Kerala High Court
Rajan J. Pallan vs The Thrissur Municipal ... on 8 June, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
WEDNESDAY, THE 8TH DAY OF JUNE 2022 / 18TH JYAISHTA, 1944
WP(C) NO. 23175 OF 2021
PETITIONERS:
1 RAJAN J. PALLAN
AGED 56 YEARS
S/O I.JOSE PALLAN, PALLAN HOUSE, KUNDUVARA,
CHEMBUKKAVU,
THRISSUR-20.
2 JOHN DANIEL,
S/O DANIEL, EZHUTHUPURAKKAL HOUSE, PONNUVEETTIL
LANE, PATTURAICKAL, THRISSUR-22.
BY ADVS.
V.M.SYAM KUMAR
SNEHA RAJIV
P.F.ROSY
K.M.BASHEER
RESPONDENTS:
1 MUNICIPAL CORPORATION OF THRISSUR,
M.O.ROAD, THRISSUR, REPRESENTED BY ITS SECRETARY,
PIN-680001.
2 THE SECRETARY,
MUNICIPAL CORPORATION OF THISSUR, MO ROAD,THRISSUR,
PIN-680001.
3 MAYOR,
MUNICIPAL CORPORATION OF THRISSUR, M.O.ROAD,
THRISSUR,PIN-680001.
WPC 23175/2021
2
BY ADV S.ANANTHAKRISHNAN
OTHER PRESENT:
SRI.SANTHOSH .P.PODUVAL, SC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
02.06.2022, THE COURT ON 8.6.2022 DELIVERED THE FOLLOWING:
WPC 23175/2021
3
"CR"
P.V.KUNHIKRISHNAN, J
--------------------------------------------
W.P.(C.) No. 23175 of 2021
--------------------------------------
Dated this the 8th day of June, 2022
JUDGMENT
The petitioners are the elected members of the Thrissur
Corporation Council. The above writ petition is filed challenging
Exts.P2 and P4. Ext.P2 is a proceeding issued by the 3 rd
respondent rejecting the request of the petitioners and 22 other
members of the Council for convening a meeting in accordance
with Kerala Municipality (Procedure for Meeting of Council)
Rules, 1995 (Hereinafter referred to as Rules 1995). Ext.P4 is
the proceedings of the 2nd respondent by which the 2 nd
respondent also rejected the prayer of the petitioners and 22
others for making the arrangement to convene the meeting as
per Rule 7(2) of the Rules, 1995.
WPC 23175/2021
2. The short facts are like this:- According to the
petitioners, the master plan that had been purportedly evolved
for Thrissur Corporation had given rise to widespread criticism
alleging lack of transparency in its creation and for its contents.
It is stated by the petitioners that the demand to discuss the
master plan and issues concerning the same had been raised by
them within the Corporation Council and before the general
public. It is the case of the petitioners that though it was
proposed to be discussed at one point of time, the 3 rd
respondent consistently scuttled the attempts to deliberate the
said matter in the Council. Hence, Ext.P1 notice was issued
under Rule 7(1) of the Rules, 1995 before the 3 rd respondent by
the petitioners and 22 other members. But as per Ext.P2 reply,
the 3rd respondent rejected the request based on a legal
opinion. It is stated in Ext.P2 that two writ petitions are pending
before this Court as W.P.(C.) No. 20287/2021 and W.P.(C.) No.
12935/2021. According to the 3rd respondent, if a meeting is
WPC 23175/2021
convened to discuss about the cancellation of the master plan,
that will affect the cases pending before this Court. Since Ext.P2
was issued by the 3rd respondent, it is stated in the writ petition
that the petitioners and other members of the Council decided
to convene the meeting in accordance with Rule 7(2) of the
Rules, 1995. For making arrangements for convening the
meeting in accordance with Rule 7(2) of the Rules, 1995, the 1 st
petitioner submitted Ext.P3 to the 2nd respondent. But the 2nd
respondent rejected the same as evident by Ext.P4 based on
Ext.P2 decision of the 3rd respondent. Aggrieved by the same,
this writ petition is filed.
3. Heard Advocate V.M.Syamkumar, who appeared for
the petitioners, and Advocate Ananthakrishnan, the learned
Standing Counsel who is appeared for the respondents.
4. The learned counsel for the petitioners submitted that
if 1/3rd members of the Council request the 3rd respondent to
convene a meeting of the Council, the 3rd respondent has no
WPC 23175/2021
other option but to convene the meeting, if the conditions in the
proviso to Rule 7 are complied. The counsel submitted that,
there is no case to the respondents that the conditions provided
in the proviso to Rule 7(1) are not complied. In such
circumstances, Ext.P2 order is unsustainable. The counsel
further submitted that when the petitioners requested the 2 nd
respondent to make arrangements for convening the meeting in
accordance with Rule 7(2) of the Rules, 1995, the 2 nd
respondent simply endorsed the order of the 3 rd respondent and
rejected the same as per Ext.P4. According to the petitioners,
this is in total violation of Rule 7(2). Therefore, the counsel for
the petitioners contended that Exts.P2 and P4 are
unsustainable, and it is in total violation of Rule 7 of the Rules,
1995. The Standing Counsel appearing for the respondents
submitted that a detailed counter affidavit is filed by respondent
Nos. 1 and 2. The Standing Counsel submitted that the master
plan of Thrissur Corporation was sanctioned by the Government
WPC 23175/2021
in accordance with Section 36(8) of the Kerala Town and
Country Planning Act, 2016 (In short Act, 2016). It was further
stated that the notice regarding the sanctioned master plan was
published by the Government in the extra ordinary Gazette
No.1995/1995 dated 26.2.2021, which is produced along with
the counter affidavit as Ext.R1(a). Moreover, the draft master
plan was published in Kerala Gazette No.22 on 6.11.2012 and
the objections and suggestions were invited. Subsequently, the
master plan was approved by the District Planning Committee in
its meeting dated 19.6.2014 and thereafter, the Municipal
Council as per its resolution dated 26.11.2019 adopted and
approved the same and forwarded it to the Government. It is
stated in the counter affidavit that the master plan was
sanctioned by the Government. It is also stated that the
Municipal Council does not have the administrative power to
cancel a master plan sanctioned by the Government. The
Council has to publish the master plan as per Section 36 (10) of
WPC 23175/2021
the Act, 2016 and thereafter, prepare an execution plan for the
first five years. It is submitted that the Chairman has the power
to disallow any resolution if it does not comply with the
conditions laid down in Sub Rule 4 of Rule 18 of Rules, 1995. It
is stated that the resolution sought to be moved as stated in
Ext.P1 is specifically barred under Sub-Rule 4(a) and (f) of Rule
1995. It is also submitted that though the word used in Rule 7 is
"shall", the same will be operative only if the agenda of the
meeting requested to be held invoking Rule 7 is in conformity
with the procedure laid down under Rule 18 of the Rules, 1995.
It is also contended that the members will be able to invoke
sub-rule 2 of Rule 7 only if the Chairman does not respond to
their notice under Rule 7. It is the case of the respondents that
the Chairman has communicated that the meeting cannot be
held in view of the bar under Rule 18 and hence, Rule 7(2) has
no application. A reply affidavit is also filed by the petitioner
denying the averments in the counter affidavit.
WPC 23175/2021
5. The short point to be decided in this writ petition is
whether the Chairman is bound to convene the meeting if a
request is submitted as per Rule 7 of the Rules, 1995 and
whether the Chairman can reject such request based on Sub-
clause Clause 4 (a) and (f) of Rule 18.
6. The Government of Kerala framed the Rules, 1995 in
exercise of the powers conferred under Secs.19 and 36 of the
Kerala Municipality Act, 1994 r/w Section 565 thereof. Rule 3 of
the Rules 1995 deals with the place and time of meeting of
Municipalities. Rule 4 of the Rules 1995 deals with notice and
agenda of the meeting. Rule 5 deals about emergency meeting.
Rule 6 deals with preparation of agenda. Rule 7 deals with the
requisition for convening of meeting. Rule 18 deals with the
procedure for moving resolution in the Council meeting. For
refusing to convene a meeting under Rule 7, whether the
Chairman can invoke his powers under Rule 18(4)(a) and (f) is
the question to be decided in this writ petition. For deciding the
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same, it will be better to extract Rule 7 of the Rules 1995 first.
"7. Requisition for convening of meeting.-(1) The Chairman
shall, if so requested in writing by not less than one third of the
members in the Council, existing at that time convene the
meeting of the Council:
Provided that the notice requesting the convention shall contain
a date other than a public holiday for convening the meeting
and the subject or subjects to be considered in the meeting and
such notice shall be given to the Chairperson or in his absence
to the Secretary or in the absence of both, to the officer having
charge of the office at that time, ten days prior to the date
proposed in the notice for convening the meeting, at the
Municipal office on working hours:
Provided further that the Chairperson may, if so thinks fit,
accept a notice with less than ten days.
(2) The members who have issued notice under sub-rule (1)
may, if the Chairperson does not convene the meeting within
three days from the receipt of the notice under sub-rule (1) on
the day specified therein, convene the meeting by giving notice
to other members as provided in rule 4. No subject other than
the subjects mentioned in the notice shall be discussed in such
meeting."
7. The rule states that the Chairman shall, if so
requested in writing by not less than one third of the members
in the Council, existing at that time convene the meeting of the
Council. So there is no ambiguity in the rule for any other
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interpretation except the inference that if a request in writing by
not less than one third of the members of the Council is
submitted for convening a meeting, the Chairman shall convene
the meeting. But as per proviso to the Rule 7(1), the notice
requesting the convention shall contain a date other than a
public holiday for convening the meeting and the subject or
subjects to be considered in the meeting and such notice shall
be given to the Chairperson or in his absence to the Secretary
or in the absence of both, to the officer having charge of the
office at that time, ten days prior to the date proposed in the
notice for convening the meeting, at the Municipal office on
working hours. Therefore, one of the conditions that have to be
fulfilled for requesting to convene the meeting as per Rule 7(1)
is that the request should come from one third of the members
in the Council, existing at that time. Moreover the notice
requesting the convention shall fulfill the requirements laid
down in the proviso to Rule 7(1). If the conditions in the proviso
WPC 23175/2021
to Rule 7(1) of the Rules, 1995 are complied and if there is a
request from one third of the members of the Council existing at
that time to convene the meeting of the Council, the Chairman
has no other way except to convene the meeting. The second
proviso to Rule 7(1) also says that the Chairperson may, if so
thinks fit, accept a notice with less than ten days.
8. The contentions raised by the respondents is that Rule
7 of the Rules 1995 is to be read along with Rule 18 of the same
Rules. The respondents relied on Rule 18(4)(a) and (f). It will
be better to extract Rule 18 of the Rules, 1995 for a proper
decision of the case.
"18. Procedure for moving resolutions in the Council
Meeting-(1) A Councillor who intends to move a resolution
shall give seven clear days a notice of such intention in writing
to the Chairperson along with a copy of that resolution:
Provided that the Chairperson may include a resolution in the
agenda by a shorter notice than seven days.
(2) No Councillor shall move more than one resolution in a
meeting.
(3) The Chairperson shall examine all the resolutions and shall
have power to disallow any resolution which in his opinion does
WPC 23175/2021
not comply with the conditions laid down in sub-rule (4).
(4) a resolution in order to be admissible shall comply with the
following conditions, namely:
(a) It shall relate to matters coming within the administrative
power of the Municipality,
(b) It shall be clearly and precisely worded;
(c) It shall relate to a single matter,
(d) It shall not contain argument, hypothetical inferences,
ironical expressions or defamatory statements;
(e) It shall not refer to the conduct or character of person
except that in his official or public position;
(f) It shall not refer or relate to a matter which is under
adjudication by a court of law.
(5) The Chairperson may decide to allow and to give priority to
resolutions and may disallow any resolution part or in full
which in his opinion contravenes the provisions of the Act or
the rules made thereunder and his decision thereon shall be
final.
(6) The resolution allowed by the Chairperson shall be included
in the agenda.
(7) The President shall, when any resolution is disallowed and
not included in the agenda on any ground under sub-rule (4),
intimate the fact to the councillor concerned intimating the
reasons for disallowing the resolution.
(8) A Councillor in whose name a resolution is included in the
agenda may, when called either move or withdraw of the
resolution by making a statement.
WPC 23175/2021
(9) If a member allowed to move a resolution is absent, any
other Councillor authorised by him may, with the permission of
the Chairperson, move the resolution and if not so moved, it
shall be deemed to have been withdrawn.
(10) Every resolution moved by a Councillor shall be seconded
by another Councillor.
(11) The discussion on a resolution shall be confined to the
contents of the resolution.
(12) Any Councillor may move amendments to resolutions
during discussion subject to sub-rules (4), (5) and (10).
(13) The Councillor who has moved a resolution or amendment
to a resolution shall not withdraw the same except by leave of
the Council.
(14) A resolution included in the agenda shall, if not discussed
in that meeting, be deemed to have lapsed.
(15) The Chairman shall put amendments to vote ordinarily in
the order in which they have been moved and if the
amendments are lost, but the original motion to vote.
(16) A resolution which has been discussed and rejected by the
Council shall not be moved again before the lapse of six
months from the date of rejection.
(17) The time allotted for a resolution shall not exceed half an
hour at any Council meeting."
(underline supplied)
9. The heading of the Rule 18 reads as this:
"Procedure for moving resolution in the Council
WPC 23175/2021
meeting". The heading of Rule 7 reads as: "Requisition for
convening a meeting". Therefore, the headings of the rules
itself shows that these two Rules are applicable in two different
situation. Requisition for convening a meeting and procedure for
moving a resolution in the Council meeting is different. The
question of procedure for moving resolution in the Council
meeting is applicable only if there is a meeting is convened.
Once a meeting is convened, the procedure for moving a
resolution in the Council meeting can be followed by the
respondents. But a request for convening a meeting cannot be
rejected for the reasons mentioned in Rule 18. A request for
convening the meeting as per Rule 7 can be rejected only if the
conditions mentioned in the proviso to Rule 7(1) are not
complied with or if the request is not made by one third of the
members in the Council existing at that time. Rule 18(4)(a)
states that a resolution in order to be admissible shall relate to
matters coming within the administrative power of the
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Municipality. Rule 18(4)(f) states that the resolution in order to
be admissible shall not refer or relate to a matter which is under
adjudication by a court of law. As I observed earlier, the
procedure for moving a resolution in the Council meeting and
the requisition for convening the meeting are different. Once a
request is made by the one third of the members in the Council
strictly in accordance to Rule 7(1) read with its proviso, the
Chairman has no other option but to convene the meeting. The
procedure for moving the resolution in the Council meeting is
applicable only after convening the meeting.
10. In this case, Ext.P2 order was passed by the 3 rd
respondent rejecting the request for convening the meeting
mainly based on the pendency of some cases before this Court.
That is not a ground to reject a request for convening a meeting
as per Rule 7(1). The 3rd respondent need not rely on Rule 18
while considering a request under Rule 7(1). The Chairperson
only needs to look into whether the conditions in Rule 7(1) and
WPC 23175/2021
its proviso are complied, and if the same is complied with, the
Chairperson has no other option but to convene the meeting.
The procedure for moving a resolution in the Council meeting is
separately narrated in Rule 18. Moreover, Rule 18 starts with
the words, "a Councillor who intends to move a resolution" and
Rule 7 says about the requisition for convening of a meeting of
the Council. Therefore, Rule 7 and Rule 18 are independent
Rules and for deciding to convene a meeting by the Chairman
under Rule 7(1), the resolution that is going to be introduced
in the council meeting need not be considered at that stage.
Therefore, Ext.P2 order will not stand, prima facie, in the light
of Rule 7(1) and its proviso.
11. The next challenge in the writ petition is Ext.P4 order
of the 2nd respondent. As per Rule 7 (2), the members who have
issued notice under sub-rule (1), may, if the Chairperson does
not convene the meeting within three days from the receipt of
the notice under sub-rule (1) of that Rule on the day specified
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therein, convene the meeting by giving notice to other members
as provided in Rule 4. Rule 4 deals about notice and agenda of
the meeting. In this case, the Chairman refused to convene a
meeting and issued Ext.P2 relying Rule 18(4) (a) and (f) of the
Rules 1995. This Court already found that Ext.P2 is
unsustainable. The petitioners requested the 2 nd respondent to
make arrangements for convening the meeting as evident by
Ext.P3. The same was rejected by the 2nd respondent based on
Ext.P2 order of the 3rd respondent. Prima Facie, such a stand of
the 2nd respondent cannot be accepted. The convening of
meeting by the members as per Rule 7(2) is their right, if the
request for convening a meeting under Rule 7(1) is rejected by
the Chairman. When the Rules 1995 allow the members to
convene a meeting under Rule 7(2) as provided in Rule (4), if
the request under Rule 7(1) is rejected by the Chairman, it is
the bounden duty of the 2 nd respondent to make necessary
arrangements to convene the meeting. In the counter affidavit,
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nd
the 2 respondent took a stand that the members will be able
to invoke sub-rule (2) of Rule 7 only if the Chairman does not
respond to their notice under Rule 7(1). This Court cannot
endorse such a stand of the 2 nd respondent. The Rule is crystal
clear and there is no ambiguity. The Rule says that the
members who have issued a notice under sub Rule (1) may, if
the Chairman does not convene the meeting within three days
from the receipt of the notice under sub Rule (1), they can
convene a meeting by giving notice to other members as
provided in Rule 4. The word used in Rule 7(2) is "the
Chairperson does not convene the meeting" and not "the
Chairperson does not respond to a notice under Rule
7(1)". As per Ext.P2, the Chairperson informed that he is not in
a position to convene a meeting for the reasons mentioned in it.
Simply by sending a reply or response to a notice under Rule
7(1), which is against Rule 7(1), the right of the members to
convene a meeting under Rule 7(2) cannot be taken away. If the
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Chairman does not convene a meeting even after fulfilling the
conditions in Rule 7(1) and its proviso, the members have a
right to convene the meeting. Therefore, Ext.P4 order of the 2 nd
respondent also will not stand.
12. Therefore, Exts.P2 and P4 are unsustainable for the
reasons mentioned above. But the prayers in Ext.P1 which leads
to Ext.P2 are now infructuous because the request in Ext.P1 was
to convene a meeting on 27.10.2021. Therefore, the petitioners
and the other members are free to file a fresh requisition for
convening a meeting, if they intend to do so, strictly in
accordance with Rule 7(1) of the Rules, 1995. If such a request
is made, the 3rd respondent is bound to consider the same in the
light of the observations made in this judgment.
Therefore, this writ petition is allowed in the following
manner:
i. Exts.P2 and P4 are quashed.
ii. The petitioners and the other members of the
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Council are free to submit a request for
convening the meeting on a specific date strictly
in accordance with Rule 7 read with its proviso
and if such a request is received, the 3 rd
respondent will consider the same strictly in
accordance to Rule 7(1) and its proviso.
iii. If the request for convening the meeting is
rejected or if the 3rd respondent does not
convene the meeting, even though the
conditions in Rule 7 and its proviso are fulfilled,
the 2nd respondent will do the needful to
facilitate the petitioner and other members to
convene a meeting strictly in accordance to Rule
7(2) of the Rules 1995.
Sd/-
P.V.KUNHIKRISHNAN
JUDGE
SKS/das/DM
WPC 23175/2021
APPENDIX OF WP(C) 23175/2021
PETITIONERS EXHIBITS
Exhibit P1 TRUE COPY OF THE NOTICE DTD.08.10.2021
PREFERRED BY THE PETITIONERS AND OTHER 22
MEMBERS OF THE COUNCIL.
Exhibit P2 TRUE COPY OF THE REPLY DTD.09.10.2021
ISSUED TO THE 1ST PETITIONER BY THE 3RD
RESPONDENT ALONG WITH ITS ANNEXURE.
Exhibit P3 TRUE COPY OF THE REPRESENTATION
DTD.20.10.2021 PREFERRED BY THE 1ST
PETITIONER BEFORE THE 2ND RESPONDENT.
Exhibit P4 TRUE COPY OF THE LETTER DTD.21.10.2021
ISSUED BY THE 2ND RESPONDENT TO THE 1ST
PETITIONER.
RESPONDENTS EXHIBITS
Exhibit R1(a) TRUE COPY OF THE RELEVANT PAGE OF NOTICE
CONCERNING THE SANCTIONING OF THE MASTER
PLAN PUBLISHED IN GAZETTE DATED
26/02/2021.
/True copy/
P.A.to Judge
