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2014 DIGILAW 387 (KER)

Eloor Municipality v. Krishnadhar

2014-05-30

C.T.RAVIKUMAR

body2014
JUDGMENT : C.T. RAVIKUMAR, J. 1. The question posed for consideration in this writ petition is whether an application for setting aside an ex parte order allowing an appeal will lie before the Tribunal for Local Self Government Institutions in the absence of any specific provision under the Kerala Municipality Act, 1994 or under the Tribunal for the Kerala Local Self Government Institutions Rules, 1999 ? The petitioners herein are respondents 1 to 3 in Appeal No.1142 of 2013 before the Tribunal for Local Self Government Institutions. After numbering the appeal notice was served on the petitioners fixing the date of appearance as 9.1.2014. According to the petitioners, the date fixed for appearance was wrongly noted by them as 19.3.2014 and that resulted in their non-appearance before the Tribunal on 9.1.2014. Later, the appeal was heard on 14.3.2014 and Ext.P3 order was passed. The contention of the petitioners is that virtually, it is an ex parte order passed by the Tribunal and as their absence was not willful and occurred solely on account of the aforesaid circumstances Ext.P3 order is liable to be set aside for causing a decision on merits. This writ petition has been filed seeking quashment of Ext.P3 order passed by the Tribunal and for issuance of a writ of mandamus commanding the Tribunal to hear the petitioners and pass appropriate orders, in accordance with law, in the said circumstances. 2. As per Ext.P3 order, the Tribunal directed the second petitioner herein/the second respondent therein, to issue building permit to the petitioner therein/the respondent herein. Though notice was not ordered to the respondent in this proceedings Adv. P.J. Joseph entered appearance on behalf of the respondent, on instructions. I have heard the learned counsel for the petitioners and Adv. Sri. P.J. Joseph, the learned counsel appearing for the respondent. 3. It is evident from the rival contentions that Ext.P3 order is virtually an ex parte order. As noticed hereinbefore, the petitioners were not present before the Tribunal on 9.1.2014, the date fixed for their appearance and also on the subsequent date viz., 14.3.2014, the date on which the appeal was heard. True that, they are assigning the aforementioned reason for their absence on those days. As noticed hereinbefore, the petitioners were not present before the Tribunal on 9.1.2014, the date fixed for their appearance and also on the subsequent date viz., 14.3.2014, the date on which the appeal was heard. True that, they are assigning the aforementioned reason for their absence on those days. Going by Rule 19(3) of the Tribunal for the Kerala Local Self Government Institutions Rules, 1999 (for short 'the Rules) the Tribunal could dispose a petition ex parte if any of the parties or advocates has not been present on the date of hearing or any other adjourned date for hearing. In the said circumstances, in view of the admitted absence of the petitioners or advocates, on the dates mentioned above there was no legal impediment for passing an ex parte order in Appeal No.1142 of 2013. Hence, the Tribunal could not be faulted for the disposal of the appeal ex parte. The petitioners who assigned the aforementioned reason for their absence on the aforementioned dates before the Tribunal, had not, admittedly, moved the Tribunal for setting aside Ext.P3 order. According to the petitioners in the absence of specific provision empowering to set aside an order passed ex parte no such petition will lie before the Tribunal. The question is whether it is the correct position of law. The learned counsel for the respondent submitted that the petitioners ought to have approached the Tribunal for getting Ext.P3 order set aside, with a proper petition. 4. In the contextual situation it is apposite to refer to a Division Bench decision of this Court in Aliyar v. Pathu ( 1988 (2) KLT 446 ). In paragraph 22 therein it was held thus:- "22. It is a well known rule of statutory construction that a tribunal or body should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its functions for the purpose of doing justice between the parties unless there is any indication to the contrary in the statute. See Grindlays Bank Ltd. v. Central Govt. Ind. Tribunal and others ( AIR 1981 SC 606 ). An express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. (See Sutherland's Statutory Construction, Third edition, articles 5401 and 5402). See Grindlays Bank Ltd. v. Central Govt. Ind. Tribunal and others ( AIR 1981 SC 606 ). An express grant of statutory power carries with it by necessary implication the authority to use all reasonable means to make such grant effective. (See Sutherland's Statutory Construction, Third