Vazhappally Grama Panchayath represented by its Secretary v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY,THE 05TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** ## **WP(C).No. 21195 of 2013** ## **PETITIONER/S:** **VAZHAPPALLY GRAMA PANCHAYAT REPRESENTED BY ITS SECRETARY, KURUSUMOODU P.O, CHANGANASSERY 686 101.** **BY ADVS. SMT.SUMATHY DANDAPANI (SR.) SRI.MILLU DANDAPANI** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, REVENUE (A) DEPARTMENT, TRIVANDRUM 695 001.** - **2 THE DISTRICT COLLECTOR, KOTTAYAM 686 001.** - **3 THE TAHSILDAR TALUK OFFICE, CHANGANASSERY 686 001.** - **4 THE VILLAGE OFFICER CHETHIPUZHA, CHANGANASSERY 686 101.** - **5 THE CHANGANASSERY METAL AND ALLIED INDUSTRIES CO-OPERATIVE SOCIETY LTD NO.IND (K) 71, REPRESENTED BY ITS SECRETARY, INDUSTRIAL ESTATE P.O, CHANGANASSERY, KOTTAYAM DISTRICT. 686 101.** - Addl. **6 M.C.ANTONY, S/O.LATE CHACKO, AGED 62 YEARS, MUTTATHIL HOUSE, KURIZHUMOODU P.O., CHANGANACHERRY, KOTTAYAM DISTRICT.(ADDL.R6 IS IMPLEADED AS PER ORDER DATED 05.12.2018 IN I.A.NO.14221 OF 2013)** BY ADVS. **SRI.JOHN VARGHESE SRI.JOMY GEORGE** ## **OTHER PRESENT:** ## **SRI.K.J.MOHAMMED ANZAR,SPL.GOVT.PLEADER** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 21195 of 2013** 2 ## **J U D G M E N T** The Vazhappally Grama Panchayath has filed this writ petition challenging Ext.P20 order by which Government rejected their request for assignment of 24 cents of land comprised in Sy.No.122/12 situated in Chethipuzha Village which is in possession of the 5[th] respondent-Changanassery Metal & Allied Industries Limited. The claim of the Panchayath is that the property is vested in the Grama Panchayath and that therefore, the lease granted by the Department of Revenue in favour of the 5[th] respondent and the retention of the property by the 5[th] respondent are illegal, was rejected. 2. As per Ext.P4 order-G.O.(MS).No.542/Rev. dated 01.06.1961, Government leased out 48 cents out of the 82 cents of land in Sy.No.122/12, in Vazhappally East Village in favour of the 5[th] respondent for a period of 12 years, on annual rent at the rate of 192 Paisa per cent. The 5[th] respondent continues to be in possession, even after the expiry **WP(C).No. 21195 of 2013** 3 ## of the lease period. 3. The case of the petitioner is that the property leased out to 5[th] respondent in the year 1961 is part of 82 cents of Kulam Puramboke. The 5[th] respondent was permitted to construct necessary buildings and installation of machinery etc., within one year of the handing over of possession of the site and the said leasing out was for industrial purposes on condition that it shall not be used for any other purpose. On the basis of Ext.P4 Government order, the 5[th] respondent executed a Kuthakapattam Deed as directed in Ext.P5 notice issued by the Tahsildar. Ext.P6 order was issued on 07.08.1962 granting 48 cents of land in favour of 5[th] respondent on lease for a period of 12 years at an annual rent of 192 Paisa. While so, the petitioner Panchayath had submitted an application for assignment of the property for its developmental activities including for construction of a Community Hall, Nursery School and Kalyanamandapam and Government had as per Ext.P7 order dated **WP(C).No. 21195 of 2013** 4 14.09.1983 assigned 25 cents of land to the Panchayath out of the 48.5 cents leased out to the 5[th] respondent on condition that the Panchayath had to remit a sum of Rs.68,750/- towards the land value and survey charges. But the Panchayath was not able to remit the same and therefore, it requested the Government to assign the land free of cost. Therefore, Government cancelled the assignment in favour of the petitioner as per G.O. (MS).No.197/86/RD dated 26.03.1986. Thereafter 10 cents of the 48.5 cents of land leased out to the 5[th] respondent, Government assigned 10 cents of property for construction of Village Office, Chethipuzha and 4.5 cents for road widening. The remaining extent of 24 cents continued to be in the occupation of 5[th] respondent. 