State of Kerala vs Dominic Cyriac and The Melukavu Panchayat

Srikirshna, C.J.—This appeal is directed against the judgment of the learned Single Judge in OP. No. 17509/1995 directing the second respondent Director of Panchayath to act upon and implement the resolution (Ext.P3) dated 20.4.1993 and thereby grant release of the land which is the subject matter of the petition after charging the amount as per rules by way of transfer of assignment, keeping in mind the recommendations of the District Panchayat Officer (Ext. P4) dated 24.5.1993.

The facts necessary for deciding this appeal are as follows:-

The first respondent owns 20 cents of land in survey No. 2250/2 and was in possession of 11.5 cents of land adjacent thereto in survey No. 721/1 of Moonnilavu Village for more than 40 years as in the year 1993. The said 11.5 cents of land of which he was in possession lies on the bank of a river called Kadavupuzha. The said 11.5 cents of land has been under the uninterrupted possession of the first respondent and his predecessors in title for more than a century. The Melukavu Panchayat made an attempt to take possession of this property. the first respondent filed a petition before the Deputy Director of Panchayath which was allowed on 26.3.1993. The first respondent filed a representation dated 19.3.1993 (Ext.P2) and requested the second respondent Panchayath to take steps to assign the said 11.5 cents of land to the first respondent. The first respondent pointed out that the said 11.5 cents of land was always under the adverse possession and occupation of the first respondent for almost half a century and, before him, under the adverse possession and control of his predecessor in interest. Thus, he was entitled to claim title to the said land by adverse possession. He also pointed out that it was essential for him to take steps on this land so that his other land could be protected against soil erosion due to flow of the river Kadvupuzha. It was also pointed out that he Kadavupuzha river takes a very sharp bend at the point of the first respondent''s property, causing damage to the property of the first respondent, which might also cause danger to the Moonnilavu - Vakakkad bridge. So, for reasons of better enjoyment of his property, and also to ensure that he would be able to take steps on the said land, the first respondent made representation to the panchayath.

This representation of the first respondent was considered by the Panchayath and the Panchayath passed a unanimous resolution on 20.4.1993 (Ext. P3). By this resolution, the Panchayath noted all facts including the fact that the land in question was in continued adverse possession of the first respondent, that the Panchayath did not have much benefit by getting the land from the persons who were in possession, that it would be difficult to evict the person who had been in adverse possession for more than 40 years, that the river flows down a bend at the said land which might destroy the peramboke land by soil erosion and it might also affect the nearby buildings and also the Moonilavu - Vakakkad bridge some time in future. Considering all these facts, the Panchayath took a conscious decision that, as it was not in a position to construct protective walls to avoid danger, the Panchayath should assign the said 11.5. cents of land to the first respondent keeping the way for lorry passage to the river along the said land, upon payment of charges in accordance with rules and after receiving permission of the Director of Panchayath, the second appellant. The Panchayath also resolved that the Director of Panchayath be requested through Kottayam District Panchayath Officer to accord sanction for release of the said land.

The District Panchayath Officer made detailed investigations and by his recommendations -cum-report dated 24.5.1993 (Ext. P4) found that all the facts narrated in the resolution of the Panchayath were true. He also noted that the Committee of the Panchayath had resolved that the land would be given away only after receiving the amount as per the rules. He therefore recommended favourable action of the Director of Panchayath. Director of Panchayath after considering the matter, passed an order dated 25.8.1993 (Ext. P5), which neither gave sanction to the proposal of the Panchayath nor rejected it. It merely stated that the Panchayath should act in accordance with the directions given in a Government letter dated 17.8.1992. The said letter dated 17.8.1992 is at Ext. P6 and merely states that the Government cannot assign peramboke land under the Kerala Land Assignment Rules or give full title of such land to the occupiers. Hence, it records that action was being taken to cancel the earlier notification issued on 8.1.1991 and advises that the said legal position may be borne in mind while dealing with the request for assignment of puramboke lands falling within the purview of Section 82 of the Kerala Panchayats Act, 1960.

Being aggrieved by the order dated 25.8.1993, the first respondent filed a petition before the Minister, Local Administration Department, on 13.9.1993 complaining against the refusal of the Director of Panchayath to exercise the discretionary power vested under Rule 5 of the Kerala Panchayaths (Acquisition and Transfer of Immovable Properties) Rules (hereinafter referred to as the Rules). ON 10.1.1994, the State Government made an order disposing of the petition Ext. P9 filed by the first respondent by its order at Ext. P10. The only reason given for refusing the request is that there was no provision for assigning river puramboke land vested in the Panchayat to those in possession.

7.The first respondent challenged the Government''s order Ext. P10 by OP.No.2302/1994 before this court. By a judgment dated 5.7.1994 the order of the State Government (Ext. P10) was set aside and the State Government was directed to dispose of afresh the first respondent''s representation dated 13.9.1993. This time, the Government passed a fresh order dated 19.9.1994 (Ext. P12) again rejecting the request. The first respondent challenged the last order Ext. P12 by O.P.No. 17509/1995. The learned Single Judge by judgment dated 14.12.1995 allowed the Original Petition and directed the Director of Panchayath to make an order in favour of the first respondent. Being aggrieved, the State has come up in appeal.

