Kerala High Court
Peer Mohammed P.S vs District Collector on 2 January, 1961
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
WEDNESDAY, THE 7TH DAY OF DECEMBER 2016/16TH AGRAHAYANA, 1938
WP(C).No. 9458 of 2007 (A)
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PETITIONER(S):
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1. PEER MOHAMMED P.S., PARAKVETTI HOUSE,
PERUNNA P.O., CHANGANACHERRY.(DIED)
2. AKBAR SHERIEF P.O., SON OF LATE PEER MOHAMMED,
PARAKVETTI HOUSE, PERUNNA, CHANGANACHERRY.
3. NABEESA PEER MOHAMMED, W/O. LATE PEER MOHAMMED,
PARAKVETTI HOUSE, PERUNNA, CHANGANACHERRY.
4. HUMAYOON P.O., S/O. LATE PEER MOHAMMED,
PARAKVETTI HOUSE, PERUNNA, CHANGANACHERRY.
5. ZAKIR HUSSAIN, S/O. LATE PEER MOHAMMED,
PARAKVETTI HOUSE, PERUNNA, CHANGANACHERRY.
6. HARIFFA BASHEER, W/O. MOHAMMED BASHEER,
PUTHENPARAMBIL, MUTHOOR P.O., THIRUVALLA.
7. FAZEELA NAZEER, W/O. MOHAMMED NAZEER,
ITTAPPAPARAMBU ROAD, COCHIN-35.
8. SHAHIDA ALI, W/O. LATE SADA SIAKATH ALI,
HOUSE NO.814, GANDHI NAGAR HOUSING COLONY,
VAZHUTHACAUD, THIRUVANANTHAPURAM.
9. MUMTAZ FAZIL, W/O. FAZIL M.S.,
MANGALATHU HOUSE, MEVELLOOR P.O.,
VAIKOM, KOTTAYAM.
10. SABOORA VAHID, W/O. ABDUL VAHID,
TC.12/1056, KUNNUKUZHI, THIRUVANANTHAPURAM.
(PETITIONERS 3 TO 10 REPRESENTED BY THEIR POWER
OF ATTORNEY HOLDER AKBAR SHERIEF, THE PETITIONER NO.2).
BY ADV. SRI.A.A.MOHAMMED NAZIR.
WP(C).No. 9458 of 2007 (A)
RESPONDENT(S):
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1. DISTRICT COLLECTOR, KOTTAYAM-686 001.
2. THE TAHSILDAR,
CHANGANACHERRY TALUK, CHANGANACHERRY-686 101.
3. M.N. KRISHNAN, VETTIYIL,
MALAYIKUNNU, PERUNNA P.O.,
CHANGANACHERRY-686 102.
4. P.M. BABY, PULICKAL HOUSE, PERUNNA P.O.,
CHANGANACHERRY-686 102.
5. P.D.VARGHESE, PUTHUCHIRA HOUSE,
PALLIKKOTTUMMA, RAMANKERI P.O., ALLEPPEY-686 001.
6. SEBASTIAN CHERIAN,
VALIYAVETTIL, FATHIMAPURAM P.O.,
CHANGANACHERRY-686 101.
R1 & R2 BY SPL. GOVT.PLEADER (REVENUE) SRI.K.J. MOHAMMED ANZAR.
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 07-12-2016, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
rs.
WP(C).No. 9458 of 2007 (A)
APPENDIX
PETITIONER'S EXHIBITS:-
EXT.P1 COPY OF THE SALE DEED NO.9/1961 (532/1099 ME) IN FAVOUR OF THE
PETITIONER DATED 02/01/1961.
EXT.P2 COPY OF THE NOTICE NO.9705/2000/E1 DATED NIL ISSUED BY THE
DISTRICT COLLECTOR, KOTTAYAM TO THE PETITIONER.
