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IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Roy Abraham, S/o. N.I.Abraham – Appellant
Versus
State Of Kerala – Respondent
WP(C) NO. 12008 OF 2021
Decided on : 28-06-2021
Kerala Municipality (Acquisition and Disposal of property) Rules, 2000 – Kerala Municipality Act, 1994 – Section 214, 215, 368, 565 – Kerala Panchayat Raj Act – Kerala Land Relinquishment Act, 1958 – Kerala Land Relinquishment Rules – Misused funds – Maintenance of Roads – Issue a writ of mandamus or any other appropriate writ, order or declaration or direction, calling for records leading to Ext.P11 and quash same – Issue a writ of mandamus or any other appropriate writ or direction directing respondents 5 to 8 not to use public funds or own funds of Municipality for improving, concreting, tiling and maintenance of private roads, and pathways not opened on both sides to any public road or to a colony, unless that portion of land is assigned to Municipality by a registered document – Necessary and effective directions to respondents 5 to 8 to prepare and maintain asset register in accordance with Section 214 of Kerala Municipality Act, 1994 on complying all formalities and shall take effective steps to get title documents by registered deeds in respect of properties already included in asset register – Necessary and effective directions may be given to respondents 1 to 3 to issue necessary direction or order to all Panchayats, Municipalities and Corporations in State of Kerala to prepare and maintain asset register in accordance with law after complying all formalities and shall take effective steps to get title documents by registered deeds in respect of properties already included in asset register
Finding of the court:
Whenever a property is surrendered by its owner and Municipality has taken possession of property, Municipality becomes owner in possession of property and by virtue of entries made in Asset register/road register, it is a clear conferment of rights over property in favour of Municipality – It is also significant to note that even according to petitioner, properties were surrendered and taken possession by Municipality and has acted upon on basis of dedication and surrender by tarring /concreting and doing maintenance of roads – Court have no hesitation to hold that whenever a free surrender is made by owners of property, it is a clear dedication of immovable property in favour of Municipality and on Municipality entering properties in asset register/road register, it converts itself as a property in possession of Municipality which is not liable to be restored to owner under any circumstances – Moreover, as we have pointed out above, none of owners of property have come before this Court making any such claims. – Court do not think that petitioner has made out any case to interfere with Ext. P11 decision of Municipal Council and is also not entitled to get any other reliefs sought for in writ petition –
Result : Writ Petition Dismissed
Key Points: - The Court held that when a property owner free-surrenders property and the Municipality takes possession, the Municipality becomes the owner in possession, and entering the asset/road register constitutes conferment of rights in the Municipality, not to be restored to the owner under any circumstances (!) (!) (!) . - Section 214 of the Kerala Municipality Act, 1994 and Rule 3 of the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000 permit acquisition by purchase or private surrender, and make clear the Municipality may acquire immovable property through free surrender with vesting in the Municipality upon fulfilment of formalities (!) (!) (!) . - The petitioner's challenge to the validity of free surrender as a basis for ownership was rejected; the Court relied on prior judgments confirming that unconditional surrender, once accepted by the Municipality and entered in asset registers, vests rights in the Municipality and prevents restoration to owners (!) (!) (!) . - The Government notification exempting stamp duty and registration fees for land registered in favor of the Municipality does not alter the fundamental consequence of surrender and vesting under the Act and Rules (!) . - The Court directed maintenance and asset register preparation to be carried out in accordance with Section 214 and related provisions, and indicated that actions to authorise or direct Panchayats, Municipalities, and Corporations to maintain asset registers should be taken, though in this case the reliefs sought could not be granted (!) (!) . - The writ petition was dismissed, with no interference in Ext. P11 (Municipal Council decision) as to maintenance of roads, implying upheld municipal decisions to proceed with road works on assets registered as municipal property (!) (!) . - The decision relies on the principle that surrender of roads for public use, followed by municipal acquisition and asset registration, constitutes dedication of the land for public use and transfer of ownership rights to the Municipality, not subject to restoration to the owner (!) (!) (!) .
JUDGMENT :
SHAJI P. CHALY, J.
This is a Public Interest Litigation filed by the former Chairman of the Koothattukulam Municipality, Ernakulam District-5th respondent. According to him, he is a social worker and a public spirited person.
2. The grievance highlighted by the petitioner is that a number of mud roads open on both sides used by the general public are not maintained due to the paucity of funds, by the Municipality. Further case of the petitioner is that the funds were misused for concreting and maintenance of the private roads being influenced by interested persons and that certain private owners, who wanted to get their private roads either tarred or concreted, influenced the Councilors and on understanding got requests from the owners and on the basis of the same, the road will be included in the asset register of the Municipality illegally and after that tarring or concreting is being done.
3. Further, it is contended that the private owners are paying land tax on the property and they will not allow others to draw electric lines and pipelines through that road and even not allow others to use that road. The sum and substance of the contention advanced is that since it is an oral surrender by the owner, the Municipality is not getting ownership right over those properties and the respective owners will retain the properties in their ownership. One instance is also pointed out by the petitioner in regard to suits filed by the owners of the properties against the Municipality contending that there was no valid surrender of ownership and therefore, they were entitled to recover the property from the Municipality. It was also submitted that similar suits filed were considered by the Munsiff's Court, Muvattupuzha together and has rendered Ext. P4 common judgment in O.S. Nos. 390/2009, 160/2011 and 429 of 2015.
4. It is also submitted that on the basis of the application submitted before the Revenue Divisional Officer, Muvattupuzha, reply is given to the effect that since the Kerala Panchayat Raj Act does not contain a provision to acquire properties through the proceedings under the provisions of the Kerala Land Relinquishment Act, 1958 and the Rules thereto, acquiring properties by relinquishment is not possible. Therefore, according to the petitioner, the only alternative for the Municipality is to get conveyance by executing Sale deeds.
5. Learned counsel has also submitted that the issue was considered by a learned single Judge of this Court and has rendered Ext. P12 judgment in W.P.(C) No. 13047 of 2020 dated 25.09.2020 in the same subject within the limits of the Thekkumkara Grama Panchayat, Thrissur District. Therefore, according to the learned counsel for the petitioner, a free surrender would not confer ownership of the road properties on the Municipality and mere inclusion of the said properties in the asset register/road register of the Municipality will not confer title to the Municipality to carry out tarring or concreting or the maintenance work of the said roads.
6. It is also pointed out that the State Government has issued G.O.(P) No. 09/2020/TD dated 30.01.2020 exempting Local Self Government Institutions from paying the stamp duty and the registration fees for the registration of land and therefore, the Municipality is duty bound to secure sale deeds in respect of the properties surrendered from its owners. In the above factual backdrop, the following reliefs are sought for:
2. Issue a writ of mandamus or any other appropriate writ or direction directing respondents 5 to 8 not to use the public funds or the own funds of the Municipality for improving, concreting, tiling and maintenance of private roads, and pathways not opened on both sides to any public road or to a colony, unless that portion of land is assigned to the Municipality by a registered docum
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