Kerala High Court
Yatra Rep. By Secretary vs State Of Kerala on 5 November, 2021
W.P.(C) No. 14151/2010 : 1:
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
WP(C) NO. 14151 OF 2010
PETITIONER:
YATRA (YARD OF ADVANCED TOURISM RESEARCH AND ACTION),
REG. NO.230/95, BALLA.P.O.,, KANHANGAD REP. BY SECRETARY.
BY ADVS.
SRI.K.S.MADHUSOODANAN
SRI.T.V.JAYAKUMAR NAMBOODIRI
SMT.K.M.RAMYA
SRI.P.K.RAKESH KUMAR
SRI.THUSHAR NIRMAL SARATHY
SRI.M.M.VINOD KUMAR
RESPONDENT/S:
1 STATE OF KERALA
PUBLIC WORKS(C) DEPARTMENT, GOVERNMENT OF KERALA,,
THIRUVANANTHAPURAM.
2 ASSISTANT EXECUTIVE ENGINEER, ROADS
SUB DIVISION, KANHANGAD.
3 SECRETRY, KANHANGAD MUNICIPALITY,
KANHANGAD.
4 ADDL.R4.IMPLEADED:
EXECUTIVE ENGINEER,
KERALA STATE TRANSPORT PROJECT DIVISION, NEAR ENGINEER'S
CENTER, BABY BEACH ROAD, BURNASSERY.P.O, KANNUR-670 013.
(ADDL.R4 IMPLEADED AS PER ORDER DATED 16.07.2020 IN IA
1/2020 IN W.P.(C) 14151/2010.)
BY ADV SRI.T.K.VIPINDAS
R1 AND 2 - SRI.JACOB E SIMON,GOVERNMENT PLEADER
SRI. MOHAMMED HUSSAIN K.M
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
29.10.2021, THE COURT ON 05.11.2021 DELIVERED THE FOLLOWING:
W.P.(C) No. 14151/2010 : 2:
Dated this the 5th day of November, 2021.
JUDGMENT
The petitioner is a society registered under the Societies
Registration Act, 1860 and Gandhi Peace Park is a project of the said
non Governmental Organization.
2. The grievance of the petitioner is against the action of the
Secretary, Kanhangad Municipality--third respondent, disallowing the
functioning of Gandhi Peace Park in the 5 cents of land of the Public
Works Department abutting State Highway leased out to the petitioner
by the State and the Assistant Executive Engineer, Roads Sub Division,
Kanhangad, Kasargod District.
3. According to the petitioner, in the park, an idol of the
Mahatma Gandhi is intended to be installed surrounded with medicinal
plants and the photocopy of the pamphlet specifying the aims and
object of Gandhi Peace Park is produced as Ext. P1. It is submitted by
the petitioner that the Deputy Chief Engineer in charge of Chief
Engineer (Roads and Bridges), Thiruvananthapuram, as per order No.
CBA 71811/02/Kd dated 24.06.2003, recommended leasing out of land
to the petitioner Organization. Consequently, the State of Kerala--first
respondent, as per order No. 23249/C2/04/PWD dated 04.02.2005,
consented for leasing out 5 cents of land as per Ext. P3. Accordingly,
the Assistant Executive Engineer, Roads Sub Division, Kanhangad, the
3rd respondent, as per Ext. P4 proceedings bearing No. D-497/2002
dated 21.02.2005, allotted land imposing certain conditions. It is the
case of the petitioner that on the same day, the petitioner was put in
possession by executing a lease agreement, evident from Ext. P5
dated 21.02.2005.
