Roy Abraham vs State Of Kerala
2021 Latest Caselaw 13347 Ker

W.P.(C) No. 12008/2021                : 1:



                  IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                    PRESENT

              THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR

                                       &

                  THE HONOURABLE MR. JUSTICE SHAJI P.CHALY

         MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943

                             WP(C) NO. 12008 OF 2021

PETITIONER:

              ROY ABRAHAM
              AGED 56 YEARS
              S/O. N.I.ABRAHAM, CHATHAM THADATHIL HOUSE, EDAYAR P.O.,
              KOOTHATTUKULAM, ERNAKULAM DISTRICT, PIN-686 662.

              BY ADVS.
              P.M.JOSHI
              SIJI K.PAUL



RESPONDENT/S:

     1        STATE OF KERALA
              REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT,
              THIRUVANANTHAPURAM-695 001.

     2        THE PRINCIPAL SECRETARY TO GOVERNMENT,
              LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT,
              THIRUVANANTHAPURAM-695 001.

     3        THE DIRECTOR OF URBAN AFFAIRS,
              SWARAJ BHAVAN, NANTHANCODE, KOWDIAR P.O.,
              THIRUVANANTHAPURAM, PIN-695 003.

     4        THE DISTRICT COLLECTOR,
              ERNAKULAM DISTRICT, COLLECTORATE OFFICE, KAKKANAD,

              PIN-682 021.

     5        THE KOOTHATTUKULAM MUNICIPALITY
              KOOTHATTUKULAM P.O., PIN-686 662, REPRESENTED BY ITS
              SECRETARY.

     6        THE SECRETARY
              KOOTHATTUKULAM MUNICIPALITY, KOOTHATTUKULAM P.O.,
 W.P.(C) No. 12008/2021            : 2:


           PIN-686 662.

     7     THE ASSISTANT ENGINEER,
           KOOTHATTUKULAM MUNICIPALITY, KOOTHATTUKULAM P.O., PIN-686
           662.

     8     THE CHAIRMAN,
           KOOTHATTUKULAM MUNICIPAL COUNCIL, KOOTHATTUKULAM
           MUNICIPALITY, KOOTHATTUKULAM, PIN-686 662.

           BY ADV SHRI.K.S.ARUN KUMAR, SC, KOOTHATTUKULAM
           MUNICIPALITY




           R1 & R2 BY SRI. SURIN GEORGE IPE SR. GOVERNMENT PLEADER

           R5-R8 BY SRI. K.S. ARUNKUMAR, SC



THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.06.2021,

THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No. 12008/2021             : 3:


                                                          'CR'

                Dated this the 28th day of June, 2021.

                            JUDGMENT

SHAJI P. CHALY, J.

This is a Public Interest Litigation filed by the former Chairman of

the Koothattukulam Municipality, Ernakulam District --5th respondent.

According to him, he is a social worker and a public spirited person.

2. The grievance highlighted by the petitioner is that a number

of mud roads open on both sides used by the general public are not

maintained due to the paucity of funds, by the Municipality. Further

case of the petitioner is that the funds were misused for concreting

and maintenance of the private roads being influenced by interested

persons and that certain private owners, who wanted to get their

private roads either tarred or concreted, influenced the Councilors and

on understanding got requests from the owners and on the basis of

the same, the road will be included in the asset register of the

Municipality illegally and after that tarring or concreting is being done.

3. Further, it is contended that the private owners are paying

land tax on the property and they will not allow others to draw electric

lines and pipelines through that road and even not allow others to use

that road. The sum and substance of the contention advanced is that

since it is an oral surrender by the owner, the Municipality is not

getting ownership right over those properties and the respective

owners will retain the properties in their ownership. One instance is

also pointed out by the petitioner in regard to suits filed by the owners

of the properties against the Municipality contending that there was no

valid surrender of ownership and therefore, they were entitled to

recover the property from the Municipality. It was also submitted that

similar suits filed were considered by the Munsiff's Court,

Muvattupuzha together and has rendered Ext. P4 common judgment in

O.S. Nos. 390/2009, 160/2011 and 429 of 2015.

4. It is also submitted that on the basis of the application

submitted before the Revenue Divisional Officer, Muvattupuzha, reply

is given to the effect that since the Kerala Panchayat Raj Act does not

contain a provision to acquire properties through the proceedings

under the provisions of the Kerala Land Relinquishment Act, 1958 and

the Rules thereto, acquiring properties by relinquishment is not

possible. Therefore, according to the petitioner, the only alternative for

the Municipality is to get conveyance by executing Sale deeds.

