IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 25TH FEBRUARY 2009 / 6TH PHALGUNA 1930 WP(C).No. 27203 of 2008(L) -------------------------- PETITIONER(S): --------------- 1. N.N. SAIDALAVI HAJI, AGED 67, S/O. MOOSANKUTTY, NADUVIL NALAKATH HOUSE, TANUR (TENANT XIII/961, SHOP ROOM OF TANUR PANCHAYATH) 2. C.V.SUNEERA, CHERICHAM VEETIL, KATTILANGADI,TANUR (TENANT OF SHOP ROOM NO. XIII/928), TANUR PANCHAYATH. 3. A.P. GOPALAKRISHNA MENON, S/O.GOPALANKUTTY MENON, AKKIPARAMBATH, PANANGATTU (TENANT OF XIII/950, SHOP ROOM OF TANUR PANCHAYATH) 4. C.P. ASOKAN, S/O. PARAMESHWARAN, CHERIYA PARAMBATH, PANANGATTUR (TENANT OF SHOP NO. XIII/948, TANUR PANCHAYATH) 5. P. HAMSA, S/O. KOYASSAN, PALLIKKALAKATH, TANUR (TENANT OF XIII/951, SHOP ROOM TANUR PANCHAYATH) BY ADV. SRI.K.K.MOHAMED RAVUF RESPONDENT(S): --------------- 1. THE SECRETARY, TANUR GRAMA PANCHAYATH, P.O. TANUR, MALAPPURAM DISTRICT. 2. THE TANUR GRAMA PANCHAYATH, REPRESENTED BY ITS SECRETARY. 3. THE HONOURABLE TRIBUNAL FOR SELF GOVERNMENT INSTITUTIONS, THIRUVANANTHAPURAM. 4. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY FOR LOCAL ADMINISTRATION, SECRETARIAT, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.K.R.DEEPA THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.SIRI JAGAN, J. ================== W.P(C).No.27203 of 2008 ================== Dated this the 25th day of February, 2009 J U D G M E N T In this writ petition, the petitioners, who are tenants in shop rooms constructed encroaching into Panchayat land are challenging Exhibit P4 order of the 2nd respondent-Tanur Grama Panchayat issued under the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules (hereinafter referred to as the 'Rules'), directing them to vacate the encroached premises and Exhibit P7 series of orders of the Tribunal for Local Self Government Institutions dismissing the appeals filed by the petitioners against Exhibit P4 Order. 2. The owner of the buildings in which the petitioners are petty traders have admitted before the Panchayat that the offending constructions encroach into Panchayat land and that he is ready and willing to remove the encroachments, which according to him, were made by the petitioners without his permission and knowledge. Exhibit P1 and similar notices dated 31/01/2008 were issued to the petitioners stating that since in the survey conducted by the Revenue authorities it was found that the petitioners have encroached into Panchayat property and the District Collector had directed to evict the encroachers, the petitioners shall vacate the encroached portion on or w.p.c.27203/08 2 before 01/02/2008. The petitioners challenged that notice before this Court in W.P.(C).No.4285/2008, in which, by Exhibit P2 Judgment dated 11/02/2008, this Court directed the Panchayat to pass orders. Pursuant to the same, the 1st respondent passed Exhibit P4 order, against which the petitioners filed Appeal Nos. 156/2008, 158/2008, 157/2008, 159/2008 and 160/2008 which have been dismissed by the Tribunal by Exhibits P7, P7(1), P7(2), P7(3), and P7(4) orders. 3. The petitioners are challenging the said orders on the following grounds: (a) The 2nd respondent Panchayat, by issuing Exhibit P4 order, instead of the 1st respondent Secretary of the Panchayat, deprived the petitioners of their appellate remedy and therefore Exhibit P4 is illegal. (b) Since in Exhibit P1 notice it is stated that the action has been taken as directed by the District Collector and Deputy Collector, who themselves had powers of eviction under other enactment, the action of the 2nd respondent without any subjective satisfaction of their own is illegal. (c) The power to remove encroachment is not included in the powers and duties of the Panchayat under the Panchayat Raj Act and the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules, 1996 is ultravires the Kerala Panchayat Raj Act and therefore unconstitutional, especially since Section 254 of the Act which confers rule making power on the Government authorises only framing of rules for imposition and recovery of unauthorised occupation under S.254 (2) (XXIX) and does note authorise power to make rules for eviction of unauthorised occupation itself. The Rules are unconstitutional also for the reason that the Panchayat cannot act as an arbiter of its own cause. Further after the amendment of Section 169 of the Kerala Panchayat Raj Act in 2000 and the amendment of Section 3 of the Kerala Land conservancy Act adding explanation (IV) to Sub Section (1) and in view of Sub Section (2) thereof, the power to evict encroachments of properties of local authorities vests exclusively with the Government. (d) The petitioners cannot be evicted without a proper survey with notice to the petitioners. w.p.c.27203/08 3 (e) The Tribunal has relied on documents in the file of the Panchayat for controverting which the petitioners were given no opportunity. 