Kerala High Court
M.S. Nishad vs State Of Kerala on 30 January, 2019
Equivalent citations: AIR 2020 (NOC) 275 (KER.), AIRONLINE 2019 KER 1208
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940
WP(C).No. 34676 of 2016
PETITIONER/S:
M.S. NISHAD,
AGED 35 YEARS,
THANDANKANDY HOUSE,
J.T. ROAD, VATAKARA.
BY ADVS.
SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY SECRETARY,
LOCAL SELF GOVERNMENT,
THIRUVANANTHAPURAM-695 001.
2 VATAKARA MUNICIPALITY,
REPRESENTED BY ITS SECRETARY,
VATAKARA-673 101.
3 THE SECRETARY,
VATAKARA MUNICIPALITY,
VATAKARA-673 101.
4 THE DIRECTOR OF MUNICIPALITIES,
THIRUVANANTHAPURAM-695 001.
BY ADVS.
R1 & R4 BY SMT.RAJI. T.BHASKAR, GOVERNMENT PLEADER
R2 &N R3 BY SRI.T.NAVEEN, SC, VATAKARA MUNICIPALITY
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
30.01.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.34676 of 2016 2
C.R.
JUDGMENT
This writ petition is filed by the petitioner seeking direction to the 2nd respondent to act on the direction of the 1st respondent in Ext.P6 order read along with Ext.P3 Government Order and Ext.P5 report of Director of Municipalities, within a specified time. Brief material facts for the disposal of the writ petition are as follows:
2. Petitioner is a small-scale entrepreneur engaged in manufacture of soaps. When the building in which the petitioner was conducting manufacturing activities was acquired for road widening, petitioner applied for allotment of land in the Industrial Estate at Vatakara, and accordingly, the application was processed and the petitioner was allotted plot No.11 in the industrial estate at Karimbana Palam, within the limits of the Vatakara Municipality, having an extent of 10 cents. It is the case of the petitioner that, the said plot was in fact allotted to another person at the rate of Rs.30,000/- per cent, in the year 2002.
But, he did not pay the land value fixed, and thereupon, the Municipality cancelled the allotment. It was thereafter the Municipality decided to allot the W.P.(C) No.34676 of 2016 3 land to the petitioner on his application, fixing the land value at Rs.1,25,000/- per cent. 25% of the total land value was deposited first and the balance was to be deposited in half yearly instalments, and petitioner was remitting the instalments regularly, and thus paid a total instalment fee of Rs.7,81,575/-.
3. However, petitioner found it difficult to pay the instalments from out of the income generated from the business activity, and thereupon, approached the Government to secure subsidy benefits. At that point of time, petitioner was informed that the land value was not fixed as per the Government norms. According to the petitioner, the Municipality had fixed the land value on the basis of the market value, whereas the Government as per the order dated 05.04.1969, for the purpose of promoting Small Scale Industries, have formulated norms in respect of fixing of land value. The sum and substance of the contention put forth by the petitioner is that, the Municipality has fixed the land value against the directions of the Government in the matter of allotment of plots for industrial development.
4. Thereupon, petitioner made a representation to the 2nd respondent, i.e., the Vatakara Municipality to W.P.(C) No.34676 of 2016 4 re-fix the land value in accordance with the Government Order applicable to such allotments. As per Ext.P3, 6% annual increase along with the cost of acquisition and cost of development of the land can be collected from the allottees. It was without knowing the Rules that the petitioner agreed for allotment of land for the value fixed by the Municipality. Despite repeated representations, the 2nd respondent did not take any action. Thereupon, petitioner approached the State Government by submitting representation. The application was considered by the Principal Secretary to Government, and secured a report from the Director of Municipalities. The Director of Municipalities has reported that the land value is to be fixed as per the Government Order, and it can be fixed only at Rs.66,911/- per cent, in the place of Rs.1,25,000/- fixed by the Vatakara Municipality.
