'Decision of Majority Decision Of House': Kerala HC Rules That Minority Dissenter Of Municipal Council's Resolution Cannot Invoke Article 226 To Challenge Same

The Kerala High Court recently laid down that a losing minority or dissenter of a resolution taken by the Municipal cannot take recourse to the jurisdiction under Article 226 of the Constitution of India to challenge the resolution of the Municipal Council.

Justice Bech Kurian Thomas was of the considered opinion that the Municipal council cannot challenge its own decision, and if such a procedure is given the stamp of legality, the same would result in an anomalous situation, since even a sole dissenting member would become entitled to challenge the decisions of the Municipality before higher forums, which is not permitted under law.

"...if those persons who dissent against a decision taken by the Municipal Council are permitted to challenge the decisions of the Municipality, it will put spokes in the wheels of governance and administration. Every decision taken by the Municipal Council or local authority will be challenged by the minority, and the entire functioning of the local authority can come to a standstill. Such a procedure cannot be permitted under law. The principle that a decision taken by the majority becomes the decision of the house, including that of the minority, cannot be diluted, lest it lead to chaos and confusion," the Court observed. 

Thrissur Municipal Corporation owns a building in which a tourist home namely, 'Bini Tourist Home'. Pursuant to the licensee who had been conducting the said tourist home surrendering the building in 2020, the Corporation had been unable to identify a licensee for running the tourist home. 

Although the petitioner in W.P(C) No.3668 of 2023, one Janeesh P.S., had been identified as the prospective licensee, being the highest amongst five tenderers, disputes arose, provoking an alleged raucous at the meeting of the Corporation Council, resulting in the present petitions. 

The Councillors who disputed the resolution of the Council identifying Janeesh as the prospective licensee, averred that no decision had been on the said date, and that there had neither been any discussion nor any voting on that particular agenda. The councillors averred that the Mayor of the Coporation had identified Janeesh arbitrarily, and had even permitted him to give the security deposit without the decision of the Council. It was submitted that out of 54 Councillors, 30 of them had dissented at the meeting, and therefore, the decision could not have been passed.

The Court took note that the tender process had been resorted to after the failure of five public auctions, in accordance with the procedure contemplated under Section 215(2)(c) of the Kerala Municipality Act, 1994 (hereinafter, 'Act, 1994'). The Court discerned that in the absence of any illegality, it could not interfere with the mode of tender resorted to by the Corporation. 

As regards the contention raised that 30 of the Councillors had dissented at the meeting, the Court was of the view that the said councillors could have participated in voting than engaging in disorderly conduct. 

Taking stern view of the disruption in meeting by the 30 Councillors, the Court stated that the same could result in governance and admission of the Corporation being brought to a standstill. 

"The decision of the majority of the Municipal Council is, irrespective of the dissent, the decision of the dissenting minority, too. If the Councillors disrupt the proceedings and refuse to participate in the discussions, they do so at their peril. They cannot thereafter turn around and object to the decisions taken therein as the governance of the Corporation has to be carried on, and they had opted out of the discussions and the consequent decision. If time-bound decisions are not taken, it would cause prejudice to the public at large. The interest of the public cannot be ignored by the elected representatives of the people by disrupting the proceedings. The Councillors are elected to voice the views of the people. The elected Councillors have no authority to disrupt the proceedings of the Council. The Councillors must be reminded that the decisions taken by the Municipal Council will be binding. Since those disrupting the proceedings of the Municipal Council cannot be regarded as having participated in the discussion, the allegation that 30 out of 54 Councillors dissented from the decision cannot be accepted," the Court observed.

It added that the Court's jurisdiction under Article 226 could not be invoked in the present case to challenge the resolution of the Municipal Council, and relied upon the decisions in George C. Kappan v. State of Kerala (2006), and Vanaraj v. Santhanpara Grama Panchayat (2014) to emphasize the same. 

"The exigency of the situation warranted immediate action to be taken to identify a prospective licensee. There are no proven malafides in selecting the licensee. The said licensee has been permitted to carry out renovation works at his own cost without claiming any amount from the Corporation. The cost of renovation works is stated to be more than Rs.3 Crores. Since the Corporation fund will not be utilised for such renovation works and the works done on the building will ultimately enure to the benefit of the Corporation itself, this Court finds no reason to interfere with any of the proceedings initiated by the Corporation in awarding the license to Sri. Janeesh to run the Bini Tourist Home, as well as the permission granted for carrying out the repair and renovation works," the Court said. 

It thus permitted the Corporation to proceed with the handover of the building to the petitioner Janeesh, in terms of the stipulations in the agreement, and as per law. 

Counsel for the Petitioner in W.P.(C) 3668/ 2023: Advocates M.R. Dhanil and Senitta P. Jojo

Counsel for the Respondents in W.P.(C) 3668/ 2023: Advocates Santhosh P. Poduval, Anand Kalyanakrishnan, G. Sreekumar, and C. Dheeraj Rajan

Counsel for the Petitioners in W.P.(C) 5469/ 2023 and W.P.(C) 27414/ 2023: Advocates Anand Kalyanakrishnan, C. Dheeraj Rajan, and G. Sreekumar

Counsel for the Respondents in W.P.(C) 5469/ 2023 and W.P.(C) 27414/ 2023: Advocates Santhosh P. Poduval, M.R. Dhanil, and Senitta P. Jojo

Citation: 2023 LiveLaw (Ker) 651

Case Title: Janees P.S. v. Thrissur Municipal Corporation & Ors. and connected matters

Case Number: WP(C) NO. 3668 OF 2023

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