Siju Mani Kavuntholiyil and others v. Ettumanoor Grama Panchayat and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 19TH DAY OF AUGUST 2014/28TH SRAVANA, 1936 WP(C).No. 19302 of 2014 (K) ---------------------------- PETITIONER(S): ----------------- 1. SIJU MANI KAVUNTHOLIYIL HOUSE, PATTITHANAM P.O, ETTUMANOOR KOTTAYAM DIST. 2. SIBY JOSEPH THOTTIYIL HOUSE, THELLAKOM P .O, ADICHIRA KOTTAYAM DIST. 3. SAJI C. K CHUNDAKKATTIL, ATHIRAMPUZHA, KOTTAYAM DIST. 4. M. T RAJU MUTTATHETTU HOUSE, ATHIRAMPUZHA, KOTTAYAM DIST. BY ADVS.SRI.K.REGHU KOTTAPPURAM SRI.M.MUKESH RESPONDENT(S): - ------------------- - 1.THE ETTUMANOOR GRAMA PANCHAYATH REP.BY THE SECRETARY, ETTUMANOOR, KOTTAYAM DIST. - 2.THE ETTUMANOOR GRAMA PANCHAYTH, COMMITTEE REP. BY THE PRESIDENT, ETTUMANOOR KOTTAYAM DIST. 3.THE PRINCIPAL SECRETARY LOCAL SELF GOVT.(DB)DEPARTMENT, STATE OF KERALA THIRUVANANTHAPURAM-695001 4. JALEEL M. H R/A.MULLASSERRIL HOUSE, ATHIRAMPUZHA, KOTTAYAM-686562 5. RAMESH - S/O.CHANDRAN, R/A.SATHEE MANDIRAM, ETTUMANOOR P .O ETTUMANOOR VILLAGE, KOTTAYAM DIST.-686631 6. RAJESH C.S S/O.CHANDRAN, R/A.SATHEE MANDIRAM, ETTUMANOOR P.O ETTUMANOOR VILLAGE, KOTTAYAM DIST.-686631 ## 7. MUNEER S/O.HAMEED, R/A.PUTHENVEETTIL, ETTUMANOOR P.O ETTUMANOOR VILLAGE, KOTTAYAM DIST.-686631 ## 8. RIAZMON S/O.BASHEER, R/A.MULLASSERRIL HOUSE, ATHIRAMPUZHA P.O KOTTAYAM-686562 9. JEBIN JOSEPH S/O.JOSEPH, R/A.OTTAPLAKKIL, ETTUMANOOR P. O KOTTAYAM DIST.-686631 ## 10. JOSEPH CHACKO S/O.CHACKO, R/A.MUTHIRAKKALAYIL HOUSE, VETTIMUGAL P.O ETTUMANOOR, KOTTAYAM DIST.686631 11.THAMPI THOMAS KAVIPARAMABIL HOUSE, KAIPUZHA VILLAGE ATHIRAMPUZHA P .O, KOTTAYAM-686562 ## 12. LEELA MADHAVAN W/O.MADHAVAN, R/A.VAZHUKKADAVU HOUSE, VAZHUKKADAVU VAIKOM, KOTTAYAM-686141 13.BASURA THANKAPPAN W/O.THANKAPPAN, R/A.KOMASSERILHOUSE, VAIKOM KOTTAYAM-686141 14. SUMA BHASKARAN W/O.BHASKARAN, R/A.KIZHAKKECHAYAPPILLIL KOMASSERIL HOUSE, VAIKOM KOTTAYAM-686141 R4-R8 BY ADV. SRI.K.GOPALAKRISHNA KURUP (SR.) R9-R14 BY ADV. SRI.ABHISHEK KURIAN R3 BY GOVERNMENT PLEADER SRI.ABHIJETT LESSLI R1,2 BY SRI.SIBY CHENAPPADY, SC, ETTUMANOOR GRAMA PANCHAYAT THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 19302 of 2014 (K) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS : ------------------------------ P1:-THE PHOTOCOPY OF THE NOTIFICATION DTD 5/10/2013. P2:-A PHOTOCOPY OF THE SKETCH OF THE STALLS. - P3:-A PHOTOCOPY OF THE DECISION NO 1 DTD 1/10/2013 OF THE PANCHAYATH. - P4:-PHOTOCOPY OF THE BYLAWS CONTAINING THE CONDITIONS FOR DISPOSAL OF THE STALLS. - P5:-PHOTO COPY OF THE AFFIDAVIT DTD 27/6/2014 FILED BY 9TH RESPONDENT ALONG WITH THE IMPLEADING PETITION IN WPC 9048/14 WITHOUT ANNEXURES. - P6:-THE PHOTOCOPY OF THE LETTER NO 63087/DB-2/13/LOCAL SELF DEPT.DTD 31/10/2013. - P7:-PHOTOCOPY OF ORDER NO GO(ORD)NO-1749/14/LOCAL SELF DEPT.DTD 9/7/2014. P8:-PHOTOCOPY OF THE JUDGMENT IN WPC NO 9048/2014. - P9:-PHOTOCOPY OF THE OBJECTION DTD 22/7/2014 AGAINST ALLOTMENT FILED BY THE 4TH PETITIONER ALONG WITH RECEIPT. - P10:A PHOTOCOPY OF LETTER NO.A1-6714/14 DATED 2.8.2014 ISSUED BY THE PANCHAYAT. RESPONDENT(S)' EXHIBITS: ------------------------------ - EXT.R9(A):TRUE COPIES OF THE SAMPLE OF RECEIPTS ISSUED TO THE RESPONDENT (8 IN NUMBER) ON VARIOUS OCCASIONS BY SUCH CONTRACTORS BEARING THE SEAL OF THE PANCHAYAT. - EXT.R9(B):TRUE COPY OF THE RECEIPT DATED 7.11.1996 ISSUED BY THE PANCHAYAT IN THE NAME OF THE 7TH RESPONDENT EVIDENCING THE PAYMENT OF FEE FOR SALE OF FISH FOR THE PERIOD 1996-1997. - EXT.R9(C):TRUE COPY OF AUCTION NOTICE DATED 11.3.2002 FOR FARMING OUT THE RIGHT TO COLLECT FEE FROM THE FISH MARKET (INCLUDING 13 STALLS) FOR THE PERIOD 2002-2003 BY THE 1ST RESPONDENT. - EXT.R9(D):TRUE COPY OF THE NOTICE DATED 14.9.2001 FOR THE PERIOD 2.10.2001 TO 31.3.2002 ISSUED BY THE 1ST RESPONDENT. //TRUE COPY// P.A. TO JUDGE ## **C.T. RAVIKUMAR, J. ========================== W.P.(C). No.19302 OF 2014 ==========================** Dated this the 19[th] day of August, 2014 ## **JUDGMENT** The petitioners claims to be the residents of Ettumanoor village and they intend to indulge in fish vending business in Ettumanoor market. This writ petition has been filed seeking quashment of Ext.P7 and issuance of writ declaring that in view of Rule 11 of Panchayat Raj (Acquisition and Disposal of Property) Rules 2005 as well as the Division Bench decision of this Court in **Vanaraj v. Santhanpara Grama Panchayat** [ **2014 (2) KLT 958]** , the stalls intended to be allotted for trading of fish constructed in Ettumanoor Grama Panchayat, using government fund could be disposed of only in public auction except in the case of allotment of the stalls in the names of the previous licensees under the panchayat. The further prayer is for issuance of writ of mandamus commanding respondents 1 to 3 not to **W.P.