Dismissed

Kothamangalam Municipality, v. State of Kerala

Kerala HC18 Sept 2020WA/737/2020

Case brief

AI extract

What is this about?

Two writ appeals by the Kothamangalam Municipality challenging the High Court's order allowing the Forest Department to reconstruct its wall and refusing land transfer. The court held the Act does not mandate timber depot transfer, the government was heard via the High Power Committee, and no permit was needed for the government department's construction.

What did the court decide?

The writ appeals were dismissed and the underlying judgment allowing construction and denying land transfer was upheld.

Kothamangalam Municipality, Vs State of Kerala — Property and Title | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942

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WA.No.727 OF 2020

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AGAINST THE JUDGMENT DATED 19.05.2020 IN WP(C) 29283/2019(I) OF HIGH COURT OF KERALA

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APPELLANTS/RESPONDENTS:

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1 KOTHAMANGALAM MUNICIPALITY

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REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM, ERNAKULAM DISTRICT, PINCODE-686 691.

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2 THE MUNICIPAL ENGINEER,

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KOTHAMANGALAM MUNICIPALITY, PIN-686 691.

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BY ADV. SRI.PEEYUS A.KOTTAM

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RESPONDENT/PETITIONER:

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THE DIVISIONAL FOREST OFFICER,

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OFFICE OF THE DIVISIONAL FOREST OFFICER, KOTHAMANGALAM FOREST DIVISION, KOTHAMANGALAM-686 691.

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R1 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL

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SRI. RENJITH THAMPAN, ADDL. AG SRI.SANDESH RAJA, SPL. GP

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2020, ALONG WITH WA.737/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 727 & 737 of 2020

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: 2 :

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

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THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

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FRIDAY, THE 18TH DAY OF SEPTEMBER 2020 / 27TH BHADRA, 1942

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WA.No.737 OF 2020

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AGAINST THE JUDGMENT DATED 19.05.2020 IN WP(C) 38342/2017(P) OF HIGH COURT OF KERALA

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APPELLANT/PETITOINER:

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KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, KOTHAMANGALAM,ERNAKULAM DISTRICT, PINCODE-686 691.

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BY ADV. SRI.PEEYUS A KOTTAM, SC, KOTHAMANGALAM MUNICIPALITY

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RESPONDENTS/RESPONDENTS:

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1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, TRIVANDRUM,TRIVANDRUM-695 001.

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2 SECRETARY, REVENUE DEPARTMENT,GOVERNMENT SECRETARIAT ANNEXE, TRIVANDRUM-695 001.

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3 SECRETARY, LOCAL ADMINISTRATION, GOVERNMENT SECRETARIAT ANNEXE, TRIVANDRUAM-695 001.

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4 THE CHIEF CONSERVATOR OF FORESTS, FOREST HEAD QUARTERS, VAZHUTHAKAD,TRIVANDRUM-695 014.

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5 THE ADDITIONAL CHIEF SECRETARY, FINANCE,SECRETARIAT, THIRUVANANTHAPURAM-695 001.

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6 THE SECRETARY, FOREST DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM,PIN-695 001.

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W.A. Nos. 727 & 737 of 2020 : 3 :

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7 DIVISIONAL FOREST OFFICER, KOTHAMANGALAM,PINCODE-686 691, ERNAKULAM DISTRICT.

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R1-7 BY SRI.M.R.SABU,GOVT.PLEADER (B/O) SRI. SANDESH RAJA, SPL. GP

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18-09-2020, ALONG WITH WA.727/2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. Nos. 727 & 737 of 2020

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[W.A. Nos. 727 & 737 of 2020]

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JUDGMENT

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Shaji. P. Chaly, J.

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The captioned writ appeals are materially connected in respect of a dispute by and between the Kothamangalam Municipality and the State Government/Forest Department regarding a property belonging to the Government situated within the limits of the Municipality. Therefore, we heard them together and propose to pass this common judgment.

