Tribunal for Local Governance in Kerala : A Pioneering Initiative in Resolution of Disputes

Introduction

Kerala has made many exciting initiatives in the process of decentralisation of powers that can be replicated with suitable modifications in other States. Creation of a Tribunal for adjudication of conflicts between local governments and the citizens is an initiative of that sort which draws our special attention.
What is a Tribunal?
Tribunal is a generic term used for an independent, quasi-judicial body, normally presided over by an impartial judicial officer, set up outside the court system to hear appeals/revision with a purpose of resolving the dispute / grievance relatively speedy and to avoid costly litigation in arriving at its resolution. Tribunal exercises adjudication power on disputes referred to it. It is neither administrative nor legislative in nature. It does not have the power to exercise any discretion in implementing official policies of the government nor has the power to make any direction for future conduct. It shows judicial approach in all its actions. Tribunal resembles the court as it sits in public, normally presided over by a judicial officer, gives determinate judgments, follows principles of natural justice and can be moved by a plaint. But it differs from court, as it cannot decide questions of law. The procedures of the Tribunal differ from those used in the courts, especially regarding burden of proof and presentation of evidence. Tribunal is a semi-judicial body that resembles a court in many respects and differs with it in many other aspects.

Tribunals are established to tackle the inadequacy of overburdened courts to settle disputes and to work as an alternative to courts for settling disputes in specific areas assigned to them. They can settle the disputes in a speedier manner than the courts normally do by following informality and simplicity in procedures. Tribunal normally discourages the presence of lawyers in the proceedings, while a person can take the assistance of legal practitioners of his choice if need be. The strict rules of evidence, which are applicable in courts, are absent in Tribunal. Appeals are not allowed on decisions of the Tribunal, but an appeal on ‘points of law’ can lie to High Courts from orders issued by the tribunal. Tribunal cannot entertain any question ultravires their jurisdiction. The decisions of the Tribunal should be provided with detailed reasoning as far as possible. Quick disposal of petitions is the hallmark of Tribunal and very complex rules of procedure are avoided in its proceedings.

The Local Governments in Kerala
The Kerala Panchayat Raj Act 1994, and Kerala Municipality Act 1994, enacted in conformity with the 73rd & 74th constitutional amendments now govern the functioning of local governments in Kerala. Over the past ten years, the local government in Kerala has been subjected to an unprecedented series of measures aimed at broadening its powers, improving it’s financial health, the way it operates by involving more people and the wide-ranging sectoral activities it undertakes. The local government has become near-autonomous governing unit at the third tier in their jurisdiction.

Kerala has made a classic paradigm in decentralisation of powers by transferring political, administrative and fiscal powers to the local governments. Even before the constitutional amendments, local governments in Kerala were very stable and far better than their counterparts in the country in terms of their functions, functionaries and infrastructure. They were in existence in those days basically for providing civic amenities and welfare functions, but not for ensuring development functions. After the constitutional amendments, the State of Kerala had earmarked one-third of its plan size as devolved funds to local governments for bottom-up participatory planning in development sectors transferred to them. The devolution of funds was followed by many innovative measures in accountability and transparency with a view to refine them and to free them from all sorts of mal-administrative practices.

The Government of Kerala, inspite of the change of guard in the Ministry, has been continuing with effective steps to devolve more funds, functions and functionaries to local governments. The degree of decentralization in the State is far better than in any other State in the country. The State has made many pioneering efforts towards institutionalising the process of decentralization during the last one decade. Kerala has thereby emerged as the most politically decentralized State in the country. The distinguishing feature of Kerala decentralization was its 'big-bang approach' in which funds, functions and functionaries were transferred to local governments in one go at the beginning followed by 'learning by doing' where procedures and systems were created later, in ‘reversal’ of the normal sequence of establishing the pre-requisites and providing money later. This has led to creation of highly decentralized and reasonably empowered local governments in the State. Creation of appellate Tribunals for local governments is the most recent pioneering effort in a series of efforts made in Kerala towards developing an effective, efficient and accountable decentralised local government system.

Need for establishing Tribunal for Local Governments?
The court system is increasingly becoming inapproachable for resolution of disputes for many due to high cost, absence of legally valid evidence and the inordinate delay in settling the issues. Only 0.01 percent population is approaching the court even though everybody has theoretical accessibility to courts. With this very low turn out, there are 127327 cases pending in the High Court in Kerala as on 31-12-2003 and 3446397 cases are pending in all the 21 High courts and the Supreme Court altogether . Establishment of alternate dispute resolution mechanism such as Tribunals is a way out for avoiding delay due to long-pendency of petitions and to ensure speedy justice, at low cost and without the kind of evidence that stands the scrutiny of jurisprudence.