(C).19302/14** 2 allot stalls in the hygienic panchayat market in Ettumanoor in the names of or in favour of respondents 4 to 14 without public auction in the absence of their identification as the previous licensees under the panchayat doing business in the market building demolished for construction of the new buildings. Ext.P7 dated 9.7.2014 is the order issued by the Government granting instalment facilities to those persons who are identified as persons eligible for getting allotted the 12 shop rooms reserved under clause 20 of Ext.P4. As per Ext.P7, such instalment facilities were given to them in the manner set out in Ext.P7. A scanning of the pleadings would reveal that essentially the grievance of the petitioners is against the identification of respondents 4 to 14 as the persons eligible to get allotted the shop rooms reserved under clause 20 of Ext.P4. In that context, it is to be noted that those persons were actually identified as the eligible persons under Ext.P3 dated 1.10.2013. I may hasten to add that despite the production of the said order, the petitioner has not chosen to challenge Ext.P3 whereby respondents 4 to 14 have been identified as the persons **W.P.(C).19302/14** 3 eligible to get the rooms reserved for allotment under clause 20 of Ext.P4. There cannot be any doubt with respect to the position that without a challenge against the basic order there can be no successful challenge against the consequential order. The learned counsel for the petitioners attempted to explain the situation. It is contended that Ext.P3 got merged with Ext.P7 and therefore, there is absolutely no necessity to mount any challenge against Ext.P3 separately. To ascertain the tenability of the said contention, a conjoint reading of Exts.P3 and P7 has to be made. A perusal of Ext.P3 would reveal that in the meeting held on 1.10.2013 of the council of the first respondent panchayat a resolution was passed. 12 person including respondents 4 to 14 were identified as persons eligible to be allotted with the rooms set apart under clause 20 of Ext.P4. Ext.P7 is only an order whereby the persons thus identified under Ext.P3 were given instalment facilities for effecting payment towards the security amount to be paid by them. In such circumstances, I cannot uphold the contention of the petitioners that Ext.P3 got merged with Ext.P7 and therefore, without **W.P.(C).19302/14** 4 mounting a separate challenge against Ext.P3 whereby respondents 4 to 14 were identified as the eligible persons the petitioners could not successfully challenge Ext.P7 as it is only a concession granted in favour of such eligible persons. In this case, one another aspect also assumes relevance. Admittedly, Ext.P1 notification was published for auctioning the stalls in the aforesaid fish market. There is no case for the petitioners that pursuant to the notification issued regarding the auction of the stalls, they responded to the same. The only contention of the petitioners is that they are intending to indulge in fish vending in Ettumanoor market. Whatever that be, the indisputable position obtained is that they did not respond to Ext.P1 notification issued by the first respondent in regard to the auction of the shop rooms in the hygienic market. In that context it is also to be noted that certain persons who unsuccessfully participated in the auction had earlier approached this Court by filing W.P.(C).No.9048 of 2014. The said writ petition was filed mainly with the following prayers:- - I. Issue a Writ of Mandamus or any other appropriate Writ order or direction directing **W.P.