- (1.) THE question that arises for consideration in this original petition is whether a Notification under S. 3 (1) (d) of the Kerala panchayats Act, 32 of 1960, for short the Act, cancelling a Notification creating a Panchayat area can be sustained where the show cause notice issued to the Panchayat under the proviso to S. 3 (1) was only against the exclusion of a certain area from the Panchayat. But the fate of this original petition defends upon the question whether this original petition filed by the President of the Administrative Committee of the Panchayat on the basis of a resolution passed after the Notification cancelling the Notification by which the panchayat was created came into effect, is maintainable.
(2.) THE Vazhathope Panchayat on 27--21975 passed a resolution recommending to the Government for the exclusion of Ward No. 4 of the Panchayat from the Panchayat and for the formation of a separate Panchayat for that area. THE recommendation was accepted and the 1st respondent-State issued Ext P-1 show cause notice under S. 3 (1) proviso of the Act to the panchayat calling for their objections and suggestions why Ward No. 4 cannot be excluded from the Vazhathope Panchayat. THE Panchayat informed the 1st respondent that they have no objections against the exclusion of Ward No 4. THEre upon, the 1st respondent issued Ext. P-2 Notifications. By the first notification, the 1st respondent cancelled the Notification creating the panchayat area for the Vazhathope Panchayat under S. 3 (1) (d) of the Act. By the second Notification, two separate Panchayats by name Vazhathope and idikki-Kanjikkuzhi were created. By yet another Notification, Administrative committees were appointed for the two newly created Panchayats under S. 13 (1) (a)of the Act. THE petitioner questions Ext P-2 Notifications, mainly the notification cancelling the Notification creating Vazhathope Panchayat area and also the Notification appointing a new Administrative Committee for the vazhathope Panchayat. A counter-affidavit has been filed on behalf of the 1st respondent. In this counter-affidavit it is stated more than once that what was requested for by the Vazhathope Panchayat and what was done is, as a matter of fact, a bifurcation of the Vazhathope Panchayat. But it is to be noted that ext. P-1 show cause notice does not support this stand taken by the 1st respondent. The petitioner has produced a resolution adopted by the Vazhathope panchayat on 14 61976 as Ext. P-3. S. 3 (1) and (2) of the Act reads: "3 (1) The government may by notification in the Gazette (a) declare any village or group of adjacent villages or portions thereof to be a Panchayat area for the purposes of this Act and specify the name and headquarters of the Panchayat; or (b) exclude from a Panchayat area any village or portion thereof comprised in it; or (c) include in a Panchayat area any village or portion thereof; or (d) cancel a notification issued under clause (a) or alter the name and headquarters of the Panchayat as notified under the said clause: Provided that before issuing a notification under clause (b), clause (c) or clause (d) the Government shall give the Panchayat or panchayats which will be affected by the issue of such notification a reasonable opportunity for showing cause against the proposal and shall consider the explanations and objections, if any, of such Panchayat or panchayats. (2) Upon the publication of a Notification under cl. (d)of sub-section (1) cancelling a notification issued under clause (a) thereof, the Panchayat shall cease to exist and all the members of the Panchayat including its President and Vice-President shall forthwith be deemed to have vacated their offices-" Under S. 3 (1) of the Act, the State Government have got the power to issue Notifications creating a Panchayat area, excluding any area from a Panchayat, including any area in a Panchayat and cancelling a notification already issued creating a Panchayat area. But as per the proviso to S. 3 (1), before issuing a Notification under S. 3 (1) (b), (c) or (d), the panchayat or Panchayats affected will have to be given a reasonable opportunity for showing cause against the proposal and their objections, if any, must be considered. In this case. Ext. P-1 show cause notice was regarding the exclusion of Ward No. IV from the Vazhathope Panchayat. But, as per Notification No. I in ext P-2, what has been done is the cancellation of the Notification creating the Panchayat area for the Vazhathope Panchayat. As per the proviso S. 3 (1) of the Act, this cannot be done because it is mandatory that before issuing a cancellation Notification under S. 3 (I) (d) a show cause notice regarding that proposal has to be given to the Panchayat and its objections, if any, obtained and considered. The 1st respondent cannot have a case that such a show cause notice was issued in this case. Not only that, by the very act of exclusion, that from which something has been excluded, continues to remain. In that case, no necessity to cancel the Notification creating the Panchayat area for the vazhathope Panchayat arises. So, it goes without saying that Notification No. 1 in Ext P-2 cancelling the Notification creating the Panchayat area for the vazhathope Panchayat is hit by the proviso to S. 3 (1) of the Act.
(3.) BUT the further question is whether this original petition filed by the 'president' of the Vazhathope Panchayat is maintainable. No doubt, a Panchayat can authorise its President to file an original petition on behalf of the Panchayat. BUT the question is whether the Vazhathope panchayat, as it was originally constituted in 1969, and its Administrative committee were in existence when Ext. P-3 resolution was passed on 14 61976. Admittedly, Notification No. 1 in Ext. P-2 under S. 3 (1) (d) dated 7-6-1976, by which the Notification creating the Panchayat area for the Vazhathope Panchayat was cancelled, came into force on 10-6-1976. As per S. 3 (2) of the Act, the erstwhile Vazhathope Panchayat and its Administrative Committee ceased to exist on 10-6-1976. This original petition has been filed on 14-6-1976. There is no whisper in this original petition that the petitioner has filed this original petition on behalf of the erstwhile Vazhathope Panchayat. The petitioner's case now is that the original petition has been filed on the strength of Ext. P 3 resolution adopted by the Panchayat. BUT on 14 61976 when the resolution was adopted, the Panchayat and its Administrative Committee have ceased to exist in view of the Notification dated 7 61976 referred to above. If that be so, there can be no authorisation and the petitioner cannot file this original petition on behalf of the Panchayat. Notification No. 1 in Ext. P2 cancelling the notification creating the Panchayat area for the Vazhathope Panchayat even though it is in contravention of the proviso to S. 3 (1) of the Act is only voidable and not void. In that case, only the Panchayat can question that notification. So, this original petition filed by the former President of the administrative Committee without a valid authorisation from the Administrative committee of the Panchayat is not maintainable as the petitioner by himself cannot have any locus standi. In coming to this conclusion I am fortified by a bench decision of this Court in Mohammed Haji v. Unni Moyi (1976 KLT. 106 ). In the result, the original petition is dismissed as not maintainable. There will be no order as to costs. Dismissed. . .;