VANARAJ Vs. SANTHANPARA GRAMA PANCHAYATH

JUDGEMENT

(1.) Present appeal is directed against judgment of learned Single Judge dated 8.1.2014. Appellant is none other than writ petitioner who approached learned Single Judge challenging Exts. P2(a), P3 (a) and P4(a). It is not in dispute that appellant petitioner is also an elected member of first respondent Grama Panchayat. First respondent Grama Panchayat apparently has constructed first floor of Poopara Shopping Complex belonging to first respondent Panchayat by putting up four rooms. Various institutions approached first respondent with a request to let out the said rooms on lease basis to them. Ultimately, by virtue of a resolution, respondents 1 and 2 decided to hand over all the four rooms to third respondent Co-operative Bank. However, admittedly petitioner was a descending member so far as the above said resolution concerned. According to petitioner, this decision of first and second respondents to lease property to third respondent Co-operative Bank is without adhering to procedure contemplated under R.11 of Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005. When petitioner approached learned Single Judge, respondents raised objections contending that Writ Petition itself is not maintainable as petitioner also took part in decision making process. Therefore, he is not entitled to challenge resolution in question. They also refer to S. 191(1) of Act to contend that remedy open to petitioner was to approach Government challenging the decision of the local body, i.e., Panchayat in question. Learned Judge, after considering merits of both the parties, ultimately opined that R.7(1) provides that Panchayat is authorized to construct buildings and to give them on rent to public in accordance with the provisions of Act and Rules and therefore third respondent not being a public, there is no lapse on the part of first and second respondents. So far as maintainability, he opined that Writ Petition is not maintainable and accordingly Writ Petition was dismissed. Aggrieved by the said judgment of learned Single Judge, appellant is before us. Learned counsel for appellant has brought to notice of bench original Rules which are in Malayalam and also pointed out defect crept in so far as English translation of above said Rules. On reading English version and Malayalam version of Rules, there is apparently mistake so far as translation into English. R. 11 as per English version reads as under:

(2.) The above Rule clearly indicates that except sale, Panchayat has no obligation to follow transfer of property either in public auction or by inviting tenders. In other words, it says so far as renewal of licenses, rehabilitation of licensees and granting of lease, there is no need to follow the procedure of transfer by public auction or by inviting tenders. When we go through Malayalam version it reads as follows:

(3.) It clearly indicates that only for renewal of licenses and for rehabilitation of licensees, there is no need to follow the procedure of transfer by public auction or by inviting tenders. But transfers of property of Panchayat through sale, granting of lease and letting out on rent shall either be in public auction or by inviting tenders. Learned Government Advocate also accepts said mistake crept in English version of Rules in the gazette. By reading Malayalam version, it is very clear if property is transferred by way of lease for first time it has to be either by public auction or by inviting tenders. Apparently said procedure is not followed by respondent Panchayat as they have fixed rent by following rates adopted by Public Works Department. Apparently, it is not the case of respondents 1 and 2 that they are not bound by the procedure to be followed as contemplated under R. 11, that is either by auction or by inviting tenders. By going through the facts and material on record, a case is clearly made out that procedure contemplated under R.11 is not at all followed by respondent Panchayat. There is no other provision which indicates that only in case of transfer to a public such procedure is contemplated. R. 11 says transfers to be either in public auction or through tenders whenever property of Panchayat is let out either on lease or letting on rent or by sale. Therefore, we are of the opinion that opinion of learned Single Judge that third respondent not being a public no such procedure is applicable is erroneous.