D. Babu vs C. Shaji
2023 Latest Caselaw 5785 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
  WEDNESDAY, THE 24TH DAY OF MAY 2023 / 3RD JYAISHTA, 1945
                     WP(C) NO. 31461 OF 2022
PETITIONER:

         D. BABU
         AGED 56 YEARS
         S/O. DASAYYAN, ABHILASH BHAVAN, VELLAMODI,
         THIRUPURAM P.O, THIRUVANANTHAPURAM DISTRICT-PIN
         695133 NOW RESIDING AT 'GRACE VILLA', PAZHAYAKADA,
         NEAR CHATHANAR DURGA DEVI TEMPLE, TIRUPURAM P.O.,
         THIRUVANANTHAPURAM DISTRICT, PIN - 695133
         BY ADVS.
         GIRISH KUMAR M S
         ADITHYA RAJEEV

RESPONDENTS:

    1     C. SHAJI
          AGED 56 YEARS
          S/O. CHELLAPPAN NADAR, S P BHAVAN, VELLAMODI,
          THIRUPURAM P.O, NEYYATTINKARA, THIRUVANANTHAPURAM
          DISTRICT, PIN - 695133
    2     THE SECRETARY, THIRUPURAM GRAMA PANCHAYAT
          PAZHAYAKADA, THIRUPURAM P.O., THIRUVANANTHAPURAM
          DISTRICT, PIN - 695133
          BY ADVS.
          Latheesh Sebastian Sebastian
          R.T.PRADEEP
          GP - SRI. SYAMANTHAK B.S.


    THIS WRIT PETITION (CIVIL) HAVING COME UP
FOR ADMISSION ON 24.05.2023, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C). No.31461 of 2022      :2:




                                                       "C.R."
                           VIJU ABRAHAM, J.
         --     -- -- -- -- -- -- -- -- -- -- -- --
                       W.P.(C). No.31461 of 2022
         --     -- -- -- -- -- -- -- -- -- -- -- --
                   Dated this the 24th day of May, 2023

                             JUDGMENT

The petitioner has approached this Court aggrieved by Ext.P7

order of the Tribunal for Local Self Government Institutions.

2. The petitioner is the 2nd respondent in Appeal No. 260/2021

on the files of the Tribunal for Local Self Government Institutions,

Thiruvananthapuram, which was preferred by the 1 st respondent

herein alleging inaction on the complaint filed by him before the

2nd respondent Secretary of the Panchayat. The allegation against

the petitioner is that he is illegally and unauthorisedly conducting

a cattle business in his property, without obtaining any license

from the 2nd respondent and the said activity of the petitioner has

obstructed the free ingress and egress of the 1 st respondent from

his residential building and has also caused severe health issues in

the locality. The 1st respondent has approached this Court earlier

by filing WP(C) No.6607/2020 against the alleged illegalities

committed by the petitioner and this Court as per judgment dated

10.06.2020 disposed of the writ petition directing the Revenue

Divisional Officer, Neyyattinkara to consider the complaint

preferred by the 1st respondent. Pursuant to the same, the Revenue

Divisional Officer directed the Village Officer to conduct an enquiry

in this regard and the Village Officer has submitted a report before

the Revenue Divisional Officer. It is also alleged that the Health

Inspector has also submitted a report regarding the illegal cattle

business conducted by the petitioner and thereupon the 2 nd

respondent issued a notice dated 17.03.2021, directing the

petitioner to close down the illegal cattle business. The Vigilance

wing of the Kerala State Electricity Board has also initiated an

enquiry against the illegal business conducted by the petitioner. In

spite of all these, it is alleged that, the petitioner is continuing with

the illegal cattle business and thereupon Ext.P1 appeal was filed by

the 1st respondent before the Tribunal for Local Self Government

Institutions. During the pendency of the Appeal before the

Tribunal, the petitioner was laid up due to Covid-19 pandemic and

other health related issues and therefore, he could not contact his

counsel and to file an objection to the appeal in time. Thereupon,

the petitioner was set ex parte by the Tribunal. The 2nd respondent

Panchayat was also set ex parte. Thereafter the Tribunal

proceeded to allow the appeal as per Ext.P2 order, directing the 2 nd

respondent to initiate steps forthwith to close down the illegal

cattle business after complying with the procedure established by

law.

3. The petitioner submits that the allegations in Ext.P1 is

completely baseless and the allegation that he is conducting cattle

business in the property is false. It is further submitted that the

petitioner's wife is rearing cattle and supplying milk to the nearby

milk marketing society and since the petitioner's wife is rearing

less than five cows, no license is required as per law. Subsequent

to Ext.P2 order, the 1st respondent has preferred Ext.P4 petition to

initiate prosecution proceedings against the 2 nd respondent for

disobedience of the directions in Ext P2 order. It is only when the

2nd respondent intimated the petitioner about Exts. P2 and P4, that

the petitioner came to know about the order passed by the

Tribunal. It is in such circumstances, the petitioner has preferred

Ext.P5 petition to set aside the ex parte order in Appeal No.

260/2021 and also Ext.P6 petition seeking to condone the delay in

filing the petition to set aside the ex parte order. The Tribunal as

per Ext.P7 common order disposed both the aforesaid applications,

taking the stand that the prayer to condone the delay in filing a

petition for setting aside the ex parte order cannot be allowed as

the proviso to Rule 8(3) of the Tribunal for the Local Self

Government Institution Rules, 1999 (herein after referred to as

"Rules 1999") precludes the Tribunal from condoning the delay

beyond 60 days. The said decision of the Tribunal is challenged in

this writ petition.

4. The petitioner relying on Rule 8 of the Rules, 1999 submits

that the proviso to Rule 8(3) is applicable only in relation to filing

of appeals and revisions before the Tribunal and that it is settled

law that every Tribunal is vested with inherent/deemed powers to

render substantial justice. Petitioner relying on the decision of this

Court in Cheru Ouseph v. Kunjipathaumma (1981 KLT 495)

contended that in respect of procedural matters, all powers which

are not specifically denied by the statute or the statutory rules,

should be given to the Tribunal so that it may effectively exercise

its judicial function. The petitioner also relies on the judgment of

this Court in Kerala State Co-operative Consumer Federation

Limited v. K. Vasu & Others [2015 (3) KLT 636], which held

that an arbitrator under the Kerala Co-operative Societies Act has

powers to set aside an ex parte award, as such power is inherent in

the exercise of jurisdiction by such a quasi judicial adjudicatory

body. The petitioner also relied on Rule 25 of the Rules, 1999

which empowers the Tribunal to regulate the procedure in

connection with the disposal of petitions before it in respect of

matters not provided in the Panchayat Act or the Municipality Act.

The petitioner also submits that in Eloor Municipality v.

Krishnadhar [2014 (4) KLT 294] this Court has held that the

Tribunal for Self Government Institutions has power to set aside an

ex parte order passed by it.

5. The learned counsel appearing for the respondent

Panchayat submits that the wording in Rule 16 and 19 of the Rules,

1999 only speaks about the disposal of a petition ex parte and

further that since Exts.P5 & P6 petitions have been filed beyond

the time limit fixed as per the Rules, the Tribunal was right in

passing Ext.P7 common order.

6. The learned counsel appearing for the 1 st respondent

submitted that the Tribunal has no power to set aside an ex parte

order and to condone the delay in filing the same, beyond the time

limit prescribed by the Act and the Rules. He has also raised an

alternative contention that even in the writ petition, the petitioner

has no case that he is functioning the unit after obtaining

necessary licences in this regard and therefore, no purpose will be

served in setting aside the ex parte order, as the petitioner has not

obtained any licence for running his cattle business.

7. I have considered the rival contentions of the parties and

examined the judgments relied on. The Tribunal as per Ext.P7

impugned order, dismissed Ext.P5 application to set aside the ex

parte order and Ext.P6 application to condone the delay in filing

the said petition, solely relying of Rule 8(3) of the Rules, 1999. The

question to be considered is as to whether Rule 8(3) of the Rules

will apply in the facts and circumstances of this case. Rule 8 of the

Rules, 1999 reads as follows:

"8. Petitions to the Tribunal.--(1) A petition submitted

to the Tribunal shall be an appeal or revision against a notice,

order or proceedings of the Village Panchayat; or Municipality or

its Standing Committee for Finance or the Secretary in respect of

any matter specified in the schedule appended to these rules or

added to the said schedule by the Government from time to time

by notification.

(2) If the concerned Village Panchayat or the Municipality or the

Standing Committee for Finance or the Secretary has not taken

decision within the prescribed time limit in cases where time limit

has been prescribed in the Panchayat Act or the Municipality Act

or in the Rules, the affected party may., in this respect, file appeal

before the Tribunal.

(3) Petitions under sub-rules (1) and (2) shall be in form 'C' and

the same shall be submitted before the Tribunal within thirty days

from the date of the notice or order or proceedings against which

the petition is filed or within ninety days in cases where decision

has not been taken within sixty days of filing appeal before the

Local Self Government Institutions:

Provided that the Tribunal may admit a petition submitted within

one month after the said time limit, if the Tribunal is satisfied that

there is sufficient reason for not submitting the petition within

the time limit. "

Rule 8 speaks about the filing of petitions before the Tribunal. As

per Rule 8(1) a petition submitted to the Tribunal shall be an

appeal or revision against a notice, order or proceedings of the

Village Panchayat; or Municipality or its Standing Committee for

Finance or the Secretary in respect of any matter specified in the

schedule appended to the Rules, 1999 or added to the said

schedule by the Government from time to time by notification. Rule

8(2) further mandates that the if Village Panchayat or the

Municipality or the Standing Committee for Finance or the

Secretary has not taken decision within the prescribed time limit in

cases where time limit has been prescribed in the Panchayat Act or

the Municipality Act or in the Rules, the affected party can file

appeal before the Tribunal. Rule 8(3) provides that the petitions

under sub-rules (1) and (2) shall be in form C and the same shall be

submitted before the Tribunal within thirty days from the date of

the notice or order or proceedings against which the petition is

filed or within ninety days in cases where decision has not been

taken within sixty days of filing appeal before the Local Self

Government Institutions. The proviso to the said Rules mandates

that the Tribunal may admit a petition submitted within one month

after the said time limit, if the Tribunal is satisfied that there is

sufficient reason for not submitting the petition within the time

limit. A reading of Rule 8 of the Rules, 1999 makes it explicitly

clear that the time limit which has been fixed as per the Rules is in

respect of petitions to be filed as provided in Rules 8(1) and 8(2) of

the Rules, 1999 and not in respect of a petition filed in the said

proceedings before the Tribunal, like the one which was filed in the

present case, for setting aside the ex parte order and the petition

to condone the delay in filing the said petition. This Court in Eloor

Municipality's case (Supra) relying on Rule 25 of the Rules, 1999

held that though there is no express provision in the Act or the

Rules giving the Tribunal the jurisdiction to set aside an ex parte

order, it is well known rule of statutory construction that a

Tribunal or a body vested with adjudicatory function should be

considered to be endowed with such ancillary or incidental powers

as are necessary to discharge its function effectively for the

purpose of doing justice between the parties and held that the

petitioner in that case is free to move the Tribunal for Local Self

Government Institutions with appropriate petition for setting aside

the ex parte order. The said decision in Eloor Municipality's case

(Supra) was following the judgment of the Apex Court in Grindlays

Bank Ltd. v. Central Government Industrial Tribunal and

others [1980(Supp) Supreme Court Cases 420]. Similar view

was taken by this Court in Rema Devi v. Joint Registrar

(General) of Co-operative Societies [2016(3) KLT 50] and

Vasakumar Pillai v. M.A.C.T. [2008 (4) KLT 899]. I have

already found that Rule 8 only contemplates the time limit in filing

appeal or petition, as provided in Rule 8(1) and 8(2) and does not

speaks about a petition to set aside ex parte order or a petition to

condone the delay in filing the same, in an appeal filed before the

Tribunal. This Court in Eloor Municipality's case (Supra) relied

on Rule 25 of the Tribunal for the Local Self Government

Institution Rules, 1999, which specifically mandates that in matters

which are not provided in the Panchayat Act, the Municipality Act

and the rules, the Tribunal shall have power to regulate the

procedure in connection with the disposal of a petition in the

manner it thinks proper, to hold that the Tribunal has power to

entertain a petition to set aside an ex parte order.

8. Considering all these aspects into consideration and the

judgments sited Supra, I am of the opinion that the reliance placed

by the Tribunal on Rule 8(3) of the Tribunal for the Local Self

Government Institution Rules, 1999, to dismiss the application for

setting aside the ex parte order and the application to condone the

delay in filing the same, is not correct and the impugned order is

liable to be interfered with. Therefore, Ext.P7 order is set aside.

There will be a direction to the Tribunal for Local Self Government

Institutions, Thiruvananthapuram, to re-hear Exts. P5 & P6, I. A.

Nos.1230/22 & 1231/2022 in appeal No.260/2021, after affording

an opportunity of being heard to the petitioner as well as the 1 st

respondent and take a decision on the same within a period of one

month from the date of receipt of a copy of this judgment.

9. This Court while admitting the present writ petition has

passed an interim order on 11.10.2022 staying the operation of

Ext.P2 order passed by the Tribunal, on condition that the 2 nd

respondent Panchayat shall ensure that the petitioner is not

engaging in cattle business and is only rearing five cows. The

learned counsel for the petitioner submits that only 5 cows have

been reared by his wife and the petitioner undertakes that not

more than 5 cows will be reared at a point of time and that the

petitioner will not engage in the cattle business without obtaining

necessary licence. The said undertaking is recorded. Till a decision

is taken by the Tribunal as directed above, the interim order

granted by this Court on 11.10.2022 will remain in force on

condition that the petitioner complies with the undertaking

recorded and the 2nd respondent shall see that the said undertaking

is strictly complied with.

With the above said directions and observations, the writ

petition is disposed of.

Sd/-

VIJU ABRAHAM JUDGE sm/

APPENDIX OF WP(C) 31461/2022

PETITIONER EXHIBITS Exhibit1 A TRUE COPY OF THE APPEAL MEMORANDUM IN APPEAL NO. 260/2021 ON THE FILES OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Exhibit-P2 A TRUE COPY OF THE ORDER DATED 26-10-2021 IN APPEAL NO. 260/2021 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Exhibit-P3 A TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 10-06-2020 IN WP(C) NO. 6607/2020 Exhibit4 A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO. 138/2022 IN APPEAL NO.

260/2021 Exhibit-P5 A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO. 1231/2022 IN APPEAL NO.

260/2021 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Exhibit-P6 A TRUE COPY OF THE AFFIDAVIT AND PETITION IN I.A. NO. 1230/2022 IN APPEAL NO.

260/2021 BEFORE THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM Exhibit-P7 A TRUE COPY OF THE COMMON ORDER DATED 30/08/2022 IN I.A. NO. 1230/2022 AND I.A.

NO. 1231/2022 IN APPEAL NO. 260/2021 OF THE TRIBUNAL FOR LOCAL SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM