Thulaseedharan Nair v. State of Kerala and Mynagappally Grama Panchayat and its Secretary, Mynagappally Grama Panchayat

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF MAY 2018 / 9TH JYAISHTA, 1940** **WP(C).No. 1078 of 2011** **----------------------** **PETITIONER :** **----------** **THULASEEDHARAN NAIR, S/O.M.NANU NAIR, AGED 42 YEARS, RESIDING AT ASWATHY BHAVANAM,, AKKEL, PANMANA, EDAPPALLIKOTTA PO, KOLLAM.** **BY ADV.SRI.AYYAPPAN SANKAR** **RESPONDENTS :** **-----------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-690 001.** **2. MYNAGAPPALLY GRAMA PANCHAYAT, REPRESENTED BY ITS SECRETARY, MYNAGAPPALLY P.O., KOLLAM-690 591.** **3. SECRETARY, MYNAGAPPALLY GRAMA PANCHAYAT, MYNAGAPPALLY P.O., KOLLAM-690 591.** **R1 BY GOVERNMENT PLEADER SRI. JESTIN MATHEW R2 & R3 BY ADVS. SRI.A.MUHAMMED RAFFI** **SRI. K.SIJU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-05-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **bp 11/6/2018** **WP(C).No. 1078 of 2011** ## **-----------------** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** ## **---------------------** - **P1: COPY OF APPLICATION FOR BUILDING PERMIT DATED 19/3/2009 P2: COPY OF ORDER DATED 15/5/2009 REJECTING EXHIBIT P1 APPLICATION FOR PERMIT.** - **P3: COPY OF LETTER DATED 26/2/2009 ISSUED BY THE R3 FURNISHING A LIST OF 20 ROADS PURPORTED TO BE INCLUDED WITHIN THE PURVIEW OF S.220(b) OF KERALA PANCHAYAT RAJ ACT, 1994.** - **P4: COPY OF PANCHAYAT COMMITTEE RESOLUTION DATED 15/3/1997** - **P5: COPY OF CIRCULAR NO. 58577/C1/96/LSGD DATED 6/11/1996 ISSUED BY THE R1.** - **P6: COPY OF JUDGMENT DATED 8/4/2010 OF THIS HON'BLE HIGH COURT IN WPC NO. 12542/2010** - **P7: COPY OF PETITION SUBMITTED BEFORE THE R1 ON 22/4/2010** - **P8: PHOTOCOPIES OF RESOLUTION NO. VIII DATED 20/7/2010 OF THE R2, COUNTER STATEMENT OF RE AND RELEVANT PAGE OF ASSETS REGISTER OF THE PANCHAYAT, PRODUCED INT HE PROCEEDINGS BEFORE THE HON'BLE OMBUDSMAN.** - **P9: COPY OF ORDER DATED 7/8/2010 OF THE HON'BLE OMBUDSMAN AND THE REPLY STATEMENT AND SKETCH PRODUCED BYT HE PETITIONER AS DIRECTED.** - **P10: COPY OF ORDER DATED 29/10/2010 OF THE HON'BLE OMBUDSMAN IN COMPLAINT NO.1000/2010.** - **P11: COPY OF G.O.(RT) NO. 3657/2010/LSGD DATED 22/11/2010 OF THE R1.** ## **RESPONDENT'S EXHIBITS :** - **---------------------** - **EXT.R2(a): COPY OF EXTRACT OF THE RESOLUTION OF THE PANCHAYAT DATED 15/3/1997.** **//TRUE COPY//** **P.A. TO JUDGE** **bp 11/6/2018** ## ALEXANDER THOMAS, J. ----------------------------- W.P(C).No.1078 Of 2011 --------------------------------Dated this the 30th day of May, 2018. ## J U D G M E N T The petitioner is aggrieved by the impugned proceedings of the 1st respondent-State Government and the Ombudsman for Local Self Government Institutions (LSGI) in rendering the impugned Ext.P-11 Government Order dated 22.11.2010 and Ext.P-10 dated 29.10.2010 whereby the plea made by the petitioner as per Ext.P-7 petition that the Government should cancel the impugned Ext.P-4 resolution passed by the 2nd respondent -Panchayath has been rejected. The main prayers in this Writ Petition (Civil) filed on 11.1.2011 are as follows: “(A) Issue a Writ of Certiorari or other appropriate Writs, Orders or Directions Quashing Exhibits P4 Resolution dated 15-03-1997 as ultravires S.220(b) of the Kerala Panchayat Raj Act, 1994 and also Arts. 14 and 21 of the Constitution of India to the extent of inclusion of the new by-Road along the Western Side of Petitioner's property purported to be referred as item No 7 therein. (B) Issue a Writ of Certiorari or other appropriate Writs, Orders or Directions Quashing Exhibits P5 Circular which is contrary to the mandate of the relevant provisions of Law. (C) Issue a Writ of Certiorari or other appropriate Writs, Orders or Directions Quashing Exhibit P10 order of the Honourable Ombudsman and the consequent Exhibit P11 Order of the First Respondent. (D) Issue a Writ of Mandamus or other appropriate Writs, Orders or Directions directing the Respondents to consider Exhibits P1 and P7 Petition afresh and pass proper Orders thereon after hearing the Petitioner.” ::2:: W.P(C).No.1078 Of 2011 2. Heard Sri.Ayyappan Sankar, learned counsel for the petitioner, Sri.Jestin Mathew, learned Government Pleader appearing for R-1 State and Sri.Siju Kamalasanan, learned Standing Counsel for R-2 & R-3 Panchayat authorities of the Mynagappally Grama Panchayath. 