IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE MONDAY, THE 11TH AUGUST 2008 / 20TH SRAVANA 1930 WP(C).No. 2798 of 2006(G) ------------------------------- PETITIONER: -------------- C. RAJEEVAN, S/O.LATE BALAN, AGED 40 YEARS, 'BALA VIHAR', MADATHIL, IRITTY PO, KANNUR DISTRICT. BY MS.PRABHA R.MENON, ADVOCATE. MR.M.KRISHNAKUMAR, ADVOCATE. RESPONDENTS: ------------------ 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE TAHSILDAR, THALASSERY, KANNUR DIST. 3. THE ADDITIONAL TALUK SURVEYOR, THALASSERY. 4. THE EXECUTIVE ENGINEER, KERALA STATE TRANSPORT PROJECT (KSTP), KANNUR DIVISION, NEAR GOVERNMENT GUEST HOUSE, KANNUR. 5. K.S.KURIEN, KALAPPURA HOUSE, P.G.P.VII/349-A, P.O. IRITTY. 6. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY MS.LATHA T. THANKAPPAN, GOVERNMENT PLEADER. MR.C.P.PEETHAMBARAN, ADVOCATE, FOR R5. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/08/2008, ALONG WITH WP(C) No.19347 OF 2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.2798/2006 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF THE COMPLAINT FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT. P2 : COPY OF THE RELEVANT PAGES OF THE RE-SETTLEMENT ADANGAL REGISTER OF the R.S.58/5. EXT. P3 : COPY OF the SURVEY PLAN OF the R.S.58/5. EXT. P4 : COPY OF the RELEVANT PAGES OF the BASIC TAX REGISTER OF R.S.58/5. EXT. P5 : COPY OF the REPORT DTD. 27.7.2005 OF THE 3RD RESPONDENT. EXT. P6 : COPY OF the REPRESENTATION DTD. 26.11.2005 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. EXT. P7 : COPY OF THE REPRESENTATION DTD. 24.11.2005 FILED BY THE PETITIONER BEFORE THE 6TH RESPONDENT. 1ST RESPONDENT'S EXHIBITS: EXT. R1(a) : COPY OF THE DECISION No.125/2004(33) TAKEN BY THE PAYAM GRAMA PANCHAYATH COUNCIL. EXT. R1(b) : COPY OF the DOCUMENT No.87/05 S.R.O ULIYIL. EXT. R1(c) : COPY OF the EXTRA ORDINARY KERALA GAZETTE No.266 DTD. 4.2.06. EXT. R1(d) : COPY OF the EXTRA ORDINARY KERALA GAZETTE No.657 DTD. 28.3.06. EXT. R1(e) : COPY OF THE W.Ps No.28781/05 AND 13297/2005. EXT. R1(f) : COPY OF the WRIT PETITION No.28781/2004. EXT. R1(g) : COPY OF the WRIT PETITION IS ENCLOSED HEREWITH. // True Copy // P.S. to Judge. smp PIUS C. KURIAKOSE, J. ----------------------------------------------- W.P.(C)No. 2798 & 19347of 2006 ----------------------------------------------- Dated this the 11th day of August, 2008 J U D G M E N T Both the writ petitions are filed by the same petitioner. Respondents in WP(C) No. 2798 of 2006 are : The District Collector, Kannur (R1), The Tahsildar, Thalassery (R2), The Addl. Taluk Surveyor (R3), The Executive Engineer (KSTP) (R4), Sri.K.S.Kurien (R5) and The Secretary to Government, PWD (R6). The respondents in WP(C) No. 19347 of 2006 are: The District Collector (R1), The Executive Engineer, KSTP (R2), Sri.K.S.Kurien (R3), The Payam Grama Panchayat (R4), the Deputy Director of Panchayat (R5) and The Director of Panchayat (R6). 2. The case in WP(C) No. 2798 of 2006 is that the petitioner is a handicapped person who owns a certain extent of land in survey No.20/1 of Payam Village in Thalassery Taluk. He being handicapped is depending on the income obtained from his property for his livelihood. WP(C)N0. 2798/06 -2- The petitioner's property lies on the western side of the Thalassery – Valavupara Road leading to Coorg. This is a PWD road. The property lying opposite to that of the petitioner is comprised in Re. Sy. Nos. 58/5, 58/11, 58/16 and 59. Out of this, R.S. No. 58/5 is entirely Government Puramboke land. It is submitted that the Government proposed upgradation and widening of Thalassery – Valavupara road. The design, plan and acquisition was done by the Executive Engineer, KSTP. When a preliminary plan for acquisition was prepared, a large extent of the petitioner's property was included in the proposal. Enquiries made by the petitioner revealed that the Government Puramboke land available right across the road in survey No.58/5 was omitted to be noticed by the Executive Engineer who is in charge of acquisition. It was also understood that the 4th respondent omitted to include Puramboke because it was found to be in the possession of WP(C)N0. 2798/06 -3- Sri. K.S.Kurien and the Executive Engineer did not realize that it was actually Government land. The petitioner alleges that Sri. K.S.Kurien has encroached into the property in survey No.58/5 which is road Puramboke and he is in possession of the same. According to the petitioner, if this road Puramboke is noticed and is utilized for road widening the petitioner will have to lose only a lesser extent. Ext.P1 is copy of the complaint submitted by the petitioner to the District Collector. P1 complaint was made on the basis of the Resettlement Adangal Register, survey plan and basic tax register concerning R.S. 58/5. Exts.P2, P3 and P4 are copies of the relevant pages of these registers. It is highlighted that these documents referred to property in survey No.58/5 as “Nirathu” (road). It is submitted that the District Collector was kind enough to order an enquiry in the matter and the matter was referred to the Tahsildar. The Tahsildar referred the matter to the WP(C)N0. 2798/06 -4- Addl. Taluk Surveyor for actual survey measurement. The surveyor after a detailed survey and enquiry submitted Ext.P5 report. As per Ext.P5 report Sri.Kurien has encroached upon not only R.S.58/5 but also R.S.22. According to the petitioner, follow up action should have been taken on the basis of Ext.P5, but no follow up action is taken and the proposed acquisition of the petitioner's property is proceeding with even after availability of Puramboke land for widening the road is identified. Petitioner submits that he believes that Ext.P5 report is held back at the behest of Sri.Kurien who is found to be a trespasser. Petitioner submitted Ext.P6 representation to the District Collector and Ext.P7 representation to the Secretary to Government. Both these representations are pending. Petitioner contends that the 5th respondent Kurien is a trespasser in view of Exts.P2, P3 and P4 village records. If the availability of Government land is taken note of or is WP(C)N0. 2798/06 -5- brought to the notice of the Executive Engineer, the requisitioning authority, then, only a smaller extent of the petitioner's land will have to be acquired. On these facts the petitioner prays for the following reliefs: 1. Issue a writ of mandamus commanding the first respondent to pass orders in pursuance of the enquiry conducted on Ext.P1 complaint in the light of Ext.P5 report and intimate the result to the 4th respondent for necessary action. 2. Issue a writ of mandamus commanding the 4th respondent to verify and utilize available Government land before finalizing the acquisition proceedings relating to Thalassery – Valavupara Road. 3. Issue appropriate directions to the 2nd respondent to take steps to resume possession of puramboke land from all the encroachers mentioned in Ext.P5. 3. The following are the prayers sought in WP(C) No. 19347 of 2006: 1. Declare Ext.P6 document as null and void having been executed by a statutory body without authority of any law. 2. Issue a writ of mandamus or any other appropriate writ or directions directing the 1st respondent District WP(C)N0. 2798/06 -6- Collector to inform and intimate the 2nd respondent about the availability of Government Puramboke land covered by Ext.P2, P3 and P4 for the road widening project, alternative, issue appropriate directions to respondents 5 and 6 to consider Ext.P8 representation forthwith to cancel Ext.P6. Ext.P1 is copy of the complaint submitted by the petitioner to the first respondent District Collector. Exts.P2, P3 and P4 are copy of the relevant pages of the resettlement adangal register, survey plan and basic tax register. Ext.P5 is copy of the report submitted by the Taluk Surveyor on the basis of the detailed survey and enquiry conducted by him pursuant to order of enquiry passed by the District Collector. Ext.P6 is copy of the registered document No.87/05 of SRO Ulliyil under which Sri.Kurien is claiming ownership over the Puramboke land. It is pointed out that Ext.P6 is dated 6-1- 2005 which is just one day prior to the declaration under section 4(1). Ext.P6 says that the Panchayat has become the Jenmi of Government land and it is being assigned to Sri.Kurien. Ext.P7 is copy of the relevant 4(1) notification. WP(C)N0. 2798/06 -7- Ext.P8 is copy of the representation submitted to respondents 5 and 6. The prominent grounds raised in WP (C) No. 91347 of 2006 are that the Panchayat does not have power under any statute to assign away lands vested in it and that on this short ground the transaction Ext.P6 is liable to be quashed. It is further alleged that Exts.P2, P3 and P4 properties are admittedly Government Puramboke land and a clear finding to that effect is made in Ext.P5 report. The District Collector had a legal duty to ensure that such land remains as the property of the Government and should not have remained as spectator to the illegal transactions like Ext.P6. Ext.P6, it is alleged, represents the extent of malafides on the part of the Panchayat and the District Administration. Ext.P6, it is highlighted, is executed just one day prior to the notification under section 4(1). The object of P6 is plainly to avoid inclusion of the land covered by Ext.P6 in the project of road widening. If the land WP(C)N0. 2798/06 -8- remains as Government land, then acquisition is not necessary and this available land can be utilized and persons like the petitioner need not have to suffer loss. 4. The Payam Panchayat, which is the 4th respondent in WP(C) No. 19347 of 2006 has filed a detailed counter affidavit through its secretary. It is contended at the very outset that the petitioner who challenges the title of the Panchayat over the land which is transacted by Ext.P6 as the alternative remedy of filing a suit before the regular civil court is not entitled to approach this court under Article 226. It is submitted that an extent of 2 cents of land in R.S. 58/5 belongs to the Panchayat with absolute ownership rights. The Panchayat Council decided as per decision No.125/04 (33) in the meeting held on 18-10-04 the Panchayat exchanged the above small extent of land for a larger extent of 5 cents in Sy. No.30/8 belonging to the third respondent Kurien. Ext.R1 is copy of the above decision of the WP(C)N0. 2798/06 -9- Panchayat Council. The above transaction became necessitated due to the dire need of constructing an Anganvadi which required larger extent of land. The above legal transaction has been documented in Ext.P6. The Panchayat exchanged the meagre extent of land in its possession and ownership for a suitable, convenient and larger extent of land to facilitate the long cherished need of the Panchayat to construct an Anganvadi. It is contended that the construction of the building is completed and the Anganvadi is about to function In order to regularize the above transaction, if at all any deformity is felt, the Panchayat decided vide Ext.R2 decision to seek formal sanction of the Government. It is contended that respondents 4 and 5 have no say in the affairs of development of road handled by other departments based on their studies and calculations. Acquisition of land for developmental activities is entirely within the prerogative of WP(C)N0. 2798/06 -10- the Government. There is no connection between Ext.P6 transaction and the notification under section 4(1) issued for acquisition for road widening. Ext.P6 transaction in no way protracts or interferes with land acquisition process. 5. The Director of Panchayat who is the 6th respondent has filed a detailed counter affidavit. It is conceded that the PWD road is passing on either side of the property of the petitioner and the 4th respondent. However, it is denied that the land in survey No.58/5 is entirely Government Puramboke. It is stated that the said land vested with the Panchayat as per order of District Collector, Kannur. It is also stated that in respect of 2 cents of land in R.S.No.58/5 an exchange has been made by the Panchayat without obtaining prior sanction of the Government as per Ext.P6. The records reveal that the disputed land was Puramboke vested in the Payam Grama Panchayat. In the Ajmash Register, the property stands vested with the Panchayat. WP(C)N0. 2798/06 -11- Rule 6 of the Kerala Panchayat Raj (Vesting and Assignment) Rule, 2005 provides that Panchayat have no right to alienate any property by way of sale without prior sanction from the Government. Further from the perusal of document No. 87/05 of SRO Ulliyil (Ext.P6) it is seen that there is an exchange of property between Panchayat and the 3rd respondent for a market value fixed at Rs.60,000/- for both the properties. There is no passing of consideration, but it is seen that a small extent of property of 2 cents is exchanged by the Panchayat for larger extent of 5 cents belonging to the 3rd respondent. Counter affidavit states that this exchange is for the benefit of general public at large especially for constructing an Anganvadi building and the Panchayat had not sold the property but exchanged and not received any consideration. Panchayat had no malafide intention. The act was done for the benefit of general public. After saying so, the counter affidavit concedes that WP(C)N0. 