S.56. (S. Velu Pillai & T. S. Krishnamoorthy Iyer, JJ.) -

VarandarapM Panchayat v. Cochin Malabar Estates Ltd.- M KLT 1149 : 1967 KLJ 424 : AIR 1967 Kenlttl 1967KLR206. [17837] — R.132 -Revenue recovery, with out notice -Disqualification under S.I 3(2)(g) of the Act whether can arise - See -Ibid. S.13(2)(g) Ravindranathan Nair v. Gopinathan Nair-I KLT 678.

[17682] — Prosecution for defaulting payment of profession tax

due to Panchayat-Assessment which became final cannot be

questioned in collateral proceeding. (Anna Chandy, J.) -Sadasivn

Pillai v. V. M, Muhammed Kunju-1959 KLR 1401.

[17683] — Ss.l3(2) (b) - Rr.78(l)(c) & 78(2)(c) - Candidate disqualified having filed insolvency petition - No objections at scrutiny- Petition to set aside election -R.78(2)(c) governs -Distinction.

If the disqualification does not appear on the face of the nomination paper or of the electoral roll, but is a matter which can be established only by evidence, an enquiry at the stage of scrutiny is required only if there is objection; when no objection is raised the acceptance of the nomination cannot be said to be improper within the meaning of R.78 (1) (c). Petition to set aside the election in such cases falls under R.78(2)(c). Under R.78 (l)(e) the whole election has to be set aside whereas under R.78 (2) (c) only the election of the re turned candidate shall be declared void. (Vithayathil & Nandana Menon, JJ.) -Varghese v. Mammen - 1955 KJLT 714: AIR 1956 TC 63 : ILR 1955 TC

646.
[17684] — S.13(2)(g) & R.132 - Notice under 1 Revenue Recovery
served without notice under R.132 - Disqualification under the
section whether arises.

What is contemplated by S.13(2)(g) is a bill or notice that is valid in law and before the Revenue Recovery Act can be invoked certain proceedings under the Panchayat Rules have first to be exhausted. (Sankaran & M. S. Menon, JJ.) -Ravindranathan Nair v. Gopinathan Nair-1955 KLT 678.

[17685] — S.16 & 17 - Applicability.

A member ceases to hold office under S.16 only subject to the Provisions of S.17. (M. 5. Menon, J.) -Apran v. Deputy Director of Local Bodies, Trichur - 1958 KLT SN 24. [17686] — S.17 - Decision of Government under- Only administrative order. (S. Velu Pitlai, J.) -Parameswaran Pillai & Another v. State of Kerala and Others - 1960 KLT 307 : 1960 KLJ

266 : ILR 1960 Ker. 444 : 1960 (1) KLR 187. [17687] — Ss.25(l)(h), 71 & 83(12) -Executive Authority has the power to receive the application to renew licenses. (Velu Pillai, J.) -Narayana Pillai v. Thazakkara Panchayat - 1960 KLJ 1197: 1960(1) KLR 631.

[17688] — S.40 - Nonconfidence motion against President -Notice of intention to make motion and copy of the motion presented to director - Copy of motion represented subsequently as the first one lost- Meeting held later than 30 days from the date of notice

-Validity.

Sub-s.(3) of S.40 is mandatory and therefore the proceedings of the meeting of 2-5-1956 and Ext. A, the notification issued by the Government in pusuance of the resolution passed at the meeting cannot be sustained. It is impossible to say that there is a substantial compliance with the provision that the meeting should be convened not less than 30 days from the date on which the notice under Sub-s.(2) was delivered, if a meeting is held,

as has been done in this case some 73 days after the relevant date. (M. S. Menon, J.) - Viswanatha Pattamali v. State of TC -1957 KLT 1306 : 1957 KLJ 74.

[17689] — S.40(2) - Notice of motion for non-confidence -One of
the signatories disqualified - Legality.

If one of the persons signing the notice of intention to make the motion is disqualified the notice will not be a valid notice under Sul S.40. (Kumara Pillai & M. S. Menon, U.}-Venkiteswara Iyer v. Mathai - 1957 KLT 331 [17690] — 8.40(3) - Is directory - Substantial compliance, is sufficient.

The provision regarding notice of not less than fifteen clear days is directory in character and therefore substantial compliance will suffice.(M. S. Menon, 7.)-GovindaPanickerv.Statel951 KLT 570 : 1957 KLJ 610.

[17691] — S.40(3),(4) & (S) - Scope of-Authorisation to convene
meeting - Specifit authorisation to preside is not necessary.

The only authorisation that is contempt by Sub-ss.(3), (4) &

(5) of S.40 appears to be an authorisation to convene a meeting. No separate authorisation for presiding is indicated and there is no warrant for the contention that an authorisation to convene a meeting is not sufficient and that there should be a further authorisation to preside at the meeting so convened. (Kumara Pillai & M. S. Menon. i} - Venkitaeswara Iyer v, Mathai - 1957 KLT35 [17692] — S.40(6) -Meeting convened for considering no-confidence motion againstits President - could not be adjourned on accoin of stay order from High Court - Resolution passed at adjourned meeting has no validity.(Velu Pillai, J.) - Kunjumoosa Kunju v. State- KLJ 578: 1960 (1) KLR 403.

[17693] — 8.40(12) -'Sanctioned strength' was fixed by notification at nine -Five out of six members, the strength of Panchavu passed resolution of no confidence against its President

-Government was quite right refusing to implement resolution.

(M. S. Menon, J.) - Padmanabhan Nadar v. State - 1960(1) KLR 407. [17694] — Ss.43 & 90 - The Panchayat has no right to open a new road on another man's property. (Govinda Menon, J.) - Moldeen V, Varkey - 1962 KLJ 1150.

[17695] — S.44(d), 80 (i) & 99 (vii)-Before rules under S.44(d) have been prescribed rules under S.44(d) have been prescribed notification under S.80(l) has beenmafcd bye-laws under S.99(vii) have been framed Panchayat has no power to regulate trades or business activities - Constitution of India, Art.19.

The petitioner had a fundamental right to eigage in the occupation of trading in meat provided he did not infringe any law imposing reasonable restrictions on that right in the interests of the general public. No system applying S.44(d) or

S.80 has been evolved by the framing of necessary rules and notifications and until that preliminary was done the Panchayat Authority concerned could not claim to exercise power under those sections. Here not only were there 10 rules or notification or bye-laws empowering the Panchayat to control any trade or business activity within their area by issue of licences but they put it out of their power, by giving monopoly of meat stalls to a stranger party, to grant license any one to carry on the business of sale of meat within the area. There can be no doubt that ic Panchayat concerned have over-stepped the limits of their powers in seeking to prevent the petitioner from carrying on his

business. The prosecution started against petitioner cannot in circumstances, also stand. (Viihayttthil & tgar, JJ.) -Hameed Rowther v. Pampady Panchayat-1955 ILRTC 1089.

[17696] — S.56 - Panchayat Rules, (1951, T. C. -R.118(3)-Scope
of -Bye-law imposing rate, tax etc. - Previous sanction of the
Government is necessary.

In view of S.56(c) of the Act and R. 1 1 8(3) of the Panchayat Rules 1951, there can be no doubt that the previous sanction of the Government is necessary for the validity of any bye-law imposing a rate, tax, cess or licence or fee under the Act. (M.

S. Menon, J.) -Rowther v. Pampady Panchayat - 1957 1213: AIR 1958 Ker. 118.

[I7697] — S.S6 -Panchayat Rules, 1951 Travancore-Cochin), Rr.123 & 125 -Company having office but not transacting my business within the Panchayat - Liability of the company to profession tax.

The contention is not that they have no office in the panchayat area but that in that office no transactions of sales or purchases are concluded, This is absolutely irrelevant to satisfy R.I25 of tePanchayat Rules. Hence the Company is liable far assessment to profession tax. (S. Velu Pillai & T.S. Krishnamoorthy Iyre, JJ.)-Varandarapally panchayat v. Cochin Malabar Estates Ltd. - 1967 KLTII49: 1967 KLJ 424: AIR 1967 Ker. 175:-KLR206.

[17698]-S.56 - Panchayat Rules (1951, TC.) R.130 - Non-
residential buildings whether liable to house-tax - House meaning
of.

The word 'house' ordinarily means a building used wholly, or almost wholly, for residential purposes. Therefore, the house-tax imposed is not confined to dwelling houses. It will apply to nonresidential buildings also. (Kumara Pillai & M. S. Menon, JJ,) - Peermade Tea Co. Ltd. v. Executive Authority, Upputhura Panchayat -1957 KLT 701 : 1957 ILR Ker. 700.

[17699] — Ss.56(c), 80, 97 & 99 - Bye-law providing fee for machinery using for any industrial purposes - using a printing press whether comes under it - 'Industry' meaning of.

An activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material service to the community at large or a part of such community with the help of employees will be an undertaking. Therefore working a printing press would certainly come within the meaning of the term 'industry' and as such licence is necessary for conducting the printing press. (Anna Chandy & P. Govinda Menon, JJ.) -Thomas A. Ninan v. Krishna Pillai Karthikeyan Nair-1963 KLT 967.

[17700] — S.56(c), S.110 & R.123 - Failure to furnish return of professional income - Levy was invalid as lacking in requisite Government sanction - Punishment - Liability - T. C. Panchayats (Validation of Imposition and Collection of rates, taxes, cesses, and fees Act (15 of 1958, Kerala), S.2-Applicability. (S.

Velu Pillai, J.) -Vasu Ezhuthassan v. President, Kolazhy Panchayat - 1959 KLT 447 : 1959 KLJ 487.

[17701] — Ss.56(2) & 80 - Prosecution for failure to take out licence -Competency of criminal court to adjudicate question whether imposition is really tax and not licence fee -Fee and tax

-Incidents and distinction.

Tax is an imposition made for public purposes without reference
to any special benefit to be

conferred on the payer of the tax and the levy of tax is for the purpose of general revenue, which when collected forms part of the public revenues of the State and the object of a tax is not to confer any special benefit upon any particular individual i and so there is no element of quid pro quo between the tax payer and the public authority. 'Licence fee' is generally defined to be a charge for a special service rendered to individuals by some Governmental agency and it is supposed to be based on the expenses incurred by the agency in rendering the service though in many cases the costs are arbitrarily assessed. Unless the Panchayat or the Municipality renders some service, licence fees cannot be collected and the fee that is sought to be collected must bear some proportion to the services rendered. In this case Pws.l and 2 had clearly stated that no special service has been done by the Panchayat and that no amount has been set apart for the expenses in connection with such services and therefore the essential element of "quid pro quo" is absent in the levy. Therefore, the fee that is claimed cannot be said to be a licence fee and the Municipality has no right to claim the amount and the accused's failure to pay the amount and take out a licence cannot be said to be a contravention of the provisions of the Act. (P. Govinda Menun, J.)-Wadakancherry Panchayat v. Kunjan - 1962 KLT

988.
[17702] — S.57 -Amount due from auction purchaser of the right to vend meat in market cannot be recovered under the Revenue Recovery Act. (Velu Pillai, J.) - Thomas John v. Chengannoor Panchayat - 1960 (1) KLR 629. [17703] — S.69 - Right to vend meat in a market is beyond the scope of the section. (Velu Pillai. J.) -Thomas John v. Chengannoor Panchayat -1960(1) KLR 629.

[17704] — S.69(2) - Sanction accorded to open and conduct public market -Cancellation of the order - Legality - General Clauses Act (VII of 1125), S.20 - Applicability.

In view of S.20 of the TC. Interpretation and General Clauses Act, 1125, it has to be held that the power to accord sanction to open and conduct public market must be taken to include the power to cancel the order according sanction. (M. S. Menon, J.) - Raman Nair v. State - 1956 KLT 788: AIR 1957TC220.

[17705] — Ss.69 & 70 - Right to vend goods in the market sold in public auction -Legality -Panchayat Market Rules (1954, P. C.),

R.6 and Market bye-laws (1954, T. CO No. 3 are beyond powers
conferred by S.69.

It is clear from Sub-s.3 (a) & (b) S.69 that what the section contemplates is the prescribing of fees and the collection thereof and not the auctioning of the right to use the market or to expose goods for sale in the market or to use the shops, stalls, pens or stands therein. The auction of the right to vend beef and so much of R.6 of Market Panchayat Rules, and bye-law No.3 as authorised such an auction are beyond the powers conferred by S.69 of the Panchayats Act, Whai was done at the auction was not the farming out of the rents and fees but a sale to the highest bidder of the right to vend beef and such a procedure cannot be considered as within the ambit of S.70. (Kumara Pillai & M. S. Menon, JJ.) ~ George v. Pazhavangadikara Panchayat-1957 KLT 342 : 1957 KLJ 207 : AIR 1957 Ka 85 : 1LR 1957 Ker. 276.

[17706] — S.70 - Market - Meaning - Doe not include stall of a
person.

The opening of a meat stall by a person cannot in any sense be
said to amount to the opening oi a new market. For market implies
a public lira i and appointed place of buying and selling goods -
AIR 1957 TC 2.

[17707] — Ss.80 & 83(12) - Scope - Applies to first applications
and not to renewal-General prohibition whether applies to
8.83(12).

As far as renewals are concerned it has been specifically stated that an applicant for the renewal of a licence shall be entitled to act until he has been communicated any orders to the contrary. But as far as the 1st application for a licence or permission is concerned a restriction has been placed that such a person cannot act until the expiry of 30 days. A distinction has been drawn between renewals and first licence, that in cases of renewals the applicant need not wait but can continue as if he has been given alicence but in the case of first application he canot do so until he has waited for 30 days, within which time the panchayat is to give some order on his application. (P. Govinda Menon, J.)-Panchayat Executive Authority, vyttila v. Raphael-19691 KLT 335.

[17708] — Ss.80 & 99 (7) - Absence of rules under - Effect -

Refusal to grant licence to a vendor of meat - Exclusive right

granted to another - Legality - Breach of fundamental right -

(Constitution of India Art.19(1)(g).

If no system applying S,44(d) or S.80 has been evolved by the framing of necessary rules and notification the panchayat authority concerned cannot claim to exercise power under those sections, until the preliminary is done Where there are no rules or notifications or bye-laws empowering the Panchayat to controle any trade or business activity within their area by issue of licences and the panchayat further puts ill of their power, by giving monopoly of meat stalls to stranger party, to grant licences to any one else to carry on business of sale of meat within the area, there is no doubt that the Panchayat concerned over-steps the limits of powers in seeking to prevent the person who was already selling meat from carrying on his business. The Panchayat can, therefore be directed under Art.226 to for bear from interfering with the carrying on of the business of the meat stall of such person within their area unless under proper rules and notifications made in that behalf. (Vilhayathii & lyengar. JJ.) - Hameedu Rowther v. Pampady Panchayat - AIR 1957 TC 2 : ILR 1955 TC 1089: 1957 Crl. LJ 105. [17709] — S.80(2) - Mere fact that money was remitted not a justification for running a mill without a licence. (P. Govinda Menon, J.) -N. Narayanan Nair v. Idiculla Eapen - 1961 KLT 1004.

[17710] — S.88 - Nature of authorisation required.

S.88 confers upon the Panchayat the power to delegate generally their authority to make a complaint to their executive officers and it is for that authority to exercise their decision and decide whether in any given case a complaint shall or shall not be made. (P. Govinda Menon, J.J-N. Narayanan Nair v. Idiculla Eapen- 1961 KLT 1004.

[17711] — S.99 - Bye-law of a Panchayat framed under the section providing licence for storing chemical preparations -Arishtams and Asavams whether chemical preparations -AdmissibUity of judgments by Magistrates m other cases to prove it.

Whether Arishtams and Asavams will constitute chemical preparations would depend on the nature of the various processes

involved in the preparation which question has to be decided on the evidence in the case. (P. Govinda Menon, J.) -Executive Authority, Vilakkudy Panchayat v. Janardana Rao - 1962 KLT 762 : 1962 KLJ 925.

[17712] — S.99 -Prosecution for violation of Bye-law of Panchayat - Whether prosecution can be launched only after resorting to the provisions of the Revenue Recovery Act.

Unless the statute by express words or by necessary implication lays down that one remedy was to the exclusion of the other, the observations slated above must apply and in the absence of any such provisions in the Act, both the remedies are open to the authorities, and they could resort lo any one of them at their option. (P. Govinda Menon. J.) -Executive Authority, Vilakkudy Panchayat v. Janardana Rao - 1962 KLT 762 : 1962 KLJ 925.

[17713] _ S.104 read with S.80 - Prosecution by Panchayat against accused for failure to take out licence for using machinery for an industrial purpose - Magistrate can go into the question whether imposition is really tax and not licence

fee. (Govinda Menon, J.) -Executive Authority v.Kurian-1962 KLJ 1223.

[17714] — S.11S - Disposal of appeal by Government on report from Deputy Director of Local Bodies - Report made without notice to party or enquiry - Natural justice violated -Constitution of India, Art.226.

The procedure which was followed by the Government in disposing of the appeal was quasi-judicial in character. The report was not complied after an enquiry by the Deputy Director of Local Bodies, or with notice to the petitioner and the petitioner had no opportunity of perusing the contents at any time. Government thus collected material to the prejudice of the petitioner and the rules of natural justice demanded that the petitioner ought to have been allowed an opportunity to answer the allegations against him in the report. This opportunity was not granted to the petitioner. Therefore the order of the Government rejecting the appeal is bad as having violated the principles of natural justice and has to be quashed. (S. Velu Pillai, J.) -C. M. Kunju Moosa Kunju v. State of Kerala & Others - 1960 KLT 871 : 1960 KLJ 1031.

[17715] — 8.115(2) - Panchayat Establishments rules (1955) R.27,

Expl. 2 -Government do not have the right to direct the

termination of the services of an employees. (M. S. Menon, J.) -

Philip v. State - 1959 KLJ 559.

PANCHAYAT (RESTRICTION

ON LITIGATION) RULES, 1966 [17870] — R.2 - Scope - Resolution authorising President to approach Government and take whatever step as necessary in the matter of construction of taxi stand -Held resolution was wide enough to enable president to move High Court by a writ Petition in the matter. (Kochu Thomtnen, J.) ~ Payyannur Panchayat v. State of Kerala-1976 KLT 831.

PANCHAYATS (Burning &

Burial Ground) RULES, 1967

(Kerala) [3524] — Panchayat (Burning and Burial Ground) Rules, 1967 (Kerala), R.6 -Original application for burial ground routed through Panchayat -Late application to convert it to one of

vault type -cannot be allowed without routing it through the
Panchayat.

As per R.6, the proposal has to be routed through he Panchayat. It is well known that when a procedure is prescribed under the Act or rules, that procedure has been followed and if a thing is done in a particular way, it has to be in that way. It cannot be said that the recommendation of the Panchayat is not mandatory. Rules are intended to see that burial ground is located without evading the distance rule and also to see that it does not create any problem regarding public order, morality or health. Hence, the non-consultation with the Panchayat is fatal and the impugned order is liable to be quashed. (S. Sankarasitbban J.) -Pardeep v. Kandanassery Panchayat - 1996 (2) KLT 775: 1996 (2) KLJ 365.

[3525] — R.6(7) - Objectors are entitled to a personal hearing - Consideration of objections alone is not sufficient -Is mandatory.

R.6(7) directs the Collector to consider the objections, if any, received and after causing suchenquiries, as may be necessary, pass orders. The enquiry should not be an empty formality. It is a matter in which many people are affected and their objections have to be considered. The procedure has been laid down in order to see that starting of new burial or burning ground is not against public interest. (S. Sankarasubban J.) -Pardeep v. Kandanassery Panchayat - 1996 (2) KLT 775 : 1996 (2) KLJ 365.

Lyod v, Mc.Mchon 1987 AC 625; Wiseman v. Rorneman 1971 AC 297 - Relied on. [3526] — R.6(7) -Original application found to be defective due to distance rule -Not necessary to reject application -collector can postpone the decision to find out whether application can be granted after removing the objections. (S. Sankarasubban J.) -Pardeep v. Kandanassery Panchayat - 1996 (2) KLT 775 : 1996 (2) KLJ 365.

[3527] — R.6(7)(b) - Even if there is non-compliance of the provisions of the rules on account of distance, if Collector is satisfied that licence cannot be granted on grounds of public order, morality or health, then the application has to be rejected - Merely because a thodu is situated beyond the distance beyond the distance prescribed, the Rules do not free the authorities from looking into the question of health hazard.

Both original authority and the appellate authority have not considered the question whether whaler in the thodu was used for washing and bathing purposes. There is an observation in both these orders that water is not used for drinking purposes; water is not used for drinking purposes; but that is not enough and if, as a matte of fact, water is used for washing and bathing, it is highly necessary that it should be found out whether there will be any pollution because of the construction of the cemetery. (S. Sankarasubban, J.) -Kurian Kurian v. District Collector- 1998

(2) KLT 185: 1998 (.2) KLJ 25.

Narayanan Thampi v. District Collector, 1988 (2) KLT48; Pradeep

v. Kandanassery Panchayai, 1996 (2) KLT 775 - Relied on.

[2282] — Panchayat (Burial and Burning Grounds) Rules, 1967, (Kerala), R.3 -Panchayat cannot use a property as a burial ground without prior permission from the District Collector - When orders under S.36 & 44 r/w 134(1) of the Public Health Act are passed directing not to use a place as a burial ground, Panchayat

cannot permit burial of dead bodies - Public Health Act, 1939,
Ss.33, 44 & 134(1).

Panchayal cannot use the property as a burial ground without prior permission from the District Collector under R.3. However, it was argued on behalf of the Panchayat that burial or burning grounds at the commencement of these rules in 1967 shall be deemed to have registered under these rules. It is submitted that pursuant to Exts.R. 1 (a) to R. 1 (c) the property has been legally handed over to the Panchayat and the Panchayat has been using the same as burial ground. Kerala Panchayats (Burial and Burning Grounds) Rules came into force in 1967. It is stated in the counter affidavit filed by the Panchayat that as per the records available with them, from 1970 onwards the property is being used as a burial ground for burning the dead bodies. In the above circumstances, the Panchayat cannot use the property as a burial ground without prior permission from the District Collector as provided under R.3. Panchayat is duty bound to approach the Collector, who is the only competent authority for granting permission in regard to the burial and burning grounds.

R.3 provides that the Panchayat with the previous permission of the Collector, provide at its cost, places to be used as burial or burning grounds and may charge rents and fees for the use thereof and that such request of the Panchayat for such permission shall be made to the Collector through the District Panchayat Officer concerned. The Collector shall, before granting permission, consult the Health Officer and shall have due regard to his views regarding the suitability of the place from the public health point of view. The orders which could have been challenged in appeal by the Panchayat or any other person were never done by anyone. Therefore, so long as Exts. PI and P2 orders remain unchallenged and is in force, the Panchayat, in our opinion, cannot permit burial of dead bodies unless Exts. PI and P2 orders are challenged and validly set aside by a competent authority. (A.R. Lakshmanan & D. Sreedevi, JJ.) ~ Mailadumpotty Janakiya Samrakshana Samithi v. Chungathara GramaPanchayat - 2000

(2) KLT 840 : 2000 (1) KLJ 670 : AIR 2000 Ker. 288.

[2283] — R.6(8) - The direction in Sub-r.(8) of R.6 to the Collector to dispose of the application within 6 months from the date of application is mandatory - The date of application is the crucial date - After the expiry of 6 months the Collector becomes functus officio.

If the application for opening a burial ground is not disposed of quickly, it will affect seriously the applicant. The purpose is for burying the dead. The Collector cannot keep the application pending for large number of years on the ground that he has got various responsibilities. Secondly, for the purpose of taking into consideration the human habitation, the date of application is considered to be the crucial date i.e., any construction or obstruction at the site of the cemetery made after the date of the application will not be considered as genuine or bonafide. The above entire provision read together will show that time factor has been introduced in order to see that it is complied with mandatorily; otherwise it may lead to very difficult situation especially with regard to persons who had purchased the property or construed buildings after 6 months' period is over because their objections will not be taken into consideration. Hence we hold that the direction, to dispose of the matter within 6 months, to the Collector is mandatory and after that he becomes functus officio. Hence we are of the view

that Sub-r.(8) of R.6 of the Rules fixing the time limit is
mandatory and the Collector has to pass order within the time.

(A.R. Lakshmanan, Ag. C. J., S. Sankarasubban & C.S. Rajan, JJ.) -Surendran v. District Collector - 1999 (3) KLT 22 : AIR 2000 Ker. 103 : 1999 (2) KLJ 355 FB.

1988 (2) KLT 48 - Overruled. AIR 1957 SC 912; AIR i960 SC 444;

AIR 1961 SC 1480 & AIR J987 SC 849 - Referred to.

[2284] — Panchayat Raj (Burial and Burning Ground) Rules,
(Kerala), 1998, R.6(a) - The period of 6 months would start
running only from the date of receipt of the application by the
District Collector from the DMO and not from the date of receipt
of the application by the Panchayat.

It has to be taken that the provision contained in Sub-r.(9) prescribing 6 months' time for the District Collector to pass an order is also a mndatory provision. The provisions would make it clear that the period of six months would start running only from the date of receipt of the application by the District Collector from the District Medical Officer and not from the date of receipt of the application by the Panchayat. (K.K. Vsha & R. Bhaskaran, JJ.) -Marykutty Mathew v. St. Thomas Orthodox Cathedral -2000 (3) KLT 21 : 2000 (2) KLJ 221.

/ 999 ( 2) KU 355 FB & 1988 (2) KIT 48-Referred to.

[8574] — Rs.5 & 6 (8) - Validity - R.5 is valid - R.6(8) is invalid as it is unreasonable & opposed to legislative intent expressed in 8.57(2) of the Panchayats Act, 1960.

R.5 envisages an enquiry and satisfaction by the Collector regarding the matters specified in sub-rule (7) quite apart from the distance rule under rule 5. Rule 5 prescribing the minimum distance from any human habitation for the establishment ,of a burning or burial ground cannot therefore be challenged as arbitrary and opposed to Art. 14 of the Constitution. Rule 5 read in the context of R.6 cannot also be challenged as unreasonable and as beyond the legislative intent. The requirement of sub-rule (8) of rule 6 for the Collector to pass an order within a period of six months from the date of the submission of the application to the Panchayat, if construed as a mandatory provision, would render the sub-rule itself invalid as grossly unreasonable and beyond the

legislative intent. The expression "shall' will have only the same meaning as 'may" in the sub-rule and the provision is only directory. The latter part of the sub-rule deeming the licence as having been granted on the expiry of the period of six months and authorising the applicant to proceed to use the site for the purpose of disposal of the dead is invalid as it is unreasonable and opposed to the legislative intent expressed in S.57(2) of the Panchayats Act. (Balakrishna Menon & Bhaskaran Nambiar, JJ.) -Narayanan Thampi v. Dt. Collector -1988 (2) KLT 48.

[8575] — R.6 - While giving licence for a burial ground, prohibition contained in R.4(l), Chapter IV of the Kerala Education Rules, 1959 should be taken into account - Education Rules, 1959 (Kerala), Chap.IV, R.4 (1).

A prohibition like the one contained in R.4 (1), Chap.IV of the Kerala Education Rules, 1959 cannot be ignored in granting licence for a burial ground under the Kerala Panchayats Act, 1960 and the Rules thereunder.( Varendran, J.) -Manager, Samajam School v. State -1980 KLT 947.

[17843] — R.4 - Burial or burning grounds -Whether both public
and private burial round come within the rule.

Provision in R.4 give a clear indication that burial ground will take in not only public burial ground but private burial ground as well. The nature of the use and the purpose are the same and there ought to be no classification made on the basis of the ownership or the limited use to which the ground is put in the case of private rial and burning grounds. (Govindan Nair, C, &Balakrishna Eradi, J.) - Kelu Nambiyar v.Narayani Amma - 1974 KLT 483 : ILR 1974 (2) Ker. 69.

PANCHAYATS (LEVY AND

COLLECTION OF LAND CESS)

RULES, 1971

[17855] — Rules - Validity - If bad for vice of excessive

delegation. The essential legislative power has not been delegated by the legislature. The legislative policy is clearly enunciated in the section. Them making power is conferred upon a delegated long as there is a clear definition of the nature and incidents of the levy and also of the quanta of the levy, delegation intended to work out otta details cannot be said to be excess (Subramonian Poti & Janaki Amma, JJ,)-Cochin Malabar Estate v. Executive Officer-1975 KLT 102.

[17856] — R.7 -Appeal - Whether deport of amount demanded is a
condition precedent for filing appeal.

Unlike S. 144, R.7 does not stipulate paynw of the land cess demanded under R.6 as a condition precedent for presenting an appeal against the order of the assessment officer, neither the Panchayat nor the Government can a validly say that an appeal coming within the scope of R.7 is liable to be rejected for want of payment of the amount demanded. (Kochu Thommenh-Cochin Malabar Estates & Industries Ltd.v. Executive Officer - 1979 KLT 840.

PANCHAYATS (COMMON

SERVICE) RULES, 1977

(KERALA)

[8576] — R.3 - Head Clerks without test qualification can be

promoted to Manager's post provisionally. The persons qualified to be appointed as Head Clerks would include those who had been exempted from acquiring the qualifications; and once that exemption is granted in accordance with the provisions in the service rules in that behalf, there is no scope for making further classification into those who became eligible to hold the post by reason of exemption from test qualifications granted to them on the other, in relation to the consideration for promotion. (Bhaskaran, J.) -Jagadhara Panicker

v. State -1983 KLT 801.

[8577] — Rule 3(3), Notes (1) and (2) - Post held by senior most Panchayat Assistant upgraded as that of Head Clerk - Not to be treated as a promotion - Fixation of Seniority - Service Law.

The re-designation of the post of senior most Panchayat Assistant as Head Clerk cannot be treated as promotion to another post. Therefore, the seniormost Panchayat Assistant Grade 1, who came to be known as Head Clerk continued in the same grade and in fixing his seniority the length of service in the grade of Panchayat Assistant Grade I and IT should be taken into consideration. The mere fact that he has been given higher scale of pay will not make the re-designation a promotion. (Paripooman & Sreedharan, JJ.) -B.Mohammed & Others v. State of Kerala & Others- 1987 (2) KLT280#AIR 1981 SC.64Explained#

[8578] — Rule 3(3), Notes (1) and (2) - Not violative of Art. 14
of the Constitution.

Even after the re-designation the senior most Panchayat Assistant continued to be in that category and the services put in by him in that category has alone to be reckoned for fixing the inter se seniority of Panchayat Assistant. After the Common Service Rules, Head Clerks became another category. In fixing the inter se seniority of those Head Clerks, their service in that category is directed to be taken note of. This is not at all discriminatory. Persons called Head Clerks of two different classes are treated differently. This will not amount to any discrimination. It is not in any way violative of Art. 14 of the Constitution (Paripooman & Sreedharan, JJ.) -B. Mohammed & Others v. State of Kerala & Others -1987 (2) KLT 280# AIR 1981 SC. 64 Explained# .

[8579] — Annexure, Category 3 Note -Junior Bill Collectors/Peons claim to the post of L.D. Clerks -Should pass the special test conducted by the P.S.C.

In the case of Junior Bill Collectors/Peons, the pass in the test conducted by the Director of Panchayats will not confer on them any right to claim the post of Lower Division Clerk as per the Note attached to Category 3, Panchayat Assistant Grade II/Bill Collector. They should pass the Special Test conducted by the Public Service Commission. (Sreedharan, J.) -Karnalamma v. Director of Panchayats -1992 (1) KLT 709.

PANCHAYAT (PROCEEDINGS

OF PANCHAYAT MEETINGS

AND COMMITTEES )RULES

[8607] — R.4(i) - None of the members at the meeting opposing

the consideration of a resolution not on the agenda - Resolution

not invalid on account of the absence in the agenda. No member opposed the consideration of Resolution No.13 as such. Therefore, Resolution No. 13 passed on 21-2-1989 cannot be stated to be invalid, on account of the absence of agenda as provided in R.4( 1) of the Rules. (Sreedharan, J.) -Mathew Joseph v. Arakulam Panchayat -1990 (2) KLT612:1990(2)KLT580.

[17872] — Rr.4 & 5 - Prior notice-If essential.

No business is to be transacted in a meeting unless notice thereof is given in advance to the members. (Govindan Nair, C. J. & Janaki/uw I J.) ~ Kodiyathur Panchayat v. District Pancte Officer- 1977 KLT 80.

PANCHAYATS (AMENDMENT)

ORDINANCE, 1984 (KERALA) [8565] — Constitutional validity -Constitution of India, Arts.213 & 226. Power of Governor to promulgate Ordinances -Panchayats Act 1960 (Kerala) S.ll - Effect of omission of the proviso - Impact of direction of Court in interim order. In promulgating the Ordinance by virtue of the provisions contained in Art.213 of the Constitution, the power exercised by the Governor is the same as that of the State Legislature to make the laws. The Ordinance could not, therefore, be assailed as though it is an executive or administrative order of the Government. Secondly , the constitutional

validity of an Ordinance could not be successfully challenged unless the promulgation thereof is without conforming to the requirements of Art.213 or is opposed to any other Article of the Constitution. Therefore, the attack mounted against the constitutional vaJidity of the Ordinance on the ground that the Government did not take sufficient care and interest to complete the steps for conducting the elections within the time specified in sub-section (2) of S.I 1 of Act, is not sustainable. The Court cannot probe into the motive behind the exercise of the legislative power by the Governor so long as there is no lack of legislative competency, and the provisions are not opposed to the provisions of the Constitution. If the Government finds it necessary to have a legislation, which it is competent to make, to do away with the effect of a direction given by this Court, which, in its opinion amounts to an encroachment on its statutory direction, it cannot be prevented from doing that, on the ground that the attempt virtually is to nullify the effect of the directions of the Court. The promulgation of the Ordinance, when the Legislative Assembly was not in session, has to be on the satisfaction of the Governor that circumstances existed which rendered it necessary for him to take immediate action. It is a matter of subjective satisfaction of the Governor, not justiciable in a court of law. In promulgating the Ordinance the Governor as the constitutional head of the State, must have, presumably, acted on the advice of the Council of Ministers are required under Art. 163 of the Constitution; and in terms of clause (3) of that Article, the question whether any, and if so what, advice was tendered by Ministers to the Governor

shall not be enquired in any court. This statutory amendment effected by the Ordinance, for all practical purpose, amounted to the deprival of the power of the Government to exercise the discretion; and it would have had to act without power in that behalf, if the directions contained in Ext. PI order were to be given effect to after the amendment of the section by the Ordinance. In this background, when the Assembly was not in session, the Governor should not be found fault with for having promulgated the Ordinance to achieve the policy behind the decision of the Government. ( Bhaskaran Ag. C.J., M.P. Menon & Balakrishna Menon, JJ.) -Vasudevan & Others v. State of Kerala & Others -1985 KLT 344 (F.B) : AIR 1985 Ker.69 : ILR 1985 (1) Ker.583: (1985) 1MCC 207.

