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2021 DIGILAW 1083 (KER)

V. R. Anil Kumar v. Aluva Municipality

2021-11-25

SHAJI P.CHALY

body2021
JUDGMENT : Petitioner is a resident of 4th ward of the Aluva Municipality, the 1st respondent, and residing very near to the Government LP School, Thottakkattukara. 2. According to the petitioner, as the school was forced to be stopped on account of the dearth of required number of students, a part of the school building was given for the conduct of an Anganvadi. The said Anganvadi was functioning in the building, till it was shifted to the new building constructed with the aid of MLA fund in the same ward in the year 2005. In the other portion of the school building, 'Saksharatha Mission’ was functioning. 3. On the strength of Ext. P1 decision of the Municipal Council dated 18.11.2008 bearing No. XIX, the 2nd respondent, the Kerala State Centre for Advanced Printing and Training, Thottakkattukara, Aluva, started functioning by occupying eastern half of the premises of the school building, leaving the other half to be occupied by Saksharatha Mission. During the year 2013, activities of Saksharatha Mission had to be stopped, and thereupon the 2nd respondent started to occupy the whole building without concurrence and consent of the officers of the Saksharatha Mission or the 1st respondent Municipality. 4. Even though a complaint was launched against the 2nd respondent, no action was taken by the 1st respondent Municipality, and therefore the whole building is now occupied by the 2nd respondent unauthorizedly. 5. The Municipal Council of the Aluva Municipality has passed a resolution dated 05.07.2013, whereby it has been decided to utilize the balance portion of the school building to shift the Anganvadi No. 4 attached to ward No. 4 of the 1st respondent Municipality. 6. However the grievance of the petitioner is that the Aluva Municipality has not taken stern action in order to shift the Anganvadi to the erstwhile school building. Other legal contentions are also raised against the action of the 2nd respondent occupying the premises, relying upon the provisions of the Kerala Municipality Act and the vesting of the public properties in the municipality consequent to the introduction of the Municipality Act, 1994. It is also contended that as per Schedule I of the Kerala Municipality Act, 1994, the public properties are to be administered by the Municipality, and therefore the Municipality is the authority vested with powers for protection of the public property from encroachment and maintenance of the public properties. 7. It is also contended that as per Schedule I of the Kerala Municipality Act, 1994, the public properties are to be administered by the Municipality, and therefore the Municipality is the authority vested with powers for protection of the public property from encroachment and maintenance of the public properties. 7. Therefore according to the petitioners, the action of the 2nd respondent encroaching into the erstwhile school building is liable to be removed and the building shall be recovered for the purpose of running Anganvadi No 4 at ward No. 4, of the Municipality, which according to the petitioner is being conducted in a dilapidated structure. 8. The 2nd respondent has filed a detailed counter affidavit refuting the allegations made by the petitioner. Among other contentions, it is stated that it was on the basis of the resolution passed by the Aluva Municipal Council to release a portion of the closed down premises of the Government LP School, Thottakkattukara for running the sub center, the 2nd respondent occupied the premises with a condition that it would be given the vacant possession, when the Municipality requires the building in future. The Municipal Secretary, Aluva has forwarded the resolution to the Deputy Director of Education, Aluva, the 4th respondent, that the building was handed over to the 2nd respondent evident from Exts. R2(a) to R2(c). 9. It is submitted that after taking possession, the sub center started functioning in the building in question. It is further submitted that the building did not have any electric connection or water connection and everything had to be arranged by the 2nd respondent, after obtaining no objection certificate from the Aluva Municipality. 10. That apart it is pointed out that even though shifting of the center to the school premises was completed, the whole building was in a dilapidated condition and the 2nd respondent had to arrange the infrastructure facilities and basic amenities for the use of the staff, and the students undergoing various training programmes. 11. In fact the Nirmithi Kendra was entrusted with the maintenance works. Anyhow, during the construction of the compound wall, there was an objection from a nearby resident and a petition was received from five local residents evident from Ext. R2(h). Thereupon the District Educational Officer, Aluva as per Ext. 11. In fact the Nirmithi Kendra was entrusted with the maintenance works. Anyhow, during the construction of the compound wall, there was an objection from a nearby resident and a petition was received from five local residents evident from Ext. R2(h). Thereupon the District Educational Officer, Aluva as per Ext. R2(i) letter dated 16.01.2009, requested the Tahsildar Aluva to measure out the school properties and maintain it in such a way as not to lose the Government property. 