Kerala High Court
*1. N. Nanukuttan Nair vs State Of Kerala
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 27TH DAY OF MAY 2016/6TH JYAISHTA, 1938
OP.No. 27278 of 2002 (V)
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PETITIONER(S):
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*1. N. NANUKUTTAN NAIR, AGED 70 YEARS,
S/O. NARAYANA PILLAI, RESIDING AT BABA COTTAGE,
PADMA NAGAR, FORT P.O., THIRUVANANTHAPURAM,
(T.C.39/2262 & TC.39/2265), EAST FORT,
THIRUVANANTHAPURAM. (DIED)
* ADDL. P2 IMPLEADED
2. V.N. JAYAKRISHNAN, AGED 43 YEARS,
S/O. NANUKUTTAN NAIR, RESIDING AT
BABA COTTAGE, PADMA NAGAR, FORT P.O.,
THIRUVANANTHAPURAM (TC.39/2262 & TC 39/2265),
EAST FORT, THIRUVANANTHAPURAM.
* ADDL. P2 IMPLEADED AS LEGAL HEIR OF DECEASED PETITIONER
VIDE ORDER DATED 02/01/2009 IN I.A. NO.15972/2008.
BY ADVS.SRI.VPK.PANICKER,
SRI.G.P.SHINOD,
SRI.RAM MOHAN.G.,
SRI.MANU V..
RESPONDENT(S):
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1. STATE OF KERALA,
REPRESENTED BY THE SPECIAL SECRETARYTO
GOVERNMENT OF KERALA, REVENUE (U) DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM.
2. DISTRICT COLLECTOR,
THIRUVANANTHAPURAM.
3. REVENUE DIVISIONAL OFFICER,
THIRUVANANTHAPURAM.
OP.No. 27278 of 2002 (V)
4. TAHSILDAR, THIRUVANANTHAPURAM.
5. VILLAGE OFFICER, MANAKAD VILLAGE,
THIRUVANANTHAPURAM.
BY GOVT. PLEADER SRI.C.K. JAYAKUMAR.
THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD
ON 27-05-2016, ALONG WITH O.P.NO.10054 OF 2003 AND
CONNECTED CASES, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
rs.
OP.No. 27278 of 2002 (V)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE GO (MS) 39/81/RD DATED 12/01/1981.
EXT.P1A COPY OF THE NOTICE NO.17490/73 DATED 19/03/1981 ISSUED BY THE
4TH RESPONDENT TO SRI.ANTONY DORAIRAJ, THE PREDECESSOR
IN INTEREST OF THE PETITIONER.
EXT.P2 COPY OF THE GO(MS) 840/88/RD DATED 18/09/1995.
EXT.P3 COPY OF THE PROCEEDINGS NO.A3 17490/79 DATED 01/02/1989
ISSUED BY THE TAHSILDAR, THIRUVANANTHAPURAM.
EXT.P3A COPY OF THE PROCEEDINGS NO.A3-17490/73 DATED 23/01/1989
ISSUED BY THE TAHSILDAR, THIRUVANANTHAPURAM.
EXT.P4 COPY OF THE JUDGMENT DATED 22/03/1993 IN O.P. NO.2907/1989
OF THE HONOURABLE HIGH COURT OF KERALA.
EXT.P5 COPY OF THE JUDGMENT DATED 10/02/1999 IN O.P. NO.8423/1994
OF THE HONOURABLE HIGH COURT OF KERALA.
EXT.P6 COPY OF THE LETTER NO.79202/UI/REV. DATED 23/10/1999
ISSUED TO SRI.GOPALAN GANGADHARAN BY THE SPECIAL
SECRETARY TO THE 1ST RESPONDENT GOVERNMENT.
EXT.P7 COPY OF THE RECEIPT NO.62 IN BOOK NO.450 DATED 08/07/1998
FOR REMITTANCE OF KUTHAKAPATTOM WITH REGARD TO 02.040
CENTS TILL THE END OF 1998-99.
EXT.P8 COPY OF THE RECEIPT NO.63 IN BOOK NO.450 DATED 08/07/1998 FOR
REMITTANCE OF KUTHAKAPATTOM WITH REGARD TO 02.324 CENTS
TILL THE END OF 1998-99.
EXT.P9 COPY OF THE LETTER NO.B1/17490/73 DATED 11/01/2002 ISSUED BY
THE 4TH RESPONDENT TO THE PETITIONER.
EXT.P9A COPY OF THE LETTER NO.B1/17490/73 DATED 11/01/2002 ISSUED BY
THE 4TH RESPONDENT TO THE PETITIONER.