[8566] — Municipalities (Second Amendment) Ordinance, 68 of 1984 (Kerala) and Municipal Corporations (Amendment) Ordinance, 67 of 1984 - Not bad for want of instructions from the President -Constitution of India, Art.213 (1) Proviso.

Entry 5 in List II of Schedule VII to the Constitution empowers the State Legislature to legislate with respect to the local government including Municipal Corporations and village administration. Therefore the Ordinances are not bad for want of instruction from the President. (Bhaskaran Ag. C.J., M.P. Menon & Balakrishna Menon, JJ.) -Vasudevan & Others v. State of Kerala & Others -1985 KLT 344 (F.B): AIR 1985 Ker.69 : ILR 1985 (1) Ker.583 : 1985 (1) MCC 207.

[8567] — 3 & 4 - Impact of deletion of proviso to S.ll of
Panchayats Act of 1960.

The deletion of the proviso to sub-section (1) of S. 11 would not render the working of the scheme of the Act impracticable. The operation of the other provisions of the Act would not come to a standstill in as much as ample safeguards for carrying on the day to day to day administration of the Panchayats, as a temporary measure, are provided in S.4 of the Ordinance. (Bhaskaran Ag.

C.J., M.P, Menon & Balakrishna Menon, JJ.) - Vasudevan & Others

v. State of Kerala & Others -1985 KLT 344 (F.B.); AIR 1985 Ker.69
: ILR 1985 (1) Ker.583 : 1985 (1) MCC 207.

PANCHAYATS ACT, 1993 (GUJARAT) [1444] — Panchayats Act, 1993 (Gujarat) Ss. 30, 59, 73 & 87 - Municipalities Act, 1963 (Gujarat), Ss. 11, 31, 38 & 40 - Power of competent officer to suspend elected office bearers of local bodies such as Panchayats and Municipalities on the ground that criminal proceedings for offence involving moral turpitude have been instituted prior to the election of the office bearer Suspension cannot be ordered on the ground of pre-election pending criminal proceedings which was not a disqualification for being elected to office.

In our opinion, the expression, "pending criminal proceedings" does not admit the existence of criminal proceedings initiated prior to the date of election and more so when it is not a disqualification for the purpose of election. It would lead to a paralytic impact on the right, status and privileges of elected persons upon the popular mandate of the people and the same would run diametrically opposite to the provisions and the promise of the provisions of Ss. 59, 73 and 87 of the Gujarat Panchayats Act, 1993. After having taken into consideration the facts and circumstances, the text and context of the provisions and the fact that pendency of criminal proceedings prior to the date of election not being a disqualification, we are of the explicit opinion that the same cannot be employed or used by the competent authority for the excise of statutory power to suspend an elected representative. We are, therefore, left with no alternative but to answer the question formulated and referred by the learned Single Judge in this referential consideration and adjudication in the negative. (J.N. Bhatt, M.R. Calla & Y.B. Bhan, JJ.) (F.B.) (Guj) -Nasirkhan v. District Development Officer - 2001 (3) KLT SN. 120 P. 92. Dt. W/ 01/2001.

AIR 1989 SC 509; 2000 (2) GLR 1174; 1980 AC 53; 1995 (2) GLR 1502 & I960 GLR 260 -Referred to.

PANCHAYAT RAJ ACT, 1994[3532] — Panchayat Raj Act, 1994 (Kerala). S.5 - A Panchayat is competent to file an original petition under Art.226 when any of its legal right is infringed by the authorities including the Government -See -Constitution of India, Art.226 -Karunagappally Grama Panchayat v. State of Kerala - 1996 (1) KLT

419: 1996(1) KLJ 331 : ILR 1996 (2) Ker.522.

[3533] — Ss.34(2), 36 & 89 - When there is one and the same disqualification before or after filing the nomination, then the decision of the State Election Commission on the question of disqualification shall be final under S.34(2) and designated Court will be precluded from probing into the same disqualification once again in the Election Petition.

The cardinal principle of law is that the law does not permit duplication or repetitive decisions on the same issued by different statutory authorities at different stages. The question

of disqualification allegedly incurred under S.34 (l)(g) having been decided by the State Election Commission, whose decision is final under S.34 (2), the same disqualification will not be subject to further probe in the election petition by the Court, which is as much a creature of the statute as is the State Election Commission. When there is no change in the nature of disqualification and when no new disqualification is incurred after the nomination having been filed, the decision of the Commission on the question of disqualification shall be final under S.34(2), and no election petition would lie on the same question before the designated court - a statutory creature. (Om Prakash CJ. & J.B. Koshy, J.) -Sukumarakurup v. District Judge - 1998 (2) KLT 548.

Sukumarakurup v. District Judge 1997 (!) KLT649- Overruled.

Mohinder Singh Gillv. Chief Election Commissioner 1978 (1) SCC 405; N.P. Ponnuswami v. Reluming Officer, Namakkal AIR 13) 1962 SC 64 - Referred to.

[3534] _ Ss.34(2), 87, 88 & 102 - Authority of the State Election Commission is in reference to the question whether the candidate is competent to contest whereas the jurisdiction of the election court arises after the election in reference to a retuned candidate - Election Tribunal has jurisdiction to decide election dispute on the improper acceptance of nomination after the said question was decided by State Election Commission earlier at the time of receipt of nomination.

The specific provision is made in reference to a retuned candidate for the election court to decide whether on the date of election the returned candidate was qualified or disqualified. The Court is also entitled to decide whether by the improper acceptance of the nomination the results of the election had materially affected. In so far as the disputes relating to election it can be decided only by an election petition as per Ari.243-O read with S.87 of the Act. S.34 speaks of a disqualification of a candidate in the sense that before acceptance of the nomination of a candidate by the Returning Officer the candidate should satisfy the qualifications set out and should not suffer any disqualifications as set out under

S.34. Therefore, the decision of the Returning Officer and State Election Commission is referable only to a candidate before election and in reference to the acceptance of his nomination whereas the election court deals with the declaration of the election of a retuned candidate. Section 170 of the Representation of the Peoples Act bars the jurisdiction of the Civil Court against the decision given by the Returning Officer or any other person appointed under the said Act in connection with an election. Under S.36 of the said Act, the Returning Officer has got the power to decide including the power to reject any nomination on the ground that the candidate is not qualified or disqualified. S.9A states that a person shall be disqualified, if he has subsisting contract with the Government. S.80 states that no election shall be called in question except by an election petition, and under S.80A the High Court is the court having jurisdiction to try the election petition. S.100(l)(a) is one of the grounds for declaring the election to be void namely, a retuned candidate was not qualified or was disqualified. Thus, the provisions of the Panchayat Act is in pari materia with R.P. Act. The Returning Officer has jurisdiction to decide the question of qualification or disqualification of a candidate

before accepting the nomination. Similarly, once a candidate is returned, the Court constituted under the Act has got the power to go into the question and decide whether the returned candidate's election is void. (P. Shanmugham, J.) -Sukumarakurup

v. District Judge - 1997 (1) KLT 649. (Overruled in 1998 (2) A'L7 548)

Mohinder Singh Gill v. Chief Election Commissioner 1978 (!) SCC 404; N.P. Ponnuswami v. Returning Officer. Namakkal AIR 1952 SC 64 - Relied on.

State of Mizoram v. Biakchhawna 1995 (l)SCC 156 - Referred to.

[3535] — S.84 (2) - There is specific provision for continuation of all the orders, licences and rules under the Panchayats Act, 1960, until they are modified.

Under sub-section (2) (i) of S.284 of the new Act all the order, licence, permission, rule bye-law etc. issued or granted in respect of the Panchayal area under the old Act and in force immediately before the appointed day shall continue to be in force as if they had been made, issued or granted in respect of the-corresponding Panchayat are a under the new Act until superseded or modified. (K.T.Thomas, Ag. CJ. & P. Shan mug ham, J.) -Concrete Aggregate Industries v. Kummanode PouraSamithi -1995 (2) KLT 720: ILR 1996 (1) Ken 206.

Air India v. Union of India 1995 4 SCC 734; Rural L & E.Kendera

v. State of U.P. AIR 1987 SC 2426 -Distinguished.

[3536] — S.89 - Election Petition should be presented by a candidate or by an elector -Presentation by counsel is not sufficient.

The requirement that the Election Petitioner should take the full responsibility for what is averred in the Election Petition and consequently has also to attest each of the copies of the Election Petition to be served on the opposite side also emphasises the importance given by the Election Law to the^participation of the Ejection/Petitioner in the filing of the Election Petition. An Election Petition under S.89 of the Act has to be presented in person by a candidate at the election or by an elector. (P.K. Balasubramanvan, J.) -Saraswati v. Kamala -1997

(1) KLT 855 : 1997 (1) KLJ 450 : ILR 1997 (2) Ker. 848.

Sathya Narain v. Dhujamin AIR 1974 SC 1185; Charanial Saiiu v. Nand Kishor Bhall AIR 1973 SC 2364; Shcodan Singh v. Mohan La! AIR 1969 SC 1024; Ramanlal Premy v. Shiv Pratap Singh ILR / 978 MP 569 - Relied on, [3537] — Ss.87, 88 & 94 -Orders of the Munsiff's Court while hearing an election petition under the Panchayat Raj Act are not revisable under S.115 - See - Civil P.C. 1908, S.I 15 - Leela v. Pushpam -1996 (2) KLT 350 : 1996 (2) KLJ 229 : ILR 1996 (3) Ker.698. [3538] — S.89(2) - If an election petition is filed in violation of the form prescribed by the Act, that cannot be allowed to be withdrawn to enable the petitioner to file a proper petition in conformity with 8.89(2) -A petition under S.89 can be withdrawn only as per the provisions contained in Ss.108,109 & 110.

A petition filed under S. 89 should comply with all the requirements of that Section. If the petition fails to comply with all the requirements of that Section, that petition entails dismissal. It cannot be allowed to be withdrawn for enabling the petitioner to file a proper petition in conformity with the provisions contained in S.89{2). Provision contained in S.89(2) is too technical, but technicalities have to be strictly complied

with by the petitioner, if the petition is to be taken on file. (

K. Sreedharan, Ag. C.J, & C.S. Rajan J.) -Kaveri Amma v. Dcvaki

-1996 (2) KLT 189: 1996 (1) KLJ 845 : ILR 1996(3) Ker. 25 8.

[3539] — S.89(2) - The requirement that every copy of the election petition should be attested by the petitioner under his own signature is mandatory - If the election petition is not in conformity with the form, it should be dismissed without going into the merits of the petition.

Since the said requirement is meant to avoid possibility of tampering with the petition and to make the petitioner responsible for what has been staled therein, the said requirement must be regarded as mandatory. Where a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right, that provision must be regarded as mandatory. Violation of a mandatory requirement entails avoidance. Provision contained in S.89(2) of the Act deals with the form of the petition which is mandatory. (

K. Sreedharan, Ag. C.J. & C.S. Rajan J.) Kaveri Amma v. Devaki - 1996 (2) KLT 189: 1996 (1) KLJ 845 : ILR 1996(3) Ker.258.

Sharif-ud- Din v. Abdul Cam Lone AIR 1980 SC 303 - Followed.

[3540] — S.89 (2) -Election petition filed violating mandatory provisions - Cannot be cured after service of notice on the respondent, even if 30 days have not expired. (N. Dhinakar, J.) -Devaki v. Kaveri Amma-1996 (1) KLT 130.

Slmrif-ud-Din v. Abdul Gani Lone AIR 1980 SC 303 -- Referred
to.

[3541] — S. 89(2) - Election petitioner has to attest copies of the election petition under his own signature to be true copies of the petition.

The requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner under his own signature is a mandatory requirement and the non compliance with that requirement should result in the dismissal of the petition. The copy intended to be served on the petitioner was actually served without the signature of the 1 si respondent. As it was served on the petitioner without the signature of the 1 st respondent I am of the view that the 1st respondent did nol file the election petition in terms of Section 89 (2) of the Act. (N. Dhinakar, J.) -Devaki v. Kaveri Amma - 1996 (1) KLT 130.

Sharif-ud-Din v. Abdul Gani Lone AIR 1980 SC303; Kamalamv. Dr.A. Syed Mohammed AIR 1978 SC 840-Relicd on. Satya Narain v. Dhuja Ram & others AIR 1974 SC 1185 - Referred to.

[3542] — S.93(4) - As a condition precedent for amending an election petition the election petitioner should have alleged the particulars of any corrupt practice in the election petition.

From a reading of Section 93(4) of the Act, I am satisfied that as a condition precedent for amending an election petition, the person who approaches the election tribunal should allege the

particulars of any corrupt practice so as to enable the Tribunal to allow the particulars of any corrupt practice so alleged in the petition to be amended or amplified. (K, Narayana Kurup J.) -Azcez v. Krishnan -1996 (2)" KLT 540 : 1996(2)KLJ21I. [3543] — Ss.99 & 93 - The trial of the petition shall be deemed to commence on the date fixed for the respondents to appear

before the Court - S.93 applies to the time limit presented under

S.99.

The trial means an act of providing or judicial examination or determination of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary. Though S.93 is referable to sub-s. (3) which enable is any candidate to implead himself. the same expression, viz.. "commencement of trial" is used under S.99. The first act necessary or essential to proceed with the trial will be from the date fixed for respondent's appearance. For the sake of uniformity also, the same meaning should be given under S.99 also. (P. Shanmugam, j-Damodaran v. Munsiff, Thaliparamba- 1998 (2) KLT 392.

[3544] — 8.157(12) as amended - Effect of amendment - Nine members participating in the vote of no-confidence - Five members voting in favour of the no-confidence motion - One-half of the sanctioned strength is five and motion validly passed.

In a Panchayat having a strength of 9 elected members. 5 members will constitute more than one-half of the sanctioned strength. That the interpretation that one-half of the sanctioned strength in the facts of this case would be five and more than five would be six, will no doubt do violence to the legislative purpose. After the amendment, the object of the provision is made unambiguous and certain. (P.A. Mohammed J.)

-Joseph Thomas v. State of Kerala - 1996 (2)KLT 927 : 1996 (2)
KLJ 692 : ILR 1997 (2)Ker.369.

The New Piece Goods Bazaar Co. Lid. v. Commissioner of Income
Tax AIR 1950 SC 165 -Referred to.

Wahid Ullah Khun v. District Magistrate, Nainital AIR 1993

Ail.249- Relied on.

[3545] _ S.157(12) -- Nine members participating in the vote of no-confidence -Five members voting in favour of the no-confidence motion and four members against the motion -Unless the motion has the support of six members, the motion cannot be said to be passed.

Under S.I 57 (12), the support should be more than one-half of the elected members. In a Panchayat having a strength of 9 elected members, one-half of the elected members will be 5. More than one-half will come to 6. Hence, until the motion has the support of 6 members, the motion cannot be said to be passed. It could not be presumed that the word more was used by the legislature without any intention. The word majority is also absent in sub-s.12. This interpretation is further strengthened by a reading of sub-s. 13, which says that if the motion is not carried on by the majority as aforesaid, no further motion shall be received until or after six months. Thus, the intention appears to more than half of the members should support the motion. The word number is absent. ( S. Sankarasubban J.} -Ambili v. Deputy Director -1996 (2) KLT486 : ILR 1997 (1) Ker.399 : AIR 1997 Ker.73.

Atexandesr v. Director of Panchavats and others 197! KLT 535; Wahid Ullah Khan v. District Magistrate. Nainital and Others AIR 1993 Allahabad 249. Referred to. Kurian v. Registrar 1994 (2) KLT 202 - Relied on.

[3546] — S.162 (3) - Lady member elected Vice President of Grama Panchayat -President & Vice President Ex-Officio members of standing committee - Lady Vice President cannot contest for the seat reserved for women in the standing committee.

By the election of the third respondent the strength of membership of the standing committee is not maintained. Thus, a reasonable interpretation of the Rules prevents the Ex-Officio members from contesting again. I also rely on the legal maxim 'clecta una via non datur recursus adalteram' - he who has chosen one way cannot have recourse to another. In this case, the third respondent had already become a member of the standing committee by virtue of her position as Vice-President. Therefore, she cannot become a member of the standing committee hy another process. (S.Sankarasitbban, J.) -Alicekutty v.Kadambazhippuram Grama Panchayat'- 1996 (2) KLT 203 : 1996 (2) KLJ 121.

[3547] — S.166 (1) - Even if the R.D.O. has given permission for conversion of paddy field, Fanchayat has a right to object to the same.

It is evident from S.166(1) of the Act, it is the mandatory duty of every village Panchayat to control unauthorised building constructions and land utilisation.. Therefore, the Revenue Divisional Officer has a duty to consult the Panchayat. Therefore, the mere fact that Revenue Divisional Officer has given permission does not mean that Panchayat has no legal right to object to the conversion of paddy field. (K.S. RadhakrishnanJ.) -Manjapra Grama Panchayat v. State of Kerala -1996 (2) KLT 719. [3548] — Ss.221 & 286 - As regards private markets, there is no right for the Panchayat to auction out the right to conduct the same - See -Panchayat (Slighter Houses & Meat Stalls) Rules, 1964 (Kerala) Rr.31 & 39. Peter v. Perayam Panchayat - 1996 (1) KLT

362 : 1996 (1) KLJ 340. [3549] — S.276 (3) -Reasons are to be stated by the statutory authority for the orders issued by it except orders relating to the day to day administration. The statutory powers conferred on any authority has to be exercised fairly and reasonably and not arbitrarily or capriciously. An order unsupported by any reason while in exercise of statutory powers cannot stand scrutiny as it would infringe Art. 14 of the Constitution. (K.T. Thomas, Ag.

C.J. & S. Sankarasubban, J.) -Karungappally Grama Panchayat v. State of Kerala- 1996 (1) KLT419 : 1996(1) KLJ 331 : ILR 1996 (2) Ker. 222.

S.N.

Mukherjee v. Union of India AIR 1990 SC 1984; M.J. Sivani

v.

Slate of Karnataka, AIR 1995 SC 1770 -Relied on.

[3550] — Panchayat Raj Act, 1994 (Kerala), S.284 (l)(i) & Panchayats Act, 1960 (Kerala), S.142 (repealed) - Notification issued under S.142 of the Old Act making certain provisions of Municipalities Act, 1960 applicable to Panchayats - After repeal of the Municipalities Act, 1960, there need not be a fresh notification under the Panchayat Raj Act, 1994, extending Municipal Laws of 1994.

The Panchayat Raj Act, 1994 was enacted to keep in line with the Constitution (Seventy Third Amendment) Act, 1992, Keeping in view of the rule of construction to advance the cause of justice and facilitate the day-to-day working of the statute and the language of the statute it has to be held that the extension and adoption is only by reference. The references to the Municipalities Act by the Panchayat Raj Act, 1994 would be referable to the re-enacted Municipalities Act.S.23 of the Kerala Interpretation and General Clauses Act., 1125, provides for continuance of orders. The notifications issues under the Panchayat Act, 1960 would continue as if issued under 1994 Act

and that by virtue of the incorporation by the reference, the provisions of the Municipalities Act, 1994, would apply. In effect even as per sub-s. (2) of S.142 of the Panchayat Act, 1960, the provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area and sub-s.of S.274 of the Panchayat Raj Act, 1994 alsoslates that the provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area.(P. Shanmugfim, J.) -Abdul Salam v. Mallappally Grama Panchayat - 1998 (2) KLT

508 : KLJ 19 98 Ker.670.

Gauri Shankar Gaur v. Stale of U.P. 1994 f I) SCC 92; D.KTrivedi and Sons v. Stale of Gujarat 1986(Supp) SCC 20; Collector of Customs v. Sampathu Cheity AIR 1962 SC316; N.C.J. Mills Co. v. Asst. Collector, Central Excise AIR 1971 SC454; Canara Rank v. State AIR 1982 Ker.J.f.B; Thomas Eapen v. Asst. Labour Officer 1993 (2)KLT24I;Stterlha!laiS.M.M.G.H. v. Krishnan Unni 1975 KLT572; C.A. Industries v. K. Poura Samithi 1995 (2) KLT 720 -Referred to. [3551] -- S.284 (2) - Existing rules -Continuance of - Under sub-section (2) (i) of S.284 of the new Act all the order, licence, permission, rule, bye-law etc, issued or granted in respect of the Panchayat area under the old Act and in force immediately before the appointed day shall continue to be in force as if they had been made, issued or granted in respect of the corresponding panchayat area under the new Act until superseded or modified. There is a specific provision for the continuation of all the orders, licences and rules them in force until ihey are modified. (K.T. Thomas, Ag. C.J. & RShanmugam, JJ.) -Concrete Aggregate Industries & Anr. v. Abdul Khader & Others -1995(2)KLJ589. All- India v. Union of India, 1995 14) SCC 734 -Distinguished on facts.

PANCHAYAT RAJ ACT, 1994, (KERALA) [1421] — Panchayat Raj Act (Kerala) S. 7(4), (6) - Panchayat Election - Reserved ward -Selection - Drawing of lots -Ward newly created having more than 50% population under reserved ward in previous year is to be excluded -Therefore, newly created ward whose entire population was covered by three reserved wards and whose 100% population was under reserved ward in earlier election

-Is to be excluded while taking lots for selection. (J.B. Koshy, J.) ~ C.R. Suresh v. State of Kerala & others -AIR 2001 Ker.

174. Dt. 14/06/2000. [1422] — Ss.24 & 36 - There is hardly any scope for a Court to intervene and correct the electoral rolls under Art. 226 after the election notification - There can be no inclusion of names in the electoral roll after the last date for making nominations for an election in a constituency -See -Constitution of India, Art. 226 & 243-0(b). (K.K. Usha,Ag. C.J., & Kurian Joseph,J.)~ State Election Commission v. Krishnan -2001(1) KLT 285. Dt. 26/09/2000.

[1423] — S. 33 -Election of Panchayat -disqualification of member from contesting election - Ground of failure to submit accounts of election within prescribed time -No evidence produced by him showing submission of accounts within time - His name was published in official Gazette disqualifying him from contesting election for six years - However he did not file any objection or challenged the matter- Challenge made by member on

issuance of election notification - Thus no interference could be made especially regarding submission of nomination - Moreso when it is in purview of Election Commission and Returning Officer.

(J.B. Koshy & M. Ramachandran, JJ.) ~ Suresh Kumar P.S. alias Suresh v. Election Commissioner, Thiruvanathapuram & others -AIR 2001 Ker. 81. Dt. 31/08/2000.

[1424] — Sees. 59 & 93 -Election Petition -Filing of- Petition filed after the period prescribed with a petition to condone the delay - Held -Sec, 5 of Limitation Act is not applicable - Hence delay cannot be condoned. (M. Ramachandran, J.)- Anandavally v. Trikaripur Grama Panchayat & Ann - 2001 (1) KLJ 175. Dt. 06/12/2000.

[1425] — S.79 - Drawing of lot when there is equality of votes -

S. 79 is not ultravires of the Constitution and does not infringe
rights under Art. 19 - Constitution of India, Art.19.

The petitioner has only a right to vote in an election but in the matter of deciding as to who should represent a constituency or a ward the law prescribes the method which is easy and practicable and it cannot be treated or termed as opposed to fairness. The petitioner's suggestion in this case is that a reelection may be ordered or both the candidates are to be declared as elected. It does not sound sensible.The petitioner's contention that his fundamental rights guaranteed under Art. 19 of the Constitution of India stands violated also appears to be an empty, far fetched plea and has not been substantiated. There might be an element of arbitrariness in the method suggested by statute. But life itself at times throws challenges, on the boarder lines of arbitrariness. I can see S. 79 only as a piece of law, which Is least objectionable, to come over a situation of impasse. The principle of casting vote is not alien to election; it is resorted to, so as to get across lawlessness. Lots, or spin of coin may decide the fate of an aspirant, but when circumstances conspire, the above is accepted as a democratic,

civilised method. (M. Ramachandran, J.) - Padmanabhan v. State of Kerala - 2001 (1) KLT 64 : ILR 2001 (1) Ker. 68. Dt. 18/10/2000.

[1426] — Ss.79 & 104 -S.79 is not ultravires of the Constitution and does not infringe rights under Art.19 - In case of equality of votes, S.104 does not apply.

It needs no explanation that it is a provision contemplated in the exigency of no one getting elected to fill up the vacancy. The situations dealt with under Ss. 79 and 104 of the Act are not the situations where none is elected. Those are situations where from among the candidates 'voted' who is to be selected as elected in the event of candidates securing equal number of votes, by adding one vote. Certainly the returning officer cannot be given a casting vote which is an accepted mode of taking decision by the Chairman of a Meeting exercising a second or casting vote in the event of equal number of votes between the contesting candidates or rival contentions. (K.K. Usha, CJ. & Kurian Joseph, ],)-Murali v. Returning Officer - 2001 (1) KLT

854 : 2001 (1) KLJ 693 : ILR 2001 (1) Ken 584 ; AIR 2001 Ker.

199. Dt. 02/03/2001.
2001 (1) KLT 64 - Affirmed.

[1427] — S. 88 - Court trying an Election Petition under S. 88 is a Court subordinate to the High Court and High Court can revise an interlocutory order passed by the authority constituted under the statute under S. 115 C.P.C. - It not being a persona

designata is not amenable to the supervisory jurisdiction vested
in the High Court under Arts. 226 & 227 of Constitution -
Constitution of India, Art. 243-O.

Under the Constitution the Legislature is given power to constitute an authority to deal with dispute relating to panchayat election. The Legislature has enacted S. 88 of the Act which provides that the "Court" having jurisdiction to try an election dispute is the Munsiff s Court which is having jurisdiction over the Panchayat. The statute carefully avoided conferring jurisdiction on any designated or notified Munsiff s Court with respect to any notified Panchayat which could have given rise to an argument that it is a person designated thus to try the election petition as a persona designata. When the Legislature in its wisdom designated the civil court to be the authority to exercise the jurisdiction to try the election dispute, by a process of interpretation, it cannot convert such a civil court into a Tribunal or a persona designata. When Art. 243-O, by express provision excludes the power of review of the election process by invoking the power under Art. 226 of the Constitution, we cannot by indirect means invoke the said power.Thus, the Legislature has conferred all the powers that of a civil court for the authority constituted under S. 88 of the Panchayat Raj Act, 1994. Hence for these reasons we hold that the decision rendered in Leela v. Pushpam (1996 (2) KLT 350), with great respect, was not correctly decided. Merely because the appellate authority is a court subordinate to the High Court, it would not follow that the original authority would be a court subordinate to the High Court. (V.P. Mohan Kumar & K.K. Denesan, JJ.) - Aisha Potty v. Returning Officer - 2001 (3) KLT 867 : 2001 (2) KLJ 767. Dt. 18/10/2001. 1998 (2) KLT 350 - Overruled. CRP287of2001 & 1997 (I) KLT 855Approved. 2001 (2) KLT 280; AIR 1978 SC 851; 1997 (3) SCC 535; AIR 1961SC606 & AIR 1966 SC J 888 - Referred to.

[1428] --S. 89 - Election petition -Considering the delay in filing the petition -Application filed beyond the time prescribed in S. 89 cannot be entertained.

Any application filed beyond the time prescribed in S. 89 of the Kerala Panchayat Raj Act cannot be entertained. We may indicate we have to strictly interpret the provisions of an election statute especially in the matter of filing petition calling in question any election or challenging the result of an election. (K.S. Radhakrishnan & K. Balakrishnan Nair, JJ.) -Anandavally v. Ajitha-2001 (3) KLT 758 :2001 (2) KLJ 633. Dt. 12/10/2001.

2000 (3) KLT 551 - Distinguished.

[1429] — S. 89(1) & (2) - Attestation of copy of election petition -Need not be attested in all pages of all copies - Signing at the foot of last page of every copy as true copy amounts to substantial compliance of S. 89(2) of the Act.

The counsel for the respondents submitted that the decision reported in 1996 (2) KLJ 283 relying upon the above judgment of the Supreme Court reported in 1991 (3) SCC 375 laying down that attestation of the election petition at the foot of the copy of the petition is proper compliance of S. 89(2) of the Kerala Panchayat Raj Act should be accepted, in preference to the judgment of another Single Judge of this Court reported in 1997

(1) KLT 697, relied upon by the counsel for the petitioner. (K.A.

Mohamed Shaft, J.) -Bindu Vijayakumaran Nair v. Bindu Rajappan 2001 (3) KLT 155 : 2001 (2) KLJ 280. Dt. 18/07/2001.

1997 (1) KIT 697 & 1996 (2) KLT 350 - Dissented from.

1999 (2) KU 283 & 1999 (3) KLT 818 -Followed. 199113) SCC 375

-Referred to.

[1430] — S. 89(2) - Election petitioner writing 'true copy' and signing on the foot of every page - It amounts to attestation and no particular form of attestation is prescribed in the Act or Rule - Not necessary to write 'certified to be a true copy of the petition'.

The District Court found that when the first respondent wrote "true copy" and signed on the foot of every page it amounts to attestation as no particular form of attestation is prescribed in the Act or Rule. There was substantial compliance and that the election petition could not be thrown out on the ground of maintainability. (R. Bhaskaran, J.)-Appukuttan v. Bijukumar-2001

(3) KLT269 : 2001 (2) KLJ 323 : ILR 2001 (3) Ken 283. Dt. 31/07/2001. AIR 1964 SC 1027; 1996 (1) KU 591 & 1997 (2) KLTSN 67 Case 69 -

Relied on.
AIR 1984 SC 956 - Distinguished.

[1431] — S. 93 - Provisions of the Limitation Act are not applicable to an election petition - Delay in filing election petition cannot be condoned.

It may also be relevant to note that in a matter of appeal it has been stated that even though such an appeal has to be filed within a period of 30 days of the date of the order, there is provision to condone the delay in filing the appeal at the discretion of the Court. Here also there is no reference to the impact of the Limitation Act, but the jurisdiction has been conferred by the statutory provision itself. When the Kerala Panchayat Raj Act is a complete code in itself, import of the Limitation Act on the strength of the above decision is not warranted. (M. Ramachandran, J.) -Anandavally v. Ajitha -2001(1) KLT 211 : AIR 2001 Ker. 110. Dt.06/ 12/2000.

AIR 1974 SC 480 - Relied on. (2000) 5 SCC 355 - Distinguished.

[1432] — Ss. 93 & 94 - Court has got discretion to allow the
petitioner to pay the deficit court fee at any stage of the
proceeding.

The Court has got the discretion to allow the petitioner to

pay the deficit court fee at any stage of the proceeding. S. 94

of the Panchayat Raj Act says that the election petition shall be tried in accordance with the procedure applicable under the Code of Civil Procedure. It is S. 93 of the Panchayat Raj Act that mandates the Court to reject an election petition at the threshold. That can be done only if the petitioner does not comply with the provisions of Ss. 89,90 or S. 115 of the Act. There is no case for the petitioner in this revision that the first respondent has not complied with any of the above provisions except on the first point already discussed. (R. Bhaskaran, J.)

-Appukuttan v. Bijukumar-2001 (3) KLT 269: 2001 (2) KLJ 323 : ILR 2001 (3) Ker. 283. Dt.31/07/2001.1983 KLT551 -Referredto.

[1433] — S. 156(6) (b) - President of a Grama Panchayat has got power to take disciplinary action against a non-gazetted Government servant allotted to the Panchayat - Panchayat Raj (Controlling of Officers) Rules, 1997 (Kerala), R.8.

By amendment Act 13 of 1999 which came into effect on 24.3.1999 sub-s. (6) was added to S. 156. S.156 (6)(b) enables the President of the Panchayat to take disciplinary action in case of dereliction of duty or on failure to comply with the lawful directions of rules and orders issued by the Panchayat. Provision also enables the President to keep the officer under suspension. President can suspend any of its employees who are not gazetted officers. Government have also issued Kerala Panchayat Raj (Controlling of Officers) Rules, 1997. The said Rules were published in the Kerala

Gazette dated 10.7.1997. R. 7 enables the Panchayat to impose minor penalty. R. 8 enables the Panchayat to keep an officer under suspension. Aforementioned provisions give ample power to the President of the Panchayat to keep a Government servant desputed to the Panchayat under suspension if he is below the rank of a Gazetted Officer. (K.S. Radhakrishnan & G. Sasidharan, JJ.) -Director of Panchayats v. Krishnan - 2001 (2) KLT 286 : 2001 (1) KLJ 856. Dt. 27/03/2001.

[1434] - 8.162(2) (as amended) & 8.161(7) There is no inhibition
in varying the strength of the Standing Committee initially fixed

-Only limitation is that it should not be less than three and
should not exceed five Panchayat Raj (Procedure for Constitution
and Power of Standing Committee) Rules, 1995 (Kerala), Rr.3 & 4.

