CHEKKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) This is a petition by the Karnavan and manager of the Thekumuri Jumayat Mosque, to quash Ext. P. 2, an order passed by the second respondent, the Collector of Kozhikode, cancelling resolutions dated June 5, 1957, August 30, 1958, and October 17, 1958, passed by the Trikkandiyur Panchayat, granting permission to the petitioner to bury the dead in the compound attached to the mosque bearing Resurvey No. 119/8. The chief ground on which the petition is founded is, that the Collector did not give notice to the petitioner or afford an opportunity to him to be heard in support of the resolutions, and that therefore the order was passed in violation of the rules of natural justice. The relevant provisions of the concerned statute which is, the Madras Village Panchayats Act, 1950 and which may be referred to as the 'Act', may be quoted:--

(2.) It will be observed, that clause (a) and (b) of sub-s.(1) relate to resolutions, orders, licences, permissions, etc, which have not been legally passed, or issued or granted, or which are in excess of the powers conferred by the Act or any other law, and that S.43(2) prescribes, that before taking action with respect to them, an opportunity for explanation shall be given to the authority or person concerned. Clause (c) of sub-s.(1) relates to resolutions, orders, licences, permissions, the execution or continance of which is dangerous to life or health, or is likely to lead to a riot or an affray, obviously, matters in respect of which, prompt and preventive or remedial action is indicated, and are therefore distinguishable from cases under clauses (a) and (b). Therefore, S.43(3) which relates exclusively to cases under clause (c), does not prescribe an opportunity for explanation being given to the authority or person, who is affected.

(3.) In the present case, however, before passing the order impugned, the Collector had addressed the Panchayat to give effect to the report of the local authority on public health, by withdrawing the permission to bury the dead ; but the Panchayat did not give effect to it. The Collector then addressed the President of the Panchayat, requesting him to convene a special meeting of the Panchayat to "place before it the above facts and explain, why the resolutions referred to above should not be cancelled by him for reasons stated, in the exercise of the power under S.43(1) (c) read with S.43(3)". The Panchayat however passed a resolution affirming the earlier resolutions, and communicated it to the Collector, and it was after considering it, that Ext. P. 2 came to be passed. If the procedure prescribed by S.43(2) may be pressed into service, also with respect to a. matter governed by S.43(3), even then, there was substantial compliance with such procedure, an opportunity for explanation having been afforded to the Panchayat, though not to the petitioner; but as I take it, it was unnecessary for the Collector to have followed it, to give validity to his action.