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2000 DIGILAW 495 (KER)

Chacko v. State of Kerala

2000-09-06

G.SIVARAJAN

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Judgment :- G. Sivarajan, J. The matter arises under the Kerala Panchayat Raj Act, 1994 (for short'the Act')- The short question that arises for consideration is as to whether the Panchayat Committee has got the power to enhance the strength of the standing committee, once the strength was fixed immediately after the election to the Panchayat. 2. The first Petitioner is the President of the Ramapuram Grama Panchayat, the 4th respondent herein. Other two petitioners are members of the said Panchayat, who were inducted as members of the standing committee subsequently. The strength of the standing committee was initially fixed at 3. The Panchayat by resolution No. II dated 29.9.1998 fixed the total strength of the standing committee at 5. Petitioners 2 and 3 were elected to the two vacancies thus arising. The said resolution was cancelled by the Government by order dated 5.1.1999 (Ext. P4) in exercise of their power vested under S.191 of the Act. The English translation of Ext. P4 is Ext. P4(a). The reason stated in the said order is that there is no legal provision in the Act or in the Rules enabling the Panchayat to enhance or reduce the strength of the standing committee once it has been constituted. Ext. P4 order passed by the first respondent Government is under challenge. According to the petitioners, the provisions of the proviso to sub-s.(2) of S.162.of the Act clearly enables the Panchayat to vary the strength of the standing committee at any time. The only inhibition according to them is that the strength of the standing committee shall not be less than three and shall not exceed 5. The counsel submitted that in the instant case the strength of the standing committee as originally constituted was fixed at three and that when it was found that the work of the standing committee has increased enormously, the Panchayat decided to enhance the strength from three to five, which is well within the limit provided under S.162(2) proviso. He also submitted that pursuant to the resolution, petitioners 2 and 3 were elected. He also submitted that the term of the standing committee also expires by the end of September. He submitted that Ext. P4 order passed by the Government is illegal, arbitrary and without any basis. 3. The Government did not file any counter affidavit in this case. He also submitted that pursuant to the resolution, petitioners 2 and 3 were elected. He also submitted that the term of the standing committee also expires by the end of September. He submitted that Ext. P4 order passed by the Government is illegal, arbitrary and without any basis. 3. The Government did not file any counter affidavit in this case. However, the additional respondent 5 to 9 impleaded as per C.M.P. No. 5343 of 1999 filed a counter. The additional respondents 5 to 9 are the members of the Panchayat of whom respondents No. 5 is the Chairman of the standing committee. It is stated that the said respondent have taken all legal objections to the enhancement in the number of members in the standing committee subsequent to the fixing of the number of members in the standing committee as provided under S.162(2) of the Kerala Panchayat Raj Act r/w rule 3 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules, 1995. It is further stated that the proposal for increasing the strength of the standing committee to 5 and holding of election by reserving a second vacancy also for woman were to defeat the principle and spirit of the proportional representation by means of single transferable vote, the method of election prescribed for standing committee members, that there was already reservation for woman and scheduled caste, that a second vacancy also reserving for woman was without any bona fides and that the President and Vice President of the Panchayat are ex-officio members of the standing committee as per sub-s.3 of S.162 of the Act. Various other matters are also stated in the said counter affidavit, which are not very relevant for the purpose of this case. 4. Learned Government Pleader appearing for the respondents 1 to 3 submitted that the strength of the standing committee once constituted cannot be varied and that there is no provision in the act and the rules enabling such variation. He further submitted that it is against the very scheme of the provisions of S.162. He also submitted that the Government in such circumstances have got the power to cancel the resolution by invoking S.191 of the Act. 5. He further submitted that it is against the very scheme of the provisions of S.162. He also submitted that the Government in such circumstances have got the power to cancel the resolution by invoking S.191 of the Act. 5. Learned counsel appearing for respondents 5 to 9, on the basis of the averments in the counter affidavit, submitted that the Panchayat committee cannot enhance the strength of the standing committee originally constituted. 6. S.162 of the Act provides for constitution of standing committees. Sub-s.(2) thereof reads as follows: "(2) Every Standing Committee shall consist of members elected by the elected members of the Panchayat from among themselves through proportional representation by a single transferable vote; Provided that such members shall not be less than three or exceed five". Sub-s.(3) provides that the President and Vice President shall be Ex-officio members of all Standing Committees. Sub-s.(4) provides that in a Standing Committee of the Panchayat, one person shall be from the Scheduled Caste or Scheduled Tribe and at least one person shall be a woman; Provided that in case the person belonging to Scheduled Caste or Scheduled Tribe is a woman, it is not necessary to have a representative for women. Sub-s.(5) provides that the Chairman of each Standing Committee shall be elected to that office as prescribed, by its members from among themselves. Sub-s.(6) provides that the powers and functions of the Standing Committee shall be such as may be prescribed in this behalf. Sub-s.(7) provides that subject to such rules as may be made by the Government in this behalf a Panchayat may delegate any of the power or functions of the Standing Committee to its Chairman. 7. Proviso to sub-s.