4. On the above grounds the petitioners are seeking the following reliefs: “1. To declare that the Kerala Panchayath Raj (Removal of Encroachments and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules 1996 as ultravires and unconstitutional. Or in the alternative. 2. To quash Exhibit P1 notice as it has been passed not on any subjective satisfaction of any encroachment and in gross violation of Rules 4 and 5 of the Panchayath Raj (Removal of Encroachments and Imposition and Recovery of Penalty for Unauthorised Occupation) Rules. 2. To issue a writ of certiorari or any other appropriate writ, order or direction quashing Exhibit P4 and similar orders and Exhibits P7, P7(1), P7 (2), P7 (3) and P7 (4) orders calling for the same.” 5. I have heard counsel for the petitioners on all points raised in the writ petition and considered the arguments in detail. 6. At the outset I must note that the petitioners are only tenants in a building and the owner of the building admitted before the Panchayat that the building encroaches into Panchayat property and he has no objection in vacating the encroached portion. The petitioners who do not claim any proprietary interest in the property in question can act only through the owner and therefore when the landlord admits encroachment, the petitioners cannot have a different say in the matter, especially since they have no case that the land lord is w.p.c.27203/08 4 inimical towards them or that the landlord is acting in collusion with the Panchayat to evict the petitioners malafide. In fact the petitioners are not being evicted from the buildings, but are only directed to vacate that portion of the building encroaching into Panchayat land, while they can continue to occupy the balance holdings as tenants. Further the landlord also stands to lose the property on eviction from unauthorised occupation and if that property actually belongs to him, there is no reason why he should not challenge such eviction. As such no malafides can also be attributed to the landlord. To top it all, the petitioners have not even chosen to implead the landlord as a party either before the Tribunal or this Court. 7. Secondly, the legal contentions now raised by the petitioners are no longer available to them on account of application of principles of res judicata, since this Court had rejected those contentions in Exhibit P2 judgment in W.P.(C).NO.4285/2008 filed by the petitioners in which, after directing the Panchayat to pass orders after hearing the petitioners, this Court held thus: “....... It is made clear that other grounds raised by the petitioners have not been upheld by this Court. Those grounds are turned down.” The petitioners have not chosen to challenge the said finding and the same have become final. Ground nos. 2, 3, 4 and 5 and prayer no. (i) in this Writ Petition are verbatim reproduction of ground nos. 3, 4, 5 w.p.c.27203/08 5 and 6 and prayer no. (i) of W.P.(C).NO.4285/2008. Those having been expressly negatived by Exhibit P2 judgment and only the ground of violation of principles of national justice and non-compliance with Rule 5 of the Rules having been gained acceptance by this Court, it is not now open to the petitioners to agitate those grounds and seek the very same relief again in this writ petition as the same are hit by principles of resjudicata. In fact the petitioners actually misrepresented in paragraph 7 that “the constitutional validity has never been considered nor any finding given in Exhibit P2 judgment and therefore there is no bar of resjudicata”. The further contention therein that constitutional validity of any provision is not hit by resjudicata is also totally without any merit. 8. Even though the above findings are sufficient to dismiss the writ Petition I am inclined to consider the contentions of the petitioners on merits, which I shall do hereunder. 9. The first contention is that the order should have been passed by the 1st respondent Secretary and not the 2nd respondent Panchayat. The petitioners cannot be heard to contend so since in Exhibit P2 judgment, which has become final, this court had directed the Panchayat to pass orders after hearing the petitioners. In any event the Kerala Panchayat Raj (Removal of Encroachment and Imposition and Recovery of Penalty for Unauthorised Occupation) w.p.c.27203/08 6 Rules, 1996 defines the terms “Panchayat”, and `Secretary” and confers jurisdiction for eviction as per Rule 5 thereof specifically on the Panchayat. It is not as if under the Kerala Panchayat Raj Act, every order has to be passed by the Secretary in the first instance with the Panchayat Committee as the