EXT.P3 COPY OF THE PETITION DATED 15/03/2001 SUBMITTED BY THE
PETITIONER TO THE DISTRICT COLLECTOR, KOTTAYAM.
EXT.P4 COPY OF THE JUDGMENT DATED 29/03/2001 IN O.P.NO.11013/2001
OF THIS HON'BLE COURT.
EXT.P5 COPY OF THE RECEIPT DATED 19/04/2004 ISSUED BY THE
VILLAGE OFFICER FOR PAYMENT OF KUTHAKAPATTOM FOR THE
PERIOD UPTO 2004-2005.
EXT.P6 COPY OF THE LETTER DATED 31/05/2001 ISSUED BY THE
SUPERINTENDENT OF SURVEY LAND RECORDS.
EXT.P6A COPY OF THE SKETCH ISSUED BY THE SUPERINTENDENT OF
SURVEY LAND RECORDS.
EXT.P7 COPY OF THE BASIC TAX RECEIPT DATED 19/04/2004 AND 28/11/2005.
EXT.P8 COPY OF THE BASI TAX RECEIPT DATED 05/07/2006 FOR THE
PERIOD 2006/2007.
EXT.P9 COPY OF THE STATEMENT DATED 07/07/2006 SUBMITTED BY THE
PETITIONER BEFORE THE TAHSILDAR.
EXT.P10 COPY OF THE LETTER DATED 22/08/2006 SENT BY THE
1ST PETITIONER TO THE TAHSILDAR ALONG WITH APPLICATION
FORM 10.
EXT.P11 COPY OF THE LETTER DATED 19/01/2007 SENT BY THE PETITIONER
TO THE DISTRICT COLLECTOR.
EXT.P12 COPY OF THE PROCEEDINGS DATED 18/06/2010 OF THE
SUPERINTENDENT OF SURVEY AND LAND RECORDS,
CHANGANACHERRY.
....2/-
WP(C).No. 9458 of 2007 (A)
EXT.P13 COPY OF THE RECEIPT DATED 30/03/1963 EVIDENCING PAYMENT
OF KUTHAKAPATTAM FOR 1.5 CENTS SY. NO.25/4 FOR THE
PERIODS 1961-62.
EXT.P14 COPY OF THE RECEIPT DATED 17/03/1964 EVIDENCING PAYMENT
OF KUTHAKAPATTAM FOR 1.5 CENTS IN SY.NO.25/4 FOR THE
PERIODS 1963-64.
EXT.P15 COPY OF THE RECEIPT DATED 09/10/1975 EVIDENCING PAYMENT OF
KUTHAKAPATTAM FOR 1.5 CENTS IN SY.NO.25/4 FOR THE PERIOD
1972-73, 73-74 AND 74-75.
RESPONDENT'S EXHIBITS:- NIL.
//TRUE COPY//
P.S.TO JUDGE
rs.
P.V.ASHA J.
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W.P.(C).No.9458 of 2007
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Dated this the 7th day of December, 2016
J U D G M E N T
The petitioners challenge Ext.P2 order and pray for a direction to demarcate the property covered by Ext.P1 sale deed and the property leased out to him under the Kuthakapattom Rules.
