Kerala High Court
Punnayurkulam Grama Panchayath vs The Circle Inspector Of Police
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 14928 of 2005(B)
1. PUNNAYURKULAM GRAMA PANCHAYATH
... Petitioner
Vs
1. THE CIRCLE INSPECTOR OF POLICE,
... Respondent
2. THE SUB INSPECTOR OF POLICE,
3. MUSTHAFA KAMAL S/O. HYDROSE HAJI,
For Petitioner :SRI.RAJIT
For Respondent :SRI.T.KRISHNAN UNNI
Coram
% Dated : / /
: O R D E R
.PL 58
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A Grama Panchayat is the petitioner in
W.P.(C).No.14928 of 2005. According to them, the third
respondent--Musthafa Kamal, acting in defiance, was
going on with construction activities in the land
appurtenant to G.M.L.P.School, Punnayurkulam, which was
in the management of the Grama Panchayat. Under section
235 X of the Kerala Panchayat Raj Act, the police had a
duty to come and help them for enforcing their orders.
It is submitted that on 10-05-2005 the Headmistress of
the school had addressed the Secretary of the Panchayat
about the issue, as could be seen from Ext.P1.
Immediately thereon, by Ext.P2, the third respondent had
been issued with a stop memo by the Panchayat and they
had simultaneously addressed the Sub Inspector of Police,
Vadakkekad. Reference is also made to the letter
received from the Assistant Educational Officer,
Chavakkad requiring the Panchayat to take immediate steps
for stoppage of the unauthorised building activities in
the school compound. By Ext.P5, the Circle Inspector of
Police, Chavakkad had been addressed on 16-05-2005, and
shortly thereafter the writ petition had been filed.
2. First and second respondents are Police
Officers and they are represented by the Government
Pleader. Mr.T.Krishnanunni appeared on behalf of the
third respondent.
3. The learned counsel for the petitioner
submitted that on two grounds, the reliefs prayed for
were liable to be granted. Under section 5A of the
Kerala Education Act (for short, the Act) brought into
force from 12-05-2000, the management of the school was
to vest in the Village Panchayat. Under section 5B of
the Act, no alienation of land appurtenant to a
Government school, vested with a local authority under
section 5A, was to be made and such land was not to be
used for any purpose other than educational purposes.
Therefore, construction of a residential house in the
compound of the school was impermissible. Definition of
the term "school" in the Act was an inclusive definition
of the land, buildings, play grounds and movable
properties came within the definition. Although the
school was situated on about five cents of land, the
balance properties were used for parade purpose, school
meetings and as playground. Restriction, which was
liable to be brought by a construction of a residential
house, was therefore objectionable. It was also
submitted that under section 235 of the Kerala Panchayat
Raj Act, previous permission of the Panchayat ought to
have been obtained before a property owner to embark on a
construction project and as no permission had been
granted for the construction, it was objectionable. The
Panchayat authorities have to prohibit such construction
and were entitled to get police assistance for
enforcement of the orders. Counsel had also relied on a
decision of this Court in 2002 (2) KLT 502
(Gopalakrishnan v.The Secretary, Corporation of Kollam),@@
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holding that in view of section 5B the premises of the
school was not to be used for any purpose other than
educational purposes. The third respondent was to be
interdicted from carrying on any construction activities,
and in case of violation, police help was to be afforded.
4. When the writ petition had come up for
hearing, apart from filing a counter affidavit, it
appears that the third respondent had also thought to
challenge the impugned orders of the Panchayat, whereby
they had sought to prevent the construction activities.
W.P.(C).No.16698 of 2005 came to be filed in the
aforesaid circumstances. The State Government had also
been impleaded as additional second respondent to the
proceedings.
5. According to the petitioner in
W.P.(C).No.16698 of 2005, the steps taken by the
Panchayat for prohibiting him from carrying on
constructions in his exclusively owned property were
clearly misconceived. Mr.Krishnanunni, counsel for the
petitioner, submits that even the complaint of the
Headmistress of the school dated 10-05-2005 showed that
the school was functioning in a building leased out by
the petitioner. They had no control or possession over
the rest of the properties, at any time. It was not his
look out as to whether sufficient open space was there
for the school. He traces his title over the properties.
