IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 OP.No. 5881 of 2003(A) --------------------------------- PETITIONER(S): ------------------------- THRESSIAMMA JOSEPH, WIDOW OF LATE SRI.K.V.JOSEPH, KAKKAMPARAMBIL, PERUNNA P.O., CHANGANACHERRY. BY ADV. MR.A.A.MOHAMMED NAZIR RESPONDENT(S): ------------------------- 1. THE DISTRICT COLLECTOR, KOTTAYAM. 2. THE TAHSILDAR, CHANGANACHERRY TALUK, CHANGANACHERRY. 3. THE VILLAGE OFFICER, CHANGANACHERRY. GOVERNMENT PLEADER MR.T.K.VIPIN DAS FOR R1 TO 3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CMP. NO.10300/2003 IN OP. NO.5881/2003 CLOSED 18/06/2009 SD/- V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE RECEIPT NO.67 DT. 30.3.82 ISSUED BY THE VILLAGE OFFICER. P2:- COPY OF THE RECEIPT NO. 49 DT. 4.1.92 ISSUED BY THE VILLAGE OFFICER. P3:- COPY OF THE RECEIPT NO.19 DT. 10.12.96 ISSUED BY THE VILLAGE OFFICER. P4:- COPY OF THE NOTICE DT. NIL ISSUED BY THE DISTRICT COLLECTOR , KOTTAYAM. P5:- COPY OF THE NOTICE DT. 27.1.03 ISSUED BY THE VILLAGE OFFICER. ANNEXURE I:- COPY OF THE RECEIPT DT. 21.4.03 ISSUED BY THE VILLAGE OFFICER, CHANGANACHERRY VILLAGE. TRUE COPY P.A. TO JUDGE TSS V.K.MOHANAN, J. --------------------------------------------- O.P.No. 5881 of 2003 A --------------------------------------------- Dated this the 18th day of June, 2009 J U D G M E N T The petitioner, a widow, who is in possession of 1 Are of land in Sy.No.112/5A in Block No.159/1 of Changanacherry Village, has preferred this writ petition with a prayer to quash Exts.P4 and P5. Ext.P4 is an order issued in Form No.7 in terms of Rule 12(3) of the Assignment of Land within Municipal and Corporation Areas Rules,1995 (for short 'the Rules) whereby the lease with respect to the property in question is renewed and limited only for a period of three years from the date of Ext.P4 and also with certain other conditions including enhancement of the lease rent. Ext.P5 is the demand notice issued by the Village Officer directing the petitioner to pay a sum of Rs.16,800/- as kuthakappattam arrears. 2. The case of the petitioner is that the property in question was assigned during the year 1949 in favour of her father as kuthakappattam lease as per KP 89/49 and the period of lease was not fixed as per the said order. It is also the case of the petitioner that at the time of assignment of OP NO.5881 of 2003 :-2-: land on kuthakappattam lease in the year 1949, the kuthakappattam rent was Rs.1/- and the same was periodically enhanced and Exts.P1 toP3 are the receipts produced by the petitioner to show that rents were paid in time as revised by the Government from time to time. According to the petitioner, as per the Kuthakapattom Rules, 1947, particularly as per Rule 8 of Kuthakappattom Rules, rent is to be paid as per the Schedules I to III attached thereto. It is also contended that as per Rule 8(iv), the rent is liable to be revised only in every 12 years. As per Ext.P3, the petitioner has paid revised rent based upon the rent made applicable during the year 1997. But, as per Exts.P4 and P5, deviating from the above rules, rent was revised all of a sudden and the petitioner is directed to pay a sum of Rs.16,800/-, which according to the petitioner, is arbitrary and illegal and she is not liable to pay such huge amount. 3. Controverting the contentions of the petitioner, an affidavit is seen filed for and on behalf of the first respondent. In their counter affidavit, the first respondent has admitted that the property in question is in the possession of the petitioner which was given on kuthakappattam lease in favour of the petitioner's late father in the year 1949. It is also stated that as per G.O.