Moidu Haji A.A. v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 13TH DAY OF JUNE 2018 / 23RD JYAISHTA, 1940** **WP(C).No. 8507 of 2012** **----------------------** ## **PETITIONER** ## **----------** **MOIDU HAJI A.A, AGED 78 YEARS, AMBALATH HOUSE 7/442,MARAKKADAVU, KOCHI-682002,ERNAKULAM.** **BY ADVS.SRI.A.M.NASEER SRI.RAJESH THOMAS** ## **RESPONDENT(S):** - **--------------** **1. THE STATE OF KERALA REPRESENTED BY THE SECRETARY, REVENUE DEPARTMENT, THIRUVANANTHAPURAM-695001, KERALA.** **2. THE DISTRICT COLLECTOR, ERNAKULAM-682021, KERALA.** **3. TAHSILDAR, TALUK OFFICE,KOCHI-682001, ERNAKULAM.** **4. DEPUTY TGHAHSILDAR(RR), KOCHI-682001,ERNAKULAM.** **5. VILLAGE OFFICER, THOPPUMPADY, KOCHI-682005,ERNAKULAM.** **BY SENIOR GOVERNMENT PLEADER SRI SAIGI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **K.V.** **WP(C).No. 8507 of 2012 ----------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS: --------------------** - **P1: TRUE COPY OF THE DEMAND NOTICE DATED 29.6.2009.** - **P2: TRUE COPY OF THE LETTER DATED 2.2.2010.** - **P3: TRUE COPY OF THE LETTER DATED 22.3.2010 ISSUED BY THE 2ND RESPONDENT.** - **P4: TRUE COPY OF THE REPRESENTATION DATED 9.5.2010 ISSUED BY THE PETITIONER TO 2ND RESPONDENT.** - **P5: TRUE COPY OF THE JUDGMENT DATED 18.10.2010 IN WPC NO.31505/2010** - **P6: TRUE COPY OF THE REPRESENTATION DATED 6.11.2010 ISSUED BY THE PETITIONER TO 2ND RESPONDENT.** - **P7: TRUE COPY OF THE NOTICE NO.L9-61101/08 DATED 7.1.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P8: TRUE COPY OF THE LETTER NO.B1-9502/06 DATED 5.2.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER FOR HEARING.** - **P9: TRUE COPY OF THE STATEMENT NO.B1-9502/06 DATED 7.2.2011 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **P10: TRUE COPY OF THE LETTER NO.L9-61101/08 DATED 9.8.2011 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER.** - **P11: TRUE COPY OF THE OBJECTION ALONG WITH APPLICATION UNDER R1 ACT DATED 11.10.2011 ISSUED BY THE PETITIONER TO THE 2ND RESPONDENT.** - **P12: TRUE COPY OF THE REPRESENTATION ALONG WITH APPLICATION UNDER R1 ACT DATED 8.12.2011 ISSUED BY THE PETITIONER TO THE 5TH RESPONDENT.** - **P13: TRUE COPY OF THE LETTER NO.RIA/20/11-12/TPDY DATED 22.12.2011 ALONG WITH THE COPY OF THE AVAILABLE LEASE REGISTER ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **P14: TRUE COPY OF THE REPRESENTATION DATED 17.3.2012 TO THE 1ST RESPONDENT.** - **P15; TRUE COPY OF THE POSTAL RECEIPT DATED 17.3.2012 EVIDENCING THE SENDING OF EXT P14 REPRESENTATION.** - **P16: TRUE COPY OF THE LAND VALUATION CERTIFICATE NO HI DR NO.8986/2006/KDIS DATED 14.2.2008 ISSUED BY THE 3RD RESPONDENT** ## **RESPONDENTS EXHIBITS:** ## **---------------------** **R3(A) TRUE COPY OF DISTRICT COLLECTOR'S ORDER NO.L9-61101/08 DATED 3.1.2008** **K.V. P.S.TO JUDGE** **21.06.2018** ## **ALEXANDER THOMAS, J.** ## **-------------------------------------------------WP(C) No.8507 of 2012** **-------------------------------------------------Dated this the 13[th] day of June, 2018** ## **JUDGMENT** The prayers in this writ petition [Civil] are as follows:- _“i. Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Exts.P1 and P10 and quash the same as illegal; AND_ _ii. To issue a direction to the respondents to fix the lease rent @ten percent of the market value from 1995 and to declare that the petitioner is not entitled to pay the interest from the year 1995; AND_ _iii. To issue a direction to the respondents to fix the market value for the year as 2004-2007 @Rs.60,000/- as per Ext.P16 and thereafter accordingly; AND_ _iv. To issue a direction to the respondents to declare that petitioner is entitled to settle the lease arrears from 1995 by remitting twenty five percent of the finalized lease arrears; AND_ _v. Grant such other reliefs as this Hon'ble Court may deem fit and proper in the circumstances of the case.”