3. It is the case of the petitioner that he owns a small plot of land coming to an extent of 40 sq. mts (one cent) in Sy.No.510/17 in Mynagappally Village within the territorial limits of the Mynagappally Grama Panchayat and he had obtained the said property as per the registered sale deed of the year 2005. The said land is situated within the Revenue District of Kollam. The petitioner has submitted Ext.P-1 application dated 19.3.2009 for building permit for effecting construction of a small shop room in the said small plot of land. It was the case of the petitioner that on the southern side of the said property there is a PWD road called Thoppilmukku-Karalimukku road and on the western side, there is a by-road having a length of hardly 350 mts. constructed in the year 2006, which is used only as a short cut to the Panchayath road situated on the northern side of the Railway Station. According to the petitioner in the application for building permit and plan submitted by him, the petitioner has provided 3 mts. set back on ::3:: W.P(C).No.1078 Of 2011 the southern side from the Thoppilmukku-Karalimukku road and 2 mts. on the western side from the adjacent road, which is now a byroad. That by Ext.P-2 order dated 15.5.2009, Ext.P-1 application has been rejected on the ground that the abovesaid small by-road on the western side of the petitioner's property also comes within the purview of a road as envisaged in Sec.220(b) of the Kerala Panchayath Raj Act, 1994. Sec.220 including clause (b) of the Kerala Panchayat Raj Act, 1994, provides as follows: “220. Prohibition against constructions in or over public roads etc .-Notwithstanding anything contained in this Act no person shall,-- (a) build any wall or erect any fence or other obstruction or projection or make any encroachment whatsoever, whether permanent or temporary, in or over any public road; (b) Construct any building or structure other than a compound wall in any land abutting any National Highway, State Highway, District roads or any other roads notified by the Village Panchayat within a distance of three metres from the boundary of his land abutting the road; Provided that, the said limit of three metres shall not be applicable for the construction of 1st floor or 2nd floor or both upon a building, existing on the date of coming into force of this Act: Provided further that, any path, bridge or similar constructions used solely for entering into any building or weather shade or sun-shade forming part of the building may, subject to the rules regarding construction of building, be constructed within the said three metres limit.” It is one of the specific contentions of the petitioner that no such notification as envisaged in the statutory provisions of the Kerala ::4:: W.P(C).No.1078 Of 2011 Panchayat Raj Act and the Rules framed thereunder has been notified and published by the respondent-Panchayath so as to include the said small road. 4. On application under Right to Information Act initiated by the petitioner, the petitioner has been made known about Ext.P-3, which is a letter dated 26.2.2009 issued by the 3rd respondentPanchayath Secretary whereby it is stated that as by then 20 roads have been included by the Panchayath within the purview of Sec.220(b) of the Kerala Panchayat Raj Act and serial No.9 thereof is the Railway Station-Thoppilmukku road, which is alleged by the respondentpanchayath to be situated on the western side of the petitioner's plot covered by Ext.P-1 application. So also, by Right to Information Act proceedings, the petitioner could obtain a copy of Ext.P-4, which is stated to be a resolution said to have been issued by the respondentMynagappally Grama Panchayath on 15.3.1997 whereby 18 roads have been included therein so as to fall within the ambit of Sec.220(b) of the Act and that out of which serial No.7 of Ext.P-4 resolution is the Railway Station-Thoppilmukku road, which the Panchayath claims to be on the western side of the petitioner's property in question. The respondent-Panchayath authorities would contend that as the abovesaid ::5:: W.P(C).No.1078 Of 2011 reference made to serial No.7 & serial No.9 of Exts.P-3 letter & P-4 resolution respectively lie on the westerns side of the petitioner's property, application for building permit could be considered only if the proposed construction maintains a distance of not less than 3 meters from the boundary of his land abutting the said road and that it is the case of the petitioner that as the petitioner has only left 2 mts. from his proposed construction to the boundary of his land on the western boundary of his land abutting the said road, construction is prohibited by virtue of the provisions under Sec.220(b) of the Kerala Panchayath Raj Act, etc. 5. It is averred that the respondent-Grama Panchayath has taken the stand that by virtue of Ext.P-5 circular dated 