Kerala High Court
Thrissur Municipal Corporation vs Thrissur Municipal Corporation on 9 January, 2020
Author: Shaji P. Chaly
Bench: S.Manikumar, Shaji P.Chaly
'CR'
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 09TH DAY OF JANUARY 2020 / 19TH POUSHA, 1941
WA.No.195 OF 2017
AGAINST THE JUDGMENT IN WPC 16730/2011 DATED 20-01-2016 OF HIGH
COURT OF KERALA
APPELLANT/1st RESPONDENT IN W.P.(C) NO.16730/2011:
THRISSUR MUNICIPAL CORPORATION,
REP. BY ITS SECRETARY.
M.O.ROAD, THRISSUR.
BY ADV. SRI. SANTHOSH P.PODUVAL, SC, THRISSUR
CORPORATION
RESPONDENTS/PETITIONERS & RESPONDENTS 2 & 3 IN W.P.(C) NO.
16730/2011:
1 M.A JOHNY.
MADATHUMPADY HOUSE, R.V.PURAM.P.O., KUTTUMUKKU,
THRISSUR-680 631
2 ASHA LYONS
D/O JOHNY, MADATHUMPADY HOUSE, R.V PURAM P.O,
KUTTUMUKKU, THRISSUR-680 631
3 TAHSILDAR (LR)
THRISSUR-680 001.
4 STATE OF KERALA,
REP BY ITS REVENUE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM-695 001
R1 BY ADV. SRI.SIVAN MADATHIL
R3-4 BY GOVERNMENT PLEADER (B/O)
SR. GP SRI. SURIN GEORGE IPE FOR R3 AND R4
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 09.01.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.A. No. 195/2017 :2 :
'CR'
JUDGMENT
Shaji P. Chaly, J The first respondent in W.P.(C) No. 16730 of 2011 has filed the appeal challenging the judgment of the learned single Judge dated 20.01.2016. As per the judgment, the learned single Judge directed the appellant to take a decision on Ext.P6 representation filed by the first respondent herein i.e., the first writ petitioner, within a period of one month from the date of receipt of a copy of this judgment and convey the decision to the Revenue Authorities and on receipt of the decision of the appellant, the third respondent, i.e., the Tahsildar (LR), Thrissur, to take further steps for the issuance of the patta and to complete the proceedings within a period of three months from the date of judgment in accordance with law. The said directions were rendered after entering into a finding that the erstwhile Panchayat within whose jurisdiction the property was situated earlier passed resolution No. 211 dated 18.08.1988 to inform the Special Tahsildar (Land Assignment) that the Panchayat has no objection in assigning the land in the name of the writ petitioners. It is W.A. No. 195/2017 :3 : also an admitted fact that the Panchayat merged with the appellant Corporation and therefore, it was found that the Corporation cannot go back and the said decision is valid, binding and enforceable. It was also held that as per Section 218 of the Kerala Panchayat Raj Act, 1994, the puramboke property in question was vested with the Panchayat and thereafter, with the appellant Corporation after its constitution. Therefore, it was observed that the first respondent has no objection in granting patta with respect to the property, which is vested with them, and there is no reason to withhold the granting of patta by the Revenue Authorities.
2. Now in the appeal, the Trissur Municipal Corporation has contended that eventhough a decision was taken by the Panchayat in the year 1988, the writ petitioners did not pursue the matter for around 14 years, during which time vast developments have taken place in the area and therefore, the Corporation should not have been directed to follow the decision taken by the Panchayat after such a long period. It is also contended that the proceedings to assign the property of the Panchayat was not concluded and therefore, the possession does not bind the Panchayat or Corporation thereafter. That apart, it is W.A. No. 195/2017 :4 : contended that as per the provisions of the Assignment of Land within the Municipal and Corporation Areas Rules 1995, a limit is prescribed to the land which can be assigned and therefore, in the light of the provisions contained under the said Rules, the decision of the erstwhile Panchayat found to be binding on the Corporation is not in accordance with law.
