High Court of KeralaSingle Judge2021-12-06Writ petition dismissed.

Linson David v. Kothamangalam Municipality

Case / Petition Number:WP(C) NO.21697 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Justice Anu Sivaraman
Judgment Date: 2021-12-06
Court Decision / Holding: Writ petition dismissed. The court held that the property had effectively been surrendered and that the Chelikuzhithandu-PVIP Mulavoor Branch Canal Road had vested in the Municipality as a public road, with the asset register entry being a consequence of that surrender. The petitioner’s challenge to the relinquishment provisions did not override the civil court findings (Exts. P7, P8) and the evidence in Exts. P2 and P3, leading to denial of the reliefs sought.
Final Disposition: Writ petition dismissed.

Parties to the Case

Appellants / Petitioners

Linson David

Respondents

The Kothamangalam Municipality represented by its Secretary, Municipal Office, Kothamangalam-686 691
The Secretary, Kothamangalam Municipality, Municipal Office, Kothamangalam-686 691

Legal Representation & Advocates

Counsels for Petitioners

• SAJEEV KUMAR K.GOPAL

Counsels for Respondents

• SRI.JOICE GEORGE, SC

Case Synopsis & Summary

This writ petition challenges the inclusion of a road, Chelikuzhithandu-PVIP Mulavoor Branch Canal Road, in the Municipality’s asset register and contends that there was no valid relinquishment of land under the Kerala Land Relinquishment Act, 1958, to vest the road in the Municipality. The petitioner, Linson David, asserts ownership of a 2.5 acre property and claims that his predecessors purchased only the right to use a pathway to access their land; he contends that relinquishment is required before a private pathway can become a public road. The Municipality denies that there was any denial of access and argues that the owners surrendered the land and that the road was thereby vested in the Municipality; Exts. P7 and P8 (civil court judgments) have determined that there is no easement by grant, and that the petitioner's right is only to access to his properties. The court notes Exts. P2 and P3 showing the rights to use the pathway but finds the relinquishment argument persuasive, relying on Roy Abraham v. State of Kerala (2021 (4) KHC 520) to support that surrender of land to the Municipality can make the asset-register entry a natural consequence. The judge ultimately holds that the petition cannot be granted and dismisses the writ petition. The asset register’s inclusion of the road is sustained, and the road is treated as a public road vested in the Municipality.

Provisions of Law Cited

Kerala Land Relinquishment Act, 1958 (Section 4)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that there was no relinquishment of land by the owner. He contends that the pathway leading to his property was acquired by purchase for access, and the right to use the pathway does not amount to relinquishment or vesting of ownership in the Municipality. He relies on Kerala Land Relinquishment Act, 1958 and its Section 4, arguing that until a valid relinquishment is made, the road cannot be treated as a public road and cannot be included in the asset register as a public asset. The petitioner asserts that the mere inclusion in the asset register does not confer any rights on the Municipality and that the road belongs to the owner for access to his property.

