K. Kunhiraman v. Government of Kerala & Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN`** ``` THURSDAY, THE 24[TH] DAY OF MARCH 2022 / 3RD CHAITHRA, 1944 ``` ## **`WP(C) NO. 22501 OF 2012`** ## **`PETITIONER:`** ``` K.KUNHIRAMAN (EX-JCO-INDIAN ARMY) AGED 68 YEARS KAMAL HOUSE, P.O.PATHIYARAKKARA, VIA.PUDUPPANAM, VATAKARA, KOZHIKODE-673105. ``` ``` BY ADVS. SRI.P.RAVINDRAN (SR.) SMT.APARNA RAJAN ``` ## **`RESPONDENTS:`** ``` 1GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, THIRUVANANTHAPURAM-695001. 2THE DISTRICT COLLECTOR KOZHIKODE-673001. 3THE TAHSILDAR TALUK OFFICE, VATAKARA-673101. 4MANIYUR GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, P.O.MANIYUR, VIA.PAYYOLI ANGADI, KOZHIKODE-673 533. BY ADVS.SMT.VIDYA KURIAKOSE, GOVERNMENT PLEADER SMT.JAYASREE MANOJ SRI.N.MANOJ KUMAR ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **W.P.(C).No.22501/2012** **2** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.22501 of 2012 ---------------------------------------------Dated this the 24[th] day of March, 2022** ## **JUDGMENT** This writ petition is filed with following prayers: - i. Call for the records leading to Exts.P7 & P8 and quash the same by issue of certiorari or any other appropriate writ, order or direction. - ii. Declare that the petitioner is entitled to assignment and issue of patta for the 50 cents of land leased out to him and which is in his possession from the year 1967. - iii. Issue a writ in the nature of mandamus commanding the respondents 3 & 4 to issue patta to the land held by the petitioner in re-survey No.2/2. - iv. Issue any other such writ, order or direction as this Hon’ble Court may deem fit and necessary in order to meet the ends of justice on the facts and in the circumstances of the instant case. **W.P.(C).No.22501/2012** **3** v. Award the costs of this case to the petitioner. **==> picture [36 x 12] intentionally omitted <==** 2. Petitioner is an Ex-serviceman. It is the case of the petitioner that the Government assigned him 50 cents of land in Meenathukara Village. The land was initially assigned on lease in the year 1967. The land is adjacent to Kuttiyadi river. According to the petitioner, he has been cultivating the land ever since its assignment on lease. It is the case of the petitioner that it is now a coconut garden. The petitioner subsequently applied for assignment of title to the land. According to the petitioner, the Government is taking the stand that concurrence from the Panchayat is required in view of the provisions of the Panchayat Raj Act vesting river banks in the concerned Panchayat. According to the petitioner, in this case, the 4[th] respondent Panchayat has passed a resolution as early as in the year 1990, as evident by Ext.P2, deciding to assign river perumboke and other lands to Exserviceman and other categories of eligible persons. Hence there was no legal bar in granting the petitioner's application is the contention. The petitioner challenged Exts.P7 and P8. **W.P.(C).No.22501/2012** **4** Ext.P7 is a communication from the Panchayat Secretary and Ext.P8 is a communication from the District Collector rejecting the request of the petitioner for assignment. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. I also heard the learned Standing Counsel appearing for the 4[th] respondent. 4. The learned counsel for the petitioner reiterated his contentions. The learned counsel submitted that as per Ext.P2, the Panchayat already decided to assign the property to Ex-servicemen. The learned counsel also relied on Ext.P1 lease deed. According to the petitioner, there is no justification on the part of the respondents in denying assignment of property. On the other hand, the learned Government Pleader and the Standing Counsel appearing for the Panchayat relied on a judgment of this Court in W.P.(C). No.30774 of 2012 in which same request rejected by the Panchayat and the Government, and it is upheld by this Court. 5. I considered the contentions of the petitioner and the respondents. I perused the judgment dated 22.09.2020 in W.P. (C).No.30774 of 2012. It will be better to extract the relevant **W.P.(C).No.22501/2012** **5** ## portion of the judgment in W.P.(C). No.30774 of 2012: “27. In **M.A. Johny** the Division Bench noticed further that, 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. Sub-rule (2) of Rule 3 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 hundred rupees as may be imposed by the Panchayat. Other stipulations are also provided under the Rules. 