3. The basic back-ground facts leading to the writ petition was that the writ petitioners were in possession and enjoyment of a puramboke land having nearly 14 cents in Survey No. 217 of Peringavu Village. The nature of the land was nilam nikathuparambu (converted dry land). According to the writ petitioners, with their continued possession and enjoyment, the property has developed periodically and since the first writ petitioner has no land of his own, he claimed patta for the said land and submitted an application as early as in the year 1988 before the Vilavattom Panchayat. It is further submitted that local bodies as well as the revenue authorities initiated proceedings to issue patta for the land in favour of the first writ petitioner. However, due to the objection raised by his brother and wife, further proceedings has been kept pending and later, the claims raised by others have been W.A. No. 195/2017 :5 : amicably settled and pursuant to the further application, the proceedings for issuing patta in favour of the first writ petitioner again re-started. It is also submitted that there are representations recommending the issuance of patta in favour of the writ petitioners by the Village Officer; but due to the lukewarm attitude of the concerned authorities, the matter remain unsettled. It was thereupon, directions were sought in the writ petition to the concerned authorities to take expedient action, taking into account the requirement of the writ petitioners.
4. We have heard Sri. Santhosh P. Poduval, learned counsel for the appellant, learned Senior Government Pleader, Sri. Surin George Ipe and Sri. Sivan Madathil, learned counsel appearing for respondents 1 and 2 i.e., the writ petitioners, and perused the pleadings and documents on record.
5. The paramount contention advanced by the learned counsel for the appellant is that though the properties were vested in the Panchayat as per the provisions of the Kerala Panchayats Act, 1960, the Panchayat did not have any power to alienate the property. It is also submitted that mere vesting will not empower a Panchayat to assign any land in favour of third persons. So much so, it is W.A. No. 195/2017 :6 : contended that any decision taken by the Panchayat to assign a portion of the property vested with it is not in accordance with law. It is also submitted that merely because some resolutions were passed by the Panchayat during the year 1988, the same did not transform itself into the orders of the Panchayat enabling it to assign the property in favour of the writ petitioners. So also, it is contended that even if any right was accrued to the writ petitioners in the year 1988, the writ petitioners have not taken any steps against the Panchayat to get the property assigned and the writ petition was filed in the year 2011 and by that time, the Kerala Panchayat Raj Act, 1994 has come into force and thereafter, the Panchayat has merged with the Municipal Corporation and thereupon, the provisions of the Kerala Municipality Act, 1994 and the Rules framed thereunder became applicable to the Panchayat in respect of the properties vested with it by virtue of the statutory prescriptions contained under the Panchayat Raj Act, 1994 and the Kerala Municipality Act, 1994. Therefore, it is contended that those aspects were not brought to the notice of the learned single Judge which alone persuaded the learned single Judge to direct the appellant Corporation to take a decision in the W.A. No. 195/2017 :7 : representation submitted by the writ petitioners seeking to assign the land specified above in their favour and the consequential directions to the Tahsildar concerned.
6. On the other hand, the learned counsel appearing for the writ petitioners i.e., respondents 1 and 2 in the writ appeal, submitted that since the resolution was passed by the Panchayat in the year 1988, the said resolution is binding on the appellant Corporation consequent to the merger of the Panchayat in the Municipal Corporation and therefore, the direction given by the learned single Judge is in accordance with law and the appellant is liable to pass a resolution to assign the property in favour of respondents 1 and 2, and consequently Tahsildar concerned is duty bound to issue patta to them.
