Meera R. Bhat v. State of Kerala represented by its Secretary, Local Self Government Department; Tahsildar, Manjeshwar; Manjeswar Grama Panchayat; Sadguru Sree Nithananda Seva Samithi; Sadanand Malli

W. P. (C) No. 24510 of 2016 -1- ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE SHAJI P.CHALY ``` ``` MONDAY, THE 28[TH] DAY OF NOVEMBER 2022 / 7TH AGRAHAYANA, ``` ``` 1944 ``` ``` WP(C) NO. 24510 OF 2016 ``` ## **`PETITIONER/S:`** ``` MEERA R. BHAT AGED 64 YEARS W/O. RAGHUNATHA BHAT, AGED 64, RESIDING AT DOOR.NO.MGP 15/92, RAMNATHA KRIPA, HOSABETTU VILLAGE MANJESHWAR- 671 323, MANJESWAR TALUK, KASARGOD DISTRICT. ``` ``` BY ADVS. SRI.R.LAKSHMI NARAYAN SRI.M.ASHOK KINI SMT.R.RANJANIE ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY SECRETARY OF LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM695001.`** - **`2 THE TAHSILDAR MANJESWAR, MANJESWAR TALUK OFFICE, MANJESWAR P.O., UPPALA-671 322.`** - **`3 MANJESWAR GRAMA PANCHAYAT, MANJESHWAR-671 328, REPRESENTED BY ITS SECRETARY`** - **`4 SADGURU SREE NITHANANDA SEVA SAMITHI, BOLNAD GUTTU, HOSABETTU VILLAGE, MANJESHWAR-671 323 REPRESENTED BY ITS SECRETARY, SHANMUKH RAO, S/O. SREENIVASA ROA, OPPOSITE SAT HIGH SCHOOL, GUDDIKERI, HOSABETTU VILLAGE, MANJESHWAR-671 323.`** - **`5 SADANAND MALLI, S/O. ITHAPPA MALLI, AGED 54, BOLNAD GUTTU, HOSABETTU VILLAGE, MANJESHWAR-671 323. BY ADVS. SRI.KODOTH SREEDHARAN SMT.GOVINDU P.RENUKADEVI SMT.C.B.SUMA DEVI SRI.T.B.SHAJIMON`** W. P. (C) No. 24510 of 2016 -2- ## **`OTHER PRESENT:`** ``` R1 AND 2 - SRI.JOBY JOSEPH,SENIOR GOVERNMENT PLEADER ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W. P. (C) No. 24510 of 2016 -3- ## **J U D G M E N T** This writ petition is filed by the petitioner, a resident within the limits of Manjeswaram Grama Panchayat, seeking the following reliefs:- “1) Issue writ of mandamus or other appropriate writ, order or direction, directing the 3[rd] respondent to take expeditious steps in accordance with provisions of Kerala Panchayath Raj Act and Kerala Panchayath Raj (Removal of encroachment and imposition and recovery of penalty for unauthorized occupation) Rules, 1996, to see that the respondents 4 and 5 are evicted from the Panchayath Purampoke property having extent of 6 cents each in R S. Nos. 61/2 and 61/3 of Hosabettu Village, and buildings unauthorisedly constructed therein, and the said properties are recovered from respondents 4 and 5 and restored to the 3[rd] respondent; 2) Call for records relating to Ext.P-1 and Ext.P-2, and quash the same and all proceedings for assignment of the land having an extent of 6 cents each, comprised in R.S. No. 61/2 and 61/3 of Hosabettu Village, respectively, in favour of respondents 4 and 5 or any other persons, by issuance of writ of certiorari or other appropriate writ or direction.” ## 2. Basic material facts for the disposal of the writ petition are as W. P. (C) No. 24510 of 2016 -4- follows:- 3. Petitioner is the owner in possession and enjoyment of 6 cents of property in resurvey No. 61/9 of Hosabettu Village within the limits of Manjeswaram Grama Panchayat. The case projected by the petitioner is that respondents 4 and 5, namely Sadguru Sree Nithananda Seva Samithi and Sadanand Malli are unauthorized occupants in Panchayat poramboke property (road margin) on the western side of the petitioner’s property, and constructed unauthorized buildings therein. As per Ext. P8 notice, the Secretary of the Grama Panchayat required the 4[th] ‘respondent to demolish the unauthorized construction made by the 4[th] respondent in the property. As per Ext. P9 letter, the Deputy Superintendent, Vigilance and Anti-Corruption Bureau (VACB), Kasaragod was informed by the 3[rd] respondent Panchayat that they have taken steps for demolishing the unauthorized construction made in the property. It is the specific contention of the petitioner that the properties occupied by the 3[rd] and 4[th] respondents are road poramboke and therefore it is contended