IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 10TH NOVEMBER 2008 / 19TH KARTHIKA 1930 OP.No. 3038 of 2001(J) ---------------------- PETITIONER(S): --------------- 1. K.P. FRANCIS, S/O. K.C. PAPPU, AGED 60 YEARS, C/O. M/S. K.C. PAPPU AND SONS, CLOTH BAZAR ROAD, ERNAKULAM. 2. K.P. JOY, S/O. K.C. PAPPU, AGED 51 YEARS, DO. DO. 3. K.P. JOHNY, S/O. K.C. PAPPU, AGED 54, DO. DO. BY ADV. SRI.PKM.HASSAN SRI.J.JULIAN XAVIER RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 2. DISTRICT COLLECTOR, COLLECTORATE, THRIKKAKARA. 3. TAHSILDAR, KANAYANNUR TALUK OFFICE, ERNAKULAM. GOVERNMENT PLEADER SMT. K.R. DEEPA.FOR R1 TO R3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 10/11/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONERS' EXHIBITS: O.P.NO. 3038/2001. ------------------------------------------------------------- EXT.P1 TRUE COPY OF NOTICE DT. 12-10-1999. EXT.P2 REPLY DT. 29-12-1999. EXT.P3 NOTICE DT. 24-10-2000. EXT.P4 DOCUMENT DT. 12-4-1999. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 3038 of 2001 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th November, 2008. J U D G M E N T The petitioners are three brothers and partners of a firm called K.C. Pappu & Sons. They were issued with Ext. P1 notice directing them to show cause as to why ground rent payable by them in respect of 0.00.16 hectares of land in survey no. 1757/1, in their possession should not be revised in accordance with G.O (MS) No. 227/97 dated 1-4-1997. The petitioners' contention is that they are not in possession of any land in survey no. 1757/1. They purchased 3.25 cents of jenmom land in survey no. 794/6 in Ernakulam village by Ext. P4 sale deed dated 12-4-1999. They have not paid any ground rent at any time in respect of the property purchased by them. Therefore, the question of payment of ground rent or enhancement of ground rent either on the basis of Government Order dated 1-4-1997 or any other order does not arise. Taking these contentions, the petitioners filed Ext. P2 objections before the 2nd respondent. However, after an year, Ext. P3 order dated 24-10-2000 has been passed directing the petitioners to pay an amount of Rs. 4,70,162/- towards arrears of ground rent and penal charges for the period from 13-11-1995 to 31- 3-2000. The petitioners are challenging Exts.P1 and P3 orders on the above grounds. The petitioners rely on a judgment of a learned Judge of this Court in O.P.No. 28189/1999 and connected cases, whereby this Court held that G.O(MS) No. 227/97 dated 1-4-1997 is unenforceable. Therefore, according to them, even assuming that any ground rent is payable by the petitioners in respect of any property, which itself is not admitted, Exts.P 1 and P3 based on the above said Government Order are liable to be quashed. 2. A counter affidavit has been filed by the 3rd respondent wherein it is stated that 0.16 ares of land in survey no. 1757/1 of Ernakulam village is lying adjacent to the patta land of the petitioners O.P. No. 3038/2001 -: 2 :- in survey no. 794/6. According to the 3rd respondent, that Government land may have come into possession of the petitioners while purchasing the patta land in survey no. 794/6. But in so far as 0.16 ares of Government land in survey no. 1757/1 is in possession of the petitioners, the petitioners are liable to pay ground rent in respect of that property, is the contention raised in the counter affidavit. 3. In answer to the same, the petitioners would submit that in respect of the question as to whether the petitioners were in possession of any Government land or not in survey no. 1757/1, no enquiry worth the name has been conducted by the respondents, without which no ground rent can be demanded from the petitioners. 4. I have considered the rival contentions in detail. 5. In so far as Exts.P 1 and P3 are concerned, admittedly, they are based on G.O(MS) No. 227/97 dated 1-4-1997. That Government Order has been found by this Court to be unenforceable by the judgment in O.P.No. 28189/1999 and connected cases dated 28-6- 2002. That being so, Exts.P 1 and P3 are liable to be quashed on that ground alone. I do so. 6. As far as the question as to whether the petitioners are in possession of any Government land or not, that can only be after a detailed enquiry with notice to the petitioners. In Exts.P 1 and P3, the demand is only in respect of survey no. 1757/1 and not with reference to survey no. 794/6. Despite Ext. P2 objections filed by the petitioners, there is absolutely no mention whatsoever on the question as to whether the petitioners are in possession of any Government land or not. The first time they raised that contention is in the counter affidavit. Hence, it is abundantly clear that no enquiry worth the name has been conducted on that question. Therefore, on the basis of Exts.P 1 and P3, which, in any event, has been quashed by O.P. No. 3038/2001 -: 3 :- me, there cannot be any final decision on the question as to whether the land in possession of the petitioners is Government land or not. It is up to the respondents to decide that question, after conducting a detailed enquiry with notice to the petitioners in respect of the same. That right of the respondents is left open without expressing any opinion on the merits of the rival contentions. The original petition is disposed of as above. Sd/- S. Siri Jagan, Judge. Tds/