W.A. Nos. 1543 & 1548 of 2022, Kerala High Court

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** ## **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** ## **WA NO. 1543 OF 2022** **AGAINST THE JUDGMENT IN WP(C) 14429/2022 OF HIGH COURT OF KERALA DTD.24.5.2022** ## **APPELLANT/PETITIONER:** V.E. ALEX AGED 62 YEARS S/O ENAS VADALAVILAYIL HOUSE, KATTAPANA P.O, IDUKKI DISTRICT, PIN - 685508 BY ADVS.SHAJI THOMAS BINU PAUL JEN JAISON ## **RESPONDENTS/RESPONDENTS:** 1 KATTAPPANA MUNICIPALITY KATTAPPANA P.O IDUKKI DISTRICT - 685 508, REPRESENTED BY ITS SECRETARY. 2 THE SECRETARY KATTAPPANA MUNICIPALITY KATTAPPANA P.O IDUKKI DISTRICT, PIN – 685508. 3 REGIONAL TRANSPORT OFFICER CIVIL STATION, KUYILIMALA PAINAV, IDUKKI, PIN – 685 603. BY ADV UNNIKRISHNAN.V.ALAPATT GOVT.PLEADER SRI.SREEJITH.V.S. **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH W.A.No.1548/2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.1543 & 1548 of 2022 ..2.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **WA NO. 1548 OF 2022** **RP 495/2022 IN W.P.(C)14586/2022 OF HIGH COURT OF KERALA DTD.29.8.2022** ## **APPELLANTS/REVIEW PETITIONERS/RESPONDENTS 4 & 6:** 1 TOMY GEORGE AGED 54 YEARS PUTHENKALAYIL HOUSE VELLAYAMKUDY P.O, KANAKALIPADY, IDUKKI DISTRICT, PIN – 685515. 2 V.E.ALEX AGED 62 YEARS, VADALAVILAYIL HOUSE, KATTAPPANA.P.O., IDUKKI DISTRICT, PIN – 685508. BY ADVS. SHAJI THOMAS BINU PAUL JEN JAISON ## **RESPONDENTS/PETITIONERS & RESPONDENTS 1 TO 3 & 5:** 1 KATTAPPANA MUNICIPALITY, REPRESENTED BY ITS SECRETARY, MUNICIPAL OFFICE,KATTAPPANA, IDUKKI DISTRICT, PIN – 685508. 2 SUPERINTENDENT OF POLICE, IDUKKI CIVIL STATION, KUYILIMALA,PAINAVU P.O,IDUKKI DISTRICT, PIN – 685603. 3 DEPUTY SUPERINTENDENT OF POLICE KATTAPPANA KATTAPPANA P.O,IDUKKI DISTRICT, PIN - 685508 4 STATION HOUSE OFFICER KATTAPPANA POLICE STATION KATTAPPANA P.O,IDUKKI DISTRICT, PIN - 685508 5 JIBIN MATHEW KARIKUNNEL HOUSE KATTAPPANA P.O IDUKKI DISTRICT, PIN – 685508 BY ADV SRI.UNNIKRISHNAN V.ALAPPAT, STANDING COUNSEL **OTHER PRESENT:** GP SRI.SREEJITH V S **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, ALONG WITH WA.1543/2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.A.Nos.1543 & 1548 of 2022 ..3.. ## **K.VINOD CHANDRAN & C.JAYACHANDRAN, JJ.** ----------------------------------------------------------W.A.Nos.1543 & 1548 of 2022 ------------------------------------------------------------Dated this the 23[rd] day of November, 2022 ## **JUDGMENT** ## C.Jayachandran, J. 1. Two writ petitions, one against, and the other by, the Kattappana Municipality were disposed of by a common judgment dated 24.5.2022, dismissing the former and allowing the latter. Respondents 5 and 6 in the writ petition preferred by the Municipality [W.P.(C)No.14586/2022], - of whom, the 6[th] respondent is the petitioner in writ petition filed against the Municipality [W.P.(C)No.14429/2022] - preferred a review of the common judgment vide R.P. No.495/2022, which was allowed in part as per order dated 29.8.2022, leaving open the question regarding the ownership of the property involved in the writ petitions. W.A. No. 1543/2022 is directed against the judgment dismissing the W.P.(C)No.14429/2022, whereas W.A. No. 1548/2022 is against the judgment allowing W.P.(C) No.14586/2022, as also, the order in R.P. No. 495/2022. W.A.Nos.1543 & 1548 of 2022 ..4.. ## 2. The brief facts: The parties are referred to from their status as shown in W.P. (C).No.14429/2022, the writ petition preferred against the Municipality. One Mattappally Chandy surrendered 50 cents of land to the Kattappana Panchayat in the year 1968 for constructing a bus stand, allegedly on condition that the northern, southern and western portion of the land should be left open to enable construction of buildings for conducting business. Petitioner is the owner of one such building constructed, where various persons are conducting business in the shop rooms to eke a livelihood. As per Ext.P1 resolution dated 29.10.1968, the Kattappana Panchayat decided to construct a bus stand in the said 50 cents of land, fully adhering to the condition that the above referred three sides of the plot will be left open for constructing buildings. On 1.11.2015, the Kattappana Panchayat was declared a Municipality. Until the flood which occurred in the year 2018, the bus stand was so functioning. Thereafter, it was re-located to a place 500 meters away from the old bus stand. W.A.Nos.1543 & 1548 of 2022 ..5.. Nevertheless, the buses will have to pass through the old stand to reach the new stand. The 1[st] respondent Municipality is taking steps to enclose the said 50 cents of land and to convert it into a pay and park area, which is against the specific condition set out in the deed of surrender, recognized in Ext.P1 resolution. Enclosing the disputed 50 cents of land would deprive access to the shop rooms of the building of the petitioner, as also, similarly placed persons. The decision of the Municipal Authority is contrary to Rule 344 of the Kerala Motor Vehicles Rules,1989. On such premise, the petitioner sought for a writ of mandamus commanding the respondent Municipality not to enclose the bus stand situated in the 50 cents, as also, from closing down the old bus stand which functioned in the said extent of land; primarily on the ground that it violates the condition of surrender. It is important to note that the question of title over the disputed 50 cents was not raised in W.P.