Rama Iyer v. Secretary to Government, Revenue Department, Secretariat, Thiruvananthapuram & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **WEDNESDAY, THE 19TH DAY OF OCTOBER 2016/27TH ASWINA, 1938** **WP(C).No. 32442 of 2009 (A) ----------------------------** **PETITIONER(S): -------------** **RAMA IYER, S/O.LATE MAHADEVA IYER,, T.C.37/1053, TIPPU STREET, FORT VANCHIYOOR, THIRUVANANTHAPURAM.** **BY ADVS.SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN SMT.MINI GANGADHARAN** **RESPONDENT(S):** - **--------------** **1. SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE REVENUE DIVISIONAL OFFICER, THIRUVANANTHAPURAM.** **3. M/S.R.VEERA RAGHAVA IYER, SABHAPATHI KOVIL STREET, THYCAUD VILLAGE, THIRUVANANTHAPURAM, REP. BY SRI.S.GANAPATHI IYER.** **R1 & 2 BY GOVERNMENT PLEADER SMT.PRINCY XAVIER R3 BY ADVS. SMT.K.R.RIJA SRI.SUMAN CHAKRAVARTHY** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-10-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **WP(C).No. 32442 of 2009 (A)** ## **----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXHIBIT P1 TRUE COPY OF THE ORDER PASSED BY THE TAHSILDAR DATED 18TH KARKIDAKOM 1117 M.E EXHIBIT P2 TRUE COPY OF THE PROPERTY TAX RECEIPT EXHIBIT P3 TRUE COPY OF THE LAND TAX RECEIPT EXHIBIT P4 TRUE COPY OF THE JUDGMENT IN OP.494/1988 DATED 5/12/88 EXHIBIT P5 TRUE COPY OF THE ORDER NO.A3-23967/83 DATED 29/3/88 EXHIBIT P6 TRUE COPY OF THE JUDGMENT IN OP.8410/1990 DT.21/6/2002 EXHIBIT P7 TRUE COPY OF THE ORDER NOD.DIS/7895/02/B DATED 26/11/2007 OF RDO EXHIBIT P8 TRUE COPY OF THE ORDER IN REVISION DATED 24/7/2009 RECEIVED ON 30/7/2009. RESPONDENT(S)' EXHIBITS ----------------------NIL. / TRUE COPY / P.S. TO JUDGE** **PJ** ## **P.V.ASHA, J.** ----------------------------------------------------W.P(C) No.32442 of 2009-A ---------------------------------------------------Dated this the 19[th] day of October, 2016 ## **JUDGMENT** The petitioner is challenging the orders Ext.P7 issued by the Revenue Divisional Officer which was passed on the basis of the directions contained in Ext.P6 judgment in O.P.No.8410/1990 and CRP.No.1219/1993. He challenges Ext.P8 order also, issued by the Government, filed against Ext.P3, rejecting his claim for assignment of property in which he claimed possession. 2. The case of the petitioner is that 1.120 cents of land comprised in Sy.No.2444/40 of Chembassery Village was given on kuthakapattom lease to his predecessor late R.Mahadeva Iyer in the year 1117 M.E. The petitioner submits that lease was granted taking into consideration the building which was in that land. Ext.P1 order passed by the Tahsildar on 18[th] Karkadakam 1117 is produced stating that kuthakapattom lease was granted as per that order. The petitioner further submits 2 W.P(C) No.32442 of 2009-A that his father was paying the property tax as well as land tax as seen from Exts.P2 and P3 for the building which was in his possession and numbered as T.C.38/790 and 38/791; the village officer refused to accept tax from the petitioner's predecessor on 28.2.1984, when late Mahadeva Iyer filed a complaint based on which the Tahsildar had issued a notice. It was informed that the land in question was already assigned to Sri Veera Raghava Iyer, the 2[nd] respondent herein, on 3.2.1986. The objection raised by late Mahadeva Iyer was thereupon heard by the Assistant Collector, who rejected the same; the Tahsildar, Thiruvananthapuram had issued Ext.P5 order on 29.03.1988 directing the Village Officer not to accept tax in respect of the land in question from anybody. Ext.P5 order shows that the said proceedings were issued after considering the application submitted by the 2[nd] respondent and the objection of late Mahadeva Iyer. In his order, the Tahsildar found that the land has been in possession of the 2[nd] respondent. It was stated that the said land was given on lease to the 2[nd] respondent for a period of 3 years as per the office proceedings No.A3-23967/83 after observing all the formalities and conducting due enquiries. W.P(C) No.32442 of 2009-A 3 Late Sri Mahadeva Iyer filed O.P.No.698/1986 before this court challenging the lease granted to the 2[nd] respondent, which was ultimately dismissed as withdrawn, since it was submitted that he was pursuing an appeal filed before the Revenue Divisional Officer ('R.D.O' for short), Thiruvananthapuram against the grant of lease to the 2[nd] respondent. The R.D.O, as per order dated 18.12.1987 rejected the same, saying that the said appeal was not maintainable since the period of lease was already over on 13.5.1987. The contention of the petitioner's predecessor was that the land which was already on kuthakapattom lease in his name, could not have been further granted