VANARAJ Vs. SANTHANPARA GRAMA PANCHAYATH

JUDGEMENT

(1.) The petitioner, an elected member of the first respondent Grama Panchayat has filed this Writ Petition challenging the action of respondents 1 and 2 in giving on lease four rooms of a newly constructed shopping complex belonging to the third respondent Co-operative Bank. The contention of the petitioner is that, R. 11 of the Kerala Panchayat Raj Act (Acquisition and Disposal of Property) Rules, 2005 (the 'Rules' for short) mandates that no property shall be transferred to anyone except through public auction or by inviting tenders. Since neither of the above procedures have been adopted in the present case, it is contended that the impugned action of the first respondent is illegal and liable to be set aside. According to the petitioner, the third respondent bank had written a letter to the first respondent Grama Panchayat requesting that the building may be given to them on rent. The Panchayat Committee had considered the letter and had taken a decision on 21.5.2013 deciding that the building be let out to the third respondent. The Nedumkandam Urban Co-operative Bank had also submitted a similar request expressing their willingness to take the building on rent. On 11.6.2013 the said request was considered but, in spite of the objections of the petitioner and four other members, the Committee had decided to let out all the rooms to the third respondent. The petitioner has therefore sought for the issue of appropriate directions quashing the said decision. A counter affidavit has been filed by the third respondent refuting the allegations in the Writ Petition. Adv. Ajith Prakash appears for the said respondent. According to Adv. Moly Jacob who appears for respondents 1 and 2 the Writ Petition itself is not maintainable at the instance of the petitioner for the reason that as a member of the first respondent Panchayat Committee he was a party, to the said decision that is under challenge. The principle of collective responsibility disentitles the petitioner from challenging the said decision. Reliance is placed on a decision of this Court to support the said contention. Apart from the above, it is contended that R. 11 applies only to a situation where any property is proposed to be transferred to a member of the public. Institutions like the third respondent do not come within the scope of the said provision, it is contended. Apart from the above, it is pointed out with reference to Exts. P2(A) and P3(A) copies of the resolutions produced by the petitioner that, the petitioner had not raised any objection to the resolution on the basis of the Rule on which reliance is placed in this Writ Petition. The petitioner only wanted two rooms to be given on rent to a nationalised bank. Later on, in Ext. P3(A) he had taken a stand that two rooms be given on rent to Nedumkandam Urban Co-operative Bank. For the above reasons, it is contended that the Writ Petition is not maintainable either in fact or law.

(2.) I Have heard Adv. George Sebastian who appears for the petitioner, Adv. Moly Jacob who appears for respondents 1 and 2 and Adv. Ajith Prakash who appears for the third respondent.

(3.) As already noticed above, the contention of the petitioner is that, Ext. P2(A) resolution by which the Panchayat Committee has decided to give four rooms of the shopping complex constructed by it on rent to the third respondent is in violation of R. 11 of the Rules. It is contended that the shop rooms could be given on rent only by following one of the two procedures stipulated by the said Rule viz., by conducting a public auction or by inviting tenders. R. 7 is also relied on to contend that the Panchayat has no authority to deal with its property in violation of the Rules. Since the facts are not in dispute, it is contended that, the petitioner is entitled to raise the question of legality of the resolution in spite of the fact that he was a party to the decision that is under challenge. The petitioner places reliance on S. 191(1) of the Kerala Panchayat Raj Act, 1994 (the 'Act' for short) to contend that under the present Act, even a member of the Panchayat is entitled to challenge a decision taken by the Panchayat. The above provision is according to the counsel, a deviation from the position obtained under S. 364 of the Kerala Municipalities Act, 1960. The change effected by the provision in the present enactment, discloses according to the counsel, a legislative intent to permit a member of a Panchayat Committee also to challenge a resolution of the Panchayat. Therefore, it is contended that, this Writ Petition is maintainable even at his instance. S. 191(1) reads as follows:--