Kerala High Court

P.Riyas vs Kannamangalam Grama Panchayat on 25 November, 2021

W.P.(C)No.38098 of 2015
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          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
 THURSDAY, THE 25TH DAY OF NOVEMBER 2021 / 4TH AGRAHAYANA,
                                  1943
                     WP(C) NO. 38098 OF 2015
PETITIONER/S:

           P.RIYAS
           AGED 28 YEARS
           S/O.IBRAHIM, PUTHUKUDY HOUSE A.R.NAGAR,
           KUTTUR NORTH P.O., MALAPPURAM DISTRICT.

           BY ADVS.
           SRI.T.SETHUMADHAVAN (SR.)
           SMT.DEEPA NARAYANAN
           SRI.K.JAYESH MOHANKUMAR
           SRI.PUSHPARAJAN KODOTH
           SMT.VANDANA MENON


RESPONDENT/S:

    1      KANNAMANGALAM GRAMA PANCHAYAT
           REPRESENTED BY SECRETARY, P.O.KANNAMANGALAM,
           PIN: 676 304, MALAPPURAM DISTRICT.

    2      THE ASSISTANT ENGINEER
           PUBLIC WORKS DEPARTMENT, PARAPPANANGADI.

           BY ADV.SRI.K.RAMACHANDRAN
           SRI.JACOB E SIMON, GOVERNMENT PLEADER
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.11.2021,    THE   COURT   ON    THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 W.P.(C)No.38098 of 2015
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                            JUDGMENT

Dated this the 25th day of November, 2021

This writ petition is filed by the petitioner seeking the

following relief:

"i) to issue a writ of mandamus or any other appropriate writ, order or direction, directing the 1 st respondent not to proceed with the formation and widening of the road Mukkilpeedika- Nellikkaparambu through the western side of the property comprised in R.S.No.271/1 & 3 of Kannamangalam Village without obtaining written relinquishment letter from the petitioner."

2. The case projected by the petitioner is that, petitioner

is the owner of an extent of 31 cents of land in Re Survey

No.271/1 and 3 of Kannamangalam Village, Malappuram

District, secured by the petitioner as per Exhibit P1 partition

deed. The grievance of the petitioner is that the western

boundary of the property was an idavazhi (small bye-lane) as

can be seen from Exhibit P1. It was subsequently made as a

Panchayat road. The Panchayat wanted to widen the road W.P.(C)No.38098 of 2015

after securing surrender of the properties from the owners on

either side of the idavazhi. The case of the petitioner is that

the petitioner or his relatives did not submit any

relinquishment letter or surrender letter. However, the

Panchayat, with the assistance of the Police, was attempting

to encroach into the property and carry out widening of the

idavazhi. It is thus seeking the relief extracted above, the writ

petition is filed.

3. The Secretary of the Grama Panchayat has filed a

counter affidavit basically contending that in order to widen

the idavazhi, the Panchayat has issued a public notice inviting

objections from the owners of the properties on either side of

the idavazhi. Except the petitioner all others surrendered

their properties and since the petitioner has not filed any

objection as is sought for in the public notice, the Panchayat

has a right to take possession of the property from the

petitioner and widen the road in question.

4. I have heard the learned counsel for the petitioner Sri. W.P.(C)No.38098 of 2015

T. Sethumadhavan; the learned standing counsel Sri. K.

Ramachandran for the respondent Grama Panchayat, the

learned Government Pleader Sri. Jacob E.Simon for the 2 nd

respondent and perused the pleadings and the materials on

record.

5. The issue with respect to the acquisition of property

by the Panchayat is guided by Section 178 of the Kerala

Panchayat Raj Act, 1994 which reads thus:

"178. Acquisition of immovable property required by the panchayat. - Any immovable property which is required by a panchayat for a public purpose connected with the discharge of the functions imposed on it under this Act or the rules or bye-laws made thereunder, or any other law, may be acquired under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) and on payment of compensation awarded under that Act in respect of such property and of any other charges incurred in acquiring it, the said property shall stand transferred to and vest in the Panchayat:

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

6. In order to implement the said provision, the State

Government has introduced the Kerala Panchayat Raj

(Acquisition and Disposal of Property) Rules, 2005. Rule 3 W.P.(C)No.38098 of 2015

thereto deals with power to acquire property and sub-rule (1)

specifies that the Panchayat may acquire any land or building

within or outside its 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.