4. The main grievance of the petitioner is that the third
respondent interfered with the installation of the idol of Mahatma
Gandhi, as well as the fencing from the attack of stray cattle and also
removed the name board of the park, on 24.08.2009. Thereupon, the
petitioner has submitted Ext. P6 application dated 27.08.2009 under
the Right to Information Act. The Secretary of the Municipality, as per
Ext. P7, replied that as per Section 271(c) of the Kerala Municipalities
Act, 1994 ('Act, 1994' for short) and the Kerala Municipality (Erection
of Arches and Setting up of Advertisement Boards in Public Streets and
Public Places) Rules, 1999, the Secretary is empowered to remove the
advertisement board. Further, it was replied that under Sections 207
and 208(C) r/w Section 30(1) encroachment into a public place shall
be resisted and that no construction activity can be allowed without
the permission of the Municipality. Therefore, according to the
petitioner, the petitioner, as per Ext. P8 dated 01.02.2010, sought for
permission to put up a bamboo fence, which application was received
by the third respondent on 02.02.2010, evident from Ext. P8(a) postal
AD card. Since there was no reply within 30 days, in contemplation of
Rule 15 of the Kerala Municipality Building Rules, 1999, the petitioner
gave a written request to the Municipal Council for permission to put
up the bamboo fence, evident from Ext. P9, which was received by the
Chairman of the Kanhangad Municipality on 12.03.2010, evident from
Ext. P9(a) postal AD card.
5. It is the case of the petitioner that as the Council has not
given any reply as to whether any approval or permission should be
given or not, deemed permission under Rule 15(2) of the Rules 1999
came into existence on 12.04.2010. However, after 55 days of receipt
of Ext. P8 application given to the third respondent, reply was given as
per Ext. P10 letter dated 25.03.2010 basically stating that the
Municipality has decided to construct a traffic triangle to instal a statue
of Mahakavi P. Kunjiraman Nair, who is popularly known as 'Mahakavi
P' and therefore, the Municipal Council has decided to reject the
application submitted by the petitioner. These are the basic
background facts projected by the petitioner at the time of filing of the
writ petition.
6. But, during the pendency of the writ petition, the Assistant
Executive Engineer, PWD, issued Ext. P11 letter dated 17.05.2011,
which is produced along with I.A. No. 8241 of 2011 dated 30 th May,
2011, by which the petitioner was informed that the land let out to the
petitioner at km.20/900 of Kasargod-Kanhangad road is required for
the development of road network of the PWD and therefore, as
directed by the Chief Engineer (R&D), as per the legal opinion in W.P.
(C) No. 14151 of 2010 dated 11.02.2011, the lease of 5 cents of land
to the petitioner Organization is cancelled and directed to remove all
constructions made and vacate the land at the risk and cost of the
petitioner within 15 days from the date of receipt of the notice.
7. Prior to that, as per letter dated 15.07.2010, the Executive
Engineer, KSTP Division, Kannur, has issued a communication to the
petitioner that for the expansion of the Kasaragod-Kanhangad road,
only one meter is included and therefore, KSTP has no objection in
parting with the property leaving apart 1 meter. However, on the basis
of the aforesaid Ext. P11 communication of the Assistant Executive
Engineer, PWD, the petitioner has sought for amendment of the writ
petition in I.A. No. 16798 of 2011 challenging Ext. P11 communication
by including the prayer to quash the same. The said I.A was allowed
on 29.10.2021, since the Government has not filed any objection in
spite of granting time as per an order dated 22nd October, 2021.
8. The second respondent, namely Assistant Executive Engineer,
Roads Sub Division, Kanhangad, has originally filed a statement
refuting the claims and demands raised by the petitioner and basically
contending that as per Ext. P3 order, the property having an extent of
5 cents of land, has been let out to the Secretary of the petitioner
under the following conditions:
1. The leased land will be vacated within 15 days on receipt of the
instructions from the Department and all structures constructed
there on in the leased land will be removed at YATRA's own
expenses.
2. A temporary construction will only be made in the leased land.
3. No hindrance will be caused to the existing drainage, traffic
control system etc. due to the lease of land and construction work
will be done as per the direction of departmental officers.
9. It was also submitted, on instructions from the second
respondent, that whenever the property in question was required for
the development of the road, the petitioner has no manner of right to
challenge the action initiated by the Municipality also, since the public
property is vested with the Municipality consequent to the introduction
of the Act, 1994.
10. The Municipality has also filed a counter affidavit justifying
its Ext. P7 order stating that it had issued the said order in accordance
with the provisions of the Act, 1994. In fact, it was the Secretary of
the Municipality that has sought for cancellation of the lease in order
to tide over the congested traffic situation within the heart of the city.