6.1.1996 issued by the 1st respondent-State Government, the proposed roads and even the roads which are not in existence could be included by a Grama Panchayath within the ambit of Sec.220(b), by passing an appropriate resolution in that regard. The petitioner challenged the legality and correctness of the impugned Ext.P-2 rejection order dated 15.5.2009 and Ext.P-4 resolution dated 15.3.1997 by initiating writ proceedings before this Court as Writ Petition (Civil) No.12542/2010, wherein the Mynagappally Grama Panchayat and State of Kerala have been arrayed ::6:: W.P(C).No.1078 Of 2011 as respondents 1 & 2 therein. This Court as per Ext.P-6 judgment rendered on 8.4.2010 has finally disposed of the Writ Petition finding that as the primary grievance of the petitioner is against the impugned resolution of the Panchayat (Ext.P-7 therein/Ext.P-4 herein), the remedy of the petitioner is to move under Sec.191 of the Kerala Panchayat Raj Act so as to pray before the respondent-Panchayath to exercise its powers so as to cancel and rescind such resolution by directing the petitioner to avail the remedy. In that view of the matter the petitioner has been given the liberty to ventilate his grievance against resolution as per Ext.P-7 therein/Ext.P-4 herein by appropriate proceedings under the Kerala Panchayat Raj Act before the respondent-State Government. 6. In view of the direction of this Court in Ext.P-6 judgment, the petitioner has preferred Ext.P-7 petition dated 22.4.2010 before the 1st respondent-State Government praying to exercise its powers conferred under Sec.191 of the Act so as to cancel and rescind the impugned resolution as per Ext.P-4 herein. 7. As per the provisions contained in Sec.191(2), the State Government could have referred the matter either to the Ombudsman for LSGI or to the Tribunal constituted for such LSGI. The State Government decided to refer the matter to the Ombudsman for its ::7:: W.P(C).No.1078 Of 2011 recommendations on the plea made by the petitioner. Before the Ombudsman, the respondent-Panchayat has submitted Ext.P-8(2) & P-8(3) statement, wherein it has been stated in para 5 therein that the case of the petitioner that the length of the road in question on the western side of the petitioner's property is not merely 350 meters as contended and its actual length is more than 2 ½ kilometers and that the said road would connect the sole Railway Station in the locality, visa-a-vis, Sasthamkotta Railway Station and a large number of railway passengers have been using the said road for decades and has ample scope for future development. The respondent-Panchayath has also produced Ext.P-8(3), which is stated to be copy of the relevant extract from the asset register of the Panchayat in respect of the road styled as Thoppilmukku-Railway Station Road, etc. The Ombudsman called for a report from the Deputy Director of Panchayats and based on the said report, the Ombudsman has recommended to the State Government. Ext.P-9 is the statement filed by the Ombudsman. Based on the report of the Ombudsman, the petitioner has also produced a sketch of the locality showing the lie of the road along with Ext.P-8 statement. Solely based on the recommendations of the Deputy Director of Panchayats, the Ombudsman has recommended to the State Government that the ::8:: W.P(C).No.1078 Of 2011 plea made by the petitioner as per Ext.P-7 is only to be rejected and the said recommendations have been contained in the impugned Ext.P-10 order. Solely based on Ext.P-10 recommendations of the Ombudsman, the respondent-State Government has rejected the plea made by the petitioner as per Ext.P-7 through the issuance of Ext.P-11 G.O(Rt).No.3657/2010/LSGD dated 22.11.2010. It is these proceedings at Exts.P-10 & P-11 that are essentially under challenge in this writ proceedings. 8. The respondent-Panchayat authorities have filed a counter affidavit dated 30.6.2011. In the counter affidavit it is contended that the length of the road in question comes to 1.9 kms, presumably as per Ext.P-8(3) entries in the asset register of the Panchayath. That as per Ext.P-8 asset register the said road in question has been constructed in the year 1989. Further it is stated that the contention of the petitioner that there is no road namely, Railway Station-Thoppilmukku in question at the time of passing of Ext.P-4 resolution dated 15.3.1997 and that even now there is only a 300 mts. narrow by-road is factually incorrect. That the road in question is styled as Railway StationThoppilmukku and the people of Mynagappally Panchayat and the neighbouring Panchayats are using the said road for the access to ::9:: W.P(C).No.1078 Of 2011 Sasthamkotta Railway Station and the said road is a mud road of the Panchayat to be developed in the future. That at present, a major portion of the road is tarred and concreted and there is only around 300 mts. remaining to be tarred. That the impugned Exts.P-10 & P-11 proceedings have been issued by the Ombudsman and the State Government have considered the matter and prayers made by the petitioner are only to be rejected. 