on lease to the 2[nd] respondent; it was his claim that the 2[nd] respondent was only a tenant in that building and he was running a shop. The Tahsildar further found that late Mahadeva Iyer was the original lessee in respect of the land; he lost possession of the same when the 2[nd] respondent got it on lease and the building was in possession of the 2[nd] respondent for the last 30 years. But the case of late Mahadeva Iyer was that the possession was given to the 2[nd] respondent on rental arrangement. Based on this contention of the petitioner's predecessor, the Tahsildar found 4 W.P(C) No.32442 of 2009-A that the Government land leased out under kuthakapattom rules should not have been given on sublease and therefore, the petitioner's predecessor had lost his possession voluntarily, immediately on subletting the same and late Mahadeva Iyer himself disproved his claim. Alleging violation of the conditions of lease provided for in Rule 26 B(1) of the kuthakappattam rules, it was held that late Mahadeva Iyer himself terminated the lease on his own and the lease itself got cancelled under Rule 26B(3) of the kuthakapattom rules. Therefore, orders were passed in favour of the 2[nd] respondent, for renewal of lease. 3. Late Mahadeva Iyer took up the matter before this court in O.P.No.8410/90. During the pendency of that O.P, the petitioner got impleaded consequent to the death of the Mahadeva Iyer. The O.P was heard along with CRP.No.1219 of 1993. In the judgment Ext.P6 dated 21.06.2002, this Court found that lease arrangement entered into with late Mahadeva Iyer was a permanent lease on kuthakapattam, as admitted in the counter affidavit filed by the Government and it was also admitted that the building therein was constructed by him and rented out to the 2[nd] respondent herein. This court also took W.P(C) No.32442 of 2009-A 5 note of the Rent Control petition filed by late Mahadeva Iyer and the order therein directing the 2[nd] respondent to pay the rent to Mahadeva Iyer. It was found that the 2[nd] respondent was granted the lease on kuthakapattom only thereafter. This court also found that the rejection of appeal by the R.D.O, on the ground of delay, when it was filed within a period of 7 days, as directed by this court, was illegal and even if the period of lease was over, it should not have been rejected on the ground of delay or maintainability. It was also found that the contention of the petitioner about his right to be heard before cancellation of that kuthakapattom lease, which was a permanent lease arrangement, should have been considered. Therefore, this court set aside the order of the R.D.O and directed to re-consider the appeal and to take a decision on the question of cancellation of lease and grant of renewal of lease and all connected matters afresh after hearing both the parties. This court had also observed that there was no order cancelling the kuthakapattom given to the petitioner and without cancelling the same in accordance with rules, the said land could not have been assigned to another person. The CRP was dismissed leaving it W.P(C) No.32442 of 2009-A 6 open to the petitioner to move Rent Control Petition afresh, depending on the decision on title. 4. In Ext.P7 order, passed thereafter, the R.D.O found that the properties comprised in Survey No.2440/40 were not leased out to late Mahadeva Iyer on kuthakapattom without time limit either under the Government Land Assignment Act 111 of 1097 or under the Kuthakapattom Rules, 1947 and hence the appeal petition was not maintainable. On perusal of the tax receipt which was produced therein, the R.D.O found that the said receipt was the one issued towards payment under Land Conservancy Act, which was in arrears upto 1966-'67, which would show that the arrears on assessment under Rule 8(d) of the Land Conservancy Rule, 1958 was paid for the whole period of unauthorised occupation. Therefore, it was stated that the said land was not leased out to the appellant on kuthakapattom. It further found that the complaint of the appellant that the village officer did not accept the land tax from him from 1983 onwards was made, producing the fraudulent and forged receipts whereby appellant was trying to mislead the authorities for his personal benefits. Further, the R.D.O found that the W.P(C) No.32442 of 2009-A 7 appellant could not produce any material to substantiate his claim that he got kuthakapattom for unlimited period as per proceedings of the Tahsildar in 1941. It was further stated that the rules which then existed were superseded by Kuthakapattom Rules, 1947 and there was no saving provision which is preserved in the 1947 Rules. It was thus found that the appellant did not