKAL SRI.K.ARJUN VENUGOPAL SMT.V.A.HARITHA SRI.SIDHARTH B PRASAD SHRI.ASWIN KUMAR M J SMT.HELEN P.A.** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANNATHAPURAM 695 001** - **2 KANHANGAD MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KANHANGAD P.O, KASARAGOD 671 315** - **3 THE SECRETARY, KANHANGAD MUNICIPALITY, KANHANGAD P.O, KASARAGOD 671 315** - **4 CHAIRMAN, KANHANGAD MUNICIPALITY, KANHANGAD P.O, KASARAGOD 671 315** **GOVERNMENT PLEADER SRI.SYAMJI RAM SRI.ROHITH, SC FOR MUNICIPALITY** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.No.1732/2019 4 ## **C.K.ABDUL REHIM & R.NARAYANA PISHARADI, JJ.** ---------------------- W.A.No.1732 of 2019 ---------------------Dated this the 5[th] day of August, 2019 ## **JUDGMENT** ## **C.K.Abdul Rehim, J.** The appellants herein are the petitioners in W.P.(C) No.13068 of 2019, challenging the dismissal of the Writ Petition through the judgment dated 1[st] July, 2019. The respondents herein are the respondents in the Writ Petition. 2. The petitioners, who are elected councilors of the 2[nd] respondent Municipality challenged Exhibit-P2 resolution adopted by the council on 1.3.2019, mainly contending that the resolution was adopted in violation of Section 571 of the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act' for short) and without following the procedure contemplated under Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995 (hereinafter referred to as 'the Procedure Rules', for short. Interalia, the petitioners sought direction to the 3[rd] respondent to forward Exhibits-P3 and P4 to the 1[st] respondent in order to W.A.No.1732/2019 5 cancel Exhibit-P2 resolution under Section 57 of the Act. 3. By virtue of Exhibit-P2, the council of the 2[nd] respondent Municipality had resolved to cancel its decision No.16, dated 25.6.2010. It was further resolved to approve the bye-law prepared for allotting rooms and stalls at the Bus Stand-cumShopping Complex', Kanhangad under licence fee system and to authorise the Secretary of the Municipality to forward the bye-laws for approval of the Government. One of the challenges against Exhibit-P2 resolution was that, as per Rule 13 of the Procedure Rules, no such resolution cancelling an earlier resolution can be adopted unless it is passed by a support of not less than 1½ of the sanctioned number of members in a meeting of the council specially convened for that purpose, within three months from passing of the resolution which is sought to be cancelled. Learned Single Judge declined to accept the above contention by relying on a Division Bench decision of this Court in **Thrissur Municipal Corporation v. E.G.Jeeco @ Jecco George [2018(5)** **KHC 114]** . It is held in the said decision that the three months period stipulated under Rule 13 of the Procedure Rules need to be interpreted as one which is intended to safeguard against any W.A.No.1732/2019 6 hasty or arbitrary modification or cancellation of a resolution, within a short duration of three months from the date of its passing. It is clarified in the decision that any alternate interpretation of the Rule, which suggest that any resolution of the council cannot be modified or cancelled after three months of its passing, would run contrary to the object of the legislation and contrary to Article 243 W of the Constitution. On the facts, the learned Single Judge observed that, Exhibit-P2 resolution was adopted for the purpose of cancelling a resolution which was passed as early as in the year 2010 and therefore, Rule 13 has no application and there exists no procedural irregularity. There is no contention raised in this appeal with respect to the finding that Rule 13 has no application in the case of Exhibit-P2 resolution, in view of the dictum contained in **Thrissur Municipal Corporation** 's case (supra). 4. More emphasis of the appellants is on the argument based on Section 571 of the Act. Section 571 stipulates that every council, before making or altering any bye-law or regulation, shall publish a draft of the proposed bye-laws or regulation together with a notice specifying the date on or after which such W.A.No.1732/2019 7 draft will be taken into consideration and shall before making or altering the bye-laws or the regulations, receive and consider any objection or suggestion which may be made in respect of such draft by any person interested therein before the date so specified. It cannot be disputed that by virtue of Exhibit-P2 the council of the 2[nd ] respondent Municipality had approved new byelaws and authorised the Secretary to forward the same for approval of the Government. Section 572 of the Act stipulates that no bye-law or regulation or any cancellation or alteration thereof shall have effect, until the same is approved and confirmed by the Government. Sub-section (2) of Section 572 stipulates that a bye-law or regulation approved and confirmed by the Government should be published in the Gazette and shall come into operation only on the date of such publication, unless a different date is provided therein. Section 573 provides power on the Government to cancel any bye-laws or regulations for the reason to be specified in the order issued on that behalf. It stipulates that on such cancellation of the bye-laws or regulations, the same shall not have any effect. 