He had obtained ownership by a sale deed dated 27-06-2000
for consideration, from his mother. The school building
had been leased out for use as a Government school, about
80 years back by his grandfather, the owner of the
building. It is submitted that consequent to a partition
suit, the school building and property appurtenant had
been left to his deceased father. In a money suit
against his father, in the year 1975, the property was
sold in execution of a decree and the petitioner's mother
had purchased the properties from the auction purchaser.
He had come to ownership from his mother. Being the
owner of the property in his possession, and since he was
residing in a rented house, he had thought of building a
house in the plot without causing interference to the
functioning of the school. Although the Parent Teachers
Association of the school filed a civil suit against him,
no interim orders were obtained and surreptitious method
was being taken so as to put him to inconvenience. It is
submitted that neither section 5A nor section 5B of the
Act had application to the facts of the case and the
impugned proceedings of the Panchayat were liable to be
set aside.
6. A counter affidavit had been filed by the
Panchayat in W.P.(C).No.16698 of 2005 practically
reiterating the contentions raised by them in W.P.(C).
No.14928 of 2005. They refute the allegation that Ext.P2
order had been issued in violation of principles of
natural justice. Even if that be the case, the
petitioner has a remedy of appeal, as provided under
section 271 of the Kerala Panchayat Raj Act and the writ
petition was therefore misconceived.
7. When W.P.(C).No.14928 of 2005 had come up for
hearing, the parties had requested that W.P.(C).No.16698
of 2005, which was connected in all respects, may also be
heard along with the above writ petition.
W.P.(C).No.16698 of 2005 came to be listed for hearing
before us in the above said circumstance.
8. The issue that has been posed by the parties
is of some importance and advertence to sections 5A and
5B of the Act has to be made. Under section 5A, the
management of every Government school and that of aided
school taken over or acquired by the Government shall
vest in the local authority. Pre-primary schools and
primary schools in rural areas are to vest in the Village
Panchayat having jurisdiction over the area in which the
school is situate. Section 5B of the Act could be
extracted as herein below:
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"5B. Restriction of alienation of@@
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property of Government schools:@@
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Notwithstanding anything contained in
any law for the time being in force or
in any decree, judgment or order of any
court, no sale, mortgage, lease, pledge,
charge or transfer of possession of any
land appurtenant to a Government school
vested with a local authority under
section 5A shall be made and such land
shall not be used for any purpose other
than educational purposes".
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The case of the Panchayat is that the vesting arrangement
already having been set in, and as the school necessarily
takes in not only the building but also the land
appurtenant thereto, such land could not have been used
for any purpose other than educational purposes.
9. Mr.Krishnanunni, on the other hand,
refers to the circumstance that even the Headmistress had
no case that there was occupation of the school compound,
since the school building alone was being occupied by
them. Being a pre-Kerala Education Act/Kerala Education
Rules school the stipulations regarding minimum space,
with reference to the class rooms, playground etc., were
irrelevant, and occupation of the school building alone
had been allowed and even if the appurtenant land had
been used by the children, that had no legal effect
adverse to the possessory right of the landlord. It is
asserted that the lessee has not brought in any
convincing records to establish any such claims. It is
also not disputed that after the advent of the amended
Section, on a transfer, he had been recognised as the
owner of the property and the lessor. The landlord had
alienated 5 cents of land from his total holdings and
rightly this had not been subjected to any challenge.
According to him, the writ petition of the Panchayat
[W.P.(C).No.14928 of 2005] was experimental. There was
no legal vesting of the properties of the school on the
Panchayat at any time and such a transfer could not have
happened, even on the terms of section 5A. Therefore,
section 5B automatically was to be excluded.
10. In this background, we may once again
examine the impact of sections 5A and 5B of the Act. The
vesting, as could be gatherable from section 5A of the
Act, is the management of every Government schools in the
Panchayath, although according to Sri.Krishnanunni, other
consequential proceedings have to be there, in
implementation of such a declaration.
11. Reference had been made to section 15 of
the Act, where the Government had reserved the powers for
taking over aided schools in a specified area. The
expression used was "such schools shall vest in the
Government absolutely with effect from the day specified
in such notification". Advertence was also made to
section 218 of the Kerala Panchayat Raj Act, where a
similar expression had been incorporated in the statute.
