IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27203 of 2008(L)
1. N.N. SAIDALAVI HAJI, AGED 67,
... Petitioner
2. C.V.SUNEERA, CHERICHAM VEETIL,
3. A.P. GOPALAKRISHNA MENON,
4. C.P. ASOKAN, S/O. PARAMESHWARAN,
5. P. HAMSA, S/O. KOYASSAN,
Vs
1. THE SECRETARY, TANUR GRAMA PANCHAYATH,
... Respondent
2. THE TANUR GRAMA PANCHAYATH,
3. THE HONOURABLE TRIBUNAL FOR SELF
4. THE STATE OF KERALA,
For Petitioner :SRI.K.K.MOHAMED RAVUF
For Respondent : No Appearance
The Hon'ble MR. Justice S.SIRI JAGAN
Dated :25/02/2009
O R D E R
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 the Tribunal in
connection with disposing any petition shall be collected back from the
Tribunal by the person who have produced such documents, within two
months from the date of disposal of the petition.”
The petitioners have not cared to state as to which of those documents
relied on the orders of the Tribunal were not put to them. In fact from
Exhibit P2 judgment it is clear that along with their counter affidavit
the Panchayat had produced several documents (up to Ext. R1(i) is
referred to in the judgment), copies of which documents the
petitioners have received. In any event the petitioners have not been
able to say as to reliance on which document by the Tribunal without
notice to them has prejudiced their case. In any case, in view of Rule
17, when the petitioners were aware of the necessity to produce the
files, nothing prevented the petitioners from seeking opportunity to
peruse the files which they have not chosen to do. In any event from
w.p.c.27203/08 15
a reading of Ext.P7 series I find that the Tribunal has not relied on any
document which the petitioners were not aware of. Perhaps realising
the hollowness of this ground the counsel for the petitioners did not
even argue this ground at the time of hearing before me.
In the result none of the grounds raised in the Writ Petition are
sufficient to challenge the impugned orders. Therefore the writ
petition is without any merit and accordingly the same is dismissed.
Sd/-
prv. S.SIRI JAGAN, JUDGE
///True copy///
P.A. to Judge
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