_ ## 2. The petitioner is aggrieved by Ext.P1 revenue recovery proceedings dated 26.09.2009 as well as the decision rendered as per Ext.P10 dated 09.08.2011 by the 2[nd] respondent District Collector, Ernakulam, whereby steps have been taken for realising arrears of lease rent said to be due on Government land, which is said to be in the possession of the petitioner. As per the averments in the Counter Affidavit dated 21.06.2013 filed by the 3[rd] respondent, the following _WP(C) No.8507 of 2012_ **2** aspects have been stated: That an extent of 5 cents of puramboke land in Survey No.1304 of Thoppumpady Village was granted to one Smt.Ummachumma, D/o.Alikkutty, Ponnambalathu Veedu on lease basis and later the said land came under the possession of the petitioner. It is the case of the respondents that the said land was unauthorisdely transferred by the lessee to the petitioner without the consent or knowledge of the respondents: That as per the mandate of Rule 14 of the Rules for Assignment of Land within Municipal and Corporation Areas, 1995 [for brevity, the Rules] land held on lease should not be alienated under any circumstances and that therefore the transfer of lease land is illegal; that as per Rule 12(5) and 17 of the said Rules, the recovery of arrears of lease rent and resumption of land could be effected. The petitioner was called upon for hearing on 11.01.2007 as per Ext.P7 dated 07.01.2011 and one Sri. Rasheed, son of the petitioner appeared and the District Collector had passed Ext.R3(a) order dated 03.01.2008, whereby it is directed to recover the arrears of lease rent to common custody. Therefore the steps were also taken demanding that the petitioner should remit arrears of lease rent as per notice dated 20.01.2009, but that the petitioner had filed to remit the dues within the stipulated time and this has constrained the 3[rd] respondent to _WP(C) No.8507 of 2012_ **3** initiate the impugned the revenue recovery proceedings against the petitioner to remit the arrears; that the Special Tahsildar [RR] had issued Ext.P1 demand notice under Sections 7 & 34 of the Revenue Recovery Act was issued calling upon the petitioner through the Village Officer, Thoppumpady for realising the Rs/2,44,141/- and interest for the period of 1995-2007. Thereupon the petitioner had filed WP(C) No.31505 of 2010 and this Court had disposed of the said writ petition as per Ext.P5 judgment dated 18.10.2010, whereby this Court had directed the District Collector to take a decision on the representation of the petitioner as per Ext.P7 therein, after hearing the petitioner and after conducting due enquiry, within three months and that till orders are passed thereon, the impugned revenue recovery proceedings were directed to be kept in abeyance. Based on the said directions issued as per Ext.P5 judgment, the 2[nd] respondent District Collector had issued Ext.P8 hearing notice directing the petitioner to appear before the 3[rd] respondent Tahsildar, Kochi on 07.02.2011. One Sri.A.M. Nazeer, son of the petitioner, had attended the hearing on behalf of the petitioner and mainly two points were raised regarding the land value and land in question and that the lease land is actually used for residential purpose and not for commercial purpose. That the matter was enquired in detail _WP(C) No.8507 of 2012_ **4** and it was found that the aforesaid amount demanded in the Collector's order dated 03.01.2008 was in accordance with the land value prevailed in the year 2004 to 2007 and that the land was leased out to the original lessee for commercial purpose and the petitioner had unauthorisedly taken possession of the Government lease land from the original lessee. It is also the case of the 2[nd] respondent District Collector that the land in question is used by the petitioner for commercial purpose. It is also stated that the 3[rd] respondent had issued Ext.P9 letter dated 07.02.2011, whereby the petitioner was called upon to submit proof that the land in question has been used only for the residential purpose so that the petitioner could be given deduction in his arrears as per the norms. It is stated that the petitioner had not produced any records regarding the land in question is used only for residential purpose and not for commercial purpose and therefore the said request of the petitioner that the land was used only for residential purpose could not be acted upon. It is now brought to the notice of this Court that Ext.P10 order dated 09.08.2011 has been passed by the 2[nd] respondent District Collector rejecting the above said plea of the petitioner and the said order at Ext.P10 reads as follows: _“On verification of records an extent of 5.000 cents_ _WP(C) No.8507 of 2012_ **5** _of Puramboke Land in survey No.1304 of Thoppumpady Village was granted to