All public water courses, beds and banks of rivers etc.,
and also adjacent lands appurtenant thereto were declared
as transferred to and vest absolutely in the Village
Panchayat. It is pointed out that the expression used
was "shall stand transferred to and vest absolutely" and
an expression similar thereto is not there under section
5A of the Kerala Education Act.
12. We have to notice that the wordings of
section 5A could have been drafted better, so as to give
full expression to the underlined objective, but this by
itself will not lead to a position that there was no
vesting. The term "vested" indicates an act that has
become completed and consummated. It cannot be treated
as one which is contingent. Therefore, we have to
proceed on the basis that there has been a vesting, but
the issue is as to what are the rights that have been
vested by the provisions of the enactment. We will have
to draw sustenance in this context from section 5B of the
Act as well.
13. It is evident that the existence of
Government schools, which had been functioning in rented
buildings or buildings/premises on lease arrangement
might not have been contemplated, when the provision had
been incorporated in the Act on 12-05-2000. Further, it
is not the school that is vested, but only the management
of the Government school. In general terms, it could be
argued that the school is defined as not only the school
building, but also the land appurtenant thereto. The
management also encompasses the management of the
premises of the school as well. But, nevertheless a thin
line of difference, according to us, necessarily has to
be maintained. Section 5A refers to aided schools whose
management is taken for a period of five years, as well,
under Sections 14 and 15 of the Act. It is meaningful to
note that under Section 14(5), rent becomes payable to
interested persons. Undisputably it could be also
subjected to acquisition by paying of market price. The
`vesting' of management therefore cannot have any more
meaning than its ordinary sense, as an owner of the
school, who had leased out the premises cannot be in a
worse state than an aided school.
14. When vesting is spoken about the
management of a Government school, we have to notice that
at least in the case at hand, what is contemplated is the
administration of the school. As referred to earlier, a
contemporaneous introduction of section 5B of the Act and
impact thereof, but cannot be overlooked. The said
section refers to alienation of property of the
Government schools. They speak of schools vested with
the local authority under section 5A of the Act. May be
what is contemplated is the property of the Government
school. The land appurtenant to the school functioning
in a rented premises cannot be considered as property of
the Government school, as one cannot ignore the basic and
proprietary right of a person, who has full rights over
the property. The vesting cannot extinguish any of such
rights, and admittedly, the arrangement for payment of
rent is uninterruptedly continuing. The lessor therefore
is entitled to contend that the land appurtenant has not
been vested in the local authority, because of the impact
of Section 5A of the Act.
15. But, that is not the end of the story.
Insurmountable hurdles are there on the path of the
property owner, even now as he is tied up by the
restriction brought in by the amendment. Although the
expression used in section 5A is vesting of management,
section 5B makes it clear that land appurtenant to the
Government School shall not be used for any purpose other
than educational purpose. It is not pleaded that the
land is not appurtenant to the school building, and the
prohibition therefore has to operate.
16. The petitioner (in W.P(C).No.16698/2005)
has not challenged the constitutionality of Section 5A or
Section 5B of the Kerala Education Act, but only the
orders of the Panchayat. Therefore, reserving such
rights to him, the writ petition filed by him is
dismissed. W.P.(C).No.14928 of 2005 will stand allowed.
The Police is directed to afford sufficient protection to
the Panchayath to enforce its orders. No order as to
costs.
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Dated: 15th day of July, 2005
16
? IN THE HIGH COURT OF KERALA AT ERNAKULAM
+WP(C) No. 17934 of 2004(I)
