THRISSUR MUNICIPAL CORPORATION REPRESENTED BY ITS SECRETARY, THRISSUR v. E. G. JECCO @ JECCO GEORGE
2018-10-16
A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY
body2018
DigiLaw.ai
JUDGMENT : A.K.Jayasankaran Nambiar, J. As both these Writ Appeals arise out of the common judgment dated 19.11.2015 of the learned single Judge in W.P.(C) Nos.20593 of 2007 and 29425 of 2008 respectively, they are taken up for consideration together and disposed by this common judgment. For the sake of convenience, the reference to the parties is as they appear in the writ petitions and the brief facts that arise for consideration are taken from W.P.(C)No.20593 of 2007. 2. The petitioners are stated to be traders conducting business at Kizhakkekkotta in Thrissur Town. The land in which their shops were situated was acquired by the Thrissur Municipal Corporation which, thereafter, through a resolution dated 12.1.1973, decided to construct a municipal complex within a year and to allot shop rooms therein to those persons who had to vacate on account of the acquisition proceedings. On completion of the construction of the new shopping complex, steps were taken to rehabilitate the traders who had earlier occupied the lands acquired by the Corporation. A resolution was passed by the respondent Corporation on 17.10.2003 (Ext.P1) towards this end and, as per the said resolution, the municipal council fixed the licence fee for the shop rooms at the rate of Rs.6/-per square feet in the ground floor and Rs.5/-per square feet in the higher floors of the new building. The resolution contemplated the grant of a concessional rate of licence fee to those persons who had been rehabilitated pursuant to the acquisition proceedings. It would appear that, by another resolution dated 29.5.2007 (Ext.P2), the municipal council cancelled its earlier resolution, and the licence fee was enhanced to Rs.25/-per square feet in the ground floor and Rs.18/-per square feet in the higher floors. Based on Ext.P2 resolution, notices were also issued to the petitioners to execute an agreement with the Municipal Corporation and remit the licence fee at the enhanced rate for six months as deposit. The petitioners were also threatened with a cancellation of their respective allotments, if they refused to execute the agreement.
Based on Ext.P2 resolution, notices were also issued to the petitioners to execute an agreement with the Municipal Corporation and remit the licence fee at the enhanced rate for six months as deposit. The petitioners were also threatened with a cancellation of their respective allotments, if they refused to execute the agreement. Aggrieved by the enhancement of the licence fee, as also by the direction of the Municipal Corporation to execute agreements based on Ext.P2 resolution, the petitioners approached this court through the writ petitions aforementioned seeking, inter alia, a direction to quash Ext.P2 resolution on the ground that the resolution was passed in violation of the express provisions of Rule 13 of the Kerala Municipality (Procedure for Meeting) Rules, 1995 (hereinafter referred to as the 1995 Rules). The petitioners also prayed for a declaration that they were entitled to the rooms in the new shopping complex under the Rehabilitation Scheme based on the licence fee fixed in Ext.P1 resolution. 3. The learned single Judge, who considered the matter, found that the resolution passed by the municipal council could be cancelled either in terms of Section 57 of the Kerala Municipalities Act or in exercise of the suo motu power of the Municipality under Rule 13 of the 1995 Rules. On finding that the provisions of Section 57 of the Act did not apply to the facts in the writ petitions before him, the learned Judge proceeded to consider whether Ext.P2 resolution could be legally sustained in view of Rule 13 of the 1995 Rules. The learned Judge found that in terms of Rule 13 of the 1995 Rules, the cancellation of Ext.P1 resolution could have been done only within a period of three months from the date of its passing and, in as much as Ext.P2 resolution was passed after the expiry of the period of three months from the date of Ext.P1 resolution, the said resolution had to be seen as without authority of law and in excess of the jurisdiction vested in the respondent Municipal Corporation. On the issue of the power of the municipality to enhance the licence fee periodically, the learned Judge found that in terms of Section 215(2)(a) of the Municipalities Act, the Municipality was well within its powers to enhance the licence fee.
On the issue of the power of the municipality to enhance the licence fee periodically, the learned Judge found that in terms of Section 215(2)(a) of the Municipalities Act, the Municipality was well within its powers to enhance the licence fee. The writ petitions were thus allowed by quashing Ext.P2 resolution and leaving open the liberty to the respondent Municipality to enhance the licence fee as provided under Section 215(2)(a) of the Municipalities Act. 4. The Municipal Corporation, which was the respondent in both the writ petitions referred above, is the appellant before us in the Writ Appeals. The main contention of the appellant Corporation is that the learned single Judge did not correctly appreciate the purport of Rule 13 of the 1955 Rules and hence his finding that Ext.P2 resolution was without authority of law is legally unsustainable. 5. We have heard Sri.Santhosh P.Poduval, the learned counsel appearing for the appellant Corporation in both these Writ Appeals. We have also heard Sri.M.P.Ashok Kumar and Sri.C.D.Dileep, the learned counsel appearing for the respondents/writ petitioners, Sri.Manzoor Ali, the learned counsel appearing for the additional 4th respondent and Sri.V.Tek Chand, the learned Senior Government Pleader. 6. On a consideration of the facts and circumstances of the case and the submissions made across the Bar, we must point out that what strikes us at first instance is the different meanings that can be ascribed to Rule 13 of the 1995 Rules, when a comparison is made between the English Version and the Malayalam Version of the Rule. The Malayalam Version of the 1995 Rules, under the heading “xxx”, which is the official version, was published in the Kerala Gazette Extra-ordinary No.1227 under G.O.(MS)No.290/95/LAD dated 7.12.1995 and its English translation was published in the Kerala Gazette No.722 dated 26.3.2001 (G.O. (P)No.88/2001/LSGD): Rule 13 of the Malayalam Version reads as follows: xxx xxx xxx 7. The translated version of Rule 13, that was relied upon by the learned single Judge, reads as under: “13. Cancellation or modification of resolution – No resolution of a Council shall be modified or cancelled except through a resolution passed in a meeting of the Council specially convened for the purpose within three months of passing such resolution, by a support of not less than one half of the sanctioned number of members.” 8.