9. As regards the first contention made by the petitioner that no such notification has been issued by the Panchayat whereby the road in question on the northern boundary of the petitioner's property has been included in Sec.220(b) as even been notified by the Panchayat, this Court has passed an order dated 24.5.2018, which reads as follows: “The petitioner has raised a specific contention in paragraph 6 of the W.P.(C) that no such notification including the by-Road in question within the purview of Section 220(b) has ever been notified by the Panchayat. The competent officer of the respondents 2 and 3 Panchayat will furnish instructions and will file a statement as to whether the requisite notice, advertisement etc. in respect of notified road has been published in the office of the Panchayat, Panchayat notice boards and Village Offices in the Village Panchayat area etc. as required under Rule 4 of the Kerala Panchayat Raj (Manner of Publication of Notification or Notice) Rules, 1996 and if so, to state about the details of the records in that regard kept in the Panchayat Office.” 10. The Panchayath has filed an additional affidavit dated 27.5.2018 wherein it has been inter alia contended that Ext.P-4 ::10:: W.P(C).No.1078 Of 2011 resolution dated 15.3.19997 was notified in the notice board of the Panchayath Office and such other places in full compliance with the mandatory requirement of Rule 4 of the Kerala Panchayath Raj (Manner of Publication of Notification or Notice) Rules 1996. It has been held by the Division Bench of this Court in Mulamthuruthy Grama Panchayath v. Ombudsman for L.S.G.I , reported in 2009 (4) KLT 451, that for notifying the decision/resolution of the Panchayath so as to include a road within the ambit of Sec.220(b) of the Kerala Panchayath Raj Act, Gazette publication is not required and what is required is that the said aspect regarding notification has to be published in the Panchayath Office and that of other public offices like Village Office, etc., which comes within the territorial limits of the Grama Panchayath. 11. In the nature of the orders that is proposed to be passed for the disposal of this Writ Petition, it is not necessary for this Court to make any final determination of the above said issue regarding the said contention made by the petitioner. The main contention raised by the petitioner is that the decision of the 2nd respondent Panchayat to include the road in question (which forms part of the western boundary of the petitioner's property), in Ext.P-4 resolution dated 15.3.1997 for bringing it under the onerous liability as envisaged in Sec.220(b) of the ::11:: W.P(C).No.1078 Of 2011 Act is per se untenable and perverse, etc. In this regard it is contended by the petitioner that even in the year 1997 at the time when Ext.P-4 resolution was passed, the road in question was hardly a by-road, which is having a length of about 350 mts. This factual averment of the petitioner is denied by the respondent-Panchayat by contending that the actual length of the road now comes to 2.5 kms. and it is used as an access for many Railway passengers to go to Sasthamkotta Railway Station, etc. The petitioner would pointedly contend that even the basic facts and figures given in Ext.P-8(3) asset register of the respondentPanchayat are as follows: That the road in question, which is nomenclatured by the Panchayat as Thoppilmukku-Railway Station road is shown as serial No.4 of Ext.P-8(3) and its terminal point is shown as Railway Station (Sasthamkotta) and its length is shown as 84.5 mts. and then struck off and overwritten as 1.9 kms. Its width is shown as 4.5 mts. and there is an overwriting over that showing the figure as 8 mts. Then length of the tarred portion is shown as 400 mts. and the mud road portion is shown as 1.5 km. The years of construction of the road are shown as 1989 and 2003, etc. The petitioner would further point out based on Ext.P-9 order dated 7.8.2010 of the ombudsman, he had filed ::12:: W.P(C).No.1078 Of 2011 Ext.P-9(2) statement along with sketch prepared by a surveyor wherein it is clearly shown that southern portion of the petitioner's property is