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Judgment
T.R. Ravi, J
The petitioner is the elected representative of Ward No.1 of Pandalam Municipality which is reserved for SC/ST community. The petitioner belongs to SC Community. One of the residents of the Ward which she represents, gave complaint to the petitioner alleging that an Anjili tree on the side of a public road is standing in a dangerous condition and is causing danger to his house also. The complainant was of advanced age suffering from physical ailments and not in a position to go over to the Municipality to lodge a complaint. In the above circumstances, the complaint was lodged through the petitioner. Ext.P1 is the complaint. The petitioner submitted the complaint before the 2nd respondent on 3.7.2021 for necessary action. Thereafter, the petitioner received Ext.P2 notice dated 24.7.2021 wherein it is stated that the complaint submitted by her is baseless and the petitioner should remit a sum of Rs.9,100/- which was expended by the Municipality for the purpose of enquiring into the complaint under Section 558 of the Kerala Municipality Act, 1994 (hereinafter referred to as 'the Act'). It is also stated that the petitioner has to show cause as to why the said amount shall not be realised from her under Section 538 of the Act. Thereafter, on 10.9.2021, the 1st respondent has issued Ext.P3 order whereby the petitioner has been directed to remit an amount of Rs.9,100/-, failing which the Municipality will be taking action under Section 538 of the Act. The reasoning in Ext.P3 is that by submitting a baseless complaint, the petitioner has caused unnecessary expenses to the Municipality, which is a loss from the Municipal fund. Several judgments have been stated in the order on the question of the effect of Article 14 and Article 12 of the Constitution of India. It is further stated that submitting baseless complaints does not come within the duties of a Municipal Councillor as envisaged in Section 31A of the Act. Exts.P2 and P3 have been challenged in this writ petition.
Heard the learned counsel for the petitioner and Sri S.Subhash Chand, learned counsel appearing for the Municipality.
The Counsel for the petitioner submitted that the petitioner has only perfomed his responsibilities as an elected representative and Panchayat cannot impose cost on such actions. The learned counsel for the Municipality vehemently argued that the petitioner has an alternate remedy under Section 509(1) of the Act. It is further submitted that the complaint filed by the petitioner was baseless and not within the duties of the Councillor. Along with the counter affidavit, the 1st respondent has produced Ext.R1(a) dated 03.05.2021 wherein she has brought to the notice of the Secretary of the Municipality that a tree was standing in a dangerous condition. The Municipality has also produced Ext.R1(b), the reply submitted by the petitioner to Ext.P2 wherein she has stated that she has only brought to the notice of the Municipality, the apprehension of some persons, which she is bound to do as an elected representative. Sections 538 and 558 of the Act read as follows;
"S.538. Recovery of sums due as taxes.- (1) All costs, damages, penalties, compensation, charges, fees (other than school fees), expenses, rents, contributions and other sums which under this Act or any other law or rules or bye-laws made thereunder or under any contract made in accordance with the provisions of this Act, the rules or bye-laws thereunder are due by any person to the Municipality may, in the absence of any specific provisions in this Act for their recovery, be demanded by bill as provided in the rules and be recovered in the manner provided therein.
(2) Notwithstanding anything contained in this Act, any sum found legally due by any person to the Municipality under the provisions of this Act, the rules or bye-laws made thereunder, if not paid on the due date shall be recovered together with [penalty at the rate of one percent per mensum] from the date from which it was due:
Provided that any sum due and payable in a half-year is paid in the same half-year no interest shall be realised.
S.558. Recovery of administration cost for making frivolous complaint etc.- Where, upon such enquiry or otherwise, the Secretary is satisfied that any complaint filed against any person acting under this Act is frivolous or vexatious or unfounded or without bona fides the Secretary may direct the person making the complaint to pay the reasonable cost incurred by the Municipality in pursuing action on the complaint and such cost shall be recoverable from such person as if it were an arrear of property tax under this Act:
Provided that before issuing a direction to pay the cost, the person concerned shall be given an opportunity of showing cause against the proposed action."
Section 538 only refers to recovery of all costs, damages, penalties, compensation, charges, fees, expenses, rents, contributions and other sums which are due by any person to the Municipality and does not deal with any power to take action against the Councillor who has brought to the notice of the Municipality a complaint of a person who is residing in the Ward from which the Councillor was elected. Section 558 of the Act relates to administration cost for making frivolous complaints. However, it relates to complaint filed against any person acting under the Act, where such complaint is found to be frivolous or vexatious or unfounded or without bona fides. This section does not relate to a complaint which has been forwarded by an elected representative regarding a grievance of one of his ward residents.
In the above circumstances, Exts.P2 and P3 are totally unwarranted and have been issued without any authority of law and without consideration of the relevant materials and law. The orders have been issued without even understanding the scope of Sections 538 and 558. It is unfortunate that an elected representative has to approach a court of law and challenge such uncalled for orders. This Court is restraining from imposing cost on the Municipality, since the said amount will have to be met out of the Municipal Fund. Since the orders have been issued without authority of law, it is not necessary to consider the contention of the respondents that there is an appellate remedy.
In the result, the writ petition is allowed. Exts.P2 and P3 are quashed. The parties will bear their respective costs.