Section 82 of the Kerala Panchayath Act 1960 provides for vesting, interalia, the land adjacent to public water course, in the Panchayath, subject to exception as provided in Sub-section (1) of Section 82. Originally, the Act of 1960 provided such land vests in the Panchayath and shall be subject to its control. By an amendment made with effect from 1.11.1967 by Act 22 of 1987, it was provided that such lands shall be transferred and vest in the Panchayath. Sub-section (1A) of Section 82 provides that, upon such vesting, the rights and liabilities of the State Government would be the rights and liabilities of the Panchayath. Sub-section (2) provides that, notwithstanding anything contained in Sub-section (1) or Sub-section (1A), the Government may, by notification in the Gazette, assume by administration of any public source of water supply and public land adjacent and appurtenant thereto after consulting the Panchayath and giving due regard to its objection, if any. Rule 4 of the Rules provides that immovable property vesting in, but no belonging to a Panchayat, shall not be transferred nor changed in contravention of the conditions subject to which such property became vested in the Panchayat. Rule 5 deals with a transfer except by way of lease of any immovable property belonging to the Panchayath and requires that it shall only be done with the previous sanction of the Director.

The learned Government Pleader contends on behalf of the State that the judgment of the learned Single Judge is erroneous and that the order of the State Government (Ext. P12) should be upheld. The learned Government Pleader urges that, as far as the river (SIC) land is concerned, it is vested in the Government by reason of Section 3 of the Kerala Land Conservancy Act 1957 and, notwithstanding the provisions of Section 82 of the Kerala panchayath Raj Act 1960, there is no absolute power of disposal which the Panchayath gets over such land. The contention is that even if the land was become vested in the Panchayath u/s 82(1), it shall always be subject to the control of the State Government. Rules 3, 4 and 5 make it clear that such lands are always be subject to the control of the State Government and also subject to such condition that the State Government may deem fit to impose, in the submission of the learned Government Pleader.

Sri. Mathai M. Paikeday, learned Sr. counsel for the first respondent, however, brought to our attention the amendment carried out by Act 22 with effect from 1.11.1967. In view of the amendment, Panchayath is the absolute owner of such vested immovable property. This was not the situation which obtained before 1.11.1967. Whatever be the historical reasons, the amendment as it stands suggests that the land has become the absolute property of the Panchayath. Mr. Paikadayt is, therefore, justified in his contention that once the land has become absolutely vested in the panchayath, the Panchayath has a right of disposal over it. He also pointed out that Rule 4 was brought on the Statute book in the year 1963 along with the parent Act but has remained unamended despite amendment of the parent Act. This contention is perfectly justified, in our view. The result, therefore, would be that, with regard to the land vested in the Panchayath, the distinction made earlier between immovable property acquired by the panchayath and the immovable property vested int he Panchayath is removed. Rule 5 merely requires the Panchayath to obtain previous sanction of the Director before making any transfer except by way of lease of any immovable property belonging to the panchayath.

It is trite law that the statutory discretion vested in a public authority has to be exercised for good reasons which are relevant and germane to the issue being considered. The Director of Panchayath cannot refuse to grant sanction to an application made by the panchayath under Rule 5 for capricious or irrelevant reasons. The Government Pleader is right in contending that immovable property vested in a public body, even absolutely, cannot be disposed of for a purpose other than the purpose for which a public body has been established. This contention may be correct, but it is the public body which has to be satisfied that the disposal of the immovable land is in furtherance of its objectives. Ultimately, such public body would be the best judge of its own interest, unless the facts and circumstances show that the disposal is vitiated on account of any extraneous factors.

In the present case, it is the Panchayath which was the owner of the land in issue. The land was in adverse possession of the first respondent and his predecessor in interest for almost a century. The Panchayath also is under an obligation to ensure that the river banks are suitably protected so that the properties of the adjacent owners are not prejudicially affected by the force of the water flow in the river. Protection of the Moonnilave Vakakkad bridge was also the primary responsibility of the Panchayat. If the Panchayath bonafide came to the conclusion that all these objectives could be met, and that it would be in the over all interest of the Panchayath to assign 11.5 cents of land to the first respondent upon payment of a proper price, we do not think that the Panchayath acted in any arbitrary manner or for irrelevant reasons or that the decision taken by the Panchayath is vitiated by any extraneous considerations.

We notice that the order Ext. P12 has actually been passed by the Government. We assume that the Government was actually exercising the powers of the Director of Panchayath. The State Government can refuse sanction only on strong, material grounds. The reasons given in Ext. P12 for rejecting the request can be summarised as follows:-

It is the responsibility of the Panchayath to protect the river banks from soil erosion by planting Bamboo and similar vegetation on the puramboke land

The assignment of land of the first respondent is only for better enjoyment of the puramboke land.

If the request is allowed, there is a possibility of similar request from the other lands owners.

There is no provision for assigning river puramboke land to an encroacher under the Panchayath Raj Act, 1994.

We find the Government has acted wholly on irrelevant and extraneous considerations. In the first place, there is no consideration as to how the land which was already under adverse possession could have been resumed by the Panchyath. Secondly, for the protection of the river banks form soil erosion it was the offer of the first respondent that he would construct protective walls and take necessary measures which would benefit the land occupied by him. The next ground is that if such assignment was allowed there would be similar request from other land owners, which is irrelevant. Finally, the ground that there is no provision under the Panchayath Raj Act, 1994 for assignment of river puramboke land to encroachers, which is unnecessary. Thus, we are not satisfied that reasons given in the order (Ext. P12) for refusing to assign 11.5 cents of land of the first respondent are germane or based on any relevant considerations. In the circumstances, the learned Single Judge was justified in directing the Director of Panchayath to implement the resolution unanimously passed by the Panchayath. We see no reason to interfere with the judgment of the learned Single Judge. This Appeal is dismissed. No order as to costs.

The appellants shall implement the judgment of the learned Single Judge, within three months from today.