The Steering Committee of the Municipality, as per decision dated
15.01.2009, had recommended to the Municipal Council to instal a
traffic triangle in the land adjacent to the Krishna Mandir Road and
the main road has been reported to be an accident prone junction and
therefore, no constructions, which would impair the visibility to the
motorists, can be permitted to be erected in the said triangular strip
of land. Therefore, by virtue of Section 207 of the Kerala Municipality
Act, the property in question vests with the Municipality, is the
contention and It was accordingly that the Municipal Council as per
Resolution No. 28 dated 21.10.2009 resolved to construct a traffic
triangle, evident from Ext. R3(b) dated 21.01.2009. Later, the
Municipal Council as per Ext. R3(c) Resolution dated 18.02.2009
resolved to instal a statue of Mahakavi P. Kunhiraman Nair on the
triangle, as Kanhangad is the birthplace of the renowned poet. Other
contentions are also raised justifying the stand adopted by it.
11. Respondent No. 2 has later filed a counter affidavit and has
produced Ext. R2(a) communication issued by the State Government
dated 30.09.2009, whereby a general circular was issued by the State
Government directing the Public Works Department and its officials not
to assign or let out the lands situated by the side of the roads, which
would seriously prejudice the development of the roads.
12. A reply affidavit is filed by the petitioner reiterating the
stand adopted in the writ petition and also contending that the Kerala
State Transport Project (KSTP) has intimated as per Ext. P12 letter
dated 15.07.2010 that only one meter from the road margin alone is
included for the development.
13. I have heard, Sri. K.S. Madhusoodanan learned counsel for
the petitioner, Sri. T.K. Vipindas and Sri. Mohammed Hussain K.M for
the third respondent Municipality, learned Government Pleader for the
State and the Assistant Executive Engineer, PWD, and perused the
pleadings and materials on record.
14. Learned counsel for the petitioner has addressed arguments
on the basis of the contentions recorded above. The paramount
contention advanced by the petitioner is that there is no power vested
with the Municipality to pass any adverse orders, since the land was
assigned to the petitioner by the PWD officials at the behest of the
State Government.
15. On the other hand, the learned counsel for the Municipality
submitted that by virtue of Section 207 of the Act, 1994, all the public
properties are vested with the Municipality, especially the property in
question which is situated by the side of a congested public road and
therefore, since the property as such is vested in the Municipality, it
has got every right to regulate the activities of the petitioner.
16. The Assistant Executive Engineer, Office of the Assistant
Executive Engineer, PWD Roads Sub Division, Kanhangad, as per Ext.
P11 order has cancelled the lease granted to the petitioner and
directed to remove all the constructions made and vacate the land at
the risk and cost of the petitioner. As per Ext.P12 communication
dated 15.07.2010, the Kerala State Transport Project might have
communicated to the petitioner that for the road development project
only one meter of the property from the property in question is
required. Whatever that be, from the lease granted to the petitioner,
as per Ext. P3, it is clear that whenever the property is required for the
road development, it shall be vacated by the petitioner within 15 days,
after removing all temporary constructions put up, apart from the
other conditions contained in Ext. P3, which is an order issued by the
Chief Engineer, Public Works Department, Thiruvananthapuram for and
on behalf of the Under Secretary. It was on the basis of the same
alone, the Assistant Executive Engineer, Roads Sub Division,
Kanhangad has issued Ext. P4 proceedings dated 21.02.2005 inter alia
incorporating the conditions contained under Ext. P3 proceedings of
the State Government.
17. As I have pointed out above, now the Assistant Executive
Engineer, PWD has cancelled the lease as per Ext. P11 discussed
above. It is clear from the counter affidavit and the documents
produced by the Kanhangad Municipality that the property in question
is required for the development of the road and it was accordingly, on
the request made by the Municipality that the lease was cancelled.
