The High Court of Kerala held that local bodies cannot assign vested public land to individuals contrary to statutory prohibitions. The appeal was allowed, setting aside a lower court order directing the Corporation to assign the land.
Judgment dated 20.01.2016 in W.P.(C) No. 16730 of 2011 set aside; writ petition dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
'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
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:
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'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
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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.
the Panchayat or Corporation thereafter. That apart, it is
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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.
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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.
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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
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representation submitted by the writ petitioners seeking to assign the land specified above in their favour and the consequential directions to the Tahsildar concerned.
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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
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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
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hundred rupees as may be imposed by the Panchayat. Other stipulations are also provided under the Rules.
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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.
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(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.
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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.
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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”.
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In the result, the writ appeal is allowed.
sd/- S. MANIKUMAR, CHIEF JUSTICE.
sd/- SHAJI P. CHALY, JUDGE.
Rv
2 issues framed by the court
Whether a Panchayat or Municipal Corporation vested with public land can assign such property despite a prior resolution?
Whether the prohibition on alienation of vested land under the Kerala Panchayat Raj Act, 1994 and subsequent acts binds the Corporation post-merger?
9 provisions across 7 enactments
Thrissur Municipal Corporation
M.A. Johny
Asha Lyons
S.Manikumar
Shaji P. Chaly
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
