Remanded

Society of the Sisters of Holy Cross, v. the District Collector and Others

Kerala HC15 Oct 2019WP(C)/2611/2010

Case brief

AI extract

What is this about?

The Court vacated a finding that hospital land was put to commercial use. It held that for hospital land, the criteria should be the specific use of the leased land for beneficial enjoyment rather than the institution's commercial nature, remitting the matter for fresh assessment.

What did the court decide?

Vacated the finding of commercial use regarding the leased land and remitted the matter to the District Collector for fresh assessment based on land use.

Society of the Sisters of Holy Cross, Vs the District… — Land Acquisition | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

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TUESDAY, THE 15TH DAY OF OCTOBER 2019 / 23RD ASWINA, 1941

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WP(C).No.2611 OF 2010(B)

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PETITIONER/S:

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SOCIETY OF THE SISTERS OF HOLY CROSS, REPRESENTED BY ITS ADMINISTRATOR, HOLY CROSS HOSPITAL, ADOOR.

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BY ADVS. SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM

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RESPONDENT/S:

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1 THE DISTRICT COLLECTOR PATHANAMTHITTA.

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2 THE COMMISSIONER OF LAND REVENUE PUBLIC OFFICE BUILDING, TRIVANDRUM.

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3 STATE OF KERALA REP BY SECRETARY REVENUE DEPARTMENT, GOVT.SECRETARIT, TRIVANDRUM.

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4 THE TAHSILDAR, ADOOR.

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R1 SRI. N.B. SUNIL NATH, BY GOVERNMENT PLEADER

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.10.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).No.2611 OF 2010

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JUDGMENT

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Dated this the 15th day of October 2019

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This writ petition is filed seeking the following

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prayers.

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i) issue a writ of certiorari or other appropriate order quashing Ext.P5 ii) to declare that petitioner is not liable to pay lease rent at the rate applicable to lands used for commercial purposes ; iii) grant such other reliefs as are just and proper in the nature of this case.

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The petitioner, is a Charitable Society which

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runs a hospital among other institutions. The hospital at Adoor is situated in 2 Acre 92 cents of property.

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It is stated that for the beneficial use of the hospital and its facilities, the petitioner had sought for lease of approximately 5 cents of Government Land.

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It is stated that the property was leased out to the petitioner as kuthaka pattom after following all due procedure. After 14.11.95, the lease is covered by the provisions of the "Assignment of Land within Municipal and Corporation Area Rules, 1995". It is stated that the rent of the property was nominal in the first instance which was later raised to Rs.65/-

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WP(C).No.2611 OF 2010

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per year and progressively to Rs.115/- per year. It

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is stated that in the year 2001, Ext.P1 Order was passed revising the lease rent retrospectively from the year 1995. The said action was challenged before this Court and by Ext.P2 judgment, this Court found

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that the revision of the lease rent with retrospective effect was not justified. In the matter of the rate of lease rent, the petitioner was permitted to approach the Land Revenue Commissioner.

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The petitioner had thereafter taken up the

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issue of the rate of lease rent. By Ext.P3

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proceedings, the Tahsildar fixed an amount of Rs.21,125/- as the rent for the land in question per annum and had raised a demand. The petitioner preferred Ext.P4 appeal before the Land Revenue

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Commissioner. By Ext.P5, the Land Revenue Commissioner considered the contentions raised on either side held that the petitioner's institution

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is a commercial one and that the land is utilised for income generating activity. It was therefore,

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held that the rate of the lease rent applied is just

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WP(C).No.2611 OF 2010

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and legal. However, the appeal was remanded to the District Collector for the purpose of re-assessment

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of the amount due, in the light of Ext.P2 judgment.

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It is submitted by the learned counsel for

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the petitioner that the Provisions of the Rules for Assignment of Land within Municipal and Corporation Area Rules, 1995, at the relevant time provided for annual lease rent at the rate of 10% of market value of the land when it is used for non-commercial purposes and 20% of the market value of the land when it is used for commercial purposes.

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It is contended by the learned counsel that the land in question is not being put to any commercial use and that it is being used only for an access to the properties of the petitioner's institution. It is stated that it is only for the beneficial enjoyment of the holdings of the petitioner that the land is being used and the findings contained in the impugned order to the effect that the petitioner is running a commercial institution and that therefore, the lease deed is

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WP(C).No.2611 OF 2010

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liable to be fixed at commercial rate is completely unsupported by any material.

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The learned counsel for the petitioner would

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submit that the question whether the hospital is run for charitable purposes or on commercial lines is irrelevant for the purpose of fixing of lease rent since what is to be considered is only whether the land is used for commercial purposes. It is submitted that no enquiry has been made by any of the authorities and there is no finding that the land in question is put to any commercial use.