5. Learned counsel has also submitted that the issue was

considered by a learned single Judge of this Court and has rendered

Ext. P12 judgment in W.P.(C) No. 13047 of 2020 dated 25.09.2020 in

the same subject within the limits of the Thekkumkara Grama

Panchayat, Thrissur District. Therefore, according to the learned

counsel for the petitioner, a free surrender would not confer ownership

of the road properties on the Municipality and mere inclusion of the

said properties in the asset register/road register of the Municipality

will not confer title to the Municipality to carry out tarring or concreting

or the maintenance work of the said roads.

6. It is also pointed out that the State Government has issued

G.O.(P) No. 09/2020/TD dated 30.01.2020 exempting Local Self

Government Institutions from paying the stamp duty and the

registration fees for the registration of land and therefore, the

Municipality is duty bound to secure sale deeds in respect of the

properties surrendered from its owners. In the above factual

backdrop, the following reliefs are sought for:

1. Issue a writ of mandamus or any other appropriate writ, order or declaration or direction, calling for the records leading to Ext.P11 and quash the same.

2. Issue a writ of mandamus or any other appropriate writ or direction directing respondents 5 to 8 not to use the public funds or the own funds of the Municipality for improving, concreting, tiling and maintenance of private roads, and pathways not opened on both sides to any public road or to a colony, unless that portion of land is assigned to the Municipality by a registered document.

3. Necessary and effective directions to respondents 5 to 8 to prepare and maintain the asset register in accordance with Section 214 of the Kerala Municipality Act, 1994 on complying all the formalities and shall take effective steps to get the title documents by registered deeds in respect of the properties already included in the asset register.

4. Necessary and effective directions may be given to the

respondents 1 to 3 to issue necessary direction or order to all Panchayats, Municipalities and Corporations in the State of Kerala to prepare and maintain the asset register in accordance with law after complying all the formalities and shall take effective steps to get the title documents by registered deeds in respect of the properties already included in the asset register.

7. With the above stated facts, the petitioner seeks to quash

Ext. P11 minutes of the meeting of the Municipal Council bearing No.5

dated 21.01.2021, whereby the Municipal Council has decided to carry

out construction work of all roads included in the Asset Register

irrespective of the difference whether the roads are link roads or

connecting on either side or otherwise, considering the density of

population.

8. After hearing the learned counsel for the petitioner, we are of

the considered opinion that the writ petition need not be admitted to

the files of this Court, since the reliefs sought for by the petitioner

cannot be granted.

9. We have heard, Sri. P.M. Joshi appeared for the petitioner,

Sri. Surin George Ipe, learned Senior Government Pleader and Sri.

K.S. Arun Kumar, learned Standing Counsel for the Municipality and its

officials namely respondents 5 to 8, and perused the pleadings and

materials on record.

10. The paramount contention advanced by the learned counsel

for the petitioner is relying upon Rule 214 of the Kerala Municipality

Act, 1994 (hereinafter called 'the Act, 1994') dealing with the

procedure for acquisition of immovable property under the Land

Acquisition Act, and it reads thus:

"214. Procedure for acquisition of immovable property under the Land Acquisition Act.-- [(1)] Any immovable property which a Municipality is authorised by this Act to acquire may be acquired in accordance with the provisions of the Land Acquisition Act for the time being in force, and on payment of the compensation awarded under this said Act in respect of such property and of any other changes incurred in acquiring it, the said property shall vest in the Municipality:

Provided that nothing contained in this section shall be deemed to prevent any Municipality from acquiring immovable property either through private purchase or any free surrender.

[(2) The Municipality shall implead in all Court proceedings relating to the acquisition of land for the Municipality.]"

11. On an analysis of the provision, it is clear that if and when

the Municipality proposes to acquire any immovable property, it has to

be carried out invoking the provisions of the Land Acquisition Act for

the time being in force and on payment of compensation awarded

under the said Act. However, proviso thereto makes it clear that

nothing contained in Section 214(1) precludes the Municipality from

acquiring immovable property either through private purchase or any

free surrender made by any owners.

