IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 22ND JUNE 2009 / 1ST ASHADHA 1931 O.P.No. 8999 of 2002(U) ---------------------- PETITIONER: --------------- MANNAM MEMORIAL NATIONAL CLUB, THIRUVANANTHAPURAM, REPRESENTED BY ITS SECRETARY, MANNAM MEMORIAL CLUB, NEAR SECRETARIAT,THIRUVANANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SRI.P.MANOJKUMAR RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT,THIRUVANANTHAPURAM. 2. DISTRICT COLLECTOR, THIRUVANANTHAPURAM. 3. TAHSILDAR,TALUK OFFICE, THIRUVANANTHAPURAM. 4. VILLAGE OFFICER, VANCHIYOOR VILLAGE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER FOR R1 TO 4 SHRI.T.K.VIPIN DAS THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.No. 8999 of 2002(U) Order on C.M.P.No.15999 of 2002 in O.P.No.8999 of 2002 CLOSED 22/06/2009 V.K.MOHANAN, JUDGE APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1 : COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, THIRUVANANTHAPURAM No.11335/72 DATED 29/9/1972 P2 : COPY OF THE DEMAND NOTICE No.B1.49251/99 DATED NIL ISSUED BY THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM TO THE PETITIONER. P3 : COPY OF THE PETITION SUBMITTED BY THE PETITIONER BEFORE THE MINISTER FOR REVENUE,DATED 31/1/2000 P4 : COPY OF THE LETTER No.B1-49251/99 DATED 01/04/2000 OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. P5 : COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 19/10/1982 IN O.P.No.2063/1980-K DATED 19/10/1982. P6 : COPY OF THE NOTICE NO.B1-17452/99 DATED 7/2/2001 OF THE DISTRICT COLLECTOR, THIRUVANANTHAPURAM. P7 : COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DATED 11/1/2002 BEFORE THE FIRST RESPONDENT. P8 : COPY OF THE RULES BY NAME “RULES FOR ASSIGNMENT OF LAND WITHIN MUNICIPAL AND CORPORATION AREAS, 1995. P9 : COPY OF THE FORM NO.6 ATTACHED TO RULE 8. P10 : COPY OF THE MAHAZAR PREPARED BY THE 4TH RESPONDENT. P11 : COPY OF THE PETITION (DATED NIL) SUBMITTED BY THE HONORARY PRESIDENT OF THE CLUB BEFORE THE THIRD RESPONDENT. O.P.No. 8999 of 2002(U) P12 : COPY OF THE G.O.(MS)No.366/99 RD DATED 27/9/99. P13 : COPY OF THE G.O.(MS)No.469/99 RD dated 22/11/99. P14 : COPY OF THE G.O.(MS)No.51/2001 dated 23/2/2001. RESPONDENTS' EXHIBITS: NIL. V.K.MOHANAN, J. ------------------------------------------------- O.P.No.8999 OF 2002 ------------------------------------------------- Dated this the 22nd day of June, 2009 JUDGMENT Mannam Memorial National Club, Thiruvananthapuram represented by its Secretary is the petitioner. The second respondent, District Collector issued Ext.P2 notice directing the petitioner to pay a sum of Rs.3,78,75,020/- being the lease arrears with respect to the property, having an extent of 1 acre and 1 cent of land lying in Survey No.2836 of Vanchiyoor Village of Thiruvananthapuram Taluk, which is in the possession of the petitioner as per Kuthakapattom Lease. It is the above demand notice challenged in this writ petition stating that the land in question was leased out, for the functioning of the above club, by the Maharaja of Travancore with effect from 1195 M.E. on long term lease for a period of 99 years and the possession of the above property is on the basis of valid assignment. According to the petitioner the arrears calculated and fixed by the second respondent as seen from Ext.P2 is totally incorrect and exorbitant. Therefore it is prayed to issue a writ of certiorari, or order, quashing Exts.P2, P6 and Ext.P10. It is also prayed for a direction to the respondents to permit the functioning of petitioner's club. Another prayer is for a direction to the Government O.P.No.8999/02 2 to assign the land or register as per Ext.P12, P13 and P14 Government orders. It is also prayed for a direction, commanding the respondents to consider and dispose Exts.P3 and P7 representations. 2. The Government has filed a counter affidavit stating that an extent of 1.01 acre of land in Survey No.2032 of Vanchiyoor Village is being held by the Mannam Memorial National Club for a period of 99 years from 1195 M.E. According to the counter as per the Assignment of Land within Municipal and Corporation Areas Rules, 1995 (for short 'the Rules') lease holder shall file an application for renewal of lease before the assigning authority within three months from the date of issue of the G.O.(P).No.566/95/RD dated 13/11/1995. But, according to the Government, the petitioner herein had miserably failed to make such application even though the rule came into force on 14/11/1995. Therefore, initially, a show cause notice was issued and subsequently, a demand notice for Rs.3,78,75,020/- being lease rent arrears, issued to the lessee for the purpose of remittance. It is also specifically stated that according to Rule 5(2) of the Rules in the case of land held under an existing lease, lease rent, if any, outstanding against such land should be cleared before the renewal of the lease. But, in the present case, even no application for renewal of the lease was submitted by the petitioner. O.P.No.8999/02 3 It is also stated that as the petitioner miserably failed to submit the renewal application and to pay the arrears, the land would be resumed in cases where applications are not filed within time. In paragraph 14 of the counter affidavit, it is specifically stated as to how the amount calculated and demanded as per Ext.P2. Thus, according to the respondent, the petitioner is liable to pay the amount demanded as per Ext.P2 notice. 