Section 207 of the Act, 1994 makes it clear that all the public property
vest with the Municipality consequent to the introduction of the Act,
1994 and therefore, whenever any road poramboke is required for the
expansion of the road, the Municipality is at liberty to make a request
to the PWD to cancel the lease, if any granted by it to any private
persons. Relevant provisions of Sections 30 and 207 of the Act, 1994
would give a clear insight to the power enjoyed by the Municipality and
they read thus:
30. Powers, functions and responsibilities of Municipality.--
[1) The Administration of a Municipal area in respect of the matters
enumerated in the First Schedule shall, subject to the provisions of
this Act and such other provisions as may be prescribed in this
behalf and the provisions of other Acts and the rules made
thereunder vest in the Municipality and it shall have the power and
responsibility to prepare and implement schemes for economic
development and social justice in relation to the matters enumerated
in the First Schedule:
Provided that, it shall be the duty of the Municipality to
render necessary service to the inhabitants of the Municipal area in
respect of the matters enumerated as mandatory functions in the First
Schedule];
(2) Municipality shall have such powers, authority and
responsibilities of the Government [as prescribed], to enable it to
function as an institution of self government in respect of the matters
entrusted to it.
(3) The Government shall, as soon as may be after the coming
into force of this Act, transfer all institutions, schemes, buildings,
other properties, assets and liabilities connected with the matters
mentioned in the First Schedule, to the Municipalities concerned.
(4) The Central and State Plan allocations, for the time being
in force and the annual budget allocation in respect of the subjects
transferred to the Municipalities by the Government shall be wholly
allotted to the respective Municipalities.
[(5) The municipality shall manage the institutions and
administer the schemes transferred to it, subject to the guidelines and
technical directions from the Government and in accordance with
the State and National policies.
(6) Every institutions transferred by Government to the
Municipality shall be in the name of that Municipality and shall be
known accordingly.
(7) The Municipality shall not have power to sell, transfer,
alienate or mortgage any property transferred to it under sub-section
(3)."
207. Vesting of Public streets and appurtenance in
Municipality: -- ( 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 roads, streets, lanes and paths,
the bridges, ditches, dykes and fences on or beside the same, and all
adjacent land not being private property appertaining thereto in any
municipal area other than [National Highway or State Highway or
major district road or roads classified by Government as such] shall
stand transferred to, and vest absolutely in the Municipality together
with all pavements, stones and other materials and other things
provided therein, all sewers, drains, drainage works, tunnels and
culverts, whether made at the cost of the Municipal fund or
otherwise in, alongside or under such roads and all works, materials
and things appertaining thereto.
[(2) Notwithstanding anything contained in sub-section (1)
the Government may, by notification in the Gazette, at any time,
withdraw such public roads and or streets, sewer drain, drainage
work tunnel or culvert adjacent to it from the control of the
Municipality for the purpose of classifying, it as any public road,
street National Highway, State Highway or Major District road
under the control of Municipality and thereupon it shall revest in the
Government on issuing such a notification:
Provided that before issuing such a notification, the
Government shall consult the Municipality concerned and give due
regard to the objections, if any.]"
18. The first Schedule of the Act, 1994 makes it clear that
maintaining roads and other public properties, providing parking space
for vehicles and construction of the waiting shed for travellers are all
mandatory functions to be discharged by the Municipality. That apart,
consequent to the introduction of Part IXA, into the Constitution of
India dealing with the Municipalities, and by virtue of Article 243W
thereto, and the provisions of the Act 1994, every municipality is
endowed with powers, authority and responsibilities to function as
institutions of self-Government in the matter of the preparation of
plans for economic development and social justice; the performance of
functions and the implementation of schemes as may be entrusted to
them, including those in relation to the matters enlisted in the Twelfth
Schedule. The entry Nos. 4 and 17 in the said schedule dealing with
roads and bridges, and Public amenities including street lighting,
parking lots, bus stops and public conveniences, respectively, make it
clear that it was on the basis of said constitutional obligation alone,
those aspects are made mandatory functions of the Municipality under
Schedule 1 of the Act 1994.
19. Taking into account the facts and circumstances and the law
discussed above, I have no hesitation to hold that the petitioner has no
manner of right to make any claims and contentions as advanced,
when the lease is cancelled, especially due to the fact that the lease
was granted on a specific condition that the property leased out would
be vacated by the petitioner as and when it is required for the
development of the road. On cancellation of the lease for the purpose
of expansion of the road in question, it is for the State and its officials
and the Municipality to decide, in what manner the road is to be
developed in order to eliminate the traffic congestion in the larger
public interest, and the petitioner is not at liberty to decide as to the
exact extent of the land required for the expansion and development.
