KODIYATHUR PANCHAYAT Vs. DISTRICT PANCHAYAT OFFICER

JUDGEMENT

(1.) For the fourth time a Government notification dividing a Panchayat into two is under challenge before this Court The notification is dated 4-6-1975 and is marked Ext. P 2 here. By that notification Kodiyathur Panchayat was bifurcated into Kodiyathur and Karassery Panchayats. The said Governmental action is now questioned by the President of the Kodiyathur Panchayat in that capacity and on behalf of that Panchayat. In his capacity as a member of that Panchayat he opposed that action without success in O. P. 2842 of 1975. A Division Bench of this Court said that a member is not competent to impugn the action. That decision is Mohommud Haji V. Unni Moyi ( 1976 KLT 106 ). He then filed O. P. 5020 of 1976 in his capacity as President. Characterising it as an abuse of process of Court, this Court dismissed it in limine. In the meanwhile without proper authority from the Panchayat the Vice President on its behalf filed O. P. 5224 of 1975 to quash the notification This was dismissed for want of authority of the Vice President to file the Original Petition on behalf of the Panchayat. The decision of the learned single Judge, Kodiyathur Panchayat v. Dt Panchayat Officer, (ILR 1976 (II) Kerala 634) was confirmed on appeal by the Vice President. The Division Bench decision is reported as Kodiyathur Panchayat v. District Panchayat Officer ( 1977 KLT 80 ).

(2.) S.3 of the Kerala Panchayats Act, 1960 confers power on the Government to create Panchayats, to alter Panchayat areas and to specify the names and headquarters of such areas. S.3(1)(a) confers on the Government the power to create Panchayats; S.3(1)(b), invests on it the power to exclude any village or portion thereof from a Panchayat area; S.3(1)(c), gives it the power to include any village or portion thereof in a Panchayat area; and S.(1)(d) enables the Government to cancel a notification issued under clause (a) creating a Panchayat or to alter its name and headquarters. These are to be done by Gazette notifications. Before a notification is published in Gazette under any of the clauses (b) to (d) as per the proviso to S.3(1) the affected Panchayat or Panchayats should be given reasonable opportunity to make representations and to prefer objections. This has not been done in this case, and that is the ground on which the notification was questioned in the earlier writ petitions, and is impugned now.

(3.) While it is contended on behalf of the petitioner that since as held in Kodiyathur Panchayat v. Dt. Panchayat Officer (ILR 1976 (II) Kerala 634) the proviso to S.3(1) is mandatory, Ext. P2 notification in contravention of that proviso is null and void, and of no legal consequence at all, according to the respondents that notification, as held by the Division Bench in Mohammed Haji v. Unni Moyi (1976 KLT 106), can be characterised only as voidable 'at the instance of the person against whom it was made', and, according to the learned counsel for respondents, with the person benefited by it, namely, the Karassery Panchayat, on the party array. (That Panchayat is not a party respondent here).