5. Thereupon, the Secretary, Local Self Government Department has directed the Secretary of the Municipality to re-fix the land value as per Government Order dated 05.04.1969. The case projected by the petitioner is that, though Ext.P6 order is dated 10.05.2016, 2nd respondent did not comply with the directions issued in Ext.P6. That apart, it is stated W.P.(C) No.34676 of 2016 5 that, if the amount is re-fixed in accordance with the directions contained in Ext.P6, the amount remitted by the petitioner would be sufficient. These are the basic background facts projected by the petitioner in order to secure the above specified relief.
6. Respondents 2 and 3 have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. Among other contentions, it is submitted that, the Municipality has acquired land in its area for starting an industrial estate, so as to promote industrial activities. The above industrial estate was divided into 17 plots, which was being allotted to various persons. Plot No.11 presently allotted to the petitioner was allotted to one K.P.Valsan in the year 2002, fixing the land value at Rs.30,000/- per cent. However, the same was cancelled, consequent to the default on the part of the allottee to pay the amount. In fact, petitioner has submitted an application before the then Minister for Industries, which was forwarded to the Municipality for appropriate action as per a communication dated 22.06.2011. Accordingly, the Municipality considered the request and the matter was placed before the Council and a Sub Committee was constituted to consider W.P.(C) No.34676 of 2016 6 the matter and submitted a report. The Sub Committee evaluated that the price of the land in the year 2002 was Rs.30,000/-, which was increased as Rs.50,000/- per cent, in the year 2008. It was also found that, the market value of the nearby plot has reached up to Rs.5 lakhs per cent, in the year 2012. In accordance with the report of the Sub Committee, after analysing the entire situation, the price was fixed at Rs.1,25,000/-, which was approved by the Finance Committee of the Municipality.
7. That apart, it is pointed out that, petitioner has accepted the proposal mooted by the Municipality and has remitted an amount of Rs.3,12,500/- i.e., 25% of the total amount, and entered into an agreement with the Municipality, undertaking that he will pay the balance amount in 20 half yearly instalments. Thus, petitioner has remitted a total amount of Rs.7,81,575/-. Further, it is pointed out that, the Municipality has no obligation to rehabilitate the petitioner in the industrial plot or to give any concession in the price on account of acquisition of land for National Highway widening. However, petitioner was approaching various authorities, seeking to fix the rate in accordance with the norms issued by W.P.(C) No.34676 of 2016 7 the State Government for allotment of such plots. That apart, it is stated that, Ext.P3 Government Order dated 05.04.1969 is applicable to "Development Area", which is the land acquired by Government for the purpose of industrial development of an area, and here, in the case on hand, land is not acquired by the Government rather the land is acquired by the Municipality by paying the price fixed by the Government for acquisition of land.
8. That apart, it is further pointed out that, the Government notification will not apply to the Municipality, enabling the petitioner to consider the issue taking into account the notification of 1969. That apart, it is contended that, as per Sec.5 of the Kerala Municipality Act, 1994, every Municipality shall be a body corporate by the name of the Municipality specified in the notification issued under Sec.4 of the Act, and is vested with the power of acquiring, holding and transferring property, movable or immovable and entering into contracts, and of doing all things necessary, proper or expedient for the purpose for which it is constituted. The sum and substance of the contention put forth by the respondents is that, the action of the respondents fixing the land value is in W.P.(C) No.34676 of 2016 8 accordance with the decision taken by the Municipal Council, after ascertaining the market value in the area in question by conducting study through a Sub Committee constituted for the purpose.
9. That apart, it is submitted that, when the Principal Secretary, Local Self Government Department addressed the Municipality for considering the request made by the petitioner, as per Ext.R3(a), a reply was issued explaining the facts and circumstances and expressing the inability of the Municipality to consider the request made by the petitioner also taking into account the powers conferred on the Municipality under Sec.215 of Act, 1994.
