High Court Kerala High Court

Mavoor Grma Panchayath vs The Ombudsman on 19 September, 2007

Kerala High Court
Mavoor Grma Panchayath vs The Ombudsman on 19 September, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 18824 of 2007(N)


1. MAVOOR GRMA PANCHAYATH,
                      ...  Petitioner
2. N.MANOJ KUMAR, S/O.NARAYANAN,

                        Vs



1. THE OMBUDSMAN,
                       ...       Respondent

2. K.SREENIVASAN,

                For Petitioner  :SRI.P.V.KUNHIKRISHNAN

                For Respondent  :SMT.ARLISS TRENCY ANTONY

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :19/09/2007

 O R D E R
                       PIUS C. KURIAKOSE, J.
                        -------------------------------
                     W.P.(C) No. 18824 OF 2007
                      -----------------------------------
              Dated this the 19th day of September, 2007

                               JUDGMENT

Whether it is necessary to serve notices individually, regarding

Grama Sabha meetings convened under Section 3(3) of the Panchayat

Raj Act is the important question which arises for decision in this Writ

Petition.

2. Ext.P1 order of the Hon’ble Ombudsman for Local Self

Government Institutions under which the Ombudsman directed the

Panchayat to cancel the beneficiary list and the decisions taken in the

Grama Sabha of Ward No.15 of the petitioner-Panchayat is under

challenge in this Writ Petition initiated by the Panchayat and the

Convenor of the beneficiary committee, i.e., Convenor of the Grama

Sabha of Ward No.15. The complaint before the Ombudsman was

Ext.P2. The allegation in Ext.P2 is that the beneficiary list prepared by

the Grama Sabha in so far as it enlists a lady by name Alumkandi

Chakky who is alleged to be not eligible for the benefit under the House

Construction Scheme since her daughter Kalyani has received a total

amount of Rs.4,50,000/- by way of compensation from the Gwalior

Rayons Company, is illegal. When the complaint came up before the

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Ombudsman, the Ombudsman would enquire of the complainant (the

2nd respondent herein) as to why the objection regarding Chakki was

not raised before the Grama Sabha. The 2nd respondent would answer

that he was not having any notice regarding the convening of the Grama

Sabha. On hearing the above answer, the Ombudsman would seek an

explanation from the Secretary of the Panchayat who was present and

the Secretary conceded that individual notices were not served even on

the heads of the families constituting the Grama Sabha. Observing that

it is the constitutional mandate of the Panchayat and the Convenor of

the Grama Sabha to serve individual notices to all members of the

Sabha regarding the Grama Sabha meetings and further that giving of

such individual notices is the fundamental duty as far as the Panchayat

Member is concerned, the learned Ombudsman went on to pass the

impugned order directing the Panchayat to cancel all the beneficiary lists

covered by Ext.P4 minutes in which the item pertaining to Chakki is

item No.14.

3. The 2nd respondent has filed a detailed counter affidavit

justifying the order of the Ombudsman. The counter affidavit even goes

beyond Ext.P2 complaint and submits that all the decisions in Ext.P4 are

vitiated since undeserving persons have been conferred with benefits.

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4. Heard Mr.P.V.Kunhikrishnan, learned counsel for the petitioners

and Mr.B.Mohanlal, counsel for the 2nd respondent.

5. My attention was drawn by Mr.Kunhikrishnan to Rule 4 of the

Kerala Panchayat Raj (Procedure for convening the Grama Sabha)

Rules, 1995 and also to Rule 4 of the Kerala Panchayat Raj (Manner of

publication of notification or notice ) Rules, 1996. Counsel would argue

that service of individual notices on the Grama Sabha members is not

envisaged by those Rules. Referring to Ext.P6 public notice, learned

counsel submitted that requisite notice has already been given. Counsel

also submitted that notices were affixed in public places and there was

loud speaker announcement also. Counsel also submitted that the

Convenor’s version that he tried his best to inform the members of the

Grama Sabha of the proposed meeting is not under serious challenge.

6. Mr.Mohanlal, counsel for the petitioner would draw my attention to

Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996 and

particularly to Rule 3 therein. According to him, in as much as the

Kerala Panchayat Raj (Procedure for Convening the Grama Sabha)

Rules, 1995 do not prescribe any particular mode for service of

individual notice to Grama Sabha meetings, the proper rule to be

followed is the Kerala Panchayat Raj (Manner of Service of Notices)

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Rules, 1996.

7. Rule 3 of the Kerala Panchayat Raj(Manner of Service of Notices)

Rules, 1996 provides as follows:

“3. Serving of notice:- (1) In case the Act or rules or bye-laws

made thereunder requires the Panchayat to serve any notice or

document to a person, such service or sending shall, unless

otherwise provided in the Act or rules or bye-laws made

thereunder, be done,-

(a) by service or sending of notice or document to such

person; or”

(rest being irrelevant is omitted.)