PWD road (Thoppilmukku-Karalimukku road) and the western portion of the petitioner's property is the road in question, which is only having a length of 350 meters. That though the Panchayat has nomenclatured the road in question as Thoppilmukku-Railway Station road in Ext.P-4 resolution and Ext.P-8(3) asset register, Thoppilmukku is more than 1 km from the western end of the drawings in the sketch. It is from that Thoppilmukku (PWD road shown as southern boundary of the petitioner's property), that the Thoppilmukku-Karalimukku road originates and terminates at Karalimukku and the PWD has properly named the said road as Thoppilmukku-Karalimukku road. Only out of convenience of the Panchayath they have named the present road as Thoppilmukku-Railway Station road and its commencement point is not Thoppilmukku and terminal point is also not Railway station and various intermittent roads in question, which form western boundary of the petitioner's property, are having only 350 meters in length as shown in Ext.P-9(6) sketch, which was got prepared by a professional surveyor as per the specific direction of the Ombudsman. That Ext.P-9(6) was never even examined by the Ombudsman, who has only relied on the ::13:: W.P(C).No.1078 Of 2011 report of the Deputy Director of Panchayats, which is prepared mainly relying on the version of the respondent Panchayat. If those materials would have taken into consideration, then it would have been easily understood that the details shown in Ext.P-9(6) sketch prepared by the professional surveyor is fully correct as regards the length of the road in question and other roads and that the originating point of the road in question is not Thoppilmukku and its terminal point is also not Railway Station. Moreover, even going by Ext.P-8(3) register, the Panchayat have no consistent facts and figures regarding the length of the road and other details and facts and figures vary depending on the 1989 or 2003. The petitioner would contend that if at all the Ombudsman have any doubts about the authenticity about Ext.P-9(6) sketch, then it would have ordered an expert commission like PWD engineer with the assistance of the Taluk Surveyor to prepare a sketch with all the details so as to curtail the reflected facts. That if such proper enquiry have been conducted, then it would have been fully revealed that the length of the road in question even now is only 350 meters. Based on that premise the petitioner would contend that it is highly perverse and illegal to cast the onerous liability that flows from the inclusion of road as envisaged under Sec.220(b) by issuing Ext.P-4 resolution dated ::14:: W.P(C).No.1078 Of 2011 15.3.1997 when the road/land is hardly about 350 meters. It is the specific contention of the petitioner that roads which comes within the onerous liability of clause (b) of Sec.220 of the Kerala Panchayath Act are the following: - (1) National Highway - (2) State Highway - (3) District Roads - (4) Any other roads notified by the Village Panchayath. The expression 'any other roads notified by the Village Panchayat' should take its content and colour from description of the other roads mentioned in that clause, namely, National Highway, State Highway and District Roads and this clearly shows that the intention of the Legislature is that a road that to be notified within the ambit of Sec.220(b) should be having characteristics and intensity of the traffic atleast similar to a district road and that even if intensity of the traffic and the number of users of that road, etc., are not broadly the same as that of the District road, there should be sufficient intensity of volume of traffic, pedestrians and length of the road, etc., which are also equally important. That considering these facts a reasonable authority could not have included the road, which is hardly a mud road even going by ::15:: W.P(C).No.1078 Of 2011 the facts disclosed in Ext.P-8(3) asset register so as to include it within the ambit of Sec.220(b). The Panchayat, in exercise of the statutory powers conferred as per the Act, has to reasonably and prudently apply its mind and should have considered all the relevant aspects. The onerous liability that flows from the inclusion of road within the ambit of clause (b) of Sec.220 is that construction is permissible only if it is made atleast within the distance of 3 meters of the boundary of the land in question abutting the road. In the instant case, the total extent of the petitioner's property would come to hardly 40 sq. mts. (one cent) and that he has already left 3 meters as the southern boundary is a PWD road (Thoppilmukku-Karalimukku road). It is virtually impossible for the petitioner to leave 3 meters space visa-a-vis, on the western boundary and virtually would make his construction of the proposed shop room impossible in cases like this, that before bringing onerous liability as envisaged in Sec.220(b) of the Act, the Panchayath has to exercise his powers fairly and to take a decision as to whether or not the road in the Panchayath to be included within the ambit of Sec.220(b). 