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2018 Supreme(Ker) 831
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SHAJI P.CHALY, J.
Abdurahiman Nagar Grama Panchayath, A.R. Nagar, Malappuram District, Represented By Its Secretary - Appellant
Versus
The District Medical Officer, Malappuram District and Ors - Respondent
WP(C).No. 23877 of 2015
Decided on : 27-11-2018
Advocate Appeared:
For the Appellant : Sri.Harish R. Menon Sri.K.T.Shyam Kumar Advs.
For the Respondent: Sri. Paul Abraham Vakkanal, Government Pleader Sri.K.P.Sudheer Sri.Arun Mathew Vadakkan Advs.
IMPORTANT POINT
What is transferred to the Panchayat is management and maintenance of such institutions and such institutions will remain in the name of the Panchayat-The Government of Kerala has made Rules with respect to acquisition and disposal of property within the jurisdiction of the Panchayat by introducing Kerala Panchayat Raj (Acquisition and Disposal of Property) Rules, 2005, wherein the Panchayat is vested with powers for the disposal of the property owned by it by sale, with the permission of the Government and the formalities contemplated thereunder.
Headnote:The Kerala Panchayat Raj Act, 1994 -, Sec.166(6) -Sec.167-The functions, institutions or works, as may be prescribed by the Government, the District Panchayat or Block Panchayat may transfer to the Village Panchayat, the management and maintenance of any institution etc. etc., and as per sub-section (2) thereunder, the Government may, in addition to the powers and functions mentioned in the provisions of Act, 1994, as exercisable by the Village Panchayat authorized by general or special order, subject to such rules and conditions as may be prescribed, carry on the activities of various Institutions including medical, public health, child welfare etc. etc.-The Panchayat by itself has no power vested with it to transfer any property belonging to the Government.
Facts of the case:
Writ petition is filed by the petitioner Panchayat seeking to declare that the alleged order purported to have been issued by the 1st respondent which gave leverage to respondents 2 to 5 and their men are without authority and illegal, and for a writ of mandamus directing the 1st respondent to stop the illegal construction started by respondents 2 to 5 in the property having an extent of 1.97 acres situate in Re survey No.514/1 of A.R. Nagar Village, in pursuance to the alleged order purported to have been issued by the 1st respondent.
Findings of the Court
The Panchayat by itself has no power vested with it to transfer any property belonging to the Government-The Panchayat could not transfer the property in accordance with the provisions of the Act and the Rules, to the Fire Department. Anyhow, the attempt of the Panchayat was to start a Fire Force Unit within the Panchayat area. In fact, the Medical Officer had transferred only 3 cents of property to the Anganwadi for the construction of a shed, and that too, for a period of six months-Direction to the additional 6th respondent to call for a meeting of the responsible officers of the Panchayat, the District Medical Officer and the officials of the Fire and Rescue Department within a month from the date of receipt of a copy of this judgment, and sort out the issue at the earliest, and at any rate, within two months thereafter.
Result: Writ petition is disposed of
1. This writ petition is filed by the petitioner Panchayat seeking to declare that the alleged order purported to have been issued by the 1st respondent which gave leverage to respondents 2 to 5 and their men are without authority and illegal, and for a writ of mandamus directing the 1st respondent to stop the illegal construction started by respondents 2 to 5 in the property having an extent of 1.97 acres situate in Re survey No.514/1 of A.R. Nagar Village, in pursuance to the alleged order purported to have been issued by the 1st respondent. Material facts for the disposal of the writ petition are as follows:
2. According to the petitioner, an extent of 1 Acre 97 Cents of land situate in the above specified survey number and Village is vested in the petitioner Panchayat. It is in the said property, the Primary Health Centre of A.R. Nagar Village is functioning. The 1st respondent is the authority in charge of all Primary Health Centres functioning in the District, and he is authorized to control, regulate and monitor the functions of Primary Health Centre and its staff.
3. The Panchayat Committee in its meeting held on 10.11.2014 had taken a decision as per Ext.P1 resolution to hand over 25 cents of land to start the Fire Station in A.R. Nagar. In pursuance of Ext.P1, the Additional Divisional Officer of Fire and Rescue Services, Malappuram inspected the property on 23.12.2014, evident from Exts.P2 and P3. In Ext.P3, certain modifications regarding the right of way were sought for by the Fire and Rescue Department. Thereafter, petitioner made request for obtaining the necessary documents in respect of the property having an extent of 25 cents from out of the extent of property specified above for the purpose of handing over the same to the Fire and Rescue Department. A true copy of the letter issued by the Commandant General of Fire and Rescue Services, Thiruvananthapuram dated 31.03.2015 is produced as Ext.P4, and the letter issued by the petitioner to the Village Officer, A.R.Nagar dated 20.07.2015 is produced as Ext.P5.
4. It is also submitted that, the entire documentary works for handing over the property to Fire and Rescue Department have been completed, and it was proposed to conduct an inaugural function of the Stone Laying Ceremony on 07.08.2015. According to the petitioner, the 3rd respondent owes allegiance to the opposition party of the State. All on a sudden, on 02.08.2015, at around 4 p.m., respondents along with certain other persons gathered in the above said property and started construction work therein without the knowledge and consent of the Panchayat authorities. A news item appeared in that regard in one of the vernacular daily dated 03.08.2015 is produced as Ext.P6. When petitioner made enquiries, it was informed that the 1st respondent has issued an order permitting the respondents 2 to 5 to construct an Anganwadi in the property. It is also pointed out that, the 1st respondent has not issued any orders to the Panchayat intimating the Panchayat to hand over the property to respondents 2 to 5 to make certain construction for Anganwadi in the property. It is also pointed out that, the action of the respondents are nothing but trespass into the property belonging to the Panchayat, and thereupon, a stop memo was given by the officer in charge of the Panchayat, directing the respondents to stop the illegal work. However, unmindful of the stop memo, respondents are proceeding with the work.
5. Respondents 2 to 5 have filed a detailed counter affidavit, refuting the allegations and claims and demands raised by the petitioner. The maintainability of the writ petition is challenged. That apart, it is submitted that, Exts.P1 to P5 documents are self-serving documents which will not confer title to the writ petitioner in respect of the property in question. It is also submitted that, the decision taken by the Panchayat Committee to hand over the property to the Fire and Rescue Department is illegal, and th
