PAYYANNUR PANCHAYAT v. STATE OF KERALA — 1976 DIGILAW 221 (KER)

Judgment :- 1. The petitioner is the Payyannur Panchayat, represented by its President. This is a Special Grade Panchayat comprising the Payyannur village which is a prosperous and fast growing trade centre for the hill produce of the neighbouring areas. There is a Government High School which is stated to be one of the largest in the State. There are 70 buses starting from Payyannur, and 60 taxi cars, vans etc. operate from there. It is stated that this Panchayat is soon likely to be declared a Municipality. There is a bus stand in Payyannur, but there is no taxi stand. There have been growing demands for a taxi stand. The taxis are at present parked in the street causing congestion and interruption in the free flow of traffic, as a result of which the public and the pedestrians in particular, are greatly inconvenienced. 2. As early as 1971 a resolution was adopted by the Panchayat to acquire land for the purpose of constructing a taxi stand. It is alleged that, owing to political pressure, this resolution could not be put into effect. On 28 41975 a resolution (Ext. P1) was adopted by a majority of 7 against 3 to acquire 50 cents of land in R.S. No. 65/8 belonging to the 3rd respondent. Pursuant to this resolution a letter was addressed by the Special Grade Executive Officer of the Panchayat to the District Panchayat Officer requesting for sanction of the site proposed. On 2 41975, much to the surprise of the petitioner, a letter (Ext. P4) was received by the Executive Officer from the District Panchayat Officer stating: "In the letter cited IInd the Government have ordered to drop the land acquisition proceedings under reference. Therefore the Panchayat may be advised accordingly." The letter cited is Ext. P5 dated 13 31976 sent by the Government to the 3rd respondent stating that instructions have been issued to the concerned officers to abandon all steps for the acquisition of the property. The petitioner has approached this Court praying for a writ of certiorari to quash Ext. P5 and for a direction to the 2nd respondent to dispose of Ext. P2 according to law. 3. The petitioner's counsel contends that the District Panchayat Officer, the 2nd respondent, has abdicated his statutory function. The petitioner has approached this Court praying for a writ of certiorari to quash Ext. P5 and for a direction to the 2nd respondent to dispose of Ext. P2 according to law. 3. The petitioner's counsel contends that the District Panchayat Officer, the 2nd respondent, has abdicated his statutory function. The statute has conferred upon him the power to decide whether or not the site proposed to be acquired by the Panchayat is suitable for the purpose. This is a power which he must exercise by a proper application of his mind and he is not entitled to act at the bidding of the higher authorities. The petitioner has also alleged that the 3rd respondent had approached the Minister for Local Administration who happens to belong to a political party with which the 3rd respondent is affiliated. According to the petitioner, the Minister was influenced by the 3rd respondent, and consequently the Minister has acted mala fide in bringing pressure upon the concerned authorities. The Minister has filed an affidavit denying the allegations against him personally. 4. I may at the outset state that none of the allegations made personally against the Minister has any basis whatsoever, and I propose to say no more on it. 5. I shall now refer to the relevant statutory provisions. S.57 of the Kerala Panchayats Act, 1960, says: "57. Duties and functions of Panchayats. (1) x x x (2) Subject to the provisions of this Act and the rules made thereunder a Panchayat may also, within the limit of its fund and wherever possible with Government aid, make reasonable provision for carrying out the requirements of the Panchayat area in respect of the following matters, namely: (vi) Public Works x x x (i) the opening of and maintenance of...cart stands " S. 91 of the Act says: "Public landing places and cart-stands, etc. Subject to such rules as may be prescribed, the Panchayat may (a) provide... cart-stands" (this expression includes stands for vehicles of any description). (b) x x x Provided that the previous sanction of the Collector shall be obtained before any stand or halting place for motor vehicles is opened." The Panchayat may, within the limits of its funds, make reasonable provision for providing cart stands which expression includes taxi stands. cart-stands" (this expression includes stands for vehicles of any description). (b) x x x Provided that the previous sanction of the Collector shall be obtained before any stand or halting place for motor vehicles is opened." The Panchayat may, within the limits of its funds, make reasonable provision for providing cart stands which expression includes taxi stands. It is however necessary, as laid down in the proviso to S.91, that the previous sanction of the District Collector is obtained before a taxi stand is opened. 6. The duties and functions of a Panchayat have to be carried out in accordance with the rules prescribed. S.129(2) says that the Government may make rules "xii. as to the conditions on which property may be acquired by a Panchayat..." These conditions are prescribed under the relevant rubs. 7. I shall now refer to the Kerala Panchayats (Acquisition and Transfer of Immovable properties) Rules, 1963, for short, the Acquisition Rules, which have bean made in exercise of the power under S.129 R.3 says: "Acquisition of immovable property. (1) A Panchayat shall not acquire any immovable property unless the following conditions are satisfied namely: (a) that the property is approved by the District Panchayat Officer as suitable for the purpose for which it is intended (italics supplied) A Panchayat is entitled to acquire property for the purpose of carrying out the duties and functions mentioned in S.57 and 91. But no immovable property shall be acquired until the District Panchayat Officer has given his approval regarding its suitability for the purpose. Apparently it is in accordance with this provision that Ext. P2 was addressed to the District Panchayat Officer. 8. The Kerala Panchayats (Landing Places, Halting Places and Cart Stands) Rules, 1964, for short, the Cart Stands Rules, were made by the Government in exercise of the powers conferred by S 91 and and 92 of the Panchayats Act. R.3 thereof says that when a Panchayat proposes to erect a stand in a particular site, the public shall be notified of such proposal and be given an opportunity for raising objections to it. These objections have to be considered by the Panchayat. In the case of a stand for motor vehicles, the Panchayat will further have to forward the proposal, with the objections together with the necessary particulars, to the Deputy Director for his sanction. These objections have to be considered by the Panchayat. In the case of a stand for motor vehicles, the Panchayat will further have to forward the proposal, with the objections together with the necessary particulars, to the Deputy Director for his sanction. The Deputy Director shall not accord sanction without obtaining the previous sanction of the Collector regarding the proposal. Before according such sanction the Collector is obliged to consult the Regional Transport Authority and shall have due regard to the recommendations of that Authority. This is the procedure laid down under rules for finalising a proposal to acquire land for the purpose of constructing a taxi stand. 9. The Panchayat may acquire the land proposed to be utilised for erecting a taxi stand either through the machinery under the Land Acquisition Act, or by private purchase or free surrender (see S.65 of the Panchayats Act). Before the land is acquired by any of these means, the proposal for such acquisition has to be properly processed in accordance with the procedure mentioned above. It means that the Panchayat has to adopt a resolution for this purpose. The site proposed has to have the approval of the District Panchayat officer as provided under R.3(a) of the Acquisition Rules. Having obtained his approval, the proposal has to be placed before the public in order to give it an opportunity to raise objections and such objections have to be considered and a decision taken by the concerned authorities in accordance with the procedure laid down in the Cart Stands Rules. It is only at this stage that the proposal of the Panchayat can be regarded as having been finalised Once that stage is reached and sanction for the proposal has been accorded, the Panchayat may proceed to acquire the land in the manner provided under S.65 of the Act, i. e., by requesting the Government to acquire the land under the Land Acquisition Act, or by means of private purchase or free surrender. 10. S.3 of the Kerala Land Acquisition Act, 1961, enables the Government or the Collector to acquire the land for the purpose of the Panchayat on the basis of its proposal whenever it appears to the Government or the Collector that it is appropriate to do so. (See also S.55 of the said Act). 10. S.3 of the Kerala Land Acquisition Act, 1961, enables the Government or the Collector to acquire the land for the purpose of the Panchayat on the basis of its proposal whenever it appears to the Government or the Collector that it is appropriate to do so. (See also S.55 of the said Act). These provisions thus clearly indicate that the Government is concerned with the question of acquisition of land for the Panchayat only when a proposal has been placed before it in the manner indicated above. When such a proposal, which has been finalised according to the procedure laid down under the rules, is placed before the Government, the Government will have to, on the basis of the materials available to it, apply its mind to the question and decide as to whether or not the power under S 3 of the Land Acquisition Act should be exercised. It is only at that stage that the Government comes into the picture. This is a power conferred upon the Government by the statute and that power has to be exercised in the manner laid down under the statute. The Government cannot anticipate the merits of the proposal. It has to wait till a proposal is received in due course and then make up its mind on the basis of the available material. Once a proposal has passed through the statutory channels, a refusal of the Government to exercise its power under the Land Acquisition Act would not stand in the way of the Panchayat acquiring the land by private purchase or free surrender, in order that it may, as a representative body, carry out its statutory functions and responsibilities. 11. As indicated earner, the function of the District Panchayat Officer is only to give his approval as regards the site proposed to be acquired. This is a power which he has to exercise independently, for, this power is conferred upon him under the statute. He cannot abdicate his power and passively carry out a decision arrived at in advance by the authorities above him. He is not concerned with the validity or the wisdom of the decision of the Panchayat to acquire a land for the purpose of erecting a taxi stand. He is only concerned with the suitability of the particular land proposed to be acquired for the purpose. He is not concerned with the validity or the wisdom of the decision of the Panchayat to acquire a land for the purpose of erecting a taxi stand. He is only concerned with the suitability of the particular land proposed to be acquired for the purpose. If in his opinion the site proposed is unsuitable, he may refuse to grant his approval. It is only after he has given his approval that the resolution of the Panchayat can be put through the procedure mentioned in the Cart Stands Rules. 12. In the instant case, the stage for placing the proposal before the Deputy Director in accordance with the Cart Stands Rules had not been reached, for, the approval of the District Panchayat Officer under R.3 of the Acquisition Rules had not been obtained. 13. Shri Narayanan Poti appearing for the 3rd respondent con tends that the Acquisition Rules have no application to a proposal to acquire land for a taxi stand, as such acquisition is governed exclusively by the Cart Stands Rules. According to him the Panchayat ought to have invited objections from the public in accordance with the Cart Stands Rules, and placed the objections together with the proposal before the Deputy Director. He also contends that the Government, under the Land Acquisition Act, has a discretion to decide as to whether or not the land needs to be acquired for the purpose of the Panchayat. It is futile on the part of the District Panchayat Officer to accord sanction for the site proposed when the Government has already made up its mind against the proposal. It is further contended that in any case the Panchayat has no locus standi to initiate proceedings under Art.226 of the Constitution as the requirements of the Kerala Panchayats (Restriction on Litigations) R.1966, have not been satisfied. He relies on R.2 which says: "No suit, petition or complaint shall be filed by a Panchayat in a Court of Law without being authorised by a resolution duly passed by the Panchayat: " Counsel submits that no such resolution has been adopted by the Panchayat. 14. As I stated earlier, the procedure under R.3 (a) of the Acquisition Rules has to precede the procedure under the Cart Stands Rules. 14. As I stated earlier, the procedure under R.3 (a) of the Acquisition Rules has to precede the procedure under the Cart Stands Rules. In the instant case the District Panchayat Officer not having exercised the power under R.3 (a), the question of inviting objections from the public has not arisen. 15. I see no merits in the contention that the Acquisition Rules do not apply to a case of acquisition for the purpose of cart stands. The Acquisition Rules are made in exercise of the power under S.129 regarding, inter alia, the conditions on which immovable property may be acquired by a Panchayat, and these rules apply to land acquired for all purposes, including taxi stands, although in the case of acquisition for taxi stands, the proposal of the Panchayat has to be subjected to the procedure laid down under the Cart Stands Rules before it is submitted to the Government for acquisition under the Land Acquisition Act or before the Panchayat acquires it by private purchase or free surrender The Cart Stands Rules do not operate until the District Panchayat Officer has approved the site under the Acquisition Rules. 16. The contention that it would be futile for the District Panchayat Officer to give his approval in view of the unfavourable decision of the Government, arrived at in advance, is totally devoid of merits and opposed to all canons of jurisprudence. The Government is not concerned with the proposal until it has been processed through the machinery provided under the Acquisition Rules and the Cart Stands Rules. Once the authorities under these Rules have accorded sanction for the proposal, the Government may refuse to acquire the land for the Panchayat under the Land Acquisition Act, but cannot stand in the way of the Panchayat acquiring the land by other means. 17. When the statute has conferred a power upon the Government, that power has to be exercised strictly in accordance with the statute. Ours is a Government of laws and being so, they must act in strict conformity with the statute. Where discretion is vested in the authorities under the statute, it shall not be interfered with by decisions from above and arrived at in advance. 18. As regards the challenge against the petitioner's locus standi, it may be pointed out that Ext. Ours is a Government of laws and being so, they must act in strict conformity with the statute. Where discretion is vested in the authorities under the statute, it shall not be interfered with by decisions from above and arrived at in advance. 18. As regards the challenge against the petitioner's locus standi, it may be pointed out that Ext. P6 resolution was adopted by the petitioner on 24 41976 resolving that the Government should be approached for taking necessary action in the matter of construction of the taxi stand and authorising the President of the Panchayat to take whatever step was necessary in that behalf. This resolution, in my opinion, sufficiently expresses the intention of the petitioner to take all necessary steps for such purpose. The expression 'Government' in the context in which it is used in the resolution need not be restrictively construed so as to mean only the 'Executive'. The Government, in the wider sense, means the State of which the judiciary is one of the three organs. In my view the resolution (Ext. P6) is wide enough to enable the petitioner to move this Court by means of a writ petition. 19. Ext. P4 letter of the 2nd respondent shows that he has not applied his mind and duly exercised bis statutory power. This letter therefore has no validity in law. Ext. P5 is a letter sent by the Government to the 3rd respondent stating that instructions have been given to the concerned authorities to drop the proposal. This letter is devoid of any value as the instructions mentioned therein are contrary to the statutory provisions, and can therefore be of no effect. 20. In my view, the 2nd respondent has an obligation to apply his mind to the suitability of the site proposed to be acquired, and pass appropriate orders. Failure to do so would be a failure to exercise the power vested in him. I therefore direct the 2nd respondent to consider Ext. P2 request upon its merits and pass appropriate orders as urgently as possible. With this direction, the Original Petition is allowed. The parties shall bear their respective costs. Allowed.