Local governments are endowed with a lot of powers including regulatory and taxation powers. The exercise of most of the regulatory and taxation powers in local governments are entitled to the Secretary of it as the exercise is conceived as a question of deciding facts or of applying the legal provisions in accordance with administrative principles. Taxation, grant of license, enforcement of building regulations, abatement of nuisance from the public, public safety etc are such regulatory powers. In the domain of regulatory powers, even the elected functionaries have a prior policy making role by way of fixing norms and criteria to be followed. In exercise of regulatory functions, the concepts of fairness, impartiality, prudence and natural justice are expected to be followed in accordance with spirit of the act / rules rather than applying the hair-splitting analysis of procedural formalities. So in order to ensure fairness in exercise of regulatory powers in accordance with the spirit of laws governing them, a quasi-judicial body is needed to step in where the fairness is violated.

In addition, the elected functionaries, while exercising the distinct decision making role in planning and implementing development schemes, have to face political and social local pressures from voters that they cannot escape or ignore easily. The traditional virtues like impartiality, neutrality and anonymity are very difficult to realise at the local government level, since all the local government institutions in Kerala are very active political institutions. As the elected members have a constituency both in the geographical and socio-political sense, constituency-building efforts by political leaders continue as a legitimate activity in the highly polarized and competitive local government politics. So the tendency to favour a region, a group of people or even individuals is so evident in the exercise of functions in the Local Government. The tendency has wider ramification and become multifarious when the elected Chairman/President has executive authority. In order to curb that tendency, we need an agency that resolves disputes impartially.

In Local Governments in Kerala, the political executives have a greater role in their right to take decisions in the execution of their official functions. They have the power to authorize expenditure from public funds. The local government council consisting of elected functionaries is endowed with the power of collecting taxes due to local governments. Above all, the Standing Committee on Finance, an elected body in the local government, has authority to hear appeals in tax decisions, which is quasi-judicial in character. In the exercise of such enormous powers, values like impartiality, fairness, propriety and accountability have to be ensured to avoid the possibility of political executives or appointed officials switching over to ‘decentralisation of corruption’ or ‘decentralized favoritism’.

In a system of decentralized exercise of powers, the possibility of decentralized corruption will have to be minimised to push the benefits of decentralization wider and deeper. For that new systems and procedures have to be created to check the continuance of old negative tendencies or vices and to foster the positive possibilities or virtues in the new local government institutions. This will have to be done with minimum executive control by the State Government over the elected institutions, except in very rare cases. Alternate system of redressal of grievance can only address this issue, particularly in the wake of enormous transfer of powers to the purview of local governments.
In addition the Government or its Officers had to sit in judgment over the petitions filed by the people against local governments, which causes a lot of strain where the Government and the local bodies are ruled by opposing political parties. The Tribunals are necessary when the Government had to give up such discretionary powers so as to avoid complaints of political partisanship while dealing with appeals.
Therefore, the Government of Kerala has created a Tribunal, which can, ensure evolving a responsive local government administration through quick redressal of public grievances and check the arbitrary functioning by them while upholding the autonomy of local governments. Then the Government would be spared of routine supervisory activities over local governments, allowing it to concentrate on key areas of policy making with regard to decentralization. The Tribunal for Local Governments was created on 23rd August 2004, in Kerala for the first time in a State in India.

Purpose of the Tribunal
The purpose of the Tribunal is to exercise appellate powers over local governments in their exercise of wide ranging functions of regulatory nature. The Tribunal for local governments is a quasi-judicial body, for grievance redressal of the public against unfair exercise of responsibilities by local governments, remaining outside the governmental control.

The Tribunal is presided over by a judicial officer in the rank of a District Judge. The Tribunal shall hear the appeals against the decisions of the local governments / Secretary on one hand and revision petitions on appeal decisions issued by the local government when it functions as the appellate authority over below level decisions, on the other. The success of the Tribunal depends on the speed in hearing appeals, simplicity in its proceedings and the fairness in disposing of its decisions. Simplicity of procedures is the cornerstone of speedy disposal of the petitions. Tribunal can combine simplicity of procedures of an executive authority with the independence of a judicial system for a fair, simple and speedy decision-making process. In order to make Tribunal a citizen-friendly one, its procedures and proceedings should be devoid of conventional technicalities of a court. Lawyers can represent the parties but they are preferred to remain away from appearing in Tribunal, as far as possible, in order to ensure its informality, minimise technicalities, and reduce cost to the local body as well as to the citizens.