7. It is significant to note that as per Section 82 of the Kerala Panchayats Act, 1960, certain properties belonging to the Government vested with the Panchayat; without conferring any right on the Panchayat to transfer the land to any third persons. Anyhow, it is the admitted case of the writ petitioners that eventhough a resolution was passed by the Panchayat in the year 1988 to assign the property in question in favour of the writ petitioners, no action was subsequently taken either by the Panchayat or W.A. No. 195/2017 :8 : the writ petitioners to implement the decision so taken by the Panchayat. The writ petitioners also are not having a case that any orders are passed by the Panchayat consequent to the resolution passed by the Panchayat in the year 1988. It is also an admitted fact that the writ petitioners have approached this Court only in the year 2011 seeking to consider Ext.P6 representation submitted by the writ petitioners before the appellant Corporation i.e., after the merging of the Panchayat with the appellant Corporation. Prior to that, Panchayats Act, 1960 was replaced by the Kerala Panchayat Raj Act, 1994. It is important to note that by virtue of Section 166(6) of the Kerala Panchayat Raj Act, 1994, the Government was duty bound to transfer all institutions, schemes, buildings and other properties, assets and liabilities connected with the matters referred to in the third Schedule to the Village Panchayat and every institution so transferred shall be in the name of the said village Panchayat and shall be known accordingly. Anyhow, sub-Section (8) thereto stipulates that the Village Panchayat shall not have any power to sell, transfer, alienate or pledge the properties transferred to it. Schedule 3 of Act, 1994 deals with functions of Village Panchayats and category 'A' deals with mandatory W.A. No. 195/2017 :9 : functions. Entry '2' thereto is in relation to protection of public lands against encroachment. Entry '14' deals with protection of roads and other public properties. Therefore, consequent to the introduction of Act, 1994, there is a clear prohibition, against the Village Panchayats from selling, transferring, alienating, pledging etc. etc. of the properties transferred to it in accordance with Sections 166(6) and 166(8) of the Act, 1994. That apart, in the year 1996, the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 was formulated by virtue of the powers conferred under Section 254 of the Kerala Panchayat Raj Act, 1994. As per Rule 3, no person shall occupy any land belonging to or vested in a Panchayat without the permission of the Panchayat or not in accordance with the Act or the Rules made thereunder or except in accordance with the terms and conditions of the licence issued by the Panchayat. Rule 3(2) further stipulates that whoever occupies any land belonging to or vested in a Panchayat contrary to the provisions of sub-Rule (1) shall be liable to be evicted from such unauthorised occupation and shall, in addition to the expenses thereof, be liable to pay to the Panchayat a fine not exceeding five W.A. No. 195/2017 :10 : hundred rupees as may be imposed by the Panchayat. Other stipulations are also provided under the Rules.
8. Rule 4 deals with eviction of unauthorised occupants, which stipulates that the Panchayat shall have absolute authority to evict unauthorised occupants from the land belonging to or vested with the Panchayat, besides the procedure provided under sub-Rules (2) to (6) of Rule 3. On such eviction if any building, crops or other products, raised on the land unauthorisedly, by the occupant that shall be forfeited to the Panchayat and the unauthorised occupant shall have no right over them. Anyhow, a procedure is also prescribed under the Rules for eviction of the unauthorised occupants. Thereafter, the Kerala Panchaya Raj (Acquisition and Disposal of Property) Rules, 2005 was introduced, whereby Rule 8(1) stipulates that any property of the Panchayat not owned but vested in it may be granted on lease without violating the terms on which it was vested in it. So much so, Rule 12 clearly stipulates that the Panchayats shall not sell, transfer, alienate, create any encumbrance on, or otherwise dispose of, any property transferred to them by Government under sub-Section (6) of Section 166 or sub-Section (5) of Section 172 or sub- Section (5) of Section 173 of the Act, 1994.
W.A. No. 195/2017 :11 :
9. It is also worthwhile to note, Section 218 of the Act, 1994 which stipulates that notwithstanding anything contained in the Kerala Land Conservancy Act 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other than river passing through more areas, than the panchayat area which the Government may, by notification in the Gazette, specify), the beds and Banks of river streams, irrigation and drainage channels, canals, lakes, back waters and water courses and all standing and flowing water, springs, reservoirs, tanks, cisterns, fountains, wells, kappus, chals, stand pipes and other water works including those used by the public to such an extent as to give a prescriptive right to their use whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the panchayat or otherwise, and also any adjacent land, not being private property appertaining thereto shall stand transferred to and vest absolutely in the Village Panchayat.
10. The appellant Corporation has also a case that the property is situated adjacent to an irrigation canal and therefore, the property is also vested in the Panchayat as per the provisions of Section 218 of the Act, 1994. If that is W.A. No. 195/2017 :12 : the case, sub-Section 3 of Section 218 of the Act, 1994 has a clear bearing on the issue in question, which specifies that notwithstanding anything contained in sub-Section (1) or sub-Section (2), the Government may, by notification in the Gazette, assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Village Panchayat and giving due regard to its objection, if any. Therefore, on a reading of all these provisions together, it is clear that mere vesting of a property in Panchayat will not confer a right to the Panchayat to alienate the same.
