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Tahsildar, Kanayannur Taluk Vs. Mrs. Lucy Eapen - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 275 of 1977
Judge
Reported inAIR1981Ker61
ActsKerala Land Conservancy Act, 1957 - Sections 5, 7 and 8; Cochi Municipal Act, 1113 - Sections 57
AppellantTahsildar, Kanayannur Taluk
RespondentMrs. Lucy Eapen
Appellant AdvocateGovt. Pleader
Respondent Advocate K.C. John,; K. George Varghese,; M.P.R. Nair,;
DispositionAppeal allowed
Cases ReferredMytheen Mohammed v. Board of Revenue
Excerpt:
.....municipal act, 1113 - writ appeal against order of court below - petitioner failed to show that land in question vested in municipality under section 57 of act - petitioner failed to proved terms of grant made by municipality in his favour - evidence adduced shows that respondent not committed any illegality or acted without jurisdiction - appeal dismissed. - - p 3 as well as the order passed by the 2nd respondent confirming it were liable to be quashed. pointing out these circumstances the appellants contend that the petitioner has totally failed to establish that she was in occupation of the land in question on the basis of any licence or permission granted to her by the ernakulam municipality or by the cochin corporation. p 3 and p 5 on the ground that the tahsildar had failed..........orders in that regard had been communicated to her as early as on 30-9-1967 pointing out that the land in question being a road poramboke could not be assigned to anybody.4. the petitioner thereupon took up the matter before the district collector, ernakulam (2nd respondent) reiterating the contentions urged by her before the tahsildar. that appeal was originally dismissed by an order dated 9-10-1971 which was signed by the personal assistant to the district collector. the validity of that order was challenged by the writ petitioner by filing o. p. no. 4932 of 1971 in this court, one of the principal contentions taken therein being that the appeal wherein arguments have been heard by the district collector ought not to have been disposed of by his personal assistant. this court accepted.....
Judgment:

Balakrishna Eradi, C.J.

1. Respondents Nos. 1 and 2 in O. P. No. 5481 of 1974 -- the Tahsildar, Kanayannur Taluk, Ernakulam and the District Collector, Erna-kulam respectively -- are the appellants in fhis appeal which has been tiled against the judgment of a learned single Judge of this court allowing the said writ petition and quashing the orders Exts. P-3 and P-5 impugned therein.

2. The parties will hereafter be referred with reference to their rank and array in the original petition.

3. Proceedings under the Kerala Land Conservancy Act, 1957 (for short the Act) were initiated against the writ petitioner by the 1st respondent in July, 1968 for unauthorised occupation of an extent of 4 cents 946 square links of poramboke land comprised in Survey Nos. 1803 and 1801/1 of Ernakulam Village. A notice in form 'B' was issued to the writ petitioner and in response thereto the writ petitioner appeared before the Tahasildar and filed a petition stating that her occupation of the said poramboke land was authorised by the Ernakulam Municipality and that she had been paying poramboke occupation fee to the Municipality. It was further submitted by her that the land was lying formerly as a part of a muddy pool and she has reclaimed it since it was essential for the benelicial enjoyment of her adjacent registered holding and that she had already submitted an application before the Collector in Feb., 1963 praying that the land may be assigned to her. On 11-4-1969 the 1st respondent (Tahsildar) passed the order Ext. P-3 rejecting the writ petitioner's contentions and holding the petitioner guilty of unauthorised encroachment under Section 5 of the Act. The petitioner was sentenced to pay a fine of Rs. 100/-under Section 7 of the Act and prohibitory assessment was levied at 5 times the single rate for the entire period of occupation under Section 8 of the Act. It was pointed out in the order that the application for assignment submitted by the petitioner to the Government on 15-2-1963 had been rejected and orders in that regard had been communicated to her as early as on 30-9-1967 pointing out that the land in question being a road poramboke could not be assigned to anybody.