Cancellation or modification of resolution – No resolution of a Council shall be modified or cancelled except through a resolution passed in a meeting of the Council specially convened for the purpose within three months of passing such resolution, by a support of not less than one half of the sanctioned number of members.” 8. We cannot but notice the apparent error that occurred in the English translation because, in the way that we read the Rule in the Malayalam version, the Rule clearly suggests that no resolution of a council shall be modified or cancelled within three months of passing of such resolution, other than through a resolution passed in a meeting of the council specially convened for the purpose, by support of not less than one half of the sanctioned number of the members. In contrast, in the English version of the Rule, the phrase “within three months of passing such resolution” appears to have been juxtaposed at a wrong place, as a result of which, the very meaning of the sentence used in the Malayalam Version of Rule 13 of the 1995 Rules, was changed. When we read the Rule as it appears in the Malayalam version of the 1995 Rules, it becomes apparent that the limitation imposed under the Rule is only in respect of the exercise of the power of cancellation or modification of a resolution by the Municipal Council, when such a cancellation or modification of an earlier resolution is proposed within the period of three months from the passing of the original resolution. On the other hand, the English version of the Rule would suggest that a municipal council cannot cancel or modify an earlier resolution passed by it unless it moves for the subsequent resolution within a period of three months from the passing of the original resolution. The English Version, if taken to be the applicable Rule, would effectively denude the power of a municipal council to modify or cancel its earlier resolution, once the period of three months from the earlier resolution expires. This, we find, could not have been the intention of the legislature or the rule making authority for it would effectively denude the Local Self Government Institution of a power which must be seen as inherent in it being a creature of the Constitution. 9.
This, we find, could not have been the intention of the legislature or the rule making authority for it would effectively denude the Local Self Government Institution of a power which must be seen as inherent in it being a creature of the Constitution. 9. It would be apposite, at this stage, to remind ourselves that the object of Part IX and IX-A of the Constitution was to introduce Local Self Government systems at Grass root level. The Amendments to the Constitution in 1992 sought to strengthen the system of Local Self Government by giving a uniform constitutional base so that these Institutions of Local Self Government became vibrant units of administration in the rural and municipal areas by establishing strong, effective and democratic local administration so that there can be rapid implementation of development programmes. The Municipalities Act was enacted by the State Legislature, in exercise of the powers conferred under Article 243W of the Constitution, so as to endow Municipalities with such powers and authority as may be necessary to enable them to function as Institutions of Self-Government. Viewed in this backdrop, the Rules framed by State Government under the Municipalities Act cannot have the effect of denuding the Municipalities of the very power that was conferred on them for enabling them to function as Institutions of Self-Government. 10. In its functioning, the Municipality acts through the Municipal Council, and policy decisions are taken through resolutions of the said Council. The power to modify or cancel a resolution already passed by the Municipal Council must be seen as inherent in such Council, and a Rule framed by the State Government for giving effect to the objects of the Municipalities Act cannot be seen as denuding the Municipality of its inherent power to cancel or modify an earlier decision taken by it. We are therefore of the view that Rule 13 of the 1995 Rules can only be seen as one intended to safeguard against any hasty or arbitrary modification or cancellation of a resolution that is passed, within a short duration of three months from the date of its passing. The alternate interpretation of the Rule, which suggests that a resolution of the Council cannot be modified or cancelled after three months of its passing will run counter to the object of the Municipalities Act as also Article 243W of the Constitution.
The alternate interpretation of the Rule, which suggests that a resolution of the Council cannot be modified or cancelled after three months of its passing will run counter to the object of the Municipalities Act as also Article 243W of the Constitution. Such an interpretation has therefore to be eschewed. 11. It is also relevant to note that the very fact that the municipal council has the power to revise licence fees on periodical basis would indicate that, under the Statute, it has the power to pass resolutions in modifications of earlier resolutions, and that the said power is not conditioned by a requirement that it must be exercised within three months from the date of the original resolution. 12. The upshot of the above discussion is that the findings of the learned single Judge, relying on the English version of the 1995 Rules, cannot be legally sustained and hence, we hold that Ext.P2 resolution of the municipal council cannot be seen as one passed in violation of Rule 13 of the 1995 Rules. We therefore set aside the judgment of the learned single Judge and allow these Writ Appeals with consequential reliefs to the appellant Corporation. 13. Before parting with this case, and taking note of the peculiar situation, and the resultant confusion, that occurred on account of an anomaly that arose in the translation of the 1995 Rules, we would draw the attention of the State Government to this judgment so that effective steps can be taken by the State Government to carry out the necessary corrections in the English version of the Rules, so as to make it conform to the meaning expressed in the Official version in Malayalam.