that the petitioner is subjected to many difficulties, nuisance and mischief on account of illicit custody of the above mentioned properties by respondents 4 and 5. W. P. (C) No. 24510 of 2016 -5- 4. The case of the petitioner is that the Panchayat and the Secretary of the Grama Panchayat are duty bound to recover possession of the property and demolish the unauthorized construction carried out by the 4[th] and 5[th] respondents. It is further contended that instead of recovering possession of the property, the Panchayat Committee as per decision No. 49/11(d) and 49(c)/11 dated 17.05.2011 decided to inform the Government that the Panchayat has no objection in devesting the property to assign the property in favour of respondents 4 and 5. The decisions of the Grama Panchayat referred to above are produced as Exts. P1 and P2 along with the writ petition. Petitioner seeks to quash Exts. P1 and P2 minutes of the Grama Panchayat also. 5. The basic contention advanced by the petitioner is that the public property is vested with the Grama Panchayat by virtue of the provisions of the Kerala Panchayat Raj Act, 1994; and therefore the Panchayat is not at liberty to assign the properties in favour of third persons especially due to the fact that as per the provisions of the Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, no property vested in the Panchayat can be transferred by the Panchayat in favour of any third persons. It is in the abovesaid W. P. (C) No. 24510 of 2016 -6- background the reliefs are sought for by the petitioner. 6. Respondents 4 and 5 have filed a joint counter wherein it is contended that the land in R. S. No.61/3 of Hosabettu Village is in possession of the 5[th] respondent. There is an old tiled building existing thereon bearing door No. XI/87 of Manjeshwar Grama Panchayat. The 5[th] respondent is a handicapped person. He is in occupation of the property and has been running a hotel in the same building for the last 35 years. As per the letter of the Secretary, Manjeshwar Grama Panchayat and resolution of the same Grama Panchayat 49(c)/11 dated 17.05.2011, there is a decision made by the Panchayat to devest the land and assign it to the 5[th] respondent who is in occupation of the property for the last several years. 7. It is further contended that as per another resolution dated 17.05.2011 of Manjeswaram Grama Panchayat, the land in R. S. No. 61/2 of Hosabettu Village measuring an extent of 0.06 acres of land is in possession of the 4[th] respondent Sadguru Shree Nithyananda Seva Samithi since the last more than 22 years. There is a building bearing door No. XI/86 of Manjeshwar Grama Panchayat in RS No.61/2. As per the resolution dated 17.05.2011 of Manjeshwar Grama Panchayat, W. P. (C) No. 24510 of 2016 -7- devested the above land to enable the Government to assign the land in the name of the 4[th] respondent. The respondents were throughout enjoying the properties by constructing building therein as permitted by the Panchayat and the Panchayat on finding that the respondents are persons holding no other properties decided to recommend assignment by passing resolution. The Panchayat is convinced on the available materials that the respondents are in occupation of the lands proposed to be assigned. 8. Respondents 4 and 5 have pointed out that pursuant to the Kerala Decentralization of Power Act 2000 (Act 16 of 2000), subsection (2) of Section 3 was introduced in the Kerala Government Land Assignment Act, 1960 with effect from 12.06.2000 which is in the following lines. “3. Assignment of Government Land:- [(1)] Government land may be assigned by the Government or by any prescribed authority either absolutely or subject to such restrictions limitations and conditions as may be prescribed. [(2) No Government land assignable for public purpose may be assigned under sub section (1) without consulting the local authority as defined in the Kerala Panchayat Raj Act, 1994 (12 of 1994) or the Kerala Municipality Act, 1994 (20 of 1994) as the W. P. (C) No. 24510 of 2016 -8- case may be and if such local authority required such land for carrying out any of the functions assigned to it, Government may set apart such land for that purpose] Explanation:- Any restriction as to alienation, whether voluntary or otherwise of the rights of the assignee, shall be a restriction within the meaning of this section." 