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P.Kunhipathu v. State of Kerala

Kerala HC5 Sept 2011WP(C)/12080/2005

Case brief

AI extract

What is this about?

Petitioner challenged unilateral enhancement of lease rent without hearing, violating a prior High Court order. Court set aside the new proceedings directing authorities to re-fix rent only after affording opportunity of hearing, setting off satisfied interim amount against liability.

What did the court decide?

Ext.P7 proceedings set aside; respondents directed to re-fix lease rent and pass orders on balance amount after hearing petitioner.

P.Kunhipathu Vs State of Kerala — Land Acquisition | Kerala HC (2011)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON

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MONDAY, THE 5TH SEPTEMBER 2011 / 14TH BHADRA 1933

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WP(C).No. 12080 of 2005(K)

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--------------------------

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PETITIONER

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P.KUNHIPATHU, D/O.MUHAMMAD HAJI, RESIDING IN MALIYEKKAL HOUSE, VENGARA, PERINTHALMANNA TALUK, MALAPPURAM DISTRICT.

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BY ADV. SRI.T.SETHUMADHAVAN SRI.PUSHPARAJAN KODOTH

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RESPONDENTS:

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THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM.

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THE COMMISSIONER AND SECRETARY, LAND REVENUE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

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THE DISTRICT COLLECTOR, MALAPPURAM.

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THE TAHSILDAR, PERINTHALMANNA.

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THE VILLAGE OFFICER, PERINTHALMANNA.

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BY GOVERNMENT PLEADER ADV. SMT. SMITHA SUKUMARAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) No. 1 2080 OF 2005

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APPENDIX

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PETITIONER'S EXHIBITS

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EXT.P1	:	TRUE COPY OF THE ORDER DATED 29.06.1984 ISSUED B Y THE REVENUE DIVISIONAL OFFICER, PERINTHALMANNA TO THE PETITIONER.
EXT.P2	:	TRUE COPY OF THE NOTICE DT. 4.3.1995 ISSUED BY THE 4TH RESPONDENT TO THE PETITIONER.
EXT.P3	:	TRUE COPY OF THE RECEIPT ISSUED BY THE 4TH RESPONDENT FOR THE REMITTED AMOUNT DT. 1.6.95.
EXT.P4	:	TRUE COPY OF THE PROCEEDINGS OF THE N DISTRICT COLLECTOR, MALAPPURAM DT. 8.1.2.2000 ISSUED TO THE PETITIONER.
EXT.P5	:	TRUE COPY OF THE JUDGMENT DT. 29.11.2004 IN O.P.NO.5613/2001 OF THIS HON'BLE COURT.
EXT.P6	:	TRUE COPY OF THE COVERING LETTER DT. 24.12.2004 SENT BY THE PETITIONER TO R4.
EXT.P7	:	TRUE COPY OF THE COMMUNICATION DATED 19.3.2005 ISSUED BY THE 5TH RESPONDENTS TO THE PETITIONER.
EXT.P8	:	A TRUE PHOTOCOPY OF THE NOTICE ISSUED BY THE 4TH RESPONDENT DATED 9.5.2007
EXT.P9	:	TRUE COPY OF THE NOTICE DATED 3.3.2009 ISSUED BY THE 4TH RESPONDENT.

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/TRUE COPY/

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P.S. TO JUDGE.

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P.R. RAMACHANDRA MENON, J.

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W.P.(C) No.12080 OF 2005

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Dated this the 5^th September , 2011

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J U D G M E N T

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The issue involved in this writ petition is whether the enhancement of lease rent ordered by the State/Departmental authorities in a unilateral manner, in respect of the concerned land taken on lease by the petitioner for running a retail petroleum outlet in an effective manner, is correct or sustainable.

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The case of the petitioner is that the land in question ( one cent) was taken on lease from the Government in the year 1981 as borne by Ext. P1 Lease Deed, stipulating a lease rent of Rs.155/- per annum for a period of three years. The petitioner has been satisfying the said amount and while so, Ext.P2 notice was served demanding a sum of Rs.1711/- for the period from 1985 to 1995 in a lump. Still the petitioner satisfied the said amount, as borne by Ext. P3 receipt. Thereafter, Ext.P4

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W.P.(C) No.12080 OF 2005

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proceeding was issued in respect of the year 1995-96 onwards demanding varying amounts as lease rent in respect of the different periods at the rate of Rs.9000/- (1995-96), Rs.9900/(1996-97),10890/- (1997 -98), 11979/- (1998-99) and Rs.13177/- (1999-2000), thus demanding a total sum of Rs.54946/-.

