Kudumbasree Community Development Society v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **THURSDAY, THE 6TH DAY OF OCTOBER 2016/14TH ASWINA, 1938** **WP(C).No. 25388 of 2016 (W)** **----------------------------** ## **PETITIONER:** ## **----------** **KUDUMBASREE COMMUNITY DEVELOPMENT SOCIETY, KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM P.O., PIN - 683 562, REPRESENTED BY ITS CDS CHAIRPERSON, MARGRET ABRAHAM, W/O.ABRAHAM, KOYIKKARA HOUSE, KIZHAKKAMBALAM P.O, ERNAKULAM.** **BY ADV. SRI.P.SATHISAN** ## **RESPONDENTS:-:** **--------------** **1. STATE OF KERALA,** - **REPRESENTED BY ITS PRINCIPAL SECRETARY, LOCAL ADMINISTRATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. VAZHAKULAM BLOCK PANCHAYATH, REPRESENTED BY ITS SECRETARY, VAZHAKULAM.** **3. KIZHAKKAMBALAM GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY, KIZHAKKAMBALAM P.O. PIN - 683 562, ERNAKULAM.** **4. SECRETARY, KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM P.O, PIN - 683 562, ERNAKULAM.** **5. PRINCIPLE SECRETARY, SOCIAL WELFARE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **R1,R5 BY GOVERNMENT PLEADER SRI RENIL ANTO R2,R3 & R4 BY ADV.SRI KURIAN GEORGE KANNADANAM R2,R3 & R4 BY ADV. SRI.THOMAS GEORGE, SC,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06-10-2016, ALONG WITH WPC. 26914/2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 25388 of 2016 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXHIBIT P1. TRUE COPY OF THE MINUTES OF THE MEETING OF KIZHAKKAMBALAM GRAMA PANCHAYATH.** **EXHIBIT P2. TRUE COPY OF THE RESOLUTION OF THE PANCHAYATH. EXHIBIT P3. TRUE COPY OF THE AGREEMENT.** **EXHIBIT P4. TRUE COPY OF THE COMPLAINT FILED BEFORE THE MINISTER WITH COPY TO OTHER AUTHORITIES.** **EXHIBIT P5. TRUE COPY OF THE EXTRACT OF THE FIR.** **EXHIBIT P6. TRUE COPY OF THE COPY OF THE LETTER ISSUED BY THE KIZHAKKAMBALAM PANCHAYATH.** **EXHIBIT P7. TRUE COPY OF THE REPLY LETTER. EXHIBIT P8. TRUE COPY OF THE TENDER NOTIFICATION.** **EXHIBIT P8(A). TRUE COPY OF THE PAPER PUBLICATION OF TENDER NOTIFICATION.** **EXHIBIT P9 COPY OF THE REPRESENTATION SUBMITTED BY THE committee MEMBERS BEFORE THE CDS CHAIRPERSON DATED 28/07/2016. EXHIBIT P10 COPY OF THE LETTER ISSUED BY THE CDS CHAIRPERSON REQUESTING TO MOVE LITIGATION IN THE MATTER AND THE REPLY BY THE MEMBER SECRETARY.** **EXHIBIT P11 COPY OF THE PHOTOGRAPHS SHOWING THE ACTIVITIES OF CDS WHICH WERE EFFECTED DURING CHRISTMAS SEASON AND ON ALL MONTHLY MARKET DAYS.** **RESPONDENT(S)' EXHIBITS -----------------------** **EXT.R2 (A) A COPY OF THE G.O.NO.198/2014 LSGD DATED 13/11/23014. EXT.R2(B) A COPY OF THE MINUTES OF THE RESOLUTION DATED 27/07/2015.** **EXT.R2(C) A COPY OF THE LETTER DATED 1.07.2016 GIVEN BY THE PETITIONER TO THE SECRETARY. EXT.R2(D) A COPY OF THE MINUTES OF THE RESOLUTION DATED 14/07/2016.** **EXT 2(E) A COPY OF THE RECEIPT DATED 29/07/2016 ISSUED TO SMT.VALSA PAULOSE.** **EXT.R3(F) A RELEVANT PAGE OF THE AUCTION REGISTER OF THE PANCHAYAT.** **/TRUE COPY** **P.A.TO JUDGE** **K.V.** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) Nos. 25388 & 26914 of 2016 -----------------------------------------Dated: 6[th] October, 2016 ## **J U D G M E N T** Both the writ petitions challenge the auction proceedings initiated by the Grama Panchayat, the 3[rd] respondent, to auction the space in a building, built under a Woman Empowerment Scheme. 2. The admitted facts are that the building was constructed by the 3[rd] respondent, partly utilising the funds of the 2[nd] respondent Block Panchayat also. The auction proceedings are challenged by the Kudumbasree Community Development Society ('CDS' for short) by W.P.(C) No.25388/2016, represented by the Chairperson. A preliminary objection was taken by the Grama Panchayat that the Chairperson does not have the competence to initiate a litigation on behalf of ## **W.P.(C) Nos. 25388 & 26914/2016** **-2-** the CDS. The second writ petition was filed by the Chairperson in her personal capacity, seeking to protect the interest of the Kudumbasree unit. 3. The first contention need to be considered, since, if only the Secretary is competent to file a litigation on behalf of the CDS, then, there could be no litigation filed by any of the Governing Body members of the CDS, is the argument taken by the learned Senior Counsel appearing for the 3[rd] respondent Grama Panchayat. 4. The Bylaws constituting the Kudumbasree is produced as Ext.P3 in W.P.(C) No.26914/2016. A reading of the Bylaws would indicate that there is a three tire system with the 'Ayalkootams' at the grass root level and the Area Development Society (ADS) at the middle level and the Community Development Society (CDS) at the apex level. The CDS, the apex ## **W.P.