10. A reply affidavit is filed by the petitioner, reiterating the stand adopted in the writ petition and also producing additional documents. Ext.P12 is produced by the petitioner along with I.A.No.13503 of 2018, an information received on the basis of an application submitted under the Right to Information Act. By the said document, petitioner is attempting to compare the land value that is fixed to other plots within the same industrial area.
11. I have considered the rival submissions made across the Bar and perused the pleadings and the W.P.(C) No.34676 of 2016 9 documents on record. The facts discussion made above would make it clear that, the paramount contention advanced by the petitioner is relying upon Ext.P3 Government Order dated 05.04.1969, wherein the parameters and criteria are fixed for allotment of land in 'Development Areas'. In Ext.P3, 'Development Area' is defined to mean; for the purpose of Rules, 1969 consist of lands acquired by Government for the purpose of the industrial development of an area. It is also clear from clause (5) thereunder that the application for allotment of land in a Development Area shall be presented in the form given in Appendix-I of these rules, to the Director of Industries and Commerce through the District Industries Officer concerned. This is exactly the point put forth by learned Standing Counsel appearing for the Municipality, which is also the case of the Municipality that Municipality is vested with ample powers as per Sec.215 of Act, 1994, to acquire property and then dispose of the same in accordance with the stipulations contained thereunder. Therefore, according to the learned counsel, the action of the Municipality in allotting the plot to the petitioner fixing the land value at Rs.1,25,000/- per cent is in accordance with law, and it was done taking W.P.(C) No.34676 of 2016 10 into account the intention of the Municipality to develop industrial activities within the Municipal area, and the market value of the said property at that point of time was Rs.5 lakhs per cent. It was with the noble intention of promoting and attracting industrial entrepreneurs the land value was fixed at Rs.1,25,000/- per cent.
12. On the other hand, learned counsel for the petitioner submitted that, the property in question is not acquired by the Municipality by invoking the provisions of the Land Acquisition Act, however, the same was purchased on account of a Central Government Scheme, by which the funding was done by the Government of India, which was being monitored by the State Government, and therefore, Ext.P3 notification and the stipulations contained thereunder are not binding on the Municipality.
13. It is an admitted fact that, when the plot was allotted to the petitioner in the year 2012, petitioner was very well aware that the land value is fixed at Rs.1,25,000/- per cent. Petitioner accepted the same, remitted 25% of the total value, and thereafter he was continuously paying the instalments, and during the year 2016, according to the petitioner, petitioner W.P.(C) No.34676 of 2016 11 found it difficult to pay the land value in instalments, and it was on enquiry, petitioner came to know that the land value fixed is on the higher side. As pointed out earlier, the thrust of the contention made by the petitioner is relying on Ext.P3.
14. On a perusal of Ext.P3, what I could gather is that, the same are rules made by the State Government for allotment of Government land in "Development Area". It is also clear from the rules provided thereunder that, the application is to be submitted to the Director of Industries & Commerce through the District Industries Officer concerned. Here is a case where the petitioner has submitted the application to the Municipal authorities and the Municipal authorities alone processed the application. Therefore, I am of the considered opinion that, the said Rules will not apply to the petitioner, enabling the petitioner to secure any adjustment in the land value fixed by the Municipality. So much so, going by the case put forth by the petitioner himself, petitioner has no case that the land in question is allotted by the State Government or acquired by the State Government. Even though the Municipality has raised a contention that the property is acquired by the Municipality through W.P.(C) No.34676 of 2016 12 the State Government, that may not be correct in absolute terms. However, it is clear from the pleadings put forth by the parties that the property was purchased by the Municipality in accordance with the Scheme launched by the Government of India.
15. It may be true, the utilization may be monitored by the Government as per the Central Scheme. But, however, that by itself will not inure to the benefit of the petitioner to canvass the proposition that the Municipality is bound by Ext.P3 Rules formulated by the State Government in the year 1969, for the purpose of allotment of lands in 'Development Area'. That apart, petitioner has accepted the proposal mooted by the Municipality fixing the land value at Rs.1,25,000/- per cent, and the petitioner complied with the stipulations partly in accordance with the agreement executed by and between the parties, and therefore, at a later point of time, petitioner cannot turn around and say that petitioner is not liable to pay the amount as fixed by the Municipality.
16. Moreover, the Municipality is vested with ample powers to acquire and dispose of property by virtue of powers conferred under Sec.215 of Act, 1994, which has to be read along with Article 243W of the W.P.(C) No.34676 of 2016 13 Constitution of India dealing with powers, authority and responsibilities of Municipalities, which read thus:
"Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow--
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to--
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule;
(b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule."
On an evaluation of the said powers conferred on the Municipality under the statute and the Constitution of India, it is clear, there are sufficient powers to the Municipality to take its own decision in accordance with the powers conferred under Sec.215 of Act, 1994 in the matter of fixing the fees within the frame work of law and reasonably. It is also evident that sufficient study was conducted by the Municipality before fixing the land value.
W.P.(C) No.34676 of 2016 14
17. Taking into account all these aspects, I am of the considered opinion that, petitioner has not made out a case justifying interference of this Court exercising the power of discretion under Article 226 of the Constitution of India.
The writ petition fails, accordingly it is dismissed.
Sd/-
SHAJI P.CHALY JUDGE St/-
31.01.2019.
W.P.(C) No.34676 of 2016 15
APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 COPY OF THE ALLOTMENT ORDER OF THE SECRETARY, VATAKARA MUNICIPALITY, DATED 5.7.2012.
EXHIBIT P2 COPY OF THE REQUEST MADE BY THE PETITIONER TO THE 2ND RESPONDENT DATED 8.3.2013.
EXHIBIT P3 COPY OF THE GOVERNMENT ORDER G.O.MS 169/69/ID DATED 5.4.1969.
EXHIBIT P4 COPY OF THE REPRESENTATION OF THE PETITIONER DATED 4.9.2014.
EXHIBIT P5 COPY OF THE LETTER DATED 17.3.2016 OF THE DIRECTOR OF MUNICIPALITY TO THE SECRETARY, LOCAL SELF GOVERNMENT.
EXHIBIT P6 COPY OF THE LETTER DATED 10.5.2016 FROM THE SECRETARY, LOCAL SELF GOVERNMENT TO THE 2ND RESPONDENT.
EXHIBIT P7 COPY OF THE CERTIFICATE ISSUED BY THE VILLAGE OFFICER, VATAKARA, DATED 6.6.2016. EXHIBIT P8 COPY OF THE GUIDELINES FILED BY THE KOZHIKODE DISTRICT PANCHAYATH FOR THE CHERUVANNUR NELLALAM MINI INDUSTRIAL ESTATE IN ACCORDANCE WITH GOVERNMENT ORDER DATED 5.4.1969.
EXHIBIT P9 TRUE COPY OF THE MINUTES OF THE MUNICIPAL COUNCIL MEETING DATED 11.08.2011.
EXHIBIT P10 A BRIEF PROFILE OF THE SCHEME DOWNLOADED FROM THE WEB SITE.
EXHIBIT P11 TRUE COPY OF THE APPROVAL ORDER ISSUED BY THE GOVERNMENT DATED 15.08.2009 AND THE BYELAW FRAMED BY THE KOZHIKODE DISTRICT PANCHAYATH.
EXHIBIT P12. COPY OF THE LETTER SEND BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT TO THE SECRETARY, VATAKARA MUNICIPALITY DATED 3.2.2018 AND THE REPLY OF SECRETARY, VATAKARA.
W.P.(C) No.34676 of 2016 16RESPONDENTS' EXHIBITS:
EXHIBIT R3(A) TRUE COPY OF THE COMMUNICATION DATED 27.10.2016 FROM THE VADAKARA MUNICIPALITY TO THE GOVERNMENT.
//TRUE COPY// P.S. TO JUDGE St/-