12. However, according to the 2nd respondent, no action was taken to measure out the property, and thereupon the 2nd respondent requested the intervention of the Education Minister, and the Education Minister, as per Ext. R2(j) letter dated 29.10.2020, requested the Revenue Minister to take urgent steps to survey the compound of the Government School where the sub center was functioning. 13. It is also submitted that there was a proposal to accommodate Bharat Scouts and Guides at the other portion of the building, and thereupon it was brought to the notice of the then Education Minister as per Ext. R2(k) representation dated 08.10.2009, and based on the same, the Director of Education issued a proposal to the Government to issue orders handing over the premises to the 2nd respondent and it was pending consideration before the Government. 14. During the month of May 2012 a proposal was submitted before the Municipal Council to accommodate an Anganvadi within the area occupied by the 2nd respondent, based on an earlier decision of the Council, and it seems later also, discussions were made in the Municipal Council, with respect to accommodating the Anganvadi in the building in question. 15. The above said aspects were brought to the notice of the District Collector, Assistant Educational Officer, District Educational Officer, Deputy Director of Education and Director of Public Instructions as per Ext. R2(l) letter dated 13.09.2013, and in response to the same, the District Collector issued an order on 29.09.2013, directing the Municipal Council to maintain status quo in the matter, and submit their explanation before the District Collector within seven days. 16. The Education Department authorities have also informed the Municipal Council that it has no more authority in the closed down school building or in its properties. 17. Anyhow, the 2nd respondent has submitted Ext. 16. The Education Department authorities have also informed the Municipal Council that it has no more authority in the closed down school building or in its properties. 17. Anyhow, the 2nd respondent has submitted Ext. R2(m) representation dated 13.09.2013 before the Director of General Education, and based on the same, the Director of General Education submitted Ext. R2(n) report dated 28.10.2013, recommending to hand over the entire area to the 2nd respondent. 18. Based on the same, Government of Kerala, represented by the Secretary, General Education Department, by Ext. R2(o) order dated 12.11.2013, directed to retain the possession of the school building with the General Education Department and granted permission for the occupation of the entire building by the 2nd respondent. Thereupon the 2nd respondent has issued a letter to the District Collector, Ernakulam evident from Ext. R2(p) dated 21.11.2013 to direct the Aluva Municipality to remove all the name boards fixed by it in the building in question. 19. Therefore according to the 2nd respondent, 2nd respondent is in possession of the building with the permission of the State Government and the allegations contained in the writ petition that the 2nd respondent has encroached into the whole building can never be sustained legally or factually, and accordingly seeks dismissal of the writ petition. 20. The 5th respondent namely the Assistant Educational Officer, Aluva has also filed a detailed counter affidavit refuting the allegations and also in line with the counter affidavit filed by the 2nd respondent. 21. The 1st respondent Municipality has filed a counter affidavit wherein it is stated that the 2nd respondent started functioning in the premises as per the permission granted by the Municipality, however, later it has encroached into the remaining portion of the building occupied by the Saksharatha Mission, without the consent or approval of the Municipality, and installed machinery and continued to function in the Municipal building. 22. However on 05.07.2013, Council had decided as per its 5th resolution to shift Anganvadi No. 4 to the Government LP School, Thottakkattukara, and as per resolution dated 26.09.2013, the Municipal Council expressed its objection to the unauthorized occupation of the building, and according to the Municipality, the action of the 2nd respondent is unauthorized and they have no right to continue in the premises. These are the basic facts available for consideration of the case projected by the petitioners. 23. These are the basic facts available for consideration of the case projected by the petitioners. 23. I have heard learned counsel appearing for the petitioner Sri. R. Lakshmi Narayan, learned Senior Counsel appearing for the 2nd respondent Sri. K. Anand assisted by Sri. Vishnu and Sri. Jacob P. Simon, learned Government Pleader for the official respondents and perused the pleadings and material on record. 