12. Learned counsel for the petitioner submitted that even if a

free surrender is granted by an owner of the property, it amounts to a

gift given by the owner to the Panchayat and therefore, by virtue of

the provisions of the Indian Registration Act, 1908, if the value of the

property is exceeding Rs.100, it required compulsory registration. It is

also pointed out that there is no manner of complex situation in

getting the sale deed executed, since as per the provisions of the

Stamp Act, in the case of properties secured in favour of the

Municipality, no stamp duty or registration fee need be paid as it is

exempted by the Government through appropriate notification. That

apart, it was contended that mere inclusion of the property in the

asset register/road register of the Municipality will not confer title.

13. The learned Standing Counsel as well as the learned Senior

Government Pleader pointed out that none of the persons, who have

surrendered the road properties free of cost to the Municipality, have

raised any issue and have come forward stating that they have not

surrendered road properties to the Municipality. It was also pointed

out that Ext. P4 common judgment of the Munsiff's Court,

Muvattupuzha is basically relating to the disputes raised by the

owners of the property and therefore, the petitioner, who is a public

interest litigant and a former Chairman of the Municipality, is not

authorized to take up the case of the land owners or the Municipality

and contend that the free surrender made by the owners of the

property for maintenance of the roads are bad or illegal.

14. We have considered the rival submissions made across the

Bar. As is pointed out by the learned counsel for the petitioner, the

provision guiding the issue is Section 214 of the Act, 1994. A Rule is

constituted namely the Kerala Municipality (Acquisition and Disposal of

property) Rules, 2000 ('Rules, 2000' for short) in accordance with the

powers conferred under Sections 215, 368 and 565 of the Act, 1994.

15. Rule 3 of Chapter I of Rules, 2000 deals with the power to

acquire property and sub-Rule (1) thereto clearly specifies that a

Municipality may acquire any land or building within or outside its

Municipal area either by purchase or otherwise in order to introduce

any public facility or for providing any service and may with the prior

approval of the Government dispose of any of its property either by

sale or otherwise.

16. Therefore, on a reading of Section 214 of Act, 1994 and

Rule 3 of the Rules, 2000, it is clear that once a property is

surrendered free of cost to the Municipality, the Municipality will

become the owner of the property by virtue of the fiction created

under the aforesaid provisions. The instant case is built up by the

petitioner on the basic contention that various property owners have

surrendered their private roads to the Municipality by giving

possession and mere inclusion of the said roads in the asset register

of the Municipality, would not confer ownership on the Municipality.

The issue is no more res integra, since it was considered by a learned

single Judge of this Court in Natarajan R. v. Village Officer,

Kanayannur Taluk & others [2012 (3) KHC 571] in the realm of the

Land Relinquishment Act and the Rules thereto and the Kerala

Municipality Building Rules, 1999. There the question arose was, once

the land has been surrendered for widening of road, can that land be

taken back for the reason that the authorities failed to pass an order

either accepting or rejecting the surrender.

17. After considering the facts, circumstances and the issues

involved, this Court in Natarajan R, (supra) has held as follows at

paragraph 7:

"7. It is evident from the materials that a building permit was issued to the petitioner's father to construct a six storied building in relaxation of the rules only because of the surrender of 2. 28 acres of land in Sy. No. 478/1, in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999, which deals with grant of building permits for construction in plots, parts of which have been surrendered free of cost for road development. The petitioner does not dispute the fact that his father had obtained a building permit in accordance with the provisions contained in Chapter XI of the Kerala Municipality Building Rules, 1999. In any case, as the petitioner's father had surrendered a portion of the land on the eastern side of the holding which abuts the Thammanam - Pulleppady road for

the purpose of obtaining a building permit, it must be deemed that he had dedicated the land for user as a public way. Though the dedication by itself would not altogether deprive him of his rights in the soil, his enjoyment of the land cannot be inconsistent with the public right of passage over it. As the petitioner's father had not placed any restrictions as to the time or mode of user of the land surrendered by him and the surrender was unconditional though it was not formally accepted, I am of the opinion that he could not have done anything inconsistent with the public right of passage over the land in respect of which Ext. P1 application was submitted under the Kerala Land Relinquishment Act, 1958. Such being the situation, the mere fact that a formal order accepting the unconditional surrender of land had not been passed by the Revenue Divisional Officer, Fort Kochi is not a reason to hold that dedication of the land for user as a public way did not take place. In such circumstances, having regard to the conduct of the petitioner and his father, I am of the opinion that no relief can be granted to the petitioner in exercise of the discretionary jurisdiction of this Court under Article 226 of the Constitution of India.