2798/06 -12- the Panchayat should have obtained prior sanction from the Government. It is submitted that Ext.P8 representation was considered and an enquiry was conducted by the 5th respondent. The enquiry revealed that 2 cents of valuable land situated near Thalassery – Coorg Road is exchanged for 5 cents of land situated 500 metres away from the main road without prior sanction from the Government. Though the action of the Panchayat was for the benefit of the public at large, for construction of an Anganvadi building, the action was not justifiable since prior sanction of the Government had not been taken. The matter has been reported to the Government by the 6th respondent. The counter affidavit points out that the Panchayat has subsequently sought formal sanction from the Government as decided by the Committee in the meeting held on 28-7- 2006. It is also pointed out that the brother of the petitioner has been ushered to move writ petition No.34678 WP(C)N0. 2798/06 -13- of 2004 for the came cause. Lastly, it is stated that though Ext.P6 transaction is irregular since it is made without prior sanction as provided by the rule, since there is no mala fide intention against Ext.P6 and the same advances public interest, this court may consider whether the same can be approved. The counter affidavit takes strong exception to the allegation that there is connection between P6 transaction and the notification under section 4(1). 6. As directed by me the learned standing counsel for the Panchayat placed before me for perusal, the Panchayat file pertaining to Ext.P6 transaction. I have also incorporated the judge's papers pertaining to writ petition No. 34678 of 2004 filed by Sri.Premarajan arraying the Payam Grama Panchayat as the first respondent and Sri.K.S.Kurien as the 6th respondent. A perusal of the judge's papers in WP(C). No. 34678 of 2004 reveals that the issue involved in that writ petition filed by the brother of the WP(C)N0. 2798/06 -14- writ petitioner is the same. That writ petition was dismissed by this court relegating the petitioner to remedy before the Ombudsman for Local Self Government Institutions. 7. Very extensive submissions were addressed before me by Sri.Krishnakumar, learned counsel for the petitioner, Sri.P.P.Ramachandran, learned counsel for the Panchayat and Sri.C.P.Peethambaran, learned counsel for Kurien, the party respondent. I have heard the submissions of the learned Govt. Pleader Smt.Latha T.Thankappan. The learned counsel made their submissions on the basis of the case pleaded by their parties through the writ petition and the respective counter affidavits. The issue which essentially arises is whether Ext.P6 deed of exchange executed between the Payam Grama Panchayat and Sri.K.S.Kurien can be approved. As stated by the Director of Panchayats, P6 transaction was irregular since the prior sanction of the Government which is required under rule 6 WP(C)N0. 2798/06 -15- of the Kerala Panchayat Raj (Vesting and Assignment) Rules had not been obtained by the Panchayat before Ext.P6 was entered into. At the same time it has to be noticed that by all appearances the transaction was a bona fide one in the sense that because of that transaction the Panchayat could accomplish its long cherished need of establishing an Anganvadi for the benefit of the public at large. After all, Ext.P6 was not a transaction of sale. It was a transaction of exchange. There was no passing of consideration as such. On the whole, 5 cents of land belonging to Sri. Kurien was exchanged to Sri. Kurien for 2 cents of land which stood vested in the Panchayat. I do not find any reason not to accept the case of the Panchayat which is shared by the Director of Panchayats and also by the Government that there is no connection whatsoever with the proceedings initiated for land acquisition and Ext.P6 though it so happened that section 4(1) notification was issued on the WP(C)N0. 2798/06 -16- day following Ext.P6. Ext.P6, it should be noticed was not executed overnight. Ext.P6 is the result of long drawn out deliberations and P6 preceded by a decision of the Panchayat. Even though the Panchayat was bound to obtain prior sanction of the Government before entering into Ext.P6, on the available facts and circumstances which obtain in this case, this court does not become inclined to ignore Ext.P6, for the purpose of granting relief to the petitioners. Both the writ petitions will stand dismissed. (PIUS C.KURIAKOSE, JUDGE) ksv/-