2. The 1st petitioner died during the pendency of the writ petition and his legal heirs have got impleaded as the additional petitioners herein. The 1st petitioner filed the writ petition claiming that he had purchased 10.5 cents of property, in Changanacherry Village as per Ext.P1 sale deed in the year 1961; out of the 10.5 cents of land, an extent of 9 cents is comprised in Sy.No.25/2A and 1.5 cents in Sy.No.25/4; 1.5 cents from the adjoining land was given to him on Kuthakapattom lease and he had been paying the lease rent for that 1.5 cents from 1961 onwards. It was claimed that the lease rent was only Rs.1/- which was later enhanced to Rs.11 in 1995-96. In the year 2000, the District Collector issued Ext.P2 W.P.(C).No.9458 of 2007 2 informing that the kuthakapattam lease in respect of 3.40 Ares of property in Sy.No.25/4 of Changanacherry Village which was granted to him as per K.P.1/154 was renewed for a period of 3 years from 28.02.2000 fixing the annual rent at Rs.11193/-. According to the 1st petitioner, the land given to him on kuthakapattam was having an extent of 1.5 cents only and he had not submitted application for renewal. He further stated that the lease rent was originally one rupee and it came to Rs.11/- on further revision; there was no reason to enhance the lease rent at exorbitant rate. On receipt of the Ext.P2, 1st petitioner submitted Ext.P3 representation before the District Collector on 15.3.2001, pointing out that the enhancement of rent from Rs.11 to Rs.150 in 1996 and requesting to rectify the mistake in the extent of land by re-measuring the land in accordance with the sale deed. When steps were taken for recovery of the rent as per Ext.P2, petitioner approached this Court in O.P.No.11013/2001. By Ext.P4 judgment dated 29.03.2001, this Court directed the respondents to take a decision on the representation Ext.P3 after hearing the W.P.(C).No.9458 of 2007 3 petitioner on merits. It was further ordered that till such time the orders are communicated, the steps for recovery shall be kept in abeyance on condition that the petitioner pays Kuthakapattom at the rate of Rs.150 per annum. Accordingly the 1st petitioner continued to pay Kuthakapattom at the rate of Rs.150 per annum as can be seen from Ext.P5. However, petitioners submit that the respondents conducted a survey thereafter without notice to him. As per Ext.P6 dated 31.5.2001, the Superintendent of Survey forwarded Ext P6(a) report in which 3 Ares of property in Sub Division No.25 in Sy.No.138 of Changanacherry Village was found liable to be rectified as 3.65 ares of land in the Basic Tax Register (BTR). Accordingly it was requested to carry out appropriate correction in the revenue records.
3. Petitioners submit that Tahsildar held a hearing in the matter on 29.6.2006 and 1st petitioner thereafter submitted representations Exts.P9 and P10 before the Tahsildar on 7.7.2006 and 22.08.2006 requesting to fix the boundary of 3.65 Ares on the basis of Ext.P1 sale deed in his favour and the revenue records. Another W.P.(C).No.9458 of 2007 4 representation Ext.P11 submitted to the District Collector on 19.1.2007 also did not evoke any positive response.
4. This writ petition was filed when that representation was pending and when the respondents threatened the petitioner with proceedings for eviction and the proposal to resume the land, During the pendency of the writ petition, on the basis of the request of petitioner to measure the property, the Superintendent of re-survey issued Ext.P12, letter on 18.6.2010, informing that the extent of property covered by the sale deed in favour of the 1st petitioner was found to be the same as already recorded in the resurvey and as the remaining property was recorded as road puramboke, it was not possible to rectify the difference in the extent of the land. The writ petition was amended incorporating prayers challenging Ext.P12.
5. The 2nd respondent had already filed a counter affidavit in 2007, stating that an extent of 6.900 cents (2.72 ares) of property in old survey No.25/4 of Changanacherry village was in possession of the 1st petitioner and that as per Ext.P2-proceedings W.P.(C).No.9458 of 2007 5 No.1/154/ME/Chry dated 28.2.2000, of the District Collector it was given in lease to 1st petitioner on lease fee of Rs.11193/- for 3 years; without remitting the amount he approached this Court, saying that he was using only 1.5 cents when this Court allowed him to remit lease rent at the rate of Rs.150/- pending decision of his representation; even though notices were issued fixing hearing on various dates in 2004, 2006 and 2007, he attended the last hearing alone when it was adjourned; on 24.3.2006, the Taluk Surveyor had demarcated the land as 2.72 ares and his grievances in Ext.P3 were considered; the lease rent was fixed at 10% of the market value; 1st petitioner did not have any right to construct any building in the land given on kuthakapattam for non-commercial purposes.