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W.A. No. 727of 2020 is filed by the first respondent Muncipality in W.P.(C) No. 29283 of 2019 filed by the Divisional Forest Officer, Kothamangalam Division, Ernakulam District, seeking a direction to the Municipality to consider Ext.P7 series of applications and to grant permission to renovate/re-construct the compound wall of the Divisional Forest Office. Whereas W.A. No. 737of 2020 arising from W.P.(C) No.38342 of 2017 is filed by the writ petitioner Muncipality in which the State and the Forest Department were parties, challenging the common judgement dated 19.05.2020 passed by the learned Single Judge allowing W.P.(C) No.29283 of 2019 and dismissing the other connected writ petition. In order to dispose of the appeals, the pleadings and documents contained in W.A. No. 737 of 2020 is relied upon, which will decide the fate of the other writ appeal substantially and adequately.

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According to the Municipality, there was consistent demand

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W.A. Nos. 727 & 737 of 2020

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from the side of the Municipality to transfer the revenue poramboke land, which is in possession of the Forest Department situated within the Kothamangalam town for the developmental activities of the Municipality. It was further contended that taking into account the present need of the Municipality, a meeting was convened by the Chief Minister and the Revenue Minister of the State Government, in which the Forest officials, officials of the Revenue Department and the officials of the Municipality have participated and accordingly, it was decided to assign 75 cents of land to the Municipality by shifting the timber depot situated therein to any other convenient premises. As per Ext.P1 Government Order dated 07.09.2013, permission was granted to the Forest Department to surrender the property to the Revenue Department for the public needs of the Municipality on certain terms and conditions. It was also decided therein to shift the timber depot from the property in question. While so, the said decision of the Government was challenged before this Court by the Forest General Workers Union (CITU) by filing W.P.(C) No. 3930 of 2014, which was dismissed by a learned Single Judge of this Court by Ext.P5 judgment dated 28.05.2014. Later, a petition was filed by an individual before the National Green Tribunal, Chennai Bench, and allegedly on the basis of the directions issued by the Tribunal, Ext.P7 Government Order dated 09.09.2016 was issued withdrawing the permission granted to transfer the property to the Municipality and also directing to retain

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W.A. Nos. 727 & 737 of 2020

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the property with the Forest Department. Being aggrieved by the said action of the Government, the Municipality filed W.P.(C) No.32752 of 2016, which was disposed of as per Ext.P8 judgment by one of us (Justice Shaji P. Chaly) dated 23.01.2017 quashing the Government Order dated 09.09.2016 on the ground that since no opportunity was provided to the appellant Municipality, the order suffers from the vice of the arbitrariness and thereby, violative of the principles of natural justice. Thereafter, Ext.P9 order was passed by the State Government on 07.09.2017, which is the subject matter of challenge in the instant writ petition. Anyhow, after the passage of Ext.P9 impugned order dated 07.09.2017, the Forest Department submitted an application before the Municipality to secure permission to renovate/re-construct the compound wall of the Divisional Forest Office, which was not considered and it was accordingly that directions were sought in the writ petition filed by the Officer of the Forest Department.

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The learned Single Judge, after taking into account the rival submissions made across the Bar, allowed the writ petition filed by the Forest Department and directed the appellant Municipality to grant permission to re-construct the compound wall of the property in question within a period of three weeks from the date of receipt of a copy of the judgement. However, the claim raised by the Municipality against the property in question on the basis of Ext.P1 Government Order dated 07.09.2013 was declined

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W.A. Nos. 727 & 737 of 2020

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holding that the Municipality has not acquired any title in the property in question and therefore, the Municipality has no right over the property adverse to the rights and interests of the State Government. It is, thus, challenging the legality and correctness of the judgment, writ appeals are preferred.