The provisions of Rr, 3 and 4 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules, 1995, though provides for the constitution of standing committees and the election of members to be made at the earliest immediately after the WBtilution/re-consti nation of the new Panchayat, does not state that the strength of the Standing Committee once fixed cannot be varied. On a conspectus of the provisions of the Act and the Rules in regard to the constitution of the standing committees and the procedure thereof, J am of the view that there is no inhibition in varying the strength of the standing committee initially fixed. The only limitation is that it should not be less than three and that it should not exceed 5.

(G. Sivarajan, J.! -Chacko v. State of Kerala -2001 (I) KLT 67. Dt. 06/09/2001.

[1435]- S.191 & Panchayat Raj (Conduct of Public Works) Rules, 1997 (Kerala) -Committee constituted for the construction of a road - Chairman is only a figure head and the convener is the person who has to represent the committee in every matters Government interfering in the matter of appointment or removal of the Chairman is no! justifiable.

The guidelines, produced as Ext. P7 in the O.P. show that by the election as such, it does not become repository of any power. The Government apparently has equated it with a Standing Committee, An elected standing committee statutorily holds office during the entire tenure of the Panchayat Committee. But this is not at all the case here. Ext. P9 had the effect of upsetting the smooth functioning of a committee and the Government was not justified in issuing the order, without a mature consideration of all relevant aspects. (M. Ramachandran, J) -Ahamed Kutty v. State of Kerala - 2001 f 1) KLT 614. Dt. 06/12/2000.

[1436] — S. 220(b) - Construction of pillars within 3 metres of public road for providing support to approach road or bridge as entrance to building is permissible - Cannot be demolished.

In addition to the relaxation admissible to the existing buildings, by S. 7 of the amending Act, it has been provided that when a road or bridge or such constructions are carried out for the purpose of entry to any building, used as a part of the building, or in the manner of a weathershade or some shade, such constructions could be carried out within three meters limit. The Panchayat or the respondents have no case that the construction proposed is not for access as a bridge. The plan also shows the position. Taking into account this situation, when the petitioner claims that the construction was actually for entrance to the petitioner's building from the road, it could not have been objectionable. In this view, the Panchayat was in error in issuing Ext. P4 notice on 9.8.2000 and the follow up action resorting for the demolition of the two pillars could not have been treated as legal. (M. Ramachandran, J.) ~ Varghese Thomas v. State of Kerala - 2001 (1) KLT SN. 40 P. 38. Dt. 14/ 12/2000.

[1437] — S. 227 - Previous sanction of the Regional Transport Authority is to be obtained before any stand or halting place for motor vehicles is opened - Consultation with R.T.A. is mandatory

-

Motor Vehicles Rules, 1989 (Kerala), R. 344.

S.

227 of the Kerala Panchayat Raj Act points out that previous sanction of the Regional Transport Authority is to be obtained before any stand or halting place for motor vehicles is opened. Almost identical provisions are there in R.344 of the Kerala Motor Vehicles Rules. However, it will be appropriate that the legal formalities are complied with and a permanent arrangement is brought about.

Consultation with R.T.A. appears to be mandatory. (M. Ramachandran, J.) ~ Abdurahiman v. Vengara Grama Panchayat - 2001

(2) KLT SN. 107 P. 85. Dt. 11/06/2001.

[1438] — S. 249(2) & Limitation Act, 1963, S. 29 - Suit for recovery of money due as balance amount towards supply of materials for reparing a road - Suit filed after six months after the expiry of one month's notice - Held that S. 29 of the Limitation Act applies as there was no specific recital in the agreement that S. 249 will apply with regards to limitation.

When the provision in the Act is examined along with the principles laid down in the above said decisions, the view taken by the trial court appears to be more reasonable. For, normally a contractor like the respondent, unless a specific recital is included in the agreeinent quoting the relevant provision of section in the Act, particularly with reference to the limitation, cannot be expected to know that for this transaction the general law of limitation shall not be applicable and a specific section in the Act is applicable. Nothing has been placed by the revision petitioner that the respondent was made understand at any point of time that in case of a controversy resulting in filing a suit, the limitation under S. 249 of the Act is applicable. In view of the above circumstances, particularly the principles of law extracted, I am of the view that the claim is not barred by limitation. (S. Marimuthu, J.) -Kumbdaje Grama Panchayat v. Abdul Khader - 2001 (1) KLT SN.91.

P.75. Di. 15/12/2000.
AIR 1928 Mad. 981; AIR 1938 Mad. 239; AIR 1979 SC 1144 & 2000

(2) KLT 827 - Relied on.

[1439] — S. 232 and R. 12 of the Licensing Rules - Application for license to put up a building to start a S.S.I, unit -No reference to Town Planning Dept. is required -Certified by the

Green Channel Committee as a non-polluting unit - No notification under S. 232 issued by the Panchayat - Application to be accepted or rejected within the deadline fixed under S. 233(3) of the Act.

Units using less power are exempted from local body licensing, if they are non polluting. See S. 233(4)(b) and proviso to sub-r. (c). The No Objection Certificate was required only if the unit was having an installed power capacity of 25

H.P. The Panchayat do have power to oversee the working of a unit if it in due course starts polluting. The matter has been enquired into by the Green Channel Committee when it had received the application. Panchayat has a duty to the 4th respondent as well, especially since she has come up with a project. Her application after processing ought to have been accepted or rejected, within the dead line fixed under S. 233(3) of the Act.fM. Ramachandran, J.) -N.S.S. Karayogam, Mevelloor v. Velloor Grama Panchayat - 2001(3) KLT SN 58 P. 43. Dt. 277 0672007.

[1440] — Ss.232 & 233 - If an entrepreneur produces sufficient positive certification from the competent authorities, then the Panchayat/President is liable to act on the same and issue permission/licence unless bound by valid policy reasons -Panchayat (Licensing of Dangerous and Offensive Trade and Factories) Rules, 1996 (Kerala), Rr. 6 & 12.When the Act provides for industrial use of a place in the Panchayat with licence and subject to conditions imposed in the licence with a view to protecting human life or health or property, is it open to the Panchayat or its President to arbitrarily refuse to grant permission/ licence by merely stating that it would be against the interest of the public. We are of the clear view that they are certainly not clothed with unbridled powers under the Act and Rules. The provisions of the Act under Ss. 232 and 233 read with the Rules are not too vague to be understood by ordinary man. Thus having understood from the statute what is prohibited and what is permitted and having taken steps in furtherance of what is permitted and what is not prohibited, the authorities cannot arbitrarily deny permission/ licence. That would amount to violation of Art. 19(l)(g), which is subject only to reasonable restriction. That reasonable restriction which is in fact a limitation on the enjoyment of a right shall not be arbitrary or excessive and beyond what is required in the interest of the public. The statutory indication under the Act and Rules in the matter of permission/licence is only that it shall not be offensive or dangerous to human life, health or property. Hence, if an entrepreneur produces sufficient positive certification from the competent authorities, then the Panchayat/ President is liable to act on the same and issue the permission/licence unless

bound by valid policy reasons. (K.K. Usha, C.J. & Kurian Joseph, J.) -Action Council v. Benny Abraham - 2001 (2) KLT 690 : 2001

(2) KLJ 120. Dt. 02/07/2001. 1996 (2) KLT 719- Clarified. AIR 1952 SC 17- Referred to

[1441] — S.238 - Action under S.238 has to be taken by the Panchayat Committee -Secretary of the Panchayat cannot invoke the powers under S.238.

In a Panchayat area ramnification of proceedings in such sensitive matter may be greater than in a city, and perhaps the legislature thought that the responsibility for such decision should rest in the collective body, and is not to be conferred on an individual who may not be conversant with local flavours. When a threat was spoken to arise in the Panchayat, it was imperative

that a decision is to be taken thereon. Appropriate orders should

be issued to the Executive authority to set right the situation,

The Secretary has no independent discretion, however. (M, Ramachandran, J.) -Thankamma v. Ezhumattur Grama Panchayat - 2001 (2) KLT 596. Dt. 11/06/2001.

[2250] — Panchayat Raj Act, 1994 (Kerala), S.7(4) & (6) - Newly constituted ward, constituted with parts of 3 wards all of which were reserved for ladies and Scheduled Caste - Is to be excluded while taking lot - Constitution of India, Art.243-D.

The contention of the Election Commission is that if more than 50% of a single reserved ward was in the newly constituted ward, then only it will be excluded. Such an interpretation is not warranted from the words used in the guidelines or considering the intention of the constitutional provisions. As far as the new ward is concerned, the entire population in this new ward was covered by three reserved wards and 100% population of the new ward was under reserved wards in the earlier election. Therefore, this ward has to be excluded while taking lots. (J.B. Koshy, J.)

-Suresh v. State of Kerala ~ 2000 (3) KLT 159 : 2000 (2) KU 672.

[2251] — Ss.10 & 10A - The function of the Election Commission in the matter of delimitation is adjudicative and not legislativeThe principles of natural justice will apply Natural justice.

No stretch of imagination can it be said that the power of delimitation exercised by the Election Commission is essentially a legislative function to which principles of natural justice will not apply. Accordingly, we repel the contention of the respondents based on natural justice and hold that the function of the Election Commission in the matter of de-limitation is adjudicative-and not legislative-to which principles of natural justice will apply. (K. Narayana Kurup & K.A. Mohamed Shaft, JJ.) -Kunhabdulla v. State of Kerala - 2000 (3) KLT 45: 2000 (2) KLJ

709 : AIR 2000 Ker. 376.

AIR 1995 SC 1512 - Followed. 1995 (4) SCC 611; AIR 1978 SC 851;

AIR 1972 SC 187 -Referred to.

[2252] — S.10A -S.10A of the Panchayat Raj Act, 1994 introduced by S.4 of Act 13/2000 is unconstitutional as violative of Art. 14

-See -Constitution of India, Art.14. (K. Narayana Kurup & K.A. Mohamed Shaft, JJ.) -Kunhabdulla v. State of Kerala -2000 (3) KLT 45: 2000 (2) KLJ 709 : AIR 2000 Ker. 376.

[2253] — S.34(l)(g) -Elected member having a subsisting contract in his name in respect of dewatering work in connection with a padasekharam arranged by Punja Special Officer, a Government Official - Cannot be said to be interested in a subsisting contract made with or any work being done for the Government.

There is no contract by the petitioner with the Government as envisaged under S.34(l)(g) of the Kerala Panchayat Raj Act. Admittedly, this is a contract for dewatering work which according to the petitioner is one with the Convenor of the Padasekharam Committee. According to the respondents, the Punja Special Officer was only a co-ordinator. The work was really to be done by the members of the Padasekharam Committee. The expenses have to be met finally by the individual cultivators. The work done is for the benefit of the members of the Padasekharam. Thus, it is not a work done for the Government. It is only a work done for certain private individuals who are holding wet land within a particular Padasekharam. (K.A. Abdul

Gafoor, J.) -Sebastian Joseph v. Devasia Antony - 2000 (1) KLT

712: 2000 (1) KLJ 414. [2254] — S.34(l)(g) -Objection regarding disqualification of candidate standing for election overruled by the Returning Officer - Order of the Election Commissioner is final as far as disqualification before the election is concerned. On appeal State Election Commission confirming the order - After the election the designated Court has no jurisdiction to go into the question. (Om Prakash, C. J. & J.B. Koshy, J.) -Sukumara Kurup

v. The Principal District Judge & Ors. -ILR 1999(l)Ker. 155. [2255] — S.34(l)(j) - All such disputes relating to pre-election disqualifications are to be dealt with by the Designated Court and not by the State Election Commission.

If post-election arrears are established the State Election Commission can disqualify him from membership whereas if preelection disqualification is established, he will be disqualified from contesting the election. There is no provision in the Act for among a reference to the State Election Commission when the question of pre-election disqualification is raised in an election petition. The obvious inference is that all such disputes relating to pre-election disqualifications are to be dealt with by designated Court and not by the State Election Commission. (M.R. Hariharan Nair, J.) -Antappan v. Asokan - 1999

(3) KLT 754. 7 998 (2) KLT 548 - Referred to,

[2256] — S.35(k) - S.35(k) to the extent includes and combines committee meetings and limiting the period of absence for disqualification to "if within the said period not less than three meetings have been held" is violative of Art.14 -Constitution of India, Art.14.

S.162(4) provides for an automatic inclusion of woman member to the Standing Committee. The meetings of the Panchayat shall be held at such intervals as may be prescribed under S.I61 of the act. Therefore, it is quite possible that the meetings of the Panchayat as well as the various committee meetings can be held simultaneously or even on a days with close proximity. The preamble to the Act states that the new Act is enshrined to establish a three-tier system for securing a greater measure of participation. A member who has been elected for a term of five years can be disqualified for absenting 15 days automatically. There is possibility of holding three meetings within 14 days as in this case. Unlike in a case of the legislature where they decide about the vacancy here the provision operates automatically and the Secretary informs the cessation of membership. This provides no opportunity to the member before the deprivation to put forth his justification for his absence or

non-absence. The only course is to go for an enquiry before the Election Commission under S,36(l) or restoration under S.37(l) of the Act. This, in my view, unreasonably and arbitrarily restricts the right of a member of a Panchayat. (P. Shanmugam, J.) -Mary John v. Vallathol Nagar Grama Panchayat- 1999 (1) KLT238 : ILR 1999 (2) Ker. 184 : AIR 1999 Ker. 161.

AIR 1991 SC 101; 1979 SC 1628; 1957 SC 628; 1980 SC 1789; 1981
SC 344; 1978 SC 597; 1974 SC 555; 1995 SC 2114; (1981) 4 SCC 335;
1952 SC 75 & 1964 SC 1781 - Referred to.

[2257] — Ss.36 & 37(2) - Remedies available under Ss.36 & 37(2)
are inconsistent remedies

-If a person chooses a remedy, he is estopped from invoking the
other relief.

When two inconsistent remedies are available to a person and he chooses one in preference to the other, he is clearly estopped by the principle of election from invoking the other relief on his failing to get relief in the approach he has chosen. It is clear that the petitioner having approached the Panchayat with an application for restoring his membership on the basis that he has incurred the disqualification under S.35(k) of the Act, he is estopped from later approaching the State Election Commission for determination of the question of his loss of membership on the basis that he has not incurred the disqualification. (P.K. Balasubramonyan & C. Sasidharan, JJ.)

-Rajan v. Kerala State Election Commission -1999 (3) KLT 601 :
1999 (2) KLJ 965 : AIR 1999 Ker. 399.

[2258] — Ss.36 & 37(2) - The principle of estoppel by election cannot be invoked in a case where the determination is sought by a person other than the member who is disqualified, even though the member himself may have applied under S.37(2) and it might be possible to apply the doctrine of election as against the member.

S.36 of the Act gives the right not only to the member sought to be disqualified but also to the other members of the Panchayat and even to a voter in the Panchayat. In the present case, applications under S.36 of the Act have been made before the State election Commission by two other members of the Panchayat. Of course they have also referred to the fact that the petitioner has himself moved the Panchayat under S.37(2) of the Act. But still, the fact remains that two other persons entitled to seek an adjudication under S.36 of the Act regarding the disqualification of the petitioner, have approached the State Election Commission for determination of the question whether the petitioners has incurred the disqualification under S.35(k) of the Act. It is a fact that what the petitioners before the State Election Commission are trying to establish is the fact that the petitioner has not incurred the disqualification when in a sense, the petitioner has himself accepted his disqualification by resorting to S.37(2) of the Act. But on the scheme of the Panchayat Raj Act, we are inclined to the view that the application by other competent persons under S.36 of the Act could not be rejected on the ground that the disqualified member himself has resorted to S.37(2) of the Act by seeking a restoration of his membership. (P.K. Balasubramonyan & G. Sasidharan, JJ,)

-Rajan v. Kerala State Election Commission - 1999 (3) KLT 601 ;
1999 (2) KLJ 965 : AIR1999 Ker. 399.

[2259] — S.37(2) - Act does not contemplate issuance of any show cause notice by the Secretary of the Panchayat to the member to whom intimation is given under S.37(2) about his having incurred the disqualification under S.3S(k).

The only adjudication that is contemplated is when that member or any other member of the Panchayat or a voter in the Panchayat, raises a dispute regarding that question before the State Election Commission by invoking S.36 of the Act. We are therefore, not able to accept the contention of learned counsel for the petitioner that the Secretary of the Panchayat could not have issued a notice to him straightaway under S.37(2) of the Act and before giving him an opportunity to show cause or to show that he could not be disqualified by virtue of the proviso to S,35(k) of the Act. The member has to seek such an adjudication

before the State Election Commission after the receipt of the notice under S.37(2) of the Act. There was no adjudicatory process involved, when a Secretary issues a notice in terms of S.37(2) of the Act. (P.K. Balasubramonyan & G. Sasidharan, JJ.)

-Rajan v. Kerala State Election Commission - 1999 (3) KLT 601 :
1999 (2) KLJ 965 : AIR 1999 Ker. 399.

[2260] — S.37(2) -Against an order for restoration of membership, no proceeding can be initiated before the State Election Commission.

The decision to restore or not to restore, is that of the Panchayat and it is in terms of a resolution of the Panchayat. At best, the same could be got rescinded by invoking S.191 of the Panchayat Raj Act and that power is vested in the Government. It cannot therefore, be held that the State Election Commission was not justified in holding that it had no authority to interfere with the resolution of the Panchayat marked Ext.P5,

refusing to restore the membership of the petitioner. (P.K. Balasubramonyan & G. Sasidharan, JJ.) -Rajan v. Kerala State Election Commission - 1999 (3) KLT 601 : 1999 (2) KLJ 965: AIR 1999 Ker. 399.

[2261] — S.79 - Drawing of lot when there is equality of votes -

S.79 is not ultravires of the Constitution and does not infringe
rights under Art. 19 - Constitution of India, Art.19.

S.79 of the Act springs into action when there is tie. It may be that the margin between two candidates at times will be too slender, but when there is a majority the defeated candidate may not be able to contend that in view of the slenderness of the margin of votes the mandate of the electorate was to see that he also should be given privileges equal to a successful candidate. The statute provides for a practical approach in the case of a tie whereunder lots are drawn and depending upon the out come a person is deemed to have got an additional vote. There might be an element of arbitrariness in the method suggested by statute. But life itself at times throws challenges, on the boarder lines of arbitrariness. I can see S.79 only as a piece of law, which is least objectionable, to come over a situation of impasse. The principle of casting vote is not alien to election; it is resorted to, so as to get across lawlessness. Lots, or spin of coin may decide the fate of an aspirant, but when circumstances conspire, the above is accepted as a democratic, civilised method. (M. Ramachandran, J.) -Padmanabhan v. State of Kerala2001(1) KLT 64.

[2262] — S.89(l) - Merely because the size of the signature and the colour of the inks or pens used are different, it cannot be held that the signature is not that of the challenging candidate

-Evidence has to be adduced.

There is no striking dissimilarity and merely because the size of the signature and the colour of the inks or pens used are different, it is not safe to find that the signature is not that of challenging candidate viz. the present first respondent. (M.R. Hariharan Nair, J.) -Vikraman Unnithan v. Koshy M. Koshy - 2000

(2) KLT 411 : 2000(1) KLJ 715. 1997 (1) KLJ 450 & AIR 1969 SC1024 - Referred to.[2263] — S.113

-Civil Revision Petition is maintainable against orders passed by the appellate Court/District Court in appeals filed under S. 113 of the Panchayat Raj Act - See -Civil P.C. 1908, S.115. (K.K. Usha & S. Marimuthu, JJ.) - Sushama v. Mercy Antony - (3) KLT 818 : ILR 1999 (3) Ker. 617 : AIR Ker.83 :1999 (2) KLJ 550.

[2264] — 8.155(2) & (4) - If there is any dispute regarding resignation, the same can be referred either by the President or the person who submits the resignation.

There is pre-condition to the sub-section (4) of S.155 that disputes can be referred only by the President. It can be referred by any person who is aggrieved, either by the President or by the person who submits resignation if he raise a dispute regarding resignation. Therefore, it cannot be contended that Election Commission has no jurisdiction to deal with such a petition under S.155(4) sent by the person who alleged to have sent the resignation letter. (J.B. Koshy, J.) -Annamkutty v. Baby - 2000 (3) KLT 18. [2265] — S.157 - No confidence motion -Validity - Written notice expressing want of confidence given in compliance with 5.157(2) Question of giving copies of notice not contemplated -Petitioners would have full opportunity to meet the motion - No violation of principles of natural justice - Permitting Officer authorised by Government to conduct or presiding the meeting of no confidence motion -Not illegal. Shanmugam,J.)-Jose Augustine

v. State of Kerala - AIR 1999 Ker. 293.

[2266] — 8.157(2) & (5) - No-confidence motion given to Deputy Director of Panchayat who was not an authorised officer authorised by the Election Commissioner is illegal and without jurisdiction - Decision taken in such meeting is invalid.

Since here the 'no confidence motion' was given to the Deputy Director of Panchayat who was not an officer authorised by the Election Commissioner, the submission of 'no confidence motion1 is illegal and without jurisdiction. Convening of a meeting by an officer authorised by the Government is also illegal and without jurisdiction in view of the Amendment Act. Therefore, decision taken in such a meeting is invalid and

cannot be taken into account. (J.B. Koshy, J.) -Retnamma v. State Election Commission - 2000 (2) KLT 584 : AIR 2000 Ker. 337.

[2267] — 8.157(6) & (13) - Obstruction by unruly mob to the holding of non-confidence meeting - 'Expression 'beyond human control' does not mean only 'Act of God' -The reference to 'not holding the meeting due to lack of quorum used in Sub-s.(13) is in respect of a meeting held under normal circumstances and not in a case whereby by deliberate action of one group, the other group is obstructed from attending the meeting resulting in lack of quorum.

If, members of the Panchayat are obstructed by force from exercising their right to attend the meeting of the Panchayat and/ or to exercise their right to vote in the, meeting, it would cut at the root of the functioning of the Panchayat. If the provisions of law are to be interpreted to sustain such undemocratic methods, it would certainly lead to failure of rule of law. (K.K. Usha & G. Sivarajan, JJ.) -Jacob Abraham v. State of Kerala - 1999 (1) KLT 225 : 1999 (1) KLJ 1 : ILR 1999 (2) Ker.

225.

[2268] --8.162(2) & Rules relating to Election of Members of Standing Committee & Chairman, Rr.6(3) & 7A(b) - Election of the members of the Standing Committee should only be proportional representation and not by single majority - Rules have to be read in conformity with the Act.

The election by proportional representation by single transferable vote means that the electorate is given the choice of preference to all the contestants. A reading of S. 162(2) and other provisions set out above gives no room for doubt that election to the vacancy should be held not separately but at the

same time and it must be by proportional representation by single transferable vote. If election is to be held separately it will be defeating the object of the proportional representation, whenever there is a vacancy. (P. Shanmugham, J.) -Viswanathan Master v. Lalitha Rajagopal - 1999 (1) KLT 57 : 1999 (I) KLJ 54 : ILR 1999 (1) Ker. 798 : AIR 1999 Ker. 89. [2269] — 8.162(2) (as amended) & 8.161(7)There is no inhibition in varying the strength of the Standing Committee initially fixed

-Only limitation is that it should not be less than three and
should not exceed five Panchayat Raj (Procedure for Constitution
and Power of Standing Committee) Rules, 1995 (Kerala), Rr.3 & 4.

The provisions of Rr. 3 & 4 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules, 1995, though provides for the constitution of standing committees and the election of members to be made at the earliest immediately after the constitution/re-constitution of the new Panchayat, does not state that the strength of the Standing Committee once fixed cannot be varied. On a conspectus of the provisions of the Act and the Rules in regard to the constitution of the standing committees and the procedure thereof, I am of the view that there is no inhibition in varying the strength of the standing committee initially fixed. The only limitation is that it should not be less than three and that it should not exceed 5.

(G. Sivarajan, J.)-Chacko v. State of Kerala - 2001 (1)KLT67. [2270] — Ss.166, 236 & Sch.3 - Fertillizer factory - Licence for setting up fertillizer factory - Powers of Village Panchayat -Panchayat deciding to issue licence subject to approval of District Medical Officer and Pollution Control Board - Respondent obtaining said approval -Permission for installation also give - Statutory appellate and revisional authority viz. Deputy Director and Government also passing orders affirming same -Such orders are justifiable on principles of promissory estoppel and legitimate expectation -Panchayat cannot take independent decision not to give licence in spite of statutory appellate and revisional orders. (P. Shanmugam, J.)~K. T. Muhammed v. Kurumannil Melemannil Abdhulsalam Haji - AIR 1999 Ker. 8.

[22711 — 8.179(4) - Government has power to transfer Secretary from one Panchayat to another - Power of Panchayat is only to request transfer of the service and cannot seek retention of Secretary.

5.179(4) makes it clear that the Government has power to transfer Secretary from one Panchayat to another. There is no fetter on that power. Second part of the section makes it clear that it is obligatory to the Government to transfer a Secretary, if

the Pachayat requests for that. That does not enable a Panchayat to pass a resolution that a particular Secretary shall be posted to that Panchayat and a particular Secretary shall be retained to that Panchayat. That is why the second part of the section makes it clear that "if such transfer is recommended by a resolution of the Panchayat". So, the power of the Panchayat is only to request the Government to take away the services of an unwanted Secretary and it cannot seek retention of its blue eyed boy as its Secretary. (K.A. Abdul Gafoor, J.) -Poruthissery Grama Pachayat

v. Director of Panchayats - 2000 (2) KLT 776 : 2000 (2) KLJ.

205.[2272] — Ss.181 & 176 -Government School teacher transferred to Panchayat - Cannot be said that her services have been lent to the Panchayat - President cannot conduct an enquiry, as contained in Sub-ss.(2) & (3).

The petitioner being a Government Schoo! teacher, is not working in any scheme, project or plan assigned or delegated to the Panchayat, as such school had not been transferred in terms of S.I76 as found above. Therefore, it cannot be said that the petitioner's service had been lent to the Panchayat. When her services are not so lent to the Panchayat, the President of the Panchayat cannot conduct an enquiry or make a report against the petitioner as contained in Sub-s.(2) thereof. Equally the Panchayat cannot impose any penalty, exercising the powers vested under Sub-s.3 thereof. On that reason also the action initiated by the President as well as the Panchayat against the petitioner is incompetent. (K. A. Abdul Gafoor, J.) -Sarada v. Nagalassery Grama Panchayat - 1999 (2) KLT 436.

[2273] — S.206 - The right to collect and remove sand is a 'profit a prendre' and has to be regarded as immovable property within the meaning of the T.P. Act & 8.3(26) of the General Clauses Act - Hence S.206 is attracted and the agreement has to be executed on stamp paper of the value of 5% of the total bid amount - T.P. Act, 1882, S.54 & General Clauses Act, 1897, 8.3(26).

The benefit to arise out of land is an interest in land and, therefore, immovable property. Hence the right to collect sand, to catch fish and carry fishing in specific portion of a pond or lake or river arises out of the use of the land, The right to collect and remove sand being a "profit a prendre", it has to be regarded as immovable property within the meaning of the Transfer of Property Act read in the light of S.3(26) of the General Clauses Act. In this case, a right to enter Panchayats' land and to take some profit of the soil or a portion of the soil itself was granted lo the petitioners. The right given is to take the soil from the land. Hence, the provisions of S.206 of the Kerala Panchayat Raj Act are attracted and the agreement has to executed by all the petitioners on a stamp paper of the value of 5% of the total bid amount. (A.R. Lakshmanan & S. Sankarasubban, JJ.) -Anandan v. Dy. Director of Panchayats - 2000 (1) KLT 1 : 1999 (2) KLJ 1026.

63 MLJ 587; ILR 13 Mad. 54; 1932 MLJ 587; AIR 1974 All. 473; AIR 1937 Mad. 656; AIR 1952 On. 116; AIR 1956 SCI7; AIR 1969 Mad. 346; AIR 1974 All. 473; AIR 1977 SC 2149 & AIR 1979 All, 310 -Relied on.

[2274] — S.231 -There is a ban on slaughtering of animals in any place in the Panchayat except in a licensed slaughter house - See -Panchayat Raj (Slaughter Houses and Meat Stalls) Rules, 1996 (Kerala), R.3. (G. Sivarajan, J.) -John Mathew v. Vechoochira Grama Panchayat - 1999 (3) KLT 243 : 1999 (2) KLJ 610 : AIR 2000 Ker. 65.

[2275] — Ss.234, 232 & 233 - Panchayath Raj (Licensing of Dangerous & Offensive Trades & Factories) Rules, 1996, R.3(b) -The power under S.234 includes the power to make provisions for an appellate forum relating to the granting of licences -Green Channel Committee is an appellate authority constituted under the rules -Application for licence has to be decided on its merits and not on the mere protest of the residents.

The Panchayaths are refusing to grant installation permission overlooking the decision of the Green Channel Committee in contravention of the instructions. According to him, a revision is available against the decision of the Green Channel Committee. Therefore, it is very clear that the Green Channel Committee is an appellate authority constituted, under the statutory rules.

The decision taken by the Green Channel Committee is binding on the Panchayath. (P. Shanmugam, J.) -Shanti Joseph v. Poyya Grama Panchayath - 1999 (1) KLT 695.

[2276] — S.271G - Appointment of a Judge of the High Court as Chairman of the Ombudsman will not adversely affect the independence of judiciary - Constitution of India, Hnd Schedule Part D Cl.ll.

It is here that the requirement of a person who is trained as a judge and has worked as a Judge assumes importance since it inspires confidence of the citizens who approach the Ombudsman with their grievances. In our view, therefore, no objection can be taken to a sitting or a retired Judge of the High Court accepting the office as the Chairman of Ombudsman. Indeed, it would serve the larger public interest if the Ombudsman is headed by a sitting or a retired Judge of the High Court. Without a Judge of the higher judiciary as the Chairman of the Ombudsman, it is unlikely that the findings recorded by the Ombudsman would achieve the desired public confidence and acceptance. The constitutional scheme envisages a Judge of the Supreme Court or of the High Court discharging functions other than court functions at the request of the President. No objection can, therefore, be taken to such a Judge discharging such functionsat the request of the President on the ground that it is likely to adversely affect the independence of judiciary. (A.V. Savant, C. J, & K.S. Radhakrishnan, J.) -Sreekumar v. State of Kerala-2000

(3) KLT 771. 1993 (3) SCC 723 • Referred to.

[2277] — S.271G - Appointment of seven members in the Ombudsman
cannot be said to be arbitrary.

Whether the institution of Ombudsman should consist of seven members or less is not a matter for this Court to decide. It is a matter within the realm of the Legislature's policy making depending upon the need for a particular number of members comprising the said institution. It is not as if the Legislature has acted arbitrarily in appointing seven members. The expert committee on decentralisation of powers - Sen Committee, has submitted a comprehensive report recommending the composition of seven members. In this view of the matter, it is not possible to accept the fourth contention in respect of the alleged disproportionate expenditure merely because of the institution comprising seven members. It is not possible to strike down a legislation merely because, though the legislation is valid, it is likely to be used for an unauthorised or a political purpose as contended by the petitioners. (A.V. Savon/, C. J. & K.S. Radhakrishnan, J.)-Sreekumar v. State of Kerala -2000 (3) KLT

771.

2993 (3) SCC 723 - Referred to,

[2278] — S.271(G)(9) - To the extent to which every member of the Ombudsman has been afforded the status of the Judge of the High Court of Kerala, under S.271(G)(9) is violative of Art.14 - Constitution of India, Arts.14 & 217.

Apart from the Judge of a High Court falling under Subs.(3)(a) of S.271 G, there are two other persons under Subs.(3)(b) who can be appointed as members, if they have held the post of a District Judge of that State. Under Sub-s.(3)(c) two shall be officers not below the rank of a Government Secretary. Under Sub-s.(3)(d), two shall be respectable and honest persons engaged in social service. If that be the composition of the seven member Ombudsman, it is not possible to accept the claim of

the respondents that all of them must have the status equal to that of a Judge of the High Court of Kerala. In our view, conferring such a status equal to that of a Judge of the High Court of Kerala on all the seven members comprising the Ombudsman will tantamount to treating unequals as equals and is, therefore, hit by the provisions of Art. 14 of the Constitution of India. To the extent to which every member of the Ombudsman has been afforded the status of the Judge of the High Court of Kerala, S.271(G)(9) will have to be struck down as violative of provisions of Art.14 of the Constitution. Hence, the words "shall have the status equivalent to that of a Judge of High Court of Kerala and" appearing at the beginning of S.271G(9) of the Kerala Panchay at Raj Act, 1994 are declared as unconstitutional being violative of the mandate of Art. 14 of the Constitution. (A.V. Savant, C. J. & K.S, Radhakrishnan, J.) -Sreekumar v. State of Kerala - 2000 (3) KLT771.

7995 (4) SCC 611 - Referred to.

[2279] — S.271H(1) - Providing the same procedure of removal as is contemplated under Arts.217(l)(b) & 124(4) for removal of a person appointed as a member of Ombudsman, if he was appointed while he was a Judge of a High Court, is arbitrary and hit by Art. 14 - Constitution of India, Arts.l4,124(4) & 217.

The three contingencies regarding the appointment of a Member falling under S.271G(3)(a) viz., a person who is or was a Judge of the High Court. The three contingencies are: (i) a sitting Judge appointed for a period of five years after which he ceases to be a Chairman of Ombudsman but continues to be a Judge of the High Court till he attains the age of 62 years or otherwise ceases to be a Judge as per Art.217(1) of the Constitution; (ii) a sitting Judge of the High Court appointed as Chairman of the Ombudsman and thereafter ceases to be a Judge of the High Court, but continues to be the Chairman of Ombudsman; and (iii) a retired Judge of the High Court appointed as Chairman of Ombudsman. The challenge before us was on the ground that all the three contingencies arising under Sub-cl.(a) need different treatment since the facts would differ and unequals have been treated as equals by making the same procedure applicable for the removal of a person, who is or was a Judge of the High Court and was appointed as a Member of the Ombudsman under S.27lG(3)(a). It is not possible to accept the respondents' contention that all the three contingencies/situations mentioned above can be treated in a like manner. In our view, treating these three situations in an identical manner, clearly smacks of arbitrariness and is, therefore, hit by the mandate of Art. 14 of the Constitution.