(2) states that the members of the standing committee shall not be less than three or exceed five. So by virtue of the said provision it is for the Panchayat to decide as to the strength of the standing committee so as to be within the said proviso. The stand of the petitioners is that by virtue of the provisions of the proviso to sub-s.(2), it is for the Panchayat to decide as to whether the strength of the standing committee should be three or more up to 5 and that even if originally the strength is fixed at three, there is no inhibition in enhancing the strength of the standing committee so as not to exceed 5. On the other hand, the stand taken by the respondents is that once the strength of the standing committee is decided at the earliest opportunity the same cannot be varied subsequently. As already noted the election to the Panchayat was conducted in 1995, the strength of the standing committee was fixed at three by resolution No. 11(1) dated 20.11.1995. Thereafter the Panchayat by resolution dated 29.9.1998 enhanced the strength of the standing committee to 5. Since the strength was fixed at 5, it was squarely within the proviso to sub-s.(2) of S.162, and therefore it cannot be said that the Panchayat has acted illegally. 8. Since the counsel for the additional respondents relied on the provisions of S.161(7) of the Act r/w rules 3 and 4 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules, 1995 as also the provisions of R.11 of the Kerala Panchayat Raj (Meeting Procedure) Rules, I will deal with the said provisions. S.161 deals with meetings of Panchayat. Sub-s.(1) provide that meetings of a Panchayat at any level shall be held at such intervals as may be prescribed and that the interval between two meetings shall not exceed one month. S.161(7) provides that no resolution of a Panchayat shall be modified, varied or cancelled by that Panchayat within a period of three months from the date of passing thereof except by a resolution supported by two thirds of the whole number of members of such Panchayat. R.3 of the Kerala Panchayat Raj (Standing Committee Constitution Procedure and Powers) Rules provides that the strength of the standing committee has to be fixed by the Panchayat in accordance with the provisions of S.162(2) and (4). R.4 thereof provides that the election to the standing committee or standing committees to be constituted under S.162 has to be conducted at the earliest immediately after the constitution/re-constitution of the new Panchayat and the same must be done in the meeting of the members of the Panchayat. R.11 of the Kerala Panchayat Raj (Meeting Procedure) Rules provides that if any resolution passed by the Panchayat has to be cancelled or varied within three months from the date of passing of such resolution can be done only in a meeting convened for the said purpose by 2/3 majority of the strength of the Panchayat. 9. R.11 of the Kerala Panchayat Raj (Meeting Procedure) Rules provides that if any resolution passed by the Panchayat has to be cancelled or varied within three months from the date of passing of such resolution can be done only in a meeting convened for the said purpose by 2/3 majority of the strength of the Panchayat. 9. It is on the basis of the aforesaid provisions the counsel for the additional respondents contended that once the standing committee is constituted immediately on the formation of the new Panchayat, it cannot be varied after a period of three months. It must be noted that S.161(7) r/w R.11 of the Kerala Panchayat Raj (Procedure for Conduct of the Meeting) Rules, 1995 provides only a special procedure for canceling or varying resolution within a period of three months of passing such a resolution. The said provision cannot be construed to mean that a resolution passed by the Panchayat cannot be cancelled or varied after the expiry of three months from the date of passing of such resolution. It is for the Panchayat to decide as to whether a resolution already passed, which should remain in force or not but it can be cancelled or varied only in accordance with the provisions of the Act and the Rules. The provisions of Rr. 3 and 4 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules, 1995, though provides for the constitution of standing committees and the election of members to be made at the earliest immediately after the constitution/re-constitution of the new Panchayat, does not state that the strength of the Standing Committee once fixed cannot be varied. On a conspectus of the provisions of the Act and the Rules in regard to the constitution of the standing committees and the procedure thereof, I am of the view that there is no inhibition in varying the strength of the standing committee initially fixed. The only limitation is that it should not be less than three and that it should not exceed 5. 10. In the instant case, as already stated, the Panchayat has fixed the strength of the standing committee initially at 3. Later when it was found that the functions and duties of the standing committee has increased the Panchayat has decided to fix it at 5. For the said purpose, they passed the resolution. 10. In the instant case, as already stated, the Panchayat has fixed the strength of the standing committee initially at 3. Later when it was found that the functions and duties of the standing committee has increased the Panchayat has decided to fix it at 5. For the said purpose, they passed the resolution. Based on the enhancement of the strength of the standing committee election was also conducted. Petitioners 2 and 3 were the newly elected members. They are however not functioning as members of the standing committee. The term of the standing committee is also expiring shortly. 11. In view of the interpretation placed by me on the provisions of S.162(2) of the Act, there is no illegality in the decision of the Panchayat. Hence the Government acted illegally and without jurisdiction in invoking S.191 of the Act and cancelling the resolution passed by the Panchayat. Accordingly Ext. P4 (Ext. P4(a) English translation) Government Order is quashed. However, the petitioners are not entitled to the other reliefs sought for in this O.P. This is for the reason that the 2nd and 3rd petitioners are not functioning as members of the standing committee and that the term of the Panchayat itself expires shortly. The Original Petition is allowed to the above extent.