IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM WEDNESDAY, THE 12TH AUGUST 2009 / 21ST SRAVANA 1931 WP(C).No. 29382 of 2003(W) --------------------------------------- PETITIONER: ----------------- HINDU VANITHA SANGHAM, A SOCIETY REGISTERED UNDER THE TRAVANCORE COCHIN LITERARY SCIENTIFIC AND CHARITABLE SOCIETIES ACT, 1955, REP. BY ITS SECRETARY,SUSHMA S. D/O. SAROJINI, AGED 53, R/A PRIYANKA, MANIKANTESWARAM P.O.,TRIVANDRUM., AUTHORISED & EMPOWERED TO REPRESENT THE SOCIETY. BY ADV. SRI.R.S.KALKURA RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA,SECRETARIAT, TRIVANDRUM. 2. THE SECRETARY, GOVERNMENT OF KERALA, BOARD OF REVENUE, SECRETARIAT, TRIVANDRUM. 3. PRINCIPAL SECRETARY, FINANCE, GOVERNMENT OF KERALA, SECRETARIAT, TRIVANDRUM. 4. DISTRICT COLLECTOR, COLLECTORATE, TRIVANDRUM 5. TAHASILDAR, TALUK OFFICE, TRIVANDRUM. ADDL.ADVOCATE GENERAL FOR R1 TO 5 GOVERNMENT PLEADER SRI. M.R. SABU THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12 / 08 /2009 , ALONG WITH OP NO. 8979 OF 2001 WPC NO. 32330 OF 2003 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 29382/2003 APPENDIX PETITIONER'S EXHIBITS Ext.P1 : Copy of the certificate of registration issued by the District Registrar Ext.P2 : Copy of the bye-law of the petitioner Society Ext.P3 : Copy of the agenda of the General body meeting dated 25.05.03 Ext.P4 : Copy of the resolution dated 08.06.03 by the petitioner society. Ext.P5 : Copy of the proceedings No.R.Dis/16435/56/RD dated 19.11.1956 Ext.P6 : Copy of the order dated 14.09.57 No.A4-12035/57/RD Ext.P7 : Copy of the GO(Ms) 654/RD dated 16.6.59 Ext.P8 : Copy of the GO(Ms) No.157/69/RD dated 27.3.69 Ext.P9 : Copy of the receipt for corporation Tax for the petitioner's building Ext.P10 : Copy of the order No.C1-19566/90 issued by the Director of Social Welfare In the Government of Kerala. Ext.P11 : Copy of the letter dated 29.10.97 issued to the petitioner by the Superintendent, Asha Bhavan, Thiruvananthapuram. Ext.P12 : Copy of the GO (Ms) 487/90/RD dated 25.7.1990 issued by the Ist respondent Ext.P13 : Copy of the receipts for paymkent of Kuthaka Pattom rent by the petitioner for period 1997-98 Ext.P14 : Copy of the receipt issued by the Corporation, Trivandrum for remittance of Hostel License fee for 2002-2003 and 2003-2004 Ext.P15 : Copy of the receipt issued by the Corporation, Trivandrum for remittance of Mess License fee for 2002-2003 and 2003-2004 Ext.P16 : Copy of the receipt issued by the Corporation, Trivandrum for remittance of PFA License fee for 2002-2003 and 2003-2004 Ext.P17 : Copy of the show cause notice NO.45834/UI/98/RD dated 6.8.99 Ext.P18 : Copy of the Statement dated 22.10.99 Ext.P19 : Copy of the GO(Rt) No.281/2002/RD dated 11.3.2002. Ext.P20 : Copy of the demand notice dated 4.8.01 Ext.P21 : Copy of the memorandum of appeal filed by the petitioner before the Ist respondent. Ext.P22 : Copy of the letter dated 16.2.1996 issued by the 5th respondent Ext.P23 : Copy of the application filed by the petitioner under rule 12(1)(a) Ext.P24 : Copy of the representation before the Hon'ble Minister for Revenue on 9.1.2003 Ext.P25 : Copy of the representation dated 16.7.2003 before the Ist respondent. Ext.P26 : Copy of the notice No.C3-4780/89 dated 16.8.2003. Ext.P27 : Copy of the Notification publishing Rules of Assignment of Land within Municipal and Corporation Areas 1993. Ext.P28 : Copy of the judgment in Writ Petition (C) No.14075/2006 RESPONDENT'S EXHIBITS : Nil // True Copy // PA to Judge. C.K ABDUL REHIM, J. ================== W.P(C) No. 29382/2003 ================== Dated this the 12th day of August, 2009 JUDGMENT The petitioner is a society, registered under the provisions of the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act 1955. The dispute pertains to cancellation of lease and resumption of land leased out to the society by the Government having extent of 50 cents. By virtue of Ext. P5 Order, dated 19/11/1956 of the Government, 50 cents of land comprised in Survey No: 597/3 of the Anchamada Village in Thiruvananthapuram Taluk was leased out to the petitioner society for a period of 30 years, for using it as a center for its welfare works in the slum areas in Thycaud and Vazhuthakadu and among university students. Ext.P5 permitted erection of buildings in the land. Eventhough another extent of 50 cents was also leased out to the petitioner society, the same was resumed by virtue of Ext.P8 Order dated 27/03/1969. Original extent of 50 cents was permitted to be continued in possession of the petitioner society. According to the petitioner, they have erected various buildings in the land and were conducting w.p.c 29382/2003 2 various institutions such as Old age home, Working womens' hostel etc. Subsequently the lease was renewed for a period of 5 years from 19/11/1986 by virtue of Ext.P12 Order fixing the annual rent at Rs.1,000/-. Accordingly the lease remained valid till 19/11/1991. As evidenced by Ext.P13, the petitioner had continued remittance of the lease amount till the year 1997- 1998. 