Constitution of Tribunal
The Government of Kerala can constitute a Tribunal for every district or for more than one district to consider and dispose of the appeal or revision petition filed against the decisions of the local governments, as per section 271 S of the Kerala Panchayat Raj Act and the provision is equally applicable to all urban and rural local governments in Kerala.

As per Government Order No. 52/04/LSGD dtd.5 February 2004, the Government constituted only one Tribunal for all the districts in the State. Later Sri. George Mathew, a Judicial Officer in the rank of a District Judge was appointed as its presiding officer on 11-8-2004. He was appointed in consultation with the Chief Justice of the High Court of Kerala as provided for in the act. The Tribunal is deeply engaged in its functions since then and the workload is very high. The appointment of one tribunal for all the 14 districts in the State rather than one each for each district was for reducing the running expenses incurred in it’s functioning.

The person appointed as Tribunal can hold office till the completion of three years from the date of taking charge of the Office or till the date of retirement on super- annuation from the judicial service, whichever is earlier. He is eligible for pay, allowances and other benefits as if he has continued in the judicial service. The Government shall appoint a Secretary and other Officers and Staff as may be required to assist the Tribunal in performing its duties. The Secretary of the Tribunal shall be an Officer not below the rank of an Under Secretary in the Law Department of the State Government.

Matters of Filing Petition to the Tribunal?
A citizen can file an appeal or revision petition in tribunal on the following matters only. They are: -
1. Assessment, demand and collection of tax, fee or cess.
2. Issue of permit and licence for trade, factories, industries, markets and other institutions.
3. Registration of private hospitals, paramedical institutions and tutorial institutions.
4. Water supply in Local Self Government areas.
5. Providing lamps in the public streets of the Local Self Government areas.
6. Construction and maintenance of sewerage in the Local Self Government areas.
7. Action against private latrines that make nuisance to the management of public comfort stations in the Local Self Government areas.
8. Removal and processing of rubbish, solid waste and filth in the Local Self Government areas.
9. Regulation of fairs and festivals; levying of contribution for doing sanitation works from those who conduct the fairs.
10. Maintenance of public streets and prevention of encroachment thereon.
11. Protection of public places.
12. Regulation of building construction.
13. Protection of poramboke land
14. Action against projections, trees and places which are dangerous or which cause nuisance; action against dangerous ponds, wells and ditches; action against dangerous quarrying’.
15. Action against pond, ditch, well, tank, watercourse, marshy land, sewerage, cess pool etc. which are the sources of nuisance.
16. Controlling the Agriculture and the use of pesticides that are injurious to public health.
17. Protection of public water reservoirs.
18. Prohibition of animal rearing that cause nuisance to others.
19. Control over slaughterhouses, action against unauthorised slaughtering.
20. Management of markets, collection of fees and prohibition of sale of goods in public streets.
21. Licences for vehicle parking and for unloading places etc.
22. Licence for hotels, prohibiting the sale of food materials dangerous to health and destroying the same.
23. Licence for burial grounds.
24. Taking steps against the spread of dangerous diseases.

The Government can add any item to the above schedule from time to time by a notification in the Kerala Gazette.

Procedure of Filing a Petition to the Tribunal?
Any citizen in the local body can file appeal or revision against a notice, order or proceedings of the Village Panchayat or Municipality or its Standing Committee for Finance or of the local government in respect of twenty four areas specified above.

Petitions shall be submitted to the Tribunal in the prescribed form 'C', provided in the rules, within thirty days from the date of the impugned notice / order / proceedings, against which the petition is filed. In case, an appeal submitted to the local government has not been decided within sixty days of filing, the applicant can submit an appeal petition to the Tribunal within ninety days from the date of the impugned order. The Tribunal may admit a petition submitted after the prescribed time limit, but within one month, if the Tribunal is satisfied that there is sufficient bonafied reason for not submitting the petition within the time limit. Petition can be filed either in person before 3 PM on all working days or through registered post to The Tribunal for Local Self Government Institutions situated at the Rehabilitation Block, TRIDA building, Medical College P O, Thiruvananthapuram -695011

Along with every petition, the petitioner shall furnish an attested copy of the petition, the original of the impugned order/an attested copy of it and attested copy of the connected documents, if any. The petitioner shall also submit as many attested copies thereof as the number of counter-petitioners. The petitioner should remit fifty rupees as fee in the Office of the Tribunal by cash or enclose a bank draft drawn in favour of the Tribunal for Local Self Government Institutions for the same amount payable at any nationalised or scheduled bank at the headquarters of the Tribunal, along with every petition. A court fee of Rs.50/- is to be affixed in the petitions towards Legal Benefit Fund as per the provisions of the Kerala Court Fess & Suit Valuation Act 1959.

