1. Above writ petition is filed challenging Ext.P4 order and for a consequential direction to respondent No.1, Secretary of the Grama Panchayat, to include the subject road in the asset register and to provide further maintenance and upkeep of the road.

2. Brief facts necessary for the disposal of the writ petition are as follows:-

Petitioners are residents of Ward No.9 of Peringome-Vayakkara Panchayat, of which the 1st respondent is the Secretary. The subject road is constructed through the property, which was earlier owned by respondents 2 and 3. When the party respondents had plotted their property and sold the residential plots, they had constructed the road through their property almost 50 years before. It is submitted that more than 40 people are regularly using the road for ingress and egress to their houses after they purchased the residential plots from the party respondents. The road constructed is uneven and non-motorable at many places. The 2nd and 3rd respondents are objecting to any type of improvement or tarring of the road. Even though the road was once private property, it has now got a public character since it is used by many people, and therefore the road now vests in the panchayat under the statutory fiction under the Kerala Panchayat Raj Act, 1994 (for short, ‘Act, 1994’). Since the road was in a dilapidated condition, the petitioners approached the 1st respondent for acquiring the road and further maintaining and developing it into a motorable way. The request submitted by the petitioners as Ext.P3 was rejected by the Panchayat in a mechanical manner as per Ext.P4 order, stating that the property owners are not willing to relinquish the land to the Panchayat. Petitioners submit that the issue is covered in their favour by the judgment of this Court in Mariam Beevi v. The Secretary, Athirampuzha Grama Panchayat & Others [2015 (3) KHC 199].

3. A detailed counter affidavit has been filed by respondents 2 and 3, objecting to the reliefs sought for in this writ petition. The primary contention raised is that Ext.P4 order is an appealable order, and without exhausting the alternate remedy available under law, they have rushed to this Court, filing the above said writ petition. It is further submitted that the private pathway was developed in their property and to reach their house, and it is used exclusively for their own personal purposes. The property now in possession of petitioners 1 to 7 are either sold by the respondents or from the successor in purchase after the sale of the properties to different persons including the petitioners, and that they are only permitted to use it for their ingress and egress and therefore the pathway developed by the party respondents from the main road to reach their residential house cannot be treated as a public road. Therefore, the prayer sought for in the writ petition to direct the 1st respondent, Panchayat to acquire the same without following the due process of law is absolutely without any basis. It is further submitted that the judgment in Mariam Beevi’s case was passed on a different factual situation and therefore cannot have any application in the facts of the present case. It is further submitted that the road in question is a private pathway to reach their property and admittedly not included in the asset register of the Panchayat. On the said contention, the respondents 3 and 4 sought for dismissal of the writ petition.

4. The learned Counsel appearing for the 1st respondent, Secretary of the Panchayat, submits that they cannot take over the said road and include the same in the asset register until and unless the right over the road is relinquished by respondents 2 and 3 in favour of the Panchayat, and then only the Panchayat could take steps to include the said property in their asset register.

5. I have considered the rival contentions on both sides.

6. Admittedly, the property is not included in the asset register of the Panchayat. The contention of the petitioners is that though the road is private property, the nature of the road has acquired a character of public property and by the legal fiction as provided under Section 169(1) of the Act, 1994, the road now vests with the Panchayat. Section 169 of the Act, 1994, dealing with vesting of public road in Village Panchayat reads as follows:-

                  "169. Vesting of Public roads in village panchayats. - [(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 other than those classified by the government as National Highway, State Highway or major district roads, bridges, culverts, ditches, dykes, fences on or beside the same protective devices and all adjacent land, not being private property appertaining thereto, within the panchayat area, i.e.-

                  (a) in the District Panchayats - All district roads other than major district road within the area of more than one block panchayat;

                  (b) in the Block Panchayats - District roads and village roads other than major district roads within the area of more than one village panchayat comprised in a Block Panchayat;

                  (c) in the village Panchayats - other village roads, paths and lanes within the Village Panchayat area.

                  Together with all pavements, stones and other materials and other things installed therein, all drains culverts made along side or under such roads and all works, materials and things appurtaining thereto may be deemed as transferred to and vested absolutely in the panchayat area.]

                  [(2) Subject to the provisions of this Act, all rights and liabilities of the Government in relation to the public roads and other properties, materials and things vested in the Panchayat under sub-section (1) or sub-section (4) shall, from the date of such vesting, be the rights and liabilities of the Panchayat.]