Contentions of Respondents

The Municipality contends that the owners surrendered the land and the asset register inclusion is a consequential action. It asserts that Exts. P7 and P8 show there was no easement by grant and that the petitioner’s predecessors lost their rights; the road has vested in the Municipality and acquired the nature of a public road. It emphasizes that the property was surrendered and that the asset-register entry is a natural consequence of that surrender, with public access unaffected by the petitioner's personal rights.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Roy Abraham v. State of Kerala and others	2021 (4) KHC 520	Positive	Used to support the proposition that surrender of property to the Municipality results in ownership and makes asset-register inclusion a consequent act.
Thomman v. Kuriako	1988 KHC 185	Mentioned Only	Cited in the judgment without engaging in its specific ratios or conclusions for the present case.
Kallen Devi and others v. Kizhakkekoroth Raghavan	2012 (2) KHC 443	Mentioned Only	Cited but not relied upon in the dispositive reasoning.
W.P.(C) NO.13047 OF 2020	dated 25.09.2020	Mentioned Only	Appendix P10 refers to this judgment; it is cited but not central to the decision.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **MONDAY, THE 6[TH] DAY OF DECEMBER 2021 / 15TH AGRAHAYANA, 1943** ## **WP(C) NO.21697 OF 2020** ## **- PETITIONER :** LINSON DAVID, AGED 39 YEARS S/O.DAVID, PAZHUKKALIL HOUSE, VENDUVAZHY KARA, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM TALUK-686 691. BY ADV SAJEEV KUMAR K.GOPAL ## **- RESPONDENTS :** 1 THE KOTHAMANGALAM MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE, KOTHAMANGALAM-686 691. 2 THE SECRETARY, KOTHAMANGALAM MUNICIPALITY, MUNICIPAL OFFICE, KOTHAMANGALAM-686 691. BY ADV SRI.JOICE GEORGE, SC, KOTHAMANGALAM MUNICIPALITY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2021, THE COURT ON 6.12.2021 DELIVERED THE FOLLOWING: WP(C) NO.21697 OF 2020 -: 2 :- ## JUDGMENT ## Dated this the 6th day of December, 2021 This writ petition is filed seeking the following reliefs :- - “i) Issue a writ of certiorari or any other appropriate writ or direction orders calling for the records leading to Exhibit P9 and quash the same to the extent it included Chelikuzhithandu-PVIP Mulavoor Branch Canal Road in the asset register of the Municipality. - ii) Declare that there is no valid relinquishment of land as per the provisions of the Kerala Land Relinquishment Act, 1958 pertaining to Chelikuzhithandu-PVIP Mulavoor Branch Canal Road and hence the said road to not vest with the Municipality. - iii) Issue a writ of Mandamus or any other appropriate writ or direction orders directing the respondents not to take any steps to alter the lie and nature of the Chelikuzhithandu-PVIP Mulavoor Branch Canal Road mentioned in Exhibit P9 since the said road has not legally vested with the Municipality under the provisions of the Kerala Land Relinquishment Act, 1958. ” 2. Heard the learned counsel for the petitioner and the learned Standing Counsel appearing for the respondent Municipality. 3. It is submitted that the petitioner is the owner of a property having an extent of 2.5 Acres within the jurisdiction of the 1[st] respondent. The property was obtained by Ext.P1 document. It is submitted that the petitioner's parents had, by WP(C) NO.21697 OF 2020 -: 3 :- Exts.P2 and P3, purchased certain extent of property for the purpose of a pathway to Ext.P1 property. It is submitted that when efforts were made to connect the petitioner's pathway to another pathway and to make it as a public pathway, representations were submitted by the petitioner's father which were duly received by the Municipality. However, even thereafter attempts for forming a public pathway continued and the petitioner filed O.S.No.636/2013 before the Munsiff Court, Muvattupuzha. It is submitted that the suit was dismissed by the Munsiff Court by Ext.P7 judgment and the appeal preferred against the same as A.S.No.158/2018 before the Additional District and Sessions Court was also dismissed by Ext.P8. It is submitted that thereafter, the road was included in the asset register of the Municipality. 4. The learned counsel for the petitioner submits that there was no relinquishment of land by the petitioner and therefore, there can be no inclusion of the road in the asset register without a proper relinquishment by the owner of the property. It is the specific contention of the petitioner that the petitioner is the owner of the pathway in question leading upto his property and therefore, his specific relinquishment is WP(C) NO.21697 OF 2020 -: 4 :- required before any public pathway can be formed. It is contended that the mere inclusion of the property in the asset register of the Municipality will not by itself confer any right on the Municipality. The learned counsel relies on the provisions of the Land Relinquishment Act to contend