In case the petition is on tax appeal, the applicant has to remit the tax demanded by the local body in the demand notice prior to submitting an appeal/revision petition. Sufficient number of covers and stamps needed to issue registered notice to the Respondents also need to be submitted along with every petition.

Citizens can submit petitions if there is undue delay in decision-making by authorities of local governments in the stipulated subjects. If the concerned Village Panchayat or Municipality or Standing Committee for Finance or the Secretary of the local government, has not taken any decision within the prescribed time limit in cases where time limit has been prescribed in the Acts or Rules, the affected party can file an appeal before the Tribunal. The petitioner may submit petition before the Tribunal directly or by registered post.

Manner of Handling the Petitions
All petitions received by the Tribunal shall be entered in the petition register in the prescribed form. The Tribunal may not entertain a petition that is not in compliance with the provisions of the Kerala Panchayat Raj Act, the Kerala Municipality Act and the Rules thereof. The defective petitions, after recording the defects therein, shall be returned to the petitioner and if the petitioner re-submits the petition so received back within fifteen days after rectifying the defects, the rectified petition shall be considered as duly furnished.

The Registers to be Maintained
The Tribunal shall maintain a Petition register, a Diary register and other registers as stipulated in laws. In the Petition register, the details of all the petitions received and disposed of by the Tribunal and the summary of the final order issued by it shall be recorded. In the Diary register, the gist of all the petitions received by the Tribunal and notes in respect of the proceedings taken and orders passed at various stages from the date of receipt of each petition till the final disposal, shall be recorded. The format of the register has been provided in the rules pertaining to the Tribunal.

The Principle of Natural Justice
On receipt of any petition, the Tribunal or the Officer authorised by it shall register the petition and issue an acknowledgement receipt. The Tribunal can, on the application of the petitioner, issue order to stay any action on the content in a petition. The Tribunal can also issue order to discontinue the proceedings already initiated by the local government authorities, if he is satisfied that it is necessary to do so in the interest of justice. The petitioners and the respondents are bound to comply with the stay order, if issued.

Immediately on registering a petition and giving acknowledgement receipt to the petitioner, the Tribunal shall issue a notice in the prescribed form to the counter-petitioner giving him a copy of the petition and informing him to submit his statement in the matter along with the documents thereof, before the Tribunal within fifteen days from the date of receipt of the notice. If such statement is not filed, the petition will be disposed ex-parte.

The Tribunal has powers to summon any person suo moto as witness and can direct any person including the petitioner or the counter-petitioner to produce any document or record before the Tribunal. The Village Panchayat or Municipality or its Secretary who has been made the counter-petitioner in a petition shall produce the connected files and other documents along with a statement before the Tribunal. If the record cannot be produced due to bonafide reasons, an attested copy of it needs to be produced along with the statement. All records and documents produced before the Tribunal in connection with disposing any petition shall be collected back from the Tribunal by the person, who submitted them, within two months from the date of disposal of the petition.

If the Tribunal, on considering the petition and connected records, is satisfied that any notice or order issued or action taken by the Village Panchayat, Municipality or its Secretary, is not issued or taken in accordance with proper established procedures, the Tribunal may direct such Village Panchayat or Municipality or the Secretary, to issue notice or order or to take action afresh, complying with the procedures under the law.

The pleadings
If the Tribunal, on considering the petition, the statement of the counter-petitioner and the connected documents, thinks that it is necessary to give an opportunity to the petitioner or counter-petitioner to be heard in person, it may fix a date for the purpose and direct the petitioner and the counter-petitioner or the person authorised by them or, if found necessary, their advocate to appear before the Tribunal on the date. The date for hearing of the petition shall be fixed in such a manner as to dispose of the petition finally before the completion of sixty days from the date of receipt of the petition. The pleadings on the petitions can be heard by the Tribunal at its office or at the Office of the concerned local government or at any other place as decided by the Tribunal. The Tribunal may dispose of the petition ex-parte, if any of the parties or the advocate has not been present on the date of hearing or on any date adjourned for hearing.