9. It is also contended that it is to effectuate the public purpose in this regard at the request of the Panchayat the resolutions were passed by the Panchayat. 10. That apart it is contended that the petitioner has absolutely no interest in anybody's welfare and is claiming such interest for the purpose of the writ petition. Several writ petitions have been filed by the petitioner in this regard to wreck vengeance against persons and institutions and those were filed not in public interest. There are no merits in the writ petition. 11. The petitioner has filed a reply affidavit reiterating the stand adopted in the writ petition and also disputing the claims raised by the 4[th] and 5[th] respondents in their counter affidavit. 12. I have heard learned counsel for the petitioner Smt. R. Renjanie, learned Senior Government Pleader Sri. Joby Joseph, W. P. (C) No. 24510 of 2016 -9- learned Standing Counsel for the Panchayat Sri. T. B. Shajimon and Sri. Kodoth Sreedharan for respondents 4 and 5 and perused the pleadings and material on record. 13. The paramount contentions are advanced by the petitioner on the basis of Exts. P1 and P2 decisions of the Grama Panchayat Committee by which it was decided that the Panchayat has no objection in devesting an extent of 0.06 ares of property situated in R.S. No. 61/2 and 0.06 ares of property in R.S. No. 61/03 respectively. It is true that respondents 4 and 5 have raised various contentions including that they are in possession of the said properties for the past more than 40 years and therefore they are entitled as of right to get assignment from the State Government. The primary aspect to be looked into is whether as per Exts. P1 and P2 minutes, the Panchayat has devested the property or has taken any decision for assigning the property in favour of respondents 4 and 5. 14. It is an admitted fact that there is no power vested with the Panchayat to assign any land in favour of any person. Even respondents 4 and 5 admit that they are in occupation of the properties specified above; however the contention advanced is that they are in W. P. (C) No. 24510 of 2016 -10- possession of the properties for the past more than 40 years and therefore they are entitled to get assignment of the properties. 15. It seems consequent to a judgment passed by this Court in another writ petition, the Panchayat has passed a resolution withdrawing Exts. P1 and P2 resolutions and therefore the stand adopted by the Panchayat now is that the Panchayat is duty bound to protect the public properties within its limits due to the vesting of the properties consequent to the provisions of the Act 1994. But fact remains, Exts. P1 and P2 shows that Panchayat has not devested the property. As per Exts. P1 and P2 the Panchayat has taken a decision to inform the Government that the Panchayat has no objection in devesting the property in order to assign the property in favour of respondents 4 and 5. It is true if any person encroaches into any public property, it is the mandatory function of the Panchayat as per Schedule III of the Kerala Panchayat Raj Act 1994 and the Kerala Panchayat (Removal of Encroachments and Imposition and Recovery of Penalty for Unauthorized Occupation) Rules, 1996 to recover the property after providing sufficient notice in contemplation of the Rules. But here is a case where respondents 4 and 5 contend that they are entitled to approach the Government for assigning the property. W. P. (C) No. 24510 of 2016 -11- 16. Learned counsel for the petitioner has invited my attention to the order of the Hon’ble Apex Court in SLP (C) No. 1829 of 2021 dated 05.02.2021 in Joginder and Another v. State of Haryana and Others, and submitted that the Hon’ble Apex Court has held that the Panchayat has a duty to ensure that the encroachments made to the public property is liable to be removed by the Grama Panchayat. 