W.P.(C). Nos. 24967/2010-U & 25593/2010-Y

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR** **FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932** **WP(C).No. 24967 of 2010(U)** **--------------------------------------** **PETITIONERS:** - **---------------------** **1. M.MURALI,GOKULAM,ONAMTHURUTHY P.O, KOTTAYAM DISTRICT.** **2. P.A.JOHN,PERUMPADAM,NEENDOOR P.O, KOTTAYAM DISTRICT.** **BY ADVS. SRI.P.V.BABY, SRI.R.KIRAN.** **RESPONDENTS:** **------------------------** **1. STATE OF KERALA,REPRESENTED BY ITS PRINCIPLE SECRETARY TO GOVERNMENT,LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-1.** **2. STATE ELECTION COMMISSIOIN, THIRUVANANTHAPURAM-1.** **3. NEENDOOR GRAMA PANCHAYAT,NEENDOOR P.O, KOTTAYAM DISTRICT, PIN- 686 601, REPRESENTED BY ITS SECRETARY.** **4. ETTUMANOOR BLOCK PANCHAYAT,ETTUMANOOR P.O, KOTTAYAM DISTRICT, PIN- 686 631,REPRESENTED BY ITS SECRETARY.** **5. KADUTHURUTY BLOCK PANCHAYAT, KADUTHURUTHY P.O,KOTTAYAM DISTRICT, PIN -686 604, REPRESENTED BY ITS SECRETARY.** **R1 BY GOVERNMENT PLEADER SRI. C.M. SURESH BABU, R2 BY SRI.MURALI PURUSHOTHAMAN, S.C,K.S.E.COMMN.,** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, ALONG WITH W.P.(C). NO. 25593/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **W.P.(C). NO.24967/2010-U:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE NOTIFICATION DTD. 05/06/2010 ISSUED BY THE R.1.** **EXT.P.2: COPY OF THE LETTER DTD. 14/06/2010 ISSUED BY THE R.4. TO THE R.3.** **EXT.P.3: COPY OF THE COMMUNICATION SENT BY THE R.3. TO THE R.1.** **EXT.P.4: COPY OF THE FINAL NOTIFICATION DTD. 02/07/2010 ISSUED BY THE R.1.** **EXT.P.5: COPY OF THE COMMUNICATION DTD. 08/07/2010 ALONG WITH RESOLUTION DTD. 07/07/2010 OF THE R.3, SENT TO THE R.1.** **RESPONDENTS' EXHIBITS: NIL.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **T.R. RAMACHANDRAN NAIR, J.** ## **~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). Nos.24967/2010-U & 25593/2010-Y ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 13[th] day of August, 2010** ## **J U D G M E N T** In both these writ petitions, the notifications issued by the Government under Section 4(2) of the Panchayat Raj Act are under challenge. The matter relates to the re-organisation of the Block Panchayats. Ext.P1 in both the writ petitions is a common notification dated 05/06/2010 issued by the Government. In these writ petitions, we are concerned only with the re-organisation of the Ettumanoor Block Panchayat in Kottayam District. Going by Ext.P1, the Panchayat, namely the Neendoor Grama Panchayat is included in the Ettumanoor Block Panchayat which was part of the said Block Panchayat already from 1994. Ext.P3 in W.P.(C). No.24967/2010 is the response given by the Secretary of the Neendoor Grama Panchayat wherein it is mentioned that there is no objection for retaining in the Ettumanoor Block Panchayat and they have also no objection for adding Kumarakam W.P.(C). Nos.24967/2010 & 25593/2010 -:2:- and Thiruvarppu Grama Panchayats in Ettumanoor Block Panchayat. Similar is the resolution passed by the Ettumanoor Block Panchayat as per Ext.P2. But, when the final notification was issued the Neendor Panchayat has been excluded from the Ettumanoor Block Panchayat and included in the Kaduthuruthy Block Panchayat. This is under challenge in these writ petitions. 2. The learned counsel for the petitioners submitted that the final notification cannot be justified for more reasons than one. It is pointed out that going by Section 4(2) of the Panchayat Raj Act, the exclusion of an area of a Block Panchayat can be done only after consultation with the concerned Panchayats and after publishing the proposal. Herein, the proposal was varied but, without any previous publication and consultation of the same, it is sought to be implemented by the final notification. W.P.(C). Nos.24967/2010 & 25593/2010 **==> picture [22 x 9] intentionally omitted <==** 3. Heard the learned counsel for the petitioners, the learned Government Pleader and the learned Standing Counsel for the Delimitation Commission and the Election Commission. 