Soumya Xavier vs State Of Kerala

N. Nagaresh, J.

The petitioners, who are Ward Members of Ramapuram Grama Panchayat, are aggrieved by the Resolution passed by the Panchayat Committee on 01.08.2022, which according to the petitioners, is in violation of Rules 10, 11, 26 and 28 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995.

The petitioners state that Ext.P2 Project Report for the year 2022-2023 was placed in an urgent meeting of the Panchayat Committee scheduled on 23.07.2022. Sixteen Members participated in the meeting. According to the petitioners, only one Member expressed his oral dissent. All others including the present Panchayat President supported the Project Report and it was decided that the Report be submitted to the 3rd respondent- Deputy Director of Panchayats on or before 03.08.2022.

On 27.07.2022, there was fresh election to the vacancy of Panchayat President. The existing Panchayat President voted in favour of the Opposition violating a Whip and she was again elected as Panchayat President with the support of the Opposition parties. A petition is pending before the Election Commission seeking to disqualify the Panchayat President.

On 30.07.2022, the newly elected Panchayat President issued Ext.P3 notice for an urgent meeting with the agenda of Annual Plan for 2022-2023. Thereupon, the petitioners verified the minutes of the meeting held on 23.07.2022 and found that the minutes of the said meeting were manipulated. The 1st petitioner was the Acting President of the meeting held on 23.07.2022. Even the signature of the 1st petitioner was forged in the minutes, allege the petitioners.

On 31.07.2022, the 1st petitioner received certain dissenting notes, antedated and undated, contend the petitioners. In those notes, it was stated that Ext.P2 Project Report is not implementable and hence objected to. Dissents by 10 Members (of whom one was not present in the meeting) are dissents made subsequent to the conclusion of the meeting on 23.07.2022. The petitioners have filed Exts.P7 and P8 complaints to the Panchayat as well as to its President, over the issue.

The petitioners state that on 01.08.2022, the Panchayat Committee meeting decided to submit a fresh Project Report Ext.P9, dropping the earlier Ext.P2 Report. By Ext.P10 Minutes, the Committee approved Ext.P9 Report. According to the petitioners, the Panchayat Committee has submitted another fresh Project Report (Ext.P13) other than Ext.P2 and P9 before the District Planning Committee on 03.08.2022, without proper studies, deliberations or discussions. The 1st petitioner has submitted Ext.P11 complaint to the 7th respondent in this regard. Objections have been sent to the District Planning Committee also.

The learned counsel for the petitioners argued that as per Rule 11 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, cancellation or modification of a resolution shall be passed by two-third majority of total members of the Panchayat and hence the decision taken on 01.08.2022 has no legal backing. The decision taken on 03.08.2022 by the 4th respondent is without considering the objections raised as per Ext.P16 and against the provisions of Rule 11 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995.

The learned counsel for the petitioners further argued that as per Rule 29 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995, the Secretary shall, within ten days after the date of meeting, forward a copy of the minutes of every meeting of a Panchayat with dissenting note, if any, with the approval of the President, to the officer authorised by the Government in this behalf. Rule 29(3) stipulates that where the Secretary is of the opinion that a decision or resolution passed by the Panchayat has not been passed in accordance with law or is ultra virus the powers conferred by the Act or if implemented, it may endanger human life, health or public safety, he shall in writing, request the Panchayat to review the said decision and if the Panchayat, after discussion of such request in its next meeting, resolve to uphold its earlier decision, the Secretary shall, with in two days, forward the Panchayat resolution and his opinion thereon by registered post to the Government for its decision shall, in the case of agency, deliver it directly to the Government.

The Panchayat Committee meeting has illegally reversed a resolution duly passed by the Committee which met on 23.07.2022. The Committee has reversed various projects highly necessary for the development of various areas in the Panchayat. Exts.P9 and P13 Project Reports are therefore liable to be set aside. Those reports cannot be implemented or acted upon.

Senior Counsel assisted by the counsel for the 8th respondent-President of the Grama Panchayat opposed the writ petition. The Senior Counsel submits that the Panchayat Committee has not committed any illegality in taking a majority decision on 01.08.2022. There is no violation of Rule 11 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995. In the given situation, there is no illegality in Ext.P10 decision.

The Senior Counsel further argued that the petitioners have an efficacious alternate remedy in respect of the issue under Section 191 of the Kerala Panchayat Raj Act, 1994. The petitioners can file petition before the authority specified in Section 191. The writ petition is therefore not maintainable. When the writ petition is not maintainable, there is no question of passing any interim or final order in the matter.

I have heard the learned counsel for the petitioners, the learned Senior Government Pleader representing respondents 1 to 6, the learned Standing Counsel for the 7th respondent and the learned Senior Counsel appearing for the 8th respondent.

The grievance of the petitioners is that the Panchayat Committee had approved Ext.P2 Project Report in the Panchayat Committee meeting held on 23.07.2022 and by Ext.P10, the subsequent Panchayat Committee meeting has cancelled the decision. There is dispute as regards adopting the decision taken on 23.07.2022. Some of the Members, who are said to have supported the decision, now claim that they had expressed dissent over it. According to them, the decision taken on 23.07.2022 was not approved by the majority.

Be that as it may, the petitioners have a statutory remedy in such a situation. Section 191 of the Kerala Panchayat Raj Act, 1994 provides that-

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 (1) it may suspend such resolution or decision temporarily and may direct the Panchayat to defer its implementation till the final disposal after the completion of the procedure under sub-section (2).

The petitioners have, in fact, preferred a petition before the 1st respondent invoking Section 191, on 16.08.2022. Ext.P20 is the petition preferred online and Ext.P21 is the petition filed physically. As the petitioners have invoked their statutory remedy, this Court is of the view that the petitioners should pursue the said petition/s.

The writ petition is therefore disposed of directing the 1st respondent to consider and dispose of the petition/s filed by the petitioners invoking Section 191 of the Kerala Panchayat Raj Act, 1994, as expeditiously as possible and at any rate, within a period of one month. The petitioners will be at liberty to pursue their application for interim order before the 1st respondent.