To put it otherwise, the personal and private interest of the petitioner
cannot supersede a public interest involved, and if the issue at hand is
not considered accordingly, the public would be put to various
difficulties and inconveniences. In my considered opinion, it was
bearing in mind the expansion of the road, an imperative condition
was incorporated in the order and the agreement that the petitioner
shall vacate the premises as when the property is required for the
development of the road. It is also relevant to note that, as per Exhibit
P4 proceedings of the Assistant Executive Engineer -3rd respondent
and Exhibit P5 agreement all that was required as a forerunner for
vacating the premises was 15 days notice, but now the petitioner got
almost 11 years time consequent to the interim order granted by this
Court in the writ petition on 09.11.2010, staying the operation of
Exhibit P10 order of the Municipality.
20. In that view of the matter, I do not think, the petitioner has
made out any case for interference. Accordingly, the original prayer to
quash Exhibit P10 order of the Municipality declining building permit,
as well as the additional prayer sought for to quash Ext. P11 order
passed by the Assistant Executive Engineer, PWD Roads Division,
Kanhangad dated 17.05.2011 cancelling the lease is declined,
consequent to which the third prayer for a mandamus directing the
Secretary of the Municipality not to interfere with the lease has no
basis, and therefore, it is also declined.
Needless to say, the writ petition fails and accordingly, it is
dismissed.
sd/-
SHAJI P. CHALY,
JUDGE.
Rv
APPENDIX OF WP(C) 14151/2010
PETITIONER'S EXHIBITS:
EXHIBIT P1 PHOTOCOPY OF THE PAMPHLET SPECIFYING THE AIMS
AND OBJECT OF GANDHI PEACE PARK.
EXHIBIT P2 PHOTOCOPY OF THE SITE PLAN APPROVED BY PWD
ROAD DIVISION.
EXHIBIT P3 PHOTOCOPY OF THE ORDER BEARING
NO.23249/C2/04/PWD DATED 4-2-2005.
EXHIBIT P4 PHOTOCOPY OF THE PROCEEDINGS OF
ASST.EXE.ENGINEER ROADS SUB DIVISION DATED
21.02.2005.
EXHIBIT P5 PHOTOCOPY OF THE AGREEMENT DATED 17.02.05.
EXHIBIT P6 PHOTOCOPY OF THE APPLICATION UNDER RIGHT TO
INFORMATION ACT DATED 27.08.09.
EXHIBIT P7 PHOTOCOPY OF THE REPLY BEARING NO.A2-332/09
DATED 17.09.09.
EXHIBIT P8 PHOTOCOPY OF THE APPLICATION DATED 01.02.10.
EXHIBIT P8 PHOTOCOPY OF THE A.D.CARD DATED 02.02.2010.
EXHIBIT P9 PHOTOCOPY OF THE APPLICATION DATED 10.03.10.
EXHIBIT P9 PHOTOCOPY OF THE A.D.CARD DATED 12.03.2010.
EXHIBIT P9(a) PHOTOCOPY OF THE A.D CARD DATED 12.03.2010.
EXHIBIT P10 PHOTOCOPY OF THE REPLY LETTER OF THE 3RD
RESPONDENT DATED 25.03.2010.
EXHIBIT P10 PHOTOCOPY OF THE GANDHI PEACE PARK WHERE THE
STATUE OF MAHATMA IS INSTALLED.
EXHIBIT P11 PHOTOCOPY OF THE ORDER BEARING NO.D1/G1/LND/07
DATED 17.05.2011 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P12 PHOTOCOPY OF THE LETTER BEARING NO.KSTP/KNR-
DN/C1-03/04 DATED 15.07.2010.
RESPONDENTS' EXHIBITS:
EXT.R3(a): TRUE COPY OF THE LETTER ISSUED BY THIS RESPONDENT TO THE
EXECUTIVE ENGINEER, PWD, KANHANGAD DATED 25.03.2010.
EXT.R3(b): TRUE COPY OF THE RESOLUTION OF THE MUNICIPAL COUNCIL DATED
21.01.2009.
EXT.R3(c): TRUE COPY OF THE RESOLUTION OF THE KANHANGAD MUNICIPALITY
DATED 18.02.2009.
EXT.R2(a): TRUE COPY OF THE CIRCULAR DATED 30.09.2009.
/True Copy/
PS to Judge.
rv