Ummachumma, D/o.Alikkutty, Ponnambalathu Veedu on lease. The said land is unauthorisedly transferred to you without the consent or knowledge of Government. The land held on lease shall not be alienated under any circumstances as per Section 14 of the Rules for Assignment of Land within Municipality/Corporation Areas, 1995. As an unauthorised occupant in the Government Land, you are liable to pay the lease rent as and when fixed by Government and Government are at liberty to resume the land._ _As per the land value certificate H1-CR No.8986/06/K.Dis. issued by Tahsildar, Kochi on 14.02.2008, the valud of land pertains to the year 2005 and the same was also convinced to you by the Tahsildar, himself. Hence for the purpose of fixing lease rent the land value calculated as Rs.1,00,200/- for the year 2004-2007 is not exorbitant as alleged. Likewise the lease rent for the period 1995-2004 is fixed as 20% of the market value based on GO(MS) No.566/95/RD dated 13/11/95, as the land in question is given for commercial purpose. The Statement recorded on 11/1/07 also has been revealed that Sri.Rasheed, S/o.Sri. Moidu is using the said land for commercial purpose._ _Based on the reasons stated above, your above mentioned objections are not sustainable and there is no need for any reconsideration in respect of the land value fixed earlier. Hence, you are directed to pay the lease rent arrears at the earliest and avoid further legal consequences in this matter.”_ 3. It is brought to the notice of this Court that as against Ext.P10 order the petitioner had filed Ext.P14 representation dated 17.03.2012 before the 1[st] respondent State Government in the Revenue Department. Having regard to the rival contentions of both sides, this Court is of the view that as of now there are no materials to clearly show as to how the impugned demand is technically wrong. Also no material particulars are _WP(C) No.8507 of 2012_ **6** also placed before this Court to understand as to how the land value has been calculated based on 20% of the market value as stated in Ext.P10. It is seen that,while admitting this case, this Court had passed an interim order on 04.05.2012 directing that the revenue recovery proceedings shall be kept in abeyance on condition that the petitioner to pay an amount of Rupees One lakh within a period of 15 days and to pay the balance amount in four equal instalments in every succeeding months. When the matter had taken up for consideration on 22.05.2012 this Court had recorded the submission made by the petitioner that he has remitted an amount of Rupees One lakh. The subsequent developments in the case are not brought to the notice of this Court as to whether the petitioner has complied with the terms and conditions imposed by this Court as per interim order dated 04.05.2012 to pay the balance amount due in instalments in every succeeding months etc. Accordingly, it is ordered that in case the petitioner has any pending or other grievances, he may approach the 1[st] respondent for ventilating such grievances in this regard by giving all details of the facts of the case and also as to whether he has paid the aforesaid amount of Rupees One lakh and the balance amount in terms of this Court's order dated 04.05.2012. A copy of the said representation that may be moved by the _WP(C) No.8507 of 2012_ **7** petitioner may also be furnished to the 2[nd] respondent District Collector. On receipt of such representation of the petitioner, the competent authority of the State Government may call upon the 2[nd] respondent District Collector, Ernakulam to furnish detailed report with respect to the above case and also as to the details as to how the land value was arrived as stated in Ext.P10 order dated 09.08.2011. The said report of the District Collector will also be made available to the petitioner in order to enable him to put forward his submissions, if any, as against these aspects. Thereafter, the competent authority of the State Government may afford reasonable opportunity of being heard to the petitioner and then take a final decision on the matter without much delay at any rate within a period of three months from the date of submission of the said representation. With these directions, the above writ petition will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE.** //True Copy// P.A. To Judge sp/16/06/18