Back
1999 Supreme(Ker) 514
Judges : A.R.LAKSHMANAN,S.SANKARASUBBAN
Anandan - Appellant
Versus
Dy.Director of Panchayats - Respondent
Case No : O.P. No. 12137 of 1998 etc
Decided On : 12/03/1999
Advocates Appeared :
K.P. Satheesan, K.K. Gopinathan Nair, Peeyus A. Kottam, M.R. Jayaprasad, N.V. Ajayakumar, K.K. Rajeev & S. Vibheeshanan For Petitioners Siby Mathew, A.A. Mohammed Nazir, Wilson Urmese, A. Chitra, V.M. Kurian, A.V. Thomas, Mathew B. Kurian & Government Pleader (P.K. Ravikrishnan) For Respondents
Headnote:
Kerala Panchayat Raj Act 1994- Section 206 - Transfer of Property Act 1882, Section 54 & General Clauses Act 1897 - Section 3(26) - Payment of the auction amount - Environment - Committee at its meeting - agreement - Right to collect river sand from the ear-marked portion of rivers in Panchayats in question is subject matter of these Writ Petitions - For giving said right Panchayats used to sell right to collect river sand from portions of rivers in respective Panchayats. Auction was conducted by the Panchayat for giving the right - In all these cases auction notice published by Panchayats were produced and marked as Exhibits-Held, close scrutiny of above judgments and rulings rendered by various Courts would clearly reveal that petitioners have purchased a right to remove river sand and there is incidence of purchase of immovable property and that their liability is to execute agreements in stamp paper of value of total bid amount - In this case right to collect and remove sand being - Petition dismissed.
Based on the provided legal document, the key points are as follows:
-
The right to collect river sand from designated portions of rivers within Panchayats is granted through a process of auction conducted by the Panchayats. The highest bidder is awarded the right, which is confirmed in a Panchayat meeting (!) .
-
The auctioned right involves the purchase of a "profit a prendre," which is a benefit arising out of land, and is considered an interest in immovable property. This right includes the authority to remove sand from specific portions of the river, which is attached to the land and thus classified as immovable property under applicable laws (!) (!) (!) .
-
The legal framework, including relevant sections of the Kerala Panchayat Raj Act and the Transfer of Property Act, indicates that such rights are subject to transfer duties and must be executed through registered instruments if their value exceeds certain thresholds. The right to remove sand, being an interest in land, falls within this category (!) (!) (!) .
-
The petitioners' contention that they only purchased a permit and not an interest in immovable property is not supported by legal interpretation. The right to extract sand is akin to a benefit arising out of land, and thus, it is regarded as immovable property, requiring execution of a proper registered agreement on a stamp paper of specified value (5% of the bid amount) (!) (!) (!) .
-
The execution of an agreement on a stamp paper of the specified value is a mandatory legal requirement for the transfer of such rights, and failure to comply with this requirement invalidates the transfer, preventing the petitioners from removing sand (!) (!) .
-
The interpretation of relevant statutes and legal principles confirms that rights to benefit from land, such as the right to remove soil or minerals, are classified as immovable property. Consequently, the provisions of the relevant laws regarding registration and stamp duty apply accordingly (!) (!) (!) (!) (!) (!) .
-
The contention that the right to collect sand does not constitute immovable property is rejected, as the legal definitions and judicial interpretations establish that such rights, being benefits arising out of land, are inherently tied to immovable land and thus subject to the applicable transfer and registration laws (!) (!) (!) .
-
In conclusion, the court finds that the petitioners have purchased a right that qualifies as an interest in immovable property, and therefore, the agreement must be executed on a stamp paper of the prescribed value. The failure to do so results in the invalidity of their claim to remove sand, leading to the dismissal of the petitions (!) (!) (!) (!) .
-
Overall, the legal principles and statutory provisions affirm that rights arising from land, including those to extract minerals or soil, are to be treated as immovable property, and adherence to registration and stamp duty requirements is mandatory for valid transfer or grant of such rights.
A.R. Lakshmanan, J.
The auction purchasers are the petitioners in the above Original Petitions. The contesting respondents in these Writ Petitions are the Grama Panchayats of different areas.
2.The right to collect river sand from the ear-marked portion of the rivers in the Panchayats in question is the subject matter of these Writ Petitions. For giving the said right, the Panchayats used to sell the right to collect river sand from the portions of the rivers in the respective Panchayats. Auction was conducted by the Panchayat for giving the right. In all these cases, the auction notice published by the Panchayats were produced and marked as Exhibits. As per the notification, the auction was conducted at the office of the different Panchayats on the dates mentioned. The petitioners offered the highest amount for purchasing the right. The auction was confirmed by the Panchayat Committee at its meeting. Thereupon the Secretary of the Grama Panchayat concerned informed the respective petitioners to execute the necessary agreement in a stamp paper worth of 5% of the total bid amount. The petitioners gave a reply that they may be permitted to execute the necessary agreement in a stamp paper worth of Rs. 50/-. In support of their contention, the petitioners placed reliance on an order passed by this Court in C.M.P. No. 21137/1998 in O.P. No. 12137/1998 allowing the petitioners therein to execute the agreement in a stamp paper worth Rs. 50/- instead off 5% of the bid amount. The Panchayat did not give any reply with regard to the execution of the agreement and, therefore, the petitioners could not remove the sand.
3. It is the contention of the petitioners that as per the terms of the auction, they are liable to execute an agreement in favour of the Panchayat and that the conditions contained in the agreement are mostly the condition for collection of river sandwithout affecting ecology and environment, payment of the auction amount in three instalments etc. and that the main purpose of executing an agreement is to give an undertaking before the Panchayat that the sand will be removed without committing any default; that the amount shall be remitted in time; that in case of any default, for cancellation of the licence, etc.
4.It is submitted by Mr. K.P. Satheesan, learned counsel for the petitioners, that what the petitioners have purchased is only a permit and that it is not an immovable property and will not come within the categories prescribed under S.206 of the Kerala Panchayat Raj Act. The relevant portion of S.206 reads as follows:
"206. Duty on transfer of property.- (1) The duty on transfer of property shall be levied (a) in the form of a surcharge on the duty imposed by the Kerala Stamp Act, 1959, on every instrument of the description specified below, which relates to the immovable property situated in the area under the jurisdiction of village panchayat; and
(b) at such rates as may be fixed by the Government not exceeding five per cent on the amount specified below against such instruments:
xxx xxx xxx
According to the learned counsel, the right purchased by the petitioners does not attract the description of the instrument as provided in S.206 and that the petitioners have purchased only the right to remove river sand and there is no incidence of purchase of immovable property involved and, therefore, the petitioners' liability is only to execute an agreement on stamp paper worth Rs. 50/- as provided under the Stamp Act. He also placed reliance on S.218(4) of the Act, which reads thus:
"218(4) - It shall not be lawful for any person to remove or appropriate for himself, any tree, earth, sand, metal, laterite, limeshell or such other articles of value as may be notified by the village panchayat from any land which is transferred to or vested in the village panchayat, under this Act, whether a poramboke or not, except under and in accordance with the terms and conditions of a permit issued by the village panchayat in