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We have heard learned counsel for the appellant, Sri. Peeyus A Kottam and the learned Special Government Pleader Sri. Sandesh Raja, and perused the pleadings and documents on record. 6. The paramount contention advanced by the appellant is that when an order passed by the State Government granting permission to transfer 75 cents of property to the Kothamangalam Municipality was recalled by High Power Committee constituted by the State Government, the Government was duty bound to direct the High Power Committee to hear the appellant Municipality also in accordance with the directions contained in Ext.P8 judgment rendered by this Court in W.P.(C) No.32752 of 2016. Therefore, having not provided an opportunity of participation in the proceedings of the High Power Committee, Ext.P9 Government Order dated 07.09.2017 is arbitrary and illegal, which was liable to be interfered with by the learned Single Judge and having not done so, interference is required in the appeal preferred. Various other contentions with respect to the compelling need of the Municipality to have the property in question for the purpose of developmental activities, apart from being contending that Ext.P9 impugned order

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W.A. Nos. 727 & 737 of 2020

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is passed in a dubious manner in spite of Ext.P8 judgement,are raised.

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On the other hand, learned Special Government Pleader for Forest submitted that even though a decision was taken by the State Government as per Ext.P1 Government Order dated 07.09.2013, later the Government felt that the transfer of the property to the Municipality would be disadvantageous to the Forest Department, and further that the State Government has now issued Ext.R6(f) Government Order dated 04.11.2017 in exercise of the powers conferred under Section 4 of the Kerala Forest Act, 1961 declaring that it is proposed to constitute the land within the boundaries specified in the Schedule attached below as a Reserved Forest and appointing the Revenue Divisional Officer, Muvattupuzha and the Revenue Divisional Officer, Idukki ex-officio, to be the Forest Settlement Officers, in regard to the lands within the boundaries specified in the Schedule to the notification, to inquire into and determine the existence, nature and extent of any rights claimed by or alleged to exist in favour of any person, in or over any land comprised within such boundaries or to any forest produce of such land and to deal with the same as provided in the said Act. According to the learned Special Government Pleader, consequential notification declaring the property in question as a Reserve Forest is in the anvil and it will be published immediately.

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We have evaluated the rival submissions made across the

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W.A. Nos. 727 & 737 of 2020

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Bar. The prime contention advanced by the learned counsel for the appellant, Sri. Peeyus A Kottam is that since the property is situated within the limits of the Kothamangalam Municipality consequent to the introduction of the Act, 1994, the property in question is vested in the Municipality. It is also pointed out that the timber depot constituted within the town area of the Municipality is causing innumerable difficulties and it is standing in the way of the developmental activities of the Municipality. Our first endeavour is to identify whether the claim raised by the appellant Municipality that the property vested in it is legally correct or not. Section 30 of the Act, 1994 is the guiding provision, on the basis of which such claim is raised by the appellant Municipality, which reads thus:

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“ 30. Powers, functions and responsibilities of Municipality .— [(1) The administration of a Municipal area in respect of the matters enumerated in the First Schedule shall, subject to the provisions of this Act and such other provisions as may be prescribed in this behalf and the provisions of other Acts and the rules made thereunder vest in the Municipality and it shall have the power and responsibility to prepare and implement schemes for economic development and social justice in relation to the matters enumerated in the First Schedule:

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Provided that, it shall be the duty of the Municipality to render necessary service to the inhabitants of the Municipal area in respect of the matters enumerated as mandatory functions in the First Schedule];

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(2) Municipality shall have such powers, authority and responsibilities of the Government [as prescribed], to enable it to function as an institution of self government in respect of the matters entrusted to it.

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(3) The Government shall, as soon as may be after the coming into

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W.A. Nos. 727 & 737 of 2020

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force of this Act, transfer all institutions, schemes, buildings, other properties, assets and liabilities connected with the matters mentioned in the First Schedule, to the Municipalities concerned.

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(4) The Central and State Plan allocations, for the time being in force and the annual budget allocation in respect of the subjects transferred to the Municipalities by the Government shall be wholly allotted to the respective Municipalities.

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(5) The municipality shall manage to institutions and administer the schemes transferred to it, subject to the guidelines and technical directions from the Government and in accordance with the State and National policies.

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(6) Every institutions transferred by Government to the Municipality shall be in the name of that Municipality and shall be known accordingly.

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(7) The Municipality shall not have power to sell, transfer, alienate or mortgage any property transferred to it under sub-section (3).

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(8) Government may 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.

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(9) There shall be constituted a Managing Committee consisting of not more than fifteen members including its chairman in the prescribed manner for public health institutions transferred to the Municipality.