12. On a consideration of the impugned Exts.P-10 and P-11 proceedings, it is seen that none of that above said factual pleas and other contentions put up by the petitioner have been properly adverted ::16:: W.P(C).No.1078 Of 2011 to and considered either in Ext.P-10 or in P-11. It is seen that the order was passed by the Ombudsman on 7.8.2010 whereby the petitioner was directed to file statement and sketch and that the petitioner has filed Ext.P-9(2) statement and P-9(6) sketch said to have been prepared by a qualified professional surveyor. None of the crucial factual aspects pointed out, particularly, in Ext.P-9(6) are considered in the impugned Ext.P-10 proceedings. On the other hand, it appears that the finding in Ext.P-10 have been made mainly on the basis of the report submitted by the Deputy Director of Panchayats. A copy of the report of the Deputy Director of the Panchayats has not been furnished to the petitioner for him to contend as to how the details shown in that report of the Departmental Officer are not to be relied on, etc. Therefore, failure to furnish a copy of the report of the Deputy Director of Panchayats is highly fatal in the decision making process. On a consideration of the factual aspects, this Court is of the view that the matter requires a remit and that the impugned proceedings are liable to be interdicted in judicial review proceedings. Having regard to the facts and circumstances of the case, this Court is of the considered view that the matter would also require evidence so as to have assessment of fine tuned facts and figures regarding the correctness or otherwise of Ext.P-9(6) sketch ::17:: W.P(C).No.1078 Of 2011 and as to the length of the road in question as well as the actual original point and terminal point of the road in question which form part of the western boundary of the petitioner's property. Sec.191 of the Kerala Panchayat Raj Act reads as follows: “ Sec.191. Power of cancellation and suspension of resolutions etc.- (1) Government may either suo motu or, on a reference by President, Secretary or a member, or on a petition received from a citizen, cancel or vary a resolution passed or decision taken by the Panchayat if in their opinion such decision or resolution- (a) is not legally passed or taken; or (b) is in excess of the powers conferred by this Act or any other law or its abuse; or (c) is likely to endanger human life, health, public safety, communal harmony or may lead to riot or quarrel; or (d) is in violation of the directions or provisions of grant issued by Government in the matter of implementing the plans, schemes or programmes. (2) Before cancelling or amending a resolution or decision as per sub-section (1), the Government may refer the matter for consideration either of the Ombudsman constituted under Section 271G or the Tribunal constituted under Section 271 and the Ombudsman or the Tribunal, as the case may be, after giving the Panchayat an opportunity of being heard, send a report to the Government with its conclusions and the Government may, on its basis cancel, amend or confirm the resolution or decision. (3) If another remedy is available to the petitioner through the Tribunal under Section 276, the Government shall not consider any petition for cancelling or amending any resolution or decision of the Panchayat. (4) If government, consider that a resolution or decision of the Panchayat has to be cancelled or amended as per sub-section (7) it may suspend such resolution or decision temporarily and may the Panchayat to defer its implementation till the final disposal after the completion of the procedure under sub-section (2).” A reading of sub-sec.