4. As the 5[th] respondent defaulted payment of rent, the Tahasildar-3[rd] respondent thereupon issued a notice to the 5[th] respondent on 03.09.1987 directing to pay the arrears of lease rent and to vacate the property as the lease period had already expired. The **WP(C).No. 21195 of 2013** 5 5[th] respondent did not remit the arrears of lease or vacate the property. Thereafter as per Ext.P8 orderG.O.(MS).No.56/94/RD dated 19.02.1994, Government cancelled the Kuthakapattam/lease granted in favour of the 5[th] respondent. By this order the lease rent was fixed at the rate of Rs.1,500/- per cent for the period from 01.06.1973. Thereafter, the Tahasildar issued Ext.P10 notice dated 24.05.1994, directing the 5[th] respondent to vacate the premises. Thereupon, the 5[th] respondent approached this Court filing O.P.No.7222 of 1994, challenging Ext.P8 order and this Court passed an interim order staying the operation of Ext.P8 Government Order. While continuing on the basis of the interim order that writ petition was dismissed for default, as per Ext.P9 judgment dated 15.02.2005. Thereafter, the 3[rd] respondent issued Ext.P11 notice on 08.05.2006, directing the 5[th] respondent to pay a sum of Rs.11,46,00/- towards the lease rent due from them. The 5[th] respondent thereupon filed W.P. (C).No.15473 of 2006 challenging Exts.P8 and P11 **WP(C).No. 21195 of 2013** 6 orders. Petitioner herein got impleaded in that writ petition producing Ext.P9 judgment in O.P.No.7222 of 1994. However, by Ext.P12 judgment dated 11.10.2012 W.P.(C).No.15473 of 2006 was disposed of, allowing the 5[th] respondent to pay the arrear amount in 6 equal monthly instalments with a direction that the 5[th] respondent shall be granted Pattayam on payment of that amount. Though the petitioner filed R.P.No.1064 of 2012, it was dismissed as per Ext.P13 order. Petitioner thereupon filed W.A.No.2097 of 2012 and it was disposed of as per Ext.P14 judgment dated 04.12.2012. The Division Bench found that neither the petitioner nor the 5[th] respondent were having any better claim over the property in question as the order passed in favour of the petitioner assigning 24 cents of land was cancelled and the kuthukapattam granted in favour of 5[th] respondent was also cancelled in 1994 and it was facing an order of eviction, for non payment of arrears of rent from 1973. The Division Bench found that the matter is liable to be considered **WP(C).No. 21195 of 2013** 7 by Government afresh taking into account the non payment of rental amount and the non payment of the amount by the assignee. The Revenue Department was directed to look into the matter after considering the entire facts from 1960 onwards, after hearing both the parties. Petitioner thereupon submitted Ext.P15 petition as permitted in Ext.P14 judgment. Pointing out the cancellation of assignment of 25 cents of land made in favour of the petitioner it requested to put it in possession of the Puramboke land after evicting the 5[th] respondent, pointing out their unauthorised occupation even after the Kuthakapattam granted to it, was cancelled on 19.02.1994 for non payment of rent from 01.06.1973 onwards. By Ext.P20 order, Government allowed the Society to make the payment of the arrears and allowed them to submit application for getting the land on further lease as per the extant statutory provisions, on condition that the entire defaulted lease rent arrears stood cleared. Rejecting the claim of the Panchayath for putting it in possession of the **WP(C).No. 21195 of 2013** 8 land, it was stated that Panchayath can get an area of land for developmental activities in another suitable area of land. 5. According to petitioner the 5[th] respondent Society was functioning only on a name sake basis and wants to make out profits at the cost of general public and Grama Panchayath; the Panchayath intends to put up a Nursery School, Kalyanamandapam, Community Hall, Vayanasala etc., for the benefit of the residents of the Panchayath; as the Land Assignment Act and Land Acquisition Act provides for assignment of public property, the land cannot be assigned to a private party like the 5[th] respondent; the Public Purambokes like Kulam Puramboke etc., cannot be permitted to be unauthorizedly occupied or encroached upon by unscrupulous persons; in the light of the judgment of the Apex Court in **Jagpal Singh and others v. State of Punjab and others** (AIR 2011 SC 