EXT.P10 COPY OF THE REPRESENTATION DATED 19/01/2002 MADE BY THE
PETITIONER TO THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXT.P11 COPY OF THE RECEIPT DATED 19/01/2002 ISSUED BY THE
TAHSILDAR, THIRUVANANTHAPURAM.
...2/-
OP.No. 27278 of 2002 (V)
EXT.P12 COPY OF THE UNDATED DEMAND NOTICE SHOWING FILE
NO.B1-47524/94 REGARDING 02.324 CENTS ISSUED BY THE
DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXT.P13 COPY OF THE UNDATED DEMAND NOTICE SHOWING FILE
NO.B1-47524/94 REGARDING 02.040 CENTS ISSUED BY THE
DISTRICT COLLECTOR, THIRUVANANTHAPURAM.
EXT.P14 COPY OF THE COMMUNICATION NO..../02 DATED 01/07/2002
ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.
EXT.P15 COPY OF THE REPRESENTATION DATED 19/01/2002 SUBMITTED BY
THE PETITIONER TO THE DISTRICT COLLECTOR.
EXT.P16 COPY OF THE REPRESENTATION DATED 28/01/2002 SENT BY
THE PETITIONER TO THE DISTRICT COLLECTOR.
EXT.P11A TO EXT.P17C IN I.A. NO.16552/2004
EXT.P11A COPY OF THE REPRESENTATION DATED 19/01/2002.
EXT.P13A COPY OF THE REPRESENTATION DATED 28/01/2002.
EXT.P15 COPY OF THE NOTICE NO.V1-47524/94-1 DATED 14/09/2004.
EXT.P16 COPY OF THE NOTICE NO.B1-47524/94-2 DATED 14/09/2004.
EXT.P17 COPY OF THE REVENUE RECOVERY NOTICE NO.B1-9678/03
ISSUED BY THE SECOND RESPONDENT.
EXT.P17A COPY OF THE DO. DO.
EXT.P17B COPY OF THE DO. DO.
EXT.P17C COPY OF THE DO. DO.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
A.MUHAMED MUSTAQUE, J.
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O.P.Nos.27278/2002, 10054/2003, 10664/2003,
11504/2003 & 33703/2008
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Dated this the 27th Day of May, 2016
J U D G M E N T
1. The petitioners are occupants of various shop sites at East Fort, Thiruvananthapuram on Kuthakapattom lease. The shop sites are located in Iranimuttom Village in Thiruvananthapuram Taluk. The common issue in all these original petitions pertains to lease rent claimed from the petitioners with retrospective effect by refixing the market value. Though, different amounts are involved in each case based on the demand, I am not adverting to the factual aspects, as this Court has to deal with a common question of law O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:2:- for determination of whether the petitioners are liable to pay lease rent on refixing the market value retrospectively.
2. Kuthakapattom Rules, 1947 (Travancore) were promulgamated by the then His Highness Maharaja, Travancore exercising powers conferred under Section 7 of the Government Land Assignment Act, III of 1097. Rule 3 of the Kuthakapattom Rules defines "Kuthakapattom" as follows:
"3. Kuthakapattom means and includes.
(a) Lease of poramboke land on fixed ground rent for putting up shops in bazaars and markets.
(b) Lease of poramboke and other Government lands for temporary occupation with fairs, festivals, marriages, public entertainments etc.
(c) Lease of poramboke land not immediately required for public purpose or THARISU or other Government lands available for cultivation.
(d) Lease of trees standing on Government lands falling under Clause (c) supra."
O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:3:-
3. It is apposite to refer to Rule 5 of the Kuthakapattom Rules which reads as follows:
"5. Kuthakapattom leases fall under two classes-
(a) Leases without limit of time.
(b) Leases for definite periods."
4. The above classifications are essentially made in the Kuthakapattom Rules for the purpose of claiming rate of pattom and for revision of pattom.
5. These leases going by the nature of the description in the lease deeds would fall within the description of "lease of shop sites in bazaars on ground rent" as classified under Rule 6(iv) of the Kuthakapattom Rules. It is also the admitted position that all leases were definitely granted for a period. Therefore, the question is whether there can be a revision of pattom in respect of the leases obtained by the petitioners.
O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:4:-
6. In this context, it is relevant to refer to Rule 8 of the Kuthakapattom Rules. Rules 8(iii) and 8(iv) therein provides as follows:
"8(iii).In regard to the existing leases of trees or land or both which have been granted for definite periods, the amount of pattom shall not be interfered with during the currency of the lease, unless agreed to by the lessee.