4. The petitioner thereupon took up the matter before the District Collector, Ernakulam (2nd respondent) reiterating the contentions urged by her before the Tahsildar. That appeal was originally dismissed by an order dated 9-10-1971 which was signed by the Personal Assistant to the District Collector. The validity of that order was challenged by the writ petitioner by filing O. P. No. 4932 of 1971 in this Court, one of the principal contentions taken therein being that the appeal wherein arguments have been heard by the District Collector ought not to have been disposed of by his Personal Assistant. This Court accepted the said contention, set aside the order passed by the Personal Assistant to the District Collector and remanded the matter to the District Collector for fresh disposal in accordance with law. Thereafter the District Collector again posted the case for hearing on 15-10-1974 and the writ petitioner was heard through the advocate who appeared on her behalf. The District Collector upheld the finding of the Tahsildar that the encroachment was real and objectionable and that the petitioner was liable to be evicted. However, in regard to the petitioner's liability for prohibitory assessment the District Collector held that since the Corporation of Cochin had intimated that the licence granted by it had been cancelled on 28-1-1969, prohibitory assessment could be charged only from that date. Subject to the said modification the Tabsildar's order was confirmed and the appeal was dismissed. Ext. P 5 is a copy of the proceeding of the District Collector dated 20-11-1974 disposing of the appeal as above. The relief sought in the writ petition was that Exts. P 3 and P 5 should be quashed.

5. Before the learned single Judge the respondents had taken a preliminary objection that the petitioner had an alternative remedy by way of revision before the Board of Revenue under Section 16 (4) of the Act as against the appellate order Ext. P 5 passed by the Collector and hence the original petition had abated by virtue of the provision contained in Section 58 of the Constitution (Forty-second Amendment) Act, 1976 read along with Art. 226(3) of the Constitution. This contention did not, however, find favour with the learned single Judge. The learned Judge was of opinion that since the contention advanced by the petitioner was that the proceedings initiated against her under the Act were without jurisdiction respondents Nos. 1 and 2 would be acting without the authority of law in evicting the pell ioner from the property pursuant to the impugned orders Exts. P3 and P5 and that the petitioner's rights guaranteed under Article 19 of the Constitution would be affected.

6. On the merits of the case the learned single Judge took the view that the 1st respondent had initiated the proceedings without adverting to the relevant materials, such as the licence issued by the Municipality to the predecessor-in-interest of the petitioner and without considering the- question as to what rights the petitioner may have under the licence and the Rychit. In the opinion of the learned Judge by reason of the aforesaid defect the order Ext. P 3 as well as the order passed by the 2nd respondent confirming it were liable to be quashed.

7. A contention had been advanced by the writ petitioner that in view of the provision contained in Section 230 of the Kerala Municipal Corporation Act, 1961 laying down a special procedure for dealing with unauthorised occupation of lands vested in Municipal Corporation under Section 210 of the said Act, action for eviction could be taken only with the concurrence of the Municipal Corporation and since no such concurrence had been obtained by the respondents from the Municipal Corporation of Cochin the impugned proceedings were illegal and without jurisdiction. The learned Judge made a reference to an earlier pronouncement of his in Mytheen Mohammed v. Board of Revenue, 1974 Ker LT J34, concerning an analogous provision contained in the Kerala Pancnayats Act, 1960 and observed that there was force in the contention taken by the writ petitioner but added :

'However it is not necessary for me as already said to decide that question herein and the question whether Sections 210 and 230 of the Kerala Municipal Corporations Act, 1961 are attracted so far as this case is concerned.'