1123) respondents 1 to 4 have to evict the Society; consequent to the enactment of Kerala Panchayath Raj, **WP(C).No. 21195 of 2013** 9 Act, 1994 all water courses got vested in the Grama Panchayath along with the adjacent land appertaining thereto by virtue of Section 218 of the Kerala Panchayath Raj Act, 1994 (for short 1994 Act), as per Section 80 of the Kerala Panchayath Raj Act, 1960 which corresponds to Section 218 of the 1994 Act, the Kulam Puramboke stood vested in the Grama Panchayath; the Revenue records in respect of the property maintained by the State of Travancore, the property included in Sy.No.122/12 of Vazhapally East village was classified as Kulam Puramboke, as per Annexure-D Settlement Register, the property was classified as Kulam Puramboke as per the Puramboke Register maintained by the Village Authorities as provided under Section 218 of the 1994 Act; therefore the entire 82 cents of land classified as Kulam Puramboke in old Sy.No.122/12 of Vazhapally East village, which was renumbered as Re-Sy.No.515/13 Block No.3 of Chethipuzha Village is vested in the Grama Panchayath and therefore it cannot be assigned or leased out or **WP(C).No. 21195 of 2013** 10 allotted to the 5[th] respondent Society. Petitioner asserts that the Society does not have any authority to continue in the land vested in the Panchayath; the Society which was initially set up for conducting Small Scale Industrial Unit for metal works changed hands and was leased out to outsiders, with the intention to make profits at the cost of the general public, Ext.P16 proceedings of the Deputy Collector (LR) issued on behalf of the District Collector, Kottayam, would show that the property in question which is Kulam Puramboke already vested in the Grama Panchayath under Section 218 of the 1994 Act; by Ext.P16 notice dated 28.10.2013 the 5[th] respondent was directed to vacate the property and to hand over possession to the Grama Panchayath within a period of year. Pointing out Ext.P17 series, petitioner alleged that number of employees working in the 5[th] respondent Society is only 15, who are employed in 4 units. It is stated that Society has leased out the property for lorry workshop, Carpentry units, Saw mill and Wielding **WP(C).No. 21195 of 2013** 11 units and there are only 15 persons employed in the above units and that the finding in Ext.P20 accepting the version of 5[th] respondent that 50 workers are engaged is incorrect. They also pointed out that the Society does not hold any annual general body meeting and does not pass any annual budget, it has no employees and no transaction is being carried out. Producing the Audit Certificate Ext.P18 for the year 2006-2007, it is stated that there are no paid employees in the Society. It is stated that the Society has become defunct. 6. Learned Senior Counsel appearing for the petitioner submits that Ext.P20 Government Order is illegal and it has not considered the contentions raised by the Panchayath properly that the property in question vested in the Panchayath. It also points out that Panchayath wants the property for public purposes whereas the Government is permitting a Society which is defunct to occupy the property. 7. The 5[th] respondent has also filed a counter **WP(C).No. 21195 of 2013** 12 affidavit producing Ext.R5(c) extract from the Basic Tax Register, according to which, 19 Ares of land in Sy.No.122/12 in Sub Division No.13 is Government Puramboke land. It is also pointed out that after resurvey, the tenure of the land in Re Sy.No.515/13 is shown as Kulam Puramboke. Therefore, the contention of the 5[th] respondent is that the property did not vest in Panchayat. What is vested in Panchayat is only a water course. 