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 **W.P.(C).No.22501/2012** **6** 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. A procedure is also prescribed under the Rules for eviction of the unauthorised occupants. Thereafter, the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005 was introduced. Sub-rule (1) of Rule 8 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. 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 subsection (6) of Section 166 or sub-section (5) of Section 172 or subsection (5) of Section 173 of the Act, 1994. Section 218 of the Act, 1994 which stipulates that notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 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 **W.P.(C).No.22501/2012** **7** 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. In **M.A. Johny** , in the context of the provisions under the Kerala Panchayat Raj Act, 1994, the Kerala Municipality Act, 1994 and also the rules made thereunder, the Division Bench held that, 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. 28. In the instant case, since the land in question is vested in the Maniyoor Grama Panchayat, the same cannot be assigned under the provisions of the Kerala Land Assignment Act and the Rules made thereunder, in view of the statutory provisions referred to hereinbefore and also the law laid down in the decision referred to supra. 29. The learned Government Pleader would point out that no assignment of puzha puramboke is legally permissible, in view of the law laid down by the Apex Court in **Sarvepalli Ramaiah v. District Collector, Chittoor District [2019 (4) SCC 500]** . 30. In **Sarvepalli Ramaiah** , it was noticed that, the Apex Court has time and again emphasised the need **8** ## **W.P.(C).No.22501/2012** to retain and restore water bodies and held that water bodies are inalienable. Land comprised in water bodies cannot be alienated to any person even if it is dry. In the said decision, reference was also made to its earlier judgments in **M.C. Mehta (Badkhal and Surajkund Lakes Matter) v. Union of India [(1997) 3 SCC 715]; Susetha v.State of Tamil Nadu [(2006) 6 SCC 543] and Intellectuals Forum v. State of Andhra Pradesh [(2006) 3 SCC 549]** . 31. When the land in question having an extent of 50 cents in Resurvey No.2 (Part) in Palayadu Village is puzha puramboke, it cannot be assigned to the petitioner, in view of the law laid down by the Apex court in the decisions referred to supra. 32. Therefore, this Court finds no valid grounds to interfere with reasoning of the 1st respondent in Ext.P9 order dated 12.10.2012, whereby the application made by the petitioner for assignment of 50 cents of river puramboke in Resurvey No.2 (Part) in Palayadu Village in Maniyoor Grama Panchayat stands rejected. In the result, this writ petition fails and the same is accordingly dismissed. No order as to costs. ” 6. In the light of the above judgment, according to me, a different stand cannot be taken as far as the petitioner is concerned. The petitioner in W.P.(C). No.30774 of 2012 was **9** ## **W.P.(C).No.22501/2012** also an Ex-service man and the petitioner herein also an Exservice man. The petitioner is praying similar relief. The same is rejected by this Court as per the above judgment. Therefore, the point raised by the petitioner is covered against the petitioner as per the judgment in W.P.(C). No.30774 of 2012. Therefore, this writ petition is dismissed. sd/- **P.V.KUNHIKRISHNAN JUDGE** JV **10** ## **W.P.(C).No.22501/2012** ## **`APPENDIX OF WP(C) 22501/2012`** |`PETITIONER`|`EXHIBITS`| |---|---| |`EXHIBIT P1`|`COPY OF THE CERTIFICATE OF ASSIGNMENT`| ||`ISSUED TO THE PETITIONER IN THE YEAR`| ||`1976`| |`EXHIBIT P2`|`COPY OF THE DECISION OF THE 4TH`| ||`RESPONDENT MANIYUR GRAMA PANCHAYAT`| ||`DATED 23.11.90`| |`EXHIBIT P3`|`COPY OF THE COMMUNICATION ISSUED BY`| ||`THE PANCHAYAT DATED 31.03.1997`| |`EXHIBIT P4`|`COPY OF THE PROCEEDINGS ISSUED BY THE`| ||`PANCHAYAT DATED 09.02.1987`| |`EXHIBIT P5`|`COPY OF THE PROCEEDINGS ISSUED BY THE`| ||`PANCHAYAT DATED 20.07.1987`| |`EXHIBIT P6`|`COPY OF THE COMMUNICATION FROM THE 3RD`| ||`RESPONDENT DATED 25.01.2012`| |`EXHIBIT P7`|`COPY OF THE COMMUNICATION FROM THE 4TH`| ||`RESPONDENT DATED 13.01.2012`| |`EXHIBIT P8`|`COPY OF THE COMMUNICATION FROM THE 2ND`| ||`RESPONDENT DATED 29.06.2012`|