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(10) Where any scheme, project or plan involves selection of beneficiaries, the criterion for the eligibility and priority for such selection shall be determined by the Municipality subject to the terms and conditions of the scheme, project or plan and such criteria shall be published in the prescribed manner and shall be intimated to the Ward Committee or the Ward Sabha concerned.

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(11) The Municipality shall invite applications for the selection of beneficiaries and prepare the draft priority list after making enquiry on

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W.A. Nos. 727 & 737 of 2020

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the applications received in this behalf and send it for the consideration of the Ward Committee or the Ward Sabha concerned.

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(12) The Ward Committee or the Ward Sabha shall scrutinise the draft priority list for the selection of beneficiaries in a meeting convened inviting the applicants also and prepare the final list and forward it for the approval of the council.

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(13) The Council shall not alter the priority of the list prepared by the Ward Committee or the Ward Sabha.]”

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On a reading of sub-Section (3) extracted above, it is quite clear and evident that the Government was duty bound to transfer as soon as coming into force of the Act, 1994, all institutions, schemes, buildings, other properties, assets and liabilities connected with the matters mentioned in the First Schedule, to the Municipalities concerned. First schedule of the Act, 1994 deals with various functions of the Municipality. However, on a reading of the first schedule, it is quite clear and evident that a timber depot under the control of the Forest Department was never a property liable to be transferred to the Municipality on account of the imperative conditions specified under Section 30 of the Act, 1994. Furthermore, there is no right accrued to the Municipality on the basis of the initial Government order, since it only remained in papers and the property was not transferred to the Municipality. True, various functions, which were controlled by the State Government through such institutions mentioned in the first Schedule, were liable to be transferred to the Municipality. However, it cannot be said that

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W.A. Nos. 727 & 737 of 2020

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Section 30 of the Act, 1994 is a sweeping provision, by which the Government was mandated to transfer all the properties belonging to the Government within the Municipal limits of the Municipality. Therefore, such a contention raised by the appellant Municipality has no foundation at all. Other contention raised by the Municipality is that no opportunity of hearing was provided to the Municipality before passing Ext.P9 impugned order. In order to have a clear picture of that contention, a reference to the relevant portions of Ext.P9 would be worthwhile and they are extracted hereunder:

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“The Hon'ble High Court vide its judgment dated 23.01.2017 disposed of the case by directing the first respondent, State of Kerala, represented by the Chief Secretary to re-consider the issue after providing an opportunity of hearing to the petitioner, the complainant in the order of the National Green Tribunal in application No.214/2014 and any other interested or affected persons and to attain a decision within 3 months from the date of receipt of a copy of the judgment.

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Accordingly, the Additional Chief Secretary, Revenue Department heard all the affected parties on 22.04.2017. Though the disputed land is Government puramboke, the hearing officer decided to refer this matter to the High Power Committee as the decision to recall the original order was made by the High Power Committee headed by the Chief Secretary, a decision on this matter can be taken only by that Committee.

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Accordingly, the High Power Committee met on 18.05.2017 and considered the matter. The High Power Committee observed that eventhough the findings of the hearing officer that the disputed land is a revenue purambokeland, the land has been in the possession of

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W.A. Nos. 727 & 737 of 2020

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Forest Department since 1917 and from this 12.97 acre land sanctioned to Forest Department by the former Thiruvithamcore Maharani in 1917 through Gazsette notifiction for functioning a timber depot, the Forest Department transferred land to Revenue Department on various occasions, for constructing Guest house, Treasury, School, Government Offices, Government Hospital etc; that the land now available is the remaining part after the above said transfer of land. That it is a fact this remaining land is endowed with a variety of flora and that the need of the Municipality is quite trivial; the High Power Committee arrived at the conclusion that the order sanctioning land to the Kothamangalam Municipality need to be revoked. Further alternate land to re-locate the Timber Depot is not available.

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In the light of the above said facts, the High Power Committee came to the conclusion that the land need not be given to Kothamangalam Municipality for a requirement of general nature. As the sanction for transfer of the land and its further revocation was on the basis of decision taken in the meeting of the Council of Ministers, the High Power Committee decided to place this also before the Council of Ministers.