3. I have heard Sri.Pirappancode V.Sreedharan Nair, learned senior counsel appearing for the petitioner and also the learned Government Pleader. 4. The learned counsel submitted that in view of Rule.2(b)of the Rules especially in view of the status of the applicant in possession of the land, the assigning authority is the Government and the petitioner has already approached the Government by filing Ext.P3, P7, P16 and P18 representations and the same are pending and no decisions are taken thereon. According to the learned counsel, Ext.P2 demand notice is not sustainable either on law or on facts, especially in the light of the fact that the petitioner has got a valid Kuthakapattam lease which is in force and hence the petitioner is not liable to pay the amount as demanded. 5. I am not proposed to enter into any finding on merit O.P.No.8999/02 4 regarding the contentions of the petitioner and also the rate of interest applicable to the petitioner. In the present case, Rule 12(1) (a) is applicable which says that the lease holder, within three months from the date of issue of the said rule, shall file an application in form No.3 for grant of lease under the rules. As stated by the Government in the counter, no such application is seen filed by the petitioner. 6. It is under the above circumstances, the second respondent issued Ext.P2 demand notice. However it appears that the petitioner had approached the Government by filing Ext.P7, P16 and P18 representations on getting Ext.P2 notice. Ext.P2 is issued by the second respondent, the District Collector, but so far no reply or statement is filed by the petitioner before the second respondent stating the objections, if any. Therefore, the petitioner can be directed to file a detailed statement before the second respondent which shall be considered by the second respondent in accordance with rules. The petitioner can also move the Government for the renewal of the Kuthakapattam. Admittedly the property in question is in the possession of the petitioner based upon a Kuthakapattam lease and as per the rules, the petitioner has got a right to move the Government for renewal of the lease, in the light of the provisions contained in the above rules. Then, on such applications, it is for the O.P.No.8999/02 5 Government to decide the request on merit. In the light of the above facts and circumstances I am of the view that this writ petition can be disposed, without entering into the merits or demerits of the claim of the petitioner, but relegating the petitioner to approach the concerned authorities. In the result this writ petition is disposed of with the following directions; (i) The petitioner is directed to file the explanation or objection against Ext.P2 demand notice within one month from today and along with such objection the petitioner is further directed to pay a sum of Rs.1,50,000/- towards the amount demanded in Ext.P2. (ii) On such filing of the objection and on deposit of such amount, the second respondent is directed to consider the objection after giving an opportunity of being heard to the petitioner and to issue fresh notice, if necessary, on the basis of the out come of the such enquiry. The second respondent is directed to complete such enquiry within another one month from the date of filing of the objection and deposit O.P.No.8999/02 6 of the amount. (iii) On completion of the said enquiry and remittance of the balance amount, if any, within one month thereon, the petitioner can approach the Government either by moving Ext.P3 and P7 representation or filing a fresh representation with the claim for renewal of the Kuthakapattam lease and thereupon the Government shall take a decision upon such request on merit within three months thereafter. (iv) The respondents are directed to maintain status-quo till a decision is taken by the Government upon the request of the petitioner for renewal of the Kuthakapattam as per the above Rules. (v) It is made clear that, if the petitioner fail to make the payment of the balance amount, if any, as fixed as per third direction, within the stipulated time, the Government can move against the property in question. vi) The petitioner is directed to furnish a copy of this judgment and also a copy of this writ petition before O.P.No.8999/02 7 the 2nd respondent along with the objection as directed as per direction No.(i), who in turn shall forward the same to the Government with a report regarding the compliance in terms of 1st and 2nd direction contained in this judgment. V.K.MOHANAN, JUDGE skj.