(2) of Sec.191 would show that it would be open to refer the matter either to the Ombudsman or to the Tribunal ::18:: W.P(C).No.1078 Of 2011 Constituted under the Act. On an advertence to the factual pleas and contentions taken in this proceedings, this Court is of the view that interest of justice demands that reasonable opportunity is granted to both sides to adduce evidence in this case and therefore it would be only fit and proper that the matter is referred to the Tribunal for LSGI constituted under the provisions of the Act, which is headed by a District Judge. In this view of the matter, Exts.P-10 & P-11 will stand quashed. The matter will stand remitted and referred to the Tribunal for LSGI constituted under the provisions of the Act. The case papers and records in relation to Exts.P-10 & P-11 proceedings will be made available by the competent authority of the 1st respondent-State Government to the Tribunal for LSGI within a period of 2 weeks. This shall be done by the competent officer of the 1st respondent-State Government on receipt of a certified copy of this judgment. If any of the case papers and records are now actually with the Ombudsman, the competent officers of the State Government should ensure that those case papers are also transmitted to the Tribunal for its consideration. Thereafter, the Tribunal will issue notices to the petitioner and the respondent-Mynagappally Grama Panchayat and then shall proceed with the matter for its determination in the matter of making ::19:: W.P(C).No.1078 Of 2011 appropriate report containing findings and recommendations to the State Government as envisaged in Sec.191(2). On an application that may be submitted by the petitioner, the Tribunal will ensure that a serving Senior Civil Engineer of the Public Works Department (preferably road division) to make a site inspection so as to prepare a proper sketch in order to help the Tribunal to understand as to whether the details of Ext.P-9(6) sketch submitted by the petitioner are correct. It should also be ensured that the departmental surveyor is also deputed along with the PWD Engineer so as to prepare the above said sketch. If a serving surveyor is not available, then the Tribunal may ensure that a private qualified surveyor is deputed for the said purpose. In such eventuality, the remuneration paid to the surveyor should be equally borne by the petitioner and the respondent-Panchayat. The PWD Engineer so deputed shall also submit a report along with a sketch as directed herein above and the report should contain the specific details of lie of the Thoppilmukku-Karalimukku road and also ascertain as to the distance between Thoppilmukku to the originating point of the present road in question. The length of the other adjacent roads like Thoppilmukku-Karalimukku road on the southern side and other roads/Panchayat roads on the northern side, etc., should also be ::20:: W.P(C).No.1078 Of 2011 properly measured and stated in the report. The exact originating point and terminal point of the present road in question and its exact length should also be stated. Based on these details, the Tribunal, after hearing both sides will determine whether the inclusion of the present road in question as per serial No.9 of Ext.P-4 resolution of the Panchayat dated 15.3.1997 is reasonable and proper and whether inclusion of such a road so as to bring it within the onerous liability of Sec.220(b) is justified, etc., and necessary findings and recommendations thereon may be given by the Tribunal after hearing both sides by way of his report to the Government as envisaged in Sec.191(2). Before the inspection of the PWD engineer is conducted, notice should be given to both sides so that authorised representatives of both sides should be present during the inspection of the PWD Engineer. A copy of the report of the PWD Engineer should be given to both sides. Thereafter, both sides will be permitted to give written objection to the report of the PWD Engineer and also on the other various aspects of the matter. Only after granting a reasonable opportunity of being heard to both sides, the Tribunal may submit its report to the Government. A copy of the said report of the Tribunal should also be furnished to both sides. After receipt of the report of the Tribunal, the Government may take a ::21:: W.P(C).No.1078 Of 2011 considered decision in that regard after hearing both sides. The Tribunal will complete the said process within 3 months from the date of receipt of a copy of this judgment. The Government will pass final orders in the matter within a period of 2 months from the date of receipt of the report of the Tribunal as directed herein above. Needless to say, the Government should also give a reasonable opportunity of being heard to both sides before taking its final decision in the matter. All contentions of both sides are left open to be decided in appropriate proceedings before the Tribunal and the Government as stated hereinabove. With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of. Sd/- ALEXANDER THOMAS, Judge. Bkn/- // True Copy // P.A to Judge.