I accordingly hold that no grounds have been made out warranting grant of the reliefs prayed for. The writ petition fails and is accordingly dismissed. No costs. "

18. The said judgment was affirmed by a learned Division Bench

of this Court in Natarajan R. v. Village Officer, Kanayannur Taluk

and others [2013 (2) KHC 26]. Paragraphs 8 and 13 of the said

judgment reads thus:

8. On submission of an application, the registered holder expresses his intention to unconditionally surrender the land to the Government. What is contemplated in sub-section (2) is the requirement of notice to any other person who is interested in the land, indicating a tenant or any person in possession of such land or disclosed from the revenue records to have a right over such land. Sub-section (3) again provides for the affixture of the notice in the notice board of the office of the R.D.O. and sub-section (4) permits any person interested in the land to file an objection before the R.D.O. Sub-section (5) contemplates an order, either accepting or rejecting the relinquishment. Section 4C speaks of vesting of relinquished lands in Government on acceptance in consequence of an order by the R.D.O., or in appeal or revision. On a reading of the above Sections, we are of the view that the relinquishment by a registered holder as against him, operates unconditionally, on an application being made under the Act. The act of relinquishment is a voluntary act of the registered holder which is unilateral and takes effect from the date of the application. This is, for reason of the application being an expression of the intention to unconditionally surrender the possession and rights over the land to the Government. The procedure contemplated is to ensure that no further claims are raised on the land by a third party on one count or another. It cannot be gainsaid that if no order is passed, the land reverts back to the registered holder who had relinquished his rights. If no order is passed, definitely by the relinquishment there is no vesting and cannot be final as against any third-party claiming

title, possession or any other right over such land. In the instant case, the appellant does not claim any such right over the land in addition to the right of his father. The appellant's claim is as an assignee of his father and what the father, the original registered holder, could not have claimed, definitely the assignee cannot claim.

13. There is an attempt on the part of the appellant to say that the surrender was only on the expectation that there would be immediately laid, a road; having access to the balance properties remaining with the father. We notice that the said contention is destructive of the earlier contention. The appellant had always contended that the surrender had been made under the Relinquishment Act and has not been accepted by the authority and that the absence of an order passed under Section 4 would result in the property reverting back to the owner. We have noticed earlier that the relinquishment contemplated under the Act is unconditional and the appellant cannot now have a claim that the surrender was with a rider that the road would be laid immediately. We also notice that Exhibit P1 surrender made by the appellant's father was within the knowledge of the appellant also, since he was also one of the witnesses who signed the surrender. The appellant, being an assignee of the registered holder who had surrendered the property, cannot now turn around and claim that the condition of surrender was not satisfied. This answers the contention raised by the appellant in the writ petition as well as the review that the relinquishment has not been accepted and there

was no unconditional surrender of land. We uphold the findings of the learned Single Judge on both these aspects dealt with in the writ petition as also the review petition. "

It is interesting to note that the issue was more elaborately considered

by the Division Bench, taking into account the importance of the issue

and has held that on submission of an application to surrender, the

registered holder expresses his intention to unconditionally surrender

the land to the Government and merely because no orders are passed

by the statutory authority under the Kerala Land Relinquishment Act

and the Rules, that will not confer any right to the owner of the

property to occupy the property dedicated.

19. The judgments rendered in Natarajan by the learned single

Judge as well as the Division Bench have clear and apt relevance to

the issue at hand, since the case projected by the petitioner itself is

that the properties were surrendered by several owners to the

Municipality for tarring or concreting and maintenance of the roads

using municipal funds.

20. In our considered view, when the road is surrendered

unconditionally by the owner of the property, he is not entitled, as of

right, to claim back the property on the ground that no valid

documents are executed. The Act, 1994 and the Rules thereto makes

it clear that Municipality is entitled to acquire the property on the basis

of a free surrender and once municipal funds are used for maintenance

of the roads and the roads are put to public use, no manner of claim

can be made by the owners who have dedicated the properties .

21. In our view, whenever a property is surrendered by its

owner and the Municipality has taken possession of the property, the

Municipality becomes the owner in possession of the property and by

virtue of the entries made in the Asset register/road register, it is a

clear conferment of the rights over the property in favour of the

Municipality. It is also significant to note that even according to the

petitioner, properties were surrendered and taken possession by the

Municipality and has acted upon on the basis of dedication and

surrender by tarring /concreting and doing maintenance of the roads.