The Powers of a Court
The Tribunal has the powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 when trying a suit in respect of the following matters and the powers are as follows: -
i. Summoning and enforcing the attendance of any person and examining him on oath;
ii. Demanding the discovery and production of any document or other material object producible as evidence;
iii. Receiving evidence on affidavits;
iv. Requisition of any public document or a copy thereof from any court or office;
v. Appointing Commissions for the examination of witnesses or in respect of documents.

Any proceeding before the Tribunal shall be deemed to be judicial proceedings within the meaning of Section 193 and Section 228 of the Indian Penal Code and any attempt to dishonour the Tribunal can attract contempt proceedings.

Order of the Tribunal
The Tribunal shall, after considering the petition and connected records or, if there is trial of the parties, after the completion of such trial, issue an order recording its decision on the petition. If the Tribunal thinks it necessary to do so, it may declare in advance, a date to issue such order and shall issue the order on the date. An order of the Tribunal shall be in writing and shall bear the signature and seal of the Tribunal.

On pronouncement of the order of the Tribunal, the impugned notice or order issued or action taken by the local government or its Secretary, shall remain as such or modified or annulled. Copy of the order of the Tribunal shall be issued to each party to the petition, within one week from the date of the order, on application. The order can be collected from the office during office hours either in person or through authorised representative. The Tribunal shall have sitting on all working days.

After disposal of the case, on application, the concerned parties can collect all the documents produced in connection with the appeal/revision petition. The Tribunal may, at any time, either suo moto or on the application of any of the parties rectify any error or omission accidentally occurred in the order. English or Malayalam is the language of the Tribunal. The Tribunal has power to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper. The Tribunal has powers to regulate the procedures in connection with the disposal of a petition in the manner it thinks proper with regard to the procedures, which are not provided for in the Kerala Panchayat Raj Act and related rules.

Problems that need Special Attention
Attending and settling the petitions that may arise from all the 14 districts is a very difficult and laborious task that a single-man Tribunal can handle. Increasing the number of Tribunals from one to at least one each for a group of districts not exceeding five would be a suggestion worth- considering so that one can be established at the middle and another at the northern part of the State in the next phase of expansion. Establishing one Tribunal each for each district is the ideal and one for two districts each is an alternate suggestion remaining with the consideration of the Government as per newspaper reports.

The modality of payment of fees to the Tribunal makes it cumbersome for an ordinary citizen to submit a petition easily. A petitioner who wants to opt for paying the fee by bank draft cannot submit the draft from a new generation bank with which many have accounts as the Treasury accounts of the Tribunal recognizes only the drafts from nationalized or schedules banks. Since many banks discourage issuing of bank drafts for negligible amount, obtaining a bank draft is a humiliating experience in many bank counters. The amount towards the Legal Benefit Fund, to be accompanied with every application, need to be remitted by purchasing special stamps designated for the purpose from the treasuries. All this makes the filing of a petition, a tedious task. So either the modality of payment of fees need to be simplified or fees itself need to be dispensed with as in the case of family courts.

Another need is to introduce, establish and reinforce the system of internal conflict resolution mechanism as part of the administration of local governments so as to bring down the number of complaints that may arise. We may apply the spirit of 'Principle of subsidiary' in this area too. That means a dispute that can be resolved at lower levels of appointed officials or elected political executives should not be allowed to go up to the Tribunal. The absence of an established internal conflict resolution mechanism results in throwing up numerous complaints to the resource -poor Tribunal.

Another problem concerned with Tribunal is its resource-poverty. The Tribunal is working with insufficient manpower, facilities and funds and hence cannot function in the professional manner as is expected to. That is why the petitioner is asked to submit covers and stamps required for sending notice to the counter petitioner. Professional approach demands allotment of more resources than that are available to the Tribunal.

Summing up
It seems that the Tribunal that has been in existence in Kerala, can go a long way in upholding the rights of the citizen in a highly deccentralised governance system along with protecting the autonomy of the elected local government against possible usurpation by the State executive. This quasi-judicial body would provide meaningful checks and the balance required to make the local government system work with greater efficiency, sense of direction and purpose of existence. A Tribunal, so created can bring in elements of good Local Governance in Kerala.

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