THOLUR PANCHAYAT v. DISTRICT COLLECTOR, TRICHUR — 1967 DIGILAW 146 (KER)

Judgment :- 1. The petitioner is the Tholur Panchayat and seeks to quash Ext. P2 notice of the 2nd respondent, the Revenue Inspector, Chittilapalli Firka, Trichur District. By the said notice, the 2nd respondent proposed to auction the right to cut down elevan dried-up cashewnut trees and the usufructs of 102 bearing cashewnut trees in 2 acres and 50 cents of Sy. No. 786 of Edakalathur Village for a period of one year (1966-67). At the hearing, it was common ground that the action taken by the 2nd respondent was on behalf of the 1st respondent and of the Government of Kerala. The petitioner's case is that the property in question belonged to the Panchayat and any dealing with by the same by the Government or its agents is unjustified and illegal. The claim was based on S.62, 64, 82 and 149 of the Kerala Panchayats Act 32 of 1960. Of this fasciculus of sections, S.64 and 149 appear to me to be most apposite and may conveniently be read: "64. Vesting of communal property or income in Panchayats. Any property or income which by custom belongs to or has been administered for the benefit of. the villagers in common, or the holders in common of village land generally or of lands of a particular description or of land under a particular source of petty irrigation shall vest in the Panchayat to be administered by it for the benefit of the villagers or holders aforesaid. 149. Panchayat to regulate the use of certain porambokes. (1) The Panchayat shall have power subject to such restrictions and control as may be prescribed to regulate the use of the land set apart for the common use of the community such as grazing grounds, burning and burial grounds and cartstands, provided that those lands are at the disposal of the Government. (2) The Collector after consulting the Panchayat, may, by notification, exclude from the operation of this Act any poramboke referred to in sub-section (1) and may also modify or cancel such notification. (3) The Panchayat shall also have power, subject to such restrictions and control as may be prescribed, to regulate the use of any other poramboke which is at the disposal of Government if the Panchayat is authorised in that behalf by an order of Government. (3) The Panchayat shall also have power, subject to such restrictions and control as may be prescribed, to regulate the use of any other poramboke which is at the disposal of Government if the Panchayat is authorised in that behalf by an order of Government. (4) The Panchayat may subject to such restrictions and control as may be prescribed, plant trees on any poramboke the use of which is regulated by it under sub-section (1)." 2. The land here in question is described in the impugned notice Ext. P3 as cattle grazing ground. It is admitted in the counter-affidavit filed on behalf of the respondents to have been registered as a cattle grazing ground according to the settlement effected in 1080 M. E., but it has been averred and contended that even though it was so registered, it was not being used as such, that the entire area was given on lease for food production in the year 1118 M. E. and that the land was not being used as a cattle grazing land for the last 24 years. The nature of the land itself is therefore in controversy. 3. Assuming that the land is a cattle grazing land, S.147 of the Act affords some indication that such land is to be regarded as land set apart for the use of the community. By S.64 such lands are to "vest" in the Panchayat. It was the petitioner's contention that the "vesting" of such lands in the Panchayat conferred rights of ownership of the lands on the Panchayat and that the auction proposed by Ext. P2 notice was destructive of the Panchayat's rights. That the expression "vests" occurring in statutes dealing with municipal and local administration does not necessarily and invariably connote a vesting in ownership but only a vesting in possession for the purpose of management and administration of the local or municipal authority, has been ruled from early times. It is enough to notice the early decision in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council (1. L. R.25 Mad. 635) and the recent decision of the Supreme Court in The Fruit & Vegetable Merchants Union v. The Delhi Improvements Trust (AIR. 1957 SC. 344). It is enough to notice the early decision in S. Sundaram Ayyar v. The Municipal Council of Madura and the Secretary of State for India in Council (1. L. R.25 Mad. 635) and the recent decision of the Supreme Court in The Fruit & Vegetable Merchants Union v. The Delhi Improvements Trust (AIR. 1957 SC. 344). These decisions accept that the content and amplitude of the term "vest" is to be gathered from the context and from the purpose of the enactment. S.64 of the Act, which provides for "vesting" of communal property in the Panchayat provides that the said vesting is "to be administered by it, for the benefit of the villagers or holders aforesaid." The context seems to me to afford sufficient indication that the 'vesting' is to be only for the purpose of administration by the Panchayat. There is also a comprehensive provision in S.3 of the Kerala Land Conservancy Act 1957 (Act 8 of 1958) which provides for all lands except those specifically excepted being the property of the Government. In the circumstances, I am of the view that the vesting of the property specified in S.64 of the Kerala Panchayats Act 32 of 1960 is not a "vesting" in absolute ownership, but only one for the purposes of management and administration. 4. But even so, as has been ruled in I. L. R.25 Mad. 635, the Panchayat seems to have a limited right of property in these lands, to enable to efficiently carry on the management and administration entrusted to it by the statute. For instance, if the land in question was a cattle grazing ground and its maintenance and administration as such vested in the Panchayat under the provisions of the Act, it is a matter for consideration how far the proposed auction under Ext. P2 would infringe the right of management and administration of the Panchayat and the limited right of property of the Panchayat in the land. The Government itself at one time seems to have entertained the view that lands falling within the purview of S.62, 64, 82, 84 and 149 of the Act, automatically vest in the Panchayat from 111962 and that there was no need for any formal transfer of the lands to the Panchayat. The petitioner has averred that this was clarified by the Government by G. O. No. 41702/L2/66/A & R. D. D. dated 29 91966. The petitioner has averred that this was clarified by the Government by G. O. No. 41702/L2/66/A & R. D. D. dated 29 91966. Counsel appearing for the respondents brought to my notice a copy of letter No. 59131/D4/66/RD dated 31-5-1967 from the Secretary to Government, (Revenue D. Department) communicated to the Revenue Divisional Officer, Trichur and to all Tahsildars for information. In the said letter, the Government stated that the true legal import of the term "vest" as used in the Kerala Panchayats Act 1960 was not correctly understood while issuing G. O. No. 41702 referred to above, and that they were advised that the term had only a limited meaning and is different from ownership. 5. In the present case, there is first the difficulty presented by the controversy as to the nature and character of the land. It was registered as a cattle grazing ground, and, according to the petitioner, continued as such, till date. The impugned notice Ext. P2 describes it as a cattle grazing ground. According to the respondents, from and after 1118 M. E. the land has not been used as a cattle grazing ground; so that on the date of the passing of the Kerala Panchayats Act 1960, it could not'vest' in the Panchayat as such, even for the limited purposes contemplated by the Act. This is a matter that should be investigated and settled. 6. Equally important is the other questions, as to whether the limited right of property which the Panchayat gets in the lands vested in it by the provisions of the Panchayat Act or even its right of management and administration of the land will be affected by the auction proposed by Ext. P2 notice. These aspects do not appear to have received attention or consideration at the hands of the Government at whose instance, it was admitted that the impugned notice was issued. 7. I am informed that the question arising is important and far reaching and has been raised at the instance of several Panchayats. In the circumstances, it seems to me but just and proper that the Government itself should consider and decide the various aspects of the question involved in this writ petition. 7. I am informed that the question arising is important and far reaching and has been raised at the instance of several Panchayats. In the circumstances, it seems to me but just and proper that the Government itself should consider and decide the various aspects of the question involved in this writ petition. Although the Government is not a party to this writ petition, counsel for the petitioner and for the respondents had no objection to this matter being considered and decided in the first instance by the Government. 8. I accordingly direct that no further action will be taken by the respondents in pursuance of Ext. P2 notice till the rights of the Government, and of the petitioner-Panchayat, if any, in respect of the land involved in this writ petition are decided by the Government, in accordance with law and in the light of the observations contained in this judgment. 9. The O. P. is allowed to the extent indicated above. I make no order as to costs. Allowed.