IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR THURSDAY, THE 11TH JUNE 2009 / 21ST JYAISHTA 1931 OP.No. 9836 of 2002(U) ---------------------- PETITIONER(S): --------------- M.A.SATHAR, T.C.45/667, BEEMAPALLY, THIRUVANANTHAPURAM. (DIED) ADDL. 2. R. MOHAMED IQBAL, SON OF LATE M.A. SATHER, T.C. 45./667, BEEMAPALLY, THIRUVANANTHAPURAM. ADDL. 3. A. ZAFARLLA KHAN, DO.DO. ADDL. 4 A. ZAKHIR HUSSAIN, DO.DO. ADDL. 5. KAMASUMZA, D/O LATE M.A. SATHAR, KARIM MANZIL, NEAR KADINAMKULAM PANCHAYATH, CHITTATTUMUKKU, KANIYAPURAM, THIRUVANANTHAPURAM.. ADDL. PETITIONERS 2 TO 5 ARE IMPLEADED AS PER ORDER ON IA 1942 OF 2008 DATED 11.2.2008 BY ADV. SRI.GOPAKUMAR R.THALIYAL SRI.A.K.HARIDAS RESPONDENT(S): --------------- 1. THE TAHSILDAR, THIRUVANANTHAPURAM. 2. THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. ADDL. 4. .KRISHNAMOORTHY, SON OF NATARAJA KAMBAR, SREE GANESH MEDICALS, PAZHAVANGADI, THIRUVANANTHAPURAM. ADDL. R4 IS IMPLEADED AS PER ORDER ON CMP 23460 OF 2002 DATED 3.6.2002 R1 TO R3 BY G.P. SRI. P.K. RAVIKRISHNAN ADV. SRI.K.L.NARASIMHAN FOR R4 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 11/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 ORDER ON CMP 17436 OF 2002 IN OP 9836 OF 2002 DISMISSED 11.6.2009 SD/-C.N.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF ORDER DATED 27.8.1982 OF UNDER SECRETARY TO GOVT. OF KERALA REVENUE (U) DEPARTMENT. EXT.P2 TRUE COPY OF RECEIPT ISSUED FROM VILLAGE OFFICE, VANDHIYOOR DATED 2.8.91 EXT.P2(a) DO.DO. DATED 13.1.1992 EXT.P2(b) 18.3.98 OF DO.DO EXT.P2(c) 13.1.92 OF DO.DO EXT.P2(d) 25.7.85 OF DO.DO. EXT.P3 TRUE COPY OF ORDER DATED 30.3.83 OF SPECIAL SECRETARY TO GOVT. OF KERALA. EXT.P4 TRUE COPY OF CERTIFICATE ISSUED BY FIRST RESPONDENT DATED 21.5.1983 EXT.P5 TRUE COPY OF PETITION OF PETITIONER BEFORE THE DISTRICT COLLECTOR, TRIVANDRUM DATED 5.4.2002 RESPONDENTS 1 TO 3' S EXHIBITS: EXT.R1(a) TRUE COPY OF G.O.(MS) 1015/79/RD DATED 30.7.79 EXT.R1(b) TRUE COPY OF G.O.(MS) NO. 517/87/RD AND ENDORSEMENT NO. B4/56592/85 OF THE DISTRICT COLLECTOR DATED 30.7.87 EXT.R1(c) TRUE COPY OF G.O. 566/95/RD DATED 13.11.1995 4TH RESPONDENT'S EXHIBITS: EXT.R4(a) DATED 4.4.2002 TRUE COPY OF THE RECEIPT ISSUED BY THE TAHSILDAR, TRIVANDRUM. EXT.R4(b) DATED 21.6.1996 TRUE COPY OF RENTAL AGREEMENT EXECUTED BETWEEN THE PETITIONER AND ADDL. 4TH RESPONDENT. EXT.R4(c) DATED 21.7.1997 TRUE COPY OF THE RENT DEED EXECUTED BETWEEN THE PETITIONER AND ADDL. FOURTH RESPONDENT. EXT.R4(d) DATED 1.12.1996 TRUE COPY OF THE RENT RECEIPT ISSUED BY THE PETITIONER TO THE ADDL. 4TH RESPONDENT. EXT.R4(e) DATED 21.9.1997 TRUE COPY OF THE RENT RECEIPT ISSUED BY THE PETITIONER TO THE ADDL. 4TH RESPONDENT. 3 EXT.R4(f) DATED.. TRUE COPY OF THE LETTER BY THE ADDL. 4TH RESPONDENT TO THE DISTRICT COLLECTOR REQUESTING ASSIGNMENT OF KUTHAKAPATTOM IN HIS NAME. EXT.R4(g) DATED 4.4.2002 TRUE COPY OF THE LETTER BY THE ADDL. FOURTH RESPONDENT TO THE TAHSILDAR ENCLOSING THE CHEQUE FOR RS. 2,30,127/- EXT.R4(h) DATED 9.4.2002 TRUE COPY OF THE CHALAN RECEIPT ISSUED BY THE TAHSILDAR FOR THE KUTHAKAPATTOM REMITTED BY THE ADDL. 4TH RESPONDENT. TRUE COPY P.S. TO JUDGE. C.N. RAMACHANDRAN NAIR, J. -------------------------------------------- O.P. NO. 9836 OF 2002 -------------------------------------------- Dated this the 11th day of June, 2009 JUDGMENT First petitioner who is no more was given kuthakapattam lease of 700 sq. links of land by the Government in the heart of Trivandrum city, that is, Pazhavangadi, in the year 1979. Eventhough he was granted permission to construct shed, he constructed a pucca building with 400 sq. links. Balance 300 sq. links is stated to be retained by successors of first petitioner where they are carrying on flower business. Original lessee started a medical shop in the pucca building, and he let out the same to the additional fourth respondent on 21.6.1996. He is presently running a medical shop in the said building. However, neither the original lessee nor the tenant namely additional fourth respondent cared to pay