The Amballur Service Co-operative Bank Ltd. No.503. Mannampettta P.O., Varakkara, Alagappanagar Thrissur, represented by its Secretary v. State of Kerala, Alagappanagar Grama Panchayath, Kodakara Block Multi Purpose Co-operative Society Ltd No.1165 Amaballur

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR TUESDAY, THE 4TH DAY OF FEBRUARY 2014/15TH MAGHA, 1935 WP(C).No. 27169 of 2013 (U) ---------------------------- PETITIONER: ## -------------- THE AMBALLUR SERVICE CO-OPERATIVE BANK LTD. NO.503. MANNAMPETTA P.O., VARAKKARA, ALAGAPPANAGAR THRISSUR, REPRESENTED BY ITS SECRETARY. BY ADV. SRI.P.C.SASIDHARAN RESPONDENTS: ----------------- ## 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT LOCAL SELF DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM - 695 001. 2. THE ALAGAPPANAGAR GRAMA PANCHAYATH ALAGAPPANAGAR P.O., THRISSUR REPRESENTED BY ITS SECRETARY - 680 302. 3. KODAKARA BLOCK MULTI PURPOSE CO-OPERATIVE SOCIETY LTD NO.1165 AMABALLUR, REPRESENTED BY ITS SECRETARY - 680302. R2 BY ADV. SRI.M.V.BOSE R2 BY ADV. SRI.VINOD MADHAVAN R2 BY ADV. SMT.NISHA BOSE R3 BY ADV. SRI.JOBY JACOB PULICKEKUDY R1 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 27169 of 2013 (U) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- EXHIBIT P1.TRUE COPY OF THE RESOLUTION DATED 10/8/2006. EXHIBIT P2.TRUE COPY OF THE REQUEST MADE BY THE SOCIETY EXHIBIT P3.TRUE COPY OF THE BYE LAW. - EXHIBIT P4.TRUE COPY OF THE RESOLUTION ADOPTED BY THE 2ND RESPONDENT DATED 26/10/2013. - EXHIBIT P5. TRUE COPY OF THE SEPARATE DISSENT NOTE TO THE SECRETARY OF THE PANCHAYATH. ## RESPONDENTS' EXHIBITS: ----------------------------- - EXT.R2(a): TRUE COPY OF ORDER DATED 4.4.2009 PASSED BY THE LEARNED OMBUDSMAN IN O.P.NO.1110/2008. - EXT.R2(b): TRUE COPY OF NOTICE, DATED 22.4.2013, ISSUED BY THE PANCHAYAT. EXT.R2(c): TRUE COPY OF NOTICE, DATED 24.10.2013, FOR INTERVIEW. - EXT.R2(d): TRUE COPY OF PROCEEDINGS OF THE INTERVIEW, DATED 25.10.2013, AND THE DECISION. - EXT.R2(f): TRUE COPY OF COMMUNICATIONS DATED 28.10.2013, ISSUED BY THE PANCHAYAT TO THE 3RD RESPONDENT. - EXT.R2(g): TRUE COPY OF AGREEMENT, DATED 28.10.2013, EXECUTED BETWEEN RESPONDENTS 3 AND PANCHAYAT. EXT.R2(h): TRUE COPY OF RECEIPT, DATED 28.10.2013 ISSUED BY PANCHAYAT. EXT.R2(i): TRUE COPY OF RECEIPTS DATED 1.11.2013 AND 6.11.2013. - EXT.R2(j): TRUE COPY OF RECEIPT, DATED 6.4.2013, ISSUED BY THE PANCHAYAT FOR 3RD RESPONDENT ACCEPTING THE RENT FOR THE MONTH OF NOVEMBER 2013. - EXT.R3(a): TRUE COPY OF THE LEASE AGREEMENT EXECUTED BETWEEN THE 2ND RESPONDENT AND 3RD RESPONDENT. EXT.R3(b): TRUE COPY OF RECEIPT DATED 28.10.2013. // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR, J.** ------------------------------ W.P.(C)No.27169 of 2013 ------------------------------Dated 4[th] February, 2014 ## **JUDGMENT** The Amballur Service Co-operative Bank represented by its Secretary is the petitioner in this writ petition. This writ petition has been filed mainly seeking quashment of Ext.P4 and for a declaration that the action on the part of the Panchayat in cancelling Ext.P1 resolution without notice and adopting Ext.P4 resolution is highly unjust, illegal and mad without any power, authority or jurisdiction. The further prayer is for issuance of a writ of mandamus commanding the second respondent to act upon Ext.P1 resolution itself and to assign the first floor of the shopping complex to the petitioner society in terms of Ext.P1 resolution. 2. Admittedly, the petitioner society is functioning in the ground floor of the shopping complex belonging to the Alagappanagar Grama Panchayat, the second respondent. Earlier, Ext.P1 resolution was passed by the committee of the second respondent Panchayat. It appears from Ext.P1 that the petitioner society brought to the notice of the second respondent the need for further accommodation to cater the needs of its business and after negotiation, Ext.P1 was passed on WP(C).No.27169/2013 2 10.8.2006 taking note of the promise from the part of the petitioner Society to provide financial assistance to carry out additional works in the said building. It is contended that Ext.P1 would reveal that such a promise was held out by the petitioner society and that it was accepted by the second respondent Panchayat subject to satisfaction of conditions specifically spelt out in Ext.P1 resolution and resolved to let out the first floor on its completion to the petitioner society. Subsequently, the construction of the first floor of the said building was completed. At the same time, admittedly, it was carried out without any financial assistance from the petitioner society. After the completion of the construction the second respondent Panchayat issued Ext.R2(b) notice dated 22.4.2013. As per Ext.R2(b), it was issued pursuant to the resolution passed by