IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 9TH JUNE 2011 / 19TH JYAISHTA 1933 WA.No. 2184 of 2009() --------------------- AGAINST THE JUDGEMENT/ORDER IN OP.9836/2002 Dated 11/06/2009 .................... APPELLANT(S): APPELLANTS/ADDITIONAL PETITIONER 2 TO 5 ----------------------------------------------------- 1. A.MOHAMED IQBAL, S/O.LATE M.A.SATHAR, T.C.45/667(1), BEEMAPPALLY, THIRUVANANTHAPURAM. 2. A.ZAFARULLA KHAN, S/O.LATE M.A.SATHAR, T.C.45/667(2), BEEMAPPALLY, THIRUVANANTHAPURAM. 3. A.ZAKIR HUSSAIN, S/O.LATE M.A.SATHAR, T.C.45/667, BEEMAPPALLY, THIRUVANANTHAPURAM. 4. KAMARUNIZA, D/O.LATE M.A.SATHAR, KARIM MANZIL, NEAR KADINAMKULAM PANCHAYATH, CHITTATTUMUKKU, KANIYAPURAM, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.N.P.PRAJEESH RESPONDENT(S): RESPONDENTS -------------------------- 1. THE TAHSILDAR, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 4. KRISHNA MOORTHY, S/O.NATARAJA KAMBAR, SREE GANESH MEDICALS, PAZHAVANGADI, THIRUVANANTHAPURAM. SR.GOVT.PLEADER SMT.K.MEERA FOR R1 TO R3 ADV. SRI.K.L.NARASIMHAN FOR R4 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. CHELAMESWAR, C.J & ANTONY DOMINIC, J. ---------------------------------------------- W.A.No. 2184 of 2009 ---------------------------------------------- Dated this the 9th day of June, 2011 JUDGMENT J.Chelameswar, CJ. The unsuccessful petitioners in O.P.No.9836 of 2002 are the appellants herein. They are aggrieved by the judgment dated 11th June, 2009 in the said Original Petition. The appellants herein are the children and legal heirs of one M.A.Sathar, who was the original petitioner in the abovementioned Original Petition. He approached this Court by asserting that he had been in possession of an extent of 650 square links of Government land in Sy.No.66 of Vanchiyoor Village and subsequently, he approached the Government to lease out another extent of 400 square links of land in the same survey number, which was granted by an order of the Government No.G.O.(Ms)1015/79/RD dated 30th July, 1979. It appears that the original petitioner wanted to make certain constructions in the abovementioned land, which was also permitted by another Government order No.1184/83/LA & SWD dated 30th March, 1983. However, the original petitioner admitted that by virtue of various subsequent events, the details of which are not necessary, he was left with the possession of only 700 square links of WA.2184/09 2 the abovementioned land, whereupon the construction was made. Making an innocuous statement in paragraph 5 of the Original Petition that “Government was pleased to resume the possession to the persons who are holding property adjoining the petitioner's property after receipt of the arrears of Kuthakapattam amount” - the original petitioner stated in the Petition that he had approached the second respondent with a representation seeking resumption of the property and building to the petitioner. Thus the petitioner lost possession of the property on his own admission, though he did not give the details as to the date and the process by which such an event took place. Obviously, the petitioner was not inclined in going into the details of the event for the reasons best known to him. Therefore, we have to proceed on the basis that the petitioner lost possession of the property. 2. It appears from the counter affidavit filed by the Government that the petitioner had not only defaulted payment of various amounts due from him towards the prohibitory tax etc., he also made certain constructions in violation of the terms of the lease. He further inducted the fourth respondent, a third party, into possession of the property by an agreement dated 21st June, 1996 between the original petitioner and the fourth respondent. It appears that from that part of the process of recovery of revenue arrears due from the original WA.2184/09 3 petitioner, the establishment of the original petitioner was sealed on 25th March, 2002 and subsequently, an order dated 20th March, 2002 cancelling the arrangement made in favour of the petitioner was passed by the District Collector. It appears that the fourth respondent, in fact, made the payment of arrears and made an application for regularising his possession of the property. Hence, the petitioner approached this Court filing the Original Petition with the prayers as follows: “(i) to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondents to receive the arrears of lease (Kuthakapattam) rent and prohibitory tax with respect to the property and building an extent of about 700 square links situated in Survey No.600 of Vanchiyoor Village in Thiruvananthapuram Taluk, Thiruvananthapuram District from the petitioner and resume the possession of the same to him; (ii) to issue a writ of Mandamus or any other appropriate writ, direction or order directing the respondents not to transfer the Kuthakapattom right which has already been granted to the petitioner with respect to the property situated in Survey No.660 of Vanchiyoor Village in Thiruvananthapuram Taluk, Thiruvananthapuram District to any WA.2184/09 4 other person except the petitioner.” 3. By the judgment under appeal, a learned Judge of this Court disposed of the Original Petition. The operative portion of the judgment reads as follows: “......In any case, since the matter reached this stage, I feel the right course will be to cancel the original lease in favour of the original lessee, who is no more. However, there is no scope for recovery of arrears of rent from him because the same has been paid by the tenant, namely, the additional fourth respondent in his name. If the original lessee is entitled to compensation for the improvements made certainly, his legal heirs should be granted it.....” 4. In substance, the learned Judge opined that there was no need to grant any relief to the original petitioner by directing restoration of possession of the disputed property in favour of the petitioners and also opined that in view of the fact that arrears had already been paid by the fourth respondent, the same need not be recovered from the petitioners any more. 5. Regarding the various directions and observations made with regard to the additional fourth respondent are concerned, we are of the opinion that the same are not called for in the instant Original Petition as the fourth respondent did not seek any adjudication of his rights, nor did he approach this Court on his own. In the circumstances, WA.2184/09 5 we are of the opinion that the judgment under appeal in so far as it gives various directions regarding the rights of the fourth respondent is liable to be set aside and accordingly it is set aside. 6. Coming to the observation that the appellants should be granted compensation, - “if the original lessee is entitled to compensation for the improvements” - we are also of the opinion that the same is beyond the scope of the instant Original Petition. If the appellants have any such grievance, they have to approach the appropriate forum by initiating appropriate legal proceedings. Subject to the above modification, we do not see any reason to interfere with the judgment under appeal. The Writ Appeal is, therefore, dismissed. J.CHELAMESWAR, CHIEF JUSTICE ANTONY DOMINIC, JUDGE vgs