(P) OP NO.5881 of 2003 :-3-: No.566/85/RD dated 13.11.1995, the lease has been renewed and fixed at the rate of Rs.2406/- (enhanced rate) per year. In the counter affidavit, it is also admitted that till 1998-99, the lessee had remitted the lease amount, but that was in the old rate and thereafter no lease rent was paid. It is also stated that due to the non-remittance of the lease amount, demand notice was served on her asking to remit the kuthakappattom arrears failing which the petitioner would be summarily evicted from the kuthakappattom land. It is also categorically admitted by the respondents that after the death of Sri.Chacko Varghese, the said kuthakappattam land was in occupation and possession of Smt.Thressiamma Joseph since 1949. It is also stated that this lease was being renewed as per the existing Kuthakappattom Rules and prevailing Government Orders from time to time. So as per the counter, though the petitioner was directed to pay the revised rent and arrears thereon, no payment was made. 4. I have heard the learned counsel for the petitioner as well as the learned Government Pleader and also perused the records. 5. The above rules came into force during the year 1995. As per Rule 12(1) of the Rules, land held under lease either OP NO.5881 of 2003 :-4-: current or time expired granted under any rule or orders in force at the time of such grant and which do not fall under rule 5 shall be granted fresh lease in Form No.6 as per the procedure prescribed. As per Rule 12(1)(a) of the Rules, the lease holder shall, within three months from the date of issue of the said rule, file an application in Form No.5 to the Assigning Authority for grant of lease under these rules. In the present case, the petitioner is under the impression that as she is in possession and enjoyment of the property in question on the basis of such assignment given in the name of the petitioner's father during the year 1949 and she was paying the revised rent without any failure, there was no problem for the enjoyment of the property and she never anticipated a move for eviction. Ext.P4 order is issued by the respondents on the basis of the above rules and that too without hearing the petitioner. It is relevant to note that as admitted by the respondents in their counter, the petitioner is in possession and enjoyment of the property right from 1949 and she was paying the lease rent without any failure. It is also her case that no time limit is prescribed in the lease agreement. Under the above situation, according to me, denying the lease and limiting the period of such lease to three years is arbitrary OP NO.5881 of 2003 :-5-: and illegal. 6. Learned Government Pleader submits that in the light of the Government Order that G.O.(P) No.126/2004/RD dated 14.5.2004 published as S.R.O.No.500/2004, the respondents are not proposed to realise the amount as quantified and demanded as per Ext.P5. Certainly, the benefit of the Government Order mentioned above will be extended in favour of the petitioner for which the petitioner should approach the respondents concerned. 7. In the light of the above submission, I am of the view that this writ petition can be disposed of directing the petitioner to make an application in terms of Rule 12 of the Rules for assignment of the land and on such application, the respondents shall consider such application in favour of the petitioner considering the fact that the petitioner is in possession and enjoyment of the land in question right from 1949 as per the kuthakappattaom lease originally granted in favour of the father of the petitioner and she was continuously paying all revised lease rents. 8. The writ petition is disposed of with the following directions:- OP NO.5881 of 2003 :-6-: 1. The petitioner is directed to file an application within one month from today. 2. On such filing of the application, the third respondent is directed to issue fresh demand notice for lease arrears on the basis of Government Order vide S.R.O.No.500/04, extending the benefit within one month thereafter. 3. On receipt of such notice, the petitioner is directed to pay the amount so directed within one month from its receipt. 4. On such remittance of the arrears of kuthakappattam rent, the application of the petitioner shall be processed and appropriate decision shall be taken thereon as early as possible, at any rate within six months from the date of remittance of the rent arrears. V.K.Mohanan, Judge MBS/ OP NO.5881 of 2003 :-7-: V.K.MOHANAN, J. -------------------------------------------- O.P.NO. 5881 OF 2003 -------------------------------------------- J U D G M E N T DATED: 18-6-2009 OP NO.5881 of 2003 :-8-: