State Govt Well Equipped To Decide Legality Of Panchayat Decisions, S.191 Kerala Panchayat Raj Act Is An Efficacious Alternate Remedy: High Court

The Kerala High Court on Tuesday, while dismissing two Writ Petitions, observed that Section 191 of Kerala Panchayat Raj Act, 1994 is an efficacious, alternate statutory remedy against any resolutions or decisions taken by the panchayat.

Section 191 of the KPR Act deals with the power of cancellation and suspension of resolutions etc. and the Court observed that as per the provision, the Government is well-equipped to decide the legality of any resolution passed or decision taken by the Panchayat.

Justice Murali Purushothaman rejected the contention that approaching the government under the provision is futile because the decision impugned is taken by government functionaries and observed,

The power conferred on the Government under Section 191 of the K P R Act is quasi-judicial and any administrative decision of the functionaries of the Government cannot preclude the Government from exercising its quasi-judicial functions.

One of the Writ petitions was moved by a company engaged in the business of running hospitals at Thaneermukka Grama Panchayat and another petition was moved by the Director and Chief Medical Officer of KVM Hospital, aggrieved by the resolution of the Panchayat permitting the setting up of Fecal Sludge Treatment Plant (FSTP) adjacent to the premises of the petitioner. 

The Petitions sought to quash the resolution passed by the panchayat and the consent to establish the plant issued by the Pollution Control Board. 

According to the petitioners, the land where the FSTP is proposed to be set up is a community property vested in the Panchayat and can be used only for the benefit of the villagers as specified in Section 171 of the Kerala Panchayat Raj Act, 1994 and not for the use of the residents of the Municipality. The petitioner added that the Panchayat's decision to set up the FSTP is vitiated by political reasons and is against the norms of the Kerala State Pollution Control Board.

The respondents on the contrary contended that the Writ Petition is not maintainable in view of the alternate remedy available to the petitioners under Section  191 of the KPR Act. The Counsel further added that the 'consent to establish' issued under Section 25 of the Water (Prevention and Control of Pollution) Act, 1974 and Section 21 of the Air (Prevention and Control of Pollution) Act, 1981 is appealable under Sections 28 and 31 of the respective Acts.

The Counsel appearing for the Petitioners argued that Section 191 of the KPR Act is not an efficacious alternate remedy since it is the functionaries of the Government who have taken the initiative to secure FSTP. Relying on a decision of the Division Bench of Kerala High Court in Harrisons Malayalam Limited and another v. State of Kerala and others, the Counsel submitted that approaching the Government would be a futile exercise akin to an appeal from "Caesar to Caesar's wife".

The Court after perusing Section 191 of the KPR Act, observed that the Government is well equipped to decide the legality of any resolution passed or decision taken by the panchayat and has powers to suspend such resolution or decision temporarily till the final disposal of the reference or petition under Section 191(1).

Therefore, Section 191 provides for an efficacious, alternate statutory remedy against resolutions or decisions taken by the panchayat.

The Court also pointed out that Section 276 of the KPR Act provides for an appeal to the committee of the Panchayat or an appeal or revision to the Tribunal for Local Self Government Institutions as the case may be. While Section 276 of the KPR Act provides for hierarchical statutory remedies of appeal and revision, Section 191 provides for a statutory remedy against 'resolutions' and 'decisions taken by the panchayat, where no remedy is available before the Tribunal'.

Furthermore, there is an inbuilt mechanism under the Section to prevent any arbitrary action on the part of the Government as sub-section (2) of Section 191 provides that, before cancelling or amending a resolution as per subsection (1), the Government may refer the matter for consideration either of the Ombudsman or the Tribunal as the case may be.

Thus, there is inbuilt mechanism under the Section to prevent any arbitrary action on the part of the Government and the Government is well equipped to decide the legality of any resolution passed or decision taken by the Panchayat.

Therefore, the Court rejected the contention raised by the Counsel appearing for the petitioners. 

Citing that the petitioners have a statutory remedy against the resolution under Section 191 of the Act, the Court refused to entertain the Writ Petition ignoring the statutory dispensation. 

No exceptional circumstances have been urged in the writ petitions to invoke the extraordinary original jurisdiction of this Court under Article 226 ignoring the statutory alternate remedy, the Court opined. 

Without prejudice to the petitioners to avail the alternate remedy the Court dismissed the Writ Petitions.

Advocate Radhika Rajasekharan appeared for the petitioners. 

Senior Government Pleader Surya Binoy, Advocates J. Omprakash, Darsan Somanath and T. Naveen (SC for Kerala State Pollution Control Board) appeared for various respondents. 

Case Title: Dr V. V. Haridas MD v. State of Kerala and ors. and Kinder Women's Hospital and fertility centre v. State of Kerala and ors. 

Citation: 2022 LiveLaw (Ker) 632

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