(A.V. Savant, C. J. & K.S. Radhakrishnan, J.) -Sreekumar v. State of Kerala-2000 (3) KLT

771.

[2280] — S.271H(3) - Providing the same conditions as are applicable for the removal of a Judge of a High Court for the removal of a member of the Ombudsman is treating unequals as equal and hence arbitrary - Constitution of India, Arts.14,124 &217.

For the removal of a member of the Ombudsman appointed under S.172G(3)(a), namely a Judge of the High Court, the procedure applicable for the removal of a Judge of the High Court as laid down in the Constitution will be applicable. However, for the removal of other members of the Ombudsman falling under Subels.(b), (c), or (d) of S.271G(3), suitable legislation would be

brought to provide for the procedure which will be similar to the one prescribed under the Judges (Inquiry) Act, 1968. We accept the statement made by the learned Advocate General on the basis of the above statement. Hence, the petitioners succeed on the third contention as well on the same analogy as indicated in para 13 and 14 above. (A.V. Savant, C. J. & K.S. Radhakrishnan, J.) ~ Sreekumar v. State of Kerala - 2000 (3) KLT 771.

Preamble of Kerala Panchayat Raj Act, 1994.

The preamble and the provisions of a statute no doubt assist the Court in finding out its objects and policy but its object and policy need not all strictly confined to ties preamble and the provisions contained therein:-Punjab Tin Supply Co.V.Central Government(1984) 1 SCC 206:AIR 1984 SC

87.
The object and reasons of the Act should be taken into consideration in interpreting the provisions of the statute in case of doubt. Doyapack Systems (p)Ltd.v. Union of India, (1998) 2SCC 782.

If the language of a provision is not clear, words have to be constructed in the light of the legislative scheme, the object and purpose of enacting the provision and the ultimate effect of adopting one or the other construction. Regional P.F.Commr v. Hariharan T.S (1971) 2 SCC68: AIR 1971 SC 1519. Statements of Objects and Reasons accompanying the Kerala Panchayat Raj Bill. 1.The objects and reasons give an insight into the background why the provision was introduced. Though objects and reasons cannot be ultimate guide in interpretations of statutes, if often-times aids in finding out what really persuaded the Legislature to enact a particular provision. Baharat Signh v. Nea Delhi Tuberculossi Centre (1986) 2 SCC

614.

2.The objects and reason of the Act should be taken into consideration in interpretation the provisions of the statute in case of doubt. Doypack Systems (P)Ltd v. Union of India (1988) 2 SCC 299:AIR 1988 SC 782.

3.If the language of a provision is not clear, words have to
be constructed in the light of the legislative scheme, the
object and purpose of enacting the provision and the
ultimate effect of adopting one or the other constructions.

Regional P.F Commr v. Hariharan T.S(1971) 2SCC 68:AIR 1971
SC 1519.

Definition.

'Cantonment' meaning of-The meaning of words in a particular context must be ascertained considering the subject matter and the nature of the context in which they are found. One has to ascertain the various shades of meaning of this word so as to find out a particular meaning to be attached to this word. The word can mean only this, in India a permanent military station-Narayanan v. State of Kerala-1990(2) KLT 412:1990(2) KLJ 566:AIR 1992 Ker 148.

"Provision", meaning of- Interpretation of statues-The true meaning of the word "provision" in the context is a section or series of sections forming a self-contained integral whole, even a parte of a section if it can stand by itself and satisfy this test. Sub-s(3) of S.1 provides for conditional legislation, and it is well-recognised that conditional or delegated legislation must conform witht the legislative intent as disclosed by the statute and must not run counter to it. In particular, it must not effect any change of policy or any essential change in the Act regarded as a whole.- Saidu Muhammed v,

Bhanukuttan, Exceutive Officer, Chavara Panchayat- 1967 KLT 947 FB:ILR 1967 (2) Ker 705.

Part of public road-Admission by Panchayat cannot confer right of ownership or possession on any private persons- The three cents lying on the side of the road, as identified by the Commissioner in his plan, are part of the "public road". No amount of admission by the Panchayat or any number or resolutions passed by it can confer right of ownership or possession on any private person in respect of such property. -Spl.Officer.Thrikkarpur Panchayat v. Beepathumma-1987 (1) KLT Sn.6.P.4. Incorporation and administration of Panchayats

A Panchayat is competent to file an original petition under Ar.226 when any of its legal right is infringed by the authorised including the Government- Constitution of India, Art.226-Karunagappally Grama Panchayat v. State of Kerala 1996(1) KLT 419:1996(1) KLJ 331:ILR 1996(2) Ker.522. Composition of Village Panchayat.

Panchayat Election -Reserved ward-Selection-Drawing of lots- Ward newly created having more than 50% population under reserved ward in previous year is to be excluded-Therefore, newly created ward whose entire population was covered by three reserved wards and whose 100% population was under reserved ward in earlier election- Is to be excluded while taking lots for selection-C.R.Suresh v.State of Kerala & Others -AIR 2001 Ker

174.

Newly constituted ward, constituted with parts of 3 wards all of which were reserved for ladies and Scheduled Caste- Is to be excluded while taking lot- Constitution of India, Art 243-D - The contention of the Election Commission is that if more than 50% of a single reserved ward was in the newly constituted ward, then only it will be excluded. Such an interpretation is not warranted from the words used in the guidelines or considering the intention of the constitutional provisions. As far as the new wars is concerned, the entire population in this new ward was covered by three reserved wards and 100% population of the new ward was under reserved wards in the earlier election. Therefore, this ward has to be excluded while taking lots.[S.7(4) &(6)]-Suresh v. State of Kerala -2000(3) KLT 159:2000(2) KLJ 672.

Review of final orders by State Election Commission.

Ss.10&10A- The function of the Election Commission in the matter of delimitation is adjudicative and not legislative-The principled of natural justice will apply -Natural justice-Kunhabdulla v.State of Kerala-2000(3) KLT 45:2000(2) KLJ709:AIR 2000 Ker.376.[AIR 1995 SC 1512- Followed.1995(4) SCC 611:AIR 1978 Sc 851:AIR 1972 Sc 187- Referred to.]

S.10A of the Panchayat Raj Act, 1994 introduced by S.4 of Act 13/2000 is unconstitutional as violative of Art,14-See-Constitution of India, Art-14 Kunhabdulla v.State of Kerala2000(3) KLT 45:2000(2) KLJ709:AIR 2000 Ker.376.

Inclusion of names in electoral rolls.

Ss.24 &36 There is hardly any scope for a Court to intervene and correct the electoral rolls under Art.226 after the election notification - There can be inclusion of names in the electoral roll after the last date for making nominations for an election in a constituency -See-Constitution of India, Art.226 &243-O(b)-State Election Commission v.Krishnan- 2001 (1) KLT 285.

Disqualification for failure to lodge account of election
expenses.

Election of Panchayat -disqualification of members from contesting election -Ground of failure to submit accounts of election within prescribed time- No evidence produced by him showing submission of accounts within time -His name was published in official Gazette disqualifying him from contesting election for six years- However he did not file any objection or challenged the matter-Challenge made by member on issuance of election notification-Thus no interference could be made especially regarding submission of nomination- More so when it is in preview of Election Commission and Returning Officer.-Suresh Kumar P.S alias Suresh v.Elelction Commissioner, Thiruvananthapuram & others- AIR 2001 Ker 81.

Disqualification of candidates.

There is no contract by the petitioner with the Government as envisaged under S.34 (1)(g) of the Kerala Panchayat Raj Act, Admittedly, this is a contract for dewatering work which according to the petitioner is one with the Convenor of the Padasekaram Committee. According to the respondents, the Punja Special Officer was only a co-coordinator. The work was really to be done by the members of the Padasekaram Committee. The expenses have to be met finally by the individual cultivators. The work done is for the benefit of the members of the Padasekaram. Thus it is not a work done for the Government. It is only a work done for certain private individuals who are holding wet land within a particular Padasekaram-Sebastian Joseph v. Devasia Antony-2000(1) KLT 712:2000(1) KLJ 414.

S.34 (1)(g)-Objection regarding disqualification of candidate standing for election overruled by the Returning Officer- Order of the Election Commissioner is final as far as disqualification before the election is concerned. On appeal State Election Commission confirming the order-After the election the designated Court has no jurisdiction to go into the question.- Sukumaran Kurup v. The Principal District Judge & Ors -ILR 1999(1) Ker.155.

S.34 (1)(j)- If post-election arrears are established the State Election Commission can disqualify him from membership whereas if pre-election disqualification is established, he will be disqualified from contesting the election. There is no provision in the Act for among a reference to the State Election Commission when the question or pre-election disqualification is raised in an election petition. The obvious inference is that all such disputes relating to pre-election disqualifications are to be dealt with by designated Court and not by the State Election Commission -Antappan v. Asokan -1999(3) KLT 754.[1998(2) KLT 548Referred to.]

Ss.34(2), 36& 89- when there is one and the same disqualification
before or after filing the nomination, then the decision of the
State Election Commission on the question of disqualification
shall be final under S.34(2) and designated Court will be
precluded from probing into the same disqualification once again

in the Election Petition.- Sukumarakurup v.District Judge-1998

(2) KLT 548.[Sukumarakurup v.District Judge 1997(1) KLT 649Overruled.-Mohinder Singh Gill v. Chief Election Commissioner 1978(1) SCC 405 N.P.Ponnuswami v. Returning Officer, Namakkal AIR(3) 1962 SC 64-Referred to.] Sc.34(2), 87,88 &102- Authority of the State Election Commission is in reference to the question whether the candidate is competent to contest whereas the jurisdiction of the election court arises after the election in reference to a returned candidate-Election Tribunal has jurisdiction to decide election dispute on the improper acceptance of nomination after the said question was decided by State Election Commission earlier at the time or receipt of nomination -Sukumarakurup v. District Judge1997 (1) KLT 649.[Overruled in 1998 (2) KLT 548]

Disqualification of members.

S. 35 (k) to the extent includes and combines committee
meetings and limiting the period of absence for disqualification
to "if within the said period not less than three meetings have
been held" is violative of Art.14-Constitution of India, Art.14-

S.162 (4) provides for an automatic inclusion of woman member to the Standing Committee. The meetings of the panchayat shall be held at such intervals as may be prescribed under s.161 of the Act. Therefore, it is quite possible that the meeting of the panchayat as well as the various committee meetings can be held simultaneously or even on a day with close proximity. The preamble to the Act states that the new Act is enshrined to establish a three-tier system for securing a greater measure of participation. A member who has been elected for a term of five years can be disqualified for absenting 15 days automatically. There is possibility of holding three meetings within 14 days as in this case. Unlike in a case of the legislature where they decide about the vacancy here the provision operates automatically and the Secretary informs the cessation of membership. This provides no opportunity to the member before the deprivation to put forth his jurisdiction for his absence or non-absence. The only course is to go for an enquiry before the Election Commission under S.36(1) or restoration under S.37(1) of the Act. This unreasonably and arbitrarily restricts the right of a member of a panchayat-Mary John v. Vallathol Nagar Grama Panchayat-1999 (1) KLT 238:ILR 1999(2) Ker.184: AIR 1999 Ker.161.[AIR 1991 SC 1010:1979 SC 1628:1957 SC 628:1980 SC 1789: 1981 SC 344:1978 SC 5r97:1974 SC 555:1995 SC 2114:(1981) 4 SCC 35:1952 SC 75 & 1964 SC 1781-Referred to.]

Determination of subsequent disqualification of a member.

Ss. 36&37(2) -When two inconsistent remedies are available to a person and he chooses one in preference to the other, he is clearly stopped by the principle of election from invoking the other relief on his failing to get relief in the approach he has chosen. It is clear that the petitioner having approached the Panchayat with an application for restoring his membership on the basis that he has incurred the disqualification under S.35(k) of the Act, he is stopped from later approaching the State Election Commission for determination of the question of his loss of membership on the basis that he has not incurred the disqualification.-Rajan v. Kerala State Election Commission-1999(3) KLJ965:AIR 1999 Ker.3999.

S.36 of the Act give the right not only to the member
sought to be disqualified but also to the other members of the

Panchayat and even to a voter in the Panchayat. In the present case, applications under S.36 of the Act have been made before the State Election Commission by two other members of the Panchayat. Of course they have also referred to the fact that the petitioner has himself moved the Panchayat under S.37(2) of the Act. But still the fact remains that two other person entitled to seek an adjudication under S.36 of the Act regarding the disqualification of the petitioner, have approached the State Election Commission for determination of the question whether the petitioner has incurred the disqualification under S.35(k) of the Act. It is a fact that what the petitioners before the State Election Commission are trying to establish is the fact that the petitioner has not incurred the disqualification when in a sense, the petitioner has himself accepted his disqualification by restoring to S.37 (2) of the Act. But on the scheme of the Panchayat Raj Act could not be rejected on the ground that the disqualified member himself has restored to S,37(2) of the Act by seeking a restoration of his membership- Rajan v.Kerala Election Commission- 1999 (3) KLT 601:1999 AIR 1999 Ker 399.

Restoration of membership.

Act does not contemplate issuance of any show cause notice by the Secretary of the Panchayat to the member to whom intimation is given under S.37(2) about his having incurred the disqualification under S.35(k)-Rajan v.Kerla State Election Commission-1999(3) KLT 601:1999(2) KLJ 965: AIR 1999Ker 399.

S.37 (2) -Against an order for restoration of membership, no proceedings before the State Election Commission- The decision to restore or not to restore, is that the Panchayat and it is in terms of a resolution of the Panchayat. At best, the same could be got rescinded by invoking S.1919 of the Panchayat Raj Act and that power is vested in the Government. It cannot therefore, be held that the State Election Commission was not justified in holding that it had no authority to interfere with the resolution of the Panchayat marked Ext.P5, refusing to restore the membership of the petitioner-Rajan v. Kerala State Election Commission-1999 (3) KLT 601:1999(2) KLJ 1965:AIR 1999 Ker 399. Presentation of nomination paper and requirements for a valid nomination.

S.52 Panchayat Raj- Conduct of Elections- Rules 35(2) (b) &47 (2) (c) and (d) -a vote will be invalidated only if it satisfies the requirements of the rules which speaks about invalidation -Any mark or writing in the ballot paper will not invalidate the vote. Mathai Yohannan v. Mathew Joseph &Ors- 1997

(2) KLJ 482:AIR 1998 Ker.106 [S.Sivaswami v. Malikannan, 1984(1) SCC-296- Relied on]

Disqualification for being an election agent.

Secs. 59&93 -Election Petition- Filling of Petition field after the period prescribed with a petition to condone the delay-Held-Sec. 5 of Limitation Act is not applicable-Hence delay cannot be condoned- Anandavally v. Trikaripur Grama Panchayat & Anr-2001 (1) KLJ 175. Equality of votes.

Drawing of lot when there is equality of Votes- S.79 is not ultravires of the Constitution and does not infringe rights under Art.19- Constitution of India, Art 19- The petitioner has only a right to vote in an election but in the matter of deciding as to who should represent a constituency or a ward the law prescribed the method which is easy and practicable and it cannot be treated

or termed as opposed to fairness. The petitioner's suggestion in this case is that a re-election may be ordered or both the candidates are to be declared as elected. It does not sound sensible. The petitioner's contention that his fundamental rights guaranteed under Art.19 of the Constitution of India stands violated also appears to be an empty, far fetched plea and has not been substantiated. There must be an element of arbitrariness in the method suggested by the statue. But life itself at times throws challenges, on the boarder lines of arbitrariness.S.79 is only as a piece of law, which is least objectionable, to come over a situation of impasse. The principle of casting vote is not alien to election; it is restored to, so as to get across lawlessness. Lots, or spin of coin may decide the fate of an aspirant, but when circumstances conspire, the above is accepted as a democratic, civilized method-Padmanabhan v. State of Kerala- 2001 (1) KLT 64:ILR 2001 (1) Ker.68.

S.79 is not ultravires of the Constitution and does not infringe rights under Art.19 -In case of equality of votes, S.104 does not apply. It needs no explanation that it is a provision contemplated in the exigency of no one getting elected to fill up the vacancy. The situations dealt with under Ss.79 and 104 of the Act are not the situations where none is elected. Those are situations where from among the candidates 'voted' who is to be selected as elected in the event of candidates securing equal number of votes, by adding one vote. Certainly the returning of a Meeting exercising a second or casting vote in the event of equal number of votes between the contesting candidates or rival contentions. Murali v. Returning Officer 2001 (1) KLT 854:2001(1) KLJ 693:ILR 2001(1) Ker 584:AIR 2001 Ker [2001(1) KLT 64Affirmed]

Election petitions.

Ss.87, 88&94- Orders of the Munsiff's Court while hearing an election petition under the Panchayat Raj Act are not revisable under S.115 -Civil P.C. 1908 S.115 Leela v. Pushpam1996 (2) KLT 350:1996(2) KLJ 229:ILR 1996(3) Ker.698.

Under the Constitution the Legislature is given power to constitute an authority to deal with dispute relating to panchayat election. The Legislature has enacted S.88 of the Act which provides that the 'Court' having jurisdiction to try and election dispute is the Munsiff's Court which is having jurisdiction over the Panchayat. The statute, carefully avoided conferring jurisdiction on any designated or notified Munsiff's Court with respect to any notified Panchayat which could have given rise to an argument that it is a person designated thus to try the election petition as a persona designata. When the Legislature in its wisdom designated the civil court to be the authority to exercise the jurisdiction to try the election dispute, by a process of interpretation, it cannot convert such a civil court into a Tribunal or a persona designata. When Art .243-O, by express provision excludes the power if review of the election process by invoking the power Art, 226 of the Constitution, we cannot by indirect means invoke the said power. Thus, the Legislature has conferred all the powers that of a civil court for the authority constituted under S.88 of the Panchayat Raj Act, 1994. Hence for these reasons we hold that the decision rendered in Leela v. Pusham (1996(2) KLT 350), with great respect, was not correctly decided. Merely because the appellate authority is a court subordinate to the High Court, it

would not follow that the original authority would be a court subordinate to the High Court, -Aisha Potty v Returning Officer- 2001(3) KLT 867:2001 (2) KLJ 767.[1998 (2) KLT 350-Overruled. CRP 287 of 2001&1997 (1) KLT 855 -Approved. 2001 (2) KLT 280:AIR 1978 SC851:1997(3) SCC 535:AIR 1961 SC 606 & AIR 1966 SC 1888-Referred to]

Presentation of petitions.

Any application field beyond the time prescribed in S.89 of the Kerala Panchayat Raj Act cannot be entertained. We may indicate we have to strictly interpret the provisions of an election statue especially in the matter of filling petition calling in question any election or challenging the result of an election, -Anandavally v. Ajitha- 2001 (3) KLT 758:2001 (2) KLJ 633[2000(3) KLT 551-Distinguished]

Election Petition should be presented by a candidate o by an electors-Presentation by counsel is not sufficient-The requirement that the Election Petitioner should take the full responsibility for what is averred in the Election Petition and consequently has also to attest each of the copies of the Election Petition to be served on the opposite side also emphasise the importance given by the Election Law to the participation of the Election Petitioner in the filling of the Election Petition. An Election Petition under S.89 of the Act has to be presented in person by a candidate at the election or by an elector. - Saraswati v. Kamala- 1997 (1) KLT 855:1997(1) KLJ 450 :ILR 1997 (2) Ker.848. [Sathya Narain v. Dhujaram AIR 1974 SC 1185; Charanlal Sahu v. Nand Kishor Bhatt AIR 1973 SC 2364:Sheodan Singh v. Mohan Lal AIR 1969 SC 1024: Ramanlal Premy

v. Shiv Pratab Singh ILR 1978 MP 569- Relied on].

S.89(1) -There is no striking dissimilarity and merely because the size if the signature and the colour of the inks of pens used are different, it is not safe to find that the signature is not that of challenging candidate. -Vikaram Unnithan

v. Koshy M.Koshy- 2000(2) KLT 411:2000(1) KLJ 71. [1997(1) KLJ
450 & AIR 1969 SC 1024- Referred to.]

S.89(1) &(2)- Attestation of copy of election petition-Need not be attested in all pages of all copies- Signing at the foot of last page of every copy as true copy amounts to substantial compliance of S.89(2) of the Act. Bindhu Vijayakumaran Nair v. Bindhu Rajappan -2001 (3)

KLT 155: 2001(2) KLJ-280 [1997 (1) KLT 697&1996(2) KLT 350- Dissented from 1999 (2) KLJ 283& 1999 (3) KLT 818- Followed 1991

(3) SCC 375- Referred to.]

S.89(2)-Election petitioner writing 'true copy' and signing on the foot of every page- It amounts to attestation and no particular form of attestation is prescribed in the Act or Rule- Not necessary to write 'certified to be a true copy of the petition'.-Appukuttan v. Bijukumar- 2001 (3) KLT 269:2001(2) KLJ 323:ILR 2001(3)Ker,283 [AIR 1964 SC 1027:1996(1) KLJ 591&1997 (2) KLT SN 67 Case 69- Relied on AIR 1984 SC 956- Distinguished.]

S.89(2) - If an election petition is field in violation of the form prescribed by the Act, that cannot be allowed to be withdrawn to enable the petitioner to file a proper petition in conformity with S.89 (2) -A petition under S,89 can be withdrawn only as per the provisions contained in Sc.108, 109&110- A petition field under S.89 should comply with all the requirements of that Section, that petition entails dismissal. It cannot be allowed to be comply withdrawn for enabling the petitioner to

file a proper petition in conformity with the provisions contained inS.89 (2) . Provision contained in S.89 (2) is too technical, but technicalities have to be strictly complied with by the petitioner, if the petition is to be taken to file. -Kaveri Amma v. Devaki -1996(2) KLT 189:1996(1) KLJ 845:ILR 1996(3) Ker, 258.

S.89 (2)- The requirement that every copy of the election petition should be attested by the petitioner under his own signature is mandatory- If the election petition is not in conformity with the form, it should be dismissed without going into the merits of the petition- Since the said requirements is meant to avoid possibly of tempering with the petition and to make the petitioner reasonable for what has been stated therein, the said requirement must be regarded as mandatory. Where a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right, that provision must be regarded as mandatory. Violation of mandatory requirements entails avoidance. Provision contained in S.89(2) of the Act deals with the form of the petition which is mandatory,- Kaveri Amma v. Devaki -1996 (2) KLT 189:1996(1) KLJ 845:ILR 1996(3) Ker,258.[Sharif -ud-Din v, Abdul Gani Lone AIR 1980 SC 3030-Followed.]

S.89(2) Election petitioner has t be attest copies of the election petition under his own signature to be true copies of the petition- The requirement that every copy of the election petition which is intended for service on the respondent should be attested by the petitioner his own signature is a mandatory requirements and the non compliances with that requirement should result in the dismissal of the petition. The copy to be served on the petitioner was actually served without the signature of the 1st responds. As it was served on the petitioner without the signature of the respondent he did not file the election petition in term of Selection 89(2) of the Act- Devaki v. Kaveri Amma- 1996 (1) KLT 130. [Sharif-ud-Din v. Abdul Gani Lone AIR 1980 SC 303:Kamalam v. Dr.A Syed Mohammed AIR 1978 SC 840 -Relied on Satya Narain v. Dhuha Ram & Other AIR 1974 SC 1185- Referred to.] Trial of election petitions.

As a condition precedent for amending an election petition, the person who approaches the election tribunal allege the particulars of any corrupt practice so as to enable the Tribunal to allow the particulars of any corrupt practices so alleged in the petition to be amended. Section 93(4) enables the Court to allow the particulars of any corrupt practice alleged in the petition to be amended in such a manner as may, in its opinion, be necessary for ensuring an effective and fair trial of the petition Azeez v. Krishnan 1996(2) KLT 540:1996(2) KLJ 211.

S.93 -Provisions of the Limitation Act are not applicable to an election petition- Delay in filling election petition cannot be condoned -It may also be relevant to note that in a matter of appeal it has been stated that even though such an appeal has to be filed within a period of 30 days of the date of the order, there is provision to condone the delay in filing the appeal at the Court. Here also there is no reference to the impact of the Limitation Act, but the jurisdiction has been conferred by the statutory provision itself. When the Kerala Panchayat Raj Act is a complete code in itself, import of the Limitation Act on the strength of the above decision is not warranted- Anandavally v

Ajitha-2001(1) KLT 211:AIR 2001 Ker 110.[AIR 1974 SC 480- Relied on. (2000) 5 SCC 355- Distinguished.]

S.93 &94 - The Court has got the discretion to allow the petitioner to pay the deficit court fee at any stage of he proceeding. S.94 of the Panchayat Raj ACt saya that the election petition shall be tried in accordance with the procedure applicable under the Court of Civil Procedure. It is S.93 of the Panchayat Raj Act that mandates the Court to reject an election petition at the threshold. That can be done only if the petitioner in this revision that the first respondent has not complied with any of the above provisions except on the first point already discussed.-Appukuttan v. Bijukumar-2001(3) KLT 269:2001 (2) KLJ 323:ILR 2001(3) Ker.283.[1983 KLT 551- Referred to.]

Recrimination when seat calimed.

The trial of the petition shall be deemed to commence on
the date fixed for the respondents to appear before the Court-

S.93 applies to the limit presented under S.99- The trial means an act of providing or judicial examination or determining of the issues including its own jurisdiction or authority in accordance with law or adjudging guilt or innocence of the accused including all steps necessary. Though S.93 is referable to sub-s(3) which enable is any candidate to implead himself, the same expression, viz."Commencement of trail" is used S.99. The first act necessary or essential to proceed with the trial will be form the date fixed for respondent's appearance. For the uniformity also, the same meaning should be given under S.99 also.-Damodaran v. Munsiff, Thaliparamba-1998(2) KLT 392

Grounds for declaring election to be viod.

S.22[corresponding to S.,102 of the Kerala Panchayat Raj Act, 1994] -Labelling of order in election petition as that of Court of Munsiff does not vitiate the order- It is true that the forum is described at the top of the order as the Court of the Munsiff. But the nature and effect of an order must be determined by its contents. The power exercised is the power conferred on the Munsiff under the Act and the Rules. Hence the order is not vitiated. Rajagopalan v. Raghavan -1983 KLT 509.

S.22[corresponding to S.102 of the Panchayat Raj Act,1994]-Recount allowable only on the face of mistake happening -There cannot be a recounting merely on the basis that there might be an error, or there being a chance of an error. The evidence should establish that mistake has in fact been committed by the Returning Officer or mistake has been committed in the matter of counting the votes before the court directs a recount. Narayanan

v. Muhammed -1982 KLT40.

Appeals.

S.113 -Civil Revision Petition is maintainable against orders passed by the appellate Court/ District Court in appeals filed under S.113 of the Panchayat Raj Act- Civil P.C 1908, S.115-Sushama v. Mercy Antony-1999 (3) KLT 818:ILR 1999(3) Ker 617.AIR 2000 Ker 83:1999(2) KLJ 550. Revision Petition maintainable from the decision of the District Court in an appeal filed under this section. Saraswati v. Kamala 1997(1) KLT 855.

Term of office members.

Corresponding to S.149 of the Panchayat Raj Act, 1994]- Constitutional validity -Constitution of India, Arts 213&226. Power of Governor to promulgate Ordinance-Effect of omission of

the proviso of the Kerala Panchayat Raj Act, 1960- Impact of direction of Court in interim order-In promulgating the Ordinance by virtue of the provisions contained in Art.213 of the Constitution, the power to exercised by Governor is the same as that if the State Legislature to make the laws. The Ordinance could not, therefore, de assailed as though it is an executive or administrative order of the Government. Secondly, the constitutional validity of an Ordinance could not be successfully challenged unless the promulgation thereof is without conforming to the requirements of Art.213 or is opposed to any other Article of the Constitution. Therefore, the attack mounted against the constitutional validity of the Ordinance on the ground that the Government did not take sufficient care and interest to complete the steps for conducting the election within the time specified in sub-section (2) of S.11 of Act,(Act 32 of 1960) is not sustainable. The Court cannot probe into the motive behind the exercise of the legislative power by the Governor so long as there is no lack of legislative competency, and the provisions are not opposed to the provisions of the Constitutions- Vasudevan & Others v. State of Kerala & Others-1985 KLT 344(F.B): AIR 1985 Ker 69:ILR 1985(1) Ker 583:(1985) 1 MCC 207.

Oath or affirmation by members.

There is pre-condition to the sub-section (4) of S.155 that disputes can be referred only by the President. It can be referred by any person who is aggrieved, either by the President or by the person who submits resignation if he raise a dispute regarding resignation. Therefore, it cannot be contended that Election Commission has no jurisdiction to deal with such a petition under S,.155(4) sent by the person who alleged to have sent the resignation letter.-Annakutty v .Baby-2000(3) KLT 18.

Functions of President and Vice-President.

S.156 (6) (b) enables the President of the Panchayat to take disciplinary action in case of dereliction of duty or on failure to comply with the lawful directions of rules and orders issued by the Panchayat Provision also enables the President to keep the officer under suspension. President can suspend any of its employees who are not gazetted officers. Government have also issued Kerala Panchayat Raj (Controlling of Officers) Rules, 1997.R.7 enables the Panchayat to impose penalty.R.8 enables the Panchayat to keep an officer under suspension. Aforementioned provision give ample power to the President of the Panchayat to keep a Government servant desputed to the Panchayat under suspension if he is below the rank of a Gazette Officer. -Director of Panchayats v. Krishnan-2001(2) KLT286: 2001 (1) KLJ

856.

Motion of no-confidence.

No confidence motion -Validity- Written notice expressing want of confidence given in complains with S.157(2) -Question of giving copies of notice not contemplated- Petitioner would have full opportunity to meet the motion- No violation of principles of natural justice-Permitting Officer authorised by the Government to conduct the presiding meeting of no confidence motion is not illegal.-Jose Augustine v. State of Kerala- AIR 1999 Ker 293.

S.157(2) & (5)- Since here the 'no confidence motion' was given to the Deputy Director of Panchayat who was not an officer authorised by the Election Commissioner, the submission of 'no confidence motion' is illegal and without jurisdiction. Convening of a meeting by an officer authorised by the Government is also

illegal and without jurisdiction. Convening of a meeting by an officer authorised by the Government meeting is invalid and cannot be taken into account. -Retnamma v. State Election Commission- 2000(2) KLT584: AIR 2000 Ker.337.

S.157 (6) & (130- Obstruction by unruly mob to the holding of non-confidence meeting- Expression 'beyond human control' does not mean only 'Act of God'- The reference to 'not holding the meeting due to lack of quorum used in Sub-s(13) is in respect of a meeting held under circumstances and not in a case whereby by deliberate action of one group, the other group is obstructed from attending the meeting right to attend the meeting of the Panchayat are obstructed by force from exercising their right to attend the meting of the Panchayat and /or to exercise their right to vote in the, meeting, it would cut at the root of the functioning of the Panchayat. If the provisions of law are to be interpreted to sustain such undemocratic methods, it would certainly lead to failure of rule of law. -Jacob Abraham v. State of Kerala-1999(1) KLT 225: 1999(1) KLJ 1: ILR 1999 (2) Ker

225.

S.157(12) as amended- Effect of amendment - Nine members participating in the vote of no-confidence - Five members voting in favour of the no-confidence motion- One half of the sanctioned strength is five and motion validly passed- In a Panchayat having a strength of 9 elected members, 5 members will constitute more then one-half of the sanctioned strength. That the interpretation that one-half of the sanctioned strength in the facts of this case would be five and more than five would be six, will no doubt do violence to the legislative purpose. After the amendment, the object of the provision is made unambiguous and certain. -Joseph Thomas v. State of Kerala- 1996(2) KLT927:1996(2) KLJ 692: ILR 1997(2) Ker 369. [The New Piece Goods Bazaar Co.Ltd. v. Commissioner of Income Tax AIR 1950 Sc 165- Referred to. Wahid Ullah Khan v. District Magistrate, Nainital AIR 1993 All 249- Relied on.]

Nine members participating in the vote of non-confidence- Five members voting in favour of the non-confidence motion and four members against the motion- Unless the motion has the support of six members, the motion cannot be said to be passed- Under S.157 (12) the support should be more than one-half of the elected members. In a Panchayat at having strength of 9 elected members, one-half of the elected members will be 5. More than one-half will come to 6. Hence, until the motion has the support of 6 members, the motion cannot be said to be passed. It could not be presumed that the word more was used by the legislature without any intention. The word majority is also absent in subs,.12. This interpretation is further strengthened by a reading of sub-s.13, which says that if the motion is not carried on by the majority as aforesaid, no further motion shall be received until or after six months. Thus, the intention appears to more than half of the members should support the motion. The word number is absent-Ambili v. Deputy Director-1996 (2) KLT 486:ILR 2997(1) Ker.399: AIR 1997 Ker.73.[Alexander v. Director of Panchayats and others 1971 KLT535:Wahid Ullah Khan v. District Magistrate, Nainital and others AIR 1993 Allahabad 249. Referred to Kurian v,Registrar 1994(2) KLT 202-Relied on.]

S.54(13) [corresponding to S.157 of Panchayat Raj Act, 1994]-Does not give any power or privilege to the President or the Vice-President to cling on to his office even after the no

confidence motion is carried with the requisite majority-Joshi v. Dy.Director of Panchayat-1994(2) KLJ 267.[M/s Doypack Systems Pvt.Ltd v.Union of India AIR 1988 Supreme Court 782-Referred to.]

