Disposed

P.Aboobacker v. State of Kerala & Others

Kerala HC1 Sept 2016WP(C)/16466/2007

Case brief

AI extract

What is this about?

Petitioner challenged rent enhancement orders and demand notices regarding one cent of land used as a drainage pathway. Court directed petitioner to approach District Collector within one month if he contests the post-2000 demand on grounds that the land belongs to the municipality, without deciding the liability in this order.

What did the court decide?

Allowed the petitioner to make further representations before the District Collector within one month regarding the post-2000 rent demand.

P.Aboobacker Vs State of Kerala & Others — Landlord and Tenant | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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THURSDAY, THE 1ST DAY OF SEPTEMBER 2016/10TH BHADRA, 1938 WP(C).No. 16466 of 2007 (I) ----------------------------

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PETITIONER(S):

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P.ABOOBACKER, S/O PADIPPURA HOUSE, CALICUT ROAD, PERINTHALMANNA.

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BY ADVS.SRI.K.JAYAKUMAR SRI.M.K.SREEGESH SRI.P.B.KRISHNAN

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RESPONDENT(S):

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

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2. THE COMMISSIONER FOR REVENUE, THIRUVANANTHAPURAM.

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3. THE DISTRICT COLLECTOR, MALAPPURAM.

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4. THE ADDITIONAL TAHSILDAR, PERINTHALMANNA.

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5. THE PERINTHALMANNA MUNICIPALITY, REPRESENTED BY THE SECRETARY, PERINTHALMANNA.

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BY GOVERNMENT PLEADER SRI.GIKKU JACOB

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 01-09-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No. 16466 of 2007 (I)

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APPENDIX

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PETITIONER'S EXHIBITS :

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P1:	15-11-1976 COPY OF RECEIPT ISSUED TO THE PETITIONER IN TOKEN OF HAVING PAID THE RENTAL OF RS.15/- FOR THE YEAR 1976-77.
P2:	22/3/1995 COPY OF RECEIPT ISSUED TO THE PETITIONER IN TOKEN OF HAVING PAID THE RENTAL OF RS 15/- FOR 1990-91 TO 1994-95.
P3:	14/12/2000 COPY OF ORDER BEARING NO. D DIS. 23153/2000/B2 CALLING UPON PETITIONER TO REMIT RS 54,946/- TOWARDS THE ARREARS OF RENT FOR THE PERIODS 1995-96 T 1999-2000.
P4:	9/9/2005 COPY OF ORDER OF THE R2 BEARING NO. LR J3-4441/01/D.DIS.
P5:	19/3/2007 COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN OP NO. 2191/2001.
P6:	29/3/2005 COPY F OBJECTION FILED BY THE PETITIONER BEFORE THE R3 AGAINST THE DEMAND NOTICE DT 9/3/2005.
P7:	9.5.2007 COPY OF ORDER B2.5505/99 ISSUED TO THE PETITIONER BY THE ADDL. TAHSILDAR, PERINTHALMANNA, RESPONDENT NO. 4.
P8:	23//2007 COPY OF OBJECTION FILED BY THE PETITIONER BEFORE THE ADDL. TAHSILDAR (RESPONDENT NO. 4) AGAINST EXT P7 DEMAND NOTICE.

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RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

P.V.ASHA, J.

W.P(C) No.16466 of 2007-I

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Dated this the 1^st day of September, 2016

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JUDGMENT

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The petitioner is challenging Exts.P4 and P7 orders. Ext.P4 is the order passed by the Land Revenue Commissioner by which the District Collector was directed to refix the rent in terms of G.O(P) No.126/04/RD dated 14.5.2004. Ext.P7 is a notice issued by the Additional Tahsildar, Perinthalmanna informing the petitioner that a sum of Rs.42,930/- was due from him towards the rent for the period from 1995-96 to 2004-2005 and in the event of non payment, revenue recovery proceedings would be initiated.

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The case of the petitioner is that he was using the slab put on a drainage passing along the northern boundary of his property, ie. along the southern road margin which was having a width of 4 feet. The petitioner claims that he had put granite slabs in the year 1961 when he put up the building in his property having an extent of 23.5 cents in R.S.No.127/5. It is also stated that, it was a commercial building let out for tenants.