have any kuthakapattom grant. At the same time, it was found that the 2[nd] respondent was in possession of the land which was given to him on lease as per order dated 14.5.1984 and he was paying rent at 8% of the market value fixed for land and renewal was ordered in his favour w.e.f 13.5.1990 and there was an application from one of the partners of the Veeraraghava Iyer and Co. for permanent kuthakapattom which was pending consideration with recommendation of the Tahsildar and he had challenged the same as against enhancement of rent. In view of the judgment of this court in O.P.No.715 of 1988 and connected cases regarding the validity of Kuthakapattom Rules, the R.D.O found that the claim of the appellant cannot be accepted since the said rules ceased to exist as held by this court. Hence the claim of the petitioner was 8 W.P(C) No.32442 of 2009-A rejected. 5. The petitioner took up the matter before the Government and the Government by Ext.P8 order, affirmed the order passed by the R.D.O and further found that neither the petitioner nor the 2[nd] respondent was entitled to possession of the land. It was further found that prohibitory assessment levied against late Mahadeva Iyer as early as in 1117 ME, will indicate that he was an encroacher of Government land; there was no evidence for payment of land tax by Mahadeva Iyer at any point of time; he had sublet the premises to the 2[nd] respondent, which was not permissible and therefore the petitioner is not entitled to get the land assigned on lease. Since the 2[nd] respondent did not comply with the conditions stated in the lease granted to him it was found that the building in question was kept unused for a long time and therefore it was a fit case where the Government should take over the land. Accordingly the Government directed the District Collector to resume the land after giving due notice to the lease holder. It is as against these orders that the petitioner has approached this court. When the R.D.O says that the land was not given in lease in favour of the petitioner's W.P(C) No.32442 of 2009-A 9 predecessor, the Government says that the petitioner's predecessor was an encroacher, having remitted the prohibitory assessment tax and at the same time in the judgment Ext.P6 this court found, on the basis of the admission of the respondents themselves, that the land in question was given on lease to the late Mahadeva Iyer and it was a permanent lease and the building was constructed by the petitioner's father. Pointing out these contradictions the petitioner points out that the R.D.O as well as the Government cannot be heard to contend that the petitioner's predecessor was not given the land on lease and that the land was not liable to be resumed, as directed in Ext.P8. 6. I heard the learned counsel for the petitioner and the learned counsel appearing for the respondents and the learned Government Pleader. The learned counsel for the 2[nd] respondent submitted that the 2[nd] respondent is not interested in pursuing the matter and the land is already resumed by the Government. But the learned counsel for the petitioner disputes this statement pointing out that this court has stayed further proceedings based on Exts.P7 and P8. 7. This Court in Ext.P6 after referring to the notice 10 W.P(C) No.32442 of 2009-A ## Ext.P1 found as follows: “From the above notice it is clear that he was allowed to construct buildings also in the place. His lease as a permanent lease is admitted in the counter affidavit filed by the Government also. Admittedly he constructed building therein and rented out the same to the fifth respondent, R.Veera Raghava Iyer. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx The contention mainly raised by the petitioner was that his kuthakapattom cannot be cancelled and in any event before cancelling the permanent kuthakapattom in his favour, it cannot be granted to any other person. Before cancelling the permanent lease given to him he should have been heard. xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx” It was after finding the admission of the respondents that the land was given on lease to Sri late Mahadeva Iyer on permanent kuthakapattom or permanent lease that this court directed the R.D.O to consider and pass orders on the appeal filed by him. It is to be noted that the appeal filed by the petitioner's predecessor was rejected on the ground of delay as well as maintainability. With respect to that, this court found that when the appeal was filed on direction of this court within the time limit, it was not liable to be dismissed and the respondents had to decide the question whether the lease period on kuthakapattom was already over on 30.05.1987. The