kuthakapattom rentals which led to revenue recovery proceedings . In view of the chronic default the shop was closed by the recovery authorities on 20.3.2000. Thereafter the additional fourth respondent remitted Rs. 2,30,000/- towards arrears of rent on 4.4.2002 and attachment was released and he was allowed to 2 continue business. After remittance of arrears of rent by the additional fourth respondent, original lessee, the first petitioner in the WPC, offered to pay arrears of rent. However, since arrears are already cleared by the additional fourth respondent, recovery authorities obviously could not collect the same. The original lessee has approached this Court for appropriate directions to respondents 1 to 3 for receipt of arrears of rent and regular rent payable per month for the building. I heard counsel for the petitioners impleaded in the O.P., Government Pleader and counsel for the additional fourth respondent. 2. The case of the petitioners is that kuthakapattom lease in favour of original lessee continues and after his death his legal heirs are entitled to leasehold rights. However, Government Pleader submitted that lease was for a specific period which expired in 1984. His further case is that original lessee has forfeited his right because of the violation of the conditions of lease. In the first place, he constructed a pucca structure without any permission whatsoever from the Government. Secondly, he has assigned leasehold rights to the additional fourth respondent by way of lease which was not permissible 3 under the Kuthakapattom Rules. Lastly on account of chronic default in payment of arrears of rent by the original lessee rent has to be recovered from the tenant, namely, additional fourth respondent, to whom the original lessee leased out the building. 3. Before this Court the additional fourth respondent has raised a contention that leasehold rights in favour of the original lessee are extinguished on account of expiry of the period of lease and on violation of conditions of lease and since he is presently in possession of the building, he is entitled to either fresh lease in his favour or an assignment under the Land Assignment Act. 4. After hearing all the parties, I am of the view that developments above stated clearly show the indifference of the Governmental agencies monitoring these transactions. It is not known whether the validity of construction of a pucca structure in violation of Kuthakapattom Rules and lease conditions was considered by the Tahsildar. If the construction was approved, then he had a duty to fix the lease rentals payable based on the increased facilities in the land, though made up at the cost of original lessee. In any case, since the 4 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. The District Collector will decide whether government policy permits assignment of building on a regular basis and if so he will fix the market price in accordance with norms and assign the building to the additional fourth respondent. However from this sale proceeds received, reasonable amount for construction of building should be paid to original lessee's legal heirs. On the other than, if the policy is not to lease out government building, it is for the District Collector to fix market rate of rent and give the building on lease to the additional fourth respondent treating the eviction of original lessee as notional and enter into agreement with the additional fourth respondent for regular lease rental arrangement with periodical increase in rent in accordance with norms adopted by the Government. 5 The present rate of rentals will be paid by the fourth respondent without any delay until final proceedings are issued by the District Collector pursuant to the above direction. The District Collector is directed to take a decision after hearing all the parties, within three months from the date of production of a copy of this judgment. O.P. is disposed of as above. (C.N. RAMACHANDRAN NAIR) Judge kk 6