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Met with the situation, the petitioner approached this Court by filing O.P.No.5613 OF 2001, which culminated in Ext. P5 judgment, whereby Ext. P4 was set aside, clearly holding that unilateral enhancement of the lease rent was a concept which was not acceptable to the Court and that the petitioner was to be heard before such enhancement. However, in view of the rider placed in the judgment, directing the petitioner to satisfy the lease rent at the rate of Rs.1000/- per annum for all the five years., the same was satisfied by the petitioner as borne by Ext.P5 receipt attached with Ext.P6 representation preferred in this regard. However, without any regard to the mandate given

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by this Court as per Ext. P5 judgment, Ext. P7 proceeding was issued, that too without any hearing, stating that the petitioner

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W.P.(C) No.12080 OF 2005

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was liable to satisfy the lease rent at the rate of Rs.11575/- for the year 2004-05, thus demanding a total sum of Rs.42,930/including the arrears, as re-fixed. The reason stated in Ext. P7 is that the lease rent has been renewed and re-fixed by the District Collector as per the proceedings bearing No.26248/02/B2 dated 09.03.2005, as referred to in Ext.P7. The petitioner is challenging Ext.P7 on many a ground, factual as well as legal.

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The second respondent has filed a counter affidavit narrating the facts and figures, which is almost the same as given in Ext.P7, wherein reference is made to the proceedings dated 09.03.2005 of the District Collector. The said order, which is stated as the “revised fresh order” passed by the District Collector re-fixing the lease rent, was pursuant to the direction given by the Government to renew all the lease as per G.O.(P) No.126/04/RD dated 14.05.2004. It was accordingly, that the District Collector, Malappuram obtained fresh proposals for renewal of all the lease cases including that of the petitioner from the concerned Tahsildars, in turn leading to the order dated 09.03.2005. The proceedings pursued by the authorities

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W.P.(C) No.12080 OF 2005

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are sought to be justified with reference to Rule 4(2) (b) of the Kerala Land Assignment Rules 1995. It is also stated that before fixing the lease rent with reference to the 'market value' of the property, the concerned Tahsildar had verified various documents and hence, the said proceedings are stated as not assailable under any circumstances.

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Heard the learned Counsel for the petitioner as well as the learned Govt. Pleader at length.

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There is no dispute with regard to the finalisation of the proceedings in the first round of litigation, when Ext. P5 judgment was passed by this Court, setting aside the earlier proceedings and directing the matter to be re-considered after affording an opportunity of hearing to the petitioner. Nowhere has it been stated in Ext.P7 as to granting of any such opportunity to the petitioner, before the enhancement was ordered. So also, there is no case for the respondents in the counter affidavit, that the order bearing No.26248/02/B2 dated 09.03.2005 referred to as 'first item' in Ext. P7 has been passed by the District Collector after hearing the petitioner. In short, the

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W.P.(C) No.12080 OF 2005

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direction given by this Court as per Ext. P5 judgment has been simply flouted, which prima facie amounts to a contumacious act on the part of the respondents.

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It is brought to the notice of this Court that, during the pendency of the above proceedings, the respondents proceeded with coercive steps under the Revenue Recovery Act, which led to the interim dated 29.05.2007, whereby the petitioner was directed to satisfy the amount under protest, which is stated as complied with. This Court finds that the respondents have not given effect to Ext.P5 judgment so far, whereas, they have proceeded with further steps as per Ext. P7 to demand the enhanced rent from the petitioner, followed by Revenue Recovery proceedings, which is not correct or sustainable.

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In the said circumstance, this Court does not require any second thought to set aside Ext.P7. It is ordered accordingly. This however will not prevent the respondents from passing appropriate orders with regard to re-fixation of the lease

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rent and in demanding the balance amount, after hearing the petitioner, taking note of the mandate given by this Court as per

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W.P.(C) No.12080 OF 2005

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Ext. P5 in respect of the concerned and subsequent years. The amount stated as satisfied by the petitioner pursuant to the interim order passed by this Court shall be set off against the liability as aforesaid.

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The writ petition is disposed of.

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P.R. RAMACHANDRA MENON, JUDGE.

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P.Kunhipathu v. State of Kerala

Case brief

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P.Kunhipathu v. State of Kerala

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