#1. K.K.VIJAYAN S/O. KUMARAN,
... Petitioner
2. K.SOMALATHA W/O. K.K.VIJAYAN,
Vs
$1. STATE OF KERALA REPRESENTED BY THE
... Respondent
2. DISTRICT COLLECTOR, KOLLAM.
3. MUNICIPAL CORPORATION,
4. KOLLAM DEVELOPMENT AUTHORITY,
5. TOWN PLANNING OFFICER, KOLLAM
! For Petitioner :SRI.B.RADHAKRISHNAN (THOTTATHIL)
^ For Respondent :SRI.M.K.CHANDRA MOHAN DAS,SC,KOLLAM MPT
Coram
Dated : 19/08/2004
O R D E R
.SP 2 ........L.......T....T.......T.......T.......T.......T.....J M. RAMACHANDRAN, J.@@ j ===============================@@ j W.P(C) NO.17934 of 2004@@ j ===============================@@ j DATED THIS THE 19th DAY OF AUGUST, 2004.@@ j ((HDR 0 ||#||@@ j )) .HE 1 ((HDR 0 W.P(C) No.17934/2004 ::#::@@ j )) .HE 2 J U D G M E N T @@ jDDDDDDDDDDDDDDDD The petitioners were in possession of 7.60 Ares of land in Re.Sy.No.37 of Block No.172 of Kollam Village. The property as above is situated adjacent to NH.47. Petitioners submit that they had proposed intention for building a shopping complex and though the plan had been submitted to the Corporation in 1993, the project had to be abandoned since they were advised that the Authority had a master plan on their sleeves. The land with a high commercial potential was remaining unproductive.
2. By Section 4(1) notification dated 25/05/2000, under Land Acquisition Act a portion of the properties had been earmarked for acquisition and later has been taken over. The petitioner has produced a rough sketch of his holdings as Ext.P1. It shows that entire road frontage had been divested for a public purpose. It is proposed for a bus bay, and the rest of his holding skirts the taken over portion, at its entire length.
3. Petitioners, had no basic objection . about such acquisition, but pray that they should have been spared from the probable inconvenience and disuse that are proposed because of such steps. The opportunity to develop the balance of land should not have been totally blocked, by denying him any right of way. In O.P No.15164/2001 filed, this Court on 05/07/2002 had directed the respondents, especially the District Collector to look into the grievances as highlighted in the pending representations. It appears that in the discussion, which followed on 01/11/2002, the Kollam Development Authority (KDA), on whose behalf acquisition proceedings had been initiated had indicated that there might not be any possible objections for giving pathway to the petitioners properties, but thereafter they had retraced steps, indicating that a concession as above had not come from them.
4. The petitioners had thereafter made a request for construction of shed. It was rejected by Ext.P5 dated 07/07/2003 by stating that since the Kerala Municipal Building Rules was definite about the requirement of access to a building and since there was no access possible to be claimed, the application could not have been entertained. The matter had been placed before the Government and the Development Authority had addressed a letter to the Government, wherein it had been pointed out that since the land is acquired for a public purpose, being a member of public, petitioners had only right to walk through the bus bay and had no rights further. Since the land was acquired for a bus bay, the authority found it difficult to give land or exclusive pathway. It appears that further deliberations were there in the Chambers of the District Collector and the 1st petitioner at that time indicated that he required a pathway of 12 Ft in width. Ext.P8 minutes dated 07/01/2004 indicates that the District Collector had required KDA to look into the matter. But by Ext.P9 dated 04/02/2004, application was rejected. The same objection raised by Ext.P5 was highlighted. A fresh application for construction of a temporary shed stands rejected by Ext.P11 on 02/06/2004, pointing out that there is no access to the property.
5. The writ petition has been filed pointing out that the Municipal Corporation as also the Kollam Development Authority, who are the 3rd and 4th respondents herein had been unreasonable in dealing with the issue and the blockage to the properties on permanent basis would never have been practiced or even proposed, and the steps are arbitrary. Their right to life ensured under Article 21 of the Constitution are thereby violated.
6. Mr.George Varghese, on behalf of the Petitioners submits that request has not at all been appropriately noticed by the respondents, even. What is really required is not a pathway at all but only an opening. The District Collector was satisfied of the genuineness of the claim and had suggested KDA by Ext.P8 to render a reasonable entry. Because of the adamant approach, the legality of the claims, according to him are to be examined. He submits that before the acquisition, petitioners were free to enter into their properties from all points, from the main road. The effect of the acquisition was that the boundaries were deemed to have been pushed further down to their properties, but their basic right for entry into the properties from the public road, was not to have been adversely affected. Their right to enter to their properties or from getting out to the public road, remained unhampered; even if it be that a part of such rights was to be curtailed. In other words, the objective of the acquisition should have little effect on their larger rights.
7. We may examine the claim in the above background since the stand of the respondents are mainly based on provisions of the Land Acquisition Act and especially Section 16 thereof. It is pointed out that when the Collector makes an award under Section 11, he has to take possession of the land which shall thereupon vest absolutely with the Government free from all encumbrances. According to the Standing Counsel the right presently claimed by the petitioners is almost equal to an encumbrance on the acquired property. Whatever might have been the right of the petitioners they stand extinguished. The inconvenience caused to the petitioners could not have been avoided in any manner recognised by law.