8. It is contended before us on behalf of the appellants that the property being admittedly poramboke land, in respect of which the petitioner herself had made an application to the Government praying for the grant of an assignment, which had, however, been rejected, and there being no material whatever placed before the court to show that it was a land vested in the Ernakulam Municipality (predecessor of the Municipal Corporation of Cochin) under Section 57 of the Cochin Municipal Act there was no illegality whatever involved in the action taken by the respondents as per Exts. P 3 and P5. It was further submitted by the Government Pleader appearing on behalf of the appellants that the learned Judge had erred in assuming that the petitioner had obtained a licence or permission from the Municipality. It is pointed out that the petitioner's own pleadings disclosed that the licence referred to by her was one granted by the Ernakulam Municipality in favour of one K. P. Cheekutty and it was the said person who had executed the kychit to the Municipality. The petitioner, who was residing Malaysia till 1968, claims to have derived the rights of Cheekutty by virtue of a transaction of transfer. It is further Submitted on behalf of the appellants that even if it is to be assumed that Cheekutty was in permissive occupation of the land on the basis of a licence issued to him by the Erna-kulam Municipality (the definite case of the appellants is that the poramboke land was not vested in the Ernakulam Municipality and hence the Municipality had no right whatever to grant any licence in respect of it) the law did not permit any transfer by the licensee of his rights under the licence which was purely personal in nature. The petitioner has not produced any copy of the grant said to have been made in favour of Cheekutty by the Ernakulam Municipality nor even a copy of the kychit said to have been executed by him to the Municipality. Pointing out these circumstances the appellants contend that the petitioner has totally failed to establish that she was in occupation of the land in question on the basis of any licence or permission granted to her by the Ernakulam Municipality or by the Cochin Corporation. Hence it is submitted that the learned Judge was not justified in setting aside the orders Exts. P 3 and P 5 on the ground that the Tahsildar had failed to advert to the question relating to the rights of the petitioner under the licence and kychit referred to by her.

9. After hearing both sides we have unhesitatingly come to the conclusion that the aforesaid contentions put forward on the side of the appellants have to be upheld. At the very outset it has to be stated that the petitioner has not succeeded in showing that the land in question is one that had become vested in the Ernakulam Municipality under Section 57 of the Cochin Municipal Act. Under the said section 'all public streets in any Municipality with the pavements, stones and other materials thereof and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts whether made at the cost of the Municipal fund or otherwise, in, alongside or under any street, whether public or private, and all works, materials and things appertaining thereto shall vest in the Municipal Council'. Section 210 is the corresponding provision in the Kerala Municipal Corporations Act. The learned Judge did not consider it neces-sary to decide the question whether Sections 210 and 230 of the Kerala Municipal Corporations Act are attracted so far as this case is concerned in view of the conclusion reached by him that the impugned orders were liable to be set aside on the ground that they had been passed by the respondents without considering the relevant materials. With respect, we consider that there is a fallacy in this reasoning. The materials referred to by the learned Judge as having been wrongly omitted to be considered by the respondents while passing the orders Exts. P 3 and P 5 are the licence and kychit relied on by the petitioner in support of her plea that the occupation of the land was on the basis of the permission granted by the Ernakulam Municipality and later by the Cochin Corporation and hence her occupation could not be regarded as unauthorised. Unless the petitioner establishes that the land in question is oae which had become vested in the Ernakulam Municipality the Municipality would have no competence at all to authorise any one to occupy the poramboke land by the grant of a licence or permission. The petitioner has totally failed to show that the land in question had become vested in the Ernakulam Municipality under Section 57 of the Cochin Municipal Act. From the averments contained in the original petition itself it is seen that the land in question was part of a muddy pool lying on the western side of the seventy feet road. It is, therefore, clear that the land was not part of a public street or its pavement or even the road margin. The petitioner herself had admittedly applied to the State Government praying for an assignment of the land in her favour, thereby treating the land as continuing to be vested in the Government and not in the Municipality. Even in her objection to the notice issued by the 1st respondent under the Act she had requested that the Government should assign the land in her favour. Admittedly, the property was Government poramboke land. No materials have been placed before us in proof of the petitioner's case that the land in question had become vested in the Ernakulam Municipality under Section 57 of the Cochin Municipal Act (corresponding to Section 210 of the Kerala Municipal Corporations Act).