It is true that as per Rule 3(a) of the Kerala Panchayat Raj

(Manner of Service of Notices) Rules, 1996, service of individual notice

to the person who is intended to be served with notice has been

contemplated. But Rule 3 of the Kerala Panchayat Raj (Manner of

Service of Notices) Rules, 1996 applies only in cases where the

Panchayat Raj Act or Rules or Bye-laws made thereunder requires the

Panchayat to serve notices to a person. The Panchayat Raj Act does

not insist on service of notice of Grama Sabha meetings to the persons

who constitute the Grama Sabha as per Section 3(2) or to the head of

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the families within the area of the Grama Sabha. The relevant Rule in

my opinion is Rule 4 of the Kerala Panchayat Raj (Procedure for

convening the Grama Sabha) Rules, 1995 which is quoted hereunder:

“4. Date and Time for the meeting of the Grama Sabha:-

The President of the Village Panchayat shall, in consultation with

the Convenor of the Grama Sabha concerned, fix the date and

time between 8 am and 6 pm. And the Secretary of the Village

Panchayat concerned shall publish the place date and time of the

meeting, so fixed, by affixing notice in appropriate public places,

Government Offices, schools in the area of the Grama Sabha and

in the office of the Village Panchayat. The Convenor concerned

shall try to inform the members of the Grama Sabha the place,

date and time of the meeting and cause them to attend the

meeting (underlining supplied).”

Thus under the Rule what is required is only that there shall be

publicity regarding the proposed meeting of the Grama Sabha and that

the Convenor concerned shall try to inform the members of the Grama

Sabha, the place, date and time of the meeting and cause them to

attend the meeting. What is contemplated is publication of the date,

place and time, by affixing notice in public places, Government Offices,

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Schools in the area of the Grama Sabha and in the office of the

Panchayat. The mandate to the Convenor is only that he shall try to

inform the members of the venue and time of the meeting and also

cause them to attend the meeting. Rule 4 of the Kerala Panchayat Raj

(Procedure for convening the Grama Sabha) Rules, 1995 being the

apposite Rule, the question to be considered is whether that Rule has

been complied with in the instant case. The materials available and

placed on record by the petitioners will show that there has been

adequate compliance with that rule. Ext.P6 is copy of the notice issued

by the Convenor of the Grama Sabha regarding the Grama Sabha

meetings which is proposed to be held on 2.9.06 at 3 PM in a local

school. The agenda of the meeting is clearly shown in Ext.P6. The

claim that the notices were affixed in important places within the area of

the Grama Sabha and propagated through loud speaker is not

challenged. Considering the Pragmatic difficulties in serving individual

notices on all the members of the Grama Sabha which may consists of

thousands of people the learned Ombudsman is not justified in insisting

on service of individual notices on all the members when neither the

statute nor the relevant rule requires such service. The meeting in

question, in my opinion was convened with due notice to the Grama

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Sabha members and the learned Ombudsman was not justified in

cancelling the beneficiary lists and all the decisions taken in the meeting

and directing the consideration of the beneficiary lists in the next Grama

Sabha. It is also to be noticed in this context that the statutory quorum

for Grama Sabha meeting is only 10% of the total number of voters and

obviously quorum has been fixed so taking into account the pragmatic

difficulties which will arise if a higher quorum is insisted upon.

8. There is another reason why I am unable to sustain Ext.P1

order. Ext.P2 complaint was specifically directed against the decision

which is mentioned as item No.14 in Ext.P14 minutes, i.e., the decision

to give the benefit to Smt.Chakki. It was not proper to set aside all the

decisions as per Ext.P4 on the basis of Ext.P2 complaint. Of course, in

his verbal submissions before the Ombudsman and through the counter

affidavit filed by him before this court, the 4th respondent has attempted

to say that all the decisions in Ext.P4 are vitiated. But in my opinion the

2nd respondent having confined his complaint against Smt.Chakki alone

in Ext.P2, is not entitled to challenge the other decisions in Ext.P4.

9. I set aside Ext.P1 to the extent it pertains to the decisions other

than item No.14 in Ext.P4 minutes. There will be a direction to the

Ombudsman to take fresh decision on Ext.P2 complaint confining the

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enquiry into the question whether there is any infirmity about the

decision which is mentioned as item No.14 in Ext.P4 with notice to the

parties. The Ombudsman will ensure that notice is also issued to

Smt.Chakki and the 2nd respondent herein before fresh orders are

passed.

The Writ Petition is allowed of as above. No costs.

PIUS C.KURIAKOSE, JUDGE
srd/btt

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