24. The elaborate discussion of facts made above would make it clear that the contention advanced by the petitioner is that the building is occupied by the 2nd respondent unauthorizedly by encroaching into the entire building, even though the 2nd respondent was permitted as per Ext. P1 resolution by the Aluva Municipality to occupy only a portion of the erstwhile school building. 25. However, it is clear from the documents produced by the 2nd respondent, especially Ext. R2(o) Government Order dated 12.11.2013 that the ownership right of the erstwhile school building was decided to be retained with the General Education Department and the 2nd respondent is permitted to occupy the entire building. 26. The other documents produced by the 2nd respondent would also show that the 2nd respondent was continuing in the entire premises and it was accordingly that the recommendations were made by the Director of General Education recommending the Government to permit the 2nd respondent to occupy the entire building premises. 27. Moreover, the issue with respect to the ownership of the building is claimed by the Municipality on the basis of the provisions of the Kerala Municipality Act, 1994, and in order to arrive at a logical conclusion a reference to some of the relevant provisions would give a clear picture. 28. Section 207 of Act 1994 deals with vesting of public streets and appurtenance in Municipalities which reads thus:- “207. 28. Section 207 of Act 1994 deals with vesting of public streets and appurtenance in Municipalities which reads thus:- “207. Vesting of Public Streets and appurtenance in Municipality.— (1) Notwithstanding anything contained in the Kerala Land Conservancy Act, 1957 (8 of 1958) or in any other law for the time being in force all public roads, streets, lanes and paths, the bridges, ditches, dykes and fences on or beside the same, and all adjacent land not being private property appertaining thereto in any municipal area other than National Highway or State Highway or major district road or roads classified by Government as such shall stand transferred to, and vest absolutely in the Municipality together with all pavements, stones and other materials and other things provided therein, all sewers, drains, drainage works, tunnels and culverts, whether made at the cost of the Municipal fund or otherwise in, alongside or under such roads and all works, materials and things appertaining thereto. (2) Notwithstanding anything contained in sub-section (1) the Government may, by notification in the Gazette, at any time, withdraw such public roads and or streets, sewer drain, drainage work tunnel or culvert adjacent to it from the control of the Municipality for the purpose of classifying, it as any public road, street, National Highway, State Highway or Major District road under the control of Municipality and thereupon it shall revest in the Government on issuing such a notification: Provided that before issuing such a notification, the Government shall consult the Municipality concerned and give due regard to the objections, if any.” 29. Section 210 of Act 1994 deals with management of public institution which reads thus:- “210. Management of public institution.— (1) The management, control and administration of every public institution maintained exclusively out of the Municipal fund shall vest in the Municipality. Section 210 of Act 1994 deals with management of public institution which reads thus:- “210. Management of public institution.— (1) The management, control and administration of every public institution maintained exclusively out of the Municipal fund shall vest in the Municipality. (2) When any public institution has been placed under the direction, management and control of the Municipality, all property, endowments and funds belonging thereto shall be held by the Municipality in trust for the purposes to which such property, endowments and funds were lawfully applicable at the time when the institution was so placed: Provided that the extent of the independent authority of the Municipality in respect of any such institution may, from time to time, be prescribed by the Government: Provided also that nothing in this section shall be held to prevent the vesting of any trust property in the Treasurer of Charitable Endowments under the law relating to charitable endowments for the time being in force.” 30. Therefore, on a reading of the above provisions, it is categoric and clear that the public property vested in the Municipality as per the provisions of Act 1994 is limited in nature. It is clear from the said provisions that the Municipality is vested with the powers for the management, control and administration of every public institution, exclusively maintained out of the Municipal fund, shall alone vest in the Municipality. 31. Sub-section (2) of Section 210 makes it further clear that when any public institution has been placed under the direction, management and control of the Municipality, all property, endowments and funds belonging thereto shall be held by the Municipality in trust for the purposes to which such property, endowments and funds were lawfully applicable at the time when the institution was so placed. 