2. The dispute arose when Ext.P17 show cause notice was issued to the petitioner requiring them to show cause as to why the lease could not be canceled and the land in question not resumed. It is alleged in Ext.P17 notice dated 06/08/1999, that the petitioner had failed in applying for renewal under the provisions of the Assignment of lands in Municipal and Corporation areas Rules 1995 (hereinafter referred as the said Rules for short). It is also alleged that the petitioner had defaulted payment of lease rent. The petitioner submitted Ext. P18 reply. But through Ext.P19 Order, dated 11/03/2002, the Government have canceled the lease. w.p.c 29382/2003 3 3. On a perusal of Ext.P19, It is noticed that the lease was canceled solely for the reason that the petitioner had failed to make payment of the lease amount at the rates calculated under the provisions of the above said Rules, introduced in the year 1995, and that they have failed to make application for renewal of lease under the provisions of the said Rules. The petitioner preferred Ext.P21 appeal, under the provisions of the Rule 18 of the above said Rules, before the Government. In the meanwhile Ext.P20 demand notice was issued against the petitioner for realization of a huge amount of Rs.74,64,480/- being arrears of lease amount along with interest. Petitioner is challenging Ext.P19 Order, and the steps for recovery initiated against them. Eventhough the petitioner had inter alia challenged Rule 12(5) of the above said Rules, it is submitted that, since the Rule had underwent amendment thereafter the challenge against the Rule is not pressed. 4. In the counter affidavit filed by the 4th respondent, it is admitted that the lease was renewed for a period of 5 years from 19/11/1986 and it was valid till 19/11/1991. But the allegation is w.p.c 29382/2003 4 that by virtue of an order dated 12/03/1991 issued by the Director of Social Welfare Department, a building situated in the leased out land was unauthorisedly sub let by the petitioner to the Social Welfare Department of the State Government, with effect from 15/03/1991, and therefore the petitioner had violated the conditions of the lease. It is further stated in the counter affidavit that, eventhough the lease was not renewed, the lease rent ought to have been calculated and paid in accordance with the rates revised through G.O(M.S)1025/85/RD dated 19/12/1985 and from 13/11/1995 onwards on the basis of the rates revised through G.O(P)566/95 dated 13/11/1995. It is further contended that there was failure on the part of the petitioner to apply for renewal under the new Rules (above said Rules) introduced in the year 1995. Hence it is contended that the cancellation of the lease is valid , and the land is liable to be resumed. It is admitted in the counter affidavit that pursuant to the order of resumption and issuance of a notice under the provisions of Kerala Land Conservancy Rules, no further action was taken due to pendency of this Writ Petition. w.p.c 29382/2003 5 5. It is an admitted fact that the appeal against Ext.P19 Order before the Government has not been considered and disposed of. The question to be decided is as to whether the lease in question is liable to be renewed under the provisions of the above said Rules, and what should be the rate of rent payable by the petitioner till such renewal, if it is decided to renew the lease. Whether the rent has to be calculated on the basis of the provisions contained in the above said Rule or as per the rates fixed under different Government Orders issued? All these questions need consideration at the hands of the Government. Since Ext.P21 appeal is pending disposal before the Government, this Court is not proposing to enter into any finding thereon. It is evident that inspite of cancellation of lease, the land was not physically resumed so far. So also it is evident that the recovery sought for with respect to the arrears of lease rent stood stayed by virtue of interim order issued in this Writ Petition. Considering all these aspects it is only in the just and proper interest of justice to direct the Government to take a decision after affording an opportunity of hearing to the petitioner. w.p.c 29382/2003 6 In the result, the Writ Petition is disposed of directing the first respondent to consider and dispose of Ext.P21 appeal and to take a final decision regarding renewal of the lease and regarding the amount to be collected as arrears of lease rent, after affording a reasonable opportunity of hearing to the petitioner. The decision in this regard shall be taken as early as possible, at any rate within 3 months from the date of receipt of a copy of this Judgment. The petitioner is directed to produce a copy of this Judgment and a copy of the Writ Petition before the first respondent at the earliest. It is made clear that all proceedings for realization of the arrears of rent initiated against the petitioner shall be kept in abeyance till the first respondent takes a decision as above. The Writ Petition is disposed as above. C.K ABDUL REHIM, JUDGE SS