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2010 DIGILAW 136 (KER)

Valanchery Grama Panchayat, Represented by its president, Ayshabi K. K. v. State Of Kerala, Represented by Secretary, Local Self Government (RC) Department

2010-02-16

ANTONY DOMINIC

body2010
Judgment :- Valanchery Grama Panchayat represented by its President filed this writ petition praying for quashing Ext.P4,P6 and P7 and for consequential reliefs. 2. Facts of the case are that by Ext.P1 dated 15.9.2007, the petitioner Panchayat resolved to covey its willingness to allot 1.5 acres of land acquired by it for industrial purposes to SIDCO for setting up an industrial estate, retaining ownership over the said property. It was further resolved to authorize the Secretary to negotiate with the authorities of SIDCO and to seek Government sanction in the matter. It is stated that on the basis of Ext.P1, Government accorded sanction for leasing out the property to SIDCO for a period of 30 years and that on the strength of Ext.P1, Secretary of the Panchayat entered into an agreement with SIDCO also. 3. Subsequently, by Ext.P3 dated 13.12.2007, the Panchayat made certain amendment to Ext.P1 which in effect is a retraction from the decisions contained in Ext.P1 resolution. When Ext.P3 resolution was passed, Government referred the validity of Ext.P3, to the Tribunal for Local Self Government Institutions, in terms of the provisions contained under Section 191(2) of the Kerala Panchayat Raj Act( here-in-after referred to as the Act). The Tribunal heard the parties and Ext.P4 is the report submitted to the Government. In Ext.P4, the Tribunal took the view that Ext.P3 resolution was passed in violation of the provisions contained in Section 161(7) of the Act, in as much as, only 10 out of 18 members of the Panchayat supported Ext.P3 and that the Resolution did not have 2/3rd majority support required under Section 161(7) of the Act. On that basis, the Tribunal held that the decision is not legally sustainable and is liable to be cancelled by the Government exercising its powers under Section 190(1) of the Act. In pursuance to Ext.P4 report, Ext.P6 order dated 29.9.2008 was passed by the Government, canceling Ext.P3 resolution exercising its powers under Section 191(3) of the Act. 4. In the meanwhile on 3.9.2008, the Panchayat passed Ext.P5 resolution rescinding Ext.P1 resolution dated 15.9.2007. When the Government was intimated about Ext.P5, the Principal secretary to the Local Self Government Department issued Ext.P7 intimating the Panchayat that they are bound by Ext.P1 and shall honour the commitments therein. 4. In the meanwhile on 3.9.2008, the Panchayat passed Ext.P5 resolution rescinding Ext.P1 resolution dated 15.9.2007. When the Government was intimated about Ext.P5, the Principal secretary to the Local Self Government Department issued Ext.P7 intimating the Panchayat that they are bound by Ext.P1 and shall honour the commitments therein. It is in these circumstances the Panchayat has filed this writ petition challenging Ext.P4 order of the Tribunal, Ext.P6 order passed by the Government under Section 191(3) canceling Ext.P3 and Ext.P7 communication issued by the Principal Secretary to Government. 5. Ext.P3, irrespective of the nature of the resolution, admittedly was supported by 10 out of 18 members of the Panchayat. A resolution can be cancelled only as provided in Section 161(7), which reads as under. ."TELENGU" 6. Therefore a resolution under Section 161(7) should be passed within 3 months and should have been supported by 2/3rd of the members.. Admittedly, Ext.P3 did not have 2/3 majority and if so, the reasoning of the Tribunal contained in Ext.P4 report is unassailable. 7. In so far as Ext.P5 resolution is concerned, that resolution was passed only on 3.9.2008 canceling Ext.P1 resolution dated 15.9.2007. The question is whether it was permissible for the Panchayat to have passed such a resolution. The statutory provision enabling the Panchayat to pass such a resolution is Section 161(7). A reading of this provision shows that the Panchayat can cancel its resolution within 3 months of its passing and that too provided, the resolution is passed with 2/3 majority in support of such resolution. The argument of the counsel for the petitioner is that once 3 months period prescribed in Section 161 (7) of the Act expires, it is open to the Panchayat to cancel the resolution by a simple majority of members that Ext.P5 was passed with simple majority and therefore is valid. Having gone through Section 161(7) of the Act extracted above, I am not persuaded to agree with the submission made by the learned counsel. In my understanding it is permissible for the Panchayat to cancel a resolution only within the initial 3 months of its passing and that too only if it has 2/3 majority support. Once three months period has expired it is not permissible for the Panchayat to cancel the resolution. So viewed, Ext.P5 resolution passed long after 3 months of Ext.P1 resolution cannot be sustained. Once three months period has expired it is not permissible for the Panchayat to cancel the resolution. So viewed, Ext.P5 resolution passed long after 3 months of Ext.P1 resolution cannot be sustained. If so, Ext.P7 also has to be sustained. In the result the writ petition is only to be dismissed and I do so. No costs.