.PL 57
8. The counsel further submits that the property had been acquired for a bus bay. Buses will be parked there for facilitating boarding and for passengers to get down. There is possibility of even putting up a bus shelter, in due course. A pathway, or an entry to the property, as now claimed therefore is a proposition which does not go hand in hand with the purpose of acquisition. The KDA has all the rights to develop the acquired portion at its discretion, and also for barring entry or thoroughfare by whatever means it decides. .PL 59
9. The proposition mooted as above appears to be made unmindful of the arbitrariness which it brings along. If we accept the argument, the position would not have been different from a case if the petitioners had a residential house there. It should be idle to contend that merely because of the acquisition and shifting of boundaries, the petitioners will have no more right to reside in the premises or can have no access to public road. Acquisition proceedings cannot nullify the rights of movement. This is essentially different from the encumbrance spoken to by Section 16 of the Land Acquisition Act. Easement of access and easement of necessity is not to be mixed up with principles relating to encumbrances. If the KDA was to construct a compound wall from one end of the property to the other in the portion taken possession of, it would have been objectionable. Likewise, digging of trenches, so as to suffocate the property owner, also could not have received any stamp of approval, if it affected their right for access. The authorities cannot take a decision in their absolute discretion that they were entitled to bar access even. By the act of acquisition, respondents have not been able to secure any better or greater rights, than those they had earlier. If on the road margin, a blockade could not have been placed earlier, an acquisition coupled with alteration of boundary by itself did not confer on them any more rights. The contention of the respondent if accepted would result in astounding consequences. A local Authority definitely cannot put up a brick wall or even a stone on the margin of the drain though it may be vested in them, if the effect thereof is to block entry to a house holder, in any manner.
10. The decision reported in Joseph v.@@ CCCCCC District Magistrate [1996(2) KLT 490] also might be@@ CCCCCCCCCCCCCCCCCCC relevant. With reference to the law laid down in Harrison v. Duke of Hutland, (1893) 1 Q.B.142 and@@ CCCCCCCC CCCCCCCCCCCCCCCC Harper v. Haden (G.N) & Sons. (1933) Ch.298, a@@ CCCCCC CCCCCCCCCCCCCCCCCCCCCC learned Judge had held that a person owning land adjoining a highway has a right of access to the highway from any point. The principle gives expression to a common sense approach. If a person had a right of access to a public road, for the reason that acquisition of a part of the land was made on public purpose, the right of such persons for continued access to the main road could not have been prevented. I hold that the encumbrances referred to in Section 16 of the Land Acquisition Act is not intended to deal with the situation similar to that highlighted here. .PL 55
11. The counsel refers to Section 49 of the Land Acquisition Act and submits that if the acquisition was in respect of any part of a house, manufactory or other building, in case the usefulness of the whole building stand to be affected, it should have been possible for the affected property owner to urge that the building as a whole is liable to be acquired. However, in the present case, since no building at all is involved, it is submitted that the benefit of such situation may not be possible to be claimed, but rest of the situations are similar. In this scenario, especially when the petitioners submit that what was required is not a pathway as misunderstood by the KDA, but only an access, I think the request can be considered as only reasonable and as coming within the rights of the petitioners for life, and enjoyment of their property, and also coming within the fold of Article 300 A of the Constitution.
12. Notwithstanding the use of the property as a bus bay, as is envisaged, it continues to be part of the national highway, which has its boarder extended. As a citizen, the petitioner will have a right to use the bus bay and if necessary, he will also have a right to enter into the adjoining land which was lying as a single block before acquisition.
13. The petitioners will be entitled to access to their properties from the national highway and from the bus bay portion. I direct that KDA should pass follow up order providing a ten feet width opening and petitioners will have the right to suggest the point of incision. This should be done within one month.
14. Writ Petition, is allowed. If the petitioners make a fresh application for temporary or permanent construction on their properties, for the reason that there is no provision for access such applications are not to be rejected. Parties to bear their respective costs.
.PL 60 M. RAMACHANDRAN, JUDGE.
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