Kerala High Court
Kadanad Grama Panchayat vs State Of Kerala on 12 January, 2023
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
THURSDAY, THE 12TH DAY OF JANUARY 2023/22ND POUSHA, 1944
WP(C) NO. 33208 OF 2019
PETITIONER:
KADANAD GRAMA PANCHAYAT,
REPRESENTED BY ITS SECRETARY, KADANAD P.O.,
KOTTAYAM DISTRICT, PIN- 686653.
BY ADV GEORGEKUTTY MATHEW
RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF LOCAL SELF GOVERNMENT
INSTITUTIONS, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN- 695001.
2 KERALA STATE LIBRARY COUNCIL,
REPRESENTED BY ITS SECRETARY, ETN 43, TC
24/1962, K.ANIRUDDHAN ROAD, VAZHUTHAKAUD,
THIRUVANANTHAPURAM, PIN- 695014.
3 XAVIER MATHEW,
CHANDRANKUNNEL, NEELOOR P.O., KOTTAYAM
DISTRICT, PIN- 686651.
BY ADVS.
SMT. DEEPA NARAYANAN, SR. GOVERNMENT PLEADER
SRI.A.ARUNKUMAR FOR R2
SRI.K.MOHANAKANNAN FOR R3
SMT.A.R.PRAVITHA FOR R3
SMT.D.S.THUSHARA FOR R3
SRI.H.PRAVEEN (KOTTARAKARA) FOR R3
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 12.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.33208/2019
:2:
N. NAGARESH, J.
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W.P.(C) No.33208 of 2019
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Dated this the 12th day of January, 2023
JUDGMENT
~~~~~~~~~ The Kadanad Grama Panchayat is before this Court aggrieved by Ext.P8 communication of the Principal Secretary to Local Self Government Department, by which the petitioner has been directed to handover possession of a property to its original owner.
2. A library named "National Library cum Reading Room, Neeloor" is functioning in 1.20 Ares of land in the petitioner-Panchayat. The Library was started in 1947 under the Kerala State Library Council. The land for the library was given by the father of the 3 rd respondent. Salary of the Librarian was paid by the Library Council till it was taken over W.P.(C) No.33208/2019 :3: by the Panchayat.
3. On 12.10.2018, the National Library cum Reading Room unanimously decided to handover the library to the Panchayat. The Panchayat Committee on 21.05.2009 decided to renovate the library using own funds. The 3rd respondent, whose father donated the land for the library, filed OP No.370/2012 before the Ombudsman for Local Self Government Institutions objecting to the management of the library by the Panchayat.
4. The Ombudsman passed Ext.P7 order with a direction to the 3rd respondent to approach the civil court to redress his grievances. However, the 3 rd respondent filed an application before the 1st respondent-State represented by the Principal Secretary. The 1st respondent passed Ext.P8 order directing to transfer the 1.20 Ares of land to the 3 rd respondent. The petitioner is aggrieved by Ext.P8.
5. The 3rd respondent resisted the writ petition filing counter affidavit. The 3rd respondent stated that as per Clause No.7 of the by-law of the Kerala State Library W.P.(C) No.33208/2019 :4: Council, a library cannot be transferred to any Panchayat, Municipality, Municipal Corporation, etc. and if such a situation arises, there must be prior sanction of the Kerala State Library Council. The 3 rd respondent had submitted an application under the Right to Information Act before the 2 nd respondent as to whether the petitioner has obtained any such sanction and in reply to the same, the 2 nd respondent has issued a communication to the 3 rd respondent stating that no such sanction was given to the petitioner-Panchayat. Nowhere in the Asset Register of the Panchayat, Neloor National Library is listed.
6. There is no infirmity or illegality with respect to Ext.P8 order of the 1st respondent, contended the 3 rd respondent. Ext.P8 has been passed after hearing the 3 rd respondent and the President and Secretary of the petitioner- Panchayat. At the time of hearing, the 1 st respondent was asked whether the library is included in the Asset Register of the Panchayat. The reply was negative. Moreover, the petitioner miserably failed to establish before the 1 st W.P.(C) No.33208/2019 :5: respondent that the property and the library building belong to it. Hence, the 1 st respondent is totally justified in passing Ext.P8 order.
7. The 1st respondent-State of Kerala filed a counter affidavit. The 1 st respondent stated that the 3 rd respondent submitted petition before the Principal Secretary, LSGD alleging that the Neeloor National Library which is functioning in his father's property has to be shifted to 01.00 Ares of land owned by National Library in Re-survey No.182/5 in Block No.32. The Government called for reports from the Panchayat Director and District Collector, Kottayam and heard the 3rd respondent and the Grama Panchayat. During hearing, the Grama Panchayat could not produce any evidence or document to prove the ownership of the land. On the other hand, report from the District Collector, Kottayam and Panchayat Director stated that the land is under the possession of Sri. Mathew Thomas, the father of the 3rd respondent, and land tax is remitted by the 3 rd respondent. Hence, the Government has given direction to W.P.(C) No.33208/2019 :6: the Director of Panchayats and to the Secretary, Kadanad Grama Panchayat to handover 01.20 Ares of land comprised in Re-survey No.156/4 in Block No.32 of Kadanadu Village to the land owner.