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The second respondent has placed a counter affidavit on record. It is contended therein that

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the leased land is in the Adoor Municipal area and

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lease rent has been ordered at the rate o f 20% as provided in the Rules. It is stated that the market value of the land has been correctly fixed and that

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lease rent is levied at the rate of 20% in view of

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the fact that the property in question is a hospital run on commercial lines. It is stated that the

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District Collector has reported that the land was

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WP(C).No.2611 OF 2010

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used for an income generating purpose and the

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petitioner could not prove that the institution is a non-commercial one.

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I have considered the contentions raised,

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the provisions of the Rules provide for assignment of lands to institutions. Beneficial enjoyment is

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defined in the Rules as enjoyment of land for the purpose like providing approach road to assignees registered holdings and other like purposes. Rule 12(5) as it read before amendment with effect from

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1.4.2004 read as follows :-

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"Annual lease rent shall be fixed at the rate of ten per cent (10%) of the market value of the land when it is used for non-commercial purposes and twenty percent (20%) of the market value of the land when it is used for commercial purposes. If the lease applied for is non-objectionable, the lease rent for the period of lease proposed to be granted shall be remitted [within one month from the date of receipt of orders from the Assigning Authority]:

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Provided that if the Assigning Authority is satisfied that there is genuine ground to grant extension of time for remittance of the lease rent, he may grant such extension which shall not exceed three months."

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It is submitted that after the amendment

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with effect from 01.04.2004, the lease rent with

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regard to land leased out to educational

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institutions and hospitals for minimum extent

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required for the essential functioning of the

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WP(C).No.2611 OF 2010

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institution would only be 2% of the market value of

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the land. It is, therefore, contended that lease rent is to be calculated at the rate of 10% from

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31.01.2001 to 31.03.2004 and thereafter at the rate of 2% of the land value.

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As submitted by the learned counsel for the petitioner, reading of Ext.P5 would show that what has been considered by the Land Revenue Commissioner is the nature of the activity of the petitioner. Going by the provisions of Rule 12(5) what has to be looked into, is the use to which the land leased is put to. The petitioner has a specific case that the land is being used only for the beneficial enjoyments of the registered holdings of the petitioner. On a reading of the impugned order, it appears that there is no material to arrive at a conclusion that the land in question has been put to any commercial use. What has been considered by the Land Revenue Commissioner is only the nature of the activity of the petitioner's institution. In view of the provisions of Rule 12(5), I am of the opinion

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WP(C).No.2611 OF 2010

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that what is to be looked into is the purpose to which the lease land is put to.

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In the above view of the matter, the finding

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in Ext.P5 to be effected that the land in question is put to commercial use and therefore that lease rent is to be collected on commercial rate is vacated. The matter was remitted to the District Collector who shall consider the specific case of the petitioner that the land is used only for the beneficial enjoyment of the registered holdings of

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the petitioner. The District Collector shall

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consider the issue and pass an appropriate order with regard to the amount of lease rent payable by

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the petitioner with effect from 31.1.2001 to 31.3.2003. Orders shall be passed within a period

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of two months from the date of receipt of a copy of

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this judgment after notice to the petitioner as well.

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The writ petition is ordered accordingly.

Sd/-

ANU SIVARAMAN

SMA JUDGE

WP(C).No.2611 OF 2010

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APPENDIX

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PETITIONER(S)' EXHIBITS :-

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EXHIBIT P1 : TRUE COPY OF THE COMMUNICATION DATED 13.11.1995

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ISSUED FROM THE DISTRICT COLLECTOR.

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EXHIBIT P2 : TRUE COPY OF THE JUDGMENT DATED 20.03.2006 IN

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O.P.NO.19512 OF 2001 OF THIS HON'BLE COURT.

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EXHIBIT P3 : TRUE COPY OF THE NOTICE DATED 16.07.2007 ISSUED FROM THE 4TH RESPONDENT.

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EXHIBIT P4 : TRUE COPY OF THE REVISION PETITION DATED

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10.08.2007 FILED BEFORE THE LAND REVENUE COMMISSIONER, TRIVANDRUM.

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EXHIBIT P5 : TRUE COPY OF ORDER DATED 24.11.2009 OF THE LAND

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REVENUE COMMISSIONER, TRIVANDRUM.

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RESPONDENT(S) EXHIBITS :- NIL

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//TRUE COPY//

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PA TO JUDGE

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SMA

Society of the Sisters of Holy Cross, v. the District Collector and Others

Case brief

What is this about?

What did the court decide?

Society of the Sisters of Holy Cross, v. the District Collector and Others

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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