Panchayat:Repo18/Law Manual Page0241

From Panchayatwiki
Jump to navigation Jump to search

of the power conferred on it. Whenever that power conferred is exercised in excess, it exceeds jurisdiction and therefore will become invalid, void and ultra vires and thus becomes arbitrary and unfair. So also the action of the public authority shall be just, fair and reasonable. When an action is initiated by the Municipality and accordingly the Council has launched a scheme, it can only be presumed to be done by exercising its power conferred under the provisions of the Kerala Municipality Act. If that is the situation, when a decision was taken by the Municipal Council by resolution, the beneficiaries were accrued with the statutory benefit / rights under the law and has thereby acquired a legal right which can only be taken away by resorting to a legal method. Once a statutory right is vested with the petitioner under law, it can only be taken away by providing reasonable opportunity of hearing to the affected persons, if not the same violates the principles of natural justice. Testing these legal principles against the facts and circumstances of the case, it can be seen that the respondent Municipality has not resorted to any action contemplated under law and therefore, the action of the Municipality by cancelling the resolution is in absolute violation of the principles of natural justice. A resolutio be cancelled under the circumstances mentioned in S.57 of the Kerala Municipality Act. But in order to cancel a resolution there should be specified circumstances as contemplated under the said provision. - Jecco E. G. and Another v. Thrissur Municipal Corporation - 2015 (5) KHC 705: 2015 (4) KLT 802. The case law pertains to S.57 of the Kerala Municipality Act, 1994. The identical provision applicable to the Kerala Panchayat Raj Act, 1994 is S.191].

A perusal of the above provision makes it manifestly clear that the Government under the said provision exercise its supervisory power over the Grama Panchayats. The phraseology employed in the provision gives the necessary clues to the scope and ambit of the provision. The Government, apart from acting suo moto or on a reference by the President, the Secretary or a member, can also act on a petition received from a citizen. The Legislature has not employed the expression an aggrieved person, the affected person, or even a member or voter of the Grama Panchayat. It has simply stated 'a citizen'. Further is the expression 'on a reference by the President, the Secretary or a member'. If the nature of complaint is adversarial, it makes little sense to expect the President, the Secretary or the Member to be aggrieved; they, in fact, are the persons in charge of the affairs of the Grama Panchayat. The Government is required to act, inter alia, on a reference by those office bearers. In terms of sub-section (2), before cancelling or amending a resolution or decision as per sub-section (1), the Government may refer the matter for consideration of either the Ombudsman constituted under S.271G or the Tribunal constituted under S.271S of the Act. On such reference, either of the said adjudicatory authorities can render advice on the issue referred, and eventually the Government may decide to act one way or another. It is further pertinent to observe that, as per sub-section (3) of S.191, if another remedy is available to the petitioner' through the Tribunal under S.276, the Government shall not consider any petition for cancelling or amending any resolution or decision of the Panchayat. – Ayisha K. V. and Others v. State of Kerala and Others – 2015 (4) KHC 296 : 2015 (3) KLT SN 113.

A comprehensive reading of S. 191 of the Kerala Panchayat Raj Act leaves no doubt that the Government under the said provision exercises its supervisory or corrective powers only in terms of the policy decisions of the Panchayat, but not any individual disputes within the statutory frame work of the Act. Thus, the issue under S.191 to be interfered with by the Government cannot be adversarial in nature affecting any individual rights of persons, which aspect, has been taken care of in sub-section (3) of the said Section. In conclusion, S.249 of the Kerala Panchayat Raj Act has nothing to do with S. 191 of the said Act, and that the petitioner's claim that the Government ought to have acted under S.191, based on their notice under S.249 cannot be accepted. - Ayisha K. V. and Others V. State of Kerala and Others - 2015 (4) KHC 296 : 2015 (3) KLT SN 113.

Statutory appeal under S.509(7) does not cover resolutions of Municipal Council. If Council passes a resolution, Councillors who are aggrieved can approach Government by way of a complaint as there is no availability of an alternative statutory remedy, of appeal under 3.509(7) of the Act. There is a differentia between a decision, against which an appeal lies under S.509(7) and a resolution passed by the Council. There is a specific legislative objective in making one the subject matter of adjudication and the other still a matter of executive correction. Thus, with the Legislature consciously omitting 'resolutions from the purview of S.509(7) of the Act, it cannot be contended that the approach of the petitioners or other councilors to the Government has suffered from any statutory shortcoming, such as the hurdle of alternative adjudicatory remedy. Once it is held that resolution is not appealable under S.509(7) of the Act, the argument of the contesting respondents on the issue of alternative remedy crumbles. The adjudication undertaken by the Tribunal in this process though partakes the character of a quasi-judicial determination, it is in fact akin to exercising of consultative jurisdiction. That is why unlike a formal judicial decision, the findings of the Tribunal would not bind the Government, which may take the said finding into account while arriving at a final decision. Under any changed circumstances,

Book.png ഈ താൾ 2018 -ലെ പഞ്ചായത്ത് റെപ്പോ നിർമ്മാണം യജ്ഞത്തിന്റെ ഭാഗമായി സൃഷ്ടിച്ചതാണ്.

വർഗ്ഗം:റെപ്പോയിൽ സൃഷ്ടിക്കപ്പെട്ട ലേഖനങ്ങൾ