IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29382 of 2003(W)
1. HINDU VANITHA SANGHAM, A SOCIETY
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. THE SECRETARY, GOVERNMENT OF KERALA,
3. PRINCIPAL SECRETARY, FINANCE,
4. DISTRICT COLLECTOR, COLLECTORATE,
5. TAHASILDAR, TALUK OFFICE, TRIVANDRUM.
For Petitioner :SRI.R.S.KALKURA
For Respondent :ADDL.ADVOCATE GENERAL
The Hon'ble MR. Justice C.K.ABDUL REHIM
Dated :12/08/2009
O R D E R
C.K ABDUL REHIM, J.
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W.P(C) No. 29382/2003
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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
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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.
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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
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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.
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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.
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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