S.54(2) [corresponding to S.157 of the Panchayat Raj Act, 1994]-Meeting for consideration of no-confidence motion adjourned being a public holiday-Does not bar a fresh meeting within six months from that date- There is no dispute that a meeting convened for consideration of a no-confidence motion shall be adjourned for any reason whatsoever. This is a provision intended to safeguard the interests of the movers of the resolution to see that the no-confidence motion is nor adjourned flippantly or for extraneous reason. But that does not mean that if the meeting is a adjourned unjustifiably or illegally, an immunity is conferred on the

President or the Vice President by barring a fresh meeting for another six months from that date. In fact it will be doing violence to the language of S.54(140 to read such a bar therein. What the subsection provides is only that if the motion is not carried by a majority as prescribed in sub-s(13) or where the meeting cannot be held for want of quorum, any subsequent motion of no-confidence shall not be taken up for consideration, for a period of six months-Narendran v. State of Kerala-1992(2) KLT

213: 1992(2) KLJ (NOC) 8.P6: AIR 1994 Ker 54:ILR 1992(3)
Ker.441:1994(1) Cur LJ 554.

In a Panchayat having strength of 9 elected members, five will constitute more than one half of the sanctioned strength. Joseph Thomas v. State of Kerala 199692) KLT 927:ILR 1997 (2)

369.

Standing Committees.

S.162(2) (as amended) & S.161 (7)-The provisions of Rr.3 and 4 of the Kerala Panchayat Raj (Procedure for Constitution and Power of Standing Committee) Rules 1995, though provides for the constitution of standing committee and the election of members to be made at the earliest immediately after the constitution/ reconstitution of the new panchayat, does not state that the strength of the Standing Committee once fixed cannot be varied. On a conspectus of the provisions of the Act and the Rules in regard to the constitution of the standing committees and the procedure therefore, it is viewed that there is no inhibition in varying the strength of the standing committee initially fixed. The only limitation is that it should not be less than three and that it should nor exceed 5. -Chacko v. State of Kerala-2001(1) KLT 67.

S.162(2)& Rules relating to Election of Members of Standing Committee & Chairman, Rr6 (3)& 7A(b)-The election by proportional representation by single transferable vote means that the electorate is given the choice of preference to all the contestants. A reading of S.162 (2) and other provision set out above gives no room for doubt that election to the vacancy should be held not separately but at the same time and it must be pay defeating the object of the proportional representation, whenever there is a vacancy. -Viswanathan Master v. Lalitha Rajagopal-1999 (1) KLT 57: 1999(1) KLJ54:ILR 1999(1) Ker 798:AIR 999 Ker89.

S.162-lady member elected Vice President of Grama Panchayat-President & Vice-President Ex-officio members of standing committee- Lady Vice President cannot contest for the seat reserved for women in the standing committee is not

maintained. Thus, a reasonable interpretation of the Rules prevents the Ex-Officio members from contesting again. I also rely on the legal maxim 'electa una via non datur recursus adalteram'- he who has chosen one way cannot have recourse to another. In this case, the third respondent had already become a member of the standing committee by another process. - Alicekutty

v. Kadambazhippuram Grama Panchayat- 1996 (2) KLT 203:1996(2) KLJ

121.

Constitution of Functional Committees.

By allowing the Ex-Officio members of contest again as members of the standing committee one will be negativing the principles of representations envisaged in the Act and Rules. Always attempt should be to see that the strength of the standing committee as mentioned in the Act& Rules in maintained. Alicekutty V.Kadambaxhippuram Grama Panchayat 1996(2) KLT 203.

Powers, duties and functions of Village Panchayat.

Ss.166,236Sch.3-Fertilixer factory-Licence for setting up fertilizer factory-Powers of Village Panchayat-Panchayat deciding to issue licence subject to approval of District Officer and Pollution Control Board- Respondent obtaining said approval-Permission for installation-Statutory appellate and revisional authority viz. Deputy Director and Government also passing orders affirming same-Such orders are justifiable on principles of promissory estoppel and legitimate expectation-Panchayat cannot take independent decision not to give licence in spite of statutory appellate and revisional orders. K.T.Muhammed v.Kurumannil Melemannil Abdulsalam Haji-AIR 1999 Ker.8. Even if the R.D.O has given permission for conversion of paddy field, Panchayat has a right to object to the same-It is evident from S.166(1) of the Act, it is the mandatory duty if every Village Panchayat to control unauthorised building constructions and land utilisation. Therefore, the Revenue Divisional Officer has a duty to consult the Panchayat.Therefore, the mere fact that Revenue Divisional Officer has given permission does not mean that Panchayat has no legal right to object to the conversion of paddy field-Manjapra Grama Panchayat v.State of Kerala-1996(2)KLT

719.

Vesting of Public roads in Village Panchayats.

S.62[corresponding to S.169 of the Panchayat Raj Act, 1994]- Trees standing in puramboke- Panchayat can cut and remove the land trees- The totality of rights specified in the classed of purambokes- roads and thodu purambokes mentioned in S.62, and river purambokes etc. mentioned in S.82- stood transferred to Panchayat concerned. The title to the tree standing in such land vested only in Panchayat and Government can have no right at all in respect of the said tree.-State of Kerala v. Kulakkada Panchayat-1998(1) KLT 115: 1998(1) KLJ 27.

Ss.62&82 [corresponding to S.169 &S.218 of the Panchayat Raj Act, 1994]-Vesting and transfer of road and thodu purambokes to panchayats-Effect of -Is an absolute transfer of all rights in favour of the Panchayat by virtue of amendment by Act.22 of 1967Land Conservancy Rule, 1964(Kerala), Rule 12 -The totality of the rights specified in the classes of purambokes roads and thodu puramboke mentions in S.62, and river purambokes etc. mentioned in S.82- stood transferred to the panchayats concerned. Vesting was only for purpose of management and maintenance formerly. It becomes an absolute transfer of the totality of all rights in favour of the Panchayat by virtue of the amendment affected by Act 22 of 1967. Consequently, respondents will not be entitled to proceed under the Kerala Land Assignment Act and the rules made

there under for assignment of the above puramboke lands in favour of any of the occupants. -Akalakunnam Panchayat v, State of Kerala- 1986 KLT 441:1986 KLJ 284 ILR 1986(2) Ker 196.

Ss.62, 63,64&82[corresponding to S.169 of the Kerala Panchayat Raj Act, 1994] -Vesting Meaning and connotation of -Cls(c) &(e) of S.82 appear to make a distinction between 'vesting' and the term 'belonging to'. The vesting contemplated by S.62 may not even be the vesting ownership. The word 'vest' has not a fixed connotation meaning in all that the property is owned by the person or authority in who it vests. The property may vest in title in possession or in a limited sense, as indicated by the context in which it may have been used in particular piece of legislation. - Executive Officer, Kavilampara Panchayat Ammad- 1969 KLT 90:1969 KLJ 126:1969 KLR 151. Vesting of community property or income in Village Panchayats.

Ss.64&149[corresponding to S.171&229 of the Kerala Panchayat Raj Act, 1994]- Vesting of property is only for purpose of management and administration- Ambit of right of panchayat to such properties. - The content and amplitude of the term' vest' are to be gathered from the context and from the purpose of the enactment.S.64 of the Act, which provides for' vesting' of communal property in the panchayat provides that the said vesting is to be administered by it, for the benefit of the villagers or holders aforesaid. The vesting of the property specified in S.64 of the Kerala Panchayats Act 32 of 1960 is not a 'vesting' in absolute ownership, but only one for the purpose of management and administration. But even so, the Panchayat seems to have a limited right or property in these lends, to enable to efficiently carry on the management and administration entrusted to it by the statue. - Tholur Panchayat v. District Collector, Trichur- 1967 KLT 722. Acquisition of immovable property required by the Panchayat.

S.65 [corresponding to S.178 of the Panchayat Raj Act, 1994]-'Free surrender' mentioned in proviso to S.65 can only be a gift in favour of the Panchayat -Does not exempt Panchayat from the provision of the T.P. Act and Registration Act-There is no provision in the Act exempting the Panchayat from the provisions of the Transfer of Property Act or Registration Act. If so, registration is also a necessary formality. "Free surrender", mentioned in the proviso to S.65, could only be a gift in favour of the Panchayat and it cannot be a new innovation, for which no other provision is made. The transfer in this case could be accepted as a gift capable of divesting and investing title only if the legal requirements for that purpose are satisfied. In this case, there is not even the evidence that there was a valid gift under the provisions of the Act and Rules. Appellant says that he only gave possession subject to certain conditions on the acceptance of which a deed has to be executed and registered, but these conditions are not fulfilled and hence he withdrew. Even if his case is not accepted, there is no evidence of any valid transfer by gift. There is no "free surrender" outside what is provided in the Act and Rules. In order to have a free surrender of gift of immovable property in favour of the Panchayat capable of making it the owner, there should be a document as provided in the Act and the Rules and there should also be compliance of the provisions of the Transfer of Property Act and Registration Act. Appellant was admittedly the owner and he did not divest himself of his title. He is entitled to recover possession on the

strength of his title. -John v. Thaikkad Panchayat -1990 (2) KLT 721:1990 (2) KLJ 769.

S.65 [corresponding to S.178 of the Panchayat Raj Act, 1994]-Acquisition of land by Panchayat -Can be acquired for functions under S.57(2) also-Is not restricted to duties under S.57(1)-The word 'imposed' in S.65 of the Act has to be read along with the words 'discharge of the functions' used in the same section having regard to the fact that the word 'functions1 is used in the heading of Chapter III and also in S.57(2) of the Act. The Legislature intended to give the same meaning to the said word in S.57 as well as in S.65 of the Act. The duties mentioned in S.57(l) may have priority over the various functions mentioned in sub-s.(2) of S.57. In so long as the activities of the Panchayat are functions falling within the S.57(2), it cannot be said that they are not functions 'imposed' on the Panchayat by the Act. The word 'imposed' cannot be strictly construed as being restricted to mandatory duties mentioned in sub-s.(l) of S.57. Further the provisions of the Land Acquisition Act enable the Government to acquire land for the use of Panchayat provided the purpose is a public purpose. It will be noticed that the various functions mentioned in S.57(2) are public purposes. - Kochuvarkey

v. State of Kerala -1991 (2) KLT 675 :1991(2) KLJ 771.

Ss.65, 57(1) & 57(2) [corresponding to S.178 of the Panchayat Raj Act, 1994]-Emergency provisions of S. 19 (4) of the Land Acquisition Act, cannot be invoked for purposes mentioned in S.57(2) - Purposes mentioned in S.57(2) will not justify a request for invoking S. 19 (4) of the Act. - Dr. Noor Mohammed v. Dist. Collector-1981 KLT816.

Appointment of Secretaries.

S. 179(4) makes it clear that the Government has power to transfer Secretary from one Panchayat to another. There is no fetter on that power. Second part of the section makes it clear that it is obligatory to the Government to transfer a Secretary, if the Pachayat requests for that. That does not enable a Panchayat to pass a resolution that a particular Secretary shall be posted to that Panchayat and a particular Secretary shall be retained to that Panchayat. That is why the second part of the section makes

it clear that "if such transfer is recommended by a resolution of the Panchayat". So, the power of the Panchayat is only to request the Government to take away the services of an unwanted Secretary and it cannot seek retention of its blue eyed boy as its Secretary. -Poruthissery Grama Pachayat v. Director of Panchayats - 2000 (2) KLT776:2000(2)KLJ 205.

Power of Government to lend the services of their officers and
employees to Panchayats.

Ss.181 & 176 - Government School teacher transferred to Panchayat -Cannot be said that her services have been lent to the Panchayat -President cannot conduct an enquiry, as contained in Sub-ss.(2) & (3) - The petitioner being a Government School teacher, is not working in any scheme, project or plan assigned or delegated to the Panchayat, as such school had not been transferred in terms of S.I 76 as found above. Therefore, it cannot be said that the petitioner's service had been lent to the Panchayat. When her services are not so lent to the Panchayat, the President of the Panchayat cannot conduct an enquiry or make a report against the petitioner as contained in Sub-s.(2) thereof. Equally the Panchayat cannot impose any penalty, excercising the powers vested under Sub-s.3 thereof. On that reason also the action initiated by the President as well as the

Panchayat against the petitioner is incompetent-Sarada v Nagalassery Grama Panchayat -1999(2) KLT 436.

Power of cancellation and suspension of resolution etc.

S.191 & Panchayat Raj (Conduct of Public Works) Rules, 1997 (Kerala) - Committee constituted for the construction of a road -Chairman is only a figure head and the convener is the person who has to represent the committee in every matters -Government interfering in the matter of appointment or removal of the Chairman is not justifiable.-AhamedKutty v. State of Kerala-2001 (1) KIT 614. Taxes, cess etc., which may be levied by Village Panchayat.

Ss.66 & 72 [corresponding to S.200 & S.207 of the Panchayat Raj Act, 1994]- Claim exemption from levy of tax on building -Proper procedure - The scheme of S.66 read with S.72 is such that the authority competent to levy building tax is bound to decide the issue whether or not the building sought to be assessed, is includible in any one of the exempted categories under S.72, before he decides to levy the tax. In short, an enquiry in the above line should be made before the tax was levied. An enquiry of this nature can be had only after notice to the affected party. -Rev. Sr. Baptista v. State of Kerala -1985 KLT 9:1985KLJ284.

S.66(3) [Corresponding to S.200 of the Kerala Panchayat Raj Act,1994-Panchayats (Service Taxes) Rules, 1962, Rr. 3 & 4 - Tax relating to street lighting - Validity - Constitution of India, 7th Schedule, item 46 in List II -The power granted under S.66(3) is controlled and guided by the wording of the section which indicates the purposes. Apart from that, the power is also circumscribed by the rules to be framed by Government which they have done. Therefore it cannot be said that there is any excessive delegation either. -E. K. Joseph v. Upputhara Panchayat-1968 KLT43.

S.66A [Corresponding to S.200 of the Kerala Panchayat Raj Act, 1994]-land cess assessment became final - In similar case assessment held unlawful by Court - Recovery proceedings can be challenged.-Cottanad Plantations v. Executive Officer- 1976 KLT

827 : ILR 1977 (1) Ker. 376.

S.66A [Corresponding to S.200 of the Kerala Panchayat Raj Act, 1994]-Owner-Levy of land cess - Whether lessees are liable to pay tax - It is not possible to read the term 'owner' in the provision in S.66A as referring to the person in occupation of the land. There cannot be a levy of cess against and an

obligation to pay by both. As the matter now stands the lessees are not liable to pay tax. -Cochin Malabar Estates v. Executive Officer-1975 KLT 102.

S.66A [Corresponding to S.200 of the Kerala Panchayat Raj Act, 1994]-Validity -Levy of land cess-Determination on the basis of capita value-Competency of State legislature-Tax on capital value of the assets when such assets consist also of agricultural land may fall within Entry 97 of List I of Constitution since it must be considered as a residuary power vested in the Parliament. If the tax happens to be one on capital value the State legislature is incompetent to enact such law. Merely because such capital value is taken as the basis for determining the quantum of tax leviable it does not become a tax on such capital value. -Cochin Malabar Estate v. Executive Officer-1975 KLT 102.

Ss.66A & 144 [Corresponding to S.200 of the Kerala Panchayat Raj Act, 1994]-Levy of land cess -Appeal from the

order of Assessment officer - Deposit of the amount demanded is not a condition precedent for presenting the appeal - Panchayat (Levy and Collection of Land Cess) Rules, 1971, R.7. -Cochin Malabar Estates & Industries Ltd. v. Executive Officer -1979 KLT

840.

Ss.66(4),71 & 151 [Corresponding to S.200 of the Kerala Panchayat Raj Act, 1994]-Imposition of duty on transfer of property -Rates not fixed by Government after the Act -Fixation of rate under repealed statutes if can be availed - Interpretation and General Clauses Act (1125, T.C.), S.23 -There is an enactment now imposing duty making provisions therein which are similar to those in some of the repealed enactments and introducing the provisions into the area where another statute repealed had not imposed any such duty. The effect of a repeal and re-enactment can be to unify and consolidate the law. The fact that the motive in passing the legislation is stated to be to unify and consolidate the law pertaining to particular institutions like the panchayats in the State does not necessarily lead to the conclusion that the statute is not a repealing and re-enacting one. Inconsistency must be not between the statutes under which the fixation was made and the statute that has been re-enacted, but it must be between the fixation and the provisions of the re-enacted statute. Though the Madras District Boards Act and the Madras Village Panchayats Act had fixed the maximum rate of 5%, the duty fixed is only 4%. This 4% is warranted by S.71 (l)(b) of the Act. So between the fixation and the provisions of the statute there is no inconsistency. -Varkey George v. District Registrar of Documents ~ 1964 KLT 740: 1964 KLJ 1065.

Property Tax.

[Corresponding to S.203 of the Panchayat Raj Act, 1994] -

Panchayats (Building Tax) Rules, 1963 (Kerala), R,4 -The

fixation of the tax on the basis of the capital value can be

adopted only when there is an 'opinion' by Executive Authority

that the gross annual rent of the building cannot be estimated -

Reasons for formation of 'opinion1 shall be recorded - That

'opinion' shall be formed on cogent materials because it may

result in adopting a different mode of fixation of annual rental

value in the case of buildings not ordinarily let. The 'opinion'

of the Executive Authority may sometimes adversely affect the

owner of the building. Therefore, the reasons for formation of

'opinion' shall be recorded by the Executive Authority before

proceeding to determine the annual rental value on the basis of

the capital value in the case of buildings not ordinarily let. -

Money Johnyv. State of Kerala-1997 (2) KIT 74: AIR 1998 Ker. 34

: 1997(2) KLJ 38. [K.B.Eapen v. Executive Officer 1973 KIT42 -

Referred to.]

Government is competent to issue guidelines to be followed by Executive Authority in the matter of fixing the rate of tax in general revision. -Vareed Poulose v. State of Kerala -1994

(2) KLT 21.

Ss.68 & 72( 1 )(f) [corresponding to S.203 & S.207 of the Panchayat Raj Act, 1994]-Imposition of building tax under S.68 on residential quarters attached to charitable hospitals established and maintained by a religious denomination does not violate rights under Art.26(a) of the Constitution- Constitution of India, Art.26(a) -What is guaranteed by Art.26(a) is the right of a religious denomination to establish and maintain

institutions for religious and charitable purposes. The

imposition of the tax in question is not in any manner

restrictive of the fundamental right of any person to establish

or maintain any institution. Imposition of this tax has no

direct effect on the establishment or maintenance of any

institution. If at all, it only erodes marginally the income

that may be derived from the activity carried on in the

institution. The effect, if any, is indirect, and is in any

event insufficient to be an infraction of the right under

Art.26(a). No person has a right to claim any exemption de hors

the statutory provision. The Explanation to the section is

specific in excluding residential quarters of doctors attached

to charitable hospitals from the purview of the exemption. -Fr,

Joseph v. Government of Kerala -1990(2) KLT 766.

Writ petition filed by Secretary Tax Payer's Association challenging revision of building tax of all the houses in a Panchayat -If maintainable - Constitution of India, Art.226 - In this case it is not one order that is challenged, all the orders passed against all the owners of the building are sought to be quashed. Such a petition cannot be justified under any public interest litigation. When a number of individuals are affected by an official act, they can. ordinarily bring a legal proceeding to challenge that only if all such persons join in the proceedings by name, except where the law confers upon them, a legal personality as a collective body such as an association which is incorporated by statute or formed under a statute. Apart from statutory exception, unincorporated associations cannot sue or be sued in their own name and only the members of such society jointly can bring a legal proceedings. -Porathissery Panchayat Tax Payer's Assn. v. Executive Officer 1989(1) KLT 849 :1989 (1) KLJ 664.

Disposal of revision - Failure to give reasons is violation of principles of natural justice - The Executive Officer is exercising a quasi -judicial function in determining the annual value of the buildings, and in disposing of the revision filed under R.7. The decision by a quasi-judicial authority without giving any reason in support of the same is one in violation of the principles of natural justice. - Kunju v. Executive Officer -1984 KLT 466 :1984 KLJ 470.

Ss.66 & 72(f) [Corresponding to S.203 of the Kerala Panchayat Raj Act, 1994]-Building tax and service tax -Exemption for charitable hospitals - The fact that an institution which is established with a charitable object and rendering charitable services to the public at large, is charging the cost of the services rendered by it in the case of persons who can afford to pay such charges, would not in any manner affect the charitable character of the institution. -Fr. Paul v. Executive Officer Kalloorkad Panchayat-1974 KLT 289.

S.68 [Corresponding to S.203 of the Panchayat Raj Act, 1994]

-Panchayats (Building tax) Rules (Kerala, 1963), Rr.6,7, 8,9& 11 -First assessment to building tax-Bills of demand under R.I I can be issued only after revision of assessment in accordance with Rr.6& 9 has been completed. -L. R. S. K. Ramarajv, Vandanmedu Panchayat-1966 KLT353 : 1965 KLJ 1083.

S.68 [Corresponding to S.203 of the Panchayat Raj Act, 1994]-Panchayats (Building Tax) Rules, 1963, R.4- Estate owners providing rent free quarters for staff- Levy of building tax - Mode of determining rental value-Building belonging to a class of buildings not ordinarily let-Requirement-Rent free staff quarters whether come under that category -What the proviso to R.4 says is, "any building of a class not ordinarily let", not, "any building nor ordinarily let". For a building to belong to a class of buildings not ordinarily let, there must be something in its structural

features that renders it unsuitable for letting. The fact that a

particular building is not, in fact, let or that there are no

similar buildings in the locality that are let is no impediment

to determining the rent at which the building can reasonably be

expected to be let. -Travancore Tea Estate Co. Ltd. v. Executive

Officer, Peermade Panchayat -1970 KLT 1003 : 1971 KLJ 293. Panchayats (Building tax) Rules (Kerala, 1963), R.4 Scope of Buildings not ordinarily let Buildings or hospital and pay-wards -Residential quarters for doctors and nursing sisters -Liability to tax - The buildings liable to tax are to be classified into two divisions, buildings of the class ordinarily let and buildings of the class not ordinarily let. If a building is so designed or constructed as to house a hospital, it may fall within the class of buildings not ordinarily let on the other hand, if the building is designed or constructed in such a fashion as to be residential building, it may fall with in the class of buildings ordinarily let, though the intention at the time of construction was not to let the building on rent. The building in which the hospital and the pay-wards are housed do not fall in the class of buildings ordinarily let. The buildings constructed as residential quarters for doctors and nursing sisters fall within the class of buildings ordinarily let and they should have been assessed on that basis. -K.E. Eapen v. Executive Officer-1973 KLT42:1972 KLJ 991:1973 KLR 15.

Relevancy of annual letting value fixed by the local authority in assessment under Income Tax Act - Prima facie the certificate of the local authority afforded evidence to sustain the contention of the assessee that the contract rent was in excess of the reasonable rent that could be excepted from the building. -George v. Commissioner of Income Tax-1973 KLT660: 1973 KLJ 773:92 ITR 137: 1973 KLR 615. Profession Tax.

Prosecution for non-payment of profession tax - Court before which prosecution is launched cannot sit in judgment over the validity, propriety or correctness of the amount- Same has to be challenged before the appropriate forum.- The Magistrate before whom the prosecution is launched, is not expected to sit in judgment over the validity of the bye-laws or resolutions on the basis of which the fee was levied or the correctness or propriety of the amount as demanded by the Panchayat. If those aspects are subjected to Magisterial scrutiny on the question of correctness and propriety, the working of the local bodies, would become difficult, which will amount to assumption of jurisdiction which the Magistrates are not having under the Act. -Jojo v. Executive Officer-2001 (2) KLT 929 : 2001 (2) KLJ NOC 40. [KLT13S & 1986 KLT 618 - Relied on. 1966 KLT 115 - Referred to.]

S.69 [corresponding to S.204 of the Panchayat Raj Act, 1994]-Non-resident Indian employed abroad owning rubber estate in Kerala - Is not liable to pay profession tax if it is not his principal occupation - One of the conditions for being assessed to tax for the calling of agriculture is that the person assessed must be earning his livelihood wholly or principally, by the pursuit of agriculture. -Najeeb Rawther v. Executive Officer 1995 (2) KLT SN.65 P.49.

S.69 [corresponding to S.204 of the Panchayat Raj Act, 1994]-' Aggregrate income' includes dearness allowance and other allowances -Under the provisions of Kerala Municipalities Act and Kerala Municipal Corporations Act, aggregate income shall not include allowances of various kinds referred to in the Explanation to S.I 10 of the former Act and Explanation to S.I 13 of the latter Act. S.69 of the Kerala Panchayats Act, however, does not have any such explanation. Panchayats can levy profession tax on the aggregate income inclusive of such allowances. -Thoshiba Anand L.W. Association v. Exe.Officer, Nedumbassery Panchayat-1985 KLT95 : 1985KLJ 115.

S.69 [corresponding to S.204 of the Panchayat Raj Act, 1994]-Does not confer arbitrary or unguided power - Is not violative of Art. 14 of the Constitution - There is nothing vague or unreasonable about the concept of aggregate income found in the statute and the Rules. Expression "aggregate income" has not been defined in any technical way. Therefore, it must receive its natural meaning, being total income from various sources. Maximum rates of tax are prescribed in the statutory rules leaving it to the

Panchayats to prescribe rates of tax subject to the maximum. Maximum tax prescribed is within the constitutional limits, prescribed under Art.276 of the Constitution. The provisions of the Kerala Panchayats Act or the Rules relating to profession tax are not arbitrary or confer unguided or absolute power on the Panchayats to assess income or levy tax. Law on the point is valid law for the purpose of Art.265 of the Constitution. -ThoshibaAnandL.W. Association v. Exe. Officer, Nedumbassery Panchayat-1985 KLT95 : 1985 KLJ 115.

S.69A [corresponding to S.204 of the Panchayat Raj Act, 1994]-Mode of recovery under S.69A is not in conflict with the mode of recovery under R.79 of the Central Rules - Central Government Accounts, Receipts & Payments Rules, R.79( 1) - The object, based on which both R.79 and S.69A are enacted, is the same, namely to recover from salaries/wages of the employees of Government, institutions etc., on account of profession tax levied under a State enactment. It is to accomplish this object the employer is empowered to recover the tax and pay it to the Panchayat. There is no conflict between R.79 of the Central Rules and S.69A of the Panchayat Act. Recoveries on account of profession tax can therefore, be sustained either under R.79 of the Central Rules or under S-69A of the Panchayat Act. -Narayanan v. State of Kerala -1990 (2) KLT412: 1990(2) KLJ 566: AIR 1992Ker.l48.

S.69A [corresponding to S.204 of the Panchayat Raj Act, 1994]-Recovery of profession tax from salary of Central Government employees - Laying down the procedure cannot be construed as a condition precedent for exercise of the power - Central Government Accounts, Receipts & Payment Rules, R.79( I)

- Narayanan v. State of Kerala-1990 (2) KLT 412:199$ (2) KU 566:
MR 1992 Kec.148.

S.69 (3) [corresponding to S.204 of the Panchayat Raj Act, 1994]-Not violative of Art. 14 of the Constitution on the ground that the expression "aggregate income" in the Municipalities Act, 1961 and Municipal Corporations Act, 1961 does not include dearness allowance & other allowances - Panchayats on the one hand and Municipalities and Municipal Corporations on the other cannot be regarded as equal institutions. They are institutions

of different kinds. If these institutions of different kinds are treated differently, particularly in the light of Art.40 of the Constitution and need to provide strong financial base for the Panchayats, it cannot be said that there is hostile discrimination. This is not a case of equals being treated unequally. -Thoshiba Anand L.W. Association v. Exe.Officer, Nedumbassery Panchayat -1985 KLT95:1985 KLJ 115.

Ss.69 & 74 [corresponding to S.204 & S.210 of the Panchayat Raj Act, 1994]-Levy of profession tax on employees -Demand notice should be preceded by notice under R.10 to employees -Service of notice to employer not sufficient -Panchayats Profession Tax Rules, 1963 (Kerala), Rr. 10 & 15 -The levy postulated under S.69 is possible only if it is made in accordance with the rules prescribed. S.74 provides for recovery of arrears of tax, cess etc. But before recourse can be had to that Section, there should be a proper levy. Notice had been issued to the employer of the assessee under Rule 15, but no notice was given to the assesses. The demand notice and the order following it are totally unsustainable in law, and in issuing the demand notice

the first respondent acted contrary to law, and, therefore, acted without jurisdiction. -Mathew v. Edathua Panchayat -1988

(2) KLT 329.

Effect of amendment of R.3( 1) - Takes effect from 17-5-1990 for the financial year 1990-91 and not from 1-4-1991 -Panchayats (Taxation and Appeal) Rules 1963, R.3-The resolution determining to levy a tax enumerated in the Act shall specify the rate at which any such tax shall be levied and the date from which it shall be levied. Before passing the resolution imposing a tax for the first time or increasing the rate of an existing tax the Panchayat shall publish notice as provided therein. By the amendment of the Rule, as far as the petitioners are concerned

the	maximum			tax	recoverable		from	them	was	reduced.		That
reduction			as	per rule came in			to effect o		n 17	5-1990. So		with
effect		from		that	date	the	petitioners		are	liable	to	pay

profession tax as per the amended Rule only. Panchayat cannot claim any amount exceeding the maximum rates prescribed as per rules as from 17-5-1990. Viewed in this light, the bar contained in 3rd proviso to R.3 of Taxation and Appeal Rules cannot be pressed into service in assessing a person to Profession Tax. Assessment to Profession Tax being half yearly, this proviso cannot have any effect. -Assainar v. State at Kerala-1991 (2) KLT 172:1991 (2) KLJ 285.

Notice under R. 10(1) is necessary - This is an important provision conferring some rights on and granting protection to the proposed assesses. It must necessarily be followed by the Executive Authority concerned. -Thoshiba Anand LW, Association

v. Exe. Officer Nedumbassery Panchayat -1985 KLT 95 : 1985 KLJ

115.

Individual notice if necessary in the case of an assessee who is an employee - All these are cases involving employees of different offices. Notices were issued under Rule 15(2) to all the heads of offices and statements were obtained from them. Assessments were only on the basis of those statements. Therefore noncompliance of Rule 10 cannot be taken as a defect in the prosecution. -Executive Officer v. Mohammed -1989 (1) KLT 360: 1989 KU 131 [Doubted in 1989 (2) KLT 599]

Individual notice under S.10 if necessary in the case of an assessee who is an employee of a company - The conclusion about a swift collection of tax soon after the collection of information from the employer without any other intervening exercise can, atleast in some cases, visit innocent persons with harassing but avoidable burden, A possibility of an honest mistake by an employer cannot be ruled out. The mistake can be easily cured if only an employee has some opportunity to know about it and offer his remarks to the local authority. -Legal Aid Committee for Profession Tax Payers v. State of Kerala1989(2) KLT 599. [1989 (I) KLT 360 & Crl A. 578, 586 & 587 of 1986 Doubted.]

Employees of a company issued notice under R. 10 intimating about information obtained from their employer and allowing them to inspect the register - Employees if can call upon the Panchayat to furnish details as a matter of right - They issued a fiat as it were, calling upon the executing authority to furnish them the details. The statute did not provide for the same. The clear implication of the Statutory scheme is that such a step is supremely redundant. It is a responsible authority, the pay master of the assessee, that furnishes the particulars relating to the professional income of the assessee. An opportunity to scrutinise the particulars is given to the assessee by a notice issued in that behalf. If the assessee does not avail of the opportunity, he has to suffer the consequences. The finalisation of the assessment and the issue of notice of demand would be fully justified in such circumstances. - Legal Aid Committee for Profession Tax Payers v. State of Kerala -1989 (2) KLT 599.

Panchayats Act, 1960 (Kerala) Ss.69 & 74 [Corresponding to

S.204 of the Panchayat Raj Act, 1994] - Levy of Profession tax on employees - Demand Notice should be proceeded by notice under R. 10 to employees - Service of notice to employer not sufficient -The levy postulated under S.69 is possible only if it is made in accordance with the rules prescribed. S.74 provides for recovery of arrears of tax, cess etc. But before recourse can be had to that Section, there should be a proper levy. Notice had been issued to the employer of the assessee under Rule 15, but no notice was given to the assesses. The demand notice and the order following it are totally unsustainable in law, and in issuing the demand notice the first respondent acted contrary to law, and, therefore, acted without jurisdiction. -Mathew v. Edathua Panchayat -1988 (2) KLT 329.

The resolution determining to levy a tax enumerated in the Act shall specify the rate at which any such tax shall be levied and the date from which it shall be levied. Before passing the resolution imposing a tax for the first time or increasing rate of an existing tax the Panchayat shall publish notice as provided therein. By the amendment of the rule, as far as the petitioners are concerned the maximum tax recoverable from them was reduced. That reduction as per rule came into effect on 175-1990. So with effect from that date the petitioners are liable to pay profession tax as per the amended rule only. Panchayat cannot claim any amount exceeding the maximum rates prescribed as per Rules from 17-5-1990. Viewed in this light, the bar contained in 3rd proviso to R.3 of Taxation and Appeal Rules cannot be pressed into service in assessing a person to Profession Tax. Assessment to Profession Tax being half yearly

this proviso cannot have any effect, -Assainar v. State of Kerala -1991 (2) KLT 172: 1991 (2) KLJ 285.

Panchayats Act, 1960 (Kerala) S.74 [Corresponding to S.204 of the Panchayat Raj Act, 1994] &Panchayats (Taxation and Appeal) Rules 1963 - Rule 26 - Omission to pay a liability barred by limitation whether constitutes an offence -In order to constitute the omission an offence under Rule 26 read with the second proviso to S.74 it must be of an amount "due by him" and the omission must be "wilful" also. A claim that has become barred by limitation without taking any effective steps for recovery cannot be said to be 'due' for the purpose of constituting an omission and as such an offence, even though law of limitation only bars the remedy and does not extinguish the right. The question of wilful omission can arise only after demand was made or distraint was attempted. -Executive Officer

v. Velayudhan Nadar -1988 (2) KLT138:1988(1)KLJ735.

Prosecution for non payment of licence fee -Court where prosecution is launched if competent to sit in judgment over validity of bye-laws prescribing licence fee -Question of quid pro quo if can be agitated before Criminal Court -The Magistrate before whom the prosecution is launched, is not expected to sit in judgment over the validity of the bye-laws or resolutions on the basis of which the fee was levied or the correctness or propriety of the amount. If those things are also subject to magisterial scrutiny on questions of correctness and propriety the working of the local bodies will become difficult. A collateral challenge of the levy or its quantitative or qualitatively propriety by way of defence in a prosecution without challenging the same before the appropriate forum cannot be entertained. Element of quid pro quo, apart from the question of its application and extend, is not a matter to be agitated when the assessee is prosecuted. -Executive Officer v. Vetayudhan Nadar - 1988 (2) KLT 138 : 1988 (1) KLJ 735.

Person engaged in agricultural operations whether liable to
profession tax - Agriculture if a calling - 'Calling' meaning of

- The word 'calling' is a word of very wide import and it means one's usual occupation, vocation, business or trade. It follows that the pursuit of agriculture is nothing else than the pursuit of a calling and a person who is engaged in agricultural operations is liable to profession tax under S.69 of the Act. -Velu v. Executive Officer, Erumayur Panchayat-1967 KLT 350: 1967 KLJ 443 : AIR 1968 Ker. 41: ILR 1967 (1) Ker. 474:1967 KLR486.

Person holding appointment within Panchayat -Working on deputation outside and reside outside- If liable to tax - A person who resides in one Panchayat and works for gain or holds appointment in another Panchayat, is liable to profession tax in both the Panchayats. In the instant case, there is no dispute that the first respondent held an appointment within the Panchayat area and that he was receiving his salary from that appointment. His case, therefore, clearly fell under S.69(l) (ii)(a) and he is liable to assessment. -Vadakkarapathy Panchayat v. Kumara Menon - 1978 KLT 322.

Registered society conducting hospital - Calling - Scope -Society being a person it has to be held that Society was exercising a calling in running the hospital. -Knanaya Medical Mission v. State of Kerala-1972 KLT 102.

'Person' -Food Corporation of India whether a 'person' liable to pay profession tax - Sub-s.(6) of S.69 makes it clear,

beyond doubt that the legislature contemplated that, profession tax should be levied, under the said section, not merely from companies and natural persons but also from firms, associations. Joint Hindu families etc. Hence Food Corporation of India is liable to be assessed to profession tax. -Food Corporation of India v. Puthupariyaram Panchayat-1978 KLT 517 : ILR 1978 (2) Ker. 245.

Appellant Society running a hospital within Panchayat area - Whether liable to profession tax -The only question which is relevant for the purpose of this case is to find out whether the society intended to make or was making a profit from conducting the hospital. Since in this case the society has not proved that there was no intention to make or was making a profit from conducting the hospital. Since in this case the society has not proved that there was no intention to make profit or that no profit was actually made or that it was utilising the profit for augmenting the fund for the development of the hospital or earmarked it for the better running of the hospital itself, it has to be held that the society was carrying on an activity for profit, and therefore, transacting business within the Panchayat.

-The Kanaya Medical Mission v. State ~ ILR 1971 (2) Ker. 309.

Religious institution devoted to charitable work owning lands and getting these lands cultivated -If constitutes a 'calling' and liable to profession tax - Calling - Interpretation of - If the test to be applied is merely as to whether such an activity is in fact carried on and whether it has resulted in some benefit, or gain, monetary or otherwise, then all such incidental activities will be liable to be brought within the expression "calling". In the context in which the expression "calling" occurs in the said entry it has to be interpreted as meaning the principal occupation followed by a person for the purposes of earning his livelihood. It follows that the petitioner-Monastery cannot be regarded as exercising any profession, art or calling within the local limits of the Panchayat. -St. Mary's Monastery, Elthuruth v. Executive Officer Ayyanthole Panchayat-1971 KLT 567 : 1971 KLJ 556.

Levy of profession tax - Receiving rent not a business or
calling and is not an act within the meaning of the section. -

D. H. Namboodiripad v. Executive Authority, Thekkumkara

Panchayat -1970 KLT 1039:1970 KLJ 578. Pursuit of agriculture is a calling. - D. H. Namboodiripad

v. Executive Authority, Thekkumkara Panchayat -1970 KLT 1039 : 1970 KLJ 578.

Mere receipt of income from landed properties or from

investments -Liability to profession tax not attracted - The

mere receipt of income from landed properties or from

investments will not attract liability to profession tax. -St.

Mary's Monastery, Elthuruth v. Executive Officer, Ayyanthole

Panchayat - 1971 KLT567:1971KLJ556.

'Aggregate income' whether includes clearness allowance -The expression 'aggregate income' is, in relation to a salaried employee, comprehensive enough to take in every kind of emoluments received by the employee in connection with his employment. -MammedKoya v. Executive Officer-1979 KLT58.

Profession tax on 'aggregate income' including allowances -The expression 'aggregate income' in Municipalities Act 1961 and Municipal Corporations Act 1961 does not include dearness allowance -Whether provision is violative of Art.14 of the

Constitution - The mere fact that the fiscal policy subsequently formulated by the legislature, while providing for levy of profession tax by Municipalities and Municipal Corporations in later enactments happens to be not identical with the principles incorporated in the corresponding provisions of the Panchayats Act, will not render the provisions of the Panchayats Act violative of Art.14 of the Constitution. -Mummed Koya v. Executive Officer-1979 KLT 58.

S.69(4) [Corresponding to S.204 of the Panchayat Raj Act, 1994]-Profession tax due wholly paid by assessee to one of the Panchayats -Not liable to pay tax to another Panchayat for the same year. -Abraham v. Executive Officer, Peruvanthanam Panchayat ~ \ 966 KLT 115 :1965 KLJ 998 ; 1966 KLR 167. (Overruled in 1968 KLT 252).

S.69(4) & (5) [Corresponding to S.204 of the Panchayat Raj Act, 1994]-Scope, scheme and applicability- Interpretation of-On a reading of S.69 of the Act and in particular, of Sub-s.(5) thereof, a person who merely resides within the limits of one Panchayat without exercising any profession therein, but exercises a profession within some other Panchayat would be liable to pay only the amount of the tax leviable by the former Panchayat or the tax leviable by the other Panchayat whichever is higher. But, taking the cases together and the fact that the same person figures in both as the person taxed he would be liable to pay only the tax leviable by the Panchayat where he merely resided or the total of the taxes leviable by the other Panchayat (in each case of course, subject to the constitutional limit of Rs.250 per annum) whichever sum is higher. However if he was merely residing in one Panchayat but also was exercising a profession therein, that Panchayat and every other local authority within whose local limits he was exercising a profession would be entitled to tax him on the professional income earned within its limits. To such a case Sub-s.(5) would have no application. -K, K. Kuruvilla v. Executive Officer, Parathode Panchayat -1970 KLT61SFB; 1970 KLJ 781: AIR 1971 Ker.54.

Kerala Municipalities Act (1961), S. 110(4) - Scope and ambit - Levy of profession tax -Person residing in one Panchayat area paying to that Panchayat the maximum amount of profession tax - Liability to pay tax to other Panchayats within which he exercises a profession or transacts business - The fact that the respondent has paid the maximum amount of profession tax to the Panchayat, within whose limits he resides, does not affect his liability to be assessed by other Panchayats within whose limits he transacts business. If he was assessed by the former Panchayat purely on the basis of residence within its limits, the said assessments are wrong; that Panchayat can only get a share of the profession tax assessed by the other Panchayats, as apportioned by the Government under S.69(5) of the Act. If the assessments were made by the Panchayat on the basis of transaction of business within its limits, the said assessments are in order and there is no question of apportionment. -P. E. Elias, Executive Officer, Kumily

Panchayat v. K. V.Abraham -1968 KLT 252 : 1968 KLJ 463 : ILR 1968 (2) Ker. 112. (Partly Overruled in 1970 KLJ 781),

Person residing within the limits of one local authority having the properties in that area and in another Panchayat - Mode of assessing profession tax - Under S.69(5) of the Kerala

Panchayats Act, a person residing within the limits of one local authority and exercising his profession, art or calling or transacts business or holds any appointment within the limits of any other local authority or authorities will not be liable to profession tax for more than the higher of the amounts of tax leviable by any of the local authorities. - Varkey v. Executive Officers, Cherthallai South Panchayat-1968 KLT SN. P.8.

Duty on transfer of property.

S.206 - The right to collect and remove sand is a 'profit a prendre' and has to be regarded as immovable property within the meaning of the T.P. Act & S.3(26) of the General Clauses Act -Hence S.206 is attracted and the agreement has to be executed on stamp paper of the value of 5% of the total bid amount -T.P. Act, 1 882, S.54 & General Clauses Act, 1897, S.3(26) -The benefit to arise out of land is an interest in land and, therefore, immovable property. Hence the right to collect sand, to catch fish and carry fishing in specific portion of a pond or lake or river arises out of the use of the land. The right to collect and remove sand being a "profit a prendre", it has to be regarded as immovable property within the meaning of the Transfer of Property Act read in the light of S.3(26) of the General Clauses Act. In this case, a right to enter Panchayats' land and to take some profit of the soil or a portion of the soil itself was granted to the petitioners. The right given is to take the soil from the land. Hence, the provisions of S.206 of the Kerala Panchayat Raj Act are attracted and the agreement has to executed by all the petitioners on a stamp paper of the value of 5% of the total bid amount. -Anandan v, Dy. Director of Panchayats - 2000

(1) KLT 1 : 1999 (2) KLJ 1026. [63 MLJ587; ILR 13 Mad. 54; 1932 MLJ587; AIR 1974 All. 473; AIR 1937Mad. 656; AIR 1952 On. 116; AIR 1956 SC 17; AIR 1969 Mad. 346; AIR 1974 All 473; AIR 1977SC 2149 & AIR 1979 All. 310-Relied on.]

Exemption from Tax, Cess etc.

S.72(l)(f) [corresponding to S.207 of the Panchayat Raj Act, 1994 ]-Hospital letting out its building to Bank - Is not entitled to exemption - Mere fact that hospital indulges in charitable activities is no reason to claim exemption form building tax in respect of a building used for commercial purpose

-The building involved in the present case is used for carrying on banking operation and not as a charitable hospital or dispensary. In case where the legislature has intended to exempt buildings from payment of building tax on the ground that it is attached to places of worship etc. such intention is made explicitly clear by making a specific provision in that regard in the statute itself as is clear from the language used in S.72(I)(b) of the Act. Since the exemption provision, viz., S.72( 1 )(f) is confined only to charitable hospitals and dispensaries the appellant/Panchayat was right in rejecting the claim for exemption. -AikaranadGrama Panchayat v. Malankara Orthodox Syrian Church -1999 (3) KLT 212:1999 (2) KLJ 34: ILR 2000 (1) Ker. 84. [1949 (2) All.E.R. 155; AIR 1957 SC 657; AIR 1961 SC 1047; AIR 1975 SC 1492; 1990 SC 781 & 1995 (2) SCC 56 - Referred to.]

Building owned and exclusively used by nuns for worship and for education of nuns is entitled to exemption of tax -The places of worship, the places used for charitable purposes and the places used for educational purposes together with their ancillary attachments which can be understood as regards their use in the context of other purposes are also seen to be exempt under the provisions. There is no dispute that all these three

buildings which are the subject matter of taxation process are located and situated in a common compound. It will also have to be understood and appreciated that these three buildings are occupied by nuns and other students

who are educated in the process of future nunary. From the detailed aspects of the order of Executive Officer it is seen that there is a public prayer and public worship. There is also a mass and in any judgment the word 'public' would have to be meaningfully understood as related to section of the public, cross section of the public where with reference to that cross section admission is free. In understanding the application of the provision of the section the court cannot loose sight of the fact that it is an educational process administered to nuns for the purpose of future nunary. The entire institution and the buildings located in the compound in question would have to be understood as such in the context of the spirit of understanding of the above provisions. -St. Liobha Bhavan v. Kodakara Panchayat -1996 (1) KLT 304. [Chakravarthy Hostel v. Municipal Commissioner 1995 (2) KLT 588 -Relied on. ]

Hostels attached to dispensaries and hospitals are not exempted - The language employed in the explanation make it clear that a building used as hostel attached to schools and colleges also is exempted from tax. This connection however, has not been extended to hostels attached to dispensaries and hospitals. - Superior, Asha Bhavan v. State of Kerala -1991 (1) KLT 244.

S,72(1) Explanation [corresponding to S.207 of the Panchayat Raj Act, 1994]-Is not violative of Art. 14 of the Constitution - Constitution of India, Art. 14 -It is for the legislature or the taxing authority to determine the taxing policy. Granting of exemption from tax is part of the taxing policy. Courts cannot review the wisdom or expediency of a tax because the court is unconcerned with the policy of legislation so long as the same is not inconsistent with the provisions of the Constitution. However, where there is transgression of the legislative power in levying the tax the same will be corrected by the Judiciary and not otherwise, although taxes may be and often are oppressive, unjust and perhaps may be said to be unnecessary. But this would not constitute the reason for Judicial interference. The Explanation is not discriminatory or violative of Art, 14 of the Constitution. -Superior, Asha Bhavan

v. State of Kerala-1991 (1) KLT 244.

S.72(l)(b) [corresponding to S,207of the Panchayat Raj Act, 1994]-Auditorium attached to a temple used for marriage and drama -Does not come under exemption in S.72( l)(b) - It is common ground that the auditorium is attached to the place of public worship. It is not one used for residential purpose. It is one used for "other purposes". If those "other purposes" are connected with "public worship" then and then alone can the building be exempted from tax liability. So, if the auditorium is to be exempted from tax liability, that should have been put to "other purposes" connected with the public worship. The said building cannot come within the purview of sub-clause (b) of clause 1 of S.72 of the Act and hence is not to be exempted from the tax liability under S.66 of the Act. -Secretary, Ochira Temple Administration Board v. State of Kerala & others -1987

(2) KLT 599.

S.72(l )(c) [corresponding to S.207 of the Panchayat Raj Act, 1994]-Sathram belonging to temple rented out to devotees -

Matters to be considered in granting exemption -Exemption under

S.I l(l)(c)of Income Tax, Act, 1961 is a relevant factor -The exemption from the Income Tax Act is a relevant matter to be taken note in granting the exemption. But that fact by itself may not exempt all buildings belonging to the petitioner from liability as per S.72 of the Act. For the Sathram building to be exempted from the tax liability the petitioner should establish that the income derived from them by way of rent is being used exclusively for charitable purpose. If the predominant object is to carry out a charitable purpose and not to earn profit, the purpose would not lose its charitable character merely because some profit arises from the activity. -Secretary, Ochira Temple Administration Board v. State of Kerala & others -1987 (2) KLT

599.

S.72( 1 )(d) [corresponding to S.207 of the Panchayat Raj Act, 1994J-Building used as residence for students who undergo religious and college studies - Qualifies for exemption -The user is what is important and not the statutory recognition of the buildings as an educational institution. If, as a matter of fact, the building is dominantly used for educational purposes, it qualifies for exemption under S.72( 1 )(d). - Sr. Mariana v. State -1981 KLT 80.

Tenant running school entitled to exemption - What matters is the user of the building; if it is needed for educational purposes, it is eligible for exemption. The view that user by the owner of the building is alone exempted, and not user by a tenant, is not supported by the language of the statute. -Mathew

v. Executive Officer-1984 KLT310.

Charitable purpose - Exemption to hospitals claiming to be charitable institutions -From the mere fact that money is collected from patients a hospitals which is otherwise charitable, cannot cease to be charitable. Eleemosynary is not an essential element for a charitable institution. -Good Shephered Hospital Society v. Executive Officer-1973 KLT 348.

Recovery of arrears of tax, cess etc.

Amount due to the Panchayat even though it does not come within the category of arrear of cess, rate, surcharge or tax or fees levied under the Act can also be recovered in the manner provided in the rules for the collection of taxes under the Act.

-Suresh v. Executive Officer -1995 (2) KLT 75 ; 1995 (2) KLJ17.

Distraint can be executed in respect of the movables belonging to the debtor whether it is kept in rented building or in other building - However before launching prosecution it has to be proved that there was impracticability or impossibility in executing the warrant. -Executive Officer v. Abdul Rahiman -1998

(2) KLT 343.

Building of Panchayat given on lease - Arrears of rent can be recovered not under this Section but under the Rules -The lease is a lease granted under the Rules framed under the Panchayat Act. The Residuary Rule of 1962 regarding demanding amount due to Panchayats empowers the Panchayat to recover inter alia rents and other sums which under the Act or any other law or rules or bye-laws made thereunder are due to the Panchayat, in the manner provided in the rules for the collection of taxes if there is no special provision in the Act, or other law or rules

or byelaws for their recovery. -Rajan v. State -1983 KLT677 :ILR 1984(l)Ker.347.

Prosecution for non-payment of tax -Complaint praying that action should be taken under R.26 of Taxation and Appeal Rules Complaint not specifically averring that failure was wilful or there was wilful restraint - Sustainability - Generally speaking a complaint may allege the facts and disclose necessary ingredients of an offence. There may be cases where all the ingredients are not specifically disclosed, but the compliant may refer to the provision of law which renders the act or omission punishable as an offence. In such cases, the ingredients of the offence are implicit by the specific reference to the provision of law under which the act or omission is rendered punishable as an offence. Therefore the ingredients of the offence under Rule 26 of the Rules, though not specifically mentioned in the complaints, are implicit in the compliants. -Ramaswamy v. Executive Officer -1981 KIT 97.

Recovery of fee - Element of quid pro quo if necessary - Now a mere casual relationship between the fee and the services may be enough and it is not even necessary to establish that those who pay fee must receive direct benefit of the services rendered. General benefit from the authority levying the fee will satisfy the element of service required for collecting the fee. No

special benefit to the person making the payment need be established. -Executive Officer v. Velayudhan Nadar -1988 (2) KLT 138 : 1988 (1) KLJ 735.

S.74 [corresponding to S.210 of the Panchayat Raj Act, 19941-Prosecution only on the failure of the mode prescribed under S.74 - The executive authority can launch the prosecution only on the failure of the mode prescribed under S.74 of the Act. As the second proviso to S.74 postulates criminal prosecution only when distraint of the defaulter's property is found impracticable, the appellant has necessarily to establish that distraint of the property of the accused was found impracticable. -Executive Officer v. ChackoJoseph-1990(2)KLT87.

S.74 [corresponding to S.210 of the Panchayat Raj Act, 1994 ]- Prosecution by the Panchayat for realisation of amounts due by way of arrears of rent is maintainable - Rules regarding amounts due to Panchayats where there is no special provisions-Panchayats Taxation and Appeal Rules, 1963 (Kerala), R. 13 -Panchayats (Acquisition and Transfer of Immovable Property) Rules, 1963 (Kerala), R.9 - In cases where distraint and sale are allowed and the distraint become impossible under conditions laid down, prosecution is the inevitable consequence. Where distraint is allowed, prosecution is also permissible. Residuary Rules will have to be read along with the Acquisition and Transfer of Immovable Properties Rules. S.74 of the Kerala Panchayats Act is not end of the matter. Acquisition and Transfer of Immovable Properties Rules, the Residuary Rules and other provisions mentioned above, including the Taxation and Appeal Rules, will have to be read together along with S.74. By the Rules, the contractual obligation get converted into one due under the Rules and recovery by distraint and prosecution is the right of the Panchayat. Rent is now amount due under the Rules intended to be used for the purpose of the Panchayat. It will not be in consonance with the intention of the rule making authority to interpret and limit the scope of S.74 and the rules in a way to exclude recovery of rent from the provisions of the Act and Rule.

These provisions were introduced for the purpose of enabling the Panchayats to recover the amounts, at their option, by the process of distraint and prosecution, without resorting to courts of law. -Executive Officer v. Suresh Babu -1992 (1) KLT291: 1991 (1) KLJ 241 [1973 KLT 145, Crl.A. 320 & 335 of 1986 & Crl A. 256 of 1984 Overruled# 1983 KLT 677 Confirmed].

S.74 & Panchayats (Taxation and Appeal) Rules 1963 [corresponding to S.210 of the Panchayat Raj Act, 1994]- Rule 26

-Omission to pay a liability barred by limitation whether constitutes an offence -Panchayats (Taxation and Appeal) Rules, 1963 (Kerala), R.26 - In order to constitute the omission an offence under Rule 26 read with the second proviso to S.74 it must be of an amount "due by him" and the omission must be "wilful" also. A claim that has become barred by limitation without taking any effective steps for recovery cannot be said to be "due" for the purpose of constituting an omission "wilful" and as such an offence, even though law of limitation only bars the remedy and does not extinguish the right. The question of wilful omission can arise only after demand was made or distraint was attempted. -Executive Officer v. VelayudhanNadar-1988(2) KLT 138 : 1988(1) KLJ 735.

Ss.74, 96 & 109(6) [corresponding to S.210, 232 & 236 of the Panchayat Raj Act, 1994]-Prosecution for non-payment of licence fee - Magistrate can direct accused to remit chargeable fee -Absence of statement in the complaint that distraint warrant was issued-Maintainability of complaint-While convicting the accused, it will be open to the Magistrate to direct the accused to remit the fee chargeable for the licence. The direction that might be passed by the Magistrate cannot be considered to be an order passed under the second proviso to S.74 of the Act. Therefore, the contention that the complaint is not maintainable in view of the absence of the statement that distraint warrant was issued and it was found impracticable to realise the amount, is not sustainable. -Kodakara Panchayat v. Sukumaran -1986 KLT618:1986 KLJ458.

In cases where distraint and sale are allowed and the distraint become impossible under conditions laid down, prosecution is the inevitable consequence. Where distraint is allowed, prosecution is also permissible. Residuary Rules will have to be read along with the Acquisition and Transfer of Immovable Properties Rules. S.74 of the Kerala Panchayats Act, is not end of the matter. Acquisition and Transfer of Immovable Properties Rules, the Residuary Rules and other provisions mentioned above, including the Taxation and Appeal Rules, will have to be read together along with S.74. By the Rules, the contractual obligation get converted into one due under the Rules and recovery by distraint and prosecution is the right of the Panchayat. Rent is now amount due under the Rules intended to be used for the purpose of the Panchayats. It will not be in consonance with the intention of the rule making authority to interpret and limit the scope of S.74 and the Rules in a way to exclude recovery of rent from the provisions of the Acts and Rules. These provisions were introduced for the purpose of enabling the Panchayats to recover the amounts, at their option, by the process of distraint and prosecution, without resorting of courts of law. -Executive Officer v. SureshBabu -1992 (1) KLT291 : 1991 (1) KLJ 241 [1973 KLT145, Crl.A. 320 & 335 of 1986 & Crl. A. 256 of 1984 Overruled # 1983 KLT 677 Confirmed.]

S.74 [Corresponding to S.210 of the Panchayat Raj Act, 1994] -Panchayats (Taxation and Appeal) Rules 1963, R.26 -Prosecution for non-payment of dues - At the time when the amount fell due, nonpayment not an offence - Prosecution if can be sustained in view of Art.20 of Constitution of India-The case here is one of conviction and sentence, which necessarily implies that an offence has been found committed by the petitioner. Here the act that constitutes an offence within the scope of S.74 of the Kerala Panchayats Act, 1960, is the omission to pay the dues to the Panchayat when it fell due, and that having occurred at a time when it did not constitute an offence, the prosecution laid in this case is under an ex post facto law and as such unwarranted. The prosecution is therefore misconceived. -Muhammed Lubba v. Neelambaran-1967 KLT249:1967 KLJ403 : AIR 1967 Ker. 155 : ILR 1967(1) Ker. 110:1967 KLR 285.

S.74 [Corresponding to S.210 of the Panchayat Raj Act, 1994] -Panchayats (Taxation and Appeal) Rules, 1963, R.26 -Requirements to constitute the offence -Arrears of profession tax under Travancore-Cochin Panchayats Act, 1950 under which its non-payment was not an offence - Prosecution under S.74 if barred by Art.20 (1) of Constitution of India. (FB) - Saidu Muhammed v. Bhanukuttan - \ 967 KLT SN. P.20.

Prosecution before a Magistrate if a means of realisation of tax - The Act regards prosecution before a magistrate as a means of realisation of tax due to a Panchayat. And that indeed is the effect of the prosecution since, on conviction, the magistrate is empowered by sub-rule (2) of R.26 of the Rules to recover summarily, and pay to the Panchayat, the amount due. -Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat -1967 KLT 947 FB : ILR 1967 (2) Ker. 705.

Prosecution for wilful omission to pay any amount due to the panchayat - Maters to be proved -A prosecution under the Panchayats Act for the wilful omission to pay an amount due to the panchayat can be launched only if the panchayat proved that it was impracticable to realise the amount by a sufficient distraint of the movables of the defaulter. - Executive Officer, Mangalapady Panchayat v. Beepathu -1969 KLT 45.

Prosecution for non-payment of tax against the president of an association of members -Sustainability - The cinema theatre standing in the name of the corporation and the movables therein are properties belonging to the accused though he is not the full owner of the same. He has a definite share in the said properties;

and a distraint taken out against the movables in the theatre is

a distraint against the properties of the accused. Therefore the

prosecution against him is sustainable. -R K. Thankappan v.

Ganapathy Iyer-1967 KLT 309 : ILR 1967 (2) Ker. 160.

Taxation and Appeal Rules, 1963, R.24 -House tax -Prosecution for non-payment - Occupier of the building if liable to be prosecuted when true owner is available - The proviso to

R.24 enjoins a complete bar against a prosecution against the occupier for non-payment. So it has to be established by the prosecution that the occupier wilfully prevented distraint being taken against him. The defaulter in the second proviso to S.74 has to be understood as the owner of the building and not the occupier. -Varghese Uthuppu v. P. K, Sreedhara Panicker-1968 KLT 75.

Prosecution for non-payment of profession tax-General authorisation under S.I 19 if valid-There is no legal bar for a general authorisation of a person to institute prosecution

against offences under S. 119. -Sreedharan Filial v. Abdul Hameed-1977 KLT 913 : ILR 1978 (1) Ker. 99.

S.74 [Corresponding to S.210 of the Panchayat Raj Act, 1994]-Rule as per S.R.O. 319/62 in gazette dated 13-11-1962. Amount payable under an agreement for conducting cultural programme in Panchayat Property - Whether can be recovered by resorting to procedure for recovery of tax or cess -The amount payable to the Panchayat under the contract is not a cess, rate, or tax imposed under the Act nor is it a fee levied under the Act. S.74 is not therefore attracted. -Yoosufv. Kumaranelloor Panchayat -1973 KLT 145:1973KLJ357 ; 1973KLR 174:ILR 1973 (l)Ker. 320: AIR 1973 Ker. 167.(Overruled# 1992 (}) KU 241).

Panchayats (Taxation and Appeal) Rules, 1963, R.26 -Requirements to constitute the offence -Arrears of profession tax under Travancore-Cochin Panchayats Act. 1950 under which its non-payment was not an offence -Prosecution under S.74 if barred by Art.20{ 1) of Constitution of India - "Continuing offence" -Meaning explained - The obligation to pay the tax subsists. The omission to pay it, which began when the tax first became due, has continued up to now. The act constituting the offence has been continuously committed throughout the period, in other words, it has been committed after S.74 of the Act and

R.26 of the Rules, which make it an offence, came into force. There is therefore no question of Art.20(l) of the Constitution coming into to play. -Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat-1967 KLT947 FB : ILR 1967 (2) Ker.

705.

Ss.74 & 117 [Corresponding to S.210 of the Panchayat Raj Act, 19941-Ambit and scope - Form parts of an integral whole -

S.74 validity came into force only when S.I 17 was brought into force -Prosecution under S.74 started before S.I 17 came into force, if sustainable-S.74 was not in force on 28-9-1965 when the present complaint was laid and the complaint must fail on that ground. -Saidu Muhammed v. Bhanukultan, Executive Officer, Chavara Panchayat-1967 KLT 947 FB : ILR 1967 (2) Ker. 705.

Ss.74 & 117 [Corresponding to S.210 of the Panchayat Raj Act, 1994] - Ambit and scope - Form parts of an integral whole - Validity of S.74 came into force only when S.I 17 was brought into force -Prosecution under S.74 before S. 117 came into force, if sustainable. (FB) -Saidu Muhammed v. Bhanukuttan -1967 KLT SN.P.20.

Ss.74 & 129 [Corresponding to S.210 of the Panchayat Raj Act, 1994]-Panchayats (Taxation and Appeal) Rules, 1963, R.26 - If beyond the rule making powers - Validity - One of the purposes of the Act, it cannot be doubted in the face of S.74, is to prosecute defaulters in the payment of tax or other dues, and, since, the Act itself makes no provision in that behalf, we should think that a rule

like R.26 of the Rules that defines the offence for which the prosecution is to be laid, and prescribes the penalty therefore, is within the power conferred by the Sub-section. And, in the particular context in which it appears, especially when read along with S.74, we should think that the particular power conferred by Cl.(xvi) of Sub-s.(2) of S. 129 to make rules as to the realisation of any tax or other sum due to a Panchayat by prosecution before a magistrate, includes the power of define the offence for which the prosecution is to be laid and to prescribe the penalty therefor. The words, "as to" are words of very wide import. If the power conferred by the section were to be abused it would be the abuse rather than the section itself

that would be struck down. -Saidu Muhammed v. Bhanukuttan, Executive Officer, Chavara Panchayat-1967 KLT 947 FB : ILR 1967

(2) Ker. 705.
Vesting of water course, springs, reservoirs, etc., in Village
Panchayats.

S.82[corresponding to S.218 of the Panchayat Raj Act, 1994]-River poramboke does not vest with the panchayat- On the wording of S.82 itself, it is only such of the water courses as are mentioned therein, that would vest in the Panchayat. A major river such as the Baliapattam Rivers does not fall under S.82Mattool Panchayat v.AbdulRahim-1982KLT 252.

S.82[corresponding to S.218 of the Panchayat Raj Act, 1994]-Tree standing on river poramboke-Panchayat has right over the tree- After the amendment the entire right was transferred as a consequence of which the Panchayat got right to sell the trees

standing	on	the	river	poromboke-Erattupetta	Panchayat
v.Thahasildaar-1980 KLT 843.
Ss.82[corresponding to S.218 of the Panchayat					Raj	Act,

1994]-River puramboke-Rights over-Panchayat has right over the trees standing thereon- After the amendment of the Act by Act 22 of 1967, the entire right in the river puramboke was transferred to the Panchayat, as a consequence of which, the Panchayat got right to sell the trees standing on the river puramboke-State of Kerala v. Padinharathara Panchayat-1987(2) KLT 441.

Water course, takes, in a river-River passing through many Panchayat areas-When vests in Panchayat- The term "water course" takes in a river. The river in this case meanders through the areas of many Panchayats. Not being one notified by the Government as envisaged under the section, the river is not vested in the Government it vested in the Panchayat.-Parameswaran Nair v. Ettumanoor Panchayat-1986KLT 951:1986 KLJ 784.

S.82[corresponding to S.218 of the Panchayat Raj Act, 1994]-A river takes in the river bed. It is difficult to understand the term "river" as confined to the flowing water. The term "river" as contained in S.82 takes in the river bed and the sand, soil or gravel that may constitute the bed.-Parameswaran Nair v.Ettumanoor panchayat-1986 KLT 951 :1986KLJ 784.

S.82(1)[corresponding to S.218 of the Panchayat Raj Act, 1994]- Scope and ambit of -Land which is part of water course of a major river flowing more than one Panchayat, whether vests in the Panchayat-The word "may" has been used to convey that the Government has a discretions to declare that a particular river should not stand transferred to and vest in the Panchayat. It the Government intends that a particular river should not stand transferred to and vest in the Panchayat then it is required to issue a notification. As a matter of fact sub-s(1) of S.82 does not make any difference between a major river or a minor river. What it really adverts to is the water-courses which include the rivers as defined S.2(33) of the Act. Therefore it is only such of the rivers which are include in the notification published in the gazette that shall not stand transferred to and vest in the Panchayat. In the absence of a notification, the river in question which flows through more areas that one Panchayat area stands transferred to and vest in the

Panchayat.-State of Kerala v. Venmoney Panchayat-1986 KLT 562:1986 KLJ 367: AIR 1987 Ker.8:ILR 1986 (2) Ker.297.[1982 KLT 252& 1981 KLT 871 Overruled.]

S.82(1) & (A)[corresponding to S.218 of the Panchayat Raj Act, 1994]-Rights and liabilities of Government regarding water courses within the Panchayat area vests in the Panchayat- A combined reading of S.82(1) and 82(1A) makes it clear that the Panchayat Act contemplates vesting of water courses falling within a Panchayat, in i9t along with the rights and liabilities.-Cheeku v. Pallippuram Panchayat ILR 1983(1) Ker 450.

S.82 proviso [corresponding to S.218 of the Panchayat Raj Act, 1994]-Sluice constructed by Government on bank of a lake-If vest in Panchayat- If can auction the right of fishing-The proviso to sub-section(1) and 82 makes it clear that it is not only the irrigation work proper that does not vest in the Panchayat but also any work connected with such irrigation work and also any adjacent land appertaining to any such work also does not vest in the Panchayat. It is just the point where the sluice terminate but the land or area appertaining or adjacent to the area not vest in the Panchayat.-Kodamthuruth Panchayat v. Vasu Pillai-1989(1) KLT 21: 1989(1) KLJ 21.

S.82(2)[corresponding to S.218 of the Panchayat Raj Act, 1994]- Scope of -Power under S.82(2) is not to re-assume title to the properties which vest under S.82(1). There is only the power to define or limit the Control of the Panchayat-President, Paravoor Panchayat-1975 KLT SN.120 P.48. Prohibition against construction in or over public roads etc.

In addition to the relaxation admissible to the existing buildings, by S. 7 of the amending Act, it has been provided that when a road or bridge or such constructions are carried out for the purpose of entry to any building, used as a part of the building, or in the manner of a weather shade or some shade, such constructions could be carried out within three meters limit. The Panchayat or the respondents have no case that the construction proposed is not for access as a bridge. The plan also shows the position. Taking into account this situation, when the petitioner claims that the construction was actually for entrance to the petitioner's building from the road, it could not have been objectionable. In this view, the Panchayat was in error in resorting for the demolition of the two pillars.-Varghese Thomas

v. State ofKerala -2001 (1)KLTSN.40P.38.

Ss.84 & 119 [corresponding to S.220 of the Panchayat Raj Act, 1994]-Prosecution for obstructing pathway - Period of limitation - 'Continuing offence', meaning of- Under S. 119 the prosecution has to be initiated within three months of the commission of the offence; but this limitation cannot apply to a continuing offence. Here the nuisance complained of continues to be there and so long as it continues that act would give rise to a fresh offence de die in diem. The expression "continuing offence" means that if an act or omission on the part of an accused constitutes an offence, and if that act or omission continues from day to day, then a fresh offence is committed on every day on which the act or omission continues. -Executive Officer, Feroke Panchayat v. Sreedharan- 1968 KLT 14: 1968 KLJ

28: ILR 1968 (1) Ker. 144:1968 KLR47.

Ss.84 & 132 [corresponding to S.220 of the Panchayat Raj Act, 1994]-Obstruction to a road of the Malabar District Board running across a panchayat -Prosecution by panchayat if sustainable-When the legislature prohibits obstruction to public roads in S.84, there is no exclusion of National Highways, State Highways and roads of the Malabar District Board. This means that the panchayat has the right to prosecute a person causing

obstruction to a National Highway, a State Highway or a road of the Malabar District Board, though they do not vest in the panchayat. -Executive Officer, Kavilampara Panchayat v, Ammad- 1969 KLT 90:1969 KLJ 126:1969 KLR 151.

Public Markets.

Ss.221 & 286 - As regards private markets, there is no right for the Panchayat to auction out the right to conduct the same - Panchayat (Slighter Houses & Meat Stalls) Rules, 1964 (Kerala) Rr.31 & 39. Peter v. Perayam Panchayat -1996 (1) KLT 362: 1996

(1) KU 340.

As regards private markets, there is no right for the Panchayat to auction out the right to conduct the same -Panchayat Raj Act, 1994 (Kerala) Ss. 221 & 286 - Under the Kerala Panchayats Act 1960, Kerala Panchayats (Slaughter Houses and Meat Stalls) Rules, 1964 were framed. In view of the repealing Section, the above Rules are in force now. R.31 of the Kerala Panchayats (Slaughter Houses and Meat Stalls) Rules enables the Panchayat to farm out collection of rent and fees in public slaughter houses. R.32 enables opening of private slaughter houses on obtaining licence from the Panchayats. So far as the private markets and the various trades mentioned in the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules are concerned, no right is given to the Panchayat to auction out the right to start a business. -Peter

v. Perayam Panchayat-1996 (1) KLT 362 : 1996 (1) KLJ 340. [Cherian John v. Mundakayam Panchayat and another - 1991 (2) KLT 698 - Affirmed. ]

Business on P.W.D. roadside - Levy of market fee illegal -Neither P. W.D. Road nor shop buildings on side of road are owned, constructed, repaired or maintained by Panchayat. Premises where petitioners are carrying on trade cannot therefore be part of public market with respect to which Panchayat is entitled to collect fee for goods brought under

R.7. -Prabhakaran v. Methala Panchayat-1983 KLT 1025.

Issue of licence for private market -There is no absolute bar against issue of a licence within the prescribed substance Provisions are made for public interest -Panchayats Act, 1960 (Kerala), S.86 -There is no absolute bar under rule 26 against the issue of a license for a private market within a distance of 3 Kilometers mentioned therein. The only restriction is the requirement of prior sanction of the Director of Panchayats for the licensing and opening of a new private market within the aforesaid distance. If the requirements of locality warrant, there is nothing preventing the Director of Panchayats from permitting the licensing. The mere fact that the commercial interests of the plaintiff will suffer if a licence is granted to the defendant to run a private market in the B Schedule property is not a ground for injuncting the defendant from obtaining a license and running a private market in his own land. -Gopalan v. Chamiyar -1987 KLT 454:1987 (1) KLJ 352.

No provision to conduct auction of the right to vend meat except in public markets & public slaughter houses-Does not enable Panchayat to auction the right to vend meat from stalls constructed by bidder - Panchayats (Public & Private Markets) Rules, 1964 (Kerala), Rr.5 &8 - It has nothing to do with a public slaughter house. As Panchayat can only frame out the collection of rents and fees in public slaughter houses and as the Act does not enable the Panchayat to auction the right to vend meat from stalls constructed by the petitioner, it could

not have collected amounts from him. As there is no provision in the Act and Rules to conduct auction of the right to vend meat except in the public markets and public slaughter houses, and the money collected from the petitioner cannot be justified. - Cherian John v. Mundakayam Panchayat-1991(2) KLT 698:1991 (2) KLJ 804.

S.85 [corresponding to S.221 of the Panchayat Raj Act, 1994]-Panchayat (Public & Private Markets) Rules (1964, Kerala),

R.3 - Sanction of Director for shifting of markets -

Resolution of Panchayat if to be before sanction - The wording of the section does not justify a conclusion that the sanction contemplated under S.85 is a previous sanction, or one prior to the Panchayat's resolution. The language of R.3 of the Panchayat (Public and Private Markets) Rules, 1964 indicates that the resolution of the Panchayat must be before the Director according sanction under S.85(1) of the Act.- Iype Ulahannan v. Panchayar Board, Manjallur- 1996 KLT 1035:1996 KLJ 955.

Licensing of private markets.

Issue of licence for private market - There is no absolute bar against issue of a licence within the prescribed distance -Provisions are made for public interest - Panchayats (Public and Private) Markets Rules, 1964 (Kerala) Rule 26 - There is no absolute bar under rule 26 [previous rule] against the issue of a licence for a private market within a distance of 3 kilometers mentioned therein. The only restriction is the requirement of a prior sanction of the Director of Panchayats for the licensing and opening of a new private market within the aforesaid distance. If the requirements of locality warrant, there is nothing preventing the Director of Panchayats from permitting the licensing. The mere fact that the commercial interests of the plaintiff will suffer if a licence is granted to the defendant to run a private market in the B Schedule property is not a ground for injuncting the defendant from obtaining a licence and running a private market in his own land. -Gopalan v. Chamiyar-1987 (1) KLT454 :1987 (1) KLJ 352.

Licensing of private markets-Levy of amount if sustainable either as a tax or fee or as licence fee - Levy whether can be sustained under Police power of the State - The scheme of the Act seems to indicate that the levy was meant to operate as a fee. It is well settled that before a levy can be sustained as a fee there must be "special benefit" to the payer of the fee in addition to what is enjoyed by the general public. The "special benefit" has been described as service rendered to the markets in greater measure and continuity that in the case of an ordinary tax payer, the private market owner needing more than ordinary municipal service. On the materials available in this case the element of quid pro quo has not established between the levy and the services, ft follows that levy in question cannot be sustained as a fee. -Sankaran Nair v. VaniamkutamPanchayat-1971 KLT264FB ; 1971 KLJ 171.

Under S. 222, no person shall open a new private market or continue to keep open a private market unless he has obtained a licence from the Village Panchayat. Also so far as private markets are concerned, there is no right for the Panchayat to auction out the right to conduct the same Peter V. Perayam Panchayat 1996(1) KLT362: ILR 1996(2)623.

Public landing places and cart-stands etc.

S.227 of the Kerala Panchayat Raj Act points out that the preiuos sanction of the Regional Transport Authority is to be obtained before any stand or halting place of vehicles is opened. Almost identical provisions are there in R.344 of the Kerala Motor Vehicles Rules. However, it will be appropriate that the legal formalities are complied with and a permanent arrangement is brought about, Constitution with R.T.A appears to be mandatory-Abdurahiman v. Vengara Grama Panchayat -2001(2) KLT SN 107 P.85.

Liability of State Road Transport Corporation to pay fee arise even if the bus stand does not conform with the statutory definition- Even if the bus stand provided by the Panchayat does not answer the definition of a bus stand, that does not lead to the exoneration of the State Road Transport Corporation as regards its liability for the fee. Irrespective of the question whether the bus stand will be one which would come within the term cart stand referred to in R.10, the fee would be payable even if the place is only a public halting place.- K.S.R.T.C v Mohammed -1983 KLT 270:ILR 1984(1) Ker 735.

Imposition of restriction on parking of taxi motor cars is illegal- The motor cars used as taxis are not stage carriages within the meaning of the said expression as defined in the Motor Vehicles Act, 1939. The impugned notification is so far as it takes within its scope motor vehicles other than stage carriages is, therefore, clearly in excess of the power conferred by Rule 8 and it is to that extent without jurisdiction and void.-Sukumaran v.Exe,Officer 1980 KLT 30.

Bus-stand -Levy of fee-A bus plying through a Panchayat is not bound to pay stand fee when the bus does not park there- 'Bus stand' meaning of -It is not open the Panchayat to provide a bus stand in a spot where it chooses, irrespective of the convenience of the vehicle that travels a specified route and insist upon the vehicle halting at the provided bus stand. A bus stand means a place where a bus service commenced or terminated. What the Panchayat provided cannot be regarded as a 'bus stand' and it cannot take action or non-payment-State v.Elappara Panchayat ILR 1978(1) Ker 431.

Establishment of bus stand-Determination of place- Whether panchayat can initiate proposal- Motor Vehicles Act, 1939,S.76Either the Panchayat or the Motor Vehicles Department may initiate steps for determining the place of a bus stand-2979 KLT SN 101.48.

Proposal of panchayat for acquiring site for taxi stand-District Panchayat Officer has to be consider the proposal independently. He cannot passively carry out the decision taken by the Government in the matter.-Payyannur Panchayat v. State of Kerala -1976KLT 831.

Notification prohibiting taxi motor cars from using any place other than the one provided by panchayat-It is without jurisdiction- Rules do not permit any prohibition or restriction in respect of the parking of motor vehicles other than stage carriers.-Sukumaran & Ors v. Ex. Officer, Poothrikka Panchayat- 1979 KLT SN 152.P.70.

Slaughter of animals for sale as food and power of inspection.

S.231 - Panchayat Raj (Slaughter Houses and Meat Stalls) Rules, 1996 (Kerala), R.3 - There is a ban on slaughtering of animals in any place in the Panchayat except in a licensed slaughter house - Panchayat Raj Act, 1994, (Kerala), S.231 -

Since the meat is a requirement of the people of the Panchayat at for their food and since it is an obligation on the part of the Panchayat to provide for meat stalls in the public markets maintained by the Panchayat and since by the present order the first respondent is interdicted from auctioning the right to vend meat in the places mentioned in Ex.P1 notice, the first respondent will take immediate steps for establishment of slaughter houses as provided under the Act and the Rules -John Mathew v. Vechoochira Grama Panchayat -1999 (3) KLT 243 : 1999

(2) KLJ 610 : AIR 2000 Ker. 65.

Dangerous and Offensive Trades and Factories:-Purpose for which
places may not be used without a licence.

Application for license to put up a building to start a S.S.I, unit -No reference to Town Planning Dept. is required - Certified by the Green Channel Committee as a non-polluting unit -No notification under S. 232 issued by the Panchayat -Application to be accepted or rejected within the deadline fixed under S. 233(3) of the Act.-N.S.S. Karayogam, Mevelloor v. Velloor Grama Panchayat -2001 (3) KLT SN 58 P. 43.

When the Act provides for industrial use of a place in the Panchayat with licence and subject to conditions imposed in the licence with a view to protecting human life or health or property, is it open to the Panchayat or its President to arbitrarily refuse to grant permission/licence by merely stating that it would be against the interest of the public. We are of the clear view that they are certainly not clothed with unbridled powers under the Act and Rules. The provisions of the Act under Ss. 232 and 233 read with the Rules are not too vague to be understood by ordinary man. Thus having understood from The statute what is prohibited and what is permitted and having taken steps in furtherance of what is permitted and what is not prohibited, the authorities cannot arbitrarily deny permission/licence. That would amount to violation of Art. 19(l)(g), which is subject only to reasonable restriction. That reasonable restriction which is in fact a limitation on the enjoyment of a right shall not be arbitrary or excessive and beyond what is required in the interest of the public. The statutory indication under the Act and Rules in the matter of permission/ licence is only that it shall not be offensive or dangerous to human life, health or property. Hence, if an entrepreneur produces sufficient positive certification from the competent authorities, then the Panchayat/ President is liable to act on the same and issue the permission/licence unless bound by valid policy reasons. -Action Council v. Benny Abraham - 2001 (2) KLT 690 : 2001 (2) KLJ 120.11996 (2) KLT 719 - Clarified. AIR 1952 SC 17- Referred to.]

Prosecution for failure to take a licence - Court where prosecution is launched if competent to sit in judgment over validity of bye-laws prescribing the licence and fee -Question of quid pro quo if can be agitated - Panchayat if to prove that special services are rendered to licences - The Court where the prosecution is launched is not called upon to sit in judgement over the validity of the bye-laws prescribing the licence and the fee for the same. If the accused had any idea to question the imposition of licence fee, or the notification insisting on his taking a licence for conducting the tile factory in the area specified therein, he ought to have challenged the bye- laws made by the Panchayat in accordance with the provisions of the Act before the authorities constituted for the said purpose. The

question of quid pro quo is not a matter to be agitated before the court where the owner of the tile factory is prosecuted for his failure to take the licence. For sustaining the imposition of licence fee it is net necessary for the Panchayat to prove that special services are rendered to the licensees. If the licences are getting the general services from the Panchayat, which fact is not disputed, then the imposition of the fee has to be sustained. -Kodakara Panchayat v. Sukumaran - \ 986 KLT 618 : 1986 KLJ 458.

Ss.96 & 110 [corresponding to S.232 & S.237 of the Panchayat

Raj Act, 1994]-Ration shops under Kerala Rationing Order, 1966-

Not exempted from taking licence under S. 110-The building is

under the control of the ration shop dealer and is in no way

under the occupation or control of the State Government. The

fact that the officials of the State Government have got

authority to come and inspect the ration shop does not in any

way mean that they have got control over the place of business.

Therefore, the ration shops, where the respondents are doing

their business are not exempted under S.I 10 of the Act. -

Executive Officer, Atholi Panchayat v. Sreedharan-1987 (2) KLT

698 : 1987 (2) KLJ 1416.

Application for licence in respect of a dangerous and offensive trade - Rules not speaking of prohibitory distance - Prescribed form requiring specification of distance - Not to be deemed as prohibitory rule based on distance - Constitution of India, Art.226 - It is true that the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963, do not prescribe that a dangerous and offensive trade should be conducted only beyond a particular distance from any residential building. The application form prescribed is part of the rules. The particulars to be furnished are thus on the basis of those rules. The rules enjoin that the licensing authority has to take into consideration several factors and then decide whether the license should be granted or not. The facts furnished in the application have necessarily to guide the authority in the exercise of its discretion, These particulars can have no greater sanctity. It cannot be said that any matter for which a separate column is provided in the application automatically enshrines a statutory prohibition. The particulars directed to be furnished by the applicant thus cannot be deemed to be any prohibitory rule based on distance. When the rules speak of no prohibitory distance, a prohibition cannot be implied from the contents of the application or the particulars to be furnished therein. It follows that when there is no express rule prohibiting the installation of a stone crushing unit within a particular distance of a residential building, the Government was wrong in stating that a distance rule prevented the grant of a licence. The nuisance caused by the working of a 30 H.P. Engine to crush stones is a legal injury to the neighboring residents. If the Government feel that the residents in the neighborhood within 225 feet or 100 meters have to be protected, this court will not exercise its jurisdiction under Article 226 of the Constitution without being unmindful of the injustice that is likely to be caused. -Ibrahimkutty v. State of Kerala -1986 KLT 830 : 1986 KLJ 680.

Object of - Issue of license for installation of factory -Requirements - Government order relaxing the provision contrary to it - Is illegal - It is clear from the statutory provisions contained in rule 12(4) (b) and (c) of the Rules that they are intended to ensure the health of the citizens in the locality as also their safety having regard to possible fire hazards. There is no provision entitling the Government to relax these

provisions. That being the position the State ought to take every possible step to ensure that the statutory provisions bearing on the subject intended for ensuring safety of the citizens are strictly obeyed and complied with. -Aboobacker v. State of Kerala -1988(1) KLT 232: AIR 1988 Ker 242: ILR 1988 (2) Ker 59.

Power to cancel licence is only to the Executive authority - District Medical Officer has no power to direct the Executive authorities to cancel the licence. -Fr. Scoria A. Alukkal v. Taluk Panchayat Officer -1992(1)KLJNOC11.

[Corresponding to S.232 of the Panchayat Raj Act, 1994]

Schedule I, Items 57 and 112 - Selling of rice and sugar by retail distributor in ration shops - Licence not required - Under serial No.57 in Schedule I of the Rules, selling wholesale or storing for wholesale trade of grains is included. Selling of rice by retail distributor is not included in the Schedule. So also under Serial No. 112 packing, cleansing, preparing or manufacturing by any process what ever of sugar is included. But the storing and selling of sugar is not specifically mentioned in the Schedule. If the respondents have been selling or dealing in sugar and rice they need not take any licence under the Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963. -Executive Officer, Atholi Panchayat v. Sreedharan -1987 (2) KLT 698 : 1987 (2) KU1416.

S.96 [corresponding to S.232 of the Panchayat Raj Act, 1994]

-Kerala Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963 - Levy of licence fee for use of petitioner's premises under the Rules - Legality - The levy in question is a fee and not a tax. As a fee it should bear a sufficient quid pro quo or co-relation to the special benefits conferred on those called upon to pay the fee or the special services enjoyed by them. Tested in the light of the above principle no special benefit is seen conferred or enjoyed by the payer of the licence fee and no special services are seen being rendered for them, over and above those enjoyed or received by the general public from the Panchayat in the discharge of its general statutory obligations. Therefore the levy of licence fee cannot be sustained. -Kannan Devan Hills Produce Co. Ltd. v. Munnar Panchayat - 1971 KLT 348 FB ; 1971 KLJ 393 : ILR 1971 (1) Ker. 554:1971KLR356.

S.96[corresponding to S.232 of the Panchayat Raj Act, 1994]-Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, Sch.1, item 93-Licence issued the Kerosene Control Order, 2965 to trade in kerosene-Licence under the Panchayat Act or the rules if necessary-According to S.97 of the Panchayats Act storing oil is a purpose which is likely to be offensive or dangerous to human life or health or property that could be done taking the necessary licence. If the accused wants to store, prepare or manufacture kerosene within the panchayat area he must take a further licence. Such a licence cannot militate against Ext. D-l licence held by the accused which envisages retail trade in kerosene. In this view, therefore the Panchayat is in order, in having demanded the tax and the resulted prosecution is also sustainable. - Vijayamma v. Thankappan Filial-1967 KLT 966: ILR 1967 (2) Ker. 98.

Levy of license fee for running gas engines and for storing furnace oil -Services rendered are statutory duties imposed on the Panchayat which they are bound to discharge on the basis of

general revenue -Levy not justified -Kerala Panchayats Licensing of Dangerous And Offensive trades and Factories Rules, 1963-Sch.Iitems83&93. -Meppadi Co.-operative Society Ltd. v. Executive Officer-1972 KLT 1065.

Ss.96 & 97 [corresponding to S.232 of the Panchayat Raj Act, 1994] -Kerala Panchayats Licensing of Dangerous and Offensive Trades) Rules, 1963 - Levy of fee -Validity of the provisions - The view that Ss.96 & 97 of the Act and the Licensing of Dangerous Trades and Factories Rules framed there under are invalid, cannot be accepted as correct. - Kannan Devon Hills Produce Co. Ltd. v. Munnar Panchayat -1971 KLT 348 FB: 1971 KLJ 393: ILR 1971 (1) Ker. 554:1971KLR356.

Ss.96 & 97 [corresponding to S.232 of the Panchayat Raj Act, 1994] -Panchayats Licensing of Dangerous Offensive Trades and Factories Rules, 1963, Sch.I, item 83-Imposing licence fee for storing fuel and keeping machinery for manufacturing tea - Panchayat maintaining a cattle pound and running a school if sufficient 'quid pro quo' justifying levy - Fee, tax and fee for licence - Distinction - Constitution of India, Art.265 - There is no indication anywhere in the evidence that the amount demanded is just sufficient to meet the expenses of the licence. Even if the fee is construed as a tax as contended for the Panchayat, the levy cannot be justified because the Panchayat cannot levy a tax in the guise of a licence fee. For the imposition of a tax it is mandatory that before the tax is levied, the provisions of Ss.66 to 81 of the Act are complied with. The levy therefore cannot be supported by any one of the three heads namely, "fee for licence", "fee for services rendered" and "fee in the nature of a tax. -Travancore Tea Estates Co. Ltd. v. Executive Officer, Elappara Panchayat & Others -1968 KLT 776 FB : ILR 1968 (2) Ker.

416.

Ss.96 & 97 [corresponding to S.232 of the Panchayat Raj Act, 1994]-Object of- Provision for licence and permission for running rice mill - State legislature if competent to enact -Constitution of India, Art.246 - Ss.96 & 97 of the Panchayats Act relate only to matters mentioned in entry 6 of the State List; and they do not entrench on entry 52 in the Union List. Therefore the State Legislature was competent to enact the law contained in these sections. -Executive Officer, Elavally Panchayat v. Rosa- 1969 KLT 387: 1969 KLJ 713 : AIR 1970 Ker. 88 : ILR 1969 (1) Ker.

642 : 1969 KLR 639. (Overruledin 1980 KLT568 SC).

Ss.96 & 97 [corresponding to S.232 of the Panchayat Raj Act, 1994]-Panchayats (Licensing of Dangerous and Offensive Trades and Factories) Rules, 1963; Sch.I, items 83 & 94 [corresponding to S.232 of the Panchayat Raj Act, 1994]- Running of rice mill - Sections and Rules if valid as they are made conditional on payment of prescribed fees - As the issue of licenses and grant of permissions is conditional upon payment of fees, the provisions relating to the issue of licences and grant of permissions also become invalid. -Executive Officer, Elavally

Panchayat v. Rosa -1969 KLT 387: 1969 KLJ 713 : AIR 1970 Ker. 88: ILR 1969(1) Ker. 642:1969 KLR 639. (Overruledin 1980 KLT568 SC).

Ss.96 & 106 [corresponding to S.232 of the Panchayat Raj

Act, 1994] - Licensing of Dangerous and Offensive Trades and

Factories Rules, 1963, R.3 & Sch.I, item 28 - Panchayat fixing

fee for retting coconut husks at Rs. 3 per cent based on extent

of land - Sustainability. -Ayyapputty v. State of Kerala -1968

KLT 46:1968 KLR 110.

Levy of license fee for machinery used in a tea factory -

Validity of the levy as tax or licencee fee -Requirements for

sustaining levy as a tax - It is well settled that in order to

constitute a levy a fee, the same must confer special benefit on

the persons on whom it is imposed. No such special benefit was

either claimed or brought to the notice of the court in this

case. The statutory provisions themselves which provided for the

impost do not stipulate for any service by way of return. In

that view it follows that the levy of the license fee in

question is invalid and cannot be sustained. -Travancore Tea

Estates Company Ltd. v. Executive Officer, Arudai Panchayat &

Others-1967 KLT 514 :1967 KLJ 299 : ILR 1967 (2) Ker. 90 : 1967

KLR 579.

Ss.96 & 131 [corresponding to S.232 of the Panchayat Raj

Act, 1994] - Panchayats Licensing of Dangerous and Offensive

Trades and Factories Rules, 1963, R.7 -'Arishtams' and

'asavams' whether chemical preparations - Necessity of licence

for storing them - 'Arishtams' and 'asavams' are chemical

preparations and under the bye-laws the accused is bound to take

out the licence. -Executive Authority, Punalur Panchayat v.

Kumaran Vaidyan -1967 KLT 846 : 1968 KLJ 168.

Levy of licence fee for running gas engines and for storing furnace oil - Validity - The Services rendered in this case should normally be considered as statutory duties imposed on the panchayat which they are bound to discharge on the basis of the general revenue. An imposition of fee for carrying out the general purposes for which the Panchayat is constituted is unjustified. -Meppadi Co-op. Society v. Executive Officer-1972 KLT 1065.

Licensee whether occupier or owner - Occupation - Meaning of

- Burden of proof - An occupier is one who is in occupation, and occupation often implies more than a mere licence. The ordinary meaning of the word 'occupation of land1 is exercise of physical control over land. It is not possible to say that the inference drawn by the courts below that when a man is a licence of a tea-shop in his capacity as occupier he is in possession thereof is wrong. It cannot be denied that where transfer of possession can be accounted for either by transfer by the 1st respondent to the 2nd respondent or by a sub-lease by one to the other or by any other arrangement, it is pre-eminently a fact within the knowledge of these two and comparitively outside the ken of the landlord. -Abu v. Beebi -1970 KLT 1096: 1970 KLJ 343: 1970 KLR 36 :ILR1969(2)Ker.575.

Permission for the construction of factories and the installation
of machinery.

Panchayat (Licensing of Dangerous and Offensive Trade and Factories) Rules, 1996 (Kerala), Rr. 6 & 12, - If an entrepreneur produces sufficient positive certification from the competent authorities, then the Panchayat/President is liable to act on the same and issue permission/licence unless bound by valid policy reasons - See - Panchayat Raj Act, 1994 (Kerala), Ss.232 & 233 - Annu Thomas v. Mathew Thomas -2001(2)KLT688.

After granting licence to construct building and to start an industry, Panchayat cannot cancel the licence on a complaint not based on actual facts - If there is chance for pollution, it is open to the authority to require the certificate from State Pollution Control Board - District

Collector had to lest by a trial run of the plant and them come to the conclusion that the ice plant will be harmful. On the basis of mere surmises, District Collector came to the conclusion that pollution will be caused if the ice plant is allowed to operate. Panchayat may require the petitioner to get certificate from the State Pollution Control Board as to the precautions to be taken by the petitioner. -Pathrose v. State of Kerala -1996

(2) KLT SN.48 P.43:1996 (2) KLJ 177: AIR 1977 Ker.48.

Ss.97 and 100 [corresponding to S.233 & 123 of the Panchayat Raj Act, 1994]-Licences issued by Panchayat -Licensing process is a quasi judicial function by the Panchayat - Therefore the Panchayat cannot be said to be an aggrieved party to agitate the question before the higher authorities under S.144 or to challenge the order passed thereon in a writ petition under Art.226 of the Constitution - The panchayat has to function in accordance with the provisions, illustratively S. 97 of the act in this context, and has to decide as a quasi judicial authority. In the process the role in question could not be one that can be understood to be a role of adversary in the system where there is a question of 'res' in the sense of the normal litigation as is understood. As a consequence the decision in the matter becomes a subject matter of challenge strictly in accordance with the statutory provisions of S. 144 of the Act, being available to the person aggrieved as a result thereof. It is plain in the process that the role of the Panchayat as an aggrieved party is not available under the provisions of the said section. The person has a right to appear by way of an appeal with regard to his grievance, in this case before the Deputy Direct of Panchayats. -Karoor Panchayat v State -1996(1) KLT 112:1995(2) KLJ 742.[Cassel

v. Broome 1972 AC 1027:Dist.Executive Officer v.State of Kerala 1991(1) KLT 390:Bhopal Sugar Industries v. Income Tax Officer AIR 1961 SC 182- Relied on]

Power of Government to make rules in respect o the grant and
renewal of licences and permission.

Panchayath Raj (Licensing of Dangerous & Offensive Trades & Factories) Rules, 1996, R.3(b) -The power under S.234 includes the power to make provisions for an appellate forum relating to the granting of licences -Green Channel Committee is an appellate authority constituted under the rules -Application for licence has to be decided on its merits and not on the mere protest of the residents -Panchayath Raj Act, 1994, (Kerala), Ss.234, 232 & 233. -Shanti Joseph v. Poyya Grama Panchayath 1999(1)KLT695.

S.234 - Panchayat Licensing of Dangerous and Offensive Trades & Factories Rules, 1963 (Kerala), R. 12 - Over and above the powers vested in the Pollution Control Board under Pollution Control laws, as well as the powers vested in the District Medical Officer of Health under the T.C. Public Health Act, Panchayat itself has got statutory duties and obligations under the Act. Panchayat itself could independently consider as to whether by setting up a metal crusher unit within its area, it would affect the people of the locality. In other words, Panchayat has got such powers and duties to enable them to function as institutions of self-government. -Manjapra Grama Panchayat v. State of Kerala -1996 (2) KIT 719.

S.234-Schedule, Items 84, 87 & 101 -Running of quarry-Only licence under item 101 is necessary - Seprrate licence under item 84 is not necessary - The appellants have taken out a licence

under item No. 101, the purpose being rock stone cutting or storing. Licence is required because rock stone cutting is likely to cause offence or danger to human life or health or property. Cutting rock stone may involve breaking, sizing, crushing etc. and in that process of manufacture it is that smell, fumes, duest or noise which are offensive or dangerous to human life are likely to occur. Therefore, item No. 101 overlaps the requirement of item 84 which generally is in the nature of manufacturing articles. -Concrete Aggregate Industries v. Kummanode Poura Samithi -1995 (2) KIT 720: IR 1996 (1) Ker. 2061.

S.234 - Schedule Item 101 - Licence granted for Rock Stone - Cutting and Storing - Separate licence under item 84 -(Manufacturing articles form which offensive or unwholesome smell, fumes dust or noise arises) is not necessary -Cutting rock stone may involve breaking, sizing, crushing etc., and in that process of manufacture it is likely that smell, fumes, dust or noise which are offensive or dangerous to human life are likely to occur. Therefore, item No. 101 overlaps the requirement of item 84 which generally is in the nature of manufacturing articles. -Concrete Aggregate Industries & Anr. v. Abdul Khader

& Otters-1995 (2) KLJ 589.
Notice,	Orders,		Permission			etc.:-		Precautions		in	case	of
dangerous trees and pruning of hedges and trees.
Action		under		S.238	has	to	be	taken	by	the	Panchayat

Committee - Secretary of the Panchayat cannot invoke the powers under S.238.- In a Panchayat area ramnification of proceedings in such sensitive matter may be greater than in a city, and perhaps the legislature thought that the responsibility for such decision should rest in the collective body, and is not to be conferred on an individual who may not be conversant with local flavours. When a threat was spoken to arise in the Panchayat, it was imperative that a decision is to be taken thereon. Appropriate orders should be issued to the Executive authority to set right the situation. The Secretary has no independent discretion, however. - Thankamma

v. Ezhumattur Grama Panchayat-2001 (2) KLT 596.

Limitation for recovery of dues.

S. 117 [corresponding to S.243 of the Panchayat Raj Act, 1994]-Panchayats (Audit) Rules, 1963, R.IO cannot override the Act in prescribing the period of limitation -The provisions in S. 117 of the Act and S.387 of the Municipal Act clearly prescribe a period of limitation for recovery of amounts due. Any rule made under the above mentioned Acts cannot override or nullify the provisions in the Acts and the period of limitation prescribed under the above Sections cannot be extended.-Krishna Das v. Pathanamthitta Municipality -1983 KLT 656 ; 1983 KLN 339.

Limitation for recovery of dues - Steps to be taken for sustaining a successful prosecution -Expiry of period of limitation in cases where prosecution is launched - In order to sustain a successful prosecution there must be demand notice and omission by the assessee to pay as well as failure to show cause why it should not be paid. Then steps or distraint and sale of movables under Rule 14 must be resorted and distraint or sufficient distraint must be found impracticable. It must also be shown that the omission to pay was wilful or that he wilfully prevented distraint or a sufficient distraint. If a distraint is barred the prosecution also will be barred because distraint and its impracticability fully or sufficiently is a condition precedent to prosecution, If distraint was in time, prosecution

will lie only when it becomes fully or sufficiently impracticable or when the wilful omission to pay or wilful prevention of distraint was fully or sufficiently made. Then only prosecution will lie and the period of limitation for prosecution will expire only after three years from that date. -Executive Officer v. Velayudhan Nadar -1988 (2) KLT 138:1988 (1) KU 735.

Prosecutions, Suits etc.: - Persons empowered to prosecute.

S. 119 [corresponding to S.245 of the Panchayat Raj Act, 1994] - Offence for not taking out licence - Period of limitation for prosecution when commences - The offences in these cases were committed on the last day of the financial year, 1965-66 so far as the failure to take out licences for the year 1965-66 is concerned. The complaints were filed clearly within three months of the last date of the financial year and so they are not barred by limitation. -Executive Authority, Punalur Panchayat v. Kumaran Vaidyan -1967 KLT 846:1968 KLJ 168.

S. 119 [corresponding to S.245 of the Panchayat Raj Act, 1994] - Complaint by executive authority -Authorisation by Panchayat not necessary.-Executive Officer, Chalakudv Panchayat

v. V, P. Devassy -1970 KLT991FB: 1970 KLJ 1011:1971KLR33.

1. 19 [corresponding to S.245 of the Panchayat Raj Act, 1994] -Scope and ambit-No Application to the filing of complaint for an offence under R.26 of Taxation and Appeal Rules, 1963 -From the proviso to S.I 19 it appears that the period of three months mentioned in the main part of the section is a period of limitation for the institution of the complaint, and not a period within which the authorisation for the institution of the complaint has to be made. Again, the second part of S.I 19 states that nothing contained in the first part thereof shall affect the provisions of the Criminal Procedure Code, in regard to the power of certain Magistrates to take cognizance of offences upon information received or upon their own knowledge or suspicion. The reference is obviously to S. 190 of the Criminal Procedure Code, under which a Magistrate can take cognizance of any offence also upon information received from any person other than a police officer. It means that under the latter part of S. 119 of the Kerala Panchayats Act, a competent Magistrate can take cognizance of an offence on complaint or information received from any person other than a police-officer, even it be from the Executive Authority or a person authorised under this Section to file complaint thereunder.-/1. K. Thankappan v. Ganapathylyer-1967 KLT 309 : ILR 1967 (2) Ker. 160.