appellate authority. The Panchayat also has original powers, appeals against which lies with the Tribunal. In this case Rule 5 of the Rules confers original jurisdiction for eviction of unauthorised occupation on the panchayat, which only has been exercised by them. In any event, the petitioners are not in anyway prejudiced, since as provided in Section 276 of the Act they have an appellate remedy before the Tribunal which they have availed of. In this connection it may be noted that if the decision had been taken by the Panchayat in an appeal, the petitioners would have had only a right of revision before the Tribunal, in which case the scope of jurisdiction of the Tribunal would have been a limited one, unlike in an appeal, wherein the jurisdiction is wider in scope. Therefore there is no merit in the first ground. 10. The gist of the second ground is that the 2nd respondent has acted on the dictates of the District Collector and the Deputy Collector, without application of mind independently. There is nothing to indicate in Exhibit P4 that the 2nd respondent has acted on the dictates of the District Collector and the Deputy Collector. It is true w.p.c.27203/08 7 that Exhibit P1 notice has been stated to have been issued on the basis of information received from those officers based on survey by the revenue authorities. Paragraph 4 of Exhibit P4 reads thus: “The Panchayath Board also has considered the objections raised in the statement submitted by each unauthorised occupant. On a careful consideration of all allegations the Panchayath has come to a conclusion that occupant is an unauthorised occupier of the room unauthorisedly constructed by the trespasser over the land belonging to the Panchayath. The builder himself has conceded that he is a trespasser. So the occupant has no independent right whatsoever over the land or room except that he is another unauthorised occupier, under a trespasser. He has no locus standi to make any such claim. The pleas raised by the occupant are not legally tenable, so much so, it is not acceptable also. The Panchayath in its considered opinion is of the view that each occupier is unauthorised occupier of the room and he is liable to be removed from the room. He is not having any legally valid right over the room.” The same abundantly discloses independent application of mind by the 2nd respondent and nowhere in Exhibit P4 is there even any mention about any direction from the Collector or the Deputy Collector. In paragraph 3 of the order of the Tribunal the averment of the Panchayat that the Panchayat had again verified the nature of the encroachments made by the petitioners and it is only thereafter exhibit P1 notice has been issued is specifically recorded. Therefore ground (b) is devoid of any merit. 11. Ground (c) enumerated above is on the validity of the rules. The contention is that the Kerala Panchayat Raj Act does not authorise the Government to frame the Rules under Section 254 of the Act, since 254 (2) (XXIX) authorises to make rules only as to the w.p.c.27203/08 8 imposition and recovery of penalties for unauthorised occupation and not as to eviction of unauthorised occupation. The relevant portions of S.254 reads thus: “254. Power of Government to make rules;- (1) The Government may by notification in the Gazette, make rules either prospectively or retrospectively to carry out all or any purposes of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, the Government may make rules.” xxx xxx xxx xxx (xxix) as to the imposition and recovery of penalties for the unauthorised occupation of public roads or other land vesting in our belonging to Village Panchayats and the assessment and the recovery of compensation for any damage caused by such occupation.” This ground is raised on the fallacious assumption that the rule making power is restricted to the subjects enumerated in Sub Clauses (i) to (I iv) of Section 2 of Section 254. The petitioner failed to note that as per Sub Section (1) of Section 254 the Government has power to make Rules to carry out all of any purpose of the Act. Therefore if eviction of unauthorised occupation is one of the purposes of the Act, the Government certainly has powers to make rules in respect of the same. Section 166 (1) and (2) of the Kerala Panchayat Raj Act provides thus: “Powers, duties and functions of Village Panchayat - (1) It shall be duty of the Village Panchayat to meet the requirements of the Village Panchayat area in respect of the matters enumerated in the third schedule: w.p.c.27203/08 9 Provided that it shall be the duty of the Village Panchayat to render services to the inhabitants of the village Panchayat area in respect of the matters enumerated as mandatory functions in the third schedule) (2) Subject to the other provisions of this Act and the guidelines and assistance financial, technical or otherwise, of the Government, the Village Panchayat shall have exclusive power to administer the matters enumerated in the Third Schedule and to prepare and implement schemes relating thereto for economic development and social justice.” The item A (2) Third Schedule to the Act reads thus: “Third Schedule (See sub Section (1) of Section 166) Functions of Village Panchayats. A. Mandatory functions. 