(C) Nos. 25388 & 26914/2016** **-3-** body, is at the Panchayat level, constituted of one member from all the ADS and a Member Secretary appointed by the State, five women representatives of the Council and two persons who have been members of the organising committee of CDS. As per clause 19.1, the Member Secretary alone can initiate litigation on behalf of the CDS. The Member Secretary is also appointed, so as to liaise between the Government and the Kudumbasree units. Admittedly, the Member Secretary is a person appointed as Assistant Secretary in the Panchayat; a new designation to further the Kudumbasree scheme, constituted under Ext.P3. The Bylaws indicate that the Member Secretary has to initiate the litigation, but, however, the operations of the CDS itself is governed by the decisions taken by the Governing Body which is constituted under clause 16.1. When the Governing Body is conferred with the power ## **W.P.(C) Nos. 25388 & 26914/2016** **-4-** to take decisions on the functioning of the CDS, necessarily, the Member Secretary appointed by the State, though a Government Officer, would have to initiate a litigation in the event of the Governing Body finding the necessity for such a litigation. However, as rightly pointed out by the learned Senior Counsel, this Court would not usurp the executive powers of the Government in framing a Bylaw or making additions to the same. Suffice it to direct the Government to look into the issue and empower the Governing Body to take a decision on initiating litigations. 5. As for the present case, this Court is of the opinion that the majority Governing Body members, as is seen from Ext.P9 produced in W.P.(C) No.25388/2016, have authorised the Chairperson to initiate the above litigation. The Chairperson has moved the Court in her personal capacity also. The ## **W.P.(C) Nos. 25388 & 26914/2016** **-5-** accepted definition of an 'aggrieved person' is wide enough to take in the Governing Body members and the Chairperson who has initiated this litigation on behalf of the Kudumbasree, challenging the decision of the Panchayat to take away a benefit conferred on the Kudumbasree as illegal. 6. The contention taken by the learned Counsel appearing for the petitioner is that the Kudumbasree unit of the 3[rd] respondent Panchayat consists of at least 3500 members, among whom, at least 200 depend on the activities carried on by the Kudumbasree for their livelihood. It is in this context that the earlier Council of the Panchayat had decided to grant a concession insofar as conceding the commercial space in the building constructed with funds equally from the 2[nd] and 3[rd] respondents to the Kudumbasree for carrying on a 'Vanitha Vipanana Kendram' (Women's Trade Centre), ## **W.P.(C) Nos. 25388 & 26914/2016** **-6-** which essentially would deal with the products which are either grown or manufactured by the individual members of the Kudumbasree. 7. Ext.P3 is the agreement entered into with the Secretary, which specifically conceded the space without any rent, but, however, mandating the water charges and the electricity charges to be paid by the Chairperson of the CDS. However, on the new Committee taking charge after the elections to the Local Self Government Institutions, the Committee members have been enmical towards the petitioners and there was even an allegation of assault, based on which F.I.R. was registered as per Ext.P5. Subsequently, by Ext.P6 the petitioner was asked to take the space on rent and make an application for determining the rent. The request was responded to by Ext.P7 specifically pointing out the earlier decision ## **W.P.(C) Nos. 25388 & 26914/2016** **-7-** of the Committee. However, the respondent Panchayat has gone ahead with the auction proceedings at Exts.P8 and P9, which are challenged by the Kudumbasree unit through the Chairperson of the CDS; before this Court. 8. It is also contended that the petitioner has been put in possession of the building and in such circumstance, even going by the decisions of the Hon'ble Supreme Court in **Baburao Shantaram More v. Bombay Housing Board - AIR 1954 SC 153** and **M/s. Dwarkadas Marfatia and Sons v. Board of Trustees of the Port of Bombay - (1989) 3 SCC 293** , a public authority has to be fair in evicting a person who has been put in possession of the premises and at least a notice has to be issued, is the contention. To assert the contention of possession having been conceded, the learned Counsel for the petitioner relies on Ext.P3 agreement and Ext.P6 communication of the ## **W.P.(C) Nos. 25388 & 26914/2016** **-8-** Panchayat; which according to him does not dispute the possession. The learned Senior Counsel appearing for the respondent Panchayat, however, would contend that the petitioners were never put in possession of the building. 