22. It is also interesting in this context to note that a person

namely Goerge C.P. has filed W.P.(C) No. 14104 of 2020 and secured

Ext. P8 judgment dated 29.07.2020, wherein a typical contention as

that of this writ petition was taken and sought a direction to the

Municipality not to spend public funds for the improvements of private

roads and pathways, unless both sides of the road are opened to any

public roads or not assigned to the Municipality by a registered deed.

The said writ petition was disposed of basically directing the Municipal

Council to take a decision on the basis of the report of the Assistant

Engineer of the Municipality and the Municipal Secretary and taking

into account the real Public Interest Litigation involved and giving

priority for undertaking tarring and maintenance work of the Municipal

roads.

23. Taking into account the above said aspects and the clear

legal position on the basis of the provisions of the statutes and the

judgment rendered by the Division Bench of this Court specified above,

we have no hesitation to hold that whenever a free surrender is made

by the owners of the property, it is a clear dedication of the

immovable property in favour of the Municipality and on the

Municipality entering the properties in the asset register/road register,

it converts itself as a property in possession of the Municipality which

is not liable to be restored to the owner under any circumstances.

Moreover, as we have pointed out above, none of the owners of the

property have come before this Court making any such claims.

24. The apprehension voiced by the petitioner is that such owners of

the properties are not permitting others to draw electric lines and

other pipelines through the property which is a matter to be looked

into by the Municipality when any such complaints are received by the

Municipality. We also make it clear that it is open to the Municipality to

take into account the said aspects. In the circumstances, we do not

think that the petitioner has made out any case to interfere with Ext.

P11 decision of the Municipal Council dated 21.01.2021 bearing No. 5

and is also not entitled to get any other reliefs sought for in the writ

petition.

Accordingly, this writ petition is dismissed.

sd/-

S. MANIKUMAR, CHIEF JUSTICE.

sd/-

SHAJI P. CHALY, JUDGE.

Rv

APPENDIX OF WP(C) 12008/2021

PETITIONER's EXHIBITS:

Exhibit P1               THE TRUE COPY OF THE LETTER TO THE 4TH
                         RESPONDENT, DATED 12.12.2019.

Exhibit P1(a)            THE TRUE COPY OF THE ENGLISH TRANSLATION OF
                         EXHIBIT P1.

Exhibit P2               THE TRUE COPY OF THE LETTER DATED 13.1.2020 GIVEN
                         BY THE RDO TO THE 4TH RESPONDENT.

Exhibit P2(a)            TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT
                         P2.

Exhibit P3               TRUE COPY OF THE REPLY LETTER DATED 13.3.2020 OF
                         4TH RESPONDENT TO THE PETITIONER.

Exhibit P3(a)            TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT
                         P3.

Exhibit P4               TRUE COPY OF THE COMMON JUDGMENT DATED

8.7.2019 IN O.S.NO.390/2009, O.S.NO.160/2011 AND O.S.NO.429/2015 OF THE MUNSIFF COURT, MUVATTUPUZHA.

Exhibit P5 THE TRUE COPY OF G.O.(P) NO.09/2020/TD DATED 30.1.2020.

Exhibit P6 TRUE COPY OF THE RELEVANT PAGE OF THE DECISION REGISTER OF COUNCIL DECISION OF THE COUNCIL HELD ON 17.3.2020.

Exhibit P6(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P6.

Exhibit P7 TRUE COPY OF THE RELEVANT PAGE OF THE DECISION REGISTER OF COUNCIL OF MEETING ON 9.6.2020.

Exhibit P7(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P7.

Exhibit P8 TRUE COPY OF THE JUDGMENT DATED 29.7.2020 IN WP(C) NO.14104 OF 2020.

Exhibit P9 TRUE COPY OF THE DETAILS OF THE ROADS INCLUDED IN THE ASSET REGISTER OF 5TH RESPONDENT.

Exhibit P9(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT

P9.

Exhibit P10 THE TRUE COPY OF THE REPORT DATED 19.1.2021 OF THE 6TH RESPONDENT.

Exhibit P10(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P10.

Exhibit P11 THE TRUE COPY OF THE DECISION TAKEN BY THE MUNICIPAL COUNCIL IN THE MEETING HELD ON 21.1.2021.

Exhibit P11(a) TRUE COPY OF THE ENGLISH TRANSLATION OF EXHIBIT P11.

Exhibit P12 THE TRUE COPY OF THE JUDGMENT DATED 25.9.2020 IN WP(C) NO.13047/2020.

RESPONDENTS' EXHIBITS: NIL

/True Copy/

PS To Judge.

rv