6. The 2nd respondent has filed a statement on 1.11.2016 stating that 1st petitioner was in possession of 6.09 cents of land on kuthakapattam, which was granted for agricultural purpose; violating the conditions in the Kuthakapattam rules lessee constructed unauthorised buildings; lease was renewed for a period of 3 years on W.P.(C).No.9458 of 2007 6 the basis of application of the 1st petitioner and lease rent was fixed at Rs.11193/- per annum with retrospective effect from 1995-96 as per proceedings dated 28.2.2000 of District Collector Kottayam. Lease rent is fixed as per rules in accordance with the market value of buildings within Kottayam Municipal area; Taluk Surveyor measured the land since the petitioner raised objections as to the area of leased out land and it was found that puramboke land held by him was 2.72 ares; revenue recovery proceedings were initiated against him for arrears of lease rent. Lessee constructed 5 shop rooms in the land leased out on Kuthakapattom for agricultural purposes and let out the same for rent in violation of kuthakapattom rules; statement further proceeds saying that the Superintendent of Survey had issued Ext.P12 proceedings as early as on 12.6.2010; petitioners did not have any complaint on it. It was only in 2016 that Ext.P12 was challenged by amending the writ petition. It is further stated that the lease is not heritable; lease came to an end on the death of 1st petitioner in the year 2011; 1st petitioner had been remitting the rent for 6.9 cents; he W.P.(C).No.9458 of 2007 7 had submitted application for renewal of lease on 2.11.1999 in respect of 6.09 cents; he constructed buildings in leased land and let out the same on rent contrary to rules. The additional petitioners have filed reply affidavit producing the tax receipts Exts.P13 to P15 asserting that the extent of land was only 1.5 cents and buildings are not in Kuthakapattam land.
7. Sri. A. A. Mohammed Nazir, the learned counsel for the petitioner pointed out that the additional petitioners are not interested in the land on kuthakapattam and they are not interested in raising any claim on that property. The case of the 1st petitioner was that he was given only 1.5 cents of land and he had been requesting for demarcating the kuthakapattam land.
8. Sri. K.J. Mohammed Anzar, the learned special Government Pleader for Revenue argued that the land given on kuthakapattam was already demarcated and it was found to be 2.72 ares. It was also argued that the 1st petitioner who violated the conditions in the kuthkappattam lease by constructing unauthorised buildings, was not entitled to any relief in the writ petition. W.P.(C).No.9458 of 2007 8 He was liable to pay the rent as fixed in Ext.P2 with effect from 1995-96.
9. On consideration of the contentions it is seen that originally the dispute was regarding the actual extent of land given on kuthakapattam along with the exorbitant rate of rent from 1995-96. Neither of the parties have produced any material relating to the original kuthakapattam lease by which the 1st petitioner was given the land. The only material the parties on either side rely is Ext.P2, which is only a renewal of lease granted for 3 years. Eventhough, it is stated to be on the application of 1st petitioner, submitted in 1999, as referred to in Ext.P2, 1st petitioner disputes it. The 2nd respondent did not choose to produce the application referred to in Ext.P2, even though their contention is that the application was for renewal of lease of 6.09 cents of land. No explanation is furnished against the contention that the lease rent cannot be enhanced with retrospective effect, while admitting the enhancement from 1995-96. Even though nothing is seen stated in Ext.P2 that the lease rent is enhanced from 1995-96, the 1st petitioner's case before W.P.(C).No.9458 of 2007 9 the 1st respondent as well as in the writ petition is that lease rent (kuthaka pattam) was revised with retrospective effect from 1995-96. In the counter affidavit filed in 2007, the 2nd respondent did not state anything regarding the enhancement from 1995-96 onwards. However, in the statement filed in November 2016, it is admitted that the lease was enhanced with effect from 1995-96.
