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2004 DIGILAW 507 (KER)

Anikad Grama Panchayat v. Baiju, M. D.

2004-10-25

KURIAN JOSEPH

body2004
Judgment :- The Panchayat has filed the latter writ petition challenging the order dated 2-12-2003 (Ext. P-6) and the highest bidder in auction for collection of sand has filed the former writ petition for implementing the said order. According to the bidder, owing to the orders passed by the Deputy Director and this court he could not fully enjoy the benefit of collection of sand during the period of licence and hence he suffered huge loss. He approached the Deputy Director. The Deputy Director held that the petitioner should be compensated for the loss for 50 days instead of 81 days as claimed by him. The Panchayat took up the matter before the Government and the Government passed the impugned order affirming be stand of the Deputy Director. According to the Panchayat, the Deputy Director and the Government could not have computed the amounts as done in the impugned orders. Even if the Government was of the view that a resolution by the Grama Panchayat requires cancellation, modification or variation, in exercise of the power under Section 191 of the Kerala Panchayat Raj Act, the Government could only direct the Panchayat to reconsider the issue. 'There are also other contentions (1) the bidder himself had undertaken to remit the dues, (2) if at all there is any loss it is to be computed on a proper adjudication, (3) the person who heard the matter has not passed the order etc. 2. Section 191 of the Act was amended with effect from 24-3-1999. To the extent relevant the section reads as follows: "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 canceling 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. Evidently, the order passed by the Government and impugned by the Panchayat is not one passed as per the procedure. There is no reference and the required consideration with notice to the Panchayat and the report under Section 191(2) of the Act. Hence, I quash the Government Order (Ext.P-4 in the former and Ext.P-6 in the latter). There will be a direction to the Government to pass appropriate orders in accordance with law in the appeal filed by the petitioner in W.P.(C).No. 2835 of 2004. This shall be done within a period of four months from the date of production of a copy of this Judgment. The writ petition is disposed of as above.