1. x x x x x x x x x x x x x x x x 2. Protection of public lands against encroachment. 3. x x x x x x x x x x x x x x x x” Therefore protection of public lands against encroachment being a mandatory function of the Village Panchayat the same is a purpose of the Act and consequently the rule making power of the Government extends to protection of properties of the Panchayat from encroachment by virtue of Sub-Section (1) of Section 254 of the Act. As such it is vain to contend that because eviction of unauthorised occupation is not one of the subjects enumerated in Sub-section (2), the Government does not have power to make rules on that subject. 12. When the power to evict unauthorised occupant is a w.p.c.27203/08 10 statutory function of the Panchayat there is no meaning in contending that the Panchayat cannot act as an arbiter in its own cause. That is a quasi-judicial power conferred on the Panchayat. In fact the Panchayat acts as the appellate authority in many matters as per the powers conferred by the Act. Moreover other similar statutes confer on the Government and other authorities of the State the power to evict unauthorised occupant from their own properties. Panchayat properties being public properties, there is no infirmity in conferring the power to protect such properties from unauthorised occupation on the Panchayat. Therefore the 2nd limb of ground (c) is also unsustainable. 13. The third limb of ground (c) is based on the amendment to Section 169 of the Kerala Panchayat Raj Act and Section 3 of the Kerala Land Conservancy Act. Prior to the amendment the wording used in Section 169 was that the Public roads etc. “shall stand transferred to and vest absolutely in the Village Panchayat.......” which was amended to read as “may be deemed as transferred and vested absolutely in the Panchayat” by Act 13 of 1999 with effect from 24/03/1999. According to the counsel for the petitioner, this amendment read with the amendment to Section 3 of the Kerala Land Conservancy Act would show that the authority for evicting unauthorised occupation from properties of the local authorities have w.p.c.27203/08 11 also been exclusively confined to the Government. Section 3 of the Land Conservancy Act reads thus: “3. Property of Government defined – (1) All public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same the bed of the sea and of harbours and creeks below high water mark, the beds and banks of rivers, streams, irrigation and drainage channels, canals, tanks, lakes, backwaters and water courses, and all standing and flowing water, and all lands wheresoever situated, save in so far as the same are the property of - (a) Jenmies, Wargdars or holders of Inams; or (b) persons registered in the revenue records as holders of lands in any way subject to the payment of land revenue to the Government; or (c) any other registered holder of land in proprietary right; or (d) any person holding land under grant from the Government otherwise than by way of a lease or licence; or (e) any person claiming through or holding under any of the persons referred to in clauses (a), (b), (c) or (d), are, and are hereby declared to be, the property of Government, except as may be otherwise provided by any law for the time being in force, subject to all rights of way and other public rights and to the natural and easement rights of other land owners and to all customary rights legally subsisting.” I am unable to read such a meaning into either Section 169 of the Kerala Panchayat Raj Act or the Kerala Land Conservancy Act or both read together. At best it would mean that the power to evict unauthorised occupation from property of the Panchayat is concurrently vested with the Government and the Panchayat both. From the same I could not see any exclusion of this power of the Panchayat and conferring of exclusive jurisdiction on the Government w.p.c.27203/08 12 in the matter of eviction of unauthorised occupation from land belonging to the Panchayat. 