8(iv).The rates of pattom are liable for revision after every 12 years, in regard to all leases without limit of time and leases of land granted for definite periods without auction."
7. The petitioner would contend that their case would come within the ambit of Rule 8(iv) of the Kuthakapattom Rules on account of the fact that the leases of land granted to them are for a definite period without auction. Therefore, the revision can be only after 12 years of the grant of leases. In fact, based on a direction of this Court in O.P.No.2907/1989, the Government had an occasion to consider the claim of the petitioner in W.P.(C).No.27278/2008. The O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:5:- Government's definite stand is that since the lease granted to the petitioner in W.P.(C).No.27278/2008 is for a definite period, the petitioner's case would not fall within the ambit of Rule 8(iv) of the Kuthakapattom Rules.
8. There is a distinction between Rule 8(iii) and 8(iv) of the Kuthakapattom Rules. Rule 8(iii) applies in respect of the lease granted for a definite period. The above rule stipulates that in regard to existing leases of trees or land or both which have been granted for definite periods, the amount of pattom shall not be interfered with during the currency of the lease unless agreed to by the lessee. In respect of Rule 8(iv) of the Kuthakapattom Rules, rates of pattom can be revised after 12 years in case of leases for indefinite period or for definite period without auction. Thus, Rule 8(iv) refers to two types of leases, i.e. leases without limit of time O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:6:- and the other leases for a definite period without auction. In view of the fact that a special class is defined under Rule 8(iv) as leases granted for definite periods without auction, this Court is of the view that all the petitioners would fall within the latter category, as they were given leases without auction.
9. The issue in this writ petition has cropped up based on the demand raised retrospectively. Therefore, this Court need at this juncture consider the issue related to that demand. Even if, in the case of leases for definite periods, Rule 8(iii) is read in the light of Rule 8
(iv), the purport of Rule 8(iii) would indicate that even if for a definite period, the Government cannot demand revision of rent unless agreed to by the lessee. In cases coming under clause (iv), it is clear that the revision can be only after the period of 12 years. Considering both the classes of leases, it is clear that the revision is O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:7:- possible either based on mutual agreement in cases of definite period of leases or in cases of indefinite period of leases only after 12 years. Therefore, no demand can be raised either during the period of lease in respect of defininte leases or in cases of indefinite leases before 12 years. Thus, any demand raised based on refixing the market value is against the Kuthakapattom Rules. It is to be noted that the Kuthakapattom Rules regulate the nature of the leases to be governed between the contracting parties. Thus, the Rules have to be read as a contract between the parties. The terms and conditions of the contract cannot be unilaterally regulated even if such a party is a State or a State instrumentality. Therefore, in the absence of any contract or statutorily conferred power, no demand can be raised by the State retrospectively. There is no such provision in the Rules for unilateral demands. In O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:8:- that view of the matter, the demands raised retrospectively have to be interfered with.
10.In all these cases, there were attachments in respect of shops occupied by the petitioners. The petitioners thereafter, requested for assignment of land. The petitioners also have paid money towards market value of the land. It appears that the Government thereafter, adjusted that money towards arrears of rent. The facts and circumstances disclose that the amounts were paid towards assignment. Further, in the light of the declaration that the Government is not entitled for retrospective revision of rent, even if it was collected towards rent, the amount is liable to be refunded as it was paid towards assignment of land. In the light of the facts and circumstances, the following orders are passed:
O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:9:- i.The respondents are directed to recalculate the arrears of rent claimed for the period referred in the demand based on the declaration of this Court that the Government is not entitled to refix the market value retrospectively.
ii.The petitioners' applications for assignment shall be considered by the Revenue Department. If the petitioners are entitled to assignment of land, the amounts already paid shall be adjusted towards the value of the land paid by the petitioners.
iii.If the Revenue Department turns down the request of the petitioners for assignment, the amount already paid shall be adjusted towards the rent payable and future rent payable.
O.P.Nos.27278/2002, 10054/2003, 10664/2003, 11504/2003 & 33703/2008 -:10:- iv.Needful shall be done by the Government within two months.
v.The District Collector shall recalculate the amount with respect to the demand already made based on the finding that the Government is not entitled to refix the market value retrospectively.
11.The original petitions are disposed of. Needful shall be done by the District Collector within a period of two months. In view of the above, it is made clear that the earlier orders will not stand in the way of the Government and the District Collector reconsidering the matter. No costs.
Sd/-
A.MUHAMED MUSTAQUE, JUDGE ms