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Purappuzha Panchayat Vs. the State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberOriginal Petn. No. 4108 of 1969
Judge
Reported inAIR1972Ker241
ActsKerala Panchayats Act, 1960 - Sections 62; Kerala Panchayats (Amendment) Act, 1960
AppellantPurappuzha Panchayat
RespondentThe State of Kerala and ors.
Appellant Advocate V. Sivaraman Nair, Adv.
Respondent AdvocateGovt. Pleader
DispositionPetition dismissed
Cases ReferredMeenachil Panchayat v. Chacko Devassia
Excerpt:
- - p-4 proceeds on the basis that district roads do not vest with the panchayat apparently by virtue of the provision in section 62 (1) as amended by act 22 of 1967. he failed to note that (this amendment can take effect only from 1-11-1967 and the auction took place before that date......extracted in an appendix* to this judgment.* appendixsection62 before amendment:'62. vesting of public roads in pan-chayats.-- (1) all public roads in any pancha-yat area other than roads classified as national highways, state highways and the roads of the malabar district board, shall vest in the panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.(2) the government may at any time, by notification in the gazette, exclude from the operation of this act any such public road, sewer, drain, drainage.....
Judgment:
ORDER

P. Govindan Nair, J.

1. The Question, briefly stated, that arises for decision depends on the construction to be Disced on Section 62 of the Kerala Panchavatfi Act. 1960. This section was amended bv Act 22 of 1967 the Kerala Panchavats (Amendment) Act, 1967 which came into force on 1-11-67. For resolvins the controversy in this case, it is necessary to read the section as it stood before it was amended bv Act 22 of 1967 and to read the section after it was so amended. The sections before and after the amendments are extracted in an appendix* to this judgment.

* APPENDIX

Section

62 Before Amendment:

'62. Vesting of public roads in Pan-chayats.--

(1) All public roads in any Pancha-yat area other than roads classified as National Highways, State Highways and the roads of the Malabar District Board, shall vest in the Panchayat together with all pavements, stones and other materials thereof, all works, materials and other things provided therefor, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the Panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.

(2) The Government may at any time, by notification in the Gazette, exclude from the operation of this Act any such public road, sewer, drain, drainage work, tunnel or culvert and may also modify or cancel such notification, and thereupon they shall revest in Government.

(3) The Government may at any time by notification in the Gazette, order the vesting of any public road or class of public roads in a Panchayat and thereupon notwithstanding anything contained in sub-section (1) such road or roads shall vest in the Panchayat.'

After Amendment:--

'62. Vesting of public roads in Pan-chayats.--

(1) All public roads in any Panchayat area other than roads classified as National Highways. State Highways or district roads, shall stand transferred to. and vest, in the Panchayat together with all pavements, stones and other materials thereof, all works, materials and other things, provided therefor, all sewers, drains, drainage works, tunnels and cul-verts, whether made at the cost of the Panchayat fund or otherwise, in, alongside or under such roads, and all works, materials and things appertaining thereto.

1-A. Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under Sub-section (1) or Sub-Section (3) shall, from the date of such vesting, be the rights and liabilities of the Panohayat.

(2) Notwithstanding anything con-tamed in sub-section (1) or Sub-section (1-A), the Government may at any tune, by notification in the Gazette, exclude from the operation of this Act any such public road, sewer, drain, drainage work, tunnel or culvert and may also modify or cancel such notification, and thereupon they shall revest in Government.

Provided that, before issuing such a notification, the Government shall consult the Panchayat concerned and give due regard to its objections, if any;

(3) The Government may, by notifi-cation in the Gazette, order the transfer to, and vesting in, a Panehayat, of any public road or class of public roads in the Panchayat and thereupon such road or roads shall, notwithstanding anything contained in sub-section (1), but subject) to the other provisions of this Act, stand transferred to. and vest in, such Panchayat.'

2. Regarding the effect of Sec tion 82 (1). which was similarly worded as Section 62 (1) before both sections were amended (S. 82 was also amended by Act 22 of 1967). a Division Bench of this Court in Writ Anneal 22 of 1969 Meenachil Panchayat v. Chacko Devassia reported in 1971 Ker LT (SN) 46 held that the 'vesting' under that section was only; for the purpose of maintenance and control. This means that the property doea not stand transferred to the Panchavat and all rights and liabilities in relation to the properties also do not stand transferred to the Panchavat. There can be little doubt that after the amendment by virtue of the wording of Section 62 (1) as amended and by virtue of the clarification in Sub-section (lA) of Section 62 the ownership will itself stand transferred along with all rights and liabilities to the Panchavat. There is no doubt that this must happen with effect from 1-11-67 the date on which the amendment came into operation. The question is whether by virtue of Sub-section (1A) of Section 62 It. is right to assume that there has been a transfer and vesting not from 1-11-67 but from 1-1-1962 as was thought of by Mathew. J, in disposing of the controversy between the petitioner Panchayat and the State Government on a former occasion by Ex. P-3 judgment. Counsel for the petitioner contends that by virtue of the wording of sub-section fl-A) of Section 62 it is clear that the rights and liabilities stood transferred with effect from 1-1-1962. In support of this it was submitted that the word 'Vest' was used in Section 62 (1) as it stood before the amendment and therefore It must be taken that Section 62 (1-A) when it refers to 'such vesting' it was referring to the vesting under the amended Act and therefore the rights and liabilities in relation to the properties stood transferred with effect from 1-1-1962. I find it difficult to accept this argument. Section 62 (1-A) only clarifies what is meant by 'vesting' under the Section. Section 62 (1-A) has admittedly no retrospective effect. It cannot therefore possibly refer to a vesting before 1-11-1967.

3. In the above view, I need not enter into the controversy in this case as to whether the district roads are exempt from the vesting under Section 62 (1) or not for I shall assume that before the amendment was introduced by Act 22 of 1967 the district roads too stood vested with the Panchayat. This vesting however can only be a vesting for maintenance and control and cannot give the right to sell the trees standing on the property as has been done by the Panchayat. Since the auction took place before 1-11-1967, it has to be determined Whether the Panchayat had any right at that time to auction the trees. From What I have Stated above, the Panchayat did not get any right to the trees because the amendment became effective only from 1-11-1967. I see therefore no reason to interfere with the order of the Collector, Ext. P-4.

4. I might add that Mathew, J. did not decide the question by Ext. P-3 Judgment but only directed the Collecfor to deal with the matter. I must further state that the order of the Collector Ext. P-4 proceeds on the basis that district roads do not vest with the Panchayat apparently by virtue of the provision in Section 62 (1) as amended by Act 22 of 1967. He failed to note that (this amendment can take effect only from 1-11-1967 and the auction took place before that date. Nevertheless since the Panehayat had no right to the trees at the time they were auctioned I see no grounds to Interfere. I dismiss this petition. There will be no order as to costs.


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