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 A.K.JAYASANKARAN NAMBIAR** **MONDAY, THE 01ST DAY OF JULY 2019 / 10TH ASHADHA, 1941** ## **WP(C).No.13068 of 2019** ## **PETITIONERS:** **1 JAFAR.M.P, AGED 45 YEARS S/O. HASSAINAR, BALLA KADAPURAM, KANHANGAD P.O, CHAIRMAN HEALTH STANDING COMMITTEE, COUNCILOR REPRESENTING WARD NO. 2, BALLA KADAPURA-EAST WARD, KANHANGAD MUNICIPALITY 671 315** - **2 K. MUHAMMED KUNHI, AGED 61 YEARS S/O. KUNJABDULLA 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, COUNCILL REPRESENTING WARD NO. 36, KANHANGAD SOUTH, KALLURAVI P.O, KANHANGAD MUNICIPALITY, 671 315** - **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** 2 **WP(C).No.13068 of 2019** **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, 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, REPRSENTING 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** - **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.JACKSON JOHNY SRI.MUHAMMED YASIL** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF** 3 **WP(C).No.13068 of 2019** ## **GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 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** - **BY ADV. SRI.R.ROHIT, SC, KANHANGAD MUNICIPALITY BY GOVERNMENT PLEADER SMT.MABLE C.KURIAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 4 **WP(C).No.13068 of 2019** ## **JUDGMENT** The petitioners, who are elected councilors of Kanhangad Municipality, have approached this Court impugning Ext.P2 resolution passed by the Municipality, cancelling the Municipality's earlier resolution taken on 25.06.2010. The principal ground of challenge in the Writ Petition against Ext.P2 resolution is that the said resolution was passed in violation of the procedure prescribed in Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995, in that, there was no special meeting convened for the purpose of amending the bye-law. It is also pointed out that the meeting convened for the purposes under Rule 13 had to be supported by not less than one half of sanctioned members and had to be held within three months of passing of the earlier resolution. It is the further contention of the petitioners that as per Section 571 of the Municipalities Act, every council is obliged, before making or altering any bye-law or regulation, to publish a draft of the proposed bye-laws or regulation together with a notice specifying the date on or after 5 **WP(C).No.13068 of 2019** which such 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. 2. Through a statement filed on behalf of the 2[nd] and 3[rd] respondents, it is stated that the main agenda for the Municipal Council Meeting held on 01.03.2019 was pertaining to the approval of bye-laws to allocate rooms, stalls and other allied services in Kanhangad Municipal new bus stand cum shopping complex premises on licence fee basis and to cancel the conditions in the Rules and Regulations for allocation of ground floor rooms of the shopping complex, as was approved by the earlier resolution No.16 dated 25.06.2010. The averments in the Writ Petition with regard to the alleged procedural defects are denied by the respondents and it is stated that in Ext.P2 resolution, the Secretary of the Panchayat has only been authorised to initiate the necessary procedure incidental to the amendment of the bye-laws. It is therefore stated that the provisions of Section 571 of the 6 **WP(C).No.13068 of 2019** Municipalities Act will not apply to Ext.P2 resolution taken by the Panchayat. 3. A reply affidavit has been filed by the petitioners refuting the averments in the statement. 4. I have heard the learned counsel appearing for the petitioners and also the learned Standing counsel appearing for the respondent Panchayat. 5. On a consideration of the facts and circumstances of the case as also the submissions made across the Bar, I find that by virtue of the decision of the Division Bench in **Thrissur Municipal Corporation v. E.G.Jeeco @ Jecco George [2018 (5) KHC 114]** , Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995 has been interpreted as one which is intended to safeguard against any 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 said decision that the alternate interpretation of the Rule that suggests 7 **WP(C).No.13068 of 2019** that the resolution of the council cannot be modified or cancelled after three months of its passing, would run counter to the object of the Municipalities Act as also Article 243 W of the Constitution, and hence, such an interpretation had to be eschewed. 6. It is apparent, therefore, that since Ext.P2 resolution was one that was convened for the purposes of cancelling an earlier resolution of 2010, the provisions of Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995 cannot be pressed into service for challenging Ext.P2 resolution on the ground of procedural irregularity. That apart, a mere reading of Ext.P2 document, and in particular, the second decision taken therein would clearly indicate that the Secretary has been authorised to take steps for forwarding the approved bye-laws of the Panchayat in relation to the licensing of shops, stalls etc., in the bus stand cum shopping complex of the Municipality to the Government after following the necessary procedure. The grounds taken in the Writ Petition, especially in respect of the procedure to be followed under Rule 13 of the Kerala Municipality (Procedure for Meeting of Council) Rules, 1995, cannot be pressed into service 8 **WP(C).No.13068 of 2019** for the reasons already stated with regard to non-applicability of Rule 13 itself for the purposes of deciding the legality of Ext.P2 resolution. Under the said circumstances, the relief sought for in this Writ Petition cannot be granted. The Writ Petition in its challenge to Ext.P2 resolution, therefore, fails and is accordingly dismissed. Sd/- **A.K.JAYASANKARAN NAMBIAR JUDGE** mns 9 **WP(C).No.13068 of 2019** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE MUNICIPAL COUNCIL MEETING NOTICE DATED 25-02-2019 EXHIBIT P2 A TRUE COPY OF THE GENERAL COUNCIL DECISION DATED 01-03-2019. EXHIBIT P3 THE TRUE COPY OF THE DISSENT NOTE SUBMITTED BY THE PETITIONER AND OTHER COUNCIL MEMBERS. EXHIBIT P4 THE TRUE COPY OF THE REPRESENTATION DATED 2103-2019 SUBMITTED BEFORE THE 3RD RESPONDENT. EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 12.03.2019 FORWARDED BY THE 3RD RESPONDENT EXHIBIT P6 A TRUE COPY OF THE DISSENT NOTE OF COUNCILOR AJAYA KUMAR T.V REORESEBNTUING WARD NO.5 OF THE KANHANGAD MUNICIPALITY DATED 05.03.3019** ## **RESPONDENTS ANNEXURES:** **ANNEXURE-I A TRUE COPY OF THE ATTENDANCE REGISTER OF THE MUNICIPAL COMMITTEE MEETING HELD ON 1.3.2019** **//TRUE COPY//** **P.A TO JUDGE**