14. The next ground is that the petitioners cannot be evicted without a survey with notice to the petitioners. The petitioners being only tenants they have no such rights. The landlord has been put to notice regarding the encroachment and the landlord is convinced about the encroachment. In paragraph 10 of the order of the Tribunal it is held thus: “10. Sheets 132 and 133 of the file produced by the Respondent is statement filed by the landlord contending that the tenants have made unauthorised extension from the building without consent of the landlord and that the landlord is not against demolition of those portions of the building.” Further in Exhibit P2 judgment, this Court held that, “ ...... Since the identity of the property alleged by encroached upon is not under dispute and is shown in Exhibit P1 and like notices, I am inclined to grant time to the petitioners for filing written objection to Exhibit P1 and like notices.....” In paragraph 7 of Exhibit P7 order of the Tribunal, it is held thus: “........ Proceedings were initiated against the Appellant with respect to trespass into properties of the Panchayat in re- survey 351/1. The Appellant is to vacate only those portions of the said survey sub division in the occupation of the Appellant. The Appellant has no specific case that the Appellant has any manner of right to have possession over any portion of the said survey sub division. Instead he has only inconsistent plea that title of the Panchayat over the land is lost by adverse possession and limitation as the building is 60 years old and at the same time that the building does not encroach into any land of the Panchayat. The title of the Panchayat over the properties in the said survey sub division 351/1 is not disputed by the Appellant. The Appellant has no case that he has any right to occupy any portion of the property in the said survey sub division.” w.p.c.27203/08 13 Again in paragraphs 8 & 9 of Exhibit P7 the Tribunal held thus: “8. Earlier the Appellant and other such occupants had only requested for time to vacate the portions of the said survey sub division belonging to the Panchayat and unauthorisedly occupied by them. Sheet 29 of the file is application filed by the Appellant and other such occupants as signed by them before the Secretary on 22/06/2007 stating that they are conducting the trade in the bus stand property in re-survey 351/1 and that the landlord is insisting for demolition of the front portion of the building as per directions from the office of the Thahasildar and that if such demolition is done immediately in the rainy season serious hardships will be caused to the Appellant and others and hence the proceedings may be stopped until the rainy season is over. In the said petition signed by the Appellant and others it is admitted that survey 351/1 is the bus stand property belonging to the Panchayat. 9. Sheet 39 of the file produced by the Respondent is another petition filed by the Appellant and others as signed by all of them before the Secretary. Therein also it is admitted that they are conducting trade in the building of Kunji Babu alias Mohammed Moideen and that one feet width portion of the building that is in re-survey 351/1 is to be demolished and that as the building is an old building such demolition may spoil the whole building and that six months time may be granted for securing the building excluding that portion of the building in the property of the Panchayat. The applications filed by Appellant and others forming sheets 29 and 39 of the file contains clear admission by Appellant and others as to portion of the building being in the property of the Panchayat.” From the above it is clear that the petitioners themselves were convinced about the encroachment and the contention is raised only to lend support to their unsustainable demand without any bonafides. In that view ground (d) is also totally baseless. 15. The last ground is regarding the propriety of the Tribunal in relying on documents from the file of the Panchayat without giving the petitioners an opportunity to the petitioners to controvert them. In this connection it is necessary to refer to Rule 17 of the Tribunal for w.p.c.27203/08 14 Kerala Local Self Government Institutions Rules, 1999 which reads thus: “17. Examination of Witnesses and production of documents.- (1) The Tribunal may suo moto summon any person as witness and may direct any person including the petitioner or the counter - petitioner to produce or cause to be produced any document or record before the Tribunal. (2) The Village Panchayat or Municipality or its Secretary who has been made the counter- petitioner in a petition shall produce the connected files and other documents of the Village Panchayat or Municipality as the case may be, along with the statement submitted before the Tribunal. Provided that in case, the record cannot be produced for sufficient reasons, an attested copy of the same shall be produced along with the statement. (3) All records and documents produced before