10. The prayer in the writ petition was to demarcate the property given on kuthaka pattam lease on the basis of dispute in area of land leased out. The first petitioner died on 24.08.2011. It is admitted by both sides that the kuthakapattam lease in question is not heritable. At any rate the additional petitioners are not interested to raise any claim over the land on kuthaka pattam.
11. In the absence of any material based on which the lease rent was fixed from Rs.11/150 to Rs.11,193/- that too with retrospective effect and in the absence of a decision in terms of the Ext.P4 judgment, the enhancement of lease rent as per Ext.P2, that too without notice to the leaseholder can only be found illegal and in W.P.(C).No.9458 of 2007 10 violation of the principles of natural justice.
12. As per Ext.P12, the property covered by Ext.P1 sale deed is found to be in accordance with the revenue records. With the support of the tax receipts Exts.P13 to P15 of 30.3.1963, 17.3.1964 and 9.10.1975, petitioner asserts that the extent of kuthakapattam land was only 1.5 cents. In Ext.P14 tax receipt, the extent is shown as 1.5 cents. Ext.P15 receipt relates to KP1/114.
13. The complaint of the respondents was that the petitioner constructed unauthorised buildings in Kuthakapattam land whereas the additional petitioners do not propose to raise any claim with respect to the kuthakapattam land. That being so, there is absolutely no justification in initiating any proceedings for recovering the amount covered by Ext.P2, when this Court has already permitted the 1st respondent to remit the pattam at the rate of Rs.150/-. Regarding the fixation of lease rent in Ext.P2, the case of the 2nd respondent is that the lease rent was fixed at Rs.11193/- with retrospective effect from from 1995-96 in accordance with the market value. At the same time the respondents have not W.P.(C).No.9458 of 2007 11 disputed the claim of the petitioners that the lease rent was Rs.1/-, then enhanced to Rs.11, etc. Ext.P2 is only a renewal of lease for 3 years. Rule 8(4) of the Kuthakapattom Rules provides for revision of rates of pattom every 12 years, in regard to all leases without limit of time and in cases where leases are granted without auction. Rule 8(iii) provides that amount of pattam shall not be interfered with during the currency of the lease. Therefore the rules do not permit a retrospective revision of lease rent.
14. If at all the rent was fixed in accordance with law , if the rent was not agreeable and the 1st petitioner disputed the extent of land, there was no reason for the respondents to impose on the 1st petitioner the entire puramboke land or any land in excess of what the the 1st petitioner was originally given or which he did not require.
15. If the last revision was in 1996, as claimed by the petitioner, the retrospective revision as admitted by the respondents from 1995-1996, in the year 2000 is contrary to Clause (iii) and (iv) of the Kuthakapattam rules.
W.P.(C).No.9458 of 2007 12
16. At any rate before revising the rent-
Kuthakapattom, in this manner no notice was issued to the petitioner. On that ground also Ext.P2 is liable to be set aside in a case where the enhancement is drastic.
17. In the above circumstances, the order Ext.P2 shall stand set aside. It will be open to the respondents to collect the kuthakapattam from the additional petitioners in case any amount is due till the death of the 1st petitioner, if necessary after demarcating the land which was given on kuthukapattam on the basis of the original lease prior to Ext.P2 without any retrospective enhancement. At any rate, if any such demarcation is made that should be with notice to additional petitioners and taking into account the sale deed Ext P1 and in accordance with law within a period of 'two months' from the date of receipt of copy of the judgment.
18. On the basis of the direction from this Court the petitioner had been paying Kuthakapattom at the rate of Rs.150 per year. The additional petitioners shall pay the arrears of lease rent, if any, to the respondents, at the rate of Rs.150/- till the date of the death of the first W.P.(C).No.9458 of 2007 13 petitioner within a period one month from the date of receipt of copy of the judgment. Respondents will not be entitled to realise any lease rent from the additional petitioners for the period subsequent to the death of the first petitioner.
The writ petition is disposed of accordingly.
Sd/-
P.V.ASHA, JUDGE.
AS