(C).19302/14** 5 the respondents 1 & 2 to hand over possession of the stalls auctioned in the name of the petitioners with all the amenities and facilities required for functioning the stalls effectively forthwith. II.Issue a Writ of Mandamus directing the respondents 1 & 2 not to demand any amount of rent from the petitioners in respect of the stalls auctioned in the name of the petitioners the possession of which are not even given so far. III.Issue a Writ of Mandamus directing the respondents 1 and 2 to auction the stalls as per Ext.P11 sketch which remain marked as reserved, in open sale by affording equal opportunity to all to ensure equality and equal protection of law. 2. Evidently, prayer No.3 made by the petitioners therein was pertaining to the reservation of the 12 shop rooms which is the subject matter of challenge in this writ petition. They had contended that respondents 1 and 2/respondents 1 & 2 herein got no authority or power to effect reservation and it is a colourable exercise of power. This Court took note of the contentions of the petitioners therein that they got no grievance on the attempt of the respondents in reserving **W.P.(C).19302/14** 6 the shop rooms for rehabilitation and virtually their grievance is only with respect to the identification of the persons eligible for getting allotted such rooms. Thus, in the sum and substance, the claims and contentions of the petitioners therein and also the petitioners herein are one and the same. Having found that the petitioners therein failed to take up any challenge against the identification of the concerned persons including respondents 4 to 14 herein and upon finding that in case the petitioners got any grievance with respect to the identification of those persons as beneficiaries and also taking into account the fact that such disputatious facts could not be gone into in proceedings under Article 226 of the Constitution of India, this Court disposed of the said writ petition leaving the petitioners therein at liberty to workout remedies in accordance with law. The only difference between the petitioners therein and the petitioners herein is that the petitioners in W.P.(C).No.9048 of 2014 had partaken in the auction pursuant to the notification issued dated 5.10.2013 and thereafter, raised challenge against the allotment of such shop rooms. I am of the **W.P.(C).19302/14** 7 view that the case of the petitioners stands at a lesser footing as admittedly they did not respond to the re-notification issued by the panchayat. True that their contention is that they are intending to conduct fish vending in the market and they are prepared to give an undertaking. I am of the view that in the light of Ext.P8 judgment, the petitioners herein cannot claim any larger right than the petitioners therein. The learned counsel for the petitioner relied on the decision of this Court in **State of Kerala v. Kumari Varma [2011 (1) KHC 502]** to canvass the position that existence of an alternative remedy shall not be a reason for declining jurisdiction of this Court. True that there cannot be an inviolable position that at all situations, merely because of the existence of an alternative remedy, this Court would decline the jurisdiction. The position is covered by a decision of the . Hon'ble Apex Court in **Devi Ispat Ltd. v. SBI [2014 (5) SCC 762]** That was a case wherein an alternative remedy of making a representation was provided under the relevant statute. The Hon'ble Apex Court held that where an alternative remedy of making a **W.P.(C).19302/14** 8 representation is provided under the statute, compliance with the statutory remedy is mandatory in the absence of cogent reasons. In other words, the Hon'ble Apex Court held that for interfering with such a matter, this Court has to record cogent reasons. In this case, the alternative remedy available is not one of making a representation; in fact, it is much more efficacious than that. If the petitioners are aggrieved by the grant of order in Ext.P3 or in Ext.P7 they have to work out the remedies under the statute either in terms of section 191 or under section 276 of the Kerala Panchayat Raj Act. In that view of the matter and also taking into account the judgment in W.P.(C). No.9048 of 2014, leaving the petitioners at liberty to work out remedies in accordance with law in case they are feeling aggrieved by the allotment, rather, identification of respondents 4 to 14 as the beneficiaries of clause 20 of Ext.P4, this writ petition is dismissed. **Sd/C.T. RAVIKUMAR (JUDGE)** ## **spc/** **W.P.(C).19302/14** 9 **C.T. RAVIKUMAR, J.** **W.P.(C).19302/14** 10 **JUDGMENT September, 2010**