Kerala High Court
V.E. Alex vs Kattappana Municipality on 23 November, 2022
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
&
THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN
WEDNESDAY, THE 23RD 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 23RD 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.
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W.A.Nos.1543 & 1548 of 2022
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Dated this the 23rd 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
6th 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 6th 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 1st 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