8. The District Collector, Kottayam has reported that there is a library in Re-survey No.182/5 in Block No.32 under the possession of Neeloor National Library and the same was transferred to Neeloor Service Co-operative Bank in 2016. The Secretary, Kerala State Library Council also reported that the land under the Neeloor National Library is transferred not with the consent from the Library Council. Hence, based on the above report, the Government have given direction to handover the land to the land owner. The Kadanad Grama Panchayat has spent `1,20,000/- for renovation work of the Library, without any legal documents showing the transfer of property which is not even included in the Asset Register of the Panchayat. The Grama Panchayat failed to prove the ownership of the Library Building, contend the 1st respondent. W.P.(C) No.33208/2019 :7:
9. I have heard the learned counsel for the petitioner, the learned Senior Government Pleader representing the 1 st respondent, the learned Standing Counsel for the 2 nd respondent and the learned counsel representing the 3 rd respondent.
10. The dispute in this writ petition relates to the rights of the Panchayat over the National Library cum Reading Room. It is the case of the Panchayat that the General Body of the National Library held on 12.10.2008 unanimously decided to handover the library to the Panchayat. Ext.P1 is the copy of the minutes of the general body. By Ext.P2, the Managing Committee of the National Library cum Reading Room decided to request the Panchayat to take over the library.
11. It is the case of the Panchayat that the Panchayat Committee decided to renovate the library building by spending its own funds. The Panchayat also appointed a Librarian. The 3rd respondent is a signatory to Ext.P2 minutes of the Managing Committee of the National Library. W.P.(C) No.33208/2019 :8: The Panchayat has spent considerable amount from own funds for maintenance of the library building and purchase of furniture for the library.
12. The 3rd respondent filed OP No.370/2012 before the Ombudsman for Local Self Government Institutions. The Ombudsman found that the matter comes within the province of a civil dispute and the appropriate authority to determine the dispute is the civil court. The Ombudsman gave liberty to the 3rd respondent to approach civil court to redress his grievance.
13. Ext.P7 Order of the Ombudsman was passed on 19.10.2012. In the year 2019, the Under Secretary of the Local Self Government Department (DB), on behalf of the Principal Secretary has sent Ext.P8 communication to the Director of Panchayats directing the latter to handover the 01.20 Ares of library property to the owner and to recover the amount spent on the library from the officers concerned of the Grama Panchayat.
W.P.(C) No.33208/2019:9:
14. The direction to recover money spent from the officers may be within the powers of the 1 st respondent, if the direction is given following due procedure. However, the 1 st respondent cannot direct to restore a property to owner, when ownership itself is in dispute. Resolution of ownership disputes over any property cannot be by an executive order. It can be only through a civil adjudicatory mechanism known to law. Ext.P8 therefore cannot stand the scrutiny of law.
The writ petition is therefore allowed and Ext.P8 is set aside.
Sd/-
N. NAGARESH, JUDGE aks/10.01.2023 W.P.(C) No.33208/2019 : 10 : APPENDIX OF WP(C) 33208/2019 PETITIONER'S EXHIBITS EXHIBIT P1 TRUE COPY OF THE MINUTES OF THE GENERAL BODY OF THE NATIONAL LIBRARY CUM READING ROOM NEELOOR HELD ON 12.10.2008.
EXHIBIT P2 TRUE COPY OF THE MINUTES OF THE MEETING OF MANAGING COMMITTEE OF THE NATIONAL LIBRARY CUM READING ROOM NEELOOR HELD ON 19.10.2008.
EXHIBIT P3 TRUE COPY OF THE DECISION DATED 21.05.2009 OF THE KADANAD GRAMA PANCHAYAT COMMITTEE.
EXHIBIT P4 TRUE COPY OF THE DECISION DATED 05.08.2010 OF THE KADANAD GRAMA PANCHAYAT COMMITTEE.
EXHIBIT P5 TRUE COPY OF O.P.NO.370/2012 FILED BEFORE THE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS BY THE 3RD RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE REPLY DATED 24.07.2012 FILED BEFORE THE HONOURABLE OMBUDSMAN BY THE PETITIONER.
EXHIBIT P7 TRUE COPY OF THE ORDER IN
O.P.NO.370/2012 DATED 19.10.2012
PASSED BY THE HONOURABLE OMBUDSMAN FOR LOCAL SELF GOVERNMENT INSTITUTIONS.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 24.10.2019 PASSED BY THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS EXHIBIT R3(a): TRUE COPY OF THE DOCUMENT NO.489/1/2014 DATED 25/03/2014 OF SRO RAMAPURAM.
EXHIBIT R3(b): TRUE COPY OF THE REPRESENTATION DATED 09/03/2012 FILED BEFORE DISTRICT COLLECTOR, KOTTAYAM.
W.P.(C) No.33208/2019 : 11 : EXHIBIT R3(c): TRUE COPY OF THE PROCEEDINGS OF THE DISTRICT COLLECTOR, KOTTAYAM NO.DCKTM/7972/2018-L1 DATED 03/10/2018. EXHIBIT R3(d): TRUE COPY OF THE BYE-LAW OF THE KERALA STATE LIBRARY COUNCIL. EXHIBIT R3(e): TRUE COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT DATED 17/08/2012. EXHIBIT R3(f): TRUE COPY OF THE COMMUNICATION ISSUED BY THE PETITIONER TO THE 3RD RESPONDENT NO.A4-5084/18 DATED 19/11/2018. EXHIBIT R1(a) TRUE COPY OF REPORT DTD 3.10.2018 OF DISTRICT COLLECTOR, KOTTAYAM EXHIBIT R1(b) TRUE COPY OF MINUTES DTD 19.10.2008 EXHIBIT R1(c) TRUE COPY OF THE REPRESENTATION DTD 8.3.2012 OF THE PETITIONER EXHIBIT R1(d) TRUE COPY OF LETTER DTD 24.10.2019 FROM GOVERNMENT TO THE DIRECTOR OF PANCHAYATS