8. The question to be considered is whether the property which was described as Kulam Puramboke got vested in the Panchayath by virtue of Section 218 of 1994 Act. In Ext.P20 order, Government has considered 5 points namely - (a) Whether the designated land is a Kulam Puramboke; - (b) Whether the tenure of land is still retained; - (c) Whether from the total area of land, which was given to the society, whether the land was further demarcated and utilized for other **WP(C).No. 21195 of 2013** 13 ## Government activities - (d) Whether the designated land alone is available for the proposed activities of the Panchayath, in that area - (f) If the land is taken back to the Society, will it affect the livelihood of workers engaged under the Society. After calling for the report from the Tahsildar and District Collector and the Revenue Records Government found that a Re-Survey was conducted in the land and as per the entries in the BTR, the land in question is a Government Puramboke land. It is stated that though originally 82 cents of the land was known as 'old Kulam' subsequent changes occurred and it was subjected to allocation for various Government activities. It was found that as at present the extent of land with the society is only 24 cents along the side of Changanassery-Vazhoor road, which is having a market value of about Rs.10 Lakhs per cent. Government found that according to the Revenue Records the **WP(C).No. 21195 of 2013** 14 disputed land is under possession and ownership of Revenue Department and therefore, it can be leased out by Government. It was found that certain parcels of properties in the very same Sy. No. has been appropriated for Governmental activities. Government found that Panchayat can utilize certain other properties without affecting the livelihood of persons engaged by the Society and their survival. Observing that it would be sagacious to take back the land from the possession of the Society when it is one included in the Revenue Puramboke, Government ordered that in case the Society is desirous for pulling on with the current industry it has to comply with the formal statutory procedure for getting the land on lease, in accordance with the statutory procedure. Thereafter, it was ordered that the 5[th] respondent Society may submit application before the District Collector for getting the land on further lease as per the statutory provisions after payment of entire arrears. 9. From the pleading and contentions on either **WP(C).No. 21195 of 2013** 15 side, it is seen that entries in the BTR as evident from Exts.P1, P2 or P2(a) as well as Ext.R5(c) would indicate that the property in which the 5[th] respondent Society is functioning on the basis of a lease arrangement entered into in the year 1961 is a Kulam Puramboke. The property is not described as Kulam. Section 218 of the Panchayat Raj Act reads as follows: **“218. Vesting of water course, springs, reservoirs, etc.,** ## **in Village Panchayats.** (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force, all public water courses (other than rivers passing through more areas, than the Panchayat area which the Government may, by notification in the gazette, specify), the beds and banks of rivers, 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 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. Provided that nothing contained in this subsection shall apply to any work which is, or is connected with, a work or irrigation or to any adjacent land **WP(C).No. 21195 of 2013** 16 appertaining to any such work.” 10. Petitioner does not have a case that there is a water course in the property where the Society functions or even in the particular Sy/Resurvey.No. Assuming that there was a water course once upon a time, as long as the land is not described as any watercourse and the entries in the Revenue Records show that it is a Puramboke land or rather a Kulam Puramboke land, as evident from the documents produced by the petitioner as well as the 5[th] respondent, the contention of the petitioner is that it vested with the Panchayat is unsustainable. Even when the resurvey was conducted in the year 1973 the tenure of the land was entered as Kulam Puramboke only. In the absence of kulam, Puramboke or Kulam Puramboke alone will not vest in the Panchayat, under Section 218 of the Act. 11. The further claim of the Panchayat for assignment of land requires consideration only if Government takes a decision to assign the land. The **WP(C).No. 21195 of 2013** 17 Panchayat cannot insist the Government to assign a particular land to it just because once an order of assignment was issued in favour of the Panchayat, which got cancelled. It is only after referring to the entries in the Revenue records that Government have come to the conclusion that the tenure of property in question is that of Kulam Puramboke and it continues to vest in the Revenue Department. The judgment of the Supreme Court relied on by the learned Senior Counsel for the petitioner would not therefore apply in the factual circumstances of this case. 12. In that view of the matter, the order Ext.P20 permitting the 5[th] respondent to pay the arrears of rent and to submit a further application for lease of that land, cannot be said to be illegal. 