(C).No.14429/2022 and the petitioner does not claim such title. Admittedly there was a surrender made by the original title holder; who or his legal heirs have not been impleaded in the writ petition. W.A.Nos.1543 & 1548 of 2022 ..6.. 3. The case espoused by the Municipality in W.P. (C).No.14586/2022 (which is also the counter to W.P. (C).No.14429/2022) is as follows: The old bus stand functioned in the disputed 50 cents of land for about five decades and a new bus stand was constructed in the year 2010, whereafter, the buses shifted their operation to the new bus stand. Pursuant to audit objection that no income is being generated from the disputed 50 cents of land, the Municipality decided, in its meeting held on 13.1.2022, to conduct a pay and park ground in the disputed 50 cents. Accordingly, the same was auctioned and given to one Prasad Narayanan, being the highest bidder. The Municipality has to mark the areas of parking, which was objected to by some merchants with political support, including respondents 4 to 6. Although police assistance was sought for, vide Ext.P2, the police could not act due to political intervention. Respondents 4 to 6 (the 6[th] respondent being the petitioner in W.P. (C).No.14429/2022) trespassed upon the property and destroyed the metal poles erected by the Municipality. Again, W.A.Nos.1543 & 1548 of 2022 ..7.. Ext.P3 complaint was preferred before the police, but of no avail. Ext.P4 application was preferred before the 2[nd] respondent Dy.S.P. and Ext.P7, before the 1[st] respondent Superintendent of Police. However, no action ensued. On such premise, the Municipality sought for a direction for police protection, to identify, mark and install poles in the disputed 50 cents of land. Sufficient and adequate police protection to the life of the officials were also sought for. 4. By the impugned common judgment, the learned Single Judge dismissed W.P.(C).No.14429/2022 and allowed W.P. (C).No.14586/2022, finding that Rule 344 of the Motor Vehicles Rules has no application to the present fact situation, that the petitioner in W.P.(C).No.14429/2022 has not surrendered any property to the Municipality, wherefore, he has no right to object the use of the property by the Municipality and that the property in question admittedly belongs to the Municipality. Police protection sought for was granted to the officials of the Municipality. W.A.Nos.1543 & 1548 of 2022 ..8.. 5. R.P.No.495/2022 was preferred by respondents 4 and 6 in W.P.(C).No.14586/2022 seeking review of the common judgment, challenging the finding that the Municipality is the owner of the disputed property. Allowing the review, the learned Single Judge left open the question of ownership of the property to be decided in appropriate proceedings. 6. Heard Sri.Shaji Thomas, learned counsel for the appellants, Sri.Unnikrishnan V.Alappat, learned counsel for the Municipality and Sri.Sreejith.V.S., learned Government Pleader. 7. Having heard the learned counsel appearing for the respective parties and perused the records, we find no merit in the instant appeals. The decision of the Municipality to provide a pay and park facility in the disputed property is essentially challenged on three grounds. The first is that Mattappally Chandy surrendered 50 cents of land for the specific purpose of construction of a bus stand and not for providing a parking lot. The second one is that, as per the deed of surrender, there W.A.Nos.1543 & 1548 of 2022 ..9.. is a stipulation to keep the northern, southern and western portion of the land open, so as to enable construction of buildings for the purpose of business, which condition of surrender is violated by the present decision to enclose the said boundaries and to provide the property a pay and park facility. 8. We are unable to appreciate the said two contentions for the reason that the petitioner in W.P.(C)No.14429/2022 has absolutely no locus to challenge the alleged violation of the conditions in the deed of surrender. The petitioner neither had nor has any title or possession over the disputed 50 cents of land. Surrender of the property by Mattappally Chandy in favour of Kattappana Panchayat in the year 1968 is admitted. Once the dedication of a property for a public purpose is admitted/established, whether such dedication can be saddled with restrictive covenants/conditions is a larger question, which we are not called upon to answer in the instant appeals, for, the petitioner is not competent to challenge the same. W.A.Nos.1543 & 1548 of 2022 ..10.. 