17. As I have pointed out above, there is no dispute with respect to the same. However as per the Kerala Government Land Assignment Act, 1960 and the Kerala Government Land Assignment Rules, 1964, any person is entitled to apply for assignment of a land including a land encroached. Therefore respondents 4 and 5 have a liberty to approach the State Government to make any application for assignment of the properties in question. 18. Since I find that the Panchayat has neither devested the property nor assigned the property in favour of respondents 4 and 5 , I do not think any interference is required to Exts. P1 and P2 resolutions passed by the Panchayat; especially due to the fact that the learned counsel for the Panchayat submitted that the said resolutions are withdrawn by the Panchayat at a later point of time. W. P. (C) No. 24510 of 2016 -12- 19. Considering the facts and circumstances of the case, I am of the opinion that the Panchayat is at liberty to proceed against respondents 4 and 5, however at the same time, the said respondents are at liberty to submit any application for assignment of the property before the Government. This writ petition was pending before this Court without securing any interim orders. However I make it clear that if respondents 4 and 5 are not securing any orders from the Government within a reasonable, the Panchayat is at liberty to proceed to recover the property, in accordance with law. Writ petition is disposed of accordingly. **Sd/SHAJI P. CHALY JUDGE** Eb ///TRUE COPY/// P. A. TO JUDGE W. P. (C) No. 24510 of 2016 -13- ## **`APPENDIX OF WP(C) 24510/2016`** ## **`PETITIONER EXHIBITS`** ``` EXHIBIT P1THE PHOTOCOPY OF THE RESOLUTION/DECISION OF THE 3RD RESPONDENT, BEARING NO. 49/11(D) ``` ``` EXHIBIT P2THE PHOTOCOPY OF THE RESOLUTION/DECISION OF THE 3RD RESPONDENT, BEARING NO. 49(C)/11 ``` ``` EXHIBIT P3THE PHOTOCOPY OF THE LETTER DATED 25.10.2010. EXHIBIT P4THE PHOTOCOPY OF THE LETTER DATED 7.3.2014. EXHIBIT P5THE PHOTOCOPY OF THE LETTER DATED 13.8.2014. EXHIBIT P6THE PHOTOCOPY OF THE LETTER DATED 27.11.2014. EXHIBIT P7THE PHOTOCOPY OF THE LETTER DATED 21.8.2015. EXHIBIT P8THE PHOTOCOPY OF THE LETTER DATED 18.11.2015. EXHIBIT P9THE PHOTOCOPY OF THE LETTER DATED 24.2.2016. EXHIBIT P10THE PHOTOCOPY OF THE LETTER DATED 2.3.2016. EXHIBIT P11THE PHOTOCOPY OF THE LETTER DATED 5.6.2017 ISSUED BY ASSISTANT ENGINEER TO THE PWD(ROADS) DIVISION, MANJESWARAM, ENCLOSING LETTER DATED 26.5.2017 ISSUED BY THE TAHSILDAR(LR), MANJESWARAM TO ASSISTANT ENGINEER TO PWD(ROADS) DIVISION, MANJESWARAM. EXHIBIT P12THE PHOTOCOPY OF THE K3 AND 10(1) EXTRACT REGISTER, MAINTAINED BY THE VILLAGE OFFICER, HOSEBETTU. EXHIBIT P13THE PHOTOCOPY OF THE LETTER DATED 28.07.2016 ISSUED FROMTHE COMMISSIONER TO THE LAND REVENUE. RESPONDENT EXHIBITS EXHIBIT R5(a)TRUE COPY OF THE RESOLUTION NO.49(c)/2011 DATED 17/5/2011 EXHIBIT R5(b)TRUE COPY OF THE RESOLUTION NO.49(d)/2011 DATED 17/5/2011 EXHIBIT R5(c)TRUE COPY OF THE ORDER DATED 24/11/2015 PASSED BY OMBUDSMAN, LSGD ``` W. P. (C) No. 24510 of 2016 -14- ``` EXHIBIT R5(d)TRUE COPY OF THE LETTER DATED 7/3/2014 ISSUED BY MANJESHWAR GRAMA PANCHAYATH EXHIBIT R5(e)TRUE COPY OF THE LETTER DATED 13/8/2014 ISSUED BY LAND REVENUE COMMISSIONER. EXHIBIT R5(f)TRUE COPY OF THE LETTER DATED 27/11/2014 ISSUED BY TAHSIDAR, MANJESHWARAM. EXHIBIT R5(g)TRUE COPY OF THE LETTER DATED 21/8/2015 ISSUED BY DEPUTY DIRECTOR, PANCHYATH DIRECTORATE, KASARGOD EXHIBIT R5(h)TRUE COPY OF THE LICENSE DATED 14/6/2016 ISSUED BY MANJESHWAR GRAMA PANCHAYATH. EXHIBIT R5(i)TRUE COPY OF THE REGISTRATION PERIOD 31/3/2016-30/3/2020 ISSUED BY COMMISSIONERATE FOOD SAFTY. ```