5. There exists dispute between the appellants and the W.A.No.1732/2019 8 respondent Municipality with respect to compliance of the procedural requirement under Section 571 of the Act. While the appellants are contending that the draft of the bye-laws approved under Exhibit-P2 was not put to notice or published by calling upon objections if any, learned Standing Counsel appearing for the 2[nd] respondent Municipality reiterated that, in fact the draft was published before adopting the same on the basis of Exhibit-P2 resolution. Learned counsel for the appellants submits that, the respondent Municipality had no such contention raised in the statement filed in the Writ Petition. 6. We take note of the fact that, the contention raised by the appellants based on violation of Section 571 of the Act has not been specifically dealt with by the learned Single Judge. Observations in the judgment impugned is that, a mere reading of Exhibit-P2 would clearly indicate that the Secretary has been authorised to take steps for forwarding the bye-laws to the Government for approval, after following the necessary procedure. Evidently the respondent Municipality has taken a contention before the learned Single Judge that, the resolution only authorised the Secretary to take necessary procedure required for W.A.No.1732/2019 9 the amendment of the bye-laws. Therefore the provision of Section 571 of the Act will not apply to Exhibit-P2 resolution, is the contention. We are not in a position to accept such a contention in view of the specific wordings contained in Exhibit-P2, especially decision No.2 therein, dated 1.3.2019. The resolution is one clearly approving the draft bye-laws prepared. Further, the Secretary was authorised only to forward the bye-laws approved by the council to the Government, for its approval/recognition by the Government. Going by the mandate of Section 571, the requirement is to publish the draft of the proposed bye-laws together with a notice specifying the date on or after which such draft will be taken for consideration, calling upon objections or suggestions if any, to be made with respect to such draft, before the date to be specified. The provisions of Section 571 begins with the wording ; “every council shall, before making or altering any bye-law or regulation”. A plain meaning of the such wording can only be interpreted as one obliging the council to publish the draft before it adopts any resolution making or altering any bye-laws or regulations. Therefore, we are of the opinion that, compliance of the stipulations under Section 571 was a W.A.No.1732/2019 10 ## pre-requisite for adopting Exhibit-P2 resolution. 7. But the crucial question is whether there was proper compliance of the mandate of Section 571. Evidently, the parties are at dispute on the said factual aspect. We take note of the provisions contained in Section 57 of the Act which enables the Government to cancel or amend any resolution passed by the council, based on any reference made or petition received from any of the councilors of the Municipality or from any citizen, if it is found that the resolution has not been legally passed by the council. The appellants will be at liberty to invoke the said powers for cancellation of Exhibit-P2 resolution. Further, we notice that Exhibit-P2 resolution needs approval and confirmation by the Government. It will be left open to the appellants herein to raise such objections before the Government against granting approval or confirmation, by pointing out that the resolution was adopted in violation of Section 571 of the Act. We are of the opinion that the best authority to adjudicate upon and to decide whether it has to be approved or confirmed or as to whether the resolution has to be cancelled by exercising the power vested under Section 57, is the Government. Learned Standing Counsel appearing for the W.A.No.1732/2019 11 respondent Municipality had pointed out that the appellants had already raised the objections before the 1[st] respondent/ Government, as per Exhibits-P3 and P4. It will be left open to the appellants to submit any further application/objection, if required, in this regard before the Government. We are of the opinion that the appellants can be relegated to the Government for raising all the contentions narrated as above. 8. Under the above-mentioned circumstances, the Writ Appeal is hereby allowed in part. The judgment of the Single Judge in W.P.(C) No.13068 of 2019 is hereby modified. The appellants/ petitioners are given liberty to raise objections against Exhibit-P2 resolution before the Government. They will also be at liberty to approach the Government seeking cancellation of the resolution by invoking the powers vested under Section 57 of the Act. If any such objection/application is received from the appellants/petitioners, the Government shall consider the same before granting approval and confirmation to the bye-laws adopted by the 2[nd] respondent Municipality under Exhibit-P2 and shall take an appropriate decision thereof, after affording opportunity of hearing to the representative of the appellants and W.A.No.1732/2019 12 to the 2[nd] respondent Municipality. A decision in this regard shall be taken at the earliest. The appellants shall submit further application/objection if any, within 15 days from today. The 1[st] respondent/Government is directed to take an appropriate decision in the matter as directed above, within a period of three months from today. Sd/- **JUDGE** **C.K.ABDUL REHIM** Sd/- **R.NARAYANA PISHARADI JUDGE** csl