the committee of the second respondent to let out an area of 165m **[2]** in the first floor to any society subject to the acceptance of the conditions advanced by the Panchayat thereunder and for that purpose to invite applications from various societies. Obviously, pursuant to Ext.R2(b) notice dated 22.4.2013 the petitioner society as also the third respondent society submitted applications. However, the second respondent resolved to let the said portion of the building to the 3[rd] respondent and ultimately, after executing a rental agreement as per WP(C).No.27169/2013 3 Ext.R2(g) the notified area in the first floor was given on rent to the 3[rd] respondent. The contention of the petitioner is that the said action on the part of the second respondent is against Ext.P1 resolution and going by the binding nature of Ext.P1 the second respondent should not have rented out the first floor to the 3[rd] respondent pursuant to Ext.P4 resolution whilst should have honoured Ext.P1. It is the further contention that in the light of Ext.P1 resolution and in the absence of any power to review the same Ext.P4 resolution is not having any force of law and therefore, on the strength of Ext.P4 resolution the decision to let out the first floor of the building in question should not have been taken by the second respondent Panchayat and pursuant to such decision the first floor of the said building should not have been rented out to the 3[rd] respondent. Though no specific prayer was made against the 3[rd] respondent it is contended that the area of operation of the 3[rd] respondent is entirely within Kodakara Block Panchayat and it is not having any active connection with the implementation of the welfare schemes introduced by the State Government within the limits of the second respondent Panchayat. Thus, essentially, a scanning of the contentions would reveal that the main grievance of the petitioner is regarding the adoption of Ext.P4 resolution. It is stated in paragraph 7 WP(C).No.27169/2013 4 of the writ petition that out of the 17 members 8 members expressed their dissent view to Ext.P4 resolution. At this juncture, it is relevant to note that the contention itself would reveal that it was based on majority decision that the first floor of the building in question was let out to the 3[rd] respondent. According to the petitioner, the decision in Ext.P1 was reversed solely on account of the influence exerted by the 3[rd] respondent and the 3[rd] respondent society could not have any better claim over the petitioner society in the matter and further that Ext.P4 resolution would cause serious prejudice to the functioning of the petitioner society. It is in the said circumstances that this writ petition has been filed with the aforementioned prayers. 3. Separate counter affidavits were filed by respondents 2 and 3. It is stated in the counter affidavit filed by the second respondent that the petitioner society is occupying two rooms in the ground floor of the building in question and earlier, as against the letting out of the said rooms to the petitioner society the Ombudsman for Local Self Government Institutions was moved and as per Ext.R2(a) order, taking note of the rival contentions, the petitioner society was granted only some breathing time to vacate the said rooms. A further direction was WP(C).No.27169/2013 5 given thereunder to the second respondent Panchayat to take appropriate steps to evict the petitioner-society from the said rooms after the expiry of the time granted thereunder without serving any further notice and also to report that matter to the Ombudsman. Admittedly, the petitioner society challenged Ext.R2(a) order before this Court by filing W.P.(C)No.14844 of 2009 and it is still pending. Obviously, this Court passed an interim order staying the operation and implementation of Ext.R2(a) and it is on the strength of the said stay order that the petitioner is continuing to occupy the aforesaid rooms in the ground floor. It is further stated therein that Ext.P1 resolution was passed earlier on 10.8.2006. However, the said resolution was never acted upon and the Panchayat did not avail any financial assistance from the petitioner society, as decided under Ext.P1 to effect construction of the first floor. Essentially, the further contention of the second respondent is that the petitioner society had also abandoned their claim based on Ext.P1 lest they would not have responded to Ext.R2(b) notice and submitted Ext.P2 application expressing their willingness to comply with the conditions in Ext.R2(b). The admitted position is that subsequent to Ext.R2(b) both the petitioner and the third respondent submitted applications and the committee of the second respondent WP(C).No.27169/2013 6 decided to let out the