MYTHEEN MOHAMMED Vs. BOARD OF REVENUE

JUDGEMENT

(1.) This is a petition on behalf of a Madrassa by its president and secretary. The only question for decision is whether respondents Nos. 1 to 3 have power under the Kerala Land Conservancy Act 1957 (Act 8 of 1958) to take proceedings for eviction of encroachments over roads vested in Panchayats under S.62 of the Kerala Panchayats Act, 1960. The short facts are: the Madrassa established a Bhandarakutty for collecting offerings at a junction where a Panchayat road leading to a mosque branches off from the Muvattupuzha Kothamangalam public road. This according to Ext. P1 order passed by the 3rd respondent is an unauthorised occupation under the Land Conservancy Act. It is alleged in the petition that the Bhandarakutty was established in 1950 in the place where it stands. The petitioners question the jurisdiction and authority of respondents Nos. 1 to 3 to take proceedings under the Land Conservancy Act. They rely on S.62 of the Kerala Panchayats Act, 1960. The 4th respondent Panchayat supports the stand taken by the petitioners. In the counter affidavit sworn by the Executive Officer on behalf of the Panchayat it is stated that the Panchayat has approved the occupation.

(2.) It is necessary to read S.62(1) and 62(1A) of the Panchayat Act as well as S.3(2) of the Land Conservancy Act:

(3.) One of the rights of Government under the Land Conservancy Act is to set in motion the machinery provided by that Act for removal of encroachment over or unauthorised occupation of public roads and streets vested in a local authority, deeming such roads and streets to be Government ;property. Under sub-s.(1A) of S.62 of the Panchayats Act all rights, including the right to proceed against unauthorised occupation became the rights of the Panchayat. This is all the more so in view of the Kerala Panchayats (Removal of Encroachments and Imposition and Recovery of Penalties for unauthorised Occupation) Rules, 1964. These rules enable the Panchayat to take action against unauthorised occupation of lands vested in it as well as belonging to it. R.3 provides for imposition of fines and R.4 for eviction. However, I do not think that I should go to the extent of holding that S.3(2) of the Land Conservancy Act has been impliedly repealed by sub-s.(1) and (1A) of S.62 of the Panchayats Act, as contended for by Mr. Parameswara Panicker on behalf of the petitioner. It is a rule of interpretation of statutes to avoid, as far as possible, the application of the principle: Leges posteriores priores conirarias abrogant (later laws abrogate prior contrary laws). Therefore, the attempt should be to reconcile the two provisions, S.3(2) of the Land Conservancy Act and sub-s.(1A) of S.62 of the Panchayats Act. If both the provisions can be enforced concurrently, an unauthorised occupier is liable to be proceeded against both by the Panchayat as well as by the Government simultaneously, one under the Panchayats Act and the Rules thereunder, and the other under the Land Conservancy Act. (And what would happen when one of them treats the occupation as non objectionable, it having permitted the same, and the other as unauthorised, having not given such permission). Such an intent could not be attributed to the Legislature. I think the provisions can be reconciled by reading S.3(2) of the Land Conservancy Act subject to S.62(1A) of the Panchayats Act. So read the Government can step in invoking the provisions of the Land Conservancy Act only with the concurrence of the Panchayat.