9. Looking at Ext.P3, it cannot be said that there is a possession conceded to the Kudumbasree. The agreement is entered into by the Secretary and the Chairperson of the CDS and, as rightly pointed out in the counter affidavit, though the agreement is said to have been executed in the presence of witnesses, no witnesses have affixed their signature to the document. Ext.P6, according to the Panchayat, is a reply to Ext.R2(c). Ext.R2(c) is a communication addressed by the Chairperson of the CDS on behalf of the Kudumbasree intimating the Panchayat that the functioning of the Trade Centre is sought to be commenced from 04.07.2016. The letter is ## **W.P.(C) Nos. 25388 & 26914/2016** **-9-** acknowledged by the Panchayat on 01.07.2016. Immediately thereafter, Ext.P6 dated 02.07.2016 was issued the Kudumbasree to make an directing application for fixing the rent of the property. In such circumstance, it cannot be said that the petitioner was put in possession of the building. 10. The further contention taken on the basis of the agreement cannot also be countenanced in the teeth of the specific contention taken by the Panchayat that there was no decision taken by the Council; even the earlier one, to concede the space without rent. The decision taken even by the earlier Council, immediately before Ext.P3, i.e. on 22.07.2015, as evidenced from Ext.R2(b) is to give on rent the premises in the building which was constructed by utilising the funds of the Grama Panchayat and the Block Panchayat. The agreement, though said to be entered in the Register of **W.P.(C) Nos. 25388 & 26914/2016** **-10-** Agreements, it is contended that the same is an action taken by the Secretary without the permission of the Council and without any decision taken by the Council to that end. The petitioner does not point out any resolution of the earlier Council; permitting the Secretary to enter into an agreement as found in Ext.P3. The resolution of 22.07.2015, prior to Ext.P3 dated 22.09.2015, is to the effect that the decision of the Council is to concede the space in the newly constructed building to the Kudumbasree for rent. In such circumstance, neither can any reliance be placed on Ext.P3 for the purpose of conceding the space to the petitioner free of rent nor can a finding be rendered on the possession having been given to the petitioner. 11. Further, Rule 11 of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, reads as under: **-11-** ## **W.P.(C) Nos. 25388 & 26914/2016** “11. **Transfers to be either in public auction or through tenders** :- The transfers of the property of the Panchayat through sale, except renewal of licences, rehabilitation of licensees, granting of lease, letting out on rent, shall either be in public auction or by inviting tenders.” 12. The statutory Rule prohibits the Panchayat from transferring the property of the Panchayat in any other manner than by public auction or by inviting tenders except in cases of renewal of licenses or rehabilitation of licensees. In such circumstance, there could not have been a concession made by the Council in favour of the Kudumbasree unit despite the public participation asserted by the Chairperson of the CDS. It has also been found that the decision of the earlier Council was also to the effect of conceding the space ## **W.P.(C) Nos. 25388 & 26914/2016** **-12-** only on rent. In such circumstance, the petitioner would not have been put in possession of the space based on Ext.P3 agreement; either by the earlier or the present Council. 13. The further contention is with respect to the auction having already been conducted and the same confirmed in favour of one Valsa Poulose for an amount of Rs.40,100/-, being the monthly rent payable. Considering the public participation of the Kudumbasree unit, this Court had directed the learned Counsel appearing for the petitioner to get instruction as to whether the Kudumbasree unit would be interested in taking the room for rent on the maximum bid as received at the auction. On instruction, it is submitted that the CDS cannot take the space on the rent aforementioned. The person who had bid successfully in the auction is said to be one Valsa **W.P.(C) Nos. 25388 & 26914/2016** **-13-** Poulose who has also not been impleaded herein. The offer made to the petitioner was also at the preliminary stage of hearing and having found the petitioner to be dis-entitled to occupy the room and having also found the petitioner to have never been put in possession of the room, this Court would not interfere at all in the auction proceeding. A further public auction would only make liable the Grama Panchayat for additional expenditure, which this Court would not attempt. The writ petitions, hence, would stand dismissed. The learned Government Pleader is directed to place the judgment before the Government only to consider the amendment to the Bylaws. No costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 6/10/16