4. The first respondent has filed a counter affidavit supporting the re-organisation of Panchayats. It is explained that Neendoor Grama Panchayat was included in Ettumanoor Block Panchayat as per the preliminary notification. It was on the basis of the views/opinions/objections raised during the time of hearing that the Neendoor Grama Panchayat was excluded from Ettumanoor Block Panchayat and included in Kaduthuruthy Block Panchayat as per the final notification. 5. The learned Government Pleader also submitted that the Neendoor Grama Panchayat will be a geographically contiguous unit on integration with other Gram Panchayats, namely, Kaduthuruty, Kallara, Mulakkulam, Neezhoor, Thalayolaparambu and Velloor Grama Panchayats in the Kaduthuruthy Block W.P.(C). Nos.24967/2010 & 25593/2010 -:4:- Panchayat which according to the learned counsel for the petitioners is not correct. 6. The provisions of Section 4(2) of the Panchayat Raj Act shows that the Government may at the request of the Panchayat concerned or after consultation with the Panchayat and after previous publication of the proposal by notification (a) increase the area of any Village Panchayat or Block Panchayat by including within such Panchayat area any Village or group of Villages (b) diminish the area of any Village Panchayat or Block Panchayat by excluding from such Panchayat area any Village or group of Villages. Therefore, the final notification under Section 4(2) envisages the completion of two mandatory requirements, namely, consultation and previous publication. Here, the proposal as Ext.P1 was previously published and the Panchayats were communicated the proposal also. By the said proposal, Neendoor Grama Panchayat was retained in Ettumanoor Block Panchayat itself. But W.P.(C). Nos.24967/2010 & 25593/2010 -:5:- only at the stage of finalization, the same was taken out from the said Block Panchayat and included in Kaduthuruthy Block Panchayat. The same is not preceded by any fresh proposal and previous publication of it and consultation with the Block Panchayats and the Grama Panchayats. Since the procedure prescribed under the Statute has to be mandatorily complied with, the final notification therefore cannot be supported. There cannot be any dispute that when the Statute provides a particular method of doing things, the said method will have to be adopted or not at all. In that view of the matter, it cannot be disputed that the provisions of Section 4(2) are mandatory. This legal position is clear from the decision of this Court in **Anil Kumar v. State of Kerala [2005 (3) KLT** **355].** It was held in paragraph (6) that “the use of the conjunction 'and' in Sec.4(2) of the Act makes it abundantly clear that consultation with the Panchayat and previous publication of the W.P.(C). Nos.24967/2010 & 25593/2010 -:6:- proposal are necessary before a decision to diminish the area of a Panchayat is taken by the Government on its proposal”. 7. The learned Government Pleader further submitted that the petitioners may not have _locus standi_ in the matter. The petitioners in W.P.(C). No.24967/2010 are elected members of the Neendoor Grama Panchayat and in W.P.(C).No.25593/2010, he is a member of the Ettumanoor Block Panchayat. Evidently, in this case, the Government had issued a notification as per Ext.P1 inviting objections from individuals also. In that view of the matter, after initiating the said matter, it cannot be said that the said procedure need not be adhered to at a later stage. As the Government was prepared to hear the individuals also, it cannot be said that the petitioners who are members of the Committee of the respective Block Panchayats have no _locus standi_ in the matter. Herein, as noticed, there is violation of the mandatory requirement of Section 4 W.P.(C). Nos.24967/2010 & 25593/2010 -:7:- (2) of the Panchayat Raj Act which can be successfully challenged in a writ petition. 8. Therefore, Ext.P4 in W.P.(C).No.24967/2010 and Ext.P3 in W.P.(C).No.25593/2010 as far as it relates to the inclusion of Neendoor Grama Panchayat in Kaduthuruthy Block Panchayat is quashed. The said Panchayat will be retained in as one of the constituents of Ettumanoor Block Panchayat. It is made clear that this will not stand in the way of the Government issuing a fresh proposal under Section 4(2) of the Panchayat Raj Act and by making effective and meaningful consultation with the Village Panchayats and Block Panchayats. The writ petitions are allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ms