32. Therefore on a reading of said provision it is clear that once the management of an institution is no more available to the Municipality, it is not entitled to exercise the rights and powers conferred under the said provisions. 33. Here is a case where it is admitted by all, that the Government LP School, which was functioning in the building in question, was stopped due to the dearth of students. Therefore the management of a public institution by the Municipality in contemplation of Section 210 no longer survives due to the closure of the School. 33. Here is a case where it is admitted by all, that the Government LP School, which was functioning in the building in question, was stopped due to the dearth of students. Therefore the management of a public institution by the Municipality in contemplation of Section 210 no longer survives due to the closure of the School. That apart the proviso to Section 210 makes it clear that the extent of the independent authority of the Municipality to manage the public institution may from time to time be prescribed by the Government. Which thus means the State Government is the absolute authority of the property, and though the management of the institution in question became vested in the municipality by efflux of law, it has become redundant due to the closure of the school, and therefore the Municipality is not entitled to make any claim for the building, and take any decision overlooking the provisions of law discussed above. 34. That apart, Section 215 of the Act 1994 deals with power of Municipality to acquire and dispose of property. Sub-section (1) thereto specifies that a Municipality may in the manner prescribed, acquire any property such as land or building within or outside its Municipal area or dispose of any of its properties with the prior approval of the Government for providing any arrangement or facility for a public purpose. 35. On the basis of the powers conferred under Section 215 read with Section 368 and Section 565 of the Kerala Municipality Act, 1994, the State Government has made the Kerala Municipality (Acquisition and Disposal of Property) Rules, 2000. Rule 6 thereto deals with transfer of Municipality's own property, which stipulates that the transfer of Municipality's own property shall be in accordance with Sub-section (1) of Section 215 and Form II in Schedule II appended to the Rules, 2000. 36. However, Rule 8(1) clearly specifies that the property of the Municipality not owned but vested in it, may be granted on lease without violating the terms on which it was vested in it. 37. Therefore a conjoint reading of Sections 210 and 215 of Act 1994, and Rules 6 and 8 of the Rules 2000 it is explicit that the Municipality is entitled to grant lease only in terms of which the building was vested in the Municipality. 37. Therefore a conjoint reading of Sections 210 and 215 of Act 1994, and Rules 6 and 8 of the Rules 2000 it is explicit that the Municipality is entitled to grant lease only in terms of which the building was vested in the Municipality. That apart, Rule 12 of Rules 2000 create a prohibition on the Municipality, that it shall not dispose of property transferred to it by Government in any manner, which stipulates that notwithstanding anything contained in Rule 8, the Municipalities shall not sell, transfer, alienate, create any encumbrance on, or otherwise dispose of, any property transferred to them by Government under Sub-section (3) of Section 30 of the Act 1994. 38. Sub-section (3) of Section 30 clearly states that the Government shall, as soon as may be after the coming into force of Act 1994, transfer all institutions, schemes, buildings, other properties, assets and liabilities connected with the matters mentioned in the First Schedule to the Act, to the Municipalities concerned. 39. Therefore on a consideration of the provisions discussed above, it is clear that the issue is guided by specific provisions of the Act 1994 and the Rules 2000. In that view of the matter, I have no doubt in my mind that after the Government Lower Primary School was stopped, the Government was at liberty to deal with the property, which was transferred or vested in the municipality by virtue of the provisions of Act 1994. It is also clear that as per Rule 12 of the Rules 2000, the Municipality cannot transfer, alienate, or create any manner of encumbrance in the building in question. Therefore the resolution passed by the Aluva Municipality, deciding to transfer a portion of the building to Anganwadi No. 4, can never be sustained under law. In that view of the matter and taking into account the factual circumstances and the steps taken by the State Government to confer rights on the 2nd respondent, the petitioner is not entitled to get any reliefs as are sought for in the writ petition. However I make it clear that this judgment would not stand in the way of the State Government making suitable arrangements for accommodating the Anganvadi in question in any building of its choice. Needless to say, the writ petition fails, and accordingly it is dismissed.