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According to the petitioner, he was paying ground rent towards use of the said pathway along the slab over the drainage. He has produced Ext.P1 receipt which shows that a sum of Rs.15/- was being paid towards annual rent. Ext.P2 is the receipt towards payment of rent for the period from 1990-91 to 1994-95 on enhancement of rent @ Rs.45/- per annum. Consequent to the introduction of Assignment of land within Municipal and Corporation Areas Rules, 1995, the petitioner received Ext.P3 notice by which he was required to pay a sum of Rs.54,946/- for the period from 1995-96 to 1999-2000 towards lease rent, which was recovered with reference to the land value as recommended by Sub Collector, Perinthalmanna. Ext.P3 refers to the application submitted by the petitioner for renewing lease for an extent of 1 cent of land in R.S No.18/2 of Perinthalmanna village. As against Ext.P3 order dated 14.12.2000, the petitioner filed an appeal dated 29.01.2001 before the Commissioner of Land Revenue. In the meanwhile, he approached this Court filing O.P.No.2191 of 2001, which was disposed of by Ext.P5 judgment directing the respondents to refix the lease rent on the basis of the subsequent Government Order G.O(P) No.126/04/RD dated 14.5.2004, by which the lease rent was reduced. It was in the

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meanwhile that the petitioner had approached the Land Revenue Commissioner. The Commissioner of Land Revenue disposed of his appeal as per Ext.P4 order dated 9.9.2005 remitting the matter back to District Collector for refixing the rent in terms of G.O(P) No.126/2004/RD dt.14.5.2004.

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From the order it is seen that, the petitioner had raised the contention that he had not applied for lease and therefore, he was not liable to make any payment. The petitioner stated that he did not want to continue the lease; and that as per Rule 12(a) of the Assignment Rules 1995, a lessee has to apply for renewal of lease. The Commissioner found that 1 cent of land is used as drainage and the lessee could use the drainage area and the lessee had applied for renewal of rent. The petitioner submitted his objections before the District Collector also as per Ext.P6, subsequent to the judgment of this Court in which he stated that he was not in need of any lease and that the drainage was of the municipality. Ext.P7 notice was issued thereafter by the Additional Tahsildar, Perinthalmanna demanding a sum of Rs.42,930/-. The petitioner thereupon submitted Ext.P8 representation before the Additional Tahsidar pointing out that he is not liable to make any payment towards arrears of rent

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W.P(C) No.16466 of 2007-I

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since he does not require any lease. It is as against the demand in Ext.P7 that the petitioner has filed this Writ Petition challenging Ext.P4 order of Commissioner also on the ground that the Commissioner did not look into his contentions.

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The respondents have filed a counter affidavit stating that the petitioner was using the 1 cent of property in Sy.No.18/2 of Perinthalmanna Village, for the beneficial use of his building, which was leased out for commercial purposes and this was being used as a pathway to his building. It was stated that the drainage was covered by putting concrete slabs and as per the 1995 Rules lease rent was originally calculated at 20% market rate of the basic document and it was reduced to 10%. There is an increase of 10% per year. As per the counter affidavit, the petitioner’s application was available in the records and the request was granted as per order dated 14.12.2000 by the 3^rd respondent for renewal of lease of the 1 cent of land for the period from 1995-96 to 1998-99 and 1999-2000. Further it is stated that the petitioner had not informed the respondents that he did not require the said land. It is further stated that, a sum of Rs.42,930/- was the amount due from the petitioner for the period from 1995-96 onwards till 2004-05, even though no

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W.P(C) No.16466 of 2007-I

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application for renewal for the period from 2000 onwards was received. It is stated that the petitioner who was enjoying the land was liable to pay the same.

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I have heard the learned counsel appearing for the petitioner and the learned Government Pleader appearing for the State. The learned counsel for the petitioner submitted that the petitioner had remitted the amount demanded in Ext.P7 on the basis of an interim order passed by this Court on 30.05.2007. The contention of the petitioner is that subsequent to 2000, there was no request for renewal. But the petitioner does not dispute the fact that he could not have used his building except by passing through the 1 cent of land for which the demand was made. However, it is the contention of the petitioner that drainage is that of municipality, for which he is not required to make any payment.

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In case the petitioner is still aggrieved by the demand with respect to the payments made for the period after 2000 on the ground that drainage is vested in the municipality and that he was entitled to use it as any citizen, the petitioner can take up the matter before the District Collector, within a period of one month. In case such a representation is received, the District

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W.P(C) No.16466 of 2007-I

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Collector shall pass orders on the same, within a period of two months of the date of receipt of the same. The payment for the period after 2000 would be subject to the decision to be taken in such a petition.

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The Writ Petition is accordingly disposed of.

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Sd/-

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(P.V.ASHA, JUDGE)

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rtr/

P.Aboobacker v. State of Kerala & Others

Case brief

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P.Aboobacker v. State of Kerala & Others

Case brief

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