edition, articles 5401 and 5402). Where an Act confers jurisdiction, it impliedly also grants the power of doing all such acts or employing such means, as are essentially necessary to its execution. See Maxwell on Interpretation of Statutes, eleventh edition at page 350. This passage is quoted with approval in Income Tax Officer, Cannanore v. M.K.Mohammed Kunhi (1969) 7 ITR 815 and Dharmadas v. S.T.A.T. ( 1962 KLT 505 (FB)). Every court is deemed to possess such inherent power, in the absence of any provision either prohibiting or providing for the exercise of such power, in respect of any matter as is really essential for its effective and smooth functioning in accordance with law. Such power is inherent in its very constitution. This power, naturally, has to be exercised sparingly and with due care and caution and only in appropriate cases either to give effect to orders of court or to prevent abuse of process of court or to secure the ends of justice; it has to be exercised judiciously and not arbitrarily or capriciously. The exercise must be based on sound general principles and not in conflict with them or with the intention of the legislature as indicated in the statutory provisions." 5. In G.K.Granites Ltd. v. Vellavoor Grama Panchayat and Others reported in 2012 (3) KHC 775 this Court was dealing with the question of correctness or otherwise of the order of the Tribunal allowing impleadment of respondents 4 and 5 therein as the order of impleadment was passed in the absence of an express statutory provision in that regard. It was held that for valid and legally sustainable reasons if the Tribunal considered it necessary to pass orders in respect of a matter not covered by express statutory provisions; such orders should be regarded as orders issued well within the ancillary and incidental powers possessed by the Tribunal. The decision of this Court in Aliyar's case (supra) and the decision of the Hon'ble Supreme Court in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others reported in AIR 1981 SC 606 were also referred to in the said decision. The decision of this Court in Aliyar's case (supra) and the decision of the Hon'ble Supreme Court in Grindlays Bank Ltd. v. The Central Government Industrial Tribunal and others reported in AIR 1981 SC 606 were also referred to in the said decision. Grindlays Bank's case (supra) was one under the provisions of the Industrial Disputes Act and in that case a party approached the Industrial Tribunal was prevented from appearing at the hearing dates due to sufficient cause. However, an ex parte award was passed by the Tribunal. The Hon'ble Apex Court held that though there is no express provision in the Act or the Rules framed thereunder giving the Tribunal the jurisdiction to do so it is a well known rule of statutory construction that a Tribunal or a body vested with adjudicatory function should be considered to be endowed with such ancillary or incidental powers as are necessary to discharge its function effectively for the purpose of doing justice between the parties. The maxim "Cui jurisdiction data est, ea quoqe concessa esse videntur, sine quibus jurisdictio explicari non potuit" means "where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts, or employing such means, as are essentially necessary to its execution" is to be applied in such cases. In Aliyar's case (supra), as noticed hereinbefore, a Division Bench of this Court held that exercise of any such power must be based on sound general principles and must not be in conflict with them or with the intention of the legislature as indicated in the statutory provisions. In this regard it is to be noted that Rule 25 of the Rules confers wide powers on the Tribunal to regulate the procedure in connection with the disposal of the petition in the manner it thinks fit. Rule 25 of the Rules reads thus:- "25. Power of the Tribunal in certain cases.- In matters which are not provided in the Panchayat Act, the Municipality Act and these rules, the Tribunal shall have power to regulate the procedure in connection with the disposal of a petition in the manner it thinks proper." In the said circumstances, I am of view that the petitioners can be left at liberty to move the Tribunal for Local Self Government Institutions with appropriate petition for setting aside Ext.P3 and for re-hearing the issue on merits. It is for the Tribunal to consider the same in accordance with the observations made hereinbefore and taking note of the reasons assigned by the petitioners to find whether the cause assigned was sufficient and then to pass appropriate orders thereon to do justice between the parties. In case the petitioners desire to move the Tribunal they shall do so within a period of two weeks from the date of receipt of copy of this judgment. This writ petition is disposed of, accordingly.