first floor of the building to the third respondent and thereafter Ext.R2(g) rent deed was executed between the 2[nd] and 3[rd] respondents on 28.10.2013. It is stated in the counter affidavit filed by the 3[rd] respondent that in tune with Ext.R2(b) the 3[rd] respondent deposited Rs.15,00,000/- on the amount to satisfy the conditions in Ext.R2(b) and also taken possession of the first floor and started furnishing works to start functioning of its office there and spending lakhs of rupees it has already completed the construction of strong room. The further contention of the third respondent is that the writ petition itself was filed only with the ulterior motive to stop its business in the locality. The second respondent has endorsed he contentions of the 3[rd] respondent and contended that the petitioner was fully aware of those facts, but suppressed them wilfully only to mislead this Court to obtain favourable orders. It is also stated in the counter affidavit by the 2[nd] respondent that after the submission of the applications pursuant to Ext.R2(b) the petitioner and the third respondent had participated in an interview held on 25.10.2013. Documents to lend support to the contentions have also been produced by the 2[nd] respondent as Exts.R2(a) to R2(j). WP(C).No.27169/2013 7 4. I have heard the learned counsel for the petitioner as also the learned Government Pleader. 5. As noticed hereinbefore, the crux of the contentions of the petitioner is that in the matter of letting out of the first floor of the building Ext.P1 resolution was passed by the committee of the second respondent Panchayat taking note of the offer made by the petitioner society and after accepting that offer. It is the further contention that in the said circumstances, Ext.P1 resolution and the decision taken thereon should not have been reviewed as per Ext.P4 and if any illegality is crept in Ext.P1 resolution the matter could have been and should have been taken up before the Government in tune with the provisions under Section 191 of the Kerala Panchayat Raj Act. A perusal of Section 191 of the Panchayat Raj Act would reveal that it deals with the power of cancellation and suspension of a resolution by the Government either suo motu or on a reference by the President, Secretary or a member, or on a petition received from a citizen. Evidently, in this case, neither the President or the Secretary or any member of the second respondent Panchayat approached the Government for cancellation or suspension of Ext.P1 resolution. Admittedly, the petitioner has not moved any such WP(C).No.27169/2013 8 petition before the Government seeking invocation of the power of the Government under Section 191 either to cancel or to suspend Ext.P4 resolution. Thus, in short, it is essentially an allegation of breach of promise on the part of the second respondent Panchayat to give effect to the decision in Ext.P1 by cancelling the decision ignoring the right accrued by the petitioner society. The facts and rival contentions thus expatiated above would reveal that disputatious issues involved in this case and they really partake the character of a civil dispute. There cannot be any doubt with respect to the position especially, in the light of the decision in **Godavari Sugar Mills Ltd.** v. **State of Maharashtra ((2011) 2 SCC 439)** , that a writ petition is not maintainable to enforce a civil liability arising out of such an alleged breach of promise and at any rate, they are matters of evidence. That apart, it is evident in this case that after Ext.P1 on the strength of Ext.P4 resolution the Panchayat issued Ext.R2(b) notice inviting applications from societies and the petitioner and the third respondent societies responded to the same and submitted applications. It is not stated in the writ petition that subsequent to Ext.R2(b) the third respondent submitted application and it was accepted by the second respondent and thereupon the rent deed was executed in favour of the third respondent by the second respondent WP(C).No.27169/2013 9 and also that the third respondent was put in possession of the first floor. Thus the admitted position as on today is that the third respondent took possession of the first floor of the building in question after complying with the conditions in Ext.R2(b). In view of the involvement of such disputatious facts and issues I am of the view that it could be resolved only in a properly instituted civil suit. At any rate, the said issues cannot be resolved in a writ petition filed under Article 226 of the Constitution of India. In the said circumstances, without prejudice to the right, if any, of the petitioner to resort to appropriate civil remedy in accordance with law, this writ petition is dismissed. Sd/C.T.RAVIKUMAR Judge TKS