    

2. 119 [corresponding to S.245 of the Panchayat Raj Act, 1994] -General authorization of a person to institute prosecution for offence under S.74 - Validity - S.I 19 confers upon the Panchayat the power to delegate generally their authority to make a complaint to their executive officers. They can exercise their discretion and decide whether in any given case a complaint shall or shall not be made. - Sreedharan Filial

    

3. Abdul Hameed-1977 KLT 913 : ILR 1978 (1) Ker. 99.

    

Panchayats Act, 1993 (Gujarat) Ss. 30,59,73 & 87 Municipalities Act, 1963 (Gujarat), Ss. 11,31,38 & 40 - Power of competent officer to suspend elected office bearers of local bodies such as Panchayats and Municipalities on the ground that criminal proceedings for offence involving moral turpitude have been instituted prior to the election of the office bearer -Suspension cannot be ordered on the ground of pre-election pending criminal proceedings which was not a disqualification for

being elected to office. In the case the Full Bench observed - "In our opinion, the expression, "pending criminal proceedings" does not admit the existence of criminal proceedings initiated prior to the date of election and more so when it is not a disqualification for the purpose of election. It would lead to a paralytic impact on the right, status and privileges of elected persons upon the popular mandate of the people and the same would run diametrically opposite to the provisions and the promise of the provisions of Ss. 59, 73 and 87 of the Gujarat Panchayats Act, 1993. After having taken into consideration the facts and circumstances, the text and context of the provisions and the fact that pendency of criminal proceedings prior to the date of election not being a disqualification, we are of the explicit opinion that the same cannot be employed or used by the competent authority for the excise of statutory power to suspend an elected representative. We are, therefore, left with no alternative but to answer the question formulated and referred by the learned Single Judge in this referential consideration and adjudication in the negative" (F.B.) (Guj) - Nasirkhan v. District Development Officer-2001 (3)KLTSN. 120P.92./X 10/01/2001. [AIR 1989 SC 509; 2000(2) , GLR 1174; 1980 AC 53; 1995 (2) GLR 1502 & I960 GLR 260

-Referred to.]

Institution of suits against authorities of Panchayats, their
officers, etc.

Suit for recovery of money due as balance amount towards supply of materials for reparing a road -Suit filed after six months after the expiry of one month's notice-Held that S. 29 of the Limitation Act applies as there was no specific recital in the agreement that S. 249 will apply with regards to limitation.-Kumbdaje Grama Panchayat v. Abdul Khader-2Q01 (1) KLT SN.91.

P.75. [AIR 1928 Mad. 981; AIR 1938 Mad. 239; AIR 1979 SC 1144 & 2000 (2) KLT 827 -Relied on.]

S. 123 [corresponding to S.249 of the Panchayat Raj Act, 1994]-Suit for injunction against granting of licence -Licence issued before filing of suit - Plaintiff can issue notice and wait for statutory period and later apply for amendment of suit for more prayers other than injunction - Civil P.C. 1908,0. VI,

R. 17 -The plaintiff is entitled to seek an amendment of the plaint after complying with the provisions contained under S.I23 of the Act in respect of issue of notice. There is no justification for denying the same only on the ground that when the suit was originally filed it was only seeking an injunction and therefore, did not require a notice under S. 123 of the Kerala Panchayats Act. If a plaintiff is allowed to amend the plaint after issuing necessary notice as contemplated under this section, it cannot be said that it will defeat the very purpose for which S.I23 was enacted.-John v. Executive Officer-1992 (1) KLT562:1992 (I) KU 812.

Ss. 123 & 124 [corresponding to S.249 & S.250 of the Panchayat Raj Act, 1994]-Scope and ambit of the protective shields under the sections - It is true that the protective shields under Ss. 123 and 124 of the Panchayats Act extend and cover all acts done in good faith even if those acts are impermissible in law the condition being that the act should not have been done or purported to have been done under the Panchayats Act. It has to be remembered that any power given to any authority or person under any law must be exercised reasonably and in good faith. But in this context "in good faith"

means merely "for legitimate reasons". Contrary to the natural sense of the words, they impute no moral obliquity -Chacko v. Joseph Devassia -1985 KLT 277: 1985 KLJ 374.

Power to Government to make rules.

Panchayat cannot use a property as a burial ground without prior permission from the District Collector- When orders under

S.36 & 44 r/w 134( I) of the Public Health Act are passed directing not to use a place as a burial ground, Panchayat cannot permit burial of dead bodies - Public Health Act, 1939, Ss,33, 44 & 134(1). -Mailadumpotty Janakiya Samrakshana Samithi v. Chungathara Grama Panchayat -2000 (2) KIT 840:2000 (1) KLJ 670: AIR 2000 Ker. 288.

If the application for opening a burial ground is not disposed of quickly, it will affect seriously the applicant. The purpose is for burying the dead. The Collector cannot keep the application pending for large number of years on the ground that he has got various responsibilities. Secondly, for the purpose of taking into consideration the human habitation, the date of application is considered to be the crucial date i.e., any construction or obstruction at the site of the cemetery made after the date of the application will not be considered as genuine or bonafide. The above entire provision read together will show that time factor has been introduced in order to see that it is complied with mandatorily; otherwise it may lead to very difficult situation especially with regard to persons who had purchased the property or construed buildings after 6 months' period is over because their objections will not be taken into consideration. Hence we hold that the direction, to dispose of the matter within 6 months, to the Collector is mandatory and after that he becomes functus officio. Hence it is of the view that Sub-r.(8) of R.6 of the Rules fixing the time limit is mandatory and the Collector has to pass order within the time. - Surendran v. District Collector-1999 (3) KLT22 : AIR 2000 Ker. 103 :1999 (2) KLJ 355 FB.f

1988(2) KLT48 - Overruled. AIR 1957 SC 912; AIR I960 SC 444;
AIR 1961 SC 1480 & AIR 1987 SC 849 - Referred to.]

The period of 6 months would start running only from the date of receipt of the application by the District Collector from the DMO and not from the date of receipt of the application by the Panchayat - Marykutty Mathew v. St. Thomas Orthodox Cathedral

-2000 (3) KLT 21: 2000 (2) KLJ 221. [1999 (2) KLJ 355 FB & 1988

(2) KLT 48-Referred to.]

Original application for burial ground routed through Panchayat -Late application to convert it to one of vault type -cannot be allowed without routing it through the Panchayat - Pardeep v. Kandanassery Panchayat -1996 (2) KLT 775 : 1996 (2) KLJ 365.

Objectors are entitled to a personal hearing -Consideration of objections alone is not sufficient -Is mandatory -R.6(7) directs the Collector to consider the objections, if any, received and after causing such enquiries, as may be necessary, pass orders. The enquiry should not be an empty formality. It is a matter in which many people are affected and their objections have to be considered. The procedure has been laid down in order to see that starting of new burial or burning ground is not against public interest.- Pardeep v. Kandanassery Panchayat -1996 (2) KLT 775 : 1996 (2)

KLJ 365. [Lyod v. Mc.Mchon 1987 AC 625; Wiseman v. Borneman 1971 AC 297 - Relied on.]

Original application found to be defective due to distance rule - Not necessary to reject application -Collector can postpone the decision to find out whether application can be granted after removing the objections. -Pardeep v. Kandanassery Panchayat -1996 (2) KLT 775 : 1996 (2) KLJ 365.

Even if there is non-compliance of the provisions of the rules on account of distance, if Collector is satisfied that licence cannot be granted on grounds of public order, morality or health, then the application has to be rejected - Merely because a thodu is situated beyond the distance prescribed, the Rules do not free the authorities from looking into the question of health hazard - Both original authority and the appellate authority have not considered the question whether the thodu was used for washing and bathing purposes. There is an observation in both these orders that water is not used for drinking purposes; but that is not enough and if, as a matter of fact, water is used for washing and bathing, it is highly necessary that it should be found out whether there will be any pollution because of the construction of the cemetery. -Kurian Kurian v. District Collector -1998 (2) KLT 185: 1998 (2) KLJ 25.[Narayanan Thampi

v. District Collector, 1988 (2) KLT 48; Pradeep v. Kandanassery Panchayat, 1996 (2) KLT 775-Relied on. ]

S.I 29 [corresponding to S.254 of the Panchayat Raj Act, 1994 j-Rules are not ultravires of the delegated powers under S. 129 of the Panchayats Act - Panchayats (Acquisition and Transfer of Immovable Property) Rules. 1963 (Kerala). Rr.6 & 9 - S. 129 of the Kerala Panchayats Act authorises the Government to frame rules on many matters. When the rules had the prescribed form for execution of lease deeds specifically provide for realisation of rent, it was not necessary to make any other specific mention in the rules regarding rent. It is a natural corollary. Even then,

R.9 specifically makes mention of rent. It is therefore, clear that rent due under the lease transactions provided in the said rules and forms is rent due under the said rules made in exercise of the powers under S.I 29. -Executive Officer v. Suresh Babu1992 (1) KLT 291:1991 (I) KLJ 241.

[Corresponding to S.254 of the Panchayat Raj Act, 1994]Rs.5 & 6 (8) - Validity - R.5 is valid -R.6(8) is invalid as it is unreasonable & opposed to legislative intent expressed in S.57(2) of the Panchayats Act, 1960 - R.5 envisages an enquiry and satisfaction by the Collector regarding the matters specified in sub-rule (7) quite apart from the distance rule under rule 5. Rule 5 prescribing the minimum distance from any human habitation for the establishment of a burning or burial ground cannot therefore be challenged as arbitrary and opposed to Art. 14 of the Constitution. Rule 5 read in the context of R.6 cannot also be challenged as unreasonable and as beyond the legislative intent. The requirement of sub-rule (8) of rule 6 for the Collector to pass an order within a period of six months from the date of the submission of the application to the Panchayat. if construed as a mandatory provision, would render the sub-rule itself invalid as grossly unreasonable and beyond the legislative intent. The expression ''shall' will have only the same meaning as 'may" in the sub-rule and the provision is only directory. The latter part of the sub-rule deeming the licence as having been granted on the expiry of the period of six months and authorising

the applicant to proceed to use the site for the purpose of disposal of the dead is invalid as it is unreasonable and opposed to the legislative intent expressed in S.57(2) of the Panchayats Act. -Narayanan Thampi v. Dt. Collector-1988(2)KLT48.

[ Corresponding to S.254 of the Panchayat Raj Act, 1994]

While giving licence for a burial ground, prohibition contained in R.4(l), Chapter IV of the Kerala Education Rules, 1959 should be taken into account-A prohibition like the one contained in

R.4 (1), Chap.IV of the Kerala Education Rules, 1959cannot be ignored in granting licence for a burial ground under the Kerala Panchayats Act, 1960 and the Rules thereunder.- Manager, Samajam School v. State -1980 KLT 947.

[corresponding to S.254 of the Panchayat Raj Act, 1994] -

R.4 -Burial or burning grounds -Whether both public and private burial ground come within the rule - Provision in R.4 give a clear indication that burial ground will take in not only public burial ground but private burial ground as well. The nature of the use and the purpose are the same and there ought to be no classification made on the basis of the ownership or the limited use to which the ground is put in the case of private burial and burning grounds. -Kelu Nambiyar v. Narayani Amma-1974 KLT483 : ILR 1974(2) Ken 69.

Ombudsman for Local Self Government Institutions:-Term of office
and conditions of Service of the Ombudsman.

Appointment of a Judge of the High Court as Chairman of the Ombudsman will not adversely affect the independence of judiciary

- Constitution of India. IInd Schedule Part D CI.I1 -It is here that the requirement of a person who is trained as a judge and has worked as a Judge assumes importance since it inspires confidence of the citizens who approach the Ombudsman with their grievances. Therefore, no objection can be taken to a sitting or a retired Judge of the High Court accepting the office as the Chairman of Ombudsman. Indeed, it would serve the larger public interest if the Ombudsman is headed by a sitting or a retired Judge of the High Court. Without a Judge of the higher judiciary as the Chairman of the Ombudsman, it is unlikely that the findings recorded by the Ombudsman would achieve the desired public confidence and acceptance. The constitutional scheme envisages a Judge of the Supreme Court or of the High Court discharging functions other than court functions at the request of the President. No objection can, therefore, be taken to such a Judge discharging such functions at the request of the President on the ground that it is likely to adversely affect the independence of judiciary. -Sreekumar v. State of Kerala -2000

(3) KLT 771. [1993 (3) SCC 723 -Referred to.]

Appointment of seven members in the Ombudsman cannot be said to be arbitrary

-Whether the institution of Ombudsman should consist of seven members or less is not a matter for this Court to decide. It is a matter within the realm of the Legislature's policy making depending upon the need for a particular number of members comprising the said institution. It

is not as if the Legislature has acted arbitrarily in appointing seven members. The expert committee on decentralisation of powers

-Sen Committee, has submitted a comprehensive report recommending the composition of seven members. In this view of the matter, it is not possible to accept the fourth contention in respect of the alleged disproportionate expenditure merely because of the institution comprising seven members. It is not possible to strike down a legislation merely because, though the

legislation is valid, it is likely to be used for an unauthorised or a political purpose as contended by the petitioners -Sreekumar v. State of Kerala -2000 (3) KLT 771. [1993 (3) SCC 723-Referred to.]

Apart from the Judge of a High Court falling under Subs.(3)(a) of S.271G, there are two other persons under Subs.(3)(b) who can be appointed as members, if they have held the post of a District Judge of that State. Under Sub-s.(3)(c) two shall be officers not below the rank of a Government Secretary. Under Sub-s.(3)(d), two shall be respectable and honest persons engaged in social service. If that be the composition of the seven member Ombudsman, it is not possible to accept the claim of the respondents that all of them must have the status equal to that of a Judge of the High Court of Kerala. In our view, conferring such a status equal to that of a Judge of the High Court of Kerala on all the seven members comprising the Ombudsman will tantamount lo treating unequals as equals and is, therefore, hit by the provisions of Art. 14 of the Constitution of India. To the extent to which every member of the Ombudsman has been afforded the status of the Judge of the High Court of Kerala,

S.271 (G)(9) will have to be struck down as violative of provisions of Art. 14 of the Constitution. Hence, the words "shall have the status equivalent to that of a Judge of High Court of Kerala and" appearing at the beginning of S.271G(9) of the Kerala Panchayat Raj Act, 1994 are declared as unconstitutional being violative of the mandate of Art. 14 of the Constitution. -Sreekumar v. State of Kerala -2000 (3) KLT 771.[1995 (4) SCC 611 - Referred to.]

Staff of the Ombudusman.

Providing the same procedure of removal as is contemplated under Arts.217 (1)(b) & 124(4) for removal of a person appointed as a member of Ombudsman, if he was appointed while he was a Judge of a High Court, is a arbitrary and hit by Art.14-Constitution of India, Arts 14(124) & 217.-Sreekumar v, State of Kerala - 2000(3) KLT 771.

Appeal and Revision.

Reasons are to be stated by the statutory authority for the orders issued by it except orders relating to the day to day administration. The statutory powers conferred on any authority has to be exercised fairly and reasonably and not arbitrarily or capriciously. An order unsupported by any reason while in exercise of statutory powers cannot stand scrutiny as it would infringe Art. 14 of the Constitution. -Karungappally Grama Panchayat v. State of Kerala -1996 (1) KLT 419:19% (1) KLJ 331: ILR 1996 (2) Ker. 222. [S.N. Mukherjee v. Union of India AIR 1990 SC 1984; MJ. Sivani v. State ofKarnataka, AIR 1995 SC 1770-Relied on.]

S. 144 [corresponding to S.276 of the Panchayat Raj Act, 1994]-Civil Services (Classification, Control and Appeal) Rules, 1960, R.24 - Does not provide an appeal or revision from an order of reversion of personnel who do not have the required qualification - Appellate power if can be invoked by an association - Civil Services (Classification, Control and Appeal,) Rules 1960 (Kerala), R.24 - The only power of the Government under the Kerala Panchayat Act is an appellate power under S.I 44 of the Act. Neither the Establishment Rules, nor any other set of rules, provide for an appeal or revision before the Government from an order of reversion of personnel who do not have the required qualification. Rule 24 of the Kerala Civil Services (Classification, Control and Appeal) Rules provides for an appeal to the Government. The appellate

power cannot be invoked by a person other than a person aggrieved by an order of the subordinate authority. - Sarasamma v. State of Kerala -1986 KLT 820.

Adjudication of disputes between Panchayats.

S.45(3) [corresponding to S.282 of the Panchayat Raj Act, 1994] -Matters to be considered while passing an order -Scope of judicial review S.45(1) confers power on the Dy.Director to decide disputes between Panchayats, and S.45(3) provides that any such decision can be modified by Government in such manner as they deem fit. Even the modified decision can also be cancelled by Government "at any time" which should read as a power to be used in the public interest when conditions change. Though the statute uses words like "decide" "dispute" etc. it is difficult to think that the power is something exaclty akin to a judicial power i.e. of declaring the rights of partied by recording findings of fact and applying legal principles thereto. It is possible that the "decision" should include a large measure of policy content also, though factors requiring objective assessments could also be there. So long as the power is excercised in the public interest, bona, fide and honesty with the object of giving a quietus to the problem involved, the scope for judicial scrutinity will be extremely limited. Nayarambalam Panchayat v. Narakkal Panchayat-1986 KLT 1056:1986 KLJ 939. Repeal and Savings.

There is specific provision for continuation of all the orders, licences and rules under the Panchayats Act, 1960, until they are modified- Under sub-section(2)(i) of S.284 of the new Act all other, licence, permission, rule bye-law etc. issued or granted in respect of the Panchayat area under the old Act and in force immediately before the appointed day shall continue to be in force as if they had been made, issued or granted in respect of the corresponding Panchayat are a under the new Act until superseded or modified. -Concrete Aggregate Industries v. Kummanode Poura Samithi -1995 (2) KLT720: ILR 1996(1) Ker. 206. [Air India v. Union of India 19954 SCC 734; Rural L. & E.Kendera

v. State of U.P. AIR 1987 SC 2426 - Distinguished.]

S.284(l)(i) & Panchayats Act, 1960 (Kerala), S.142 (repealed) -Notification issued under S. 142 of the Old Act making certain provisions of Municipalities Act, 1960 applicable to Panchayats - After repeal of the Municipalities Act, 1960. there need not be afresh notification under the Panchayat Raj Act, 1994, extending Municipal Laws of 1994 - The Panchayat Raj Act, 1994 was enacted to keep in line with the Constitution (Seventy Third Amendment) Act, 1992, Keeping in view of the rule of construction to advance the cause of justice and facilitate the day-to-day working of the statute and the language of the statute it has to be held that the extension and adoption is only by reference. The references to the Municipalities Act by the Panchayat Raj Act, 1994 would be referable to the re-enacted Municipalities Act.S.23 of the Kerala Interpretation and General Clauses Act., 1125, provides for continuance of orders. The notifications issues under the Panchayat Act, 1960 would continue as if issued under 1994 Act and that by virtue of the incorporation by the reference, the provisions of the Municipalities Act, 1994, would apply. In effect even as per sub

s. (2) of S.142 of the Panchayat Act, 1960, the provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area and sub-s. (2) of S.274 of

the Panchayat Raj Act, 1994 also states that the provisions so notified shall be construed with such alterations not affecting the substance as may be necessary or proper for the purpose of adapting them to the Panchayat area. - Abdul Salam v. Mallappally Grama Panchayat -1998 (2) KLT 508 : KU 1998 (3) Ker.670. [Gauri Shankar Gaur v. State ofU.P. 1994 (!) SCC92; D.KTrivedi and Sons

v. State of Gujarat I986(Supp)SCC20; Collector of Customs v. Sampathu Chetty AIR 1962 SC 316; N.C.J. Mills Co. v. Asst. Collector, Central Excise AIR 1971 SC 454; Canara Bank v. State AIR 1982 Ker.l.F.B; Thomas Eapen v. Asst. Labour Officer 1993 (2) KLT241; Sherthallai S.M.M.G.H. v. Krishnan Unni 1975 KLT572; C.A. Industries u K. Poura Samithi 1995 (2) KLT 720 -Referred to.]

PANCHAYAT SUBORDINATE

SERVICE RULES, 1994 [3554] — Pachayats Subordinate Service Rules, 1994 (Kerala Rules) -Rules are legal and valid - Not unconstitutional and void for want of consultation with the public Service Commission as required by section 3(1) of the Kerala Public Service Commissions (AdditionalFunctions as respects the services under Local Authorities) Act, 1973 and Article 320 of the Constitution of India. (T.VRumakrishnan, J.) -The Kerala Panchayat Executive Officers Association and others v. Stale of Kerala and others -ILR 1995 (1) Ker. 591

[3555] — Rules are framed under the Kerala Public Services Act
and not under Kerala Panchayat Raj Act.

On the wordings section 179 (3) and 180 .of the Panchayat Raj Act, it is difficult lo hold that hose provisions are provisions conferring any independent power on the Government to frame any rules to regulate the conditions of service of the employees. A plain reading of the provisions would show that they only refer to the power to frame Rules already conferred on the government generally under section 2(1) of the Public Services Act. (T.VRamakrishimn, JJ -The Kerala Panchayat Executive Officers Association and others v. State of Kerala and others-ILR 1995(1) Ker. 591. . [3556] — Panchayats Subordinate Services Rules, 1994 (Kerala Rules) - As Public Service Commission was consulted on the draft rules no violation of section 3 (1) of the Additional Functions Act or Article 320 (3) of the Constitution - Even if there was no consultation it is only an irregularity. (T.V.Rumakrishnan, J.) -The Kerala Panchayat Executive Officers Association and others v. State of Kerala and others-ILR 1995(1) Ker. 591.

State of U.R v. Manbohan Lai AIR 1957 SC. 912; Mathuradas v.

S.D. Ktmshw AIR 1981 SC. 53; Stale of Gujarat v. Raman La! Keshav Led AIR. 1984 SC. 160: Union of India v. J.P.Chothia AIR 1978 SC. 1214; -Relied on.

[3557] — Panchayat Subordinate Service Rules, 1994 (Kerala Rules ) Rules 2 and 3 -Not arbritary or unreasonable - Rule are not illegal or void. (T.V.Rctmakrishnan, J.) -The Kerala Panchayat Executive Officers Association and others v. Stale of Kerala and others - ILR 1995 {1) Ker. 591.

Roshan Lai v. Union of India AIR. 1957 SC. 1889; S.M. Pandit v. State of Gujarat AIR 1972 SC. 252; Rajan v. State of Kerala 1983 KLT 878; Sonal v. State of Karnataka AIR 1987 SC. 2359 -Referred to.

Stale of J and K v, T.N. Khosea AIR 1974 SC. I ; T.N. Ed. Depl. M and G Sub. Ss. Assocn v. State of T.N. AIR. 1980 SC. 379; Reserve Bank of India v. M.C. Palial AIR 1976 SC. 2345; R.S. Makshi v. I.M. Menon AIR. 1982 SC. 101; S.R. Mathur v. Chief Justice of Delhi High Court 1989 Supp. (I) SCC. 34; Indian Administrative Service (SCS) Admn. v. Union of India 1993 Supp.

(I) SCC. 730 - Relied on.

PANCHAYAT RAJ

(Conduct of Election) Rules, 1995 [3552] — Panchayat Raj (Conduct of Elections) Rules, 1995 -Rules 35 (2) (b) & 47 (2) (c) and (d) - a vote will be invalidated only if it satisfies the requirements of the rules which speaks about invalidation - Any mark or writing in the ballot paper will not invalidate the vote. (P.V. NarayananNambiar, Jj-Mathai Yohannan v. Mathew Joseph & Ors. 1997 (2) KLJ 482: AIR1998Ker. 106.

S.Sivaswami v. V.Malikannan. 1984 (I) SCC. 296 -Relied on.

[17844] — Panchayats (Conduct of Elections and Election Disputes) Rules (1961, Kerala), R.117 -Election petition by a voter -Candidates duly nominated at the election, if necessary parties - See - Election Petition. (M, Madhavan Nair, J.)-Khader

v. Damodaran & Others - 1965 KLT 1036.

[17845] — R.117 - Election petition - Enquiry-If supersedes the provisions of CPC - See -Panchayats Act (I960, Kerala), S.22(5). (M.Madhavan Nair, J.) -Khader v. Damodaran & Others- 1965 KLT 1036.

[8580] — Rr.5,11 & 13 -Payment of deficient court fee subsequent to the time of election petition according to discretion of the Court under S.149 CPC.

R.5 significantly has not referred to payment of court fee. That is a matter which is governed by the Court Fees Act and subject to the power of the civil court under S.149 of CPC. It is that power which is available to ihe Munsiff trying an election petition in considering whether the petitioner should be allowed to make up the deficiency of the court fee. That is a matter of discretion. (Kochu Thommen, J.) -Radhakrishna Pillai v. Sasidharan Nair-1983 KLT 551 : AIR 1983 Ker.236 : 1983 KLJ 280 : ILR 1984 (1) Ker.744.

[8581] — R.5(3)&(8) - Nominated candidates withdrawing before the date for withdrawal -Candidates validly nominated but withdrew if should be made parties to the election petition.

The word "candidate" is defined in S.2(b) of the Rules as a "person who has been or claimed to have been duly nominated as a candidate at any election and any such person shall be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate". When so interpreted, the election petition is liable to be rejected as defective since the validly nominated candidates were not made parties to the election petition. (Thomas, J,) -Joseph v. B.D. O. Angamaly -1989 (2) KLT 411 : 1989 (2) KLJ 391 : AIR 1990 Ker.131.

[8582] — Rr.5(3), 12 & 16 - Nomination of seven candidates accepted - All of them should be impleaded - Question of validity of acceptance of nomination not relevant to the question of maintainability.

If there were 7 candidates whose nominations had been accepted, it is imperative that all of them were impleaded before an election petition could be entertained. The question whether or

not there has been a valid compliance with the requirement, i.e.

whether by fraud or mistake or by other vitiating circumstances, the acceptance of a nomination is invalid, does not arise on the preliminary issue. (Kochu Thommen, J.) -Krishnankutty Nair v. Joseph-1981 KLT 565. [8583] — R.S(5) - Non-compliance with R.5(5) merits dismissal. The language of R.5(5) is clearly mandatory. As the Rule prescribes the manner of doing the act and also the consequence of non-compliance, the prescribed consequence must follow in view of the non-compliance. (Balagangadharan Nair, J.) -Rajanv.Radhakrishnan-1983 KLT 406:1983 KLJ 259 : ILR 1983 (2) Ker.354.

[8584] — Rr.5(5)&(8) - Election Petition not complying with provisions of R.5(5) - Cannot be cured by amendments or by withdrawal of grounds.

The legislative policy behind the statute is to put a stop to the proceedings at its very inception if the election petitioner failed to comply with the mandatory provisions contained in the Rules. Preliminary objection with regard to the non-compliance with the provisions of the Rules should be entertained and decided at the initial stage and should not be relegated to the stage of hearing the petition. (Bhaskaran, Ag. C.J. & M.P. Menon, J.) -Mohammed v. Munsiff - 1984 KLT 648 : AIR 1984Ker.202.

[8585] — R.5(5), (8) & 24 - Not pressing of allegation of corrupt practice does not amount to withdrawal of those allegations.

As a result of 'not pressing' certain allegations and grounds raised in a pleading, a litigant submits that the issues arising therefrom may be decided against him and in favour of his opponent; and those issues are decided accordingly. It is virtually a decision by consent. (Poti Ag. C.J., & Vadakkel, J.)

-Muhammed v. Abu Haji -1981 KLT 578.

[8586] — R.ll - Jurisdiction to restore to file an election
petition dismissed for default.

It is true that there is no specific provision in the Act or in the Rule for restoration of a petition dismissed for default. At the same time, there is also no specific provision enabling the Munsiff to dismiss a petition for default. R.ll attracts the provisions of the CPC generally to the entire proceedings, right from the institution to its close, except where there are specific provisions made in the Act or in the Rules themselves for the purpose, or when any particular provision cannot be applied in the peculiar circumstances of an election petition. The provisions in O.IX of the Code are therefore, attracted to the trial of election petitions . If the petition could be dismissed for default, equally it can also be restored on sufficient cause being shown. It is thus evident that courts possess the power to recall orders passed by them in the interests of justice or to prevent abuse of process of the court, in the absence of any express or implied prohibition. If the Munsiff could dismiss for default, equally the power to undo the injustice on sufficient caused being shown should also be found to exist. Therefore, even assuming that O.IX of the CPC was not liable to be invoked, the Munsiff possessed the inherent power to set aside the dismissal for default. The negation of such power will lead to injustice in given cases. (Viswanatha Iyer, J.) -Gopalakrishnan Nair v. Munsiff- 1989 (2) KLT 706 : 1989 (2) KLJ

487.

[8587] — R.24 -Withdrawal of part of an election petition - Is
governed by procedure for withdrawal of whole petition.

The withdrawal or abandonment of part of the claim advanced in the election petition is also governed by the rules applicable to withdrawal and abandonment of the election peition as a whole. (Poti, Ag. C.J. & Vadakkel, J.) - Muhammed v. Abu Haji -1981 KLT

578 : AIR 1981 Ker.220.

[8588] — R.64 - Draw of lots - Notice to be given in writing.

The object of giving notice under Rule 64 is to secure the presence of the candidates or their agents or to enable them to be present at the time of drawing lots. (Kader, J.) - Elsamma v. Annamma- 1982 KLT 662 : 1982 KLN 641 : Reversed in 1984 KLT 387.

[8589] — R.64 - Votes equal - Drawing of lots -Notice in writing

not mandatory - Panchayats Act, 1960 (Kerala), S.H3.

The notice is not a mandatory requirement or a condition precedent to the draw of lots, as the Rule itself makes it clear that notice need be given only in case the candidates or their authorised agents were present. (Bhaskaran, Ag. C.J. & Bhaskaran Nambiar, J.) -Annamma v. Elsamma -1984 KLT 387 : 1984 KLN 216 : 1984 KLJ 217 : ILR 1984 (l)Ker.387.

PANCHAYAT RAJ (PROCEDURE FOR

CONSTITUTION AND POWER OF

STANDING COMMITTEE) RULES,

1995 (KERALA)

[3553] — Panchayat Raj (Constitution, Powers & Procedure of SC) Rules, 1995 (Kerala) R. 6 - Direction given by Presiding Officer interdicting the members, who had already been elected to the standing committee without contest, from exercising their vote for in regard to other categories is illegal.

R.6(3) of the Rules is clear that election is to be conducted only for the seats where the number of candidates is more than the vacancies. In such case, all the members present can exercise their votes. (S. Sankarasuhban, J.) -Alicekutty v. Kadambazhippuram Grama Panchayat - 1996 (2) KLT203: 1996 (2) KLJ

121.

[1420] — Panchayat Raj (Procedure for Constitution and Power of
Standing Committee) Rules, 1995 (Kerala), Rr.3 & 4

-here is no inhibition in varying the strength of the Standing Committee initially fixed - Only limitation is that it should not be less than three and should not exceed five - See - Panchayat Raj Act, 1994, (Kerala), S.162(2) (as amended) & 5.161(7) (G. Sivarajan, 7j-Chacko v. State of Kerala - 2001 (1) KLT 67. Dt. 06/09/2001.

[2287] — Panchayat Raj (Procedure forConstitution and Power of Standing Committee) Rules, 1995 (Kerala), Rr.3 & 4

-There is no inhibition in varying the strength of the Standing Committee initially fixed - Only limitation is that it should not be less than three and should not exceed five - See - Panchayat Raj Act, 1994, (Kerala), S.162(2) (as amended} & 5.161(7). (G. Sivarajan, J.) - Chacko v. State of Kerala-2001(1) KLT 67.

PANCHAYAT RAJ (CONDUCT OF
PUBLIC WORKS) RULES, 1997
(KERALA)

Panchayat Raj (Conduct of Public Works) Rules, 1997 (Kerala)Committee constituted for the construction of a road - Chairman

is only a figure head and the convener is the person who has to represent the committee in every matters - Government interfering in the matter of appointment or removal of the Chairman is not justifiable - See - Panchayat Raj Act, 1994 (Kerala), S.191.

PANCHAYAT RAJ (CONTROL OVER OFFICERS) RULES, 1997 (KERALA) [1419] — Panchayat Raj (Controlling of Officers) Rules, 1997 (Kerala), R.8 -President of a Grama Panchayat has got power to take disciplinary action against a non-gazetted Government servant allotted to the Panchayat -See - Panchayat Raj Act, 1994,

S. 156(6) (b). (K.S. Radhakrishnan & G. Sasidharan, JJ.) -Director of Panchayats v. Krishnan - 2001 (2) KLT 286 : 2001 (I) KLJ 856. Dt. 27/03/2001.

[2285] — Panchayat Raj (Control over Officials) Rules, 1997 (Kerala), R.2(d) -Government School transferred to Panchayat Teacher so transferred is not an official as defined in R.2(d).

As per the said definition an official includes the Secretary or any other official appointed in the Panchayat service or anyone whose services had been lent to the Panchayat in terms of S.76(2) or S. 181(1) of the Kerala Panchayat Raj Act. As already found above the petitioner does not come within either of these. Necessarily the petitioner is not an official as defined in R.2(d) of the said Rules. R.4 of the said Rules enables the Panchayat only to proceed against an official as defined in R.2(d). When the petitioner does not fall within such definition of an official, the respondents cannot proceed against the petitioner. (K.A. Abdul Gafoor, J.) -Sarada v. Nagalassery Grama Panchayat - 1999 (2) KLT 436.

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