appeal was filed after late Mahadeva Iyer had filed O.P.698 of 1986, as permitted by this court, within a period of 7 days. In these W.P(C) No.32442 of 2009-A 11 circumstances, it was found that the rejection of the appeal on the ground that the period of kuthakapattom was already over on 30.05.1987 or that the appeal was time barred cannot be reasons for not determining the question raised. Thereupon this court directed to consider the contentions raised by sri Mahadeva Iyer on his claim that the property was given on permanent lease on kuthakapattom. It was thereafter that Ext.P7 order was passed by the R.D.O saying that the petitioner produced forged documents; misrepresented etc. and moreover, it was found that he was not granted lease on kuthakapattom. 8. When the respondents themselves admitted before this court, it was not right or proper on the part of the respondents to pass an order like Ext.P7 or Ext.P8 stating that the said land was not given on kuthakapattom. As per the rules which existed at the time when Ext.P1 notice was issued, ie. in the year 1942, the relevant rules governing the kuthakapattom was the kuthakapattom Rules, 1935 framed under Section 7 of Regulation III of 1097 of the Travancore State. As per these rules, the land given on permanent lease could not have been terminated without notice. As per clause 15 thereof, all leases W.P(C) No.32442 of 2009-A 12 whether with time limit or without limit of time shall be subject to the conditions specified in the grant provided in Rule 28. Clause (b) thereof provides that the lessees shall not alienate the lease without obtaining the previous sanction of the officer who granted the lease. It also provides that the Tahsildar who granted the lease would be competent to cancel the lease without notice on termination of lease or at any other time, after three months' notice if the land is required for Government or public purposes. These rules were superseded by the subsequent rules framed in 1947 and Rule 26(b)(iii) of those rules provided for termination of lease without notice in the event of violation of conditions of the grant, apart from the provisions for termination on other grounds with 3 months' notice. Under Rule 8 of the Rules, 1964, the registry can be cancelled for contravention of the provisions in the sub rules or if it was grossly inequitable or was made under a mistake of facts or owing to misrepresentation etc. Proviso to Rule 8(3) provides that no registry of land shall be cancelled without giving the party or parties affected thereby a reasonable opportunity of being heard. 13 W.P(C) No.32442 of 2009-A 9. The question regarding the interpretation of kuthakapattom lease came up for consideration before this court in **Shahhul Hassan Musaliyar.T.K v. State of Kerala & Ors.** [2015 4 KHC 615]. In paragraph 24 of the judgment, a similar contention of the Government, where it denied the nature and period of the lease, after admitting the lease in the counter affidavits filed in the earlier proceedings was considered. In that case, the kuthakapattom lease was granted in the year 1944 when 1935 rules were in force, as in the present case. Even though the question which came up for consideration was whether the kuthakapattom lease could be inherited, interpretation of the provisions regarding termination of lease, made therein, can be applied in this case also. In this case it is found that the land which was assigned to late Mahadeva Iyer was given on lease to the 2[nd] respondent, and that lease was upheld and Government in Ext.P8 order, directed to resume the land. But neither the R.D.O nor the Government considered the directions of this court in Ext P6 judgment with reference to the admission made by them in the counter affidavit in that case as to the permanent lease given to Mahadeva Iyer, as observed in W.P(C) No.32442 of 2009-A 14 the judgment Ext.P6 and his claim as to the possession of the land and building right from 1941. The respondents did not go into the question whether notice was necessary or notice was given before cancellation of lease or whether a cancellation was possible without notice. In the above circumstances, the orders Exts.P7 and P8 are unsustainable and hence I quash the same and direct the respondents to pass orders afresh in accordance with law taking into consideration of the rules under which late Mahadeva Iyer was granted the lease, after hearing the petitioner within a period of three months from the date of receipt of a copy of this judgment. The interim order passed by this court on 13.11.2009 to maintain status quo shall continue till orders are passed. The writ petition is disposed of accordingly. Sd/- **(P.V.ASHA, JUDGE)** rtr/