10. Further, the petitioner has also not proved the terms of the alleged grant made by the Municipality in favour of Cheekutty whom she claims to be her predecessor-in-interest. From the petitioner's own pleading it clearly appears that the Ernakulam Municipality had only granted a licence in favour of the said Cheekutty and that the latter had executed a kychit. The petitioner has not produced any copy of the said kychit and no endeavour was also made by her to cause its production by the Commissioner, Corporation of Cochin (3rd respondent). The petitioner's case is that she has obtained a transfer of Cheekutty's right. If Chcckutiy was only in permissive occupation under a licence granted to him by the Municipality we fail to see how he could have legally effected a transfer of his rights as licensee in favour of the writ petitioner. No document relating to the alleged transfer has been produced on the side of the writ petitioner. None of those documents had been produced by the petitioner before the Tahsildar or the District Collector. In these circumstances, we consider, with respect, that the learned Judge was not right in taking tke view that the 1st respondent had committed an illegality in omitting to advert to tke question as to the rights claimed by the petitioner under the licence and the kychit. The petitioner was not a party to the licence or to the kychit and she could ordinarily derive no rights thereunder by virtue of a transfer. Further, as already pointed out she did not produce any materials before respondents Nos. 1 and 2 or even before this Court in support of the plea put forward by her that she was in permissive occupation Of the property on the strength of the transfer obtained by her of Cheekutty's rights as licensee under the Municipality.

11. Explanation IV to Section 3 of the Act which defines 'property of Government' clearly lays down that lands belonging to a Municipal Corporation shall be deemed to be the property of Government within the meaning of the said section. When there is an unauthorised encroachment on such a land which is statutorily declared to be property of Government for the purposes of applicability of the Act it is perfectly open to the authorities empowered to exercise powers under the Act to take appropriate action against the encroacher under Sections 7 to 12 of the Act. Since on the facts of this case we have held that the petitioner has failed to establish that the land in question is one which become vested in the Erna-kulam Municipality under Section 57 of the Cochin Municipal Act and later in the Municipal Corporation of Cochin, it is unnecessary for us to go into the question as to whether in the case of a land vested in the Municipal Corporation under Section 2 10 of the Kerala Municipal Corporations Act proceedings under the Act for removal of the encroachment cannot be taken without the concurrence of the Municipal Corporation. But, we must observe that there is prima facie force in the contention advanced by the Government Pleader that having regard to the clear provision contained in Explanation IV to Section 3 of the Act which was inserted by Act 11 of 1971 subsequent to the enactment of the Kerala Municipal Corporations Act, 1961 the view expressed in Mytheen Mohammed v. Board of Revenue, 1974 Ker LT 134, inquires reconsideration. In the decision in Mytheen Mohammed's case, 1974 Ker LT 134, no reference has been made to the provision contained in Expln. IV to Section 3 of the Act, probably because of the fact that the action impugned in that case had been taken prior to the enactment of the said Explanation. The question will have to be re-examined in the light of the said Explanation in a case where it directly arises for determination.

12. In the light of what we have stated above we hold that in passing the orders Exts. P 3 and P 5 the respondents cannot be said to have committed any illegality or acted without jurisdiction and hence no interference was called for with those orders. We accordingly allow this writ appeal, set aside the judgment of the learned single Judge and dismiss O. P. No. 5481 of 1974. The parties will bear their respective costs.

13. Immediately after the pronouncement of the judgment the learned advocate appearing for the 1st respondent in the writ appeal orally prayed under Article 154-A of the Constitution for the grant of a certificate under Art. 135 (1) (a) to enable his client to carry the matter in appeal before the Supreme Court. We do not, however, consider this to be a fit case for the grant of such a certificate since no substantial question of law of general importance is involved in this case. The prayer for the grant of the certificate is accordingly rejected.


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