                  (3) Notwithstanding anything contained in sub-section (1) or sub-sections (2) the Government may at any time by notification in the Gazette, exclude from the operation of this Act any such public road, sewer, drain, drainage work, tunnel or culvert and may also modify or cancel such notification and thereupon they shall revest in Government.

                  Provided that, before issuing such a notification, the Government shall consult the panchayat concerned and give due regard to the objections, if any.

                  (4) The government may, by notification in the Gazette, order the transfer to and vesting in, a village panchayat, of any public road or class of public roads in the village panchayat and thereupon such road or roads shall, notwithstanding anything contained in sub-section (1), but subject to the other provisions of this Act, stand transferred to and vest in, such village panchayat.

                  (5) It shall not be lawful for any persons to occupy any land which is transferred to and vested in a Panchayat under sub- section (1) or sub-section (4), whether a poramboke or not, without prior permission from the Panchayat concerned. Explanation. - For the removal of doubts it is hereby declared that the erection of any wall, fence or building or the putting up of any overhanging structure of projection (whether on a temporary or permanent basis) on or over any land aforesaid shall be deemed to be occupation such land.”

                  (Underlines supplied)

                  A reading of Section 169 reveals that the automatic statutory vesting in the Panchayat as provided under Section 169 is in respect of all public roads other than classified by the Government as National Highway, State Highway or major district roads, bridges, etc. or besides the same protective devices and all adjacent land, not being private property. Therefore, it is all public roads that will automatically vest with the Panchayat.

7. Section 178 of the Act, 1994, which deals with the acquisition of immovable property required by the Panchayat, is also relevant for consideration of this case, which reads as follows:-

                  “178. Acquisition of immovable property required by the panchayat. - Any immovable property which is required by a Panchayat for a public purpose connected with the discharge of the functions imposed on it under this Act, or the rules or bye- laws made there under, or any other law, may be acquired under the provisions of the Land Acquisition Act, 1894 (Central Act 1 of 1894) and on payment of compensation awarded under that Act in respect of such property and of any other charges incurred in acquiring it, the said property shall stand transferred to and vest in the Panchayat:

                  Provided that nothing contained in this section shall be deemed to prevent any Panchayat from acquiring immovable property either through private purchase or any free surrender.”

                  Said provision mandates that if any immovable property is required by the Panchayat for a public purpose, it could be acquired as per the provisions of the Land Acquisition Act, on payment of compensation, and that the Panchayat can acquire immovable property either through private purchase or any free surrender. The Kerala Panchayat Raj (Acquisition & Disposal of Property) Rules, 2005 (for short ‘Rules 2005’) provide the procedure to acquire property. Rules 3, 4 and 5, which are relevant for consideration of this case, read as follows:

                   “3. Power to acquire property. - (1) A Panchayat may acquire any land or building within or outside its area either by purchase or otherwise in order to introduce any public facility or for providing any service, and may with the prior approval of the Government dispose of any of its property either by sale or otherwise.

                  (2) The acquisition of land under sub-rule (1) may either be in accordance with the Land Acquisition Act for the time being in force and the rules made thereunder or through private purchase of free surrender.

                  (3) A Panchayat, before acquiring any land under sub-rule (1) shall comply with the following conditions, namely:--

                  (a) Suitability certificate to the effect that the proposed land is suitable for the proposed purpose shall be obtained from the Deputy Director of Panchayats/Assistance Development Commissioner/District Collector in the case of Viliage/Block/District Panchayats respectively.

                  (b) If the proposed property is for educational purpose, permission from the Deputy Director of Education shall be obtained.

                  (c) Permission from the District Medical Officer shall be obtained in the case of Hospitals, Dispensaries etc.

                  4. Acquisition of land under the Land Acquisition Act. -

                  (1) In case of acquisition of land by a Panchayat otherwise than by a bilateral agreement or free surrender, the provisions in the Land Acquisition Act for the time being in force and the procedure in the rules made thereunder shall be complied with.

                  (2) The Competent Engineer shall fix the value of the building or improvements, if any in the land proposed to be acquired and the Secretary shall inform the said value to the Land Acquisition Officer concerned.

                  (3) The Panchayat shall compulsorily be a party in all litigations that may come before a court, in respect of the value in land acquisition proceedings and where a case in this regard is filed or referred to a court the Land Acquisition Officer concerned shall intimate in writing the fact to the Panchayat concerned and the Government.