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Accordingly, Government have examined the matter in detail and are pleased to agree with the recommendation of the High Power Committee that met on 18.05.2017 and hereby issue orders revoking the order issued vide G.O read as 1^st paper above, transferring the 75 cents of land in possesson of Forest Department to Kothamangalam Municipality.

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The judgment of the Hon'ble High Court dated 23.01.2017 in W.P.(C) No.32752 of 2016 filed by Kothamangalam Municipality is thus complied with.”

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On an analysis of the impugned Government Order, it is clear that the Additional Chief Secretary, Revenue Department have

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W.A. Nos. 727 & 737 of 2020

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heard all the affected parties including the Municipality on 22.04.2017. It was thereafter that the Hearing Officer decided to refer the matter to the High Power Committee, as the decision to recall the original order was made by the High Power Committee headed by the Chief Secretary. Taking into account the said aspect, it cannot be said that a hearing was not provided to the appellant Municipality as is contemplated in Ext.P8 judgment in W.P.(C) No. 32752 of 2016 dated 23.01.2017. Therefore, we do not think that the appellant has made out any ground to interfere with the judgment of the learned Single Judge rendered in W.P.(C) No. 38342 of 2017. That apart, it is evident from the records that more than 100 species of plants and trees are available in the property and therefore, we find force in the arguments of the Government Pleader that it is a lung space for the municipal area.

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Insofar as W.A.No. 727 of 2020 is concerned, as pointed out above, the learned Single Judge in the writ petition filed by the Forest Department directed the Municipality to consider the application submitted by the Forest Department seeking permission for the construction of the compound wall.

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The issue with respect to the construction of a compound wall abutting a public road is guided by the provisions of the Kerala Municipality Building Rules, 1999 ('Rules, 1999' for brevity). However, Rule 7 thereto makes it clear that every person other than a Central or State Government Department, who intends to

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construct a building or make alteration or addition or extension to a building, shall apply in writing to the Secretary in the form in Appendix A together with plans and statements in duplicate as required under the Rules and documents to prove ownership of the land concerned and payment of application fee as in Schedule 1 along with a copy of the certificate of registration of Architect, Building Designer, Engineer, Town Planner or Supervisor, as the case may be, who has prepared and signed the plans, drawings and statement. The word 'building' is defined under Rule 2(l) of the Rules, 1999 to mean 'any structure for whatsoever purpose and of whatsoever material constructed and every part thereof whether used for human habitation or not and includes foundations, plinth, walls, floors, roofs, chimneys, plumbing and building services, verandah, balcony, cornice or projections, part of a building or anything affixed thereto or any wall enclosing or intended to enclose any land or space and signs and outdoor display structures'.

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Therefore, on a reading of the definition of building, it is clear that construction of compound walls is an activity, which requires a permit as per Rules, 1999. However, sub-Section (2) of Section 7 makes it clear that in the case of any construction by Central or State government department, the officer authorized shall, before thirty days of commencement of the work submit to the secretary, a set of plans of the proposed building along with the certificate issued by the chief architect or the engineer in charge of

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W.A. Nos. 727 & 737 of 2020

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the works to the effect that the plans are in conformity with the provisions of the rules, in all respects including conformity to any development plan prepared for the area. On an analysis of the provisions, it is explicit and clear that there is no permit required as such for the construction of any building of the State Government or Central Government or its departments. Looking from that angle also, we are of the considered opinion that there is no legal infirmity in the directions issued by the learned single Judge to consider the applications submitted by the Forest Department as to whether the same is in conformity with the provisions of Section 7(2) of the Rules, 1999.

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Upshot of the above discussion is that the appellants have not made out any case in the writ appeals warranting interference in the judgment exercising the power conferred under Section 5 of the Kerala High Court Act, there being no legal infirmity or other adverse consequences justifying interference.

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Needless to say, the writ appeals fail and accordingly, they are dismissed.

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sd/- S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY,

JUDGE.