that there has to be a clear relinquishment in terms of Section 4 before a private pathway can assume the character of a public pathway or road. 5. A counter affidavit has been placed on record by the Municipality. It is specifically stated that the judgments of the civil court which are produced as Exts.P7 and P8 are determinative of the issue and that the writ petition filed is, therefore, completely without bona fides and is a misconceived exercise. It is stated that a reading of Exts.P2 and P3 would itself show that what was purchased by the petitioner's father and mother was only the right to use the pathway in question for access to their properties and there was absolute purchase of the pathway or the exclusive right of the user of the same conferred by the said documents. It is submitted that Exts.P7 and P8 judgments specifically considered this issue and found that there was no easement by grant and the right acquired by the petitioner's parents was only for the user of the pathway for WP(C) NO.21697 OF 2020 -: 5 :- access to their properties. It is contended that there is no effort on the part of any person or much less the Municipality to deny the petitioner's access to his property through the pathway in question. It is submitted that a full relinquishment had been effected by the owners of the property and that in the above circumstances, the pathway has vested in the Municipality and has acquired the nature of a public road. It is submitted that the attempt by the petitioner in spite of having two judgments specifically rendered against him is only to defeat the rights of the Municipality and the residents of the area of their right to use the public pathway as such. 6. The learned counsel places reliance on the decisions of this Court in Roy Abraham v. State of Kerala and others [2021 (4) KHC 520], Thomman v. Kuriako [1988 KHC 185] and Kallen Devi and others v. Kizhakkekoroth Raghavan [2012 (2) KHC 443]. 7. I have considered the contentions advanced. Exts.P2 and P3 would show that what is purchased by the petitioner's parents is the right to use the pathway in question for access to their properties. That the petitioner has a right to use the pathway is not disputed by the Municipality. In Ext.P7 WP(C) NO.21697 OF 2020 -: 6 :- judgment, the right of the petitioner's predecessors-in-interest has been specifically dealt with. The specific case that there was a public road included in the asset register of the Municipality had been considered by the trial court and it was found that the petitioner had no right to claim easement over a road which was admittedly used by the public as a public road. This stands affirmed in Ext.P8 judgment. The learned counsel for the petitioner places reliance on Ext.P10 judgment. However, the facts of the said case are quite distinct and different from the facts available here. 8. A Division Bench of this Court in Roy Abraham v. State of Kerala and others [2021 (4) KHC 520] specifically held that once a property is surrendered free of cost to the Municipality, the Municipality will become the owner of the property and the inclusion of the property in the asset register would only be a consequential action. 9. In the instant case, it is the specific case of the respondents that the property had been surrendered by the owners of the same and that it had been duly included in the asset register of the Municipality. The mere fact that the petitioner had purchased a right to use the property for access WP(C) NO.21697 OF 2020 -: 7 :- to his properties by Exts.P2 and P3 would not, in any manner, detract from the surrender of the property to the Municipality. In the light of the recitals in Exts.P2 and P3, I am of the opinion that the prayers sought for in the writ petition cannot be granted. The writ petition fails and the same is, accordingly, dismissed. Sd/ANU SIVARAMAN JUDGE jvt/25.11.2021 WP(C) NO.21697 OF 2020 -: 8 :- ## **APPENDIX OF WP(C) 21697/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF DOCUMENT NO.7663/2011 OF KOTHAMANGALAM. EXHIBIT P2 TRUE COPY OF THE SALE DEED NO.914 OF 1997 DATED 05.02.1997. EXHIBIT P3 TRUE COPY OF THE SALE DEED NO.915 OF 1997 DATED 05.02.1997. EXHIBIT P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER'S FATHER NAMED SRI.DAVID ON 16.03.2009. - EXHIBIT P5 TRUE COPY OF THE RECEIPT ISSUED BY THE MUNICIPALITY REGARDING THE ACCEPTANCE OF THE COMPLAINT FROM THE PETITIONER DATED 02.12.2013. EXHIBIT P6 TRUE COPY OF THE REPORT SUBMITTED BY THE ADVOCATE COMMISSIONER DATED 28.02.2014. - EXHIBIT P7 TRUE COPY OF THE JUDGMENT IN O.S.NO.636 OF 2017 OF MUNSIFF COURT, MUVATTUPUZHA DATED 27.11.2017. - EXHIBIT P8 TRUE COPY OF THE JUDGMENT IN A.S.NO.158/2018 OF THE DISTRICT AND SESSIONS COURT, MUVATTUPUZHA DATED 31.10.2019. EXHIBIT P9 TRUE COPY OF THE ASSET REGISTER WHICH CONTAINS THE ROAD CHELIKUZHITHANDU-PVIP CANAL LINK ROAD. EXHIBIT P10 TRUE COPY OF THE JUDGMENT IN W.P.(C)NO.13047 OF 2020 DATED 25.09.2020.