                  5. Acquisition of land by a bilateral agreement. -

                  (1) In all cases wherein it is proposed to acquire land by bilateral agreement,--

                  (a) ensure that the land is free from liability by obtaining encumbrance certificate for 18 years form the Sub- Registrar Office concerned to prove the previous liability of  the  land  proposed  to  be  acquired;

                  (b) ensure that the owner has clear title and ownership right to dispose over the property proposed to be acquired by getting the title of the property scrutinized by the District Government pleader;

                  (c) ensure that the cost of land given for the land proposed to be acquired does not exceed that fixed in writing by the Tahsildar/District Collector concerned; and

                  (d) ensure that the cost of the building or improvement, if any, upon the land does not exceed that fixed by the competent Engineer.

                  (2) In case the Panchayat is in need of any land or building for any public purpose, such land or building may be taken on lease subject to the terms as may be decided by the Panchayat.

                  Provided that when such land or building is taken on lease, the lease rent shall be fixed only after proper valuation of the cost of the land or the building.

                  (3) The title deed of the property acquired by the Panchayat under sub-rule (1) shall be in accordance with Form No. 1 appended to these rules.

                  (4) Nothing mentioned in the aforesaid rules shall apply to any property acquired by a Panchayat upon a judgment of a Court.”

                  As per Rules 2005, the Panchayat could acquire property to introduce any public facility or for providing any service and the acquisition shall be in accordance with the Land Acquisition Act, or through private purchase or free surrender. It also provides that the acquisition of land can be by bilateral agreement. Another Rule relevant for consideration of this case is the Panchayat Raj (Accounts) Rules, 2011 (Kerala) (for short, Rules, 2011). Rule 80 of the said Rules, 2011, dealing with asset registers reads as follows:-

                  “80.Asset Register:- (1) The Secretary shall maintain appropriate Asset Registers as prescribed by the Government to record the details of all movable and immovable assets owned by the Panchayat or assigned/transferred to the Panchayat.”

                  Going by the said Rule, it is the duty of the Secretary to maintain appropriate asset register as prescribed by the Government to record the details of all movable and immovable assets owned by the Panchayat or assigned/transferred to the Panchayat. A direction has been sought in this writ petition to include the road in the Asset Register of the Panchayat. But Rule 80 of the Rules 2011 provides that the Secretary has to maintain an asset register to record the details of all movable and immovable assets owned by the Panchayat or assigned/transferred to the Panchayat. A reading of the above quoted provisions will make clear that the land which could be included in the asset register of the Panchayat is only assets owned by the Panchayat or the assets which are assigned/transferred to the Panchayat. Admittedly, the subject pathway in question is not an asset owned by the Panchayat nor the same has been assigned or transferred in favour of the Panchayat.

8. The contention of the petitioners is essentially relying on the judgment of this Court in Mariam Beevi v. Secretary, Athirampuzha Grama Panchayath, Kottayam & Others [2015 (3) KHC 199]. The issue dealt with in the said case is in respect of a pathway which admittedly form part of the asset register, maintained by the Panchayat, and it is in the said context the Court held that the said pathway asssumes public character. A Division Bench of this Court in Cochin Devaswom Board v. Union of India, 2023 (6) KHC 328 was considering the issue as to whether a road will automatically vest with the Panchayat going by Section 169(1) of the Act, 1994, for the reason that the local authority was maintaining the same. The Court took into notice the fact that the road in question does not form part of the asset register and an overt act of tarring done by the Panchayat alone will not divest the title of the property from the owner, and there shall be a process known to law such as acquisition, voluntary transfer etc. so that the Panchayat could gain title over the property. Paragraph 20 of the said judgment reads as follows:-

                  “20. In that case the dispute was with respect to a road being maintained by the local authority and included in the asset register of that local authority. While so, a declaration that the road continues to be a private road was sought. Unlike that, here the road in question though its tarring work was done by the 9th respondent was never brought to its asset register. The reason is obvious. It is a Temple road and has been in the user of the public, including for the purposes of religious activities. The local authority would have maintained it out of its social obligation. Albeit such maintenance, the road never was brought to the asset register. It being a property of the Deity, by such an overt act of tarring alone, the title of the Deity wil not by divested. There shall be a process known to law, such as acquisition, voluntary transfer, etc. for the Deity to lose its title to a property. In that view of the matter, the law laid down in Mariam Beevi, 2015 (3) KHC 199 cannot have application to this case.”

