The Secretary has discretionary power to request the Panchayat to review a resolution, and there is a remedy available under Section 191 of the Act against resolutions not legally passed or taken in excess of the powers conferred by the Act.

JUDGMENT :

The question arising for consideration in this writ petition is how to initiate a challenge against a resolution of the Panchayat that is purportedly illegal.

2. Alleging that the 4th respondent had filled up a thodu vested in the panchayat and passing through the side of her property, the mother of the petitioner approached this Court by filing W.P.(C) 41352 of 2017. During the pendency of the said writ petition, the Panchayat took Ext.P1 decision to maintain the road and the thodu as such and the nearby agriculturists were permitted to take their, vehicles for agricultural operations through the said road. This Court observed that if the petitioner is aggrieved by the said decision, her remedy lies elsewhere, and reserving her liberty to initiate an appropriate challenge against Ext.P1, the writ petition was disposed of vide Ext.P2 judgment.

3. On the death of the petitioner's mother, the property devolved upon the petitioner and in the light of the observation in Ext.P2 judgment, he preferred Ext.P3 representation before the 3rd respondent, the Secretary of the Panchayat seeking to review Ext.P1 resolution. Since no orders were passed on Ext.P3, this writ petition is filed for a direction to the 3rd respondent for expeditious consideration of the same.

4. Sri. Rakesh, the learned counsel for the petitioner contends that Ext.P1 resolution is illegal and therefore, the Secretary has to act on Ext.P3 request and take necessary steps to get Ext.P1 resolution reviewed by the Panchayat.

5. Section 182 of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act' for short) deals with the powers and functions of the Secretary of a Panchayat and provides that subject to the provisions of the Act and the Rules made thereunder, the Secretary as executive officer of the panchayat shall, attend the meetings of the Panchayat and of the Standing Committee. Clause (iii) of Section 182 provides that, the Secretary shall carry into effect the resolutions of the Panchayat. The proviso thereto provides that, where the Secretary is of the opinion that any resolution passed by the Panchayat has not been legally passed or in excess of the powers conferred by the Act, he shall request in writing to the Panchayat to review the resolution and express his views at the time of its review by the Panchayat and if the Panchayat upholds its previous decision, the matter shall be referred to the Government with intimation to the President, and if no decision of the Government is received within fifteen days, the said resolution shall be implemented. The Kerala Panchayat Raj (Procedure to be adopted on Illegal Resolutions) Rules, 2003 ('Rules' for short) has been framed in exercise of the powers conferred by Clause (iii) of Section 182 of the Act. Rule 4 thereof deals with procedure on illegal resolutions. Sub-rule (1) of Rule 4 provides that, where the Secretary is of the opinion that a resolution passed by the Panchayat has not been legally passed or passed in excess of the powers conferred by the Act, or that, if implemented, it may endanger human life or health or public safety, he shall, in writing, request the Panchayat to review the said decision. Such request is to be included as an agenda item in the next meeting of the Panchayat, in accordance with Rule 5 of the Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995. Rule 4(2) provides that a note containing the opinion of the Secretary under sub-rule (1) shall be given to the members before the meeting, and at the time of discussion of the subject in the meeting, the Secretary shall explain his opinion therein.

6. In terms of the proviso to Section 182 (iii) of the Act read with Rule 4 of the Rules, the Secretary can request the Panchayat to review its resolution, if he is of the opinion that such resolution has not been legally passed or is in excess of the powers conferred by the Act. The Legislature has left to the wisdom of the Secretary to decide whether a req