11. Above all, it is significant to note, the relevant provisions of Kerala Panchayats (Acquisition and Transfer of Immovable Properties) Rules, 1963 constituted under Kerala Panchayats Act, 1960. Rule 4 thereunder deals with the transfers otherwise than by lease of immovable property vesting in but not belonging to a Panchayat. Sub- Rule (1) stipulates that immovable property vesting in but not belonging to a Panchayat shall not be transferred nor changed in contravention of the conditions subject to which such property became vested in the Panchayat. So also, Rule 5 deals with transfer, otherwise than by lease of immovable property belonging to a Panchayat and sub-Rule W.A. No. 195/2017 :13 : (1) prescribes that a Panchayat shall not without the previous sanction of the Director make or sanction any transfer except by way of lease, of any immovable property belonging to it or create or sanction the creation of any charge upon any such property.
12. So also, Rule 7 thereunder only enables a Panchayat to transfer by lease immovable property vested in it. The said rule also exemplifies that the Panchayat was not at liberty to assign any property or take any decision to assign any property in favour of a third person, because there is a clear restriction created under Rule 4 of Rules, 1963.
13. Anyhow, the Panchayat in question merged with the Municipal Corporation. The Kerala Municipality Act, 1994 was introduced with effect from the year 1994 and by virtue of Section 30(3), the Government was duty bound to transfer all institutions, schemes, buildings, other properties, assets and liabilities connected with the matters mentioned in the First Schedule, to the Municipalities concerned. Sub-Section 7 thereto stipulates that the Municipality shall not have the power to sell, transfer, alienate or mortgage any property transferred to it under sub-Section (3). Further, as per sub-Section (8), the W.A. No. 195/2017 :14 : Government is vested with powers to resume any property transferred to the Municipality, if it is no more required by the Municipality for the purpose for which it was so transferred. Schedule 1 thereto deals with the functioning of the Municipality and category 'A' deals with mandatory functions. By virtue of entries '2' and '14' of the schedule, it is the mandatory function of the Municipalities and Corporations to protect public land from encroachment and maintenance of roads and other public properties respectively.
14. The Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000 was introduced, whereby as per Rule 12, it is stipulated that the Municipalities shall not sell, transfer, alienate, create any encumbrance on, or otherwise dispose of, any property transferred to them by Government under sub-Section (3) of Section 30 of the Act.
15. Taking into account the aforesaid aspects, it is clear that after the merger of the Panchayat in the Municipal Corporation, the Corporation is not having any power to assign any property in favour of the writ petitioners other than to grant the property on lease without violating the terms on which the properties were vested in the Municipalities/Corporations. Therefore, in our W.A. No. 195/2017 :15 : considered opinion, in view of the prohibitions contained under the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and the Rules framed thereunder, the properties vested in the local bodies cannot be assigned, transferred, encumbered or alienated in any manner otherwise than permitted under law. It is clear from the pleadings put forth by the writ petitioners and the counter affidavit filed by the appellant that these aspects were not brought to the notice of the learned single Judge.
16. Likewise, the learned Senior Government Pleader has invited our attention to the provisions of the Assignment of Land within the Municipal and Corporation Area Rules 1995 constituted as per Section 7 of the Kerala Government Land Assignment Act, 1960 (30 of 1960), whereby also certain restrictions are created in respect of the assignment of lands within the Municipal and Corporation areas and the maximum land that can be assigned in municipal areas is 10 cents and the Corporation areas is 5 cents. Apart from the same, the land value at market rate shall be payable for such assignment of lands for the beneficial enjoyment. To top up, the word 'vesting' is defined under Chambers Concise Dictionary to mean, "to settle, secure or put in fixed right of possession". W.A. No. 195/2017 :16 :
17. After evaluating the pros and cons and the facts, law and circumstances of the case discussed above, we are of the considered opinion that the writ petitioners are not entitled to get the land in question assigned in their favour. We are also of the clear opinion that the provisions discussed above clearly deprived the Panchayats as well as the Corporations from assigning the lands that are vested with it. Needless to say, the appellant is entitled to succeed in the writ appeal. Accordingly, the judgment dated 20.01.2016 in W.P.(C) No. 16730 of 2011 is set aside and the writ petition is dismissed.
In the result, the writ appeal is allowed.
sd/-
S. MANIKUMAR, CHIEF JUSTICE.
sd/-
SHAJI P. CHALY, JUDGE.
Rv