9. From the pleadings in the case, petitioners are purchasers of various plots from the party respondents, and the pathway is laid for the purpose of reaching the property of the party respondents where they are residing and also for the use of the petitioners to reach their respective plots, which are purchased from the party respondents or from the subsequent purchasers. It is also admitted that the pathway in question will end in the property of the party respondents. This Court in Radhakrishnan T.K. v. State of Kerala and Others [2022 (2) KHC 86] was considering the question as to whether, a way which is permitted to be used by a definite number of persons who purchase the land from the original owner, is a private way or a public way, and the Court held in paragraph 21 as follows:-

                  “21. The way, which was not in existence at the time of transfer, as provided under Exts.A1 and A2, but which are necessary for the enjoyment of the property for the residential purpose for which it was transferred, is available to the plaintiff and the private party defendants. A way permitted to be used by a definite number of persons who purchased the land from the original owner Paulose, is certainly a private way which has its origin by way of sale deeds and such right cannot be forcefully widened and converted into a public right after use by some others as well to raise the presumption of dedication. Hence, the finding of the Trial Court that the private pathway assigned the character of public pathway is without any basis.”

                  Going by the dictum laid down by this Court in Radhakrishnan T.K’s case cited supra, when a way is permitted to be used by a definite number of persons who purchase the land from the original owner is certainly a private way which has its origin by way of sale deeds, and such rights cannot be forcefully widened and converted into a public right after use of some others as well as to raise the presumption of dedication, and therefore, the contention that the private pathway assumes the character of a public pathway is without any basis.

10. Admittedly, the pathway is in ownership of the party respondents and the petitioners were granted a right of way through the said pathway after they had purchased their respective plots. The Act, 1994 and the Rules, 2005, as stated above contains procedures for acquiring any property by the Panchayat for any public purpose, which includes the procedures under the Land Acquisition Act, through private purchase or through free surrender. Admittedly, the property is still in the ownership of the party respondents herein. Though it is true that by the Constitutional amendment, right of property has now seized to be a fundamental right but taking possession or acquiring the property of a citizen amounts to deprivation and therefore such deprivation can take place only in accordance with law as specifically provided in Article 300 A of the Constitution of India which mandates that no person shall be deprived of his property save by the authority of law. The law, as stated above, mandates that if the Panchayat requires a property for any public purpose, it can be acquired through the process of land acquisition or private purchase or through free surrender. As settled by various judgments of the Apex Court, the right of property is now considered to be not only a constitutional or a statutory right, but also a human right. See the judgments of the Apex Court in Lachhman Dass v. Jagat Ram [2007 (10) SCC 448], Amarjit Singh v. State of Punjab [2010 (10) SCC 43], State of M.P. v. Narmada Bachao Andolan [2011 (7) SCC 639], State of Haryana v. Mukesh Kumar [2011 (10) SCC 404] and Delhi Airtech Services (P) Ltd. v. State of U.P. [2011 (9) SCC 354 ], and of this Court in Asokan R. v. State of Kerala [2024 (4) KHC 260].

11. This Court in Riyas P. V. v. Kannamangalam Grama Panchayat & Another [2021 (6) KHC 847] has held that the Secretary of the Panchayat is not entitled to take possession of the property belonging to some other person and the same can only be done as per the relevant provision of the Act and Rules i.e. Rules 2005, and as provided in Section 178 of the Act, 1994. The Court further held that the land could be acquired either by the process of land acquisition or by purchase or free surrender of land. Paragraphs 8 and 9 of the said judgment read as follows:-

                  “ 8. Therefore, it is clear that the power of the Panchayat/Secretary is circumscribed in terms of S.178 if Act 1994 and the R.2005. True, the Panchayat is entitled to secure relinquishment of any land, free surrender of land or purchase of any land but it can only be done in accordance with the provisions of law. The Secretary of the Panchayat is a statutory authority vested with powers under the Kerala Panchayat Raj Act, 1992 and the rules made thereto and the Secretary has to discharge the functions only in accordance with the powers enjoyed by the Secretary in accordance with law.

                  9. The counter affidavit filed by the Secretary would show that, he/she is under the impression that merely by issuing a public notice, the Panchayat/Secretary is entitled to take possession of the property belonging to some other person. In my considered opinion, such a course of action is not provided under law and the Secretary is not empowered to issue a public notice and then take possession of a property belonging to a private party. Therefore, the attempt of the Panchayat and the Secretary to take forcible possession of the property of the petitioner cannot be sustained under law. “

10. In the light of the above discussion, I am of the opinion that no interference is called for on Ext.P4 order, and no direction could be issued to the 1st respondent to include the road in the asset register and provide further maintenance and upkeep of the road, and the writ petition is accordingly dismissed.