Sub-rule (2) clearly stipulates that the acquisition of land

under sub-rule (1) may either be in accordance with the Land

Acquisition Act for the time being in force and the rules made

thereunder or through private purchase or free surrender.

7. A clear procedure is prescribed as per rule 4 of Rules

2005 as to the manner in which the land is to be acquired.

Rule 5 deals with the acquisition of land by bilateral

agreement which reads thus:

"5.Acquisition of land by bilateral agreement.-- (1) In all cases wherein it is proposed to acquire land by bilateral agreement.

(a) ensure that the land is free from liability by obtaining encumbrance certificate for 18 years form the Sub-Registrar Office concerned to prove the previous liability of the land proposed to be W.P.(C)No.38098 of 2015

acquired;

(b) ensure that the owner has clear title and ownership right to dispose over the property proposed to be acquired by getting the title of the property scrutinized by the District Government Pleader:

(c) ensure that the cost of land given for the land proposed to be acquired does not exceed that fixed in writing by the Tahsildar/District Collector concerned, and

(d) ensure that the cost of the building or improvement, if any, upon the land does not exceed that fixed by the competent Engineer.

(2) In case the Panchayat is in need of any land or building for any public purpose, such land or building may be taken on lease subject to the terms as may be decided by the Panchayat. Provided that when such land or building is taken on lease, the lease rent shall be fixed only after proper valuation of the cost of the land or the building. (3) The title deed of the property acquired by the Panchayat under sub-rule (1) shall be in accordance with Form No.1 appended to these rules.

(4) Nothing mentioned in the aforesaid rules shall apply to any property acquired by a Panchayat upon a judgment of a Court."

8. Therefore, it is clear that the power of the Panchayat/

Secretary is circumscribed in terms of Section 178 of Act 1994

and the Rules 2005. True, the Panchayat is entitled to secure

relinquishment of any land, free surrender of land or purchase W.P.(C)No.38098 of 2015

of any land but it can only be done in accordance with the

provisions of law. The Secretary of the Panchayat is a

statutory authority vested with powers under the Kerala

Panchayat Raj Act, 1992 and the rules made thereto and the

Secretary has to discharge the functions only in accordance

with the powers enjoyed by the Secretary in accordance with

law.

9. The counter affidavit filed by the Secretary would

show that, he/she is under the impression that merely by

issuing a public notice, the Panchayat/Secretary is entitled to

take possession of the property belonging to some other

person. In my considered opinion, such a course of action is

not provided under law and the Secretary is not empowered

to issue a public notice and then take possession of a property

belonging to a private party. Therefore, the attempt of the

Panchayat and the Secretary to take forcible possession of

the property of the petitioner cannot be sustained under law.

10. However, if any public property is included in the W.P.(C)No.38098 of 2015

property of the petitioner, it is for the Secretary of the

Panchayat to make a requisition to the authority under the

Kerala Surveys and Boundaries Act 1961, in terms of Section

4A of the said act. Section 4A of Act 1961 reads thus:

"4A. Government may direct the survey and demarcation of any lands belonging to local authority. - Whenever a local, authority as defined in the Kerala Panchayat Raj Act, 1994 (13 of 1994) or in the Kerala Municipality Act, 1994 (20 of 1994) requests the Government for surveying and demarcating the boundaries of any land vested or owned by it, the Government or any officer or authority authorized by the Government in this behalf, by notification in the Gazette shall get the land surveyed and demarcated."

In that view of the matter, the writ petition is allowed

and the 1st respondent Grama Panchayat is directed not to

take forcible possession of the property of the petitioner.

However, I make it clear that if any public property is

remaining in the possession of the petitioner, the Secretary of

the Grama Panchayat is at liberty to make suitable requisition

to the authorities under the Kerala Surveys and Boundaries W.P.(C)No.38098 of 2015

Act, issue notice to the petitioner and all affected persons and

proceed in accordance with law.

Sd/-

Shaji P.Chaly Judge

vpv W.P.(C)No.38098 of 2015