13. Learned counsel for the 5[th] respondent pointed out that the Society was not able to remit the arrears because of the stay order passed in this writ petition. It is also their case that the Government has not taken a decision to assign the land in favour **WP(C).No. 21195 of 2013** 18 of the 5[th] respondent and the 5[th] respondent has not requested for such assignment. It is pointed out by the learned counsel for the 5[th] respondent that they are willing to make payment of the arrears in lump sum. In the above circumstances, I do not find any reason to interfere with Ext.P20 order. As it is pointed out that the 5[th] respondent could not act in tune with the direction in Ext.20 order and to remit the arrears of rent because of the interim order passed in this case, 5[th] respondent shall remit the arrears as on date of payment, within a period of 'one month' from the date of receipt of a copy of the judgment. In that event, Government will be free to consider the request of the 5[th] respondent for further lease as mentioned in Ext.P20 order. Accordingly the writ petition fails and is dismissed. Sd/- **P.V.ASHA, JUDGE.** AS **WP(C).No. 21195 of 2013** 19 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 COPY OF THE EXTRACT OF THE SETTLEMENT REGISTER OF THE TRAVANCORE STATE IN RESPECT OF THE VAZHAPPALLY EAST VILLAGE. EXHIBIT P2 COPY OF THE CERTIFICATE ISSUED BY THE 4TH RESPONDENT.** **EXHIBIT P2A COPY OF THE RELEVANT EXTRACT OF THE PURAMBOKE REGISTER.** |**EXHIBIT P2A**|**COPY OF THE RELEVANT EXTRACT OF THE**<br>**PURAMBOKE REGISTER.**| |---|---| |**EXHIBIT P3**|**COPY OF THE EXTRACT OF THE RE-SURVEY SKETCH.**| |**EXHIBIT P4**|**COPY OF THE ORDER G.O(MS)542/REV.DATED**| ||**1.6.1961 ISSUED BY THE IST RESPONDENT.**| |**EXHIBIT P5**|**COPY OF THE NOTICE NO.B.1429/61 ISSUED BY**| ||**THE 4TH RESPONDENT.**| |**EXHIBIT P6**|**COPY OF THE ORDER DATED 7.8.1962.**| |**EXHIBIT P7**|**COPY OF THE ORDER G.O(MS)NO.892/RD, DATED**| ||**14.9.1983.**| |**EXHIBIT P8**|**COPY OF THE ORDER G.O(MS) 56/94/REVENUE**| ||**DATED 19.2.1994.**| |**EXHIBIT P9**|**COPY OF THE JUDGMENT DATED 15.2.2005 IN OP**| ||**7222/94.**| |**EXHIBIT P10**|**COPY OF THE NOTICE NO.G3.6311/92, DATED**| ||**24.5.1994 ISSUED BY THE 3RD RESPONDENT.**| |**EXHIBIT P11**|**COPY OF THE NOTICE DATED 8.5.2006 ISSUED BY**| ||**THE 3RD RESPONDENT.**| |**EXHIBIT P12**|**COPY OF THE JUDGMENT DATED 11.10.2012 IN WPC**| ||**NO.15473/2006.**| |**EXHIBIT P13**|**EXHIBIT P13.COPY OF THE ORDER DATED**| ||**16.11.2012 IN RP 1064/2012 IN WPC**| ||**15473/2006.**| |**EXHIBIT P14**|**COPY OF THE JUDGMENT DATED 4.12.12 IN WA**| ||**NO.2097/12.**| **WP(C).No. 21195 of 2013** 20 |**EXHIBIT P15**|**COPY OF THE PETITION DATED 3.1.2013**| |---|---| ||**SUBMITTED BY THE PETITIONER BEFORE THE IST**| ||**RESPONDENT WITHOUT THE ANNEXURES THEREIN.**| |**EXHIBIT P16**|**COPY OF THE COMMUNICATION DATED 28.10.2012**| ||**ISSUED FORM COLLECTORATE KOTTAYAM.**| |**EXHIBIT P17**|**COPY OF THE APPLICATIONS FOR ISSUANCE OF D&O**| ||**LICENSES BY THE PETITIONER GRAMA PANCHAYAT.**| |**EXHIBIT P18**|**COPY OF THE RELEVANT EXTRACT OF THE AUDIT**| ||**REPORT FOR THE YEAR 2006-07.**| |**EXHIBIT P19**|**COPY OF THE ARGUMENT NOTES SUBMITTED BY THE**| ||**PETITIONER BEFORE THE IST RESPONDENT.**| |**EXHIBIT P20**|**COPY OF THE ORDER GO(RT) NO.3831/13/RD DATED**| ||**9.7.2013.**| |**RESPONDENT'S/S**|**EXHIBITS:**| |**EXHIBIT R5(A)**|TRUE COPY OF THE ORDER DATED 20/08/2013 ISSUED BY THE| ||1ST RESPONDENT.| |**EXHIBIT R5(B)**|TRUE COPY OF THE REQUEST MADE BY THE 5TH RESPONDENT| ||BEFORE THE 2ND RESPONDENT DATED 24/08/2013.| |**EXHIBIT R5(C)**|TRUE COPY OF THE BASIC TAX REGISTER ISSUED BY THE 4TH| ||RESPONDENT DATED 16/02/2013.|