KODIYATHUR PANCHYAT Vs. DISTRICT PANCHAYAT OFFICER CALICUT

JUDGEMENT

(1.) The Kodiyathur Panchayat in the Kozhikode District was ordered to be bifurcated as per a notification, Ext. P2, issued by the Government of Kerala on 4-6-1975. The above notification was challenged in O.P. No. 2842 of 1975 by a member of the Panchayat on the ground that it contravened the proviso to S.3(1) of the Kerala Panchayats Act (in short 'the Act'). Under the said proviso, before issuing any notification cancelling an earlier notification constituting a Panchayat, the Government should give a reasonable opportunity to the Panchayat concerned for showing cause against the proposal and should also consider the explanations and objections, if any, of the said Panchayat. This court refused to exercise jurisdiction under Art.226 of the Constitution on the ground that the notification being not a nullity the person affected by it, viz., the Panchayat alone could challenge its validity and a member of the Panchayat had no locus standi to file the petition. The Original Petition was dismissed on 5-12-75. (For more facts and judgment see Mohammed Haji v. Unni Moyi ( 1976 KLT 106 ). In the meanwhile, on 6-11-75 when a meeting of the Panchayat was held, Ext. P3 resolution was passed authorising the Vice President of the Panchayat to question Ext P2 notification in appropriate proceedings before this Court. The Vice President, in pursuance of the above resolution, filed O.P. No. 5224 of 1975 challenging Ext. P2 notification and praying for a writ of certiorari quashing the said notification and for a writ of mandamus or other appropriate writ, order or direction for the issue of notice under S.3 of the Panchayat Act before any steps are taken for bifurcating the Panchayat. The State Government as the third respondent contested the petition. In the counter filed, it is stated that the decision to bifurcate the Panchayat was actually taken in pursuance of the resolutions of the Panchayat and representations by the President thereof for expediting the steps for bifurcation. Exts. R1 and R2 are resolutions passed by the Panchayat demanding a bifurcation on the ground that the existing Panchayat covers an unwieldy area where there are no transport facilities. These resolutions were parsed in the year 1972. Steps for bifurcation could not be taken then for more reasons than one. The Election Commission had issued instructions that no further changes in the extent of the existing Panchayat should be made till the delimitation of the Assembly constituencies on the basis of the 1971 Census was completed. The Panchayats in existence on 1-1-1973 were to be taken into account for the purpose of delimitation of Assembly and Parliamentary constituencies. Ext R3 dated 13-2-73 is the letter received by the Director of Panchayats to the above effect. On 20-8-74 another representation was received by the Government from the President of the Kodiyathur Panchayat for finalisation of the steps for bifurcation of the Panchayat. When the impediments were over a draft notification was prepared by the Director of Panchayats. The Government accepted the draft and the notification was published in the Gazette Extra ordinary dated 4-6-76. The bifurcation was to take effect and the proposed Panchayats were to come into existence on 16-6-1975. The State took the stand that since the bifurcation was effected at the instance of the Panchayat, there has been no violation of the proviso to S.3 of the Act and the notification is not liable to be cancelled. It was contended that the Vice President is not invested with authority under the Act and had no locus standi to represent the Kodiyathur Panchayat. The State also challenged the validity of the resolution passed on 6-11-75 authorising the Vice President to take steps for the cancellation of Ext. P2 notification. A learned single Judge of this Court disposed of the Original Petition holding that Ext. P3 resolution dated 6-11-75 authorising the Vice President to move this court was invalid as such, the petitioner had no locus standi to move this court for the cancellation of Ext. P2 notification. The court accordingly dismissed the petition. The propriety of the dismissal is challenged in this appeal.

(2.) O.P. 5224 of 1975 is no doubt intended for the cancellation of Ext. P2 notification; but the question of cancellation would arise only if the appellant, the Vice President of the Panchayat had authority to file the petition. From the counter of the third respondent, it is made out that a member of the Panchayat Committee challenged Ext. P3 resolution authorising the appellant to move this court and wrote to the 1st respondent, District Panchayat Officer that funds for the prosecution of the litigation should not be sanctioned. The objection of the particular member was that the resolution was passed in his absence and without prior notice to him as contemplated in the rules of the meeting. The resolution was not included in the agenda for the business of the meeting as directed in the rules relating to holding of meetings of the Panchayat Committee. Ext R5, the agenda for the meeting does not include the subject. It appears that the resolution was admitted after the committee began its sitting. It was taken up immediately. Nobody then present at the meeting opposed the resolution and it was passed. But two of the members came late and after the passing of the resolution. It also appears that the two absentee members sent representations to the Director of Panchayats challenging the validity of the resolutions. The said representations are not before court.

(3.) Under the general law relating to meetings no business of an important nature is to be taken up at a meeting of a council or a committee unless notice is given in respect of it to all the concerned members. In other words, notice of meetings should specify the business to be transacted. "When notice is given that particular business will be transacted at a meeting, no other business can be embarked upon at that meeting unless the whole body corporate is present and consents". (See Halsbury's Laws of England, 4th Edn. Vol.9, Para.1296). The following paragraph in Vice Chancellor v. S. K. Ghosh ( AIR 1954 SC 217 ) also deals with the point:-