9. The third ground is that the alleged violation of Rule 344 of the Motor Vehicles Rules, 1989. We fully concur with the finding of the learned Single Judge in this regard that Rule 344 has no application, whatsoever, in the instant facts. Rule 344 stipulates that the Regional Transport Authority shall, in consultation with the authorities of the Municipality, the Executive Engineer and the Superintendent of Police, determine the location of bus stands and parking places. The obvious purpose of the above stipulation is to ensure that an ideal place, which suits the purpose, is identified by the R.T.O. In consultation with other stakeholders above referred. We are of the opinion that the above Rule would not apply in the case, where a pay and park facility is established in a property, which belongs to the Municipality essentially. Rather, it applies _stricto sensu_ to public parking places. To construe that the Municipality cannot establish a pay and park facility, a purely commercial venture to augment the funds of the local body by utilizing vacant lands in its possession and that it is the R.T.O alone who is competent to do that - of course in consultation W.A.Nos.1543 & 1548 of 2022 ..11.. _interalia_ with the Municipality - may amount to misreading and misinterpreting the rule. 10. In this context, we may also deal with a contention raised in W.A.No.1548/2022 (arising from W.P.(C)No.14586/2022) to the effect that the petitioner/Municipality suppressed the fact that the disputed property belongs to the Government, except in respect of 3 cents. Such contention is seen raised on the strength of Ext.A1 communication issued by the Secretary of the Municipality informing the police that the remaining 40 cents (disputed property) is puramboke land. Although it is seen averred about Annexure-A1 letter in the appeal memorandum, the same is not seen produced. Nor is Annexure-A1 seen referred to in the index to the writ appeal. However, we find that entry in the Village records as puramboke land would not denude the title holder of the title claimed on the basis of valid document or settled possession. We notice that the present contention of the appellants in the writ appeal is contradictory to their own showing in the writ W.A.Nos.1543 & 1548 of 2022 ..12.. petition that Mattappally Chandy surrendered the disputed property to the Kattappana Panchayat. That apart, in the appeal, we called for a report from the Village Officer, Kattappana in respect of the disputed property, which report is produced before us, along with a memo filed by the Government Pleader. In the said report, it is categorically stated that the disputed property has been in the possession of the Kattappana Municipality for the past more than 50 years, however, without any land tax account or 'thandaper' in the name of the Municipality. Thus, on the one hand, there is title in the form of surrender of property made by Mattappally Chandy, as admitted in the Writ Petition, though no record evidencing such surrender is available in the Village Office, as per the report which we called for ; on the other hand, the Municipality is _prima facie_ in settled possession of the disputed property, as per the report of the Village Officer. The law is well settled that a person in possession of a land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against W.A.Nos.1543 & 1548 of 2022 ..13.. all the world, but the rightful owner (see **Nair Service Society Ltd. v. Rev.Fr. K.C.Alexander** [1968 KLT 182 (SC)]. 11. We, therefore, repel the contentions raised in the writ appeals about the alleged suppression of fact, simultaneous with holding that Rule 344 of the Motor Vehicles Rules, 1989 has no application in the given facts. 12. As regards the review, all what is required to be noticed is that the question of title was not an issue before the learned Single Judge, which was rightly found so in the order dated 29.8.2022. The question of title, as entwined with the suppression of a relevant fact, is seen raised in W.A.No.1548/2022. Suffice to observe that the question of title can be left open to be gone into by a court having jurisdiction in an appropriately constituted proceeding by a competent person, untrammeled by the observations we have made regarding title in this judgment. W.A.Nos.1543 & 1548 of 2022 ..14.. 13. Having gone through the records, the only recognizable grievance which is seen espoused by the petitioner in W.P. (C)No.14429/2022 is regarding the alleged obstruction in accessing his building and shop rooms for reason of the pay and park facility being established in the disputed property, which grievance has to be raised before the appropriate authority; not before the High Court in a writ petition filed under Article 226 of the Constitution. The said remedy of the petitioner in W.P.(C)No.14429/2022 is left open. The writ appeals are dismissed, subject to